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Adding new prohibited grounds in Ontario Human Rights Code

new prohibited groundsPrivate member’s Bill 164, Human Rights Code Amendment Act, 2017, introduced on October 4, 2017 in the Ontario Legislature would amend the Ontario Human Rights Code (Code) to include four new prohibited grounds of discrimination including, social condition, police records, genetic characteristics and immigration status.

Amendments to various provisions of the Act are made including amendments to provide 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 and membership in various types of organizations.

Moreover and with some explanations (not included in the Bill),

  • Genetic characteristics. 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 the results of a genetic test. According to the Canadian Coalition for Genetic Fairness, genetic discrimination is present when people are treated unfairly because of actual or perceived differences in their genetic information that may cause or increase the risk to develop a disorder or disease. One example being an insurance company might deny coverage of a woman who has a genetic difference that raises her odds of getting breast cancer. Employers may also be inclined to use genetic information to decide whether or not to hire, promote or terminate a worker.Even though it is scientifically understood that there are no guarantees with genetic testing, but rather probabilities, some Canadians have had negative experiences and have faced discrimination because of the results of a genetic test.
  • Discrimination because of immigration status. The inclusion of immigration status as a new prohibited ground would clarify the rights of people who are denied access to essential services like health care and education based on their immigration status. Immigration status discrimination occurs when an employer treats an individual differently based upon their citizenship or immigration status.
  • Police records. People who have come into contact with police, including victims of crime and vulnerable people seeking assistance, will have their personal information stored by police. The information found in a police record can be an obstacle to employment, volunteer opportunities, housing and receipt of services. People convicted of a criminal offence face unnecessary barriers to rehabilitation and reintegration back into the community. The proposed amendments would support recent legislative and regulatory changes to address the discriminatory impact of carding and police record checks.A police record check and a criminal record check are not entirely the same. Police record checks are much broader than criminal record checks since they also include information about non-criminal contact with police, such as transfers to a medical facility, or being a victim or witness. A police record check includes a criminal record check and a search of the local database maintained by the police service where the person lives. A local force may also contact other local police departments in Canada and the United States to obtain information from their databases. The database maintained by local police forces includes information related to any involvement or contact with the police including incident reports, charges, convictions, and information about the person as a complainant, victim, suspect or witness to an occurrence, including allegations where charges were not laid. Contacts related to the Ontario Mental Health Act are also stored, including voluntary and involuntary transfers to medical facilities.As per the Ontario Human Rights Commission, organizations should only request police record checks in exceptional circumstances. In addition, it is important for organizations to understand that records checks may have a discriminatory impact. If a records check is not a legitimate requirement, or if appropriate steps are not taken regarding the information requested, released or received, there may be grounds for a human rights complaint.
  • Social condition. Adding social condition to the Human Rights Code could positively impact those who are unemployed, homeless, poor and vulnerable. These groups face distinct social stigma and discrimination in all aspects of their lives. They are denied jobs, housing and other services because they don’t have a fixed address or stable employment. Homeless people are extremely vulnerable and even face restrictions when accessing public spaces like parks and libraries.According to the Centre for Equality Rights in Accommodation, the term “social condition” is preferable to the more restrictive related grounds, such as “source of income” and “receipt of public assistance, ” frequently seen in human rights laws.The definition of “social condition” contains an objective component. A person’s standing in society is often determined by his or her occupation, income or education level, or family background. It also has a subjective component, associated with the perceptions that are drawn from these various objective points of reference.A person who claims discrimination based on the prohibited ground of social condition need not prove that all of these factors influenced the decision to exclude. It will, however, be necessary to show that as a result of one or more of these factors, the individual can be regarded as part of a socially identifiable group and that it is in this context that the discrimination occurred.

If enacted, the Bill comes into force on the day it receives Royal Assent.

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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