Reflections on the present and future of the Ontario Human Rights Code on its 60th Anniversary: An Interview with Remi Warner

The following interview is excerpted from a June 21, 2022 article in TorontoMet Today (“Milestone anniversary offers opportunity to reflect on and reimagine the code”) by Irina Vukosavic. It was published on the occasion of Human Rights Services’ June 23, 2022 conference (Human Rights @ 60: Reflecting and reimagining), hosted in partnership with the Ontario Human Rights Commission and Lincoln Alexander Law School, commemorating the 60th anniversary of the Ontario's Human Rights Code and exploring new directions for human rights law and policy.

Why is the code so important?

Remi Warner: It legally enshrines and protects some of our most cherished ideals in society, namely the right to be treated with dignity, equality and respect, free from discrimination and harassment, no matter who you are, and in a manner that respects our various identities, abilities and social locations.?

Having these ideals recognized in provincial law as an inalienable human right is important because so many areas of our everyday life - from housing, to our workplaces, unions, associations, services (including education), goods, and facilities - are under provincial jurisdiction. The code helps to take such expectations of what we agree to be fair, just and equitable off of the political bargaining table in these key social areas of life, where power, might and the will of the majority would otherwise hold sway, to the detriment of marginalized people.

How does the code impact human rights law and policy more broadly?

RW: The code is human rights law in Ontario and as such has the status of being “quasi-constitutional”, that is,? it has primacy and takes precedence over all other provincial laws and policies. Where other policies, laws or collective agreements conflict with the code, the code will thus generally prevail and set the standard to be followed.

How can human rights law and policy advance the push for systemic substantive equality?

RW: The current design of human rights law and policy tends to put the onus on the individual victims of discrimination to press for their rights, through a relatively daunting and reactive legal process, after the fact of discrimination. Human rights law and policy can better advance systemic equality by placing more of an onus and positive obligation on those who wield power within our public institutions to prevent discrimination and harassment, and proactively advance equity.

Some examples of this include requiring regular data collection and public reporting, systemic barrier reviews and human rights impact assessment (including budgets, policies and initiatives). Other examples are mandatory human rights training and education, and the development of proactive equity strategies with transparent targets and indicators.

What are some of the strengths and weaknesses of the code in addressing systemic discrimination?

RW: One of the strengths of the code and the case law that has grown up around it is its focus on adverse impact, which does not require one to establish malicious motive or intent, and which recognizes the many ways in which systems may? reproduce inequitable and discriminatory outcomes.

The code also has the merit of recognizing (unlike some jurisdictions to our south) that achieving equality may sometimes require treating different people differently, for example through targeted special programs and hiring, in recognition of the barriers? marginalized groups of people face in society’s uneven playing field.

One of the biggest limitations of the code in our era - where inequality is often reproduced passively through inaction and the laissez faire maintenance of status quo institutional arrangements which were historically designed precisely by and for the benefit of dominant groups - is its continual and disproportionate reliance on a reactive, individual-focused, enforcement mechanism (i.e. the complaint process). It is as if the framers of the legislation presumed that our institutions were essentially fair and equitable, and that we only needed to devise a way to address the bad apples out there, one case at a time.?

And while the OHRC, fortunately, has had a systemic public interest mandate at least since 2008, it has also had a very small budget relative to its task, in an era of unprecedented rising social inequality which really limits its potential impact, as a small fish swimming upstream.

What are the potential directions for how the code will evolve given changing cultural contexts?

RW: To address the pressing social justice issues of our day, and not be seen as irrelevant at best, or complicit with an increasingly unequal neo-liberal social order at worst in propping up its appearance of justice and fairness, we will need to enshrine, at minimum, more specific and substantive positive duties in legislation for organizations and power holders? to proactively monitor and advance equity and inclusively design our systems and institutions.

This will also require increasing the powers, budget, and independence of the OHRC, HRTO and HRLSC to more effectively fulfil their mandates and, in the longer term, giving further concrete expression, in Canadian and provincial human rights law,? to social, economic and cultural rights that have been long neglected and should form part of a whole with such civil and political rights as the right to equal, non-discriminatory treatment.

The code, and Ontario provincial law more broadly, also urgently needs to be explicitly reconciled with, and give effect to, the United Nations Declaration on the Rights of Indigenous Peoples. This will in turn require an ongoing grappling with the coloniality of our existing legal system, as well as the histories and traditions of thought underpinning and propelling these in the present.

(NOTE: You can watch the full conference recording on YouTube?(external link), including keynote addresses by Cindy Blackstock, Executive Director, First Nations Child and Family Caring Society and Donna E. Young, Founding Dean, Lincoln Alexander School of Law.? Panel sessions included "Addressing systemic discrimination in Ontario: An assessment"; "Rights inflation or rights realization? Perspectives on expanding rights claims"; and "Decolonizing the future of human rights". The full conference Agenda is available here).