Addressing Conflicting Human Rights: Some Recent Case Law

In a society as diverse and multi-cultural as our own, in which individuals are becoming ever more aware of their legal rights, it is no surprise that we are seeing an increase in competing human rights claims. Of particular note, the media has recently been grappling with incidents in which an individual's assertion of his or her religious rights is seen to conflict with the rights of other individuals. Can a female passenger on an airplane be asked to change seats to accommodate the religious beliefs of a male passenger? Does a male barber have the right to refuse to give a haircut to a female customer on the basis of his religious beliefs? Can a sexual assault complainant be asked to remove her niqab while testifying in order to protect the right to a fair trial of the accused? The Ontario Human Rights Commission's "Policy on competing human rights" (January 26, 2012) provides a guide to striking a balance between competing rights.1 The following review of recent cases illustrates the complexity of this issue and of the balancing act that it requires.

(i) Kacan v. Ontario Public Service Employees Union (Human Rights Tribunal of Ontario)2

This is one case in which the Commission's Policy is explicitly considered. The applicants were intellectually disabled individuals living in group homes operated by community living organizations. During a legal strike, the unions (whose members were support workers for the applicants) picketed outside of the community living locations. The Tribunal considered picketing, which is central to the right to freedom of expression and association, as competing with freedom from discrimination with respect to services and accommodation. Although it dismissed the application without having to consider these competing rights, on the basis that picketing does not fall into a social service protected by the Code, the Tribunal expressly endorsed the "key legal principles" from the Commission Policy in its decision (para. 32).

(ii) Taylor-Baptiste v. Ontario Public Services Employees Union (Human Rights Tribunal of Ontario)3

In this case, the applicant was a manager at the Toronto Jail. She alleged that the Union President, who was also an employee of the jail, made comments in his blog that were sexist and discriminated against her on the basis of family status. The applicant's rights were in opposition to the Union's right of expression regarding its relationship with management, as the blog was the Union President's way of communicating with Union members about unionmanagement issues. The Tribunal recognized that the blog posts were troubling and sexist, but found that they were made by the Union President in the context of his Union role and not as the applicant's co-worker. Ultimately, the "applicant is a manager, who has the power in the workplace that comes with that role" (para. 37). The blog posts are "analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union's right to operate independently of the employer" (para. 37). As a result, the Tribunal dismissed the applicant's claim of discrimination...