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Human Rights (Ontario) Law
(30 September 2009)

Chapter 2 - Protected Activities


  1. Overview
  2. Services, Goods and Facilities
    (a) Overview
    (b) Exception re Services and Facilities Where Special Interest Organizations
    (c) Exception re Services and Facilities for Marriage Services and Use of Sacred Places
    (d) Exception re Services and Facilities re Where Restricted to Same Sex on Grounds of Public Decency
    (e) Exception re Services, Goods and Facilities for Minimum Drinking Age
    (f) Exception for Services and Facilities on Certain Grounds for Recreational Clubs
    (g) Exception for Goods for Minimum Age for Selling or Supplying Tobacco
    (h) Exception for Insurance Services
  3. Accomodation
    (a) General
    (b) Harassment
    (c) Minors in Accomodation
    (d) Exception for Owner-Shared Facilities
    (e) Exception for Financial Checking Re Prospective Tenants
    (f) Exceptions on Grounds of Sex
  4. Contracting
    (a) Overview
    (b) "Legal Capacity"
    (c) Exception for Insurance Contracts
  5. Employment
    (a) Overview
    (b) Harassment
    (c) Vocational Associations
    (d) Hiring and Placement
    (e) Exceptions Regarding Benefit Plans
    . Overview
    . Exceptions Regarding Some Benefit Plans for Sex, Marital Status and Family Status Discrimination Where ESA Compliance
    . Exceptions Regarding Some Benefit Plans for Age Discrimination Where ESA Compliance
    . Exceptions Regarding Some Benefit Plans for Disability Discrimination
    (f) Exceptions for Employment by Religious Institutions etc Where Bona Fide Occupation Requirement
    (g) Exceptions for Employment Where Age, Sex, Record of Offences, Marital Status are Bona Fide Occupational Requirements
    (h) General Employment Exception for Attending Ill or Aged Relatives
    (i) General Employment Exception for Family Members
    (j) Exceptions for Justice Appointments re Age
  6. Sexual Solicitation by Person in Position of Power

------------------------------


1. Overview

Discrimination law under Ontario's Human Rights Code is structured along two primary themes: the area of human ACTIVITY that the law governs (ie. provisions of services, accomodation, employment etc) and the prohibited GROUND of discrimination (ie. race, gender, disability, etc). This chapter covers the first of these.

Roughly then, 'discrimination' (aka 'the failure to provide EQUAL treatment', the subject of its own chapter: Ch.4: "Discrimination") is prohibited if it occurs 'in' or with respect to a protected activity, and 'on' a prohibited ground (grounds are discussed in Ch.3: "Prohibited Grounds").

Any infringement of a Code human right is formally prohibited by Code s.9, even if it is carried out by Ontario or any of its agencies (which includes municipalities) [Code s.47(1)]. Further, unless an Ontario Act or regulation specifically provides that it overrides the Code, those Act and regulations are inferior law in relation to the Code [Code s.47(2)].

This chapter addresses the following specific, and important areas of human activity (they are mostly trade-related) that are protected by the Code, and exceptions to them where discrimination is allowed:
  • the provision of services, goods and facilities ("services");
  • accomodation;
  • contracting; and
  • employment.
Note:
The exceptions noted in this chapter are ones that are defined by the 'activity' involved. Other exceptions may apply to specific fact situations. Those defined by a particular 'ground' of discrimination are addressed in Ch.3: "Prohibited Grounds" and some general exceptions are explained in Ch.6: "General Exceptions". Readers should be sure to consider all of these when faced with any particular fact situation.

2. Services, Goods and Facilities

(a) Overview

The Code protects human trade and other activities respecting "services, goods and facilities", as follows:
s.1
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
This list of grounds is - for the most part - common to the other protected activities and may be regarded as a 'basic' list of protected grounds.

What constitutes 'goods' and 'facilities' is not further defined in the Code, but s.10 makes it clear that taxation (and the like) as a "service" is exempted from Code coverage:
s.10
"services" does not include a levy, fee, tax or periodic payment imposed by law;
(b) Exception re Services and Facilities Where Special Interest Organizations

The right to equal treatment with respect to services and facilities (but not apparently 'goods') is not infringed where "where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified" [Code s.18].

This provision allows membership and participation discrimination (ie. where "restricted to persons who are similarly identified") on otherwise prohibited grounds by a broad range of groups, both pre-existing and new. On the positive side, it also excepts groups devoted to serving those who embody the prohibited grounds of discrimination discussed in Ch.3 (eg. women's groups and racial minority advocacy groups).

(c) Exception re Services and Facilities for Marriage Services and Use of Sacred Places

Without limiting the broad 'special interest' exception discussed in (b) above, the right to equal treatment with respect to services and facilities (but again, not apparently 'goods') is not infringed [Code s.18.1] where 'a person registered under section 20 of the Marriage Act refuses [these provisions are effectively duplicated in Marriage Act s.20(6)]:
  • to solemnize a marriage,

  • to allow a sacred place (which includes a place of worship and any ancillary or accessory facilities) to be used for solemnizing a marriage or for an event related to the solemnization of a marriage, or

  • to otherwise assist in the solemnization of a marriage,

    if to do so would be contrary to,

  • the person's religious beliefs; or

  • the doctrines, rites, usages or customs of the religious body to which the person belongs.
Note that judges, justices of the peace, and others appointed by Regulation under Marriage Act s.24 to solemnize marriages (as opposed to voluntary registration under Marriage Act s.20) do not have this freedom, and are governed by the general non-discrimination (re services) provisions of Code s.1.

(d) Exception re Services and Facilities re Where Restricted to Same Sex on Grounds of Public Decency

Discrimination on grounds of sex (gender) is excepted (allowed) where the use of services or facilities is restricted to persons of the same sex on grounds of public decency [Code s.20(1)]. This provision applies to allow such things as gender-separate toilet, dressing and shower facilities.

(e) Exception re Services, Goods and Facilities for Minimum Drinking Age

Discrimination with respect to services, goods and facilities is excepted (allowed) on grounds of age for "provisions of the Liquor Licence Act and the regulations under it relating to providing for and enforcing a minimum drinking age of nineteen years" [Code s.20(2)].

(f) Exception for Services and Facilities on Certain Grounds for Recreational Clubs

Discrimination with respect to services and facilities is excepted (allowed) where "a recreational club restricts or qualifies access to its services or facilities or gives preferences with respect to membership dues and other fees because of age, sex, marital status or family status" [Code s.20(3)].

(g) Exception for Goods for Minimum Age for Selling or Supplying Tobacco

Discrimination with respect to goods on the basis of age is excepted (allowed) "by the provisions of the Smoke-Free Ontario Act and the regulations under it relating to selling or supplying tobacco to persons who are, or who appear to be, under the age of 19 years or 25 years, as the case may be" [Code s.20(4)].

The Smoke-Free Ontario Act mandates that tobacco retailers require acceptable identification proving that anyone seeking tobacco who appears to be less than 25 years of age, is at least 19 years of age. Absent such verification, anyone appeared to be less than 25 years of age shall be deemed to be less than 19 years of age and the sale is therefore illegal.

(h) Exception for Insurance Services

Discrimination with respect to services is excepted (allowed) on the grounds of "age, sex, marital status, family status or disability, ... where a contract of automobile, life, accident or sickness or disability insurance or a contract of group insurance between an insurer and an association or person other than an employer, or a life annuity, differentiates or makes a distinction, exclusion or preference on reasonable and bona fide grounds because of age, sex, marital status, family status or disability" [Code s.22].


3. Accomodation

(a) General

The Code protects persons against discrimination (ie. by requiring "equal treatment") with respect to the "occupancy of accomodation", as follows:
s.2(1)
Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.
The grounds listed here are the same as for "services" (above), with the addition of "receipt of public assistance".

This provision relates to residential accomodation. That general topic is the subject of the detailed Isthatlegal.ca Residential Landlord and Tenant Law (Ontario) Legal Guide.

(b) Harassment

With the notable exception of the ground of "sexual orientation" [see Ch.3, s.6: "Prohibited Grounds: Sexual Orientation"], a similar 'accomodation' protection is afforded against "harassment by the landlord or agent of the landlord or by an occupant of the same building" [Code s.2(2), and separately in s.7(1) re "sex"].

What constitutes "harassment" as such is addressed in more detail in Ch.5, s.3: Forms of Discrimination: Harassment".

(c) Minors in Accomodation

'Minors' in Ontario law are those who have not yet reached their eighteenth birthday (Age of Majority and Accountability Act, RSO 1990, Ch.A7). There is a common law rule that a minor is only liable (eg. can only be sued) for breach of contracts made for "necessities of life" (ie. food and shelter). This rule is reiterated in part, apparently for clarity's sake, in part in s.4(2) of the Code:
s.4(2)
A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.
In addition, those minors (who HAVE reached their 16th to 17th birthdays) AND who have withdrawn from parental control are protected from discrimination "with respect to occupancy of and contracting for accomodation .... because the person is less than eighteen years old" [Code s.4(1)].

(d) Exception for Owner-Shared Facilities

Discrimination is excepted (allowed) with respect to residential accomodation on any ground, where the "accomodation is in a dwelling in which the owner or his or her family reside if the occupant or occupants of the residential accommodation are required to share a bathroom or kitchen facility with the owner or family of the owner" [Code s.21(1)].

(e) Exception for Financial Checking Re Prospective Tenants

Discrimination is excepted (allowed) where a landlord, when assessing and selecting prospective tenants [Code s.21(3); Reg 290/98]:
  • requests credit references, rental history information and tenant authorization to conduct credit checks, and considers them alone or in any combination;

  • IF the above is requested then income information may also be requested, though it may only be considered together with the above - except that where only income information is obtained it may be considered alone;

    However, a public housing landlord [ie. "described in paragraph 1, 1.1, 2 or 3 of subsection 5 (1) or subsection 6 (1) of the Tenant Protection Act, 1997"] may request and use income information by itself about a prospective tenant "in order to determine a prospective tenant's eligibility for rent in an amount geared-to-income".

  • requires a rent guarantor;

  • requires a security deposit in accordance with sections 117 and 118 of the Tenant Protection Act, 1997.

    These provisions have been replaced by provisions of the Residential Tenancies Act, discussed at this Isthatlegal.ca Residential Landlord and Tenant Law(Ontario) link:

    Ch.10, s.5: Rent Fundamentals: Non-Rent Charges and Security Deposits
These exceptions shall not be interpreted to "authorizes a landlord to refuse accommodation to any person because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, handicap or the receipt of public assistance."

(f) Exceptions on Grounds of Sex

Discrimination is excepted (allowed) with respect to residential accomodation where, on grounds of sex, "the occupancy of all the residential accommodation in the building, other than the accommodation, if any, of the owner or family of the owner, is restricted to persons who are of the same sex" [Code s.21(2)].


4. Contracting

(a) Overview

The Code protects persons "having legal capacity" against discrimination regarding their "right to contract", as follows:
s.3
Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
The grounds listed are the same as for "services" above, but note that - unlike 'accomodation' (s.3, above)- "receipt of social assistance" is not included.

(b) "Legal Capacity"

"Capacity" is a legal term referring to the mental ability of a person to engage in specific activities. A person may be 'capable' for one activity (eg. personal care) but not for another (eg. management of property, or instructing counsel). Ontario's main law respecting determination of incapacity and related legal procedures is the
Substitute Decisions Act.

The most relevant form of recognized incapacity that relates to contracting is "incapacity to manage property":
Substitute Decisions Act
s.6
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
(c) Exception for Insurance Contracts

Discrimination with respect to contracts is excepted (allowed) on the grounds of "age, sex, marital status, family status or disability, ... where a contract of automobile, life, accident or sickness or disability insurance or a contract of group insurance between an insurer and an association or person other than an employer, or a life annuity, differentiates or makes a distinction, exclusion or preference on reasonable and bona fide grounds because of age, sex, marital status, family status or disability" [Code s.22].


5. Employment

(a) Overview

Human Rights Codes have historically been closely associated with employment and labour relations law. The primary form of the Code employment protection is, simply, against discrimination "with respect to employment" [Code s.5(1)].

Care must be taken to distinguish true employment relationships (contracts OF service) from independent contractor relationships (contracts FOR service). This distinction is explained in the Isthatlegal.ca Employment Law (Ontario) Legal Guide at the following link:

Ch.1, s.1: Coverage of Employment Law: Basics


The grounds of protection here are the same as for "services", with the addition of "record of offences". Note that "receipt of social assistance" is not a ground of discrimination here.

(b) Harassment

Like 'accomodation, and again with the notable exceptions of the ground of "sexual orientation" [see Ch.3, s.6: "Prohibited Grounds: Sexual Orientation"], a similar protection is afforded against "harassment in the workplace by the employer or agent of the employer or by another employee" [Code s.5(2), and separately in s.7(2) re "sex"]. What constitutes "harassment" as such is addressed in more detail in Ch.5, s.3: "Forms of Discrimination: Harassment".

(c) Vocational Associations

A separate, though employment-related protection against discrimination is afforded by Code s.6, which governs employment-related association (and associations). It reads:
s.6
Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
The ground "record of offences" is markedly absent from this protection, apparently authorizing vocational association discrimination on that ground - something which the self-governing professions may be more inclined to do that others.

(d) Hiring and Placement

The Code sets out some specific activities and behaviours that are considered employment discrimination, most of which relate to decisions about who to hire. While this list does not exclude other similar situations that might constitute employment discrimination, it does help clarify some situations that do, and they are the following [Code s.23]:
  • "where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination" [Code s.23(1)];

    Note:
    The phrase "an advertisement in connection with employment" could extend this prohibition to cover non-hiring situations, though I can't immediately think of what they might be.

  • "where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination" (however, if the underlying discrimination is excepted then such inquiries are similarly excepted, as long as they are posed in an in-person employment interview) [Code s.23(2-3)];

  • "where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer" [Code s.23(4)].
(e) Exceptions Regarding Benefit Plans

. Overview

Section 25(1) of the Code, which deals with this topic, first sets out that requiring discriminatory terms and conditions in an employment benefit plan is itself discriminatory. That itself is an obvious and redundant point in light of the broader employment discrimination provisions of s.5. The real purpose of s.25 as a whole is to establish exceptions to employment discrimination with respect to benefit plans, and it is these exceptions that are the subject of this sub-section.

Note that larger employers commonly provide benefits and insurance to employees by way of group plans that the employer negotiates directly with insurance companies - thus taking advantage of what amounts to wholesale rates, which they then pass on to their employees as enhanced compensation.
Note:
The establishment of employer-purchased group plans has in past resulted in difficulties for employees or unions trying to enforce benefit claims directly because Ontario law does not generally recognize the legal standing (right to sue) of anyone who is not a party to the main contract (called being in 'privity'). This problem has largely been addressed by amendments to the Insurance Act, but much confusion and conflict of interest can still result when both insurers and employers become directly involved in claims-management under such plans.

The Code [s.10] defines "group insurance" to mean "insurance whereby the lives or well-being or the lives and well-being of a number of persons are insured severally under a single contract between an insurer and an association or an employer or other person".
. Exceptions Regarding Some Benefit Plans for Sex, Marital Status and Family Status Discrimination Where ESA Compliance

An "employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer" can discriminate based on the grounds of sex, marital status and family status IF the fund, plan or contract otherwise complies with the minimum standards required of them by the Employment Standards Act (ESA) [Code s.25(2)].

In other words, ESA compliance excepts and replaces HRC duties in this areas of employment law. These ESA provisions are explained in the Isthatlegal.ca Employment Law (Ontario) Legal Guide, at this link:

Ch.5, s.1: Benefit Plans, Leaves and Other ESA Rights: Benefit Plans

What constitutes "sex", "marital status" and "family status" under the Code is discussed in Ch.3: "Prohibited Grounds". In the event of conflict in the interpretation of this provision, note that the Code definitions of "sex" or "marital status" prevail over any similar ESA definitions [Code s.25(2.3)].

. Exceptions Regarding Some Benefit Plans for Age Discrimination Where ESA Compliance

An "employee benefit, pension, superannuation or group insurance plan or fund" can discriminate based on the grounds of age IF the fund, plan or contract otherwise complies with the minimum standards required of them by the Employment Standards Act (ESA) [Code s.25(2.1)] (see the above link). Note that this exception applies to benefits provided both by an insurer (purchased by the employer), and those provided directly by the employer [Code s.25(2.2)]. In other words, ESA compliance excepts and replaces HRC duties in this areas of employment law.

What constitutes "age" under the Code is discussed in Ch.3, s.7: "Prohibited Grounds: Age". In the event of conflict in the interpretation of this provision, note that the Code definition of "age" prevails over any similar ESA definitions [Code s.25(2.3)].

. Exceptions Regarding Some Benefit Plans for Disability Discrimination

Discrimination on the ground of disability is allowed where, due to pre-existing disabilities, "reasonable and bona fide distinctions, exclusions or preferences" are made [Code s.25(3)]:
  • in an employee disability or life insurance plan or benefit where the pre-existing disability substantially increases the risk to
    the insurer or benefit provider;

  • in an employee-pay-all or participant-pay-all benefit in an employee benefit, pension or superannuation plan or fund;

  • in a contract of group insurance between an insurer and an employer; or

  • in a plan, fund or policy that is offered by an employer to employees if they are fewer than twenty-five in number.
As compensation for any such exclusion, employees are entitled to be paid an amount equivalent to the (premium) amount that the employer would have paid for the benefit on their behalf, if they had not had the pre-existing disability [Code s.25(4)].

What constitutes "disability" under the Code is discussed in Ch.3, s.10: "Prohibited Grounds: Disability". Note that the s.25(3) exceptions are in direct conflict with, and must be presumed to be an exception to, another Code provision which reads:
Code s.10(3)
The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.
(f) Exceptions for Employment by Religious Institutions etc Where Bona Fide Occupation Requirement

Discrimination in employment is excepted (allowed) where "a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment" [Code s.24(1)(a)].

This allows such organizations to hire their own, to the exclusion of others, where the employee's identity as a group member is truly necessary to their job.

(g) Exceptions for Employment Where Age, Sex, Record of Offences, Marital Status are Bona Fide Occupational Requirements

Discrimination in employment is excepted (allowed) where it is "for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment" [Code s.24(1)(b)].

No finding that a qualification is reasonable and bona fide shall be made unless the circumstances of the person cannot be accommodated without undue hardship (as determined in accordance with the regulations) on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any" [Code s.24(2-3)].

(h) General Employment Exception for Attending Ill or Aged Relatives

Discrimination in employment is excepted (allowed) on any ground where "an individual person refuses to employ another for reasons of any prohibited ground of discrimination in section 5 [employment discrimination: see (a) above], where the primary duty of the employment is attending to the medical or personal needs of the person or of an ill child or an aged, infirm or ill spouse or other relative of the person" [Code s.24(1)(c)].

(i) General Employment Exception for Family Members

Discrimination in employment is excepted (allowed) on any ground where "an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee" [Code s.24(1)(d)].

(j) Exceptions for Justice Appointments re Age

Without suggesting that a judge, master, case management master or justice of the peace is an employee for any purpose, discrimination in employment is excepted (allowed) where [Code s.24(1)(e-h),(4)]:
  • a judge or master is required to retire or cease to continue in office on reaching a specified age under the Courts of Justice Act (CJA);

  • a case management master is required to retire on reaching a specified age under the Courts of Justice Act;

  • the term of reappointment of a case management master expires on the case management master reaching a specified age under the Courts of Justice Act; or

  • a justice of the peace is required to retire on reaching a specified age under the Justices of the Peace Act.
The Courts of Justice Act (CJA) is Ontario's main court statute and it requires provincial judges to retire at 65 [CJA s.47(1)], although for some appointments ("full-time magistrate, judge of a juvenile and family court or master") made prior to 02 December 1968 the age is 70 [CJA s.47(2)]. As well, retirement age may be postponed annually by the Chief Justice of Ontario until the judge is 75 years of age [CJA s.47(3)].

Provisions respecting terms and retirement of case management masters are set out in CJA s.86.1, and masters at s.87.


6. Sexual Solicitation by Person in Position of Power

While it certainly can apply in employment situations, there is a separate general prohibition against [Code s.7(3)(a)]:
... sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;
Non-employment situations where it could apply might include those holding administrative, police, judicial or penal authority over a person.

There is also a reprisal form of this discrimination, discussed in Ch.5, s.5: "Forms of Discrimination: Sexual Solicitation and Reprisals by Persons in Authority" [Code s.7(3)(b)].
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