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

AuthorLorne Foster & Lesley Jacobs
ProfessionDirector 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
chapter 13
Lorne Foster & Lesley Jacobs2
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
sites/default/les/polic y%20on%20competin g%20human%20righ ts_
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-
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
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

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