Stage 1: Recognizing rights
- Mutual recognition of interests & rights promotes mutual dignity & respect
- Helps frame rights
- Gives marginalized a voice
- Diminishes power imbalances
- Reduces stigma
- Rights & obligations awareness
- Maximum recognition of rights
- Encourages spirit of cooperation
Analysis: 1. What are the claims about?
- Inquire into each claimant’s story
- Values, beliefs, interests, feelings, context
- Determine whether informal or formal process appropriate
Analysis: 2. Do claims connect to legitimate rights and interests?
2a. Individuals or groups rather than operational interests?
2b. Human rights, legal entitlements or bona fide reasonable interests?
2c. Context of claim falls within scope of right or interest?
- Quick resolution – If claimants understand their rights, recognize each other’s claims as legitimate, and demonstrate dignity and respect for each other, then frame issues together and proceed to Stage 3 Reconciling Rights; otherwise…
- Analyze situation - could org. policy development help? Negotiation or conciliation? Internal or external conciliator?
- Identify parties and inform them of situation, roles and responsibilities and consequences of not participating
Analysis: 3. Amounts to more than minimal interference with right?
Stage 2: Reconciling rights
- Claimants and organization engage in shared responsibility to find agreeable solutions
Analysis: 4. Is there a solution that allows enjoyment of each right?
Analysis: 5. If not, is there a next best solution for one or both rights?
- Quick resolution – Explore/discuss and attempt to reach mutually agreeable solutions that are idea or next best; otherwise…
- Formal dispute resolution
Stage 3: Making decisions
- Organizations take responsibility for: corporate liability; substantive and procedural duties; training
- Protection from litigation
- Must be consistent with human rights and other law, court decisions, human rights principles and have regard for OHRC policy
- At least one claim must fall under Code to be actionable at Human Rights Tribunal
- Internal decision
- Internal appeal
- External appeal/complaint/decision at tribunal or higher court
- No rights are absolute
- No hierarchy of rights
- Right may not extend as far as claimed
- Must consider full context/facts & constitutional values at stake
- Rights defined in relation to one another & extent of interference
- Core more protected than periphery
- Usually no "bright lines”
- Courts have drawn some lines for particular case types
- Statutory defences may also restrict rights
- Aim to respect importance of both sets of rights
- Search for “constructive compromises” (procedural duty)
Some claims may have higher legal status than others...
Values: individual/ social moral principles & standards; may reflect in/inform law or claim; not legally actionable
Interests: individual/ social concerns or stakes; may elevate to legal entitlement if bona fide & reasonable in circumstances or satisfies legal limit or exemption
Legal entitlements: codified in law or interpreted through court or tribunal decision
Human rights: inalienable, indivisible, universal legal entitlements; include limits & exemptions; usually have higher status than other legal entitlements; both have higher legal status than interests, values, beliefs