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6. Endnotes

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6. Endnotes

1 Human Rights Code, RSO 1990, c H19 [Code], online: <ontario.ca/laws/statute/90h19>.

2 The 17 Code-protected grounds are: 

  • Age 
  • Ancestry 
  • Colour 
  • Race 
  • Citizenship 
  • Ethnic origin 
  • Place of origin 
  • Creed 
  • Disability 
  • Family status 
  • Marital status (including single status and same-sex partnerships) 
  • Gender identity
  • Gender expression 
  • Receipt of public assistance (in housing only) 
  • Record of offences (in employment only) 
  • Sex (including pregnancy and breastfeeding) 

  • Sexual orientation.

3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, 1982, c 11 (UK), s 15(2) [Charter], online: <laws.justice.gc.ca/eng/const/page-12.html>. Section 15(2) of the Canadian Charter of Rights and Freedoms allows governments to pro‑actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. It protects these programs from claims of discrimination under section 15(1) of the Charter. Sections 15(1) and (2) work together to promote substantive equality. See also R v Kapp, [2008] 2 SCR 483 at para 16, 2008 SCC 41, [Kapp], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/5696/index.do>.

4 In Kapp, supra note 4, the Supreme Court of Canada (SCC) held that a commercial fishing license provided to three Indigenous bands to allow fishing on one extra day of the year was not discrimination under section 15(1) of the Charter because its object was to ameliorate the conditions of a disadvantaged group under section 15(2) of the Charter. 

5 The Human Rights Tribunal of Ontario (HRTO) resolves claims of discrimination and harassment under the Code. Find more information online: <tribunalsontario.ca/hrto/>.

6 The Human Rights Legal Support Centre (HRLSC) provides free legal and support services to people who have experienced discrimination under the Code. Find more information online: <hrlsc.on.ca/homepage/>.

7 The OHRC’s authority to develop policies under section 30 of the Code is part of its broader responsibility under section 29 to promote, protect and advance respect for human rights in Ontario, to protect the public interest, and to eliminate discriminatory practices. Section 45.5 of the Code states that the HRTO may consider policies approved by the OHRC in a human rights proceeding before the Tribunal. Where a party or an intervenor in a proceeding requests it, the Tribunal shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and intervenors are encouraged to bring the policy to the Tribunal’s attention for consideration. OHRC policies are subject to court and tribunal decisions. They have been given great deference by courts and tribunals, applied by them and quoted in their decisions.

8 Ontario Human Rights Commission [OHRC], Human Rights at Work, 3rd ed, (Toronto: Carswell Thompson & OHRC, 2008), at Chapter IV, section 7, online: <ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/7-pay-benefits-dress-codes-and-other-issues>.

9 The SCC defined discrimination as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed”. See Andrews v Law Society of British Columbia, [1989] 1 SCR 143 [Andrews], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/407/index.do>. The SCC also set out a three-step test to establish prima facie discrimination (discrimination on its face) under the Code. The person making a claim must show, on a balance of probabilities (more likely than not) that: 

  1. They have a characteristic protected by one or more of the Code grounds  
  2. They experienced adverse or negative treatment or impact in one of the social areas under the Code (e.g. in services or employment)  
  3. The protected characteristic was a factor in the adverse treatment or impact.

See Moore v British Columbia (Education), [2012] 3 SCR 360 at para 33, 2012 SCC 61 [Moore], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12680/index.do>.

10 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 1999 SCC 652, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1724/index.do>.

11 Code, supra note 1, s 11.

12 Fisher v York University, 2011 CanLII 1229 (HRTO) [Fisher], online: <canlii.ca/t/fm44v> (“[t]he fact that funds are provided by a third party does not relieve the respondent of its duties under the Code” at para 67). 

13 Ont Human Rights Comm v Simpsons-Sears, [1985] 2 SCR 536, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/101/index.do>.

14 Canada Trust Co. v. Ontario Human Rights Commission (C.A.), 74 OR (2d) 481, 1990 CanLII 6849 (ONCA), online:  <canlii.ca/t/g186s>; Royal Trust Corporation of Canada v The University of Western Ontario et al, 129 OR (3d) 772, 2016 CanLII 1143 (ONSC), online: <canlii.ca/t/gnc5t>.

15 International human rights law recognizes the importance of advancing the “equal effective enjoyment of all human rights and fundamental freedoms” through special measures (see The concept of “special” measures in international human rights law: background document prepared by the Office of the United Nations High Commissioner for Human Rights, OHCHR, UN Doc A/AC.265/2005/CRP.4 (2005) at 3, online: <un.org/esa/socdev/enable/rights/documents/ahc6ohchrspmeasures.doc>), which are enshrined in instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities. Special measures under international human rights law are protected from being deemed discriminatory if they do not lead to the maintenance of separate rights or standards and are discontinued when the objectives of the measures are reached (see General Recommendation no. 32: The meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination sic], CERD, 75th Sess, UN Doc CERD/C/GC/32 (2009) at 6-9, online: <refworld.org/legal/general/cerd/2009/en/70344>).

16 Teodora K Tomova & L Taylor Phillips, “What counts as discrimination? How principles of merit shape fairness of demographic decisions,” (2022) 123:5 J Personality & Soc Psychology 957, online: <doi.org/10.1037/pspi0000383>. At 978: “However, even when meritocratic principles are upheld, discrimination may persist: people believe some kinds of demographic attributes to be meritocratic in the first place.” See also OHRC, What We Heard Report: Anti-Black Racism in Education Roundtables, (Toronto: OHRC, 2024), online: <ohrc.on.ca/en/what-we-heard-report-anti-black-racism-education-roundtables>; Community Living Ontario et al., If Inclusion Means Everyone, Why Not Me (Toronto: Community Living Ontario, 2018), online: <communitylivingontario.ca/if-inclusion-means-everyone-why-not-me/>.  

17 Ontario (Human Rights Commission) v Ontario, 19 OR (3d) 387, 1994 CanLII 1590 (ONCA) [Roberts], online: <canlii.ca/t/6k4x>.

18 Ball v Ontario (Community and Social Services), 69 CHRR 300 at paras 121-124, 2010 CanLII 360 (HRTO) [Ball], online: <canlii.ca/t/285qv>. 

19 Anecdotal examples of individuals belonging to the targeted group who are not disadvantaged are not sufficient to show that the group at-large does not experience disadvantage. See Lisikh v Ontario (Education), 2022 CanLII 1345 (HRTO), online: <canlii.ca/t/jszvd> (“[w]hile I note and acknowledge the applicant’s observation that many Black youth are highly successful in their education, the Commission’s policy on racism and racial discrimination supports the allegation that many more Black students are disadvantaged and experience hardship in accessing equal educational opportunities, as compared to their non-racialized fellow students” at para 29).

20 The HRTO found that relative under-representation is enough to justify a special program for a disadvantaged group. See Carter v Elementary Teachers Federation of Ontario, 2011 CanLII 1604 (HRTO), online: <canlii.ca/t/fmrqb>. 

21 Re The Esther G Castanera Scholarship Fund, 2015 CanLII 28 (MBQB); available online: <canlii.ca/t/ggmdz> (“[c]urrent enrollment numbers do not always tell the whole story. They certainly do not give consideration to what has happened in the past, or recognize…enrollment numbers in undergraduate programs may give a false impression of equality within the discipline if there is a large exodus of women from the discipline after graduation or an underrepresentation in leadership positions within the discipline” at para 39).

22 Québec (Attorney General) v Kanyinda, 2026 SCC 7 [Kanyinda] at paras 66 and 91, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21399/index.do>. 

23 Roberts, supra note 18; Ball, supra note 19. In Ball, the HRTO found that when a challenge to a program comes from a person whom the program is designed to assist, the general prohibitions against discrimination apply. The role of s 14 is to address challenges from those who are not the intended beneficiaries of a particular program. 

24 OHRC, Policy on preventing discrimination because of gender identity and gender expression (Toronto: OHRC, 2014), online: <ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression>.

25 Intersectional approaches to human rights acknowledge the complex, unique, and compounding barriers that people face when experiencing discrimination based on multiple grounds, such as sexual orientation and race. See OHRC, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (Toronto: OHRC, 2001), online: <ohrc.on.ca/sites/default/files/attachments/An_intersectional_approach_to_discrimination%3A_Addressing_multiple_grounds_in_human_rights_claims.pdf>. See also Kanyinda, supra note 22.  

26 OHRC, Your guide to special programs and the Human Rights Code (Toronto: OHRC, 2013), online: <ohrc.on.ca/en/your-guide-special-programs-and-human-rights-code>.  

27 OHRC, Policy on competing human rights (Toronto: OHRC, 2012), online: <ohrc.on.ca/en/policy-competing-human-rights>.

28 The HRTO found that the Little Native Hockey League qualified under s 18 as a special interest organization whose membership is restricted to Ontario First Nation children and youth and therefore did not discriminate when they denied membership to a young Indigenous girl whose mother is a member of the Qalipu Mi’kmaq First Nation of Newfoundland and whose father is Inuit and a non-resident member of the NunatuKavut Nation of Labrador (i.e., not from an Ontario First Nation). See KP v. Little Native Hockey League, 2020 CanLII 298 (HRTO), online: <canlii.ca/t/j6v8h>. 

29 Fisher, supra note 12 at para 68: “University studies are clearly educational activities and the bursaries which include citizenship in their criteria of eligibility are intended to foster participation in these activities. I hold that subsection 16(2) is a complete answer to the applicant’s claim of discrimination on the basis of citizenship. The respondent has not violated s. 1 of the Code in creating or administering bursaries and scholarships which include Canadian citizenship as a criterion of eligibility.”

30 For example, a citizen of the United States of America may be registered under the Indian Act as a recognized member of a First Nation whose lands and territories are divided by the colonial border between Canada and the United States of America. For more information, see Immigration, Refugees, and Citizenship Canada & Canada Border Services Agency, Indigenous Mobility and Canada’s International Borders: Reflecting back and looking forward (Ottawa: IRCC, 2024), online: <canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/indigenous-mobility.html>.

31 Central Okanagan School Dist No 23 v Renaud, [1992] 2 SCR 970 at para 984, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/910/index.do>.

32 Moore, supra note 9; Longueépée v University of Waterloo, 153 OR (3d) 641, 2020 CanLII 830 (ONCA) [Longueépée], online: <canlii.ca/t/jc99k>.

33 Kahkewistahaw First Nation v Taypotat, [2015] 2 S.C.R. 548, 2015 SCC 30, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15383/index.do>. 

34 OHRC, Fact Sheet,  Policy on accessible education for students with disabilities (Toronto: OHRC, 2018) at section 8, online: <ohrc.on.ca/en/policy-accessible-education-students-disabilities>.

35 Brown v Trebas Institute Ontario Inc, 62 CHRR 329, 2008 CanLII 10 (HRTO), online: <canlii.ca/t/1vrht>.

36 OHRC, supra note 34; OHRC, Inclusive design and the duty to accommodate (fact sheet), (Toronto: OHRC, 2014), online: <ohrc.on.ca/en/inclusive-design-and-duty-accommodate-fact-sheet>.

37 Longueépée, supra note 32 at paras 5 and 8.

38 In most cases, these efforts are guided by the Truth and Reconciliation Commission’s 94 Calls to Action: Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Truth and Reconciliation Commission of Canada, 2015) at 319-337, online:  <ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf>. 

39 Teillet examines in greater details the many ways in which Indigenous identity misappropriation can be committed in section B of her report. Jean Teillet, Indigenous Identity Fraud: A Report for the University of Saskatchewan (Saskatoon: University of Saskatchewan, 2022) at 12-36, online: <indigenous.usask.ca/documents/deybwewin--taapwaywin--tapwewin-verification/jean-teillet-report.pdf>. 

40 See OHRC, Policy statement on Indigenous-specific hiring (Toronto: OHRC, 2025), online: <ohrc.on.ca/en/policy-statement-indigenous-specific-hiring>.

41 See OHRC, Context guide for the Policy statement on Indigenous-specific hiring (Toronto: OHRC, 2025), online: <ohrc.on.ca/en/context-guide-policy-statement-indigenous-specific-hiring>. 

42 In determining an appropriate process for confirming Indigenous identity claims, organizations need to build, maintain, honour, and respect relationships with rightsholders, and local Indigenous peoples and organizations that serve the community, and meaningfully engage with them. The OHRC recognizes that only rights-bearing Indigenous peoples and representative organizations can determine who is Indigenous (for the purposes of this statement, by referring to Indigenous peoples and representative organizations as “rights-bearing,” the OHRC primarily means Indigenous peoples and representative organizations who hold inherent Aboriginal and/or Treaty rights in Canada). In a recent decision, the HRTO found that a scholarship that imposed the same requirements for confirming Métis identity as the SCC decision in R v Powley, 2003 SCC 43 [Powley] did not discriminate under the Code. See Sokoluk v Indspire, 2025 CanLII 2552 (HRTO), online: <canlii.ca/t/kfthw>. In Powley, the SCC held that Métis identity under s 35 of the Charter requires acceptance by a modern Métis community.  

43 Smith v. Hawkesbury General Hospital, 2020 CanLII 553 (HRTO), online: <canlii.ca/t/j8h8j> (“the Tribunal has recognized that in certain circumstances, [language] may be a proxy for some protected ground such as ancestry, place of origin, race or ethnic origin” at para 46). See also Arnold v. Stream Global Services, 2010 CanLII 424 (HRTO) at para 20, online: <canlii.ca/t/288mc>; Kelly v. Kirkland & District Hospital, 2012 CanLII 2278 (HRTO) at para 9, online: <canlii.ca/t/fv6n5>. For more information on language and the Code, see OHRC, Policy on discrimination and language (Toronto: OHRC, 1996), online: <ohrc.on.ca/en/policy-discrimination-and-language>. 

44 For more on bona fide requirements, see OHRC, supra note 8, at Chapter IV, section 2(a).

45 OHRC, Policy statement on Francophones, language and discrimination (Toronto: OHRC, 2017), online: <ohrc.on.ca/en/policy-statement-francophones-language-and-discrimination>. 

46 Charter, supra note 3 at ss 16-23. 

47 Ibid at s 23. 

48 Education Act, RSO 1990, c. E.2, at ss 290(2) and 291(1), online: <ontario.ca/laws/statute/90e02>. 

49 French Language Services Act, RSO 1990, c. F.32, online: <ontario.ca/laws/statute/90f32>. 

50 In one case, the HRTO found that the Code's restricted definition of age violated s 15 of the Charter for the purposes of that proceeding. See Arzem v Ontario (Community and Social Services), 56 CHRR 426, 2006 CanLII 17 (HRTO), online: <canlii.ca/t/1r78j>. However, absent a successful constitutional challenge, the Code's definition limits the protection against age discrimination to persons over 18. See for example DF v University of Ottawa, 2011 CanLII 1318 (HRTO), online: <canlii.ca/t/fm724>.