Summarized below are the latest updates in the Human Rights Law.
At the end of April, Ontario’s Divisional Court considered the application of a university’s mandatory COVID-19 vaccination policy to students seeking exemptions based on religious objections.
The applicants in Michalski v. McMaster University, 2022 ONSC 2625, four students at McMaster University, requested exemptions from McMaster’s vaccination policy based on their belief the COVID-19 vaccine was contrary to their faith. McMaster denied these requests, finding their refusal to get vaccinated was based on personal beliefs about the vaccine that were unrelated to their religion, and subsequently unenrolled them from their programs until they complied with the policy.
The applicants raised several arguments in their challenge to McMaster’s decisions before the Divisional Court, including that McMaster had breached the Charter of Rights and Freedoms (the Charter), the Human Rights Code (the Code) and several other statutes. Those arguments were abandoned at the hearing, however, and the applicants proceeded only on the grounds that McMaster’s decisions should be overturned because they were unreasonable and procedurally unfair.
The Court declined to consider the reasonableness of McMaster’s decisions because it found it was not appropriate to do so. Although the applicants had technically withdrawn their Charter and Code claims, the Court recognized the applicants’ arguments that the decisions were unreasonable were based on their position they were discriminatory on the basis of their creed. The Human Rights Tribunal of Ontario (HRTO) was a more appropriate forum for such claims, which led the Court to decline to consider these arguments.
The Court also rejected the applicants’ arguments that the process McMaster used in reaching its decisions on the applicants’ exemptions requests was unfair. Based on the circumstances, the duty of fairness entitled the applicants in this instance to the opportunity to make representations and submit supporting documentation, to have their requests considered fairly by an impartial decision-maker and to be provided with adequate reasons for the decision. McMaster did provide these elements in their procedure and thus met its duty of fairness to the applicants.
Since both of the applicants’ arguments were unsuccessful, the Court dismissed the application for judicial review.
Weighing Charter and health considerations, Ontario Court finds pandemic restrictions on religious gatherings justified
Ontario v. Trinity Bible Chapel, 2022 ONSC 1344
Two Ontario churches, Trinity Bible Chapel and Church of God (Restoration) (the “Churches”), filed a motion to set aside three judicial orders directing compliance with capacity limits set by the province of Ontario on religious gatherings. The Churches argued these restrictions were unconstitutional, citing section 2(a) of the Charter which protects freedom of religion. The Churches argued that limiting the number of people who could attend their religious services interfered with their ability to practice their faith, which required regular in-person participation of all their members in communal prayer, song and ritual.
In response, Ontario admitted that limiting participation in religious gatherings violated section 2(a) of the Charter but argued these restrictions were justifiable under section 1, which states that all rights and freedoms set out in the Charter are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Ontario submitted that religious gatherings posed greater risk than other in-person activities such as shopping at essential retail stores, which were allowed to continue operating at greater capacity limits. Religious gatherings resulted in crowds of individuals arriving and departing at the same time and congregating for much longer periods of time than retail shoppers. Also, praying out loud or singing in groups posed particular risks of transmission that were not present in other activities.
Ontario argued the restrictions were necessary in the face of an unprecedented public health emergency and were put in place for only brief periods, when both community infection rates and burdens on the public health system were at their highest.
The Ontario Superior Court of Justice held the capacity restrictions on religious services were a violation of freedom of religion under section 2(a) of the Charter as they affected the Churches’ ability to engage in the activity that is the most essential to their identity: the ability for all congregants to worship together as one.
The Court rejected Ontario’s argument that the Churches could have met this need either through multiple in-person services or virtual gatherings, deferring to the Churches’ insistence that the practice of their faith required the gathering of all congregants in person at the same time and the proposed alternative methods could not meet that need.
The Court found, however, that these restrictions were justified under section 1 of the Charter. The purpose of the restrictions—to prevent illness and death—was a pressing and substantial objective that could justify the infringement.
There was also a clear causal connection between the restrictions and that legitimate objective, particularly given the unique transmission risks related to participation in religious activities such as gathering in groups for prolonged periods and the common practice of communal singing and chanting.
The Court found the restrictions fell within the range of reasonable alternatives based on the scientific evidence available to Ontario at the time they were enacted and they were carefully tailored and modified to infringe upon the freedom of religion as minimally as possible, limited both by duration and region. Finally, the Court found the infringement on religious freedoms posed by the restrictions was outweighed by positive impact the restrictions provided to society as a whole in aiming to reduce infection rates and prevent illness and death.
Supreme Court denies leave to appeal in United Nurses of Alberta v. AHS:
Legal Test for Family Status Discrimination Remains Unsettled in Ontario
On January 27, 2022, the Supreme Court of Canada denied an application for leave to appeal and left intact the Alberta Court of Appeal’s May 2021 decision in United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194. This case is an important one for all Canadian human rights jurisdictions, including Ontario, as it determined the legal requirements of the prima facie test for discrimination in Alberta under the Alberta Human Rights Act.
The Supreme Court of Canada’s decision leaves each provincial, territorial, and federal jurisdiction in Canada to decide their own appropriate legal tests for prima facie discrimination in family status cases. The Court of Appeal for Ontario (ONCA) has not yet weighed in this issue and the applicable legal test remains unsettled under Ontario’s Human Rights Code.
In order to establish a prima facie case of discrimination, the law is well-settled that a human rights complainant must show:
- They have a characteristic protected from discrimination;
- They experienced an adverse impact; and
- The protected characteristic was a factor in the adverse impact.
The question for the Alberta Court of Appeal was: was a human rights complainant required to prove “self-accommodation” in order to establish prima facie ital discrimination under the protected characteristic of family status?
The Court of Appeal’s answer to this question was ‘no.’ In Alberta, there is no fourth requirement of “self-accommodation:”
 We conclude that Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie ital discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. The Supreme Court of Canada has set the test for prima facie discrimination, without limitation, and without evidentiary embellishments. In Alberta, the debate must end: the test for prima facie ital discrimination ought to be exactly the same whether in the context of direct or adverse effects discrimination based on prohibited grounds, or in cases advanced under human rights legislation or under a collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary gradations of the same test, beget inequality.
This means that there is no unique prima test for family status cases that is different from any other protected characteristic under human rights legislation. United Nurses stands in contrast to Canada (Attorney General) v. Johnstone, 2014 FCA 110, which found that a human rights complainant had to meet four factors, and not just three, to establish a prima facie ital case of family status discrimination:
 I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The third factor in Johnstone, mentioned above, is often referred to as the complainant’s duty to “self-accommodate;” to make reasonable efforts to try and resolve their own childcare obligations and establish that there is no reasonable solution. The ONCA has not yet weighed in on the debate yet. In Partridge, 2014 ONCA 836, the ONCA, while recognizing the debate, did not squarely address the issue of the apparently competing tests in the Federal Court (Johnstone) and elsewhere. At the Human Rights Tribunal of Ontario (HRTO), the approach has been divided (see Espinoza, 2021 HRTO 68 at paragraph 95).
The most extensive HRTO analysis is in Misetich, 2016 HRTO 1229, which is consistent with the settled law on the duty to accommodate as a multi-party obligation that imposes duties on all parties to participate openly and cooperatively and consider all reasonable options and alternatives in addressing the competing demands of work and family care responsibilities.
In Ontario the reality may be—at least until the ONCA decides to resolve the issue—that whatever legal test is applied to matters of family status discrimination; the outcome would likely be the same in most cases on the facts of any given case. There is a fair amount of analytical similarity between considering “contextual considerations” (Misetich) and any efforts of “self-accommodation” (Johnstone). That was the outcome in Partridge at paragraph 20. No matter which prima facie test was applied (Johnstone or Misetich), the result would have been the same (see also Simpson, 2019 HRTO 10, at paragraph 31 and Peternel, 2018 ONSC 3508 at paragraph 74).
"...this appeal will have an influence on how human rights tribunals interpret their jurisdiction. The majority sharply rebuked the Tribunal for a line of decisions that the majority saw as straying beyond the Tribunal’s jurisdiction over discrimination into what should properly be claims for defamation. This rebuke could have significant repercussions for future claims over speech in the growing and nebulous world of internet bullying and offensive remarks in virtual platforms."
Supreme Court of Canada finds that labour arbitrators have exclusive jurisdiction over all collective bargaining disputes, including human rights disputes, in Manitoba. What about Ontario?
"Last week, the Supreme Court of Canada issued its decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 423. Since its release, some commentary on this decision has claimed that the jurisdiction of human rights tribunals is ousted in favour of labour arbitrators with respect to unionized employees.
While this may be the case for unionized employees in Manitoba, a careful review of this decision indicates this is likely not the case in other jurisdictions, including Ontario."
Federal Court upholds CHRT rulings for First Nations children on forcible removals, Jordan’s Principle
On September 29, 2021, the Federal Court dismissed the Government of Canada’s appeals and upheld two 2019 rulings by the Canadian Human Rights Tribunal (CHRT) relating to the treatment of Indigenous children.
The first CHRT ruling under consideration by the Court awarded $40,000 for incidents involving the forceful removal of First Nation children from their homes by the federal government after 2006.
An estimated 54,000 children and their parents would be eligible for these awards. This compensation came out of the CHRT’s decision ruling that Indigenous children had been "wilfully" and "recklessly" discriminated against by the federal government, which underfunded child and family services for Indigenous communities.
The Court looked also looked at the CHRT’s second ruling that healthcare for both status and non-status First Nation children was a federal responsibility when there was a jurisdictional dispute between different levels of government.
This CHRT decision provided additional detail to Jordan’s Principle is a child-first, needs-based standard for medical care for Indigenous children provided by the federal government. This principle was established in 2016 by the CHRT after the 2005 death of Jordan River Anderson after a dispute about whether his care should be financially covered provincially or federally.
After hearing the arguments for both CHRT decisions, the Court found that the federal government had failed to show that the CHRT’s decisions were unreasonable.
You can read the full Federal Court decision on Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada, 2021 FC 969 here.
The Human Rights Legal Support Centre is redesigning its website and wants your help to guide this process.
We’re sharing our online survey with you, our stakeholders, to identify how the HRLSC’s website is used, its most important features for clients and areas we can improve or change our online experience.
How you can get involved: Intent (our external consultant) and the HRLSC are reaching out to stakeholders with a 5 – 10-minute online survey.
Recently a teenage girl represented by the Human Rights Legal Support Centre reached a settlement with a well-known roller-skating business in the Greater Toronto Area. The settlement was reached after the teen was prevented from skating on their rink in her wheelchair.
The respondent, Scooter’s Roller Palace Inc. agreed to change its policies to comply with the Ontario Human Rights Code’s (the Code) accessibility requirements. The settlement agreement requires that the respondent change the rink’s safety policies to better accommodate customers of varying abilities, publicly share the availability of accommodations for people with disabilities and post Code cards throughout the business to signal the respondent’s commitment to Code compliance.
The event leading to this settlement was a youth skate event at Scooter’s in August of 2017. The applicant’s mother (referred to as M.B. in the Human Rights Tribunal of Ontario’s decision on this case) had planned the afternoon outing for her daughter (S.B.) and two of S.B.’s friends. However, when M.B. called ahead to Scooter’s, she was told on the phone by staff that while the building was accessible, S.B. would not be allowed on the rink due to safety issues.
“Opportunities for my daughter to do things like skating to engage with her friends are so valuable,” says M.B. “It can be difficult for teenagers with multiple disabilities to develop and maintain friendships; roller-skating was a chance for my daughter to easily participate with her friends.”
Following this disagreement, M.B. filed a human rights application on behalf of S.B. against Scooter’s Roller Palace. The day before the scheduled hearing, Scooter’s Roller Palace was able to reach a settlement with the applicant.
This settlement agreement includes:
- An individual accommodation plan for S.B. by the respondent;
- The respondent’s recognition that its existing policy was not Code-compliant and their agreement to change some of its business practices and policies to better accommodate customers of varying abilities;
- A plan for enhanced human rights training for management, current and future employees of the respondent, along with a new accessibility policy that follows the requirements of the Code; and
- Cards posted in a number of locations at the respondent’s business, noting the business’s commitment to adhere to the Code.
CBC Article – Justice Mahmud Jamal is first person of colour nominated to the Supreme Court of Canada
"The fully bilingual Justice Jamal was appointed to the Court of Appeal for Ontario in 2019 and appeared in 35 appeals before the Supreme Court of Canada on civil, constitutional, criminal and regulatory issues.
The first person of colour to be nominated to Canada's top court, he also taught constitutional law at McGill University and administrative law at Osgoode Hall Law School.
Jamal will replace Justice Rosalie Abella, currently the longest-serving Supreme Court justice, who will retire from the court on July 1, her 75th birthday."
Effective June 3, 2021, a new section 29 has been added to the Statutory Powers Procedure Act making it an offence to record or publish a tribunal hearing unless an exception applies. Exceptions include unobtrusive recordings made by a party, representative or member of the media if authorized by the tribunal. The amendment was included in the Ontario government’s Supporting Recovery and Competitiveness Act, 2021.
Opinion in Globe and Mail: Canada’s Supreme Court already requires diversity. Why not racial diversity, too?
This summer, Justin Trudeau must do something that no prime minister has ever done before in the history of our country – not because of any law or rule that requires it, but because the time has simply come to do so. He must appoint a non-white Canadian to replace retiring Justice Rosalie Abella as the next judge on the Supreme Court of Canada.
A recent case from the Supreme Court of Canada (SCC), Fraser v. Canada (Attorney General), 2020 SCC 28, addressed issues of adverse effect discrimination and gender equality in the context of a government job-sharing program under a statutory pension plan.
Toronto Star Article: This Black man was stopped by police for ‘jaywalking’. A Human Rights Commission has called it racist — and awarded him $15,000
"HALIFAX—A Black man crossed a street in downtown Halifax in January 2017 behind four white co-workers, all heading for the coffee shop on the other side.
Of the five, only he was singled out by two Halifax policemen for a lecture on the dangers and illegality of jaywalking. He asked them if he was under arrest. They said no. He went and got his coffee.
Several moments later, back in his office, a supervisor took him into a private room and told him the police were waiting for him in the lobby. When he went down to meet them, the same two policemen wrote him a $410 ticket for crossing the street illegally. They said it was all normal police procedure. The Black man said it happened because he is Black.
On Tuesday, Nova Scotia’s Human Rights Commission agreed with Gyasi Symonds."
In July 2013, Mr. Roch Longueépée applied for admission to the University of Waterloo’s Faculty of Arts program. He had attended Dalhousie University several years before where he achieved grades that were well below Waterloo’s minimum admission requirements for transfer students.
Waterloo accepted that Mr. Longueépée had undiagnosed and unaccommodated disabilities when he attended Dalhousie. An Admissions Committee considered his application, consisting of academic transcripts, information about his volunteer work, and reference letters. The Admissions Committee denied admission and concluded that Mr. Longueépée’s application did not demonstrate the ability to succeed at Waterloo.
In Sharma v. Toronto (City), 2020 HRTO 949 (CanLII), the Human Rights Tribunal of Ontario (HRTO) considered an application challenging the new City of Toronto’s By-Law 541-2020. The By-Law, in effect since July 7, 2020, requires businesses and other establishments that are open to the public to adopt a policy to ensure that no member of the public is permitted entry to, or otherwise remains within, any enclosed space unless they are wearing a mask or face covering. The City enacted the temporary By-law to help stop the spread of COVID-19.
On November 20, 2020, Tribunals Ontario, which includes the Human Rights Tribunal of Ontario (HRTO), provided new direction setting out the format of hearings and how a party can request a different hearing format.
Ontario government lifts the suspension of limitation and procedural time periods and both resume running on September 14, 2020
The province suspended the running of limitation and time periods on March 20, 2020, retroactive to March 16, 2020 under the Emergency Management and Civil Protection Act (EMCPA) which provided that any provision of any statute, regulation, rule, by-law or order of the province establishing either 1) any limitation period or 2) any period of time within which any step must be taken in any current or intended proceeding in Ontario was suspended for the duration of the declared emergency under the EMCPA. The latter – procedural time periods - was subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding.
New amendments to the Judicial Review Procedure Act (JRPA), including new 30-day deadline to file application
On July 8, 2020 Bill 161 – the Stronger and Smarter Justice Act, 2020 (SASJA, 2020) – received Royal Assent from the Ontario legislature. The SASJA, 2020 amends the JRPA to provide the courts with a generally applicable power to refuse to grant any relief on a judicial review application and, most importantly, requires judicial review applications to be brought within 30 days after the date the decision, or matter for which review is sought, was rendered, unless another Act provides otherwise. The Human Rights Code (Code) does not provide any time period for commencing an application for judicial review and this means that the new 30-day time period applies to applications for judicial review under section 45.8 of the Code.
The National Indigenous Peoples History month is traditionally a time when Indigenous and non-Indigenous communities come together across Turtle Island to celebrate Indigenous culture and achievements as well as learn about Indigenous social structures, languages and spirituality to name only a few aspects of complex Indigenous social systems.
June 12, 2020
“It is not possible to be in favour of justice for some people and not be in favour of justice for all people.” – Martin Luther King
The events of the past few weeks have pushed the issue of Anti-Black racism back to the forefront of society. We mourn the death of Regis Korchinski-Paquet, we’re outraged by the death of George Floyd in the custody of police, and we’re angered by the antics of Amy Cooper against Christian Cooper in Central Park. Sadly, countless other incidents of harassment and violence against Black people, as they go about their daily lives, can be added to this list. It’s time for change.
With the COVID-19 outbreak, organizations and communities across Ontario have to adapt quickly to a challenging situation. The HRLSC has taken precautionary measures in response to the ongoing developments.
As an essential service, the HRLSC continues to serve Ontarians to protect human rights and to support every person’s right to live and work with dignity and respect. Our offices are closed to visits, but our staff is working remotely, and our intake lines remain open.
The Small Claims Court is a branch of the Superior Court of Justice. It is a very busy court and handles nearly half of all civil claims in Ontario. The monetary jurisdiction of Ontario's Small Claims Court increased effective January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000. The claims limit of $25,000 has been in place since 2010 when it was increased from the previous $10,000. Claims over $35,000 would need to be brought in the Superior Court of Justice.
The Human Rights Tribunal (HRTO) is subject to judicial review by the courts under the Human Rights Code. This means that the courts have the final say about whether an HRTO decision complies with the law. An important part of judicial review is what is called the standard of review, which is a standard the court applies to the HRTO decision. There are two standards of review – correctness and reasonableness. Which one applies to the HRTO? The answer is – it depends on the nature of the legal question being reviewed by the court but, in almost every case, the standard applied to the HRTO will be reasonableness.
HRTO releases first decision interpreting the Tribunal Adjudicative Records Act, 2019: Public access to HRTO records is the default position under the open court principle
In June 2019, the Tribunal Adjudicative Records Act, 2019 (“TARA, 2019”) came into force. This was an important legislative development for those seeking access to justice in Ontario’s administrative tribunal sector, including applicants to the Human Rights Tribunal of Ontario (HRTO).