A Helpful Guide On How to Determine What Human Rights Are Being Affected During the Covid19 Crisis

Human rights, for which every person within Ontario is entitled, are prescribed within the Human Rights Code, R.S.O. 1990, c. H.19 wherein various protections against discrimination are provided.  The human rights protections are based on various grounds; namely, race, ethnic origin, ancestry, place of origin, colour, citizenship, creed or religion, sex, sexual orientation, age, marital status, family status, disability, and the receipt of public assistance.  Discrimination in on any of these grounds, subject to few exceptions, may result in significant liability for the offender.

In March 2020, the Ontario Human Rights Commission (OHRC) released a policy statement regarding the Covid-19 Pandemic.  In summary, the Commission reported on the following:

1. Discrimination

Discrimination pertaining to the areas of services, housing, employment, vocational associations and contracts. An important ground that relates to COVID-19 is in regard to the Disability ground. If you become ill with the coronavirus and are the subject of discrimination, perceived or otherwise, this would fall under the Code’s definition of Disability and you will be protected. Other examples of such discrimination are in regard to whether a person is over the age of 60 (age), if a person is of Asian descent (race) and if a person comes from China, Spain, Italy or Iran (ethnic origin/xenophobia).  Xenophobia is defined as, “a dislike of or a prejudice against people from other countries”.  Due to the origin of the COVID-19 virus, many individuals of Asian descent have been the subject of xenophobic comments as well as harassment.  One incident that was alarming occurred in York Region in January 2020.  A group of parents sent a letter to their child(ren)’s school asking that any student who had family members or who recently travelled to China be told to stay home for seventeen days.  The letter also suggested that the school keep track of these Asian students and inform all parents on an ongoing basis about those students. This is conduct is prohibited and is discriminatory.

2. Employment

In regard to employment, if you are away from work due to the COVID-19 virus (disability ground), your employer must accommodate you. Your employer is also prohibited from terminating or disciplining you as a result. Your employer must accommodate you up to a point of undue hardship and the onus will be on them to prove the hardship, not you. The Code only considers these three areas in determining that the accommodation would cause undue hardship: the cost, outside sources of funding, if any and health and safety requirements, if any.

3. Services and Housing

In this category, services include retail shops and malls, schools, restaurants, bars, housing providers, long-term care and retirement homes, etc. If you have or have been perceived to have COVID-19 and it is not related to public health and safety, you may be able to prove discrimination. Some examples of this kind of discrimination would be barring you from entering a grocery store if you are perceived to have the virus, not being able to secure a new tenancy if a landlord, condo corporation or housing provider thinks you have Covid-19. Just like employment, all service and housing providers also have a duty to accommodate unless it will amount to undue hardship based on cost or health and safety.

4. Government-Run Facilities

The Canadian Government must ensure that the health of all individuals held in government-run facilities must be protected. These facilities include penal institutions (youth and adult), long-term care and child welfare centres. The Charter along with the Code applies to individuals in this category, in that they have a right to protection from discrimination and harassment in relation to COVID-19.

5. Economic, Social and Cultural Rights

The United Nations High Commissioner for Human Rights indicates that the communities who will be impacted greatly by self-quarantine or isolation will be the economically-marginalized communities. Indigenous communities are an example due to the discrimination and exclusion they already experience in their social, political and economic aspects.

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