McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 29
1983
No I
Liberty and Equality: A Tale of Two Codes
Ian Hunter*
The new Ontario Human Rights Code, 1981
marks a significant change in legislative phi-
losophy; a comparison of the new and old
Codes reveals several important additions to
the authority of the Commission responsible
for enforcement of the legislation, and sug-
gests that a decision to eliminate inequality
through a program of “affirmative action” is
problematic at best. A review of the provi-
sions of the new Code, and of the case law
under the former Code and similar legislation
in other jurisdictions, reveals a disturbing
tendency to sacrifice freedom to equality in
the pursuit of “human rights”. A willinghess
to permit this sacrifice may be a characteristic
of liberal democracy, and incident to the sec-
ularization of contemporary Canadian soci-
ety. The author warns that we must reflect
carefully on the cost of any effort to legislate
against discrimination.
Une comparaison entre le nouveau Human
Rights Code, 1981 de l’Ontario et l’ancien
rev~le que les pouvoirs de la Commission
responsable de son application ont W consi-
dirablement Olargis. Cette expansion traduit
un changement majeur de politique lgisla-
five et sugg~re que la dicision d’enrayer les
injustices par un programme d’action posi-
tive s’av~re des plus probl~matiques. Un exa-
men des dispositions du nouveau Code, de
l’ancienne jurisprudence et d’une legislation
similaire en vigueur dans d’autres juridic-
tions fait ressortir la tendance d6routante
consistant a sacrifier une libert6 essentielle au
profit d’une 6galit6 toute aussi n6cessaire, ceci
dans le but toujours ultime de la reconnais-
sance des droits de l’homme. La volont6 de
permettre un tel sacrifice pourrait bien etre
caract~ristique d’une democratie lib6rale et
incidente a Ia s~cularisation de la soci~t6 ca-
nadienne. L’auteur nous recommande de re-
fiMchir s~rieusement sur le prix de tels efforts
l6gislatifs.
*Of the Faculty of Law, University of Western Ontario.
Mc GILL LAW JOURNAL
[Vol. 29
Synopsis
Introduction
I.
H.
Equality: An Elusive Pursuit
The Ontario Human Rights Code, 1981
A. Announced Intention to Discriminate (Section 12)
B. Accommodation
C. Services and Facilities
D. Employment
MI. Significant Additions
A. Contracts
B. Harassment
C. Constructive Discrimination
D. Handicap
Conclusion
Introduction
The first consolidated’ Human Rights Code in Canada was proclaimed
in force in Ontario on June 15, 1962.2 In the two decades from 1962 to
1982, the Code was amended on seven occasions.3 These amendments grad-
ually extended the scope of the legislation without altering the underlying
legislative philosophy or the basic enforcement model. That model forbade
specified discriminatory acts committed on the basis of specified prohibited
grounds. 4
‘Consolidating and extending such piecemeal anti-discrimination legislation as: The Fair
Employment Practices Act, 1951, S.O. 1951, c. 24; The Fair Accommodation Practices Act,
1954, S.O. 1954, c. 28; The Racial Discrimination Act, 1944, S.O. 1944, c. 51; The Ontario
Anti-Discrimination Commission Act, 1958, S.O. 1958, c. 70.
2The Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93 [hereinafter the original
Code], as consolidated by R.S.O. 1970, c. 318 and R.S.O. 1980, c. 340 [hereinafter the former
Code]. This specific date was chosen because it was the seven-hundred and forty-seventh
anniversary of the Magna Carta.
63; S.O. 1972, c. 119; S.O. 1974, c. 73.
3S.O. 1965, c. 85; S.O. 1967, c. 66; S.O. 1968, c. 85; S.O. 1968-69, c. 83; S.O. 1971, c. 50, s.
4The original legislation prohibited discrimination with respect to accommodation, services
and facilities (s. 2), housing (s. 3), employment (s. 4), on the grounds of race, creed, colour,
nationality, ancestry or place of origin, and with respect to rates of pay on the grounds of sex
(s. 5).
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LIBERTY AND EQUALITY
On June 15, 1982, twenty years exactly from the date of proclamation
of the original Code, a new Ontario Human Rights Code, 19815 was pro-
claimed in force. The new Code embodies a different legislative philosophy
than its predecessor, and this necessitated changes in the substantive and
enforcement provisions. The first part of this article considers the nature
and significance of the change in legislative philosophy. The second part
compares the breadth of coverage under the old and new Codes and Part
III critically examines several of the more important additions to the new
Code.
I.
Equality: An Elusive Pursuit
Through the two decades from 1962 to 1982, the legislative approach
to equality in Ontario was based on a philosophy of gradualism. As new
social needs became apparent, and as different minorities began to seek
statutory protection through human rights legislation, both the prohibited
grounds and the social areas in which discrimination was forbidden were
gradually extended. 6
The new Code is, in many respects, a significant departure from past
practice. 7 It is a continuation of the gradualist philosophy in that new grounds
of discrimination are added to the Code and the social areas in which dis-
crimination is prohibited are again extended. 8 But it is a departure from
past practice in that the Code no longer speaks the language of statutory
prohibitions, or “Thou shalt nots”. Instead the new statute is phrased throughout
in affirmative declarations of rights: specifically, that everyone in Ontario
has “a right to equal treatment”. The transition is similar to that which
occurs between the Old and New Testaments, from a code of negative
commandments, difficult to live by but comprehensible, to an all-embracing
ethic of equality –
on which now hang all the laws and the penalties.
5S.O. 1981, c. 53 [hereinafter the new Code].
6The first ten years of this evolution are traced in detail in Hunter, The Development of the
Ontario Human Rights Code: A Decade in Retrospect (1972) 22 U.T.L.J. 237.
7The extent of the departure appears to have been better understood by members of the
Opposition than by the Minister responsible for the Code. Introducing the second reading of
Bill 7, the Honourable Robert Elgie, Labour Minister, called it “a landmark in the evolution
of human rights reform”, Ont. Leg. Assembly Deb. (15 May 1981) 741. By contrast, Opposition
critic R.F. Johnston began his speech by proclaiming: “[t]his is not just a revision but a new
act”, ibid., 746.
SThe prohibited grounds of discrimination added by the new Code are citizenship, family
status, handicap, receipt of public assistance and record of offences. Equality in contracts and
protection against harassment are new social areas in which discrimination is prohibited.
REVUE DE DROIT DE McGILL
[Vol. 29
A review of the Canadian case law on human rights (and it is substantial
and growing quickly, with more than 200 board of inquiry and court de-
cisions in Ontario alone) demonstrates that there is neither a universally-
accepted notion of equality nor a single approved definition of discrimi-
nation. 9 One can identify, however, three approaches to equality which differ
not only in definition but in the criteria utilized to judge when equality has
been attained. The three approaches may be characterized as: (1) equality
of opportunity; (2) equality of treatment; and (3) equality of result.
Equality of opportunity occurs when individuals who wish to compete
are given the same opportunity to do so. This was the primary emphasis
of Ontario’s human rights legislation from 1962 to 1982. These Codes de-
fined as illegal any reliance on factors which were considered prejudicial to
a determination of one individual’s ability compared to another’s. The orig-
inal prohibited grounds of discrimination (except for “creed”) were factors
over which the individual had no control. It was considered unfair, there-
fore, to place an individual at a competitive disadvantage because of some
innate factor, such as race, colour or sex. So long as individuals are given
the same opportunity to compete for society’s scarce resources and benefits
(jobs, housing, etc.) without discrimination because of prejudice-based ex-
clusion, then this view of equality is satisfied. In this model, the role of the
State is roughly that of a race starter who lines everyone up at the gate and
makes sure that no one jumps the gun.
A second view, based on equality of treatment, starts from a recognition
that there is little point in worrying about a fair start if some runners are
lame or some lanes are strewn with shards of glass. Instead, it is argued,
the State must superintend not only opportunity but treatment, extending
its reach and monitoring equality not just at the opportunity-selection stage
but in the daily life of its citizens as well. In the employment context, for
example, equal opportunity requires that all applicants receive fair and un-
biased consideration in hiring; equal treatment would require that all em-
ployees enjoy equal terms, conditions and benefits, including such intangible
benefits as a congenial working atmosphere.’ 0 This would appear to be the
animating philosophy of the new Code, which speaks throughout of a right
to “equal treatment”.
9The search for a comprehensive definition of discrimination is discussed in Hunter, Human
Rights Legislation in Canada: Its Origin, Development and Interpretation (1977) 15 U.W.O.L.
Rev. 21, 30-4. See also Keene, Toward a Definition of Discrimination – Exemptions Under
the New Ontario Human Rights Code (1982) 3 Advocates’ Q. 265.
‘0For example, one where racially derogatory language is not used. Cf Simms v. Ford Motor
Co. of Canada, Report of a Board of Inquiry under The Ontario Human Rights Code (4 June
1970).
1983]
LIBERTY AND EQUALITY
The third view, which looks to equality of result, starts from the prop-
osition that all talk of equality is humbug if, in the end, nothing changes.
To continue the analogy, it is who gets the medals, not the race itself, that
matters. If, at the end of the day, those who are disadvantaged by race,
colour or sex compete no more successfully after human rights legislation
than they did before, then of what use is it? Those who espouse this view
of equality, commonly identified with such words as “quotas”, “affirmative
action” and “reverse discrimination”, judge the success of a human rights
initiative by what it actually achieves. If empirical analysis shows no change
in the distribution ofjobs or income or any of the other perquisites of power
and influence in society, then huifian rights legislation has achieved nothing.
The new Code at least tacitly accepts this view of equality in section 13,
which allows suspension of the “right to equal treatment” if the purpose to
be served is “to relieve hardship or economic disadvantage”. 11
The spread of the idea that an appropriate response to inequality is not
to prohibit but to encourage the drawing of distinctions based upon one’s
race, colour or sex, has been rapid. Decisions which were once required to
be colour-blind may now, by “affirmative action”, be required to prefer one
applicant to another because of that applicant’s race, colour, or sex. The
alchemy which transmutes an illegal act of bigotry into a socially-encouraged
exercise in affirmative action is simply the decision of an omniscient com-
mission that such discrimination is “designed to relieve hardship”. The
hardship to the passed-over candidate apparently does not count. Thus,
within the same Code, equality is defined in mutually contradictory terms.
One wonders whether, as the clamour for equality has grown more intense,
the underlying concept has not become so highly qualified as to be
unrecognizable.
The continuing pursuit of equality exacts a price in human liberty. Of
course, in one sense, all legislation diminishes liberty by regulating hitherto
unregulated behaviour. But human rights legislation makes a direct incur-
sion into human liberty. It does so, first, because the scope of the legislation
has been steadily expanded. Freedom to contract with whom one chooses,
freedom to dispose of property, freedom of choice over one’s tenants and
employees –
all such decisions have been subordinated to an over-arching
public policy of equality.
In their infancy, human rights commissions proclaimed it their goal to
work themselves out of business by the elimination of discrimination. In
fact, if one measured their success by the reduction of discrimination in the
areas with which they were originally created to deal (essentially, racial
“New Code, s. 13(1).
Mc GILL LAW JOURNAL
[Vol. 29
discrimination in housing and employment), they have been quite success-
ful. But far from withering away, the growth of human rights commissions,
like the growth of other bureaucracies, has been exponential and inexorable.
The Ontario Commission began in 1962 with a full-time staff of one (Dr.
Daniel G. Hill) and a part-time secretary; twenty years later the Ontario
Commission has a iffll-time complement of 101. Despite such bureaucratic
growth, each year the Commission’s Annual Report bemoans an increasing
case load which, it is said, precludes an all-out effort to eradicate discrim-
ination. Yet whenever there is a levelling-off or slight decline in case load,
the Commission is quick to seek legislative amendments stretching the con-
cept of equality still further and recommending new forms of discrimination
to be prohibited and new social areas for the law to reach into. 12 To date,
the Ontario legislature has been willing to accept the Commission’s rec-
ommendations (with the single exception of adding sexual orientation as a
prohibited ground of discrimination). 13
Second, the conflict between liberty and equality is exacerbated by the
transition in language in the Code, from relatively precise statutory pro-
hibitions to sweeping declarations of a generalized “right to equal treat-
ment”. No lawyer should need reminding of the danger to liberty inherent
in vague, over-reaching legislation which compensates for a lack of clarity
by conferring the maximum discretion on the enforcement agency, in this
case an appointed commission. Even a decade ago, when the statutory lan-
guage was more precise and the commission’s discretion more limited, this
danger was sufficient to prompt one judge to refer to the enforcement scheme
of the original Code as “a legislative bear-trap from which no subject can
escape, a charge which cannot be defended, and a fine which cannot be
escaped”.14
Third, an examination of recent case law reveals increasing conflict
between fundamental liberties (identified as such in section 2 of the Charter
12The most egregious example of this was the creation by the Ontario Commission, without
legislative authorization or approval, of a Code Review Committee (entirely comprised of
Commissioners) “to address the urgent needs of the changing human rights situation in Ontario”.
See Ontario Human Rights Commission, Life Together: A Report on Human Rights in Ontario
(1977) 5. This Committee held hearings throughout the province and then published a report
containing over one hundred recommendations, almost all of which were designed to extend
the Commission’s own jurisdiction and influence and most of which are reflected in the new
Code. Ibid., 92-109.
U3Recommended in Life Together, ibid., 81-2.
‘4Stewart J. in R. v. Tarnopolsky, Exparte Bell [1969] 2 O.R. 709, 713, (1969) 6 D.L.R. (3d)
576 (H.C.).
1983]
LIBERTY AND EQUALITY
ofRights and Freedoms)’5 and the attainment of equality. Before two human
rights Boards of Inquiry, individuals were put to the expense and incon-
venience of defending themselves for the offence of writing letters which
are published or otherwise displayed to the public. 16 What does freedom of
expression mean where the right to hold and to voice critical opinions is
subject to review by a board of inquiry?
In Gay Alliance Toward Equality v. The Vancouver Sun the British
Columbia Human Rights Commission claimed authority (upheld by the
British Columbia Supreme Court but denied by majorities in the Court of
Appeal and in the Supreme Court of Canada)17 to override a decision of a
daily newspaper as to the content of its classified advertising. The effect of
such arrogation of authority by a human rights commission on freedom of
the press is clear. The same Commission, incidentally, recently sought to
prevent a company from carrying on business under the trade name “Hunky
Bill’s”, apparently on the ground that this corporate name might be offensive
to Ukranian-Canadians, although the company president, William Konyk,
was himself a Ukranian-Canadian. i8 In support of its allegation of racism,
the Commission called as an expert witness a professor of English who
admitted a desire to ban “on the basis that they showed certain classes of
people in an unfavourable light, Shakespeare, Johnson, Boswell, Tobias
Smollet and John Milton”.19 There would be little room for English liter-
ature, still less for freedom of speech and press, in the Utopias envisioned
by such human rights zealots as these. Small wonder, then, that the Board
of Inquiry speculated whether or not human rights commissions “are aware
of the Orwellian implications of the world they seem to advocate?” 20
The starkest example of the conflict between human rights and fun-
damental liberties occurred in 1979 when a Canadian Human Rights Tri-
bunal concluded that the expressed opinions of John Ross Taylor were
‘5Part I of Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [hereinafter the Charter]. These
“fundamental freedoms” as set out in s. 2 are: “(a) freedom of conscience and religion; (b)
freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
16Levesque v. The Daily Gleaner, Report of a Board of Inquiry under the New Brunswick
Human Rights Act (10 September 1974); and McKinlay v. Cranfield (1980) 1 C.H.R.R. D/246
(Sask. Board of Inquiry).
17Gay Alliance Toward Equality v. The Vancouver Sun, Report of a Board of Inquiry under
the Human Rights Code of British Columbia (1975), aff’d [1976] W.W.D. 160 (B.C.S.C.), rev’d
(1977) 77 D.L.R. (3d) 487, [1977] 5 W.W.R. 198 (B.C.C.A.), aff’d [1979] 2 S.C.R. 435, (1979)
97 D.L.R. (3d) 577. It remains to be seen whether or not a board of inquiry could reach such
a decision in the face of section 2(b) of the Charter (reproduced supra, note 15).
18 Ukranian Canadian Professional and Business Association of Vancouver v. Konyk (1982)
3 C.H.R.R. D/1157 (B.C. Board of Inquiry).
191bid., D/1160.
2O1bid.
REVUE DE DROIT DE McGILL
[Vol. 29
contrary to the letter and spirit of the Canadian Human Rights Act and Mr
Taylor was ordered to cease recording and communicating his opinions by
telephone. 21 Mr Taylor, who was 69 years old, refused to alter either his
opinions or his practices. He was then convicted of contempt of court and
served one year in jail, thereby becoming Canada’s first prisoner of con-
science to be jailed for daring to contradict the orthodoxy of human rights. 22
It should be (but is not) superfluous to point out to human rights com-
missions that one may defend John Ross Taylor’s right to free speech with-
out endorsing his views.23
In considering the cost in liberty which human rights legislation exacts,
it is worth noting a small but significant change in the “Preamble” to the
new Code. From 1962 to 1982, the “Preamble” stated that “it is public
policy in Ontario that every person is free and equal in dignity and rights”
(emphasis added). The new Code drops any reference to “free”: “AND
WHEREAS it is public policy in Ontario to recognize the dignity and worth
of every person and to provide for equal rights and opportunities without
discrimination”. Whether deliberate, or a draughtsman’s inadvertence, this
excision of the word “free” is increasingly symbolic of the direction of
legislated egalitarianism. 24
De Tocqueville’s analysis of the tension between liberty and equality,
and his prediction that the extension of universal suffrage mass democracy
inevitably meant that society would increasingly prefer equality to liberty,
have proven to be accurate. He might well have been writing of the province
of Ontario, circa 1982 when, a century and a half ago, he wrote these words:
Democratic nations are at all times fond of equality, but there are certain epochs at which
the passion they entertain for it swells to the height of fury. This occurs at the moment
when the old system, long menaced, completes its own destruction … . At such times
men pounce upon equality as their booty and they cling to it as to some precious treasure
which they fear to lose. The passion for equality penetrates on every side into men’s
hearts, expands there, and fills them entirely. Tell them not that by this blind surrender
of themselves to an exclusive passion they risk their dearest interests: they are deaf. Show
21Canadian Human Rights Commission v. Taylor, Report of a Tribunal under the Canadian
Human Rights Act (20 July 1979).
22Canadian Human Rights Commission v. Taylor (1980) 1 C.H.R.R. D/47 (F.C.T.D.).
2 When, in 1976, I ventured some mild criticism in a Law Review article of what I conceived
to be abuses of authority by Human Rights Commissions, I was reprimanded as a “traitor”
and “fascist” by a former chairperson of the Saskatchewan Human Rights Commission.
24The speech of the Honourable Robert Elgie, Labour Minister, might imply that the excision
was deliberate: “Today I want to review briefly the key provisions of this bill. It seems ap-
propriate to begin by drawing attention to the preamble, which confirms the universality of
human rights and enunciates our commitment to revise and extend human rights in Ontario
to reflect an evolving sense of equity and social justice.” Ont. Leg. Assembly Deb. (15 May
1981) 742.
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LIBERTY AND EQUALITY
them not freedom escaping from their grasp, whilst they are looking another way: they
are blind – or rather, they can discern but one sole object to be desired in the universe.25
II.
The Ontario Human Rights Code, 1981
Part I, sections 1 to 8, and section 12 of the new Code identify eight
social areas in which discrimination is prohibited on fourteen specified
grounds.26 Each of the first eight sections follows the same general format,
proclaiming “a right to equal treatment” without discrimination “because
of” the specified grounds. I shall first compare the breadth of coverage under
the old and new Codes, and then examine several important additions.
A.
Announced Intention to Discriminate (Section 12)
Section 1 of the former Code prohibited publication or display of “any
notice, sign, symbol, emblem, or other representation indicating discrimi-
nation or an intention to discriminate … for any purpose because of” a
prohibited ground of discrimination. Subsection (2) then stated that this
was “deemed” not to interfere with free expression of opinion on any sub-
ject.27 The former section, of dubious constitutional validity and derived
from the Racial Discrimination Act, 1944,28 has now been replaced by a no
less dubious section:
S. 12(1): A right under Part I is infringed by a person who publishes or displays before
the public or causes the publication or display before the public of any notice, sign, symbol,
emblem, or other similar representation that indicates the intention of the person to
infringe a right under Part I or that is intended by the person to incite the infringement
of a right under Part I.
(2) Subsection (1) shall not interfere with freedom of expression of opinion.
Clearly, this section is anticipatory in effect: it makes it an offence
(ultimately punishable by the criminal sanction) 29 to announce an intention
not to practice “equal treatment”, even though that intention never issues
forth into conduct. Although a refined sense of ethics or morality might
condemn intention standing alone, the law has always required an overt
25A. de Tocqueville, Democracy in America (London: The Colonial Press, Reeve trans., 1900)
vol. 2, 102.
26The social areas are: enjoyment of goods, services and facilities (s. 1); occupancy of ac-
commodation (ss 2, 6(1)); contracts (s. 3); employment (ss 4, 6(2)); membership in trade unions,
and trade or occupational associations (s. 5); sexual harassment (s. 6) and reprisals (s. 7); and
announced intention (s. 12). The prohibited grounds are: race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, age, marital status, family status, record of offences, the
receipt of public assistance and handicap.
27Former Code, s. 1.
28S.O. 1944, c. 51, s. 1.
29New Code, s. 43.
Mc GILL LAW JOURNAL
[Vol. 29
act. Indeed, the requirement that intention manifests itself in criminal be-
haviour is one point of distinction between the rule of law and totalitarian
legal systems. 30 Section 12(1), apparently, tends to eliminate the distinction,
and assigns liability on the basis of a declared intention alone. By so doing,
it lends credence to those critics who consider that human rights commis-
sions have become the “thought police” of contemporary society.3’
It is difficult to interpret section 12(2). If it means that the prohibitions
in section 12(1) do not interfere with freedom of expression, it is patently
false. Self-evidently, they do. The landlord who communicates the opinion
that tenants in receipt of public assistance are less financially reliable than
employed tenants now risks offending section 12(1), even though he has
denied accommodation to no one. The landlord’s freedom of expression
has been diminished. Alternatively, if section 12(2) is interpreted to mean
that section 12(1) shall be “deemed” not to interfere with freedom of expres-
sion, then the legislature has once again “deemed” an artificial interpretation
to cloak a disturbing reality and the purported legislative change (i.e. drop-
ping the “deeming” provision in the old Code) was a sham.
To read section 12 is to be reminded of George Orwell’s explanation
for obscurity: “The great enemy of clear language is insincerity. When there
is a gap between one’s real and one’s declared aims, one turns as it were
instinctively to long words … like a cuttlefish squirting out ink.”’32
Whichever approach to interpreting section 12(2) is correct, its presence
draws attention to the dubious constitutional validity of the whole section.
If section 12(1) does not interfere with freedom of expression it is difficult
to discern much effective scope for its application; if it does interfere with
freedom of expression, it is ultra vires. There is considerable pre-Charter
authority to establish that provincial legislation cannot derogate from, or
diminish, freedom of expression.33 The Charter, which is expressly appli-
cable to provincial legislation,34 has now put the matter beyond dispute.
Section 12 is novel, dangerous and of dubious constitutional validity.
30Alexander Solzhenitsyn discussed this distinction in his incisive Harvard Commencement
address, reprinted as A World Split Apart (1978) 12 L. Soc. Gazette 223.
31B. Amiel, Confessions (1980).
32G. Orwell, “Politics and the English Language” in Collected Essays, Journalism and Letters
(New York. Harcourt, Brace and World, 1968) vol. 4, 127, 137.
33See, e.g., Reference ReAlberta Statutes [1938] S.C.R. 100, [1938] 2 D.L.R. 81, aff’d [1939]
A.C. 117, [1938] 4 D.L.R. 433 (J.C.P.C.); Switzman v. Elbling and A.G. Quebec [1957] S.C.R.
285, (1957) 7 D.L.R. (2d) 337; and Saumur v. The City of Quebec [1953] 2 S.C.R. 299, [1953]
4 D.L.tL 641.
3iCharter, s. 32(1)(b).
1983]
LIBERTY AND EQUALITY
B.
Accommodation
Section 2 of the former Code prohibited any discriminatory denial of
accommodation “available in any place to which the public is customarily
admitted”. The only exception was the barring of one sex upon the ground
of “public decency”.35
Section 3 of the former Code prohibited discrimination in “housing
accommodation” but made an exception for unisex accommodation.3 6 Housing
accommodation was defined as “any place of dwelling except a place of
dwelling being part of a building in which the owner or his family reside
and the occupant or occupants of the place of dwelling are required to share
a bathroom or kitchen facility with the owner or his family”. 37
Section 2 of the new Code proclaims a right to equal treatment in the
occupancy of “accommodation”. Section 2(2) proclaims a right to “freedom
from harassment by the landlord or agent of the landlord or by an occupant
of the same building” because of any proscribed ground of discrimination.
Section 6(1) provides that every occupant of accommodation has a right to
freedom from harassment “because of sex” by the landlord, his agent, or
by an occupant of the same building.
The exemption in respect of accommodation where the occupant is
required to share a bathroom or kitchen facility with the owner or his family
is preserved,38 as is the unisex accommodation exception. 39 The new Code
additionally exempts discrimination because of marital status in owner-
occupied residential accommodation in buildings of less than four units, 40
and discrimination because of family status in multi-unit buildings served
by a common entrance.41 The new harassment provisions will be considered
separately.
C.
Services and Facilities
The former Code lumped together “accommodation, services and fa-
cilities” and prohibited discrimination in respect of each “in any place to
which the public is customarily admitted”.
35Former Code, s. 2(2).
36Former Code, s. 3(2).
37Former Code, s. 26(0.
38New Code, s. 20(1).
39New Code, s. 20(2).
4New Code, s. 20(3).
41New Code, s. 20(4).
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[Vol. 29
Section 1 of the new Code proclaims a right to equal treatment with
respect to “services, goods, and facilities”. Gone is the qualifying require-
ment that these be available in a place to which the public is customarily
admitted. In place of that limiting clause there is a bewildering array of
qualifications, exemptions and provisos: some general (e.g., the definitions
of the proscribed grounds of discrimination and the definition in s. 9(c) of
“equal”), and others rather more specific (senior citizen preferences (s.
14)); citizenship preferences (s. 15); provision of services and facilities by
special interest organizations (s. 17); athletic activities (s. 19(2)); and rec-
reational clubs (s. 19(3)).
Whatever merits might be urged for the proclamatory style of the new
Code, intelligibility and simplicity of interpretation are not among them.
The prior sections were concise and relatively straightforward. 42 The new
section, by simply proclaiming a right to “equal treatment”, requires ex-
tensive general and specific qualification.
From the beginning, the Ontario legislature has distinguished between
inherently “public” and inherently “private” activities. While wishing to
forbid discrimination in virtually all areas of public commercial activity,
the legislature chose not to forbid discrimination in more private and per-
sonal relations. To a minor extent, this distinction has been preserved (e.g.,
the choice of a medical attendant employed to nurse an ailing family mem-
ber, s. 23(c)). But the new Code recasts the boundary by narrowing, indeed
nearly eliminating, the enclave of purely private activities. First the new
Code practically eliminates the public/private distinction in its substantive
declarations of equality; then it must re-impose some basic distinctions
through a crazy quilt of exemption provisions.
A simpler, neater approach would have been to insert the word “public”
before “services, goods and facilities” in section 1. The process of inter-
pretation would then have determined when services, goods or facilities are
sufficiently “public” to warrant application of the Code. Had the legislature
wished to give further guidance, it could have done so by Regula-
tions; alternatively, the Commission could issue interpretation bulletins or
advisory opinions on what were to be regarded as “public” services, goods
or facilities. Instead, the draughtsman has transformed what was a concise,
understandable section in the former Code into an awkward and ultimately
uncertain “right to equal treatment” in the new Code.
42Although not entirely free from ambiguity: cf Re Cummings and Ontario Minor Hockey
Association (1978) 21 O.R. (2d) 389, (1978) 90 D.L.R. (3d) 568 (Div. Ct.), aff’d(1979) 26 O.R.
(2d) 7, (1979) 104 D.L.R. (3d) 434 (C.A.); and Re Ontario Rural Softball Association and
Bannerman (1978) 21 O.R. (2d) 395, (1978) 90 D.L.R. (3d) 574 (Div. Ct.), aff’d (1979) 26
O.R. (2d) 134, (1979) 102 D.L.R. (3d) 303 (C.A.).
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LIBERTY AND EQUALITY
D.
Employment
The former Code contained a lengthy and complex section dealing with
all employment discrimination. 43 Section 4(1) of the new Code consolidates
these detailed provisions into a general declaration of a right to “equal
treatment with respect to employment”. However, the cosmetic simplicity
is once again misleading, for general (s. 9(c)) and specific (ss 13, 14, 15, 23,
and 24) limitations and exemptions follow.
The former Code exempted discrimination because of age, sex or mar-
ital status whenever any of those grounds was “a bona fide occupational
qualification and requirement for the position or employment”. 44 The new
Code adds “record of offences” to this catalogue (which is not a particularly
significant addition given the limited definition of “record of offences”) 45
and adds in section 23 the qualifier “reasonable” to “bona fide”.
Jurisprudence under the former Code revealed a conflict as to the degree
of subjectivity involved in proving “a bonafide occupational qualification”
exemption. A 1976 Board of Inquiry gave that term an essentially subjective
definition. However, another Board of Inquiry, on virtually identical facts
and in the same year, required proof of scientific evidence which would
support an objective conclusion. 46 The Supreme Court of Canada has now
resolved the conflict by interpreting “bonafide occupational qualification”
as requiring both an honest, subjective belief in the requirement and also
43Former Code, s. 4(a)-(g).
44Former Code, s. 4(6).
45The new Code, s. 9(h) states:
“Record of Offences” means a conviction for,
(i) an offence in respect of which a pardon has been granted under the Criminal Records
Act (Canada) and has not been revoked, or
(ii) an offence in respect of any provincial enactment….
46In Cosgrove v. North Bay, Report of a Board of Inquiry under The Ontario Human Rights
Code (21 May 1976), the Board held that mandatory retirement of firefighters at age sixty was
a bona fide occupational qualification because it was “enacted or imposed honestly or with
sincere intentions” and was “supported in fact and reason ‘based on the practical reality of
work-a-day world and of life.”‘ The decision was upheld on appeal: Re Ontario Human Rights
Commission and City of North Bay (1977) 17 O.R. (2d) 712, (1977) 81 D.L.R. (3d) 273 (Div.
Ct.); leave to appeal refused (1977) 92 D.L.R. (3d) 544 (C.A.). But in Hadley v. Mississauga,
Report of a Board of Inquiry under The Ontario Human Rights Code (21 May 1976), the
Board rejected mandatory retirement of firefighters at age sixty as a bona fide occupational
requirement:
A claim for differentiation should not be permitted on the basis of an employer’s as-
sumption that every employee over a certain age becomes physically or mentally unable
to perform the duties of the job. Each case should be determined on an individual case
by case analysis, not on the basis of any general or class concept
McGILL LAW JOURNAL
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proof of objective reasonableness. 47 Presumably section 23(b) of the new
Code does no more than incorporate this requirement of objective reason-
ableness into the statutory exemption.
For many years, board of inquiry decisions have held that the onus of
proving an exemption is on the respondent. This view was unanimously
upheld by the Supreme Court of Canada.48 It is a difficult onus to discharge.
Not only must the employer prove his bonafides in a subjective sense, but
he must also satisfy a board of inquiry that the discrimination is objectively
reasonable. The Supreme Court of Canada declined to say precisely what
this meant; however, McIntyre J. did say that “it would seem to be essential
that the evidence should cover the detailed nature of the duties to be per-
formed, the conditions existing in the work place, and the effect of such
conditions upon employees, particularly upon those at or near the retirement
age sought to be supported. ‘ 49 But if a single individual of the excluded
age, sex, or marital status is demonstrably capable of performing the job,
can the discrimination then be said to be objectively reasonable? And if it
cannot, then employers must abandon all general rules and policies of ex-
clusion (such as mandatory retirement below age 65 for physically de-
manding jobs) or risk violation of the new Code.
III.
Significant Additions
The new Code doubled the number of statutory sections (from 26 to
50) and more than doubled the sheer statutory verbiage of prior legislation.
There are many minor changes, both substantive and procedural. This part
examines four of the more important additions to the Code.
A.
Contracts
Section 3 declares: “Every person having legal capacity has a right to
contract on equal terms without discrimination” because of the prohibited
grounds. While this section has no precedent in prior legislation, it may
only have codified the common law principle that renders contracts void
47Ontario Human Rights Commission v. Etobicoke [1982] 1 S.C.R. 202, (1982) 132 D.L.R.
481bid., 208, per McIntyre J.:
(3d) 14 [hereinafter cited to S.C.R.].
Once a complainant has established before a board of inquiry a prima facie case of
discrimination, in this case proof of a mandatory retirement at age sixty as a condition
of employment, he is entitled to relief in the absence ofjustification by the employer. The
only justification which can avail the employer in the case at bar, is the proof, the burden
of which lies upon him, that such compulsory retirement is a bona fide occupational
qualification and requirement for the employment concerned. The proof, in my view,
must be made according to the ordinary civil standard of proof, that is upon a balance
of probabilities. [Emphasis added.]
49Ibid., 212.
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LIBERTY AND EQUALITY
if the terms of the contract are contrary to public policy. 50 An exemption
is included for insurance and life annuity contracts, other than with an
employer, in which reasonable and bonafide distinctions based on age, sex,
marital or family status, or handicap, are drawn.51
Section 3 contains no limitation on the kind of contract to which the
declared right applies. Nor would there appear to be any basis for implying
any limitation on the scope of this new section; therefore, all forms of
business and consumer contracts are covered.
B.
Harassment
Section 4(2) of the new Code declares that it is a right of all employees
to be free from harassment on any prohibited ground of discrimination by
an employer, his agent, or other employees. While this section has no leg-
islative predecessor, there did exist a sparse jurisprudence 52 which held that
racially derogatory conduct (slurs, insults, epithets, etc.) directed at an em-
ployee who was a member of a visible minority group with the knowledge
and/or acquiescence (even passive acquiescence) of the employer, was a
violation of the old Code. The reasoning was that such conduct created a
hostile or threatening work environment which amounted to a discrimi-
natory “term or condition of employment” for the employee affected.
Where a board of inquiry makes a finding of harassment, either in
employment or accommodation, and finds that a party had the means to
prevent that harassment from occurring, together with actual or constructive
(“ought to have known”) knowledge, the board shall remain seized of the
matter and may, upon proof of a repetition of the conduct, order that party
to take any steps reasonably available to prevent a further occurrence. 53 Not
only is this extraordinary authority of a board not subject to the discre-
tionary six month limitation period imposed on filing of complaints, 54 it
appears to be subject to no limitation period, statutory or common law.
Theoretically, a board of inquiry in such a case is never functus offi-
cio; although the respondent has been duly convicted and “sentenced”,
although he has made reparations for his violation, he must forever live
5 0The “Preamble” of the new Code declares that non-discrimination is “public policy in
Ontario”. Therefore, even in the absence of s. 3, it may be that courts would have declined
to enforce discriminatory contracts. Cf Re Drummond Wren [1945] O.R. 778, [1945] 4 D.L.R.
674 (H.C.); Re Noble and Wolf[1948] O.R. 579, [1948] 4 D.L.R. 123 (H.C.), aff’d [1949] O.R.
503, [1949] 4 D.L.R. 375 (C.A.), rev’d [1951] S.C.R. 64, [1951] 1 D.L.R. 321.
51New Code, s. 21.
52See Simms v. Ford Motor Co. of Canada, supra, note 10; and Dhillon v. F. W. Woolworth
Co. (1982) 3 C.H.R.R. D/743 (Ont. Board of Inquiry).
53New Code, s. 40(4).
54New Code, s. 33(l)(d).
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with the prospect that the original tribunal which tried and found him guilty
will be “reconvened” and additional “sanctions or steps” (the actual lan-
guage of the statute) meted out. It will be interesting to hear the arguments
proffered by the Ontario Human Rights Commission to defend this ex-
traordinary section if and when it is challenged as a violation of the Charter,
specifically of section 11(d) which guarantees the right “to be presumed
innocent until proven guilty according to law in a fair and public hearing
by an independent and impartial tribunal” and (h) guaranteeing the right,
if found guilty of an offence, “not to be tried or punished for it again”.
Prior to the enactment of the new Code several board of inquiry de-
cisions had concluded that sexual harassment in employment was prohibited
conduct as a species of sex discrimination. 55 It is submitted that this ration-
alization was illogical; if sexual harassment was presently covered, why then
was it necessary to have sexual harassment added to the new Code? Such
an interpretation also flew in the face of the legislative intent; when “sex”
was added as a prohibited ground to the Code in 1972,56 it is clear that the
intended meaning was “gender”, not sexual practice or harassment. Indeed,
there is not a single mention in the legislative record at that time of the
problem of sexual harassment. Moreover, this interpretation led to the
anomalous result that an employer who harassed an employee of the op-
posite sex contravened the Code, while a bisexual employer, who indis-
criminately harassed both male and female employees, did not.
However illogical the root of title, the Ontario legislature has unequi-
vocally prohibited sexual harassment in the new Code. Sections 6(1) and
(2) deal expressly with harassment in accommodation and employment.
Subsection (3) casts the net wider.
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or
deny a benefit or advancement to the person where the person making the solicitation or
advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance
where the reprisal is made or threatened by a person in a position to confer, grant or
deny a benefit or advancement to the person.
The phrase “a person in a position to confer, grant or deny a benefit
or advancement” clearly extends well beyond landlords and employers.
55See, e.g., Belly. Ladas (1980) 1 C.H.R.R. D/155 (Ont. Board of Inquiry); Mitchellv. Travell
Inn (Sudbury) Ltd. (1981) 2 C.H.R.R. D/590 (Ont. Board of Inquiry); Coutroubis v. Sklavos
Printing (1981) 2 C.H.R.R. D/457 (Ont. Board of Inquiry); Cox v. Jagbritte Inc. (1981) 3
C.H.R.R D/609 (Ont. Board of Inquiry); Torresv. Royalty KitchenwareLtd. (1982) 3 C.H.R.R.
D/858 (Ont. Board of Inquiry); and McPherson v. “Mary’s Donuts” (1982) 3 C.H.R.R. D/961
(Ont. Board of Inquiry).
56The Ontario Human Rights Code Amendment Act, 1972, S.O. 1972, c. 119.
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LIBERTY AND EQUALITY
Teachers, doctors, social workers, indeed virtually any person in a position
of privilege or authority, is a potential respondent in a sexual harassment
complaint.
In the very first Canadian sexual harassment case, the Board of Inquiry
defined the conduct prohibited as running the “gamut from overt gender-
based activity such as coerced intercourse to unsolicited physical contact
to persistent propositions, to more subtle conduct such as gender-based
insults and taunting, which may reasonably be perceived to create a negative
psychological and emotional work environment”.5 7 The new Code defines
“harassment” even more broadly: “engaging in a course of vexatious com-
ment or conduct that is known or ought reasonably to be known to be
unwelcome”.5 8 The guidelines on harassment recently issued by the Canadian
Human Rights Commission suggest that the tribunals responsible for en-
forcing these new sections will interpret their mandate in an unlimited way.
These guidelines are so frightening in what they reveal about the mindset
of their draughtsmen that I forego critical comment and merely reproduce
them:
Harassment may be related to any of the discriminatory grounds contained in the Canadian
Human Rights Act. Such behaviour may be verbal, physical, deliberate, unsolicited or
unwelcome; it may be one incident or a series of incidents. While the following is not
an exhaustive list, harassment may include:
-verbal abuse or threats;
-unwelcome remarks, jokes, innuendos or taunting about a person’s body, attire, age,
marital status, ethnic or national origin, religion, etc;
-displaying of pornographic, racist, or other offensive or derogatory pictures;
-practical jokes which cause awkwardness or embarassment;
-unwelcome invitations or requests, whether indirect or explicit, or intimidation;
-leering or other gestures;
-condescension or paternalism which undermine self-respect;
-unnecessary physical contact such as touching, patting, pinching, punching;
-physical assault …. 59
The threat implicit in any such legislative scheme is so obvious that it
is unnecessary to attempt to follow these “guidelines” with a discourse on
the danger of legislating in the always tempestuous and complex relations
between the sexes or to sound again an alarm about overreaching legislation.
C.
Constructive Discrimination
The issue of “intent to discriminate” has been a vexed question in the
interpretation of human rights legislation. It most often arises when an
employer invokes an ostensibly neutral requirement which can be shown
57Bell v. Ladas, supra, note 53, D/156.
58New Code, s.,9(f).
59Canadian Human Rights Commission, Harrassment Policy, 1 February 1983.
Mc GILL LAW JOURNAL
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to have a disproportionate impact on a group of persons protected by the
Code.
Human rights legislation has always proscribed discriminatory acts oc-
curring “because of” a prohibited ground of discrimination. Early boards
of inquiry tended to the view that proof of an intention to discriminate was
required. In one early Ontario case the Board stated that “one of the most
difficult facts to determine are motives. And yet discrimination, whether it
be with respect to employment or accommodation, cannot be ascertained
from the mere act of denial. There must also be the fact of intention or
motive.” 60
Later boards of inquiry began to examine only discriminatory re-
sults; such decisions hold that a respondent’s motivation or intention is
irrelevant, except possibly in mitigation of penalty. 61
The issue was first considered judicially in an Alberta equal pay case
in which McDonald J. of the Alberta Supreme Court stated that it was “the
discriminatory result which is prohibited and not a discriminatory intent”. 62
However, the matter was most recently and exhaustively canvassed by both
the Divisional Court and the Ontario Court of Appeal in O’Malley v. Simp-
sons-Sears Ltd.,63 a case which arose when a Seventh Day Adventist refused
to work on Saturdays (considered the Sabbath by that sect). The Board of
Inquiry held that an intention to discriminate was not essential to a finding
of discrimination; rather, a discriminatory result was sufficient.64 The ma-
jority of the Divisional Court disagreed and drew from the phraseology of
the statute (prohibiting discrimination “because of” specific grounds) the
conclusion that “an intention to discriminate on a prohibited ground is
essential to a contravention” of the Code.65 This decision was unanimously
upheld by the Ontario Court of Appeal. 66 Although the Court of Appeal
6Britnell v. Brent Personnel Placement Services, Report of a Board of Inquiry under The
Age Discrimination Act of Ontario (June 1968) 3-4.
61See, e.g., Hayes v. Central Hydraulic Manufacturing Co., Report of a Board of Inquiry
under the Alberta Individual’s Rights Protection Act (9 January 1973); B.C. Human Rights
Commission and the College of Physicians and Surgeons, Report of a Board of Inquiry under
the Human Rights Code of British Columbia (7 May 1976); and Jones v. Huber, Report of a
Board of Inquiry under the Ontario Human Rights Code (1976).
62ReA.-G. Alberta and Gares (1976) 67 D.L.R. (3d) 635, 695 (Alta. S.C., T.D.).
630’Malley v. Simpsons-Sears Ltd. (1981) 2 C.H.R.R. D/267 (Ont. Board of Inquiry), aff’d
(1982) 36 O.R. (2d) 59, (1982) 133 D.L.IL (3d) 611 (Div. Ct.) [hereinafter cited to O.R.], aff
‘d (1982) 38 O.R. (2d) 423, (1982) 138 D.L.R. (3d) 133 (C.A.).
64Ibid. (Ont. Board of Inquiry).
6Slbid. (Div. CL) 66, per Southey J. (Gray J. concurring).
66Ibid. (C.A.).
1983]
LIBERTY AND EQUALITY
decision is presently under appeal to the Supreme Court of Canada 67 the
question would appear to be moot in the face of section 10 of the new Code:.
A right of a person under Part I is infringed where a requirement, qualification or con-
sideration is imposed that is not discrimination on a prohibited ground but that would
result in the exclusion, qualification or preference of a group of persons who are identified
by a prohibited ground of discrimination and of whom the person is a member, except
where,
(a) the requirement, qualification or consideration is a reasonable and bonafide one in
the circumstances; or
(b) it is declared in this Act that to discriminate because of such ground is not an in-
fringement of a right.
This section clearly proscribes a discriminatory result, unless the re-
quirement, qualification or consideration which brings about that discrim-
inatory result can be proved to be “a reasonable and bona fide one in the
circumstances”.
Not only is the onus of proof on the respondent, 68 but it is an exceed-
ingly difficult onus to discharge. The respondent would have to prove, on
a balance of probabilities, that the requirement, qualification or consider-
ation in question was (a) in good faith, and (b) objectively essential to the
effective operation of his business. 69
D.
Handicap
The most significant, and potentially most litigious, additional ground
on which discrimination is now prohibited is “handicap”. The statutory
definition is breathtakingly comprehensive:
“because of handicap” means for the reason that the person has or has had, or is believed
to have or have had,
(i) any degree of physical disability, infirmity, malformation or disfigurement that is caused
by bodily injury, birth defect or illness and, without limiting the generality of the foregoing,
including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical
co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness
or speech impediment, or physical reliance on a dog guide or on a wheelchair or other
remedial appliance or device,
(ii) a condition of mental retardation or impairment,
(iii) a learning disability, or a dysfunction in one or more of the processes involved in
understanding or using symbols or spoken language, or
67Leave to appeal was granted 1 November 1982: Ontario Human Rights Commission v.
Simpsons-Sears Ltd. (1982) 45 N.R. 270 (S.C.C.). At the time of writing the appeal has not
yet been heard.
68Once the Commission makes out a primafacie case, the respondent who seeks to rely on
a statutory exception bears the onus of proof. See Ontario Human Rights Commission v.
Etobicoke, supra, note 47, 208.
691bid. See also Steel v. Union ofPost Office Workers [ 1978] 2 All E.R. 504, 510 (Employment
App. Trib.).
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[Vol. 29
(iv) a mental disorder.70
It is difficult to imagine any handicap –
physical or mental, past or
present, real or perceived – which will fall outside this definition. Obesity,
for example, is considered by the Ontario Commission to be an “infirmity
… caused by… illness” and therefore covered. The Prince Edward Island
Human Rights Commission has interpreted alcoholism as a handicap, thereby
forbidding employers from refusing to hire or from discharging an alcoholic.
This interpretation has been supported by the Ontario Human Rights Com-
mission.71 Drug dependence, according to an official of the Canadian Hu-
man Rights Commission, is a “handicap” qualifying an addict for protection
against discrimination. 72 Given the breadth of the statutory definition, cou-
pled with the innate tendency of Commissions to adopt the most expansive
interpretation, it seems safe to predict that the addition of handicap ushers
in a new era of State intrusion in the name of human rights.
Where denial of equality is due only to lack of physical access, there
is no violation of the Code.73 Nevertheless, the Commission is empowered
to receive and to attempt settlement of such complaints, 74 and boards of
inquiry are empowered to make access and amenities orders, consequent
upon a finding of discrimination, “unless the cost occasioned thereby would
cause undue hardship”. 75 What costs would convince a board of inquiry of
“undue hardship” remains to be seen.
Most complaints based on handicap will come in the area of employ-
ment.76 The new Code now requires employers to treat handicapped and
non-handicapped job applicants and employees equally. Section 16(l)(b)
provides that a handicapped person’s equality rights are not infringed where
70New Code, s. 9(b).
71JMi Armstrong, the manager of program review for the Ontario Human Rights Commission,
has stated, “we’ve had limited experience in the area of human rights for the handicapped,
but we’d certainly accept a case involving alcoholism, if one came up”. See Kay, New slant in
human rights: protectionfor alcoholics (1983) 56 Canadian Business 123 (May).
72Linda Poirier, the acting director of research policy for the Canadian Human Rights Com-
mission, defines “disablement” so as to include “dependence on alcohol or a drug”. Her
comments provide another chilling example of how little an employer’s former freedom to
hire counts in the balance against a newly discovered human right: “Poirier feels that viewing
alcoholism as a type of physical disability will help to demystify the condition for employers.
‘I hope that they’ll begin to see it as a disability over which one has little control, rather than
a sinful, willfil act. And this will improve the lot of alcoholics in general’, she says.” Ibid.
73New Code, s. 16(l)(a).
74New Code, s. 16(2).
75New Code, s. 40(2).
761n the first five months of the new Code (to November, 1982), the Commission received
fifty-nine complaints on the grounds of handicap: two thirds related to employment. See Jus-
tason, Unitfor the Handicapped in Ontario Human Rights Commission (1983) 4 Affirmation
2 (March).
1983]
LIBERTY AND EQUALITY
that person is “incapable of performing or fulfilling the essential duties or
requirements … because of handicap”. What constitutes “essential duties
or requirements” and who decides, the employer or the Commission?
The new Code provides no definition of “essential duties” but the Com-
mission already has:
‘Essential’ means ‘necessary and indispensable’ and is determined through an examination
of the job in the context of the entire company structure and function. Essential duties
are usually defined as being 70-80 per cent of the job content. In handling complaints,
the officers must determine what adaptations can be made to the job, to the workplace
and to such terms and conditions of employment as hours of work and length of training,
that will enable the handicapped person to work effectively. 77
As this quotation makes clear, it is the Commission and its investi-
gators, not the employer, who will decide whether a handicapped applicant
could perform the essential job duties. The only review of that determination
would be by a board of inquiry or court. Employers might draw slight
comfort from the fact that what sparse litigation has occurred in this area
suggests that courts are more sympathetic to the employer’s plight than
either the commissions or boards of inquiry.78
To deal with the anticipated increase in human rights complaints based
on handicap, the Ontario Commission has created a special division (Unit
for the Handicapped). According to a recent Commission publication, the
Unit seems poised to encourage complaints actively:
The more widely known the commission’s legislation becomes throughout the province,
the greater the number of people there will be to test its applicability in seeking protection
against discrimination. The Unit for the Handicapped, with the co-operation of all citizens
of Ontario, hopes to contribute to the increase in equal opportunity wherever it applies
for the benefit of everyone.79
Conclusion
The Ontario Human Rights Code, 1981 is more than just a revised and
extended Code. It is a statute different in kind from its predecessors. It is
declaratory in form, comprehensive in scope, and, I venture to assert, to-
talitarian in its implications. 80 It signifies a legislative preference for equality
over liberty, as the Code intrudes further into hitherto unregulated human
77Ibid.
78See, e.g., Huck v. Canadian Odeon Theatres Ltd. (1981) 2 C.H.R.R. D/521 (Sask. Board
of Inquiry), rev’d [1982] 5 W.W.R. 420 (Sask. Q.B.); and Peters v. University Hospital (1981)
2 C.H.R.R. D/358 (Sask. Board of Inquiry), rev’d(1981) 127 D.L.R. (3d) 302, (1981) 2 C.H.R.R.
D/524 (Sask. Q.B.).
79 Unit for the Handicapped, supra, note 76.
80″Totalitarian” –
“Characteristic of a dictatorial one-party state that regulates every realm
of life.” Collins Dictionary of the English Language (1979).
Mc GILL LAW JOURNAL
[Vol. 29
activity. New social areas are added and discrimination is prohibited on
new grounds. Social interaction between the sexes, dressed in the pejorative
label “harassment” (and interpreted so as to include practical jokes, con-
descension and leering), is made subject to governmental regulation. Un-
conscious (or constructive) discrimination is forbidden. Boards of inquiry
are given expanded, indeed virtually unlimited, powers. Fines under the
Code are quintupled for corporations; for individuals the maximum fine is
increased from $1,000 to $25,000.81
The bureaucracy charged with achieving this utopian vision of equality
is the Ontario Human Rights Commission. Its statutory powers are in-
creased. Its discretion is enormously broadened. Its staff and budgets mul-
tiply inexorably. What minimal check formerly existed on its authority (viz.
the requirement of Ministerial consent to the appointment of a board of
inquiry) 82 is abolished.83
Why has this happened? Why do legislators willingly invest human
rights commissions with statutory powers they would entrust to no other
government agency? Why is no check put on the exercise of discretion by
a human rights commission? And why do these commissions enjoy a virtual
exemption from public scrutiny and criticism?
Part of the answer, as de Tocqueville foresaw, lies in the democratic
impulse to level all vestiges of rank and privilege; he wrote:
[Dlemocratic communities have a natural taste for freedom: left to themselves, they will
seek it, cherish it, and view any privation of it with regret. But for equality, their passion
is ardent, insatiable, incessant, invincible: they call for equality in freedom; and if they
cannot obtain that, they still call for equality in slavery.84
The rest of the answer, I venture to suggest, lies in the essentially the-
ological nature of human rights legislation. To a secular society the quest
for equality fulfills the same yearning as, in centuries past, did once the
quest for God. The religious vision of heaven, a land beyond time and
mortality and very far off, has been replaced by a utopian vision of an
egalitarian society, to be attained through Charters of Rights, Human Rights
Codes, and affirmative action. To criticize human rights legislation and its
8 1Compare former Code, s. 21 and new Code, s. 43(1).
82Section 17(1) of the former Code provided that, following a recommendation from the
Commission that a board of inquiry be appointed, “the Minister may, in his discretion, appoint
a board of inquiry” (emphasis added).
83Section 37(1) of the new Code provides that “[w]here the Commission requests the Minister
to appoint a board of inquiry, the Minister shallappoint” a board of inquiry (emphasis added).
84Supra, note 25, 102-3.
LIBERTY AND EQUALITY
19831
premises is regarded as antediluvian, if not blasphemous.8 5 Because such
statutes come clothed in the mantle of “human rights”, with much reassuring
talk of brotherhood and compassion, we are disinclined to reflect on the
cost in human freedom which our relentless pursuit of equality exacts.
85Cf note 23.
