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Balancing conflicting rights: Towards an analytical framework

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August 2005

The views expressed in this paper do not necessarily represent the views or opinions of the Ontario Human Rights Commission, the Chief Commissioner, or the individual Commissioners, nor has this paper been formally approved by the Commission.


This paper will attempt to provide an analytical framework for balancing conflicting rights. The first two sections of this paper provide the backdrop for a close examination of the balancing process. Section I foregrounds the issues raised in conflicts of rights cases through a discussion of Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes[1], while Section II outlines criteria for identifying when there is no conflict of rights. Section III surveys approaches to balancing conflicting rights that have been taken in the Canadian context. A number of balancing tools emerge from an examination of three main sources: case law, the Preamble and Exception Sections of the Ontario Human Rights Code (the “Code”), and previous policy work in this area. Section IV applies these tools to balance conflicting rights in the contexts of employment and services. Throughout the paper, specific examples are used to illustrate how the balancing process may work within and across a range of protected grounds.

Two main paradigms for balancing conflicting rights are highlighted: pragmatic balancing and principled balancing.[2] These models represent two distinct approaches to the issue of balancing. The implications of these distinctions, in terms of how the tensions between conflicting rights are resolved by each model, are explored through specific employment and service examples. Each model tends to foreground certain balancing tools over others.

For instance, pragmatic balancing focuses on the need to carefully weigh competing interests in such a way that the resolution of these interests reflects a compromise position. Consequently, pragmatic balancing looks to tools such as the exception sections of the Code and the duty to accommodate as factors that allow two conflicting rights to be managed within a particular context. On the other hand, principled balancing often foregrounds factors such as the values underlying the Code and the Charter, and delineates the scope of each right in such a way as to avoid conflict as much as possible. Whereas pragmatic balancing will always proceed in a case-by-case manner, principled balancing may put forward overriding concerns that will apply across all cases and all contexts.

Although it is the aim of this paper to tease apart these two distinct theoretical approaches to balancing, in practice they necessarily co-exist. This will become particularly evident in the case law section of this paper where the tools associated with both pragmatic and principled balancing are often employed within a single judicial decision. It is important, however, to identify the separate strands of balancing in order to gain a better understanding of the actual factors that influence the balancing process in these difficult cases. This kind of close analysis also reveals the visions of equality that drive each balancing paradigm.

This paper should be understood as a starting point that may be used as a resource for approaching further policy work on balancing conflicting rights. It will highlight the conceptual toolbox that is employed by judges, lawyers, and policy makers as they undertake the complex task of balancing conflicting rights. Establishing a formulaic balancing test is not the goal of this paper. There is no ‘correct’ model for solving conflicts of rights issues. However, it is important to articulate the general factors that inform the task of balancing and to apply these factors in specific hypotheticals. The set of balancing tools presented in this paper is necessarily incomplete and, undoubtedly, future case law and legislation will supplement these basic tools. It is also important to note that the usage of these tools will vary depending on the balancing approach that is taken, as well as the right at stake.

[1] Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1st Sess., 38th Parl., 2004-2005 (assented to 30 June 2005). 
[2] These two approaches to balancing rights must not be understood as binary opposites. They are necessarily intertwined and both will be considered in the analysis of any conflicting rights case. However, it is useful to tease out the ways in which these approaches differ in methodology and in results. Courts generally must grapple with both types of balancing in these cases because both principles and pragmatic outcomes are at stake. The Supreme Court explicitly states this in Sydicat Northcrest v. Amselem [2004] 2 S.C.R. 551: “This appeal requires the Court to deal with the interrelationship between fundamental rights both at a conceptual level and for a practical outcome” (at para. 1). 

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