Bill 35 and Bill 40: Potential Expansion of Rights under the Ontario Human Rights Code

Four New Grounds of Discrimination Put Forth

History

In 2016, Private Members’ Bill 30 was introduced to include genetic characteristics as a prohibited ground of discrimination.

In 2017, Private Members’ Bill 164 was introduced to include immigration status, genetic characteristics, police records, and social condition as prohibited grounds of discrimination.

  • Immigration Status: Bill 164 defined immigration status as the status according to Canadian immigration law.
  • Genetic Characteristics: People would be afforded the right to equal treatment without discrimination in the context of refusing to undergo a genetic test or refusing to disclose, or authorize the disclosure of the results of a genetic test. The addition of this ground of discrimination would align the Ontario Human Rights Code with protection provided in the Federal Canadian Human Rights Act.
  • Police Records: Bill 164 defined police records as charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police. This additional ground of discrimination would expand the human rights protection for people who have come into contact with the police.
  • Social Condition: 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).

As a result of the recent provincial election, these proposed bills did not progress; however, the initiatives have reemerged in the form of two newly proposed bills: Bill 35 and Bill 40.

Bill 35

Bill 35, Human Rights Code Amendment Act, 2018, is similar and essentially a reintroduction of the previous Bill 164, where four new grounds of discrimination are being proposed as amendments to the Ontario Human Rights Code: immigration status, genetic characteristics, police records, and social condition.

As in Bill 164, Bill 35 would implement the aforementioned definitions of the four newly proposed grounds of discrimination.

Bill 35 is a private member’s bill put forth by Liberal MPP, Nathalie Des Rosiers, and as such we will continue to watch the progression of this bill, but there is not a strong likelihood of it being passed into law under the current majority Progressive Conservative government.

Bill 40

Unlike Bill 35, Bill 40, the Human Rights Code Amendment Act (Genetic Characteristics), 2018, was introduced by the Progressive Conservative MPP, Christina Mitas. As a result, this bill has already passed second reading and has been referred to the Standing Committee on the Legislative Assembly.

In terms of human rights protection, Bill 40 is less expansive than Bill 35, and would only add genetic characteristics as a prohibited ground of discrimination under the Ontario Human Rights Code. “Genetic characteristics” under this bill is defined as “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease.”

Bill 40 also includes a carved out exemption provision for insurance contracts, where distinctions, exclusions, or preferences on reasonable and bona fide grounds would be permitted on the basis of genetic characteristics.

Practically, if this bill is passed employers should be weary of any practices which may discriminate against employees on the basis of their genetic characteristics.

Ontario Human Rights Code human rights

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