On October 4, 2017, Bill 164, The Human Rights Code Amendment Act, 2017 (“Bill 164”) was introduced in the Ontario legislature as a private member’s bill by Nathalie Des Rosiers, MPP (Ottawa—Vanier). Bill 164 proposes amending the Ontario Human Rights Code (the “Code”) to include the following four new protected grounds of discrimination for individuals seeking employment, a place to live, or services:
- immigration status;
- genetic characteristics;
- police records; and
- social conditions.
The Code currently prohibits discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Bill 164 defines “immigration status” as “the status according to Canadian immigration law”.
Bill 164 proposes replacing references to “citizenship” in the Code with references to “citizenship or immigration status”. This amendment would mean that, not only would it be contrary to the Code to discriminate between Canadian citizens and non-citizens, but it would also be a breach of the Code to discriminate on the basis of status as an immigrant, refugee, or permanent citizen.
The amendment is aimed at helping protect workers in precarious groups, such as migrant workers, including agricultural workers and live-in caregivers.
Bill 164 also proposes to give individuals the “right to equal treatment without discrimination because of genetic characteristics”. This proposed right would include “the right to equal treatment without discrimination because a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test”. The effect of this prohibition would be that Ontarians would be protected from discrimination or harassment based on medical conditions that they have or may develop.
This amendment would align the Ontario Human Rights Code with the Canadian Human Rights Act, which was amended in May 2017 to provide similar protections for those who refuse to undergo a genetic test or authorize the disclosure of its results.
Bill 164 defines “police records” as including “charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police”. This proposed amendment to the Code aims to broaden protections by replacing the narrowly-defined prohibited ground of “record of offences” with the broader protection from discrimination based on “police records”.
Currently, the protected ground of “record of offences” protects against discrimination only on the basis of: (a) convictions under provincial legislation such as the Highway Traffic Act, and (b) convictions under federal legislation such as the Criminal Code, for which a pardon has not been granted. On the other hand, discrimination based on contact with the police that did not result in a charge or conviction, or on convictions for Criminal Code offences for which pardons have not been granted is not prohibited.
Bill 164 defines “social condition” as social or economic disadvantage that results from:
(a) employment status;
(b) source or level of income;
(c) housing status, including homelessness;
(d) level of education; or
(e) any other circumstance similar to those mentioned in (a), (b), (c), and (d).
If the amendment became law, employers would be prohibited from treating employees or prospective employees differently than others on the basis of “social condition” as defined in the Bill.
The Ontario Human Rights Commission has publicly endorsed the proposed Bill 164 amendments. Bill 164 has been referred to the Standing Committee on Regulations and Private Bills. For Bill 164 to become law and amend the Code, it must move through the committee consideration, pass third reading in the legislature and receive Royal Assent. Private members’ bills often undergo significant changes before they become law, and many never become law because they do not receive sufficient support.
If Bill 164 becomes law, employers will likely have to reevaluate their policies and practices to ensure that they do not discriminate on the basis of these new grounds in the recruitment process or in the course of the employment relationship. We will monitor the Bill’s progress and will post updates regarding major developments involving Bill 164 as it progresses through the legislature.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.