1. The context for interpreting the Codea) Background and historyIn 1962, many laws dealing with discrimination were brought together, along with additional protections, to create the Code. The Code has been amended at various times since then. The most recent amendments were passed in December 2006. The Ontario Code only provides protection against discrimination in Ontario. There are other pieces of human rights legislation in each of the other provinces and territories and federally. Show
b) Fundamental principlesWhen interpreting the Code or deciding what action to take in a specific circumstance, employers should always be guided by the fundamental principles of the Code:
c) The Canadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms (the Charter)[2] is a constitutional document. It is described as the “supreme law” in Canada because it can be used in the courts to challenge or strike down unconstitutional laws or government practices. The Charter guarantees equal rights and treatment based on a number of grounds, including race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. The Charter only applies to the acts and conduct of government, and does not apply to the acts of, and conduct between, individuals. In comparison, the Ontario Human Rights Code applies to both private and public sectors, as well as to conduct between individuals within the listed social areas. Despite these differences, some of the general principles used to interpret the Charter can also be used in interpreting the Code, although it is not clear that the same legal tests used for the Charter should apply to the Code.[3] d) International human rights documentsCanada
has signed on to many international human rights Conventions, documents and treaties.
In Canada, international documents are not part of domestic law unless the government passes a statute to put them into action. However, the values reflected in international human rights law may help us interpret human rights laws. This means that international documents may play an important role in interpreting the Code. [2]Constitution Act, 1982, Part
I. 2. The Code prevails over other lawsa) Other laws may apply along with the CodeIn employment, several laws may apply at the same time as the Code, with overlapping or parallel responsibilities. Knowing which laws apply and why they apply will help you know how best to handle situations that may arise in your workplace. Appendix B summarizes the most common areas of overlap between human rights legislation and other laws. b) Supremacy of the CodeThe Supreme Court of Canada has said that human rights legislation such as the Code is
not like other laws.[4] It should not be treated the same as other pieces of provincial legislation because it is almost as important as the constitution, or “quasi-constitutional.” This means that you must comply with the Code before other laws, unless there is a specific exception. The requirements in other
legislation may be considered to be minimum standards that can be exceeded to comply
At the end of the four weeks, one spouse returns to the job and the other requests more time off to continue to care for the child who has recovered somewhat but is still very ill. The employer takes the position that it has met its obligations under the Employment Standards Act and therefore this request for additional time is denied. The employer may be vulnerable to a human rights claim, based on family status and marital status. When there is a conflict between the Code and another Ontario law, the Code prevails unless that law specifically states it applies despite the Code. This is set out very clearly in subsection 47(2) of the Code.
The Supreme Court of Canada recently said that the Code applies when administrative bodies interpret legislation and make decisions.[5] Where there is an inconsistency between the Code and that administrative body’s own statute, the Code has primacy and will prevail.
Because of the special nature of the Code, the protections it provides will need to be broadly interpreted. The aim is to give effect to the key principles of dignity, mutual respect and equal opportunity to contribute.
On the other hand, any exceptions or defences in the Code are interpreted narrowly.
[4]Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145.
(Heerspink)
What happens when there is a conflict between state and federal law?When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution.
When a state law clashes with a Commonwealth Act the courts must follow?Section 109 of the Constitution provides: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
What is an example of a conflict between state and federal law?On occasion, federal and state law can come into conflict. An example of the tension between federal and state law includes the possession and distribution of cannabis, which is considered a controlled substance at the federal level, making production and distribution federally illegal.
How conflict between state and Commonwealth legislation is resolved in Australia?Under section 109 of the Australian Constitution, if a state parliament and the federal Parliament pass conflicting laws on the same subject, then the federal law overrides the state law. Section 122 of the Constitution allows the federal Parliament to override a territory law at any time.
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