Ontario election expected to determine survival of Human Rights Code amendments

It’s the nature of our legislative process that sometimes a bill will “die on the Order Paper” – meaning it’s introduced, read and debated, but does not receive Royal Assent before Parliament dissolves.

This was the unfortunate fate in Ontario of the Human Rights Code Amendment Act, 2017 (Bill 164).

The private member’s bill was introduced on Oct. 4, 2017, by local Liberal MPP Nathalie Des Rosiers. Although Bill 164 was quickly referred to the Standing Committee on Regulations and Private Bills on Oct. 26, 2017 after passing its first and second readings, whatever hope its supporters had was quashed when Ontario’s 41st Parliament was dissolved on May 8, 2018. 

Although Bill 164 has now died on the Order Paper, it proposed noteworthy amendments to Ontario’s Human Rights Code (the “Code”) that would have prevented discrimination based on the following four grounds: 

1. Social condition; 
2. Genetic characteristics;
3. Immigration status; and
4. Police records.

These amendments would have provided Ontarians with a right to equal treatment without discrimination on these grounds in the areas of services, goods and facilities, accommodation, the right to contract, employment and membership in various types of organizations.

1) Social condition

Bill 164 defined “social condition” as a social or economic disadvantage resulting from:

• Employment status;
• Source or level of income;
• Housing status, including homelessness;
• Level of education; or
• Any other circumstances similar to those above.

Prohibiting discrimination based on social condition would ensure that Ontarians could not be denied jobs, housing or other services because they lack a fixed address or stable employment. This ground would likely have the most expansive impact, and would provide greater protections for the most vulnerable and marginalized individuals in our society.

Several other jurisdictions in Canada currently recognize social condition or a related ground in their human rights legislation, including New Brunswick, Newfoundland and Labrador, Manitoba, Alberta, the Northwest Territories and Quebec. 

2) Genetic characteristics

Bill 164 specified that the right to equal treatment without discrimination because of genetic characteristics includes protection for people who refuse to undergo a genetic test or refuse to disclose the results of a genetic test.

This provision is intended to protect those whose genetics indicate they may be predisposed to a given condition or illness. For example, insurance companies may refuse coverage or may only provide selective coverage to those who have a higher risk of developing an illness down the road. Some have also suggested that genetics could be grounds for discrimination in cases of employment, child custody or even adoption.

This change recognizes that science has evolved considerably since the Code was enacted. Genetic testing is becoming more accessible, and allows people to learn about heritable genes, ancestry and risk of disease. However, many avoid taking these important tests for fear that the information may be compelled by an employer or insurer down the road. 

The federal government addressed this issue in 2016 when it passed Bill S-201, the Genetic Non-Discrimination Act. Since then, federally regulated employers cannot require an employee to undergo genetic testing or disclose the results of a genetic test. 

In Quebec, the issue has been referred to the Quebec Court of Appeal to determine whether the federal prohibition against requiring disclosure of the results of a genetic test to enter into a contract violates a province’s constitutional right to regulate its insurance industry.

3) Immigration status

Bill 164 would have also prevented discrimination based on immigration status. Currently, the Code only prohibits discrimination based on citizenship. 

This new proposed ground is meant to protect those who are stateless and those who are refugees to ensure that these individuals are not denied housing, education or health care on these bases. 

4) Police records

Bill 164 defines “police record” as including charges and convictions, with or without a record suspension, and any police records including records of a person’s contact with police. 

Although the Code currently protects those who have been convicted and received a pardon, record suspensions have since replaced pardons. Therefore, discrimination is currently allowed against those who have been charged for an offence, been acquitted of an offence or simply had contact with police, which can occur for any number of reasons.

Bill 164 would considerably broaden protections for those who have been in contact with law enforcement and/or Canada’s criminal justice system. 

Such a chance would impact many areas of the law. For example, it is common for employers to refuse to hire someone with a previous conviction, regardless of the circumstances of the conviction or its relevance to the job. Bill 164 would only allow employers to discriminate based on police records if it was a bona fide occupational requirement – for example, employees who will be working with children.

Conclusion

Lawyers practising in areas that involve human rights should remain aware that although Bill 164 did not receive Royal Assent before the most recently parliamentary session was dissolved, the proposed amendments nevertheless represent significant changes to human rights law in Ontario.

Whether or not these or other amendments are proposed when the next session begins will depend on the outcome of the June 7 election.

Alexander Dezan is an associate lawyer with Nelligan O’Brien Payne LLP and a member of the Labour, Employment, and Litigation practice groups. He assists employees who have been terminated, works on human rights issues, and advises on a range of employment-related matters.