This document explains the legal backdrop for the Commission’s Policy Framework. It is divided into two main sections. The first provides an overview and summary of key legal principles from some significant legal decisions. This section aims to help readers understand the relevant legal background when seeking to conciliate or otherwise reconcile competing rights claims. The second part of the document surveys the leading cases that deal with competing rights. It also provides examples of situations where the leading cases, and the key principles from them, have been applied by courts and tribunals. It is divided by the types of rights conflicts that most commonly arise. The cases are discussed in some detail as the specific factual context of each case is so important to the rights reconciliation process.
Goods, services and facilities
You have the right to be free from discrimination when you receive goods or services, or use facilities. For example, this right applies to:
- stores, restaurants and bars
- hospitals and health services
- schools, universities and colleges
- public places, amenities and utilities such as recreation centres, public washrooms, malls and parks
- services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit
- services provided by insurance companies
- classified advertisement space in a newspaper.
Relevant policies and guides:
The Ontario Human Rights Commission and the Ontario Ministry of Education have finalized a settlement of a human rights complaint initiated by the Commission against the Ministry and the Toronto District School Board (TDSB) in July 2005. A settlement was reached separately with the TDSB in November 2005.
Every student in Ontario needs to have opportunities to learn and succeed. This does not happen when students are suspended because of mental illness beyond their control, or can’t take the courses they need because they use a wheelchair and the school does not have an elevator, or they are disciplined for not following the dress code because they wear a hijab in accordance with their creed, or they are bullied for being lesbian, gay or transgendered.
Dress codes, work schedules or shift work sometimes adversely affect individuals because of religious requirements. When this happens, the obligation to accommodate the individual, based on the needs of the group, is triggered under the Code.
Discrimination or unequal treatment may be legally defensible in certain circumstances.
1. Participating in special interest organizations
First, s. 18 of the Code provides that religious, philanthropic, educational, fraternal or social institutions that are primarily engaged in serving the interests of persons who are identified by their creed, may give priority to persons of the same creed with regard to participation or membership.
“Basic health care is a foundation in our society and differences are never justifiable. Seniors’ needs are real and they surely deserve easy access to basic health care in the same manner afforded to other groups in Ontario.”
The Commission heard that elder care is a growing need, and largely provided in the community by family members. As well, the gendered nature of elder care and the disproportionate burden that women face in caring for aging relatives was noted. Consultees described the stress caused by caring for older persons and the need for efforts to address caregiver stress.
Section 1 of the Code prohibits age discrimination in "services, goods and facilities". This includes but is not limited to educational institutions, hospitals and other health services, community care access centres, long-term care facilities, insurance providers, public places like malls and parks, public transit services, stores and restaurants.
Older persons have a right to the same level and quality of services as everyone else and service providers have a legal responsibility to ensure accessibility, subject to the undue hardship standard.
Section 1 of the Code prohibits discrimination based on family status in the social areas of services, goods and facilities. This is an extremely broad social area, covering everything from corner stores and shopping malls, to education, health services and public transit. The issues are therefore also extremely diverse. However, very little attention has been paid to these issues.
A number of submissions received by the Commission identified barriers for families in the receipt of services. The Commission heard concerns about a broad range of services, including large public services like transportation, education and health, as well as small private services.