You are now in the main content area

Upcoming conference celebrates 60 years of Ontario’s Human Rights Code

Milestone anniversary offers opportunity to reflect on and reimagine the code
By: Irina Vukosavic
June 21, 2022
Five hands on a table.

The Ontario Human Rights Code prohibits actions that discriminate against people based on protected grounds such as age, sexual orientation, and gender expression (among others).

For the 60th anniversary of the Ontario Human Rights Code, Toronto Metropolitan University’s Human Rights Services is partnering with the Ontario Human Rights Commission (OHRC) and the Lincoln Alexander School of Law to host a conference that explores new directions for human rights law and policy.

On June 23, Human Rights at 60: Reflecting and Reimagining (external link)  will take place virtually from 9 a.m. to 4:30 p.m. The event will feature panel discussions and keynote speakers to reflect on this moment in human rights history.

We spoke with Tanya (Toni) De Mello, assistant dean, Student Programming, Development and Equity, Lincoln Alexander School of Law and Remi Warner, director, Human Rights Services, in the Office of the Vice-President, Equity and Community Inclusion, to learn more about the code, why it is important and how it can evolve given changing cultural contexts.

Toni (Tanya) De Mello.

Toni (Tanya) De Mello will be hosting the event and making closing remarks at the conference.

Why is the code so important?

Remi Warner: It legally enshrines and protects some of our most cherished ideals in society, namely the right to be treated with dignity, equality and respect, free from discrimination and harassment, no matter who you are, and in a manner that respects our various identities, abilities and social locations. 

Having these ideals recognized in provincial law as an inalienable human right is important because so many areas of our everyday life - from housing, to our workplaces, unions, associations, services (including education), goods, and facilities - are under provincial jurisdiction. The code helps to take such expectations of what we agree to be fair, just and equitable off of the political bargaining table in these key social areas of life, where power, might and the will of the majority would otherwise hold sway, to the detriment of marginalized people. 

Tanya (Toni) De Mello: What I think is so important about the code is it says at its heart that we want people to feel dignity at work and in their communities. Everyone should be able to feel that their identities are respected in their work environment. The code is a blanket that people can put around themselves and it says - ‘you matter, who you are matters’. The code is not just about having consequences for abuse, it is also about people feeling dignity.

The code also has primacy over all other legislation and looks at impact, not solely intention. It looks at the impact that actions or words have on people - which is so important as people may have no negative intention and still cause incredible harm to someone in the workplace. The impact is what we really measure and this is important to note.

Remi Warner.

Remi Warner will be hosting a panel looking at perspectives on expanding human rights claims and debates over whether some of these claims belong in the realm of fundamental human rights and/or in the political sphere.

 

How does the code impact human rights law and policy more broadly?

RW: The code is human rights law in Ontario and as such has the status of being “quasi-constitutional”, that is,  it has primacy and takes precedence over all other provincial laws and policies. Where other policies, laws or collective agreements conflict with the code, the code will thus generally prevail and set the standard to be followed.

TD: All organizations must create workplace policies that align with the code. The code says your human rights, your right to work, and the identities that you bring are more important than any operational, legal or political requirements. Where there is a conflict, we will follow the principles in the code - this shows the value that this province has put to celebrate and protect who you are.

How can human rights law and policy advance the push for systemic substantive equality?

RW: The current design of human rights law and policy tends to put the onus on the individual victims of discrimination to press for their rights, through a relatively daunting and reactive legal process, after the fact of discrimination. Human rights law and policy can better advance systemic equality by placing more of an onus and positive obligation on those who wield power within our public institutions to prevent discrimination and harassment, and proactively advance equity.

Some examples of this include requiring regular data collection and public reporting, systemic barrier reviews and human rights impact assessment (including budgets, policies and initiatives). Other examples are mandatory human rights training and education, and the development of proactive equity strategies with transparent targets and indicators.

TD: One of the greatest gifts of the code is that it pushes for system change and this is important because we want systems in our society to change and evolve so that we are not accommodating cases on an individual basis but rather we have a universal design that can better conditions and support everyone. We also want to work towards having universal responses for people to feel welcome and to deal with difficult situations. Because the code is so powerful and it has consequences, it pushes people to think of changes in the system as they want to comply with the code but they also want to show that they go above and beyond the basic code requirements.

What are some of the strengths and weaknesses of the code in addressing systemic discrimination?

RW: One of the strengths of the code and the case law that has grown up around it is its focus on adverse impact, which does not require one to establish malicious motive or intent, and which recognizes the many ways in which systems may  reproduce inequitable and discriminatory outcomes.

The code also has the merit of recognizing (unlike some jurisdictions to our south) that achieving equality may sometimes require treating different people differently, for example through targeted special programs and hiring, in recognition of the barriers  marginalized groups of people face in society’s uneven playing field.

One of the biggest limitations of the code in our era - where inequality is often reproduced passively through inaction and the laissez faire maintenance of status quo institutional arrangements which were historically designed precisely by and for the benefit of dominant groups - is its continual and disproportionate reliance on a reactive, individual-focused, enforcement mechanism (i.e. the complaint process). It is as if the framers of the legislation presumed that our institutions were essentially fair and equitable, and that we only needed to devise a way to address the bad apples out there, one case at a time. 

And while the OHRC, fortunately, has had a systemic public interest mandate at least since 2008, it has also had a very small budget relative to its task, in an era of unprecedented rising social inequality which really limits its potential impact, as a small fish swimming upstream.

TD: One major weakness of the code is the lack of ways in which we can respond to intersectionality. While the code does address specific factors such as race, gender and age, it is not always able to take into account all of these things at the same time in practice. I also think the biggest piece missing from the code is the consideration for socioeconomic status, as this is one of the biggest forms of discrimination in our country and it’s linked to so many of the other code grounds.  

What are the potential directions for how the code will evolve given changing cultural contexts?

RW: To address the pressing social justice issues of our day, and not be seen as irrelevant at best, or complicit with an increasingly unequal neo-liberal social order at worst in propping up its appearance of justice and fairness, we will need to enshrine, at minimum, more specific and substantive positive duties in legislation for organizations and power holders  to proactively monitor and advance equity and inclusively design our systems and institutions.

This will also require increasing the powers, budget, and independence of the OHRC, HRTO and HRLSC to more effectively fulfil their mandates and, in the longer term, giving further concrete expression, in Canadian and provincial human rights law,  to social, economic and cultural rights that have been long neglected and should form part of a whole with such civil and political rights as the right to equal, non-discriminatory treatment.

The code, and Ontario provincial law more broadly, also urgently needs to be explicitly reconciled with, and give effect to, the United Nations Declaration on the Rights of Indigenous Peoples. This will in turn require an ongoing grappling with the coloniality of our existing legal system, as well as the histories and traditions of thought underpinning and propelling these in the present.

TD: Increasingly we're seeing the OHRC talk about intersectionality. I have also been impressed with the addition of code grounds such  as gender identity and expression; this shows that the code is responsive and evolves to meet the realities that people are facing in terms of their identities. Looking forward, the OHRC needs to be better resourced so that we can better enforce the code. It needs to be able to enforce the penalties, to engage in widespread awareness and education, and to support organizations to affect systemic change. I am constantly amazed by the level of expertise and commitment of the people working at the OHRC and how much they do with sparse resources - this is something of which everyone in Ontario should be proud.

Related stories:

 

More News