The Ontario Human Rights Commission and the Framework for Mapping and Addressing Competing Human Rights

• Author: Lorne Foster & Lesley Jacobs
• Profession: Director of the graduate program in Public Policy Administration and Law (MPPAL)/Professor of law & society and political science as well as director of the Institute for Social Research at York University
• Pages: 361-383

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361

chapter 13

THE ONTARIO HUMAN RIGHTS

COMMISSION AND THE FRAMEWORK

FOR MAPPING AND ADDRESSING

COMPETING HUMAN RIGHTS

Lorne Foster & Lesley Jacobs2

A. INTRODUCTION

The Ontario Hu man Right s Commission (OHRC) has been a lea der in

Canada and internation ally in its eorts to addr ess competing hum an

rights th rough education a nd policy development. T he OHRC released

its Policy on Competing Human Rights3 in April 2012, cu lminat ing a six-

year program of rese arch and consultation foc used on detailing ee ctive

ways to address compet ing huma n rights cla ims. In genera l, compet-

ing human r ights claims a re situations in wh ich legally codied hum an

rights are c laimed by t wo or more parties to a d ispute, thus compl icat-

ing the norma l approach to resolvi ng a human rig hts dispute wher e

only one side clai ms a human ri ght in relation to a n alleged viol ator

1 This ch apter draws in par t on Shaheen Amz i, Lorne Foster, & Lesley Jaco bs,

eds, Balancing Compe ting Human Rights Claims in Divers e Societies: Instit u-

tions, Policy, P rinciples (Toronto: Irwin L aw, 2012), especially the I ntroduc-

tion and cc 2 and 8.

2 Lorne Foster is the dire ctor of the graduate pr ogram in Public Pol icy

Admin istration and L aw (MPPAL), and a professor in the Scho ol of Public

Policy and Ad ministr ation (SPPA) and the Departm ent of Equity Stud ies

(DES) at York University.

Lesley Jacobs is prof essor of law & society a nd political scienc e as well

as direc tor of the Instit ute for Social Resea rch at York University. He is also

executive d irector of the Can adian Forum on C ivil Justice.

3 Ontario Human R ights Commission , Policy on Competing Human Rights

(Toronto: OHRC, 2012) [OHRC, Policy], onlin e: OHRC ww w.ohrc.on.ca/

sites/default/les/polic y%20on%20competin g%20human%20righ ts_

accessible_2.pdf.

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lorne foster & l esley jacobs

of rights. This ch apter is designed to b oth explai n the OHRC’s policy

and conte xtua lize the role of t he OHRC in the formul ation of Canada’s

rst competing r ights polic y. It stresses in par ticula r the import ance

of social constructionism for m aking sense of how human r ights policy

in Canada i s developed and implemented as a response t o increasing di-

versity.

B. COMPETING HUMA N RIGHTS IN THE FACE OF DIVERSIT Y

In the context of globa lizat ion, diversity h as become an incr easingly

valued char acterist ic of contemporary so cieties. Diverse societies are

viewed as rema rkable for their va riety i n terms of relig ious practices,

spoken lang uages, ethn icities, sexualities, a nd expressions of multicul tur-

alisms. Such s ocieties are sa id to allow for a mea sure of openness a nd

adaptabil ity that enable them to meet ec iently and eectively t he ever

changi ng needs and demands of a globa l economy.

Yet, as societies have embraced a nd indeed aspire towards d iversity,

certai n challenges and tensions have b ecome visible that were not ful ly

anticipated. Wit h increased d iversity comes the orde al of more visible

conicts bet ween diere nt beliefs about how people shou ld best lead

their lives a nd what sorts of accom modations should b e made for per-

sons with di erent beliefs out of respect for hum an dignity and mutu al

recognition. Compet ing human r ights cla ims are one reec tion of this

ordeal.

Our point is t hat the practice of hu man rights has tak en on increas-

ing complexity i n Canada and other diver se societies because more and

more often around t he world the clai m to a right of one indi vidual or

group direc tly aect s the clai m to the human r ights of anothe r group.

Such competing hum an rights claims c an be played out in many places,

from the cla ssroom to workplaces, fr om the public square to t he inter-

national st age, where ever indiv iduals or groups actively cla im the rec-

ognition of rig hts that may interfere w ith the access to right s of others.

Examples of these s orts of competing human r ights should be fam-

iliar to a ll of us. Think about re ligious organizat ions that object on the

grounds of the r ight to relig ious practice to prohibit ions again st dis-

crimi nation against gays and lesbia ns or measures t hat promote the

inclusion of women. Imag ine, for example, a ba rber who refuse s to cut