The Muslim barber at the barber shop, whose deeply held religious beliefs forbid him from touching a non-relative woman, or the woman refused a haircut and made to feel like a second-class citizen; the teenage victim of cyber-bullying who wants to commence a civil action against her tormenter anonymously or the media who jealously and rightly protect the openness of our courts; the gay and lesbian Saskatchewanians, who have a fundamental right to be free from discrimination, or the two men accused of sexual assault and fighting for their liberty or the alleged victim, a Muslim, whose faith requires her to veil her face, even in court.

These are some of the problems of “competing rights” that have vexed our courts and statutory human rights agencies in the past year.

In an effort to navigate this tricky area, in January 2012 the Ontario Human Rights Commission released its “Policy on Competing Human Rights.” The policy describes competing human rights as involving “situations where parties to a dispute claim that the enjoyment of an individual or group’s human rights and freedoms, as protected by law, would interfere with another’s rights and freedoms.” The policy affirms many of the same principles identified by the courts in its decisions reconciling rights under the Canadian Charter of Rights and Freedoms: no rights are absolute; there is no hierarchy of rights; and the full context, facts and constitutional values at stake must be considered.

The policy applies a process for addressing competing human rights complaints as follows:

Stage One - Recognizing competing rights claims

• Step 1: What are the claims about?
• Step 2: Do claims connect to legitimate rights?
  1. Do claims involve individuals or groups rather than operational   interests?
  2. Do claims connect to human rights, other legal entitlements or bona fide reasonable interests?
  3. 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.

This framework is similar to the competing rights framework established by the Supreme Court of Canada in R v. NS and R v. Mentuck: does the order requested interfere with the parties’ respective constitutional rights? Is there a way to accommodate both rights and avoid a conflict between them? If no accommodation is possible, do the salutary effects of protecting one party’s right outweigh the deleterious effects of doing so? As then-Justice Iacobucci noted in his 2003 article “Reconciling Rights: The Supreme Court of Canada’s Approach to Competing Charter Rights”, “The exercise in which courts engage when they define the content and scope of rights in relation to one another, more closely approximates rights ‘reconciliation’ than rights ‘balancing.’”  In other words, courts and tribunals must try to give full effect to both parties’ legitimate rights.

This new framework has not yet been expressly applied by the Human Rights Tribunal of Ontario, though the guiding principles or policy were referenced in Kacan v. Ontario Public Service Employees Union and Taylor-Baptiste v. Ontario Public Service Employees Union. That being said, the Tribunal has extensive experience in balancing and reconciling competing rights, often using a similar framework. The challenge for the Tribunal will be in reconciling or accommodating competing rights as part of its decision-making process. Though the framework will undoubtedly be useful in mediating and settling complaints, the Tribunal’s remedial powers may restrict its ability to fashion resolutions that give full effect to both parties’ rights. The examples from this past year demonstrate that conflicting rights are not easily resolved, which suggests that the Commission’s policy will be well-referenced in the months and years to come.

The author is counsel to the applicant in her application for judicial review in this matter. The views in this article are the personal views of the author and do not necessarily reflect those of his firm or clients.

About the Author

Ranjan Agarwal is a partner at Bennett Jones LLP and a member of the Ontario Bar Association’s Equality Committee.