Our expert this month is Celia Chandler a Partner at Iler Campbell LLP, a progressive legal firm based in Toronto. She conducted a terrific workshop on resolving Human Rights conflicts at the Co-operative Housing Federation of Canada's Annual General Meeting in Charlottetown PEI attended by steering committee member Dan Bazuin. Much of the talk around the tables was about one question and this is it:
GTA Housing Co-ops are complaining that they are unfairly impacted by changes in the Ontario Human Rights system. Do you think they have a case?
Celia: On June 30, 2008, the Ontario human rights system was substantially changed. Until then, the Human Rights Commission undertook an investigative role, receiving complaints and determining whether it was necessary for a hearing at the Human Rights Tribunal. For seven years now, Ontario has had a direct access system, where people who feel their rights have been infringed can apply directly to the Human Rights Tribunal for a determination. In our experience, this has resulted in many more human rights complaints, - now called applications - being filed by co-op members against their co-ops. The same is true, however, for other housing providers, employers, and those who provide services. The system is simply easier to get access to and the numbers therefore increased.
Dan: But have co-ops been affected more than others?
Celia: Maybe. Co-ops are populated by diverse people with characteristics that are protected by the Human Rights Code, maybe in higher concentrations than in the general population. For example, because many housing co-op units are subsidized, and many people on subsidy receive ODSP, then perhaps there is a higher proportion of people in
co-ops who are disabled. Similarly, many co-op members are aging in place - perhaps
co-ops have a higher concentration of people who are older, and therefore could make arguments about age related discrimination. And finally, co-ops often attract new Canadians and therefore, perhaps, there are more people from other countries, per capita, then in other housing providers.
At the same time, though, housing co-ops are governed within the framework of the
co-operative principles - key among them is principle #1 which specifically requires that membership be open, “without gender, social, racial, political or religious discrimination”. Co-op organizations conduct regular education sessions on a wide range of issues - including human rights. Co-op bylaws often include a commitment to human rights - often indeed co-ops have specific bylaws dedicated to human rights. Co-op members, boards and staff, should therefore hold principles of human rights near and dear and operate accordingly.
Dan: Is the cost of accommodating under the Human Rights Code biased against co-ops?
Celia: I would say no. Built into the human rights framework is the principle that accommodation is only to the point of undue hardship, with cost being a factor for consideration. If the cost to accommodate will threaten the financial viability of an organization, the organization does not have to accommodate in that way. For example, because it has more money, Rogers Communications will be expected to pay more to accommodate a human rights request than will a non-profit, including a housing co-op.
Where perhaps co-ops and other non-profits bear a disproportionate share in dealing with human rights issues is in the damage awards and the costs to defend. If a co-op is found to have violated the Code and has to pay damages to a co-op member, there is no principle that we’re aware of that limits the amount of the damage award based on the ability of the co-op to pay. Similarly, the cost to defend a human rights application will more or less be consistent, regardless of the nature of the organization defending. But as with any organization, a housing co-op would likely be covered for the damage award and the legal costs, at least in part, by their insurance policy.