What are OHRC policies and why are they important?

What are policies?

OHRC policies and guidelines set standards for how individuals, employers, housing providers, service providers and policy makers should act to comply with the Code. They are important because they represent the OHRC’s interpretation of the Code (at the time of publication). While they are not binding on the Ontario Human Rights Tribunal (the Tribunal) or on courts, they are often given great deference, applied to the facts of the case before the court or tribunal, and are quoted in their decisions.

Section 30 of the Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting the Ontario Human Rights Code (the Code). Developing policies is part of the OHRC‘s responsibility under section 29 to promote, protect and advance human rights in Ontario, to protect the public interest, and to eliminate discriminatory practices. The OHRC’s policies advance a progressive understanding of the rights set out in the Code.

The OHRC’s policy work informs and guides both the OHRC’s public education initiatives and its public awareness campaigns. Through careful research, analysis, public consultation and policy development, the OHRC is able to reflect recent developments in human rights law, theory and practice. With this solid policy foundation, the OHRC was able to speak authoritatively and with influence on issues such as mandatory retirement, racial profiling, and accommodating students with disabilities. Its policy work has enabled the OHRC to establish new partnerships with stakeholder groups on a wide variety of emerging human rights issues.

Like academic research, OHRC policies and guidelines draw on extensive research and develop current, progressive interpretations of human rights law. They enable the Code to be used to address new and emerging human rights issues and trends. They incorporate international perspectives on human rights and a broad understanding of the social and economic aspects of human rights. Unlike pure academic research, the OHRC’s policies contain practical guidance relevant to the everyday lives of Ontarians and, thus, have the ability to widely influence social behaviour and change.

How are policies developed?

Many factors can lead to a policy being developed. Factors can include inquiries and claims of discrimination received from the public; needs arising from public education and communications functions; academic and social science research; monitoring of social issues and trends; case law developments; and, of course, the provisions of the Code and the Canadian Charter of Rights and Freedoms.

Public consultation plays a major role when developing OHRC policies. Public consultation may take a variety of forms, including written submissions, focus groups, policy dialogues, public presentations, on-line questionnaires, open houses, town hall meetings, and informal meetings with stakeholders. The OHRC regularly consults with a broad range of stakeholders, including employers and employer organizations, unions, public and private service providers, human resources professionals, community groups, advocacy organizations, lawyers, academics, provincial and municipal governments, housing providers, social service agencies, education service providers, consumer groups and others.

Public consultations identify key issues and concerns, as well as possible approaches and best practices. These consultations are an important way in which the OHRC remains actively engaged with its partners, and ensure that they have a voice in the OHRC’s decision-making. By consulting publicly on an issue, the OHRC is able to generate media coverage, thus drawing the public’s attention to new and developing human rights issues.

How are policies used?

OHRC policies are widely used by people responsible for applying the Code, such as lawyers, unions, human resource managers and others. The policies are useful because they respond to day-to-day human rights issues.

They are also an important resource for individuals and their counsel seeking to enforce their rights under the Code. Section 45.5 of the Code states that the Tribunal may consider the OHRC’s policies in a proceeding before it. If a party or an intervenor in a proceeding requests it, the Tribunal shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a tribunal or court proceeding, parties and intervenors are encouraged to ask the tribunal or court to consider it.

Section 45.6 of the Code states that if a final decision or order of the Human Rights Tribunal is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervenor, the OHRC may apply to the Tribunal to have the Tribunal state a case to the Divisional Court so that the law can be clarified.

By clearly setting out the rights and responsibilities of parties under the Code, the OHRC’s policies help resolve tension and conflict in our communities, and prevent human rights violations before they occur. By offering practical guidance, including best practices, on specific issues that arise in society, the OHRC’s policies help to create a culture of human rights in Ontario.

Recognition of OHRC policies and guidelines

The OHRC’s policies and guidelines have received considerable deference from the Human Rights Tribunal (previously known as the Board of Inquiry), in cases involving issues such as how different rights intersect, drug and alcohol testing, determining undue hardship, transgender issues and disability accommodation. For example, in Quesnel v. London Education Health Centre, the Board of Inquiry found that the OHRC’s Guidelines on Disability and the Duty to Accommodate were entitled to “great deference” because they promote the meaning and intent of the Code, they are consistent with its legislative history, and their development was informed by broad public consultation. The Board of Inquiry used the Guidelines to interpret the Code.

In 2008, in Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General,) the Ontario Superior Court of Justice quoted from the OHRC’s Policy on Discrimination Against Older People Because of Age. The Court stated that the OHRC’s efforts led to a “sea change” in the attitude to mandatory retirement in Ontario, which led to the Ontario government’s decision to pass legislation amending the Code to prohibit age discrimination in employment after age 65, subject to limited exceptions. This amendment, which became effective December 2006, made mandatory retirement policies illegal for most employers in Ontario.

The OHRC’s policies have received recognition both nationally and internationally. In 2002, the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate received the government’s Amethyst Award for excellence in public service. Human rights commissions across Canada have relied on them to guide and support their own initiatives. The policies have also received recognition from human rights commissions around the world, and support from community partners who use them regularly in their day-to-day work.