When a woman walked into a downtown barbershop last June for a haircut, the co-owner and other staff told her their Muslim faith prohibited them from touching a female who is not their family member.
The rejected customer filed a complaint with the Human Rights Tribunal of Ontario (HRTO), saying she felt like a “second-class citizen”. She’s requesting the HRTO to force the barbershop to offer men’s haircuts to males and females and she also suggests in her application that the shop post a sign indicating it serves both genders.
Mediation is scheduled for February and if that fails, an adjudicator will decide the case’s outcome.
This is just one in an increasing number of competing cases being brought to the HRTO.
“In an instant, it seemed that everyone was talking about competing rights when this matter made headlines and almost everyone had an opinion,” said Ontario Human Rights Commission (OHRC) chief commissioner Barbara Hall. “It’s a good example of the issues that we have been seeing regularly at the OHRC over the last few years.”
Seven years ago, the OHRC started the process of developing Canada’s first policy to address competing human rights claims. The policy development included extensive consultation with the public, academics, human rights commissions across the country and human rights community stakeholders in the province.
This resulted in a policy for Ontario that was released last April and a book – Balancing Competing Human Rights Claims in a Diverse Society: Institutions, Policy, Principles – that was launched at York University last week.
“This book comes about in part because of the experiences that we at the commission, but also people in every institution and community across our province are experiencing,” said Hall. “This book offers the collective wisdom of a really impressive team of scholars, all bringing different perspectives about the problems that are arising when one right seems to come up against another and what we can do when rights appear to be in conflict.”
A former City of Toronto mayor, Hall cited several other competing human rights cases that have made headlines. They include the debate over proposed anti-bullying legislation that has fuelled criticism of public funding for religious schools and caused a rift between Premier Dalton McGuinty and many Catholic leaders who believe that gay-straight alliances contradict the church’s teachings, and the Christian Horizons case.
In May 2010, the provincial court ruled on the appeal of a 2008 decision made by the HRTO which found that Christian Horizons infringed the rights of an employee who was in a same-sex relationship. The key issues of contention were the right of the organization to require its employees to sign a lifestyle and morality statement that prohibits employees from homosexual relationships and the right of a gay employee to be free of discrimination based on sexual orientation.
“These are the kinds of challenges that led us at the commission to create a new policy on competing human rights,” said Hall. “Our goal was to develop a process that would help organizations and individuals deal with the sometimes difficult situations. I think one of the reasons we felt it was important to do this was because we know that people feel very strongly about their rights and in that ‘so strong feelings’ there was the opportunity for tensions and conflict to occur within communities as well as between communities.
“We also knew as these issues were coming up that they were being dealt with in a very ad hoc way and that it was worth looking to see if there were principles and processes that would help us work to develop a framework that is included in our policy which sets out a way for dealing with competing rights in a manner that both respects all the people engaged in that competition as well as respecting the rights that come up against each other.”
Hall said the commission was delighted to work with the York Centre for Public Policy & Law and she also thanked the authors for sharing their experiences and wisdom.
“Searching for solutions can be challenging, controversial and sometimes unsatisfying to one side or the other,” said Hall. “But we all share responsibility to try to get past our differences. I think that is much easier to do when we understand our own rights and obligations and those of others and when we talk about it. Resolving competing human rights complaints has to start with a respectful discussion and each of the articles in this book does that.”
The first part of the book presents the policy and a series of chapters that provide instructive background for the development of the policy while the second part broadens the scope of the discussion by exploring broad principles at stake when human rights compete.
The contributors include OHRC policy, education and outreach director, Shaheem Azmi; Law Commission of Ontario executive director, Patricia Hughes and York University law professor, Miriam Smith.
Azmi, along with York University law professor, Lesley Jacobs and Dr. Lorne Foster director of the university’s graduate program in public policy, administration and law, edited the 484-page book.
Foster acknowledged the York University Centre for Public Policy and Law’s support for the project.
“They provided us with a vehicle for exploring and understanding the human rights goals in a modern context so we could actually come to a clearer picture of how it is we could promote protections and inclusiveness in our society,” said Dr. Foster, a former Share columnist.