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Multiple grounds in equality and human rights jurisprudence Some courts and tribunals have started to acknowledge the need to make special provision for discrimination based on multiple grounds and to recognize the social, economic and historical context in which it takes place. However, despite these advancements, the courts’ understanding of a proper intersectional approach is still in its infancy. What follows is a discussion of recent cases in which a move towards a multiple grounds or intersectional analysis is evidenced in either a majority or dissenting opinion.

Section 30 of the Ontario Human Rights Code (Code) authorizes the Ontario Human Rights Commission (OHRC) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code.[1]

2.1 The definition of “age” in the Human Rights Code Subsection 10(1) of the Code defines age as: an age that is eighteen years or more. Older persons can file a claim of age discrimination in all social areas including:

The experience of age discrimination may differ based on other components of a person’s identity. For example, certain groups of older persons may experience unique barriers as a result of the intersection of age with gender, disability, sexual orientation, race, ethnicity, religion, culture and language. Please see Time for Action for a more detailed discussion of “age and intersectionality” and the particular barriers faced by certain groups.

4.1 When is differential treatment discriminatory? The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice. In many cases, differential treatment because of age will clearly be discriminatory. However, in other cases, it may be necessary to consider whether the treatment can be said to constitute “discrimination” in the sense of being something that is protected by human rights law.

Assumptions and stereotypes about older workers are unfortunately all too prevalent in our workplaces. Older workers are often unfairly perceived as less productive, less committed to their jobs, not dynamic or innovative, unreceptive to change, unable to be trained or costly to the organization due to health problems and higher salaries. These ideas about older workers are simply myths that are not borne out by evidence. In fact, there is significant evidence that older workers:

Section 2 of the Code protects older persons against discrimination in housing. This right applies to renting, being evicted, building rules and regulations, repairs and use of services and facilities. Housing includes a range of accommodation options including rental accommodation, condominiums, retirement homes and care facilities. There can be some overlap between housing and services, for example seniors’ residences in which services such as housekeeping, meals or medical assistance are provided.

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.

The Code prohibits harassment on the basis of age. Harassment means a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome. The phrase "ought to have known" introduces an objective element to the test.

Prima facie case of discrimination The phrase ‘prima facie case of discrimination’ is often used in human rights cases. The Supreme Court of Canada has described the test for such a case as follows:

Accessible transit services are a key factor in assisting people to participate fully in the community – getting out and about, getting to work, conducting business, reaching health care, participating in events, being with friends and combating loneliness and isolation. -Canadian Pensioners Concerned

This Report is based on the many and varying viewpoints presented to the OHRC in the course of its public consultation on accessible public transportation in Ontario. As well, in the summer of 2001, the OHRC updated its 1999 transit survey, gathering current information on the status of conventional transit and paratransit systems, as well as planned initiatives to increase accessibility.

The dominant theme in the submissions received by the OHRC was the magnitude of the impact of access to transit services on the lives of Ontarians. Public transportation – or the lack of it – touches the lives of thousands of Ontarians in profound ways. Being able to use transit can make the difference in access to work or education. It also has major consequences for those who need to get to health care and other essential government services. For many, it makes the difference between isolation and loneliness, and full participation in the life of their communities.

Background As part of the preparation of this Consultation Report, in the summer of 2001, the OHRC updated the results of the transit survey that was conducted in the summer of 1999. The OHRC contacted 25 transit service providers, including all those who responded to the 1999 survey, as well as the 6 transit service providers who did not respond in 1999. It should be noted here that, since several municipalities have undergone amalgamation since 1999, some transit service providers have also amalgamated, and in some cases there have been changes to services as a result.

The establishment of truly accessible public transit and paratransit systems will enhance the opportunity for people with disabilities to participate fully in their communities. Lack of accessibility in public transit systems creates barriers for people who are disabled that do not exist for the able-bodied population. While able-bodied people have the right to decide at the last minute to participate in a community activity or be on-call for work, this option does not exist for people who are disabled who must rely on paratransit as it currently exists.

Section 5(1) of the Code prohibits discrimination in employment on several grounds including "disability." The Code adopts an expansive definition of the term "disability" which encompasses physical, psychological and mental conditions. Severe substance abuse is classified as a form of substance dependence,[9] which has been recognized as a form of disability.

Section 30 of the Ontario Human Rights Code (Code) authorizes the Ontario Human Rights Commission (OHRC) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code.[*] The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code.

Persons with disabilities, who have had disabilities, or who are perceived to have or have had disabilities are protected against discrimination in all of the social areas of the Code.

Although the Code distinguishes between direct and constructive discrimination,[12] the distinction is less important than it used to be, particularly in the area of disability. This is a result of the combined impact of two factors.

Drug and alcohol testing is prima facie discriminatory under Canadian human rights law. Employers can nevertheless justify discriminatory rules if they can meet a three-part test:[18]

Testing for alcohol or drug use is a form of medical examination. Therefore, an employer considering such testing should be guided by the three-part test cited above, by the OHRC's Policy on Employment-Related Medical Information [20] and by the Ontario Court of Appeal’s decision in the Entrop case. The following are the main principles that should be borne in mind:

On-the-job testing should be administered only where a link has been established between impairment and performance of job functions, such as in the case of employees who are in safety-sensitive positions. Once again, because drug tests do not actually measure impairment, random drug testing is an unjustifiable intrusion into the rights of employees. With respect to random alcohol testing, the use of breathalysers is a minimally intrusive yet highly accurate measure of both consumption and actual impairment.

Section 17(2) Section 17(2) provides that an employee shall not be found incapable of performing the essential duties of a job unless it would cause undue hardship to accommodate the individual employee's needs, taking into account the cost of the accommodation and health and safety concerns. Sections 17(1) and 17(2) provide a two-stage test for the validity of a workplace drug and alcohol testing policy.

Employment Section 5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or disability. Disability Section 10 (1) “Disability” means,

Please visit www.ontario.ca/humanrights for more information on the human rights system in Ontario. The Human Rights System can also be accessed by telephone at: Local: 416-326-9511 Toll Free: 1-800-387-9080 TTY (Local): 416-326 0603 TTY (Toll Free) 1-800-308-5561