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New Ontario Human Rights Commission policy on competing human rights

May 3, 2012

On April 26, 2012, the Ontario Human Rights Commission (OHRC) released a new Policy on Competing Human Rights. This policy is intended to assist individuals and organizations manage situations of competing rights.

In a press release, the OHRC states, “Conflicts sometimes arise when an individual or group tries to enjoy or exercise a legally-protected right that conflicts with another’s human right. For example, how do you resolve a situation where a marriage commissioner refuses to perform a marriage ceremony for a same-sex couple because it is contrary to her religious beliefs? Or where a woman wants to testify at a criminal trial wearing a niqab but the accused argues that this would interfere with his Charter right to make a full defence? Or, where a professor’s guide dog could cause a student to have a severe allergic reaction?”

The OHRC states that the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code require that we give all rights equal consideration, on a case-by-case basis. No right is absolute and no one right is more important than another, and rights have limits in some situations where they substantially interfere with the rights of others.

The policy sets out a three-stage process to analyze and reconcile competing rights:

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

To access the full policy, visit: www.ohrc.on.ca.

See OHRC press release, “New process launched to help reconcile competing human rights,” April 16, 2012, at www.ohrc.on.ca.

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