ILO briefing note: Prepared by the Ontario Human Rights Commission (OHRC) for the Ontario Ministry of Labour

ISSUE: Input on the International Labour Organization (ILO) Discrimination (Employment and Occupation) Convention 111^[1] for Canada’s 2011 Article 22 Report as it pertains to the mandate of the Ontario Human Rights Commission (OHRC).

RECENT DEVELOPMENTS

Insert update on legislative, regulatory or policy change directly relevant to the implementation of the Convention for the period June 1, 2009 to May 31, 2011.

• See OHRC responses to ILO Committee observations or direct requests below

Other OHRC activities related to employment discrimination:

• In March 2010, the OHRC published a new guide called Count me in!, a framework for collecting data to monitor and address human rights in workplaces, developed in partnership with KPMG Canada and TD Bank Financial Group.^[2]
• In May 2010, the OHRC concluded its formal three-year partnership project with Toronto Police Services developing a comprehensive program to bring a human rights focus to all facets of policing in Toronto including recruiting, selecting, promoting and retaining officers. Ryerson University is now evaluating the success of the Project.^[3] In February 2011, the OHRC begin a similar initiative with Windsor Police and the Ontario Police College.

• In June 2010, the OHRC published Anti-racism and Discrimination for Municipalities, a best-practice manual as part of OHRC’s UNESCO’s Cities Against Racism initiative. These initiatives include actions municipal governments can take to address discrimination in employment, both as an employer and service provider.
• In March 2011, the OHRC launched its revised Policy on Preventing Sexual and Gender-based harassment. The new policy includes a focus on sexual harassment and discrimination in employment.
• Following a case upheld at the Ontario Divisional Court affirming employees with mental health disabilities’ right to accommodation of their needs, in 2009 OHRC released a research paper and began a public consultation on mental health discrimination including a focus on employment. In 2011, the OHRC will report on its consultation and begin developing a new policy interpreting the rights of persons with mental illness under Ontario’s Human Rights Code along side obligations under Canada’s Charter of Rights and Freedoms and the International Covenant on the Rights of Persons with Disabilities.
• In August 2009, the OHRC made a submission to the Ministry of Health and Long-Term Care’s Every Door is the Right Door: Towards a 10-Year Mental Health and Addictions Strategy. The OHRC’s submission recognized the wide spread discrimination faced by people with mental illnesses including in the area of employment and the importance and legal duty to create an inclusive work environment.
• In the reporting period, the OHRC also began working with the Ontario Association of Chiefs of Police to help them develop a Guide for Police Record Checks to address discrimination experienced by persons with mental health illness when applying for jobs. The OACP approved its final Guide in April 2011 for release later this year. The OHRC had produced an interim guide following two cases against Toronto Police Services Board it settled at the Human Rights Tribunal of Ontario in 2009.
• In 2010, the OHRC began working with the Canadian Human Rights Commission on their initiative to develop a data report on human rights including in employment. This follows CHRC’s release of a framework tool for documenting human rights. Both commissions intend on releasing data reports in the future including information on employment and occupation by ground of discrimination based on Census data.
• In December 2010, the OHRC replied to concerns raised by the United Kingdom Chartered Institute of Management Accounts (CIMA) regarding restrictions on the use of foreign accounting credentials resulting from Ontario new Bill 158 2010 impacting its members residing and working in Ontario. The OHRC also raised concern about the Chartered Management Accounts of Ontario’s “Canadian” experience and university degree requirements under its Mutual Recognition Agreement with CIMA UK. CMA Ontario reported in March 2011 dropping the Canadian experience. The other issues remain outstanding.

Relevant cases:

• In May 2010, Ontario’s Divisional Court issued a decision on a case called Ontario Human Rights Commission v. Christian Horizons. The Divisional Court’s ruling was on the appeal of a 2008 decision made by the Human Rights Tribunal of Ontario. In that decision, the Tribunal found that Christian Horizons infringed the rights of an employee who was in a same sex relationship.^[4]
• In the June 2010 interim decision Loomba v. Home Depot Canada^[5], the Human Rights Tribunal of Ontario found that Mr. Loomba had been discriminated against – he had been treated differently in a negative way because of his turban. The Tribunal also found that the store did not consistently enforce the protective safety equipment rules, and was more strict with Mr. Loomba than with other people, because of his creed. This case was split into two parts – the next stage will involve considering the right to be free of discrimination along with the need for safety under the Occupational Health and Safety Act, and determining remedies.
• In a June 2010 decision, the Human Rights Tribunal of Ontario found that the Toronto Police Services Board discriminated against a new recruit, Ariyeh Krieger, by not accommodating his mental disability to the point of undue hardship.^[6]

RESPONSE TO COMMITTEE OBSERVATION/DIRECT REQUEST

The Committee made a recommendation to amend human rights legislation to include social origin or condition and political belief as prohibited grounds of discrimination in employment and occupation.

• In its 2009 report on Human Rights in Housing, the OHRC indicated its willingness to examine the implications of including “social condition” as a prohibited ground of discrimination and harassment. The government has not given any direction in this regard to date.

• Several years back, the OHRC wrote two papers – Human Rights Commissions and Economic and Social Rights^[7], and An Intersectional Approach to Discrimination: Addressing Multiple Grounds In Human Rights Claims^[8] – that address how a human rights commission can maximize its mandate and interpretation of human rights legislation to address social condition or status in the absence of such an enumerated ground. In general, the Code may apply where a demonstrable link exists between social condition or poverty and other enumerated grounds such as race, family status, age, disability or being in receipt of public assistance.

The Committee notes that the Ontario proposed Employment Accessibility Standard aimed at removing barriers at all stages of the employment cycle for persons with disabilities in the latter stages of development.

• In 2009, the OHRC made a submission on the first draft Employment Accessibility Standard recommending the addition of guiding human rights principles, inclusion of non-paid volunteers and family members, recognition of the duty to accommodate individuals. The OHRC made subsequent submissions in October 2010 and March 2011 on proposed regulations that would defer the employer’s duty to accommodate employees by a number of years relative to the class and size of organization. This contradicts the immediate duty to accommodate applicants and employees with disabilities under Ontario’s Human Rights Code. The OHRC also recommended that the regulation require employers to train employees on obligations under the Human Rights Code. Only this later recommendation was addressed in the final regulation released in June 2011.
• In 2010, the OHRC also commented on “Creating a Path Forward – Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act (AODA) 2005” agreeing with the need to raise accountability and public profile around the AODA. The OHRC also supported the call to harmonize legislation and standards, particularly with the Human Rights Code, as well as the recommendation to develop a provincial policy framework on accessibility that would set out goals and expectations for the AODA’s vision along with core principles and criteria for developing and evaluating standards. The OHRC also recommended that such a framework include tools and procedures to make sure the AODA, the Code and other disability rights are properly considered and addressed when government is developing, revising and implementing legislation, policies and programs, signing contracts and spending public funds.

The Committee asks government to provide specific information on any measures taken to prevent and address sexual harassment.

• In a presentation to the Ontario Legislative Standing Committee on Social Policy, the OHRC spoke in support of Bill 168, which amends Ontario’s Occupational Health and Safety Act to include workplace harassment and violence. Workplace harassment continues to be the subject of many human rights applications at the Human Rights Tribunal of Ontario. This Bill makes an important connection between labour and human rights legislation. The legislation calls for new requirements for employers to develop, implement and annually review policies and programs to deal with workplace harassment and violence. The OHRC recommended expanding the Bill to include not just acts of harassment and violence but also other forms of discrimination and psychological or emotional harm, which can often lead to physical force. It also recommended that the law or its guidelines require monitoring of workplace “harassment” as one of the risk factors for violence. These recommendations were not incorporated into the amended legislation and guidelines which are now in effect.

The Committee notes a hotline was established and consultations initiated by the Ontario government with a view to improve the working conditions of vulnerable temporary foreign workers including through the adoption of new legislation to better protect employees who are part of the Federal Live-in Caregiver Program. The Committee requests follow-up information as well as information on monitoring violations.

• In April 2011, the Supreme Court of Canada released a decision in Ontario (Attorney General) v. Fraser addressing collective bargaining rights, labour relations legislation governing agricultural workers in Ontario, and equality rights under the Charter of Rights and Freedoms.^[9]
• In May 2009, the OHRC published a letter to the Minster of Labour, recognizing that foreign domestic workers often face discrimination because of sex, place of origin, ethnic origin, race and other related grounds. The OHRC commended the Ontario Government for taking steps and making commitments to promote and protect the rights of foreign domestic workers including banning foreign domestic worker placement fees and targeting enforcement of agencies that breach Ontario’s labour laws.^[10]

• The OHRC 2008 publication, Human Rights at Work, states that live-in caregivers have rights under Ontario’s Human Rights Code:

“People who are hired to work in or around a person’s home, such as a nanny, cook, cleaner or gardener, are also protected under the Code.

Example: A family employs a live-in caregiver from the Philippines. She is routinely subjected to racial and sexual harassment and sexual solicitation. She is entitled to file a complaint alleging discrimination in employment.”

• In 2004, a research paper was prepared for the OHRC for its Policy Dialogue on Racial Discrimination, entitled, Are There Racial Barriers to Access to Professions and Trades for the Foreign-trained in Ontario?^[11]

Provide information on the impact of the new complaints procedure in Ontario on monitoring and enforcement of the non-discrimination provisions.

• On June 30, 2008, the role of the OHRC in dealing with individual human rights complaints changed. As of that date, all new human rights applications were filed directly with the Human Rights Tribunal of Ontario (HRTO). During the transition phase, the OHRC continued to work on the cases already within its system. By the end of the 2009/2010 fiscal year, the OHRC remains involved in 45-50 of these cases.
• On an ongoing basis, the OHRC will continue to monitor cases, to identify opportunities to intervene in issues of broad systemic or public interest at the HRTO, in the courts and in other tribunals such as the Social Benefits Tribunal.
• OHRC annual reports have traditionally included detailed charts offering totals of new complaints, monetary damages, disposition of cases, referrals and cases completed for each fiscal year. In Ontario’s new human rights system, these areas are now covered by the HRTO.

BACKGROUND

If relevant or necessary, provide brief background information.

• Section 5 of the Ontario Human Rights Code provides that every person has a right to equal treatment with respect to employment without discrimination and harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.^[12]
• Part III of the Code sets out the functions and powers of the Ontario Human Rights Commission. The OHRC is an independent agency, administratively arms-length from government, with a broad mandate to promote and protect human rights. The OHRC’s mandate is consistent with the UN Paris Principles Relating to the Status of National Institutions.^[13] The OHRC focuses on systemic human rights matters and can seek to initiate complaints or intervene in matters before the HRTO or higher courts.

• Part IV of the Code sets out the functions and powers of the Human Rights Tribunal of Ontario. The HRTO deals with all claims of discrimination filed under the Code and works to resolves complaints through mediation or adjudication.
• Part IV.1 of the Code sets out the functions and powers of the Human Rights Legal Support Centre. The HRLSC offers human rights complaint-related legal support services to individuals who believe they have experienced discrimination.

Disponible en français

^[1] http://www.ilo.org/ilolex/cgi-lex/convde.pl?C111
^[2] http://www.ohrc.on.ca/en/resources/Guides/countmein
^[3] http://www.ohrc.on.ca/en/resources/news/milestone/view
^[4] http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc2105/2010onsc2105.html
^[5] http://www.canlii.org/en/on/onhrt/doc/2010/2010hrto1434/2010hrto1434.html
^[6] http://www.canlii.org/en/on/onhrt/doc/2010/2010hrto1361/2010hrto1361.html
^[7] http://www.ohrc.on.ca/en/resources/discussion_consultation/EconomicSocialRights/view
^[8] http://www.ohrc.on.ca/en/resources/discussion_consultation/DissIntersectionalityFtnts/view
^[9] http://scc.lexum.org/en/2011/2011scc20/2011scc20.html
^[10] http://www.ohrc.on.ca/en/resources/news/letter_bill168/view
^[11] http://www.ohrc.on.ca/en/issues/racism/racepolicydialogue/js/view
^[12] http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm
^[13] http://www2.ohchr.org/english/law/parisprinciples.htm