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

|

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 Human Rights Commission (OHRC) has been a leader in

Canada and internationally in its eorts to address competing human

rights through education and policy development. The OHRC released

its Policy on Competing Human Rights3 in April 2012, culminating a six-

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

ways to address competing human rights claims. In general, compet-

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

rights are claimed by two or more parties to a dispute, thus complicat-

ing the normal approach to resolving a human rights dispute where

only one side claims a human right in relation to an alleged violator

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.

362

|

lorne foster & l esley jacobs

of rights. This chapter is designed to both explain the OHRC’s policy

and contextualize the role of the OHRC in the formulation of Canada’s

rst competing rights policy. It stresses in particular the importance

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 globalization, diversity has become an increasingly

valued characteristic of contemporary societies. Diverse societies are

viewed as remarkable for their variety in terms of religious practices,

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

alisms. Such societies are said to allow for a measure of openness and

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. With increased diversity comes the ordeal of more visible

conicts between dierent beliefs about how people should best lead

their lives and what sorts of accommodations should be made for per-

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

recognition. Competing human rights claims are one reection of this

ordeal.

Our point is that 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 the world the claim to a right of one individual or

group directly aects the claim to the human rights of another group.

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

from the classroom to workplaces, from the public square to the inter-

national stage, where ever individuals or groups actively claim 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 right to religious practice to prohibitions against dis-

crimination against gays and lesbians or measures that promote the

inclusion of women. Imagine, for example, a barber who refuses to cut