Disclaimer: This is general information only. It is not legal advice about your own situation. This information is reliable as of the date of publication (March 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change.
Anti-Indigenous racism is a reality in many towns, cities and is experienced by First Nations communities across Ontario. Many Indigenous individuals are faced with discriminatory treatment on the job, in housing, or while accessing public services. In those circumstances, there is a human right to be free from discrimination.
The Human Rights Tribunal of Ontario (HRTO) is a provincial administrative tribunal that resolves claims of discrimination and harassment brought under the Ontario Human Rights Code (the provincial law that prohibits discrimination). The HRTO has the power to hold employers, landlords, and service providers accountable and may compensate people for the injury caused to them from their discriminatory experience. The HRTO can also award broader systemic remedies such as human rights training or the development of a human rights policy.
The HRTO application process (or complaint form) is accessible and can be filed online. There is a one (1) year limitation period from the date of the discrimination to file the application. (Visit https://tribunalsontario.ca/hrto/forms-filing/ to find the Form 1 to start an application).
The Human Rights Legal Support Centre (“HRLSC”) provides free legal advice to individuals bringing claims to the HRTO. HRLSC lawyers and legal workers may provide guidance in filing an application or representation at a mediation or a hearing. The HRLSC offers translation services in Oji-Cree, Anishinaabemowin, Mohawk, and Cree and Indigenous clients are given the option to be represented by an Indigenous lawyer or legal worker.
The benefit of having an Indigenous lawyer or legal worker is they can address their clients matter through an Indigenous lens and will have a greater understanding of their client’s lived experiences. Also, depending on the nature of the respondent to the HRTO application (the party being filed against), the lawyer or legal worker could advocate to avoid an adversarial hearing and incorporate elements of restorative justice to arrive at a creative solution at the mediation. An Indigenous lawyer or legal worker may also request the option to smudge before any HRTO proceeding.
Below are some examples of incidences or events which may amount to a provable case of discrimination at the HRTO:
- during a job interview, the interviewer asks the interviewee if they drink or have kids;
- hospital staff presumes the patient is intoxicated instead of suffering a medical condition;
- a salesclerk insists status cards are not accepted;
- an optometrist refuses to provide service and refers the client to the Indigenous optometrist who does direct billing through non-insured health benefits for First Nations and Inuit;
- the school administrator fails to investigation allegations of bullying;
- an inmate requests access to spiritual or cultural resources and is denied; or
- a landlord refuses to rent an apartment, based on racial stereotypes.
Other forms of discrimination may manifest as racial profiling and microaggressions. Incidents such as being followed in stores, being wrongfully accused of stealing, or being served after others can be hard to prove, but they can be arguable if they are based on discriminatory stereotypes. Having video or audio recordings can assist to hold wrongdoers accountable.
Indigenous individuals may have an added layer in taking steps to protect their right to be free of discrimination. While many discrimination complaints are within the jurisdiction of the HRTO, there are some situations where a complaint may need to be brought to the Canadian Human Rights Commission (“CHRC”). HRLSC lawyers or legal workers can assist Indigenous applicants to ensure they are starting their application in the right jurisdiction.
Below is some basic information about jurisdictional matters to help sort out some of the confusion around jurisdiction.
Services such as stores, restaurants, hospitals, health services, schools, municipal and provincial government services, public transit, and jails typically fall to provincial jurisdiction. For example, native child welfare organisations, businesses on-reserves, First Nation ambulance service on reserve, and First Nation Police Services are all under provincial jurisdiction.
It is well known that the federal government has jurisdiction over “Indians, and Lands reserved for Indians”. While it might feel counterintuitive to file a human rights complaint relating to a service provided by a First Nation or Indigenous organization provincially, this is in fact the proper forum.
There are of course some exceptions. For example, in some cases on-reserve nursing station or schools, have been found to be within federal jurisdiction. In these cases, it will be highly fact-specific and the HRLSC may provide legal advice on jurisdiction to ensure an individual’s rights are protected.
First Nation Band Council Employer
When the complainant’s employer is a First Nation, the individual must look at what exactly they do for the band office. If the job description relates to status or rights, the complaint would be under federal jurisdiction. If for example, the employee was running the Ontario Works Program, that employee could file a complaint provincially.
Political Territorial Organization (PTO) Employer
Generally, PTOs that advocate and provide services to a collective of First Nations has gone federal, but there is conflicting case law on whether these employers are federally or provincially regulated.
While on-reserve housing, allocation of on-reserve housing and residency on reserve fall under federal jurisdiction, homes and apartments off reserve, rental housing, social housing, co-ops, hotels, and university residencies are under provincial jurisdiction.
The HRLSC is an organization that is dedicated to assisting Indigenous people navigate the provincial human rights system and to use the Code to combat anti-Indigenous racism and marginalization. The Code also protects against any reprisals (retaliation or “payback”) and it can be an effective tool for creating change and holding human rights violators accountable.
For more information, please contact a member of the Indigenous Services Outreach Committee (ISOC) at the HRLSC’s intake phone line at 416-597-4900, TTY 416-597-4903, and TTY Toll-Free 1-866-612-8627.