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Human Rights (Ontario) Legal Guide
(01 March 2019)
Chapter 3 - Grounds of Discrimination
- Overview
(a) The Ontario Human Rights Legal Context
(b) "Grounds" of Discrimination
- Race, Ancestry, Place of Origin, Colour, Ethnic Origin ("RAPCE")
(a) Overview
(b) Exceptions
- Citizenship
(a) Overview
(b) Exceptions
- Creed
(a) Overview
(b) Exception re Employment by Religious Institution etc
(c) Exception re Marriage Services and Use of Sacred Places
- Sex
(a) Overview
(b) Exceptions
- Sexual Orientation, Gender Identity and Gender Expression
- Age
(a) Overview
(b) Exceptions
- Marital status
(a) Overview
(b) Exceptions
- Family status
(a) Overview
(b) Exceptions
- Disability
(a) Overview
(b) "Disability" Defined
(c) Exceptions re Disability-Related Incapacity
(d) Other Exceptions
- Record of Offences
(a) Overview
(b) Exception
- Receipt of Social Assistance
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1. Overview
(a) The Ontario Human Rights Legal Context
Discrimination law under the 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 second of these.
Roughly then, 'discrimination' (aka 'the failure to provide equal treatment' (the subject of its own chapter: Ch.4) is prohibited if it occurs 'in' or with respect to a protected activity, and 'on' a prohibited ground ("protected activities" are discussed in Ch.2).
Any infringement of a Code human right is formally prohibited by 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 in law to the Code [Code s.47(2)].
(b) "Grounds" of Discrimination
In Ontario human rights law, a 'ground' of discrimination is a characteristic of a person that other people either rely upon, or fail to accomodate, when imposing unequal (and sometimes abusive) treatment on them. Roughly, where the treatment is conscious and intentional then the discrimination is considered 'direct', and when it is unintentional and incidential then it is considered 'constructive'. Those, and other forms of discrimination, are discussed at length in Ch.5: "Forms of Discrimination".
A fuller discussion of the constantly evolving (which is not necessarily a good thing) legal meaning of "discrimination" is located in Ch.4, but for present purposes it is enough to understand that that the 'grounds' of discrimination are not all of one common nature. Rather they can arise from several distinct aspects of a person - some innate from birth, and some acquired during their life (both voluntarily and involuntarily), and some both. They include:- innate characteristics (ie. race, ancestry, place of origin, colour, ethnic origin, sex, sexual orientation, gender identity, gender expression, age, citizenship, family status, disability);
- legal status (citizenship, record of offences, receipt of social assistance, marital status, family status);
- personal beliefs (creed).
Of course, such grounds are not mutually exclusive and one person may manifest several different grounds of potential discrimination.
The following sections of this chapter address, in turn, the specific 'enumerated' (ie. listed) grounds of prohibited discrimination, and their exceptions (ie. allowed discrimination). Note:
The exceptions noted in this chapter are ones that are defined by the specific 'ground' involved. Other exceptions may apply to specific fact situations. Those exceptions defined by a particular 'activity' are addressed in Ch.2: "Protected Activities", 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. Race, Ancestry, Place of Origin, Colour, Ethnic Origin ("RAPCE")
(a) Overview
Discrimination on any of the race, ancestry, place of origin, colour, ethnic origin (RAPCE) grounds is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
(b) Exceptions
Discrimination in employment on the RAPCE grounds is excepted (allowed) by "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)].
3. Citizenship
(a) Overview
Discrimination on grounds of citizenship is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
(b) Exceptions
Discrimination is excepted (allowed) on grounds of citizenship where [Code s.16(1-3)]:- Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law;
- where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
- where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.
4. Creed
(a) Overview
"Creed" includes both religious and non-religious beliefs, as long as they are closely held and personal in nature. Classically they are those of the major religions or generally recognized personal philosophies. They tend to relate to theories of the causation of the world, human kind or social ethics.
Discrimination on grounds of creed is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
(b) Exception re Employment by Religious Institution etc
Discrimination in employment on grounds of creed is excepted (allowed) for "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)].
This exception would typically apply to allow discrimination in hiring which favours a member of the group that the institution is affiliated with.
(c) Exception re Marriage Services and Use of Sacred Places
An exception to discrimination on the grounds of creed is made for marriage services and the use of sacred places: see Ch.2, s.2(c).
5. Sex
(a) Overview
Discrimination on grounds of sex (gender) is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.7(1)]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.7(2)]
- vocational association [s.6]
The right against sex discrimination includes the right against discrimination because of pregnancy or the potential to become pregnant [Code s.10(2)].
(b) Exceptions
The Code sets out exceptions (ie. legal discrimination) allowing sex discrimination regarding:- same-sex services and facilities for reasons of public decency [see Ch.2, s.2(d)] (eg. allowing same-sex toilets and change room facilities);
- employment-related benefit plans (eg. health benefits, pensions, insurance) where such benefits otherwise comply with the requirements of the Employment Standards Act [see Ch.2, s.5(e)];
- recreational club services, facilities, dues and fees [see Ch.2, s.2(f)];
- residential accommodation restricted to persons who are of the same sex [see Ch.2, s.3(d,f)];
- services and contracting with respect to reasonable and bona fide insurance differentiations, distinctions, exclusion or preferences [see Ch.2, s.2(h) and 4(c)];
- employment by "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)]; and
- employment where a persons's sex is a bona fide occupational requirement [see Ch.2, s.5(g)].
6. Sexual Orientation, Gender Identity and Gender Expression
Discrimination on grounds of sexual orientation, gender identity and gender expression is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- contracts [s.3]
- employment [s.5(1)]
- vocational association [s.6]
7. Age
(a) Overview
Discrimination on grounds of age is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
Note that while "age" is generally defined as being 18 years or more [Code s.10(1)], minors 16-17 years of age are protected from age discrimination in residential accomodation where they have withdrawn from parental control. As well, contracts for accomodation are enforceable against them [see Ch.2, s.3(c)].
(b) Exceptions
The Code sets out exceptions (ie. legal discrimination) on grounds of age with respect to:- employment-related benefit plans (eg. health benefits, pensions, insurance) where such benefits otherwise comply with the requirements of the Employment Standards Act [see Ch.2, s.5(e)];
- minimum drinking age [see Ch.2, s.2(e)];
- minimum tobacco selling and supplying age [see Ch.2, s.2(g)];
- recreational club services, facilities, dues and fees [see Ch.2, s.2(f)];
- services and contracting with respect to reasonable and bona fide insurance differentiations, distinctions, exclusion or preferences [see Ch.2, s.2(h) and 4(c)];
- employment by "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)];
- employment where age is a bona fide occupational requirement [see Ch.2, s.5(g)];
- some justice appointments [see Ch.2, s.5(j)];
- where age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment [Code s.15];
- regulation of the selling or supplying electric cigarettes to persons "who are, or who appear to be, under the age of 19 years or 25 years" [see Ch.2, s.2(i)].
8. Marital status
(a) Overview
Discrimination on grounds of marital status is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
"Marital status" includes "the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage", and 'spouse" means a person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage [Code s.10(1)].
(b) Exceptions
The Code sets out exceptions (ie. legal discrimination) on grounds of marital status with respect to:- employment-related benefit plans (eg. health benefits, pensions, insurance) where such benefits otherwise comply with the requirements of the Employment Standards Act [see Ch.2, s.5(e)];
- recreational club services, facilities, dues and fees [see Ch.2, s.2(f)];
- services and contracting with respect to reasonable and bona fide insurance differentiations, distinctions, exclusion or preferences [see Ch.2, s.2(h) and 4(c)];
- employment by "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)];
- employment where marital status is a bona fide occupational requirement [see Ch.2, s.5(g)].
9. Family status
(a) Overview
Discrimination on grounds of family status is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
"Family status" means the status of being in a parent and child relationship [Code s.10(1)].
(b) Exceptions
The Code sets out exceptions (ie. legal discrimination) on grounds of family status with respect to:- employment-related benefit plans (eg. health benefits, pensions, insurance) where such benefits otherwise comply with the requirements of the Employment Standards Act [see Ch.2, s.5(e)];
- recreational club services, facilities, dues and fees [see Ch.2, s.2(f)]; and
- services and contracting with respect to reasonable and bona fide insurance differentiations, distinctions, exclusion or preferences [see Ch.2, s.2(h) and 4(c)].
10. Disability
(a) Overview
Discrimination on grounds of disability is prohibited with respect to all areas of protected activity:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
Generally, the right to be free from disability discrimination covers both present and past disabilities, and as well where a person "is believed to have or to have had a disability".
(b) "Disability" Defined
The Code [s.10(1)] defines "disability" as meaning: - "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
- a condition of mental impairment or a developmental disability,
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
- a mental disorder, or
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997."
Entrop v Imperial Oil Ltd (Ont CA, 2000) has held that alcoholism is a "handicap" within the meaning of the previous Code, which used that term instead of the present "disability".
(c) Exceptions re Disability-Related Incapacity
The Code excepts (allows) discrimination on grounds of incapacity associated with disability where [Code s.17(1-3)]:- the incapacity to perform or fulfil the essential duties or requirements attending the exercise of the right because of disability is the only reason for the discrimination; and
- the needs of the person cannot be accommodated without undue hardship (as determined in accordance with standards prescribed by the Regulations, if any) on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Generally in law, "incapacity" refers to specific, legally-relevant incapacities such as incapacity to: manage property, instruct counsel, or to make personal health care decisions (such as are addressed in Ontario's Substitute Decisions Act). However, the meaning of 'incapacity' in this provision will be read more broadly, and will be assessed in light of the practical needs of the activity being considered (most commonly employment).Case Note: Longueépée v. University of Waterloo
In Longueépée v. University of Waterloo (Ont CA, 2020) the Court of Appeal cited doctrine on the human rights code criteria for rebutting prima facie discrimination as being 'reasonable and bona fide':[39] The Divisional Court referred to the three-part test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”), at para. 20, that applies when a requirement or standard has been shown to be prima facie discriminatory. The responding party must prove on a balance of probabilities that:1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship. ....
[66] I also note that there is no disagreement between the parties as to the proper framework that was to guide the Vice Chair’s analysis. Although not articulated in her reasons, the three-step test prescribed by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and Grismer applies to determine whether a prima facie discriminatory requirement is reasonable and bona fide. Under the Meiorin/Grismer test, the University had the obligation to establish:a. that the grades standard for transfer students was adopted for a purpose or goal that is rationally connected to the function being performed;
b. that it adopted the grades standard in good faith in the belief that it was necessary for the fulfilment of that purpose or goal; and
c. that the standard was reasonably necessary to accomplish its purpose, in the sense that the University could not accommodate persons with the characteristics of Mr. Longueépée without incurring undue hardship. ....
[68] The issue before the HRTO was whether the University accommodated Mr. Longueépée in its admissions process to the point of undue hardship. As McLachlin J. (as she then was) stated in Grismer: “Failure to accommodate may be established by evidence of arbitrariness in setting the standard, by an unreasonable refusal to provide individual assessment, or perhaps in some other way. The ultimate issue is whether the employer or service provider has shown that it provides accommodation to the point of undue hardship”: at para. 22. Indeed, in this case, the University asserted that it had accommodated Mr. Longueépée by providing an individualized assessment of his application by the Admissions Committee with a view to determining whether he was likely to succeed at university.
[69] The parties are also in agreement that the duty to accommodate can be said to have both procedural and substantive components. This distinction was briefly made by McLachlin J., at para. 66 of Meiorin, where she wrote, in the context of an employment standard, that “it may often be useful as a practical matter to consider separately, first, the procedure, if any, which is adopted to assess the issue of accommodation and, second, the substantive content, of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard” (emphasis in original).
[70] The procedural component typically involves the identification of the process or procedure to be adopted in providing accommodation to the person who would be subject to the discriminatory standard: see Lane v. ADGA Group Consultants Inc. (2008), 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Div. Ct.), at para. 106; Roosma v. Ford Motor Co. of Canada (2002), 2002 CanLII 15946 (ON SCDC), 164 O.A.C. 252 (Div. Ct), at para. 210, per Lax J. (dissenting, but not on this point). Because it requires an understanding of the person’s needs, and requires the person to provide information, procedural accommodation is sometimes referred to as the “accommodation dialogue”: see Liu v. Carleton University, 2015 HRTO 621, at para. 18. Once the institution has an understanding of the claimant’s specific needs, it must ascertain and seriously consider possible accommodations that could be used to address those needs, including the option of undertaking an individualized assessment in the case of a discriminatory standard: see Grismer, at para. 42; ADGA, at para 106. The substantive component of accommodation can refer to the steps taken to implement the accommodation to the point of undue hardship. It involves the consideration of what was actually done in the accommodation process to meet the individual’s needs: see Roosma, at para. 210.
[71] It is sometimes difficult, and not always helpful to the analysis, to separate out the procedural and substantive components of accommodation. What is identified as procedural accommodation can shade into substantive accommodation because it is the particular measure or method of accommodation identified through procedural accommodation that is to be assessed as substantive accommodation. In this case there was no indication that the University engaged in an “accommodation dialogue” with Mr. Longueépée or undertook any other measures to assess how his disabilities might impact his ability to meet the University’s grade standard. Instead, it decided that Mr. Longueépée’s application would be assessed by an Admissions Committee to determine his ability to succeed in university. This was considered by the Vice Chair to have fulfilled the procedural component of accommodation – a conclusion that is not challenged by the respondent in this court. How the Admissions Committee went about the assessment of Mr. Longueépée’s application was then considered as the substantive component of the University’s accommodation. In the end however the issue was whether the University reasonably accommodated Mr. Longueépée’s disabilities in its admissions process. (d) Other Exceptions
The Code sets out exceptions (ie. legal discrimination) on grounds of disability with respect:- to employment-related benefit plans (eg. health benefits, pensions, insurance) where such benefits otherwise comply with the requirements of the Employment Standards Act [see Ch.2, s.5(e)];
- services and contracting with respect to reasonable and bona fide insurance differentiations, distinctions, exclusion or preferences [see Ch.2, s.2(h) and 4(c)];
- employment by "religious, philanthropic, educational, fraternal or social institutions" where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination [see Ch.2, s.5(f)].
11. Record of Offences
(a) Overview
Discrimination on grounds of record of offences is only prohibited with respect to:- employment [s.5(1)]
- harassment in employment [s.5(2)]
Such discrimination is allowed with respect to:- services, goods and facilities [s.1]
- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
- contracts [s.3]
- vocational association [s.6]
"Record of offences" generally includes convictions for criminal offences (under the federal Criminal Code), federal regulatory offences (under the Contraventions Act) and provincial regulatory offences (under the Provincial Offences Act), but should not include by-law offences [as they are not "offence(s) in respect of any provincial enactment"] [Code s.10].
It also includes "an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked" [Code s.10(1)], meaning that a pardoned offence may still be counted as an offence when assessing discrimination on this ground.
(b) Exception
Discrimination on the grounds of record of offences is excepted (allowed) in employment where record of offences is a bona fide occupational requirement [see Ch.2, s.5(g)].
12. Receipt of Social Assistance
Discrimination on grounds of receipt of social assistance is only prohibited with respect to:- accomodation [s.2(1)]
- harassment in accomodation [s.2(2),7]
Such discrimination is allowed with respect to:- services, goods and facilities [s.1]
- contracts [s.3]
- employment [s.5(1)]
- harassment in employment [s.5(2)]
- vocational association [s.6]
Receipt of social assistance was held to be an analogous ground of discrimination under s.15 of the Charter in Falkiner v Ontario (Ont CA, 2002), paras.84-91.
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