Balancing Conflicting Rights: Towards an Analytical Framework

• Author: B.J. Wray
• Pages: 295-348

295

Chapter 11



Towards an Analytical Framework

B.J. Wray*

A. Introduction

This paper was initially drafted for the Ontario Human Rights

Commission (OHRC) in the summer of 2005 as part of their pro-



In the intervening years, there have been a number of notable

        

have updated this paper accordingly. Since the legalization of

same-sex marriage in June 20051 some of the most prominent

-

dom of religion and sexuality equality rights. In Saskatchewan, for

example, the Court of Appeal was called upon by the provincial

government to review the constitutionality of proposed provincial

legislation which would have exempted civil marriage commis-

   -

ligious beliefs.2 In Ontario, the Superior Court recently grappled

with an exception provision in Ontario’s Human Rights Code3 that

* The opinions expressed in this paper are those of the author alone and

do not represent the views or opinions of the Department of Justice.

1 Civil Marriage Act, SC 2005, c 33.

2 In the Matter of Marriage Commissioners Appointed Under The Marriage

Act, 1995, SS 1995, c M-4.1. 2011 SKCA 3 [Reference re Marriage

Commissioners].

3 RSO 1990, c H.19 [Code].

B.J. Wra y

296

involved balancing the rights of a religious organization with the

sexuality equality rights of one of its employees.4 These develop-

ments provide the background for this paper and, not surpris-

ingly, several of the scenarios outlined below are drawn from the



The purpose of this paper is to provide an analytical frame-

   

the Code. It is not meant to be an academic exploration of the

theories or philosophies that inform the balancing process. Nor

is it meant to be a treatise on how, precisely, one ought to imple-

ment a balancing process. Rather, this paper was developed as

a practical exploration of the tools one may use when faced with



          

        

have ensued. Section C outlines criteria for identifying when

there is no        



context. A number of balancing tools emerge from an examina-

tion of three main sources: caselaw, the preamble and exception

sections of the Code, and previous policy work in this area. Sec-

-



examples are used to illustrate how the balancing process may

work within and across a range of protected grounds.

       

highlighted below: pragmatic balancing and principled balanc-

ing. These models represent distinct approaches to the issue

of balancing. The implications of these distinctions, in terms of



-

4 Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC

2105 [Christian Horizons].



297

amples. Each model tends to foreground certain balancing tools

over others.

For instance, pragmatic balancing focuses on the need to

carefully weigh competing interests in such a way that the reso-

     -

quently, pragmatic balancing looks to tools such as the exception

sections of the Code and the duty to accommodate as factors

   -

lar context. On the other hand, principled balancing often fore-

grounds factors such as the values underlying the Code and the

Canadian Charter of Rights and Freedoms,5 and delineates the



possible. Whereas pragmatic balancing will always proceed in a

case-by-case manner, principled balancing may put forward over-

riding concerns that will apply across all cases and all contexts.

Although it is the aim of this paper to tease apart these two

distinct theoretical approaches to balancing, in practice they nec-

essarily coexist. This will become particularly evident in the case-

law section of this paper where the tools associated with both

pragmatic and principled balancing are often employed within

a single judicial decision. Courts generally must grapple with

       

because principles and pragmatic outcomes are both at stake.

Indeed, the Supreme Court noted this in Sydicat Northcrest v.

Amselem: “This appeal requires the Court to deal with the inter-

relationship between fundamental rights both at a conceptual

level and for a practical outcome.”6 This paper explores how the

conceptual or principled tools for balancing are translated into



important to identify the separate strands of balancing in order

5 Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11

[Charter].

6 Syndicat Northcrest v Amselem, [2004] 2 SCR 551 at para 1 [Amselem].