Various members of the Ontario legislature are working to give additional human rights protections to Ontarians.
Bill 35, the Human Rights Code Amendment Act, 2018 is a private member’s bill brought by Liberal MPP, Nathalie Des Rosiers. Whereas Progressive Conservative MPP, Christina Mita introduced Bill 40, the Human Rights Code Amendment Act (Genetic Characteristics), 2018, which has passed Second Reading and been referred to the Standing Committee on the Legislative Assembly.
Given the current makeup of the government, it seems much more likely that Bill 40, rather than Bill 35, will pass and become law.
Bill 40 proposes to add genetic characteristics as a prohibited ground of discrimination under the Ontario Human Rights Code. “Genetic characteristics” would mean “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease.” It will also include protections for those who refuse to undergo a genetic test or refuse to disclose, or authorize the disclosure of, the results of a genetic test.
If passed into law, Ontario will join the Federal government in its protection against genetic discrimination. Of note, however, Bill 40 has an exemption for insurance companies allowing them to make distinctions, exclusions, or preferences with reasonable grounds on the basis of genetic characteristics. Practically, the majority of discrimination on the basis of genetic characteristics currently occurs in the provision of insurance, so this bill may have little actual impact.
Bill 35 resurrects a previous private member’s bill, Bill 164, which attempted to significantly alter the Code.
Bill 35 proposes to add immigration status, genetic characteristics, police records, and social condition as human rights grounds.
While each of these grounds warrants a close examination, adding “social condition” would likely cause the most drastic change to the human rights landscape. Social condition would be defined as social or economic disadvantage arising from employment status; source or level of income; housing status, including homelessness; level of education, or any other circumstance similar to those.
There has been much debate over adding social condition to the Code in the past. The ground is meant to provide stronger protection to the most vulnerable individuals in society. As recognized by the Ontario Human Rights Commission, the argument for its addition is that poverty frequently intersects with other protected grounds and without an explicit protection on the basis of poverty, the most marginalized members of our communities cannot truly benefit from human rights protection.
Those against its addition often point to the illusive meaning of ‘social condition.’ They further worry about the strain on the system its addition would have by increasing the overall volume of cases. The Human Rights Tribunal of Ontario already has a sizeable backlog of cases with lengthy delays between the date of filing an application to the date of a mediation or hearing.
While a significant change, Ontario would not be alone in recognizing social condition as a protected human rights ground. Human rights acts in Alberta, Manitoba, New Brunswick, Quebec, Newfoundland and Labrador, and Northwest Territories all recognize social condition, social origin, or source of income as protected grounds.
Ontario would also be joining other provinces like British Columbia in having more fulsome protection against discrimination on the basis of “police records.” The Bill proposes to prohibit discrimination due to an individual’s charges, convictions, and contact with police. This would replace the current human rights ground of “record of offences,” which is defined only as an offence for which someone has been pardoned.
Of note, for genetic characteristics, Bill 40 does not include the same exemptions for insurance companies as Bill 35. This means that insurers would not be permitted to make decisions about policy and coverage on the basis of genetic characteristics. Bill 40 would provide much more significant protection to Ontarians on the basis of genetic characteristics.
If all of the changes in Bill 35 became law, employers, service providers, and landlords would need to carefully examine their policies and practices to ensure they are compliant with the new law.
If you have any questions about your human rights or these amendments, you can contact MacLeod Law Firm at 647-204-8107 or at [email protected]
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