Ontario Human Rights Commission as Law Enforcer
Historical Roots
public
responsibility
&
enforcement
conciliationeducation
vs.
adjudication
OHRC
Grievance arbitration
Direct access
direct
enforcement/
“enforce” in
context
When?
1930s & 1940s: Quasi-Criminal
– Insurance Act (Ont., 1932)
– Racial Discrimination Act (Ont., 1944)
– Municipal ordinances
– Saskatchewan Bill of Rights, 1947
1950s: Fair Practices
– Ontario, drawing on US model
Social Activism
• labour, community activists, adult educators,
legal academics, politicians
Carmela Patrias and Ruth Frager: the actions
taken against prejudice and discrimination
“. . . were not spontaneous reactions against the
horrific consequences of racism that had
manifested themselves during the war, but the
result of campaigns that were carefully and
painstakingly orchestrated by small groups of
Anglo-Canadian activists, and especially by key
minority groups.”
Public Responsibility
• Discrimination harms
• Government and citizen responsibility
• Government regulation
Discrimination Harms
• harm to individuals: material & dignitary
• harm to society:
– Divisive
– Anti-social
– “evil”
Citizens & Government
Sydney Lawrence Wax, 1947:
“Where lies the solution to this vexing problem
[of discrimination]? It would seem that remedial
action leads in two directions. One path
encompasses the individual and his duty as a
citizen of a democratic state; the other path leads
to parliament and the protection through
legislation of our basic rights and privileges.”
• e.g. Canadian Association for Adult Education
Government-Regulated Businesses & Public Spaces
Alderman Nathan Phillips, 1950:
‘When a person comes to the state for a license
to serve the public, it should be on the
understanding they serve all the public and not
just who they want to serve. It is not a license to
do what they like.’
• Skating rinks, etc.
• Dissent in Christie v. York Corp.
OHRC & Public Responsibility
• public interest
• public resources
• Tarnopolsky, 1968:
“The consolidation of human rights legislation
into a code to be administratively enforced by an
independent commission insures community
vindication of the person discriminated against.
• debate over direct access as “privatizing”
Why Law?
• Coercive power
• Even from an advocate: ... the biblical injunction to love thy neighbour
“loses its beauty if legally enforceable”.
• Law for discrimination vs.
Education for prejudice
e.g Alan Borovoy, 1965
“Too often we confuse the struggle for human rights with the passion
for brotherly love. In my view, it is not really necessary for an
employer to like Jews, Negroes, or New Canadians. It is only
necessary that he hire qualified Jews, Negroes and New Canadians.
One can be fair in one’s conduct without being lofty in one’s attitudes.
The opponents of human rights legislation fail to make this
distinction. … Every law and all law derives from the simple fact that
people do not like each other. If it were otherwise, law would be
superfluous.”
… but law is also educational
How Enforcement?
• emphasis on conciliation and persuasion
• Velvet glove vs. iron hand / iron fist
• US experience – very few cases referred to adjudication
• Ontario:
– FEPB, Ministry of Labour
– Decisions both about conciliation & referral to tribunal
made by Minister, on advice of Director of FEPB
• OHRC – emphasis on settlement, gatekeeper to
tribunal
How Did it Work?
• Fewer complaints than anticipated – need for
support and assistance
• Few resolutions:
– US data for fair employment practices = 32% of claims
“satisfactorily adjusted”
– Ontario data for fair employment practices = 4 out of
45 complaints validated
• Need for more systemic approaches
Discrimination & Problems of “Proof”
• Even with conciliation - low rates of resolution
• Essential for adjudication
• “An American Dilemma – Proof of Discrimination” (1949) Chicago
Law Review
“Nevertheless, the essential element of discrimination in its legal
context is the mental process of the alleged discriminator. … The
lawyer … [unlike the sociologist] because he is, in many cases,
forced to deal merely with a single instance of unequal treatment is
deprived of other instances with which he can make a comparison.
As a result he must look directly to the mental processes of the
alleged discriminator in order to determine whether there has been
discrimination.”
Direct discrimination: intentional connection a factor
Adverse effects: impact connection
Discrimination & Stigma
• Legacy of moral condemnation
• Sid Blum, 1963:
‘If a respondent is asked whether he has committed a
discriminatory act, almost invariably he will deny it.
Once having denied it, his very self-respect will impel
him to resist conciliation overtures. A settlement
would be perceived as an admission of guilt.’
“stigma of being labelled a human rights violator”
Law as a Tool
• Fair practices in the workplace
• Conferences, committees
• “competing venues” for enforcing as response
to OHRC process, e.g. grievance arbitrations
Direct Access & Law as a Tool
• “control”
• Complexity of legal process
• Challenges of “proof”
• Imbalance in resources
• law “in context”