How the Pandemic has Brought These Issues to Light
During our brush with a global pandemic, we heard from various groups and their human rights. Many complain that public health restrictions have been an infringement on their ‘human rights’. Many of these groups have since filed cases in court to challenge these restrictions, although it is not clear yet that any court has ruled in their favour.
Some litigants in these cases conflate ‘human rights’ with Charter rights, the latter of which is constitutionally protected by law. The Charter of Rights and Freedoms are restricted only to state-controlled entities, such as governments, public health departments and the police. Further, each case is assessed by the Courts to determine if a law, an action, a public protection order (such as a lockdown or masking order) or process, infringes one’s rights.
Only time will tell if these public health orders hold muster under the law, although many legal scholars believe that section 1 of the Charter may allow these orders, given they are temporary, reasonable and in the public interest.
What are Human Rights Then?
Human rights are generally protections one would find in federal or provincial human rights codes. Both public and private entities can be targeted under human rights law. For example, in Ontario, human rights law covers employers, landlords, service providers, facilities, unions, professional associations, or contractors.
The government can be considered a provider of services, an employer to some, contractor, or a facility, depending on the circumstances. Government laws, policies and regulations can also be challenged under the Human Rights Code if it is believed to be discriminatory against any protected class in Ontario.
Classes of people who are protected by Ontario’s Human Rights Code are as follows: race, colour, or ethnic background; citizenship or country of origin; religion or creed; age, send, sexual orientation, gender identity, gender expression, physical or mental disability (including addiction); as well as marital status, family status or receipt of public assistance (with respect to housing).
How Did Human Rights Relate During the Pandemic?
During the pandemic, having COVID-19 or caring for somebody who is infected with COVID-19, or who could suffer from severe impacts if infected was an issue. This involved employers and employees, landlords and tenants and even, public services in general. All parties providing services to the public were required to close or restrict their services, or if deemed essential, to provide services in a safe, sanitized and protected environment.
Public health orders, such as mask mandates needed to exempt the limited number of people who may not be able to wear a mask. This included those who could not put on or take off a mask, or those for whom a medical condition would be aggravated from wearing one. In researching this issue, this issue does exist, but the number of people impacted would not be large.
Disabilities possibly exempting mask use would include Chronic Obstructive Pulmonary Disorder (COPD), severe asthma, certain types of autism where one is very sensitive to touch and texture, post-traumatic stress disorder or claustrophobia, cerebral palsy to the extent one is unable to put on or remove a mask, or somebody with a disability where they use their mouth or tongue to control their wheelchair or operate a tablet.
This does not mean you are required to allow them into your premises or business. You can instead provide your products or services in other ways, such as allowing them to wear alternative protections such as a face shield. Or serve them online or via appointment over Zoom. Or offer take-out, curbside or delivery.
How About Non-Pandemic Related Issues?
All other human rights issues dealing with employers, landlords, governments, municipalities, service providers, facilities, unions, associations among others, are still intact.
In fact, more than fifty percent of complaints made to the Human Rights Tribunal of Ontario, are about employment and disability. Employment related claims can include requirements in job ads, in hiring, benefits and compensation, training and promotion opportunities, as well as in termination. Some layoffs during the pandemic that impacted people with disabilities (or other protected grounds) can be deemed discriminatory or even constructive termination.
Accommodation of employees with disabilities in a workplace must be carried out to the point of undue hardship. A very large employer, such as government or a large company, would have to accommodate to a higher standard due to the likelihood of having more resources. Their point of undue hardship would be much higher up than for a firm with only one employee. However, even with one employee, you are still required to accommodate that employee to the point of undue hardship.
What Are Issues That Are Not Human Rights Related?
Many people phone our office to see if they may have a human rights claim against another party. In many cases, people mistake other issues for “human rights” issues. For example, some people tried to argue that they are discriminated against for being a tobacco smoker. This is usually when their landlord changes their policies for a building to become a non-smoking building.
The smoker may be successful in a claim against eviction of their landlord tries to evict them for smoking, and has failed to accommodate them. Landlords can set reasonable rules for smokers in these buildings, but this is not about human rights, but about the terms of a former tenant’s lease. This can be brought to the Landlord and Tenant Board.
Other issues brought to my office that are non-human rights related are political views. A landlord telling a tenant they cannot display a political sign in their window. This again is Landlord and Tenant Board. Being overlooked for a promotion or being demoted in favour of a friend or relative of an employer is not human rights. This is employment law. A change in one’s job description that requires you to work at home can be deemed constructive dismissal, but is not human rights.
Being kicked out of a mall or facility for bringing in an animal that is not a guide dog or service animal may seem to be human rights. Service animals other than guide dogs are defined under the Accessibility for Ontarians with Disabilities Act). If your animal falls under AODA, you may have a case. If not, your dispute is resolved elsewhere.
How Can Invictus Legal LLP Help Me?
Invictus Legal LLP works in a broad range of legal areas within the paralegal jurisdiction. We can help you identify if you do have a case. Even if you cannot use the HRTO, there may be another avenue to resolve your dispute. We can help you find that avenue and assist you in getting heard.
Future articles in this category will detail the complexity of human rights and employment, accommodation for persons with disabilities, evolving areas of human rights law and how human rights intersects with policy. We will also discuss key differences between the Charter and the Human Rights Code.