9. Services, goods and facilities

Section 1 of the Code prohibits discrimination in “services, goods and facilities” based on pregnancy and breastfeeding. This includes educational institutions, hospitals and health services, insurance providers, public places like malls and parks, public transit, and stores and restaurants. This means that women who are pregnant, or who bring their babies to a restaurant or a theatre, cannot be denied service or access unless there is a bona fide reason for doing so. This also means that women have a right to breastfeed undisturbed, and cannot be prevented from breastfeeding a child in, for example, a public area or restaurant. They also cannot be asked to move to a more “discreet” area to breastfeed a child, or to “cover up.” Complaints from other people will not justify interfering with a woman’s right to breastfeed.

Example: While a mother was waiting in a courtroom to contest a parking ticket, she began to breastfeed her infant son. The security guard asked her to leave the courtroom and nurse her son where she would not be seen. A tribunal ruled that this was discriminatory.[159]

Education providers have the same type of obligation as employers to accommodate women who are pregnant or breastfeeding, including the obligation to cooperatively discuss options and create a supportive environment.

Example: An educational program requires all of its students to complete a co-op placement as a condition of graduation. These placements last several weeks, and are in locations across the province. A student who has a young baby who is still breastfeeding asks to be accommodated in a placement within a reasonable commute of her home, so that she can go home in the evening to breastfeed her baby, and more easily transport the breast milk she will be pumping during the day. The program explores accommodation options with her.

Service providers should take steps to design their services in a way that is inclusive of pregnant and breastfeeding women.

Example: The City of Toronto has approved a policy on breastfeeding in public that supports women who live, work in or visit Toronto to breastfeed anytime and anywhere in public spaces controlled by the City. The City also promotes positive attitudes towards breastfeeding through public events such as annual Breastfeeding Challenges.[160]

Access to services may be affected by negative attitudes and stereotypes. For example, lone mothers are heavily stigmatized, especially if they are young, racialized or Aboriginal, or receiving social assistance, and these women may face unwarranted scrutiny, be denied services, or be subjected to harassment when seeking services.

Example: A young Aboriginal lone mother receiving social assistance is told by her caseworker that she “is just having babies to get benefits” and that she “should have her tubes tied.”

The Code allows for an exception for certain types of insurance policies, under section 22. This section permits individual and group insurance policies, which are offered as a service, to make distinctions based on sex if the distinctions are made on reasonable and bona fide grounds. In Zurich Insurance Co. v. Ontario (Human Rights Commission),[161] the Supreme Court of Canada stated that a discriminatory practice in the insurance industry is “reasonable” if:

a) It is based on a sound and accepted insurance practice; and

b) There is no practical alternative.

Example: A professional association offers as a service to its members an optional insurance policy. The policy has a specific provision requiring a 30-day pre-existing condition restriction that applies only to women who are pregnant. This means that a woman who is pregnant at the time she applies for the policy is not eligible for coverage. If a pregnant woman challenges this requirement, the insurance provider, and possibly the professional association, would have to show that this requirement meets the test of a sound and accepted insurance practice and that there is no practical alternative.

[159] Quebec (Commission des droits de la personne et des droits de la jeunesse) et Giguère c. Montréal (Ville), 2003 QCTDP 88, 47 C.H.R.R. D/67.

[160] Medical Officer of Health, City of Toronto, Breastfeeding in Public (2007) online: City of Toronto www.toronto.ca/legdocs/mmis/2007/hl/bgrd/backgroundfile-4311.pdf. Information about the City of Toronto policy, and other municipal breastfeeding supports can be found on the website of the City of Toronto’s Public Health Department, at www1.toronto.ca/wps/portal/contentonly?vgnextoid=7f274485d1210410VgnVCM10000071d60f89RCRD. The City of Hamilton has also created a “Breastfeeding on City Premises Policy,” which supports and encourages mothers to breastfeed in all City-owned facilities. See Corporate Human Resources Policy, Health, Safety and Wellness, Policy No: HR-52-11, Approved 2012-11-08, online: City of Hamilton www.hamilton.ca/NR/rdonlyres/E3636298-4579-4130-BBC9-57D90FC87AE4/0/Brea....

[161] [1992] 2 S.C.R. 321.