Strengthening Ontario's Human Rights Code - Proposed Amendments to the Prohibited Grounds of Discrimination

A new private member's bill has been put forward by MPP Nathalie Des Rosiers with the purpose of strengthening Ontario's Human Rights Code ("Code"). Bill 164, Human Rights Code Amendment Act, 2017, proposes amending the Code to include four new prohibited grounds. The proposed amendments have passed the first reading stage and are scheduled for a second reading on October 26, 2017.

As the Code stands, there are 17 prohibited grounds of discrimination which can be relied upon to protect people from discrimination. The protected grounds include: age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed (religion), disability (physical and mental), family status (parental and child), marital status (including single status), gender identity, gender expression, sexual orientation, sex (including pregnancy and breastfeeding), receipt of public assistance, and record of offences (only in employment). The proposed amendments provide for additional protections on the basis of social condition, immigration status, police records and genetic characteristics.

PURPOSE

The proposed bill provides for amendments to various provisions of the Code, and most notably that every person has a right to equal treatment, without discrimination because of immigration status, genetic characteristics, police records and social condition, with respect to services, goods and facilities, the occupancy of accommodation, the right to contract, employment (including harassment in employment) and membership in various types of organizations.

The purpose of the bill is to close the gap, and expand and modernize the prohibited grounds under the Code for Ontarians, to ensure that all Ontarians are protected against discrimination, especially those who are vulnerable and marginalized. The proposal accounts for emerging forms of discrimination that are affecting Ontarians today.

This proactive approach to human rights should be applauded; however, the changes bring Ontario in line with what other provincial and national governments have already enshrined into law. For example, Alberta, Manitoba, New Brunswick, Nova Scotia, Nunavut, Prince Edward Island and the Yukon include social or public assistance as a prohibited ground of discrimination; and, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Quebec and Saskatchewan protect social disadvantage or condition from discrimination in their human rights acts. 

DEFINITIONS PROPOSED UNDER THE PROPOSED AMENDMENTS

Section 6 (1)  Subsection 10 (1) of the Code would be amended by adding the following definitions:

“immigration status” means the status according to Canadian immigration law; (“statut d’immigrant”)

“police records” includes charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police; (“dossiers de police”)

“social condition” means social or economic disadvantage resulting from,

  (a)  employment status,

  (b)  source or level of income,

  (c)  housing status, including homelessness,

  (d)  level of education, or

  (e)  any other circumstance similar to those mentioned in clauses (a), (b), (c) and (d); (“situation sociale”)

(2)  The definition of “record of offences” in subsection 10 (1) of the Act is repealed.

(3)  Section 10 of the Act is amended by adding the following subsection:

Refusal to undergo or disclose results of genetic test

(4)  The right to equal treatment without discrimination because of genetic characteristics includes the right to equal treatment without discrimination because a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test.

SOCIAL CONDITION

The proposed changes would add protections for those who face discrimination in employment, insurance and goods and services on the basis of a lack of education, homelessness, and poverty, as well as any other similar social condition. It will be for the Tribunal and courts to carve out what other circumstances may be connected to this provision.

The social conditions proposed create barriers and hurdles for those that endure them. The added protection will help to alleviate some of the harm and improve circumstances for those who are affected by them. Persons who live in difficult financial situations are often treated differently, and this provision should offer an additional level of protection. 

POLICE RECORDS

The current Human Rights Code provides protections on the basis of "record of offences." However, the concern is that this does not go far enough to protect those who have come in contact with the law. People are frequently denied employment and volunteer experiences because of previous contact with law enforcement, due to mandatory criminal background checks, for example. In many instances, those records will not provide enough information to make an assessment of the character of the person. The records may not show whether charges were dropped or stayed, for example. Prospective employees may not be hired on the basis of incomplete or incorrect information contained in a police records check that provides minimal information. Further, we must account for the fact that people change, and holding their contact with the law against them in the long term not only hurts them, but also society. 

IMMIGRATION STATUS

New immigrants also face discrimination. This is apparent considering the divisiveness of this topic in mainstream Canadian society. For example, new immigrants have faced landlords that refuse to rent on the basis of their immigration or refugee status and other public services requiring proof of citizenship, immigration status or permanent residency prior to providing services, in order to determine eligibility, such as health care and education. 

GENETIC CHARACTERISTICS

The proposed protected ground of genetic characteristics includes the right to equal treatment without discrimination because a person refuses to undergo a genetic test or refuses to disclose the results of a genetic test. Genetic characteristics have prevented people from obtaining employment or insurance, as a result of hereditary family health conditions. For example, it is permissible to deny someone employment or insurance on the basis of parental medical history.

FINAL THOUGHTS

The law is ever evolving and must adapt to the times. Discrimination is unfortunately common with respect to the four new proposed protected grounds, and is clearly warranted in our changing times.  

Ontario's Human Rights Commission supports the bill and will hopefully take the lead in carving out what protections these proposed protected grounds should aspire to encompass, as we await case law to clarify and enhance the protections.