Smokers and non smokers living side by side; staff with guide dogs and others who are allergic to dogs working in the same office; religious based education and gay straight alliances – these are the kinds of clashes that the new “Policy on Competing Human Rights” is intended to address.

On April 26, 2012, York University played host to the launch of an important new policy from the Ontario Human Rights Commission – the “Policy on Competing Human Rights.”  Educators, religious organisations, people from the disability community, people from GLTBQ community, and yes, lawyers practising in the area of human rights, gathered to celebrate this important development in human rights law in Ontario.

We have been consulted more than once by housing providers who are struggling with a conflict between a smoker and a non‑smoker who live near one another.  The smoker may be considered an addict and therefore someone with a disability protected under the Human Rights Code; another tenant or housing co‑op member who lives nearby may have a hypersensitivity to smoke also a disability under the Human Rights Code.  Until now, the housing provider has struggled with how to meet its duty to accommodate both disabilities under the Code.

This is just example of a situation where two protected rights compete with one another.

This new policy is intended to guide housing providers, employers, educators and others responsible under the Human Rights Code through the steps in the box below to resolve a conflict.  That conflict may be between two Code‑related rights or between a Code‑related right and a right that comes from another source, for example, the Charter of Rights and Freedoms or the Education Act.  Remember, it’s not a competing rights situation if the impact is only on the organisation – that is, if the employer or housing provider’s operational interests are affected.

Process for addressing competing human rights situations

Stage One: Recognizing competing rights claims

Step 1: What are the claims about?

Step 2: Do claims connect to legitimate rights?

1. Do claims involve individuals or groups rather than operational interests?
2. Do claims connect to human rights, other legal entitlements or bona fide reasonable interests?
3. Do claims fall within the scope of the right when defined in context?

Step 3: Do claims amount to more than minimal interference with rights?

Stage Two: Reconciling competing rights claims

Step 4: Is there a solution that allows enjoyment of each right?

Step 5: If not, is there a “next best” solution?

Stage Three: Making decisions

• Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for OHRC policy
• At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario

We encourage you to read the policy and see how it might apply to your organisation.  The Human Rights Commission hopes that by following the steps set out above early you can solve a small problem without the people involved filing human rights applications or having minor disputes become major crises.  But while following the steps may not prevent someone from filing an application at the Human Rights Tribunal, showing that you followed the process set out in the policy will surely help you defend against an application.  And of course, at any time we’d be happy to provide you with our best advice on how to apply the policy anytime.

We will keep you informed as we learn how the policy is being applied by the Human Rights Tribunal.  To review the policy, please consult the Ontario Human Rights Commission’s website at: http://www.ohrc.on.ca/en/policy-competing-human-rights

Filed in: Human Rights

Tags: Duty to consult and accommodate, Housing, Human Rights Tribunal, Policy on Competing Human Rights