Entrenching a human rights policy approach during and after the COVID-19 pandemic
By late March 2020, Ontarians were well aware that COVID-19 had turned into a worldwide pandemic. Governments at all levels in Canada recognized they needed to act fast to avoid outbreaks in congregate living like long-term care homes and prisons, support front-line workers and add other supports like employment and rent subsidies, and job and tenancy protection.
However, without a deliberate human rights-based approach, the OHRC was very concerned the pandemic would make existing inequalities worse for vulnerable groups, both in the short and long term, especially for older persons, Indigenous peoples, racialized communities and persons with disabilities.
It started with policy guidance
In early April 2020, shortly after Ontario declared a state of emergency, the OHRC released a Policy statement on a human rights-based approach to managing the COVID-19 pandemic. The statement guides all levels of government to put human rights at the centre of their policy, legal, regulatory, public health and emergency-related responses to the pandemic.
This policy statement called on governments to:
- Approach preventing and treating COVID-19 as a human rights obligation
- Respect the rights of First Nations, Métis and Inuit (Indigenous) peoples
- Set strict limits on measures that infringe rights
- Protect vulnerable groups
- Respond to racism, ageism, ableism and other forms of discrimination
- Strengthen human rights accountability and oversight.
Along with the policy statement, the OHRC released Actions consistent with a human rights-based approach to managing the COVID-19 pandemic to help protect and promote the rights to health and life, housing, work and an adequate standard of living, as well as to respect the UN Declaration on the rights of Indigenous peoples.
The OHRC’s statements were based on OHRC policies, engagement with OHRC advisory group members and Indigenous peoples, and a review of guidance from the United Nations, the European Union and leading Canadian and international human rights organizations.
The OHRC statements emphasize the need to entrench human rights principles in government responses to this pandemic and future crises, so that everyone benefits and no vulnerable groups are left behind. This focus continues to drive much of the OHRC’s work reaching out to government and other stakeholders to address the disproportionate impacts of COVID-19 in employment, retail and other services, the education system, congregate care living including prisons, testing and vaccine distribution, and health-care services including critical care triage.
Giving communities a voice in the pandemic response
Over the last two years, the OHRC has established five ongoing community engagement groups that meet regularly to provide advice and input on the OHRC’s strategic focus areas. They are:
- Community Advisory Group
- Indigenous Reconciliation Advisory Group
- Poverty Advisory Group
- Education Advisory Group
- Employment Advisory Group.
Members represent a range of Code-protected groups and social areas.
COVID-19 presented an urgent need to connect with stakeholders and communities to hear about the pandemic’s impact on emerging and long-standing human rights issues. We needed to know the lived experience of people in real time to inform our own response to COVID-19.
Using our advisory group structure, the OHRC was able to connect with stakeholders immediately, and over the last year has heard from all five groups on a human rights-based approach to managing the pandemic across a range of potential policy, legal, regulatory, public health and emergency responses.
With input from these groups, the OHRC provided guidance to a range of sectors, including corrections, employment, education, health, housing, social services and long-term care.
The OHRC also engaged regularly with government ministries and COVID-19 tables, including the COVID-19 Bioethics Table, the Ontario Critical Care COVID-19 Command Centre, the COVID-19 Vulnerable Persons Table and the Vaccine Task Force sub-groups.
Indigenous engagement is an important step in pandemic response
Throughout the pandemic, the OHRC has engaged regularly with First Nations, Métis and Inuit individuals and organizations. Early on, the OHRC sought their guidance when developing its Policy statement on a human rights-based approach to managing COVID-19 pandemic that identifies respect for First Nations, Métis and Inuit rights as a core principle. As the pandemic progressed, the OHRC has continued to engage Indigenous partners on various issues including socio-demographic data collection, barriers to returning to school and vaccine distribution.
In its advisory group meetings, the OHRC has asked Indigenous members to share issues of particular concern to their communities. And the Chief Commissioner met with the leaders of many Indigenous communities and organizations to establish new relationships and learn about distinct community concerns and priorities. In all of these meetings, the OHRC has asked if there are ways it can be of assistance in addressing inequality.
The OHRC has also repeatedly called on government and other duty holders to consult with Indigenous leaders and knowledge-keepers when making decisions, taking action, and allocating resources to address the pandemic.
Asking – and answering – COVID-19 questions
In March 2020, the OHRC developed a series of questions and answers for understanding human rights and obligations during the pandemic. These cover the rights and responsibilities of employers and employees, tenants and landlords, as well as residential institutions.
As issues have arisen over the past year, the OHRC has updated this information to reflect issues such as:
- Can an employer, landlord, store, school, municipality or other organization require me to wear a mask because of COVID-19?
- Can my employer ask me if I have tested positive for COVID-19? Can they disclose that information and my name to other employees?
- I do not believe in vaccinations (or masks and lockdowns). Does the Human Rights Code exempt me based on creed from COVID-19 requirements like providing proof of vaccination?
Online users visiting the OHRC’s English questions and answers page spent an average of over seven minutes reading this page. This is far greater than the time spent on any other OHRC website page over the past few years, and is also impressive considering the industry benchmark for effective page view time ranges from two to three minutes.
The Qs & As have played a valuable role in fielding concerns from the public, from housing and other service providers as well as from employers and employees. They also continue to be a valuable resource for media and stakeholder requests, and have helped sustain the message that the pandemic is a human rights issue.
Shireen Jeejeebhoy @ShireenJ
If you’re concerned about your human rights during #coronavirus pandemic, here’s a Q&A. #COVID19 #onpoli #SelfIsolation #PhysicalDistancing
Ombudsman Toronto @ombudsmanTO
What are your human rights and obligations? Access the OHRC's new resource on your #COVIDRights
Socio-demographic data collection a vital tool
Since March 2020, the OHRC has heard from stakeholders, Indigenous organizations and public health experts about the importance of collecting and reporting on socio-demographic data during the pandemic. Throughout the past year, the OHRC has continued to recommend collecting and using this data to inform decision-making in a variety of sectors
If properly collected, demographic data is a valuable instrument and a best practice for promoting equity, especially during crises like COVID-19. Strong data allows healthcare leaders to identify populations at heightened risk of infection or transmission, to efficiently deploy scarce health resources, and to ensure all Ontarians have equal access to public health protections. If one segment of Ontario’s population is overlooked as we fight to flatten the curves, we risk prolonging the pandemic or triggering its resurgence.
In April 2020, the OHRC issued a statement encouraging the government to heed the advice of health and human rights experts who agree that Ontario needs demographic data to effectively fight COVID-19.
In October 2020, the OHRC met with Ontario’s Associate Chief Medical Officer of Health. The Ministry of Health then invited the OHRC to serve on the government’s COVID-19 Sociodemographic Data Consultation Group. This group met every two weeks until the end of 2020.
The group’s objectives were to provide input on the use of socio-demographic data being collected about people who had contracted the virus, to reduce inequities in COVID-19 infection and adverse health outcomes. They advised on how socio-demographic data should be:
- Used to strengthen the response to COVID-19 infection, particularly for communities at greater risk of infection
- Analyzed, interpreted and communicated to maximize benefits for affected communities, while avoiding stigmatization or other potential harms
- Linked with other health system data, to reduce health disparities for individuals/communities at risk of COVID-19 infection.
The OHRC continues to actively monitor the government’s commitment to collect disaggregated socio-demographic human rights data on the COVID-19 response, and to offer its assistance.
Providing guidance for Ministry of Health regulatory changes
In June 2020, the OHRC made a submission to the Ministry of Health on proposed amendments to Ontario Regulation 329/04 made under the Personal Health Information Protection Act (PHIPA). Among other things, the proposed amendments prescribed elements for collecting, using and reporting personal health information collected through the electronic health record.
Consistent with previous statements, the OHRC recommended that the government consider making sure that current and/or proposed amendments to the regulation do not bar collecting, using and disclosing information on vulnerable populations identified by grounds under Ontario’s Human Rights Code, collected through the electronic health record, as set out under PHIPA, including section 44 on disclosure for research and section 45 on disclosure for planning and managing the health system.
In its April 2020 guidance on a human rights-based approach to managing the COVID-19 pandemic, the OHRC highlighted the need for government to collect health and other human rights data on the response to the pandemic, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc. Referring to a recent letter from the Ontario Federation of Indigenous Friendship Centres to the special advisor on the Ontario Health Data Platform, the OHRC noted the essential need for including Indigenous-specific data in socio-demographic data collection for COVID-19. The OHRC also recognized the need for a longer-term solution to collect human rights information through the OHIP registration form.
Ontario Regulation 569 made under the Health Protection and Promotion Act
In June 2020, the OHRC welcomed the proposed amendment to Ontario Regulation 569 made under the Health Protection and Promotion Act (HPPA) that requires collecting information on race, income level, language and household size for people who test positive for a novel coronavirus, including COVID-19.
In our submission on this, as in our submission on amendments to Regulation 329/04, the OHRC recommended the Ministry of Health consider expanding the required collection of information to include other vulnerable populations identified in Ontario’s Human Rights Code, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc.
Protecting against the discriminatory impact of critical care triage
In March 2020, human rights stakeholders and the media began raising concerns about a triage protocol that was developed for Ontario on how hospitals would withhold or withdraw critical care services if COVID-19 cases surged above ICU bed and ventilator capacity. (check against the PDF)
In early April 2020, the OHRC called on the Minister of Health to pull the protocol, begin consulting with vulnerable groups and advocacy organizations and develop an approach that followed human rights principles and laws. Ontario Health and the COVID-19 Bioethics Table had developed the protocol. They reached out to the OHRC and we welcomed the opportunity to help arrange and take part in discussions with human rights stakeholders.
During meetings held in spring, summer and late fall 2020, stakeholders, including ARCH Disability Law Centre, the AODA Alliance and the Canadian Association for Retired Persons raised serious concerns that the protocol disproportionately affected vulnerable groups and violated human rights.
In October, the OHRC wrote back to the Minister acknowledging the Bioethics Table had held productive consultations and made improvements in their latest proposals, but noting that significant human rights concerns remained. The OHRC called on the Ministry to:
- Issue clear communications that health care providers must not use earlier versions of the protocol
- Meaningfully consult with vulnerable groups and their representatives, including Indigenous peoples, Black and other racialized communities, people with disabilities, older persons as well as independent experts, for their perspectives and participation throughout the process to develop, finalize and implement a protocol
- Ensure a revised protocol recognizes human rights as the primary guiding principle and law
- Make sure there is a legislative basis for initiating the use of the protocol during a pandemic surge
- Exclude any clinical assessment criteria or tools that are not validated for critical care triage and do not factor in the positive effect of accommodation supports on a person’s predicted mortality
- Define short-term predicted mortality as the predicted risk of death in the initial weeks and months, and not one year after the onset of critical illness
- Provide for governance and accountability mechanisms, including responsibility for initiating the protocol, patient consent and appeals, data collection and independent monitoring for negative consequences
- Continue equitable COVID-19 prevention efforts to avoid the need to initiate the protocol and the negative impacts on vulnerable groups.
By end of 2020, the second wave of COVID-19 cases was well underway. Hospitals were now receiving modified versions of the protocol from Ontario’s COVID-19 Critical Care Command Centre after the Ministry had finally rescinded earlier versions. However, these revised documents were never shared directly with the OHRC and stakeholders.
The OHRC wrote to the Minister again in November, December and March and continues to call for public release of the most recent documents shared with hospitals and open consultation with vulnerable communities most affected by life-and-death decision-making on critical care triage.
Thank you to @OntHumanRights for supporting representation from vulnerable groups in the development of any triage protocol. People with disabilities deserve a place at the table when their lives are literally on the line!
Advancing equitable vaccine distribution
In December 2020, the OHRC wrote to General (Retired) Rick Hillier, Chair of the Vaccine Distribution Task Force, to stress the important role that human rights principles, considerations and obligations should play in vaccine distribution planning.
The OHRC recognized the herculean task of planning and distributing vaccines across Ontario, while stressing that many Code-protected groups experience poverty and are more likely to be exposed to the risk of contagion, but are not as likely to be protected from COVID-19 by ready access to testing and health services. The letter stated it was imperative that access to vaccines be provided to all Ontarians without discrimination, and prioritized for the people who are most exposed and vulnerable to the risks.
The OHRC advised that a vaccine distribution strategy should be based on evidence of individuals’ increased risks of exposure, transmission or death rather than stereotypes; and should be framed in ways that avoid stigmatizing vulnerable groups. The strategy should also include disaggregated data collection and monitoring to ensure Code-protected groups experience equitable access to vaccines and are not disproportionately affected, and should make adjustments and accommodations where needed, especially where evidence shows groups have historically unequal access to health services.
In his response in February 2021, General (Retired) Hillier advised that the OHRC’s Policy statement on a human rights approach to managing the COVID-19 pandemic and related guidance helped inform the development of an ethical framework for vaccine distribution, and that the framework should be read in conjunction with this policy statement. He noted that the importance of human rights protections and non-discrimination were explicitly reflected in the province's ethical framework, and thanked the OHRC for valuable insight on how human rights principles can play an important role in Ontario’s vaccine program.
As vaccine rollout continues, the Chief Commissioner and OHRC staff have met several times with senior managers from the Ministry of the Solicitor General and the Anti-Racism Directorate, to provide further human rights advice on the rollout for vulnerable people. The OHRC continues to promote how ethical and human rights obligations must be reflected in pandemic planning, with special attention to vulnerable communities.
Lisa Richardson (She/Her) @RicharLisa
I just had the pleasure of meeting Ena Chadha, Chief Commissioner of @OntHumanRights, who spoke about the need for a human rights lens in vaccine distribution & about a backlash of anti-Indigenous racism in the context of Indigenous people being a priority group for the vaccine.
Working with Indigenous leaders and health-care professionals on vaccine issues
In December 2020, the Chief Commissioner and an OHRC team met with Ontario Regional Chief RoseAnne Archibald and a group of Indigenous health leaders to discuss COVID-19 vaccine roll out. Ontario Regional Chief Archibald, who serves on the government’s Vaccine Distribution Task Force, convened the meeting to hear from the OHRC and Indigenous health leaders on human rights concerns with access to vaccines. Her goal was to establish lines of communication with the OHRC and Indigenous health leaders to bring information to the Task Force.
The meeting touched on the unique needs of Indigenous communities living in urban and rural areas, and on First Nation reserves, in accessing the vaccine. The OHRC’s Chief Commissioner spoke about the need for ongoing socio-demographic data collection during vaccine roll-out, maintaining open lines of communication, and the need to flag the potential for hate, stigmatization and racism against groups receiving the vaccine on a priority basis.
The OHRC continues to monitor the vaccine roll-out and its impact on Code-protected groups, including Indigenous peoples.
COVID and corrections
As part of our work relating to the COVID-19 pandemic, the OHRC has also been engaged with the Ministry of the Solicitor General (SOLGEN) on the state of COVID-19 transmission in Ontario's adult correctional system. Since the outset of the pandemic, the OHRC has been receiving regular reports from SOLGEN, including detailed information on custody numbers, outbreaks and measures being taken to respond. The OHRC has consistently provided input to SOLGEN on the importance of applying a human rights lens, with a particular focus on enhancing transparency and communication, supporting family contact, trying to maintain custody numbers that are as low as possible, and the importance of clear human-rights based tracking and data collection. Ensuring a human rights-oriented approach to addressing the pandemic is critical given the high number of prisoners with mental health disabilities, and the over-representation of Black and Indigenous people inside the system.
Examining human rights in long-term care review
In August 2020, the OHRC wrote to Associate Chief Justice Frank N. Marrocco, the Chair of the Independent Long-Term Care COVID-19 Commission, to stress the important role that human rights principles should play in the review of government and long-term care responses to COVID-19. The OHRC drew the commission’s attention to the OHRC’s Policy statement on a human rights approach to managing the COVID-19 pandemic and related actions. The OHRC emphasized that both the residents and the staff of long-term care facilities in Ontario are vulnerable populations at risk of discrimination based on disability, age, race and other grounds protected in the Human Rights Code.
Avoiding a pandemic of evictions
Housing is a human right. International law states that Canada must work towards making sure everyone has access to adequate and affordable housing. But some people, based on factors such as race, ancestry, disability, sex, family status and social and economic status, do not enjoy the housing rights they are entitled to. When multiple factors intersect, the disadvantage increases and people are at even greater risk of discrimination, poverty and even homelessness.
COVID-19 has reinforced that housing means more than just a physical space: it lays the foundation for our safety, security and dignity. Yet due to job loss, health and other social and economic factors, many vulnerable groups have lost housing during the pandemic or are at serious risk of losing their housing.
In addition to hearing about the threat of losing housing because of the pandemic, the OHRC monitored reports of the serious barriers tenants faced at the Landlord and Tenant Board (LTB), particularly during virtual hearings. Legal clinics were reporting that low-income tenants were being denied justice because they could not take part in virtual hearings due to the lack of technology or reliable Internet because of poverty, disability or remote location. At the same time, there were reports that LTB was unable to offer online mediation or facilitate resolution discussions between landlords and tenants.
In November 2020, TVO published the Chief Commissioner’s opinion editorial, “Staying home during COVID-19 isn’t possible if you don’t have a home.” This op-ed called for a shift in focus to recognize that safe, accessible and affordable housing is an equity imperative rather than just a financial commodity. OHRC staff also met with counsel representing groups of tenants at the LTB to learn first-hand about the issues.
The Chief Commissioner met with the Executive Chair of Tribunals Ontario, to discuss what immediate action they could take to address the access-to-justice issues at the LTB. The Executive Chair was receptive to the OHRC’s concerns and outlined several initiatives Tribunals Ontario would pilot to address issues of access. The OHRC continues to monitor this closely and is prepared to take further action if required.
If you have an underlying health condition or disability and are worried about landlord entry during COVID, you can ask for accommodation under the @OntHumanRights Code. Our self-advocacy toolkit walks you through this process https://bit.ly/3sQwhLM
“I can remember having public meetings [on mental health] in universities for example, colleges and universities, and the rooms being packed and line-ups of students, faculty, and community members, with questions or comments… It really underlines the issues out there and the need to address them. In schools, in workplaces, in families and out and about in our communities. It was a really important piece of education and policy and people understood for the first time that when the Code said disability that they were included and they could do something about the discrimination they were facing.”
- Barbara Hall, chief commissioner, 2005–2015
“I believe that community legal clinics play a very important role in advancing social justice in Ontario … all of these clinics play a very important role in advancing justice through systemic advocacy work … And that really intersects with the systemic advocacy work on the part of OHRC.”
- Avvy Go, OHRC 60th anniversary kick-off event