“Competing Rights” cases on the rise before the Human Rights Tribunal of Ontario

The case of Faith McGregor and the Terminal Barber Shop is just one of many competing human rights cases currently before the Human Rights Tribunal.

Ms. McGregor went to the Terminal Barber Shop sometime in June for a haircut known as the “businessman”, a cut that is long enough to comb on top, then tapered down and short on the sides. The shop owner and employees informed Ms. McGregor that they are Muslim and their faith prohibits them from touching a woman who is not a member of their family. For that reason, they explained they could not cut her hair.

Ms. McGregor subsequently filed a complaint Human Rights Tribunal alleging discrimination on the basis of sex. The shop responded stating that freedom of religion would be violated if the shop’s employees were required to cut women’s hair.

A potential solution was then proposed by the shop, who found a barber willing to cut Ms. McGregor’s hair. Ms. McGregor declined, stating that this is an important issue for the Tribunal to decide.

Mediation in this matter is scheduled for next February.

This case is one of many, the Ontario Human Rights Commission (the “Commission”) states, that are currently before the Tribunal. To attempt to better navigate claims of competing rights, the Commission released its Policy on Competing Human Rights in January 2012.

The Policy identifies key legal principles drawn from the existing case law and sets out a framework for recognizing and reconciling claims involving competing human rights.

The key legal principles identified by the Ontario Human Rights Commission include:

1. No rights are absolute
2. There is no hierarchy of rights
3. Rights may not extend as far as claimed
4. The full context, facts and constitutional values at stake must be considered
5. The extent of the interference must be examined
6. The core of a right is more protected than its periphery
7. The aim should be to respect the importance of both sets of rights
8. Statutory defences may restrict rights of one group and give rights to another.

The Commission’s Policy also sets out a framework for recognizing and reconciling competing human rights claims:

“Stage One: Recognizing competing rights claims

          Step 1: What are the claims about?
          Step 2: Do claims connect to legitimate rights?
                         (a)   Do claims involve individuals or groups rather than operational
                                  interests?
                         (b)   Do claims connect to human rights, other legal entitlements or
                                  bona fide reasonable interests?
                         (c)   Do claims fall within the scope of the right when defined in
                                  context?
          Step 3: Do claims amount to more than minimal interference with rights?

 Stage Two: Reconciling competing rights claims

          Step 4: Is there a solution that allows enjoyment of each right?
          Step 5: If not, is there a “next best” solution?

 Stage Three: Making decisions

  • Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for OHRC policy
  • At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario
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