On April 26, 2012, York University played host to the launch of an important new policy from the Ontario Human Rights Commission – the “Policy on Competing Human Rights.”  Educators, religious organisations, people from the disability community, people from GLTBQ community, and yes, lawyers practising in the area of human rights, gathered to celebrate this important development in human rights law in Ontario.

We have been consulted more than once by housing providers who are struggling with a conflict between a smoker and a non‑smoker who live near one another.  The smoker may be considered an addict and therefore someone with a disability protected under the Human Rights Code; another tenant or housing co‑op member who lives nearby may have a hypersensitivity to smoke also a disability under the Human Rights Code.  Until now, the housing provider has struggled with how to meet its duty to accommodate both disabilities under the Code.

This is just example of a situation where two protected rights compete with one another.

This new policy is intended to guide housing providers, employers, educators and others responsible under the Human Rights Code through the steps in the box below to resolve a conflict.  That conflict may be between two Code‑related rights or between a Code‑related right and a right that comes from another source, for example, the Charter of Rights and Freedoms or the Education Act.  Remember, it’s not a competing rights situation if the impact is only on the organisation – that is, if the employer or housing provider’s operational interests are affected.

Process for addressing competing human rights situations

Stage One: Recognizing competing rights claims

Step 1: What are the claims about?

Step 2: Do claims connect to legitimate rights?

1. Do claims involve individuals or groups rather than operational interests?
2. Do claims connect to human rights, other legal entitlements or bona fide reasonable interests?
3. Do claims fall within the scope of the right when defined in context?

Step 3: Do claims amount to more than minimal interference with rights?

Stage Two: Reconciling competing rights claims

Step 4: Is there a solution that allows enjoyment of each right?

Step 5: If not, is there a “next best” solution?

Stage Three: Making decisions

• Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for OHRC policy
• At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario

We encourage you to read the policy and see how it might apply to your organisation.  The Human Rights Commission hopes that by following the steps set out above early you can solve a small problem without the people involved filing human rights applications or having minor disputes become major crises.  But while following the steps may not prevent someone from filing an application at the Human Rights Tribunal, showing that you followed the process set out in the policy will surely help you defend against an application.  And of course, at any time we’d be happy to provide you with our best advice on how to apply the policy anytime.

We will keep you informed as we learn how the policy is being applied by the Human Rights Tribunal.  To review the policy, please consult the Ontario Human Rights Commission’s website at: http://www.ohrc.on.ca/en/policy-competing-human-rights

We provide a brief summary of the current legislative provisions, the proposed changes, and the impact of the changes on charitable foundations and organizations.

1. Current Situation

   As currently defined in the ITA, charitable purposes include the disbursement of funds to qualified donees, usually other charities.

   Charities are permitted to disburse funds as a gift to other qualified donees.

   If some of the gifted money is used by the recipient qualified donee for political purposes, that does not need to be accounted for in the political activities of the granting charity.  Only the recipient of the funds must account for its political activities with the use of those funds.  Under current guidance and court decisions, the accepted rule is that charities can conduct up to 10% of their activities for political purposes, if those activities are ancillary and incidental (subordinate) to the charitable purpose

2. Proposed changes

   Bill C‑38 proposes to change the definition of “charitable purpose”, to exclude disbursement of funds to a qualified donee where the gift funds a political activity of that qualified donee.

   Bill C‑38 will also amend the ITA to introduce a legislative framework in relation to political activities. The definition will read as follows:

   ‘political activity’ includes the making of a gift to a qualified donee if it can reasonably be considered that a purpose of the gift is to support the political activities of the qualified donee.

   Thus, the making of a gift to a qualified done, where the gift is for a political activity, is not a charitable purpose.

   The definition for “political activity” only requires that a purpose of the gift is to support political activities, and not that the entire gift be used for political activities.  Even if only a part of the gift were used by the qualified donee for the purpose of political activities, the entire gift would be considered a political activity for the donor charity.

3. Impacts on the grantor and grantee

   If a gift has as a purpose the support for the political activities of the qualified donee, the granting charity will no longer be able to count its gift as an expenditure towards its charitable purposes.

   Charities can still allocate up to 10% of their resources to political activities that are ancillary and incidental to their charitable purpose.  However, they will need to make appropriate inquiries about how their gifts to qualified donees will be used. They must be cognizant that gifts to qualified donees that are used for political activities will be included in the political activities of the donor charity as well.

   These new rules are clearly intended to restrict political activity, without changing the 10% rule directly. For the granting charity, this increases the likelihood that the 10% cap on political activity is reached more quickly.  This will obviously have an impact on the recipient charities as well:  if the granting charity is reaching its 10% limit sooner, it will mean less money going to recipients, if the recipient’s activities include as “a purpose” political activity.  Recipients will be forced to “write out” any political activities from their proposals to funders.

To make matters worse, no hearings were scheduled in rural communities.  These communities are most affected by the policies in the ARA, which unfairly favour aggregate extraction over other policy objectives.  Our client wrote to the Standing Committee on General Government asking for more time for a more thorough review and for rural hearings.  This request was entirely reasonable and was granted yesterday when the Committee moved to request travelling hearings.

Read Carl Cosack, chair of NDACT’s letter here.

For citizens and NGOs who want to challenge environmental decisions, the biggest obstacle is usually obtaining information about the potential environmental effects of a decision or project.  In the 1990s, the Ontario government passed the Environmental Bill of Rights which was supposed to make access to environmental information easier.

Read the column here.

What we do know is that the federal government is probably going to take further steps to reduce the number of federal environmental assessments (for more on this see our Fisheries Act amendment blog post ) as well as impose timelines.  Timelines are not new, as one year deadlines were put forward in regulations published in the Canada Gazette last year for comprehensive studies (or full environmental assessments).  If Mr. Oliver’s comments are accurate, further amendments will subject hearings to a two year timeline.

According to some sources, the federal government plans to eliminate any environmental assessment that does not have “national implications”.  This change could leave hundreds of projects un‑assessed as provincial legislation varies. There are also rumours that the government will eliminate public participation in hearings (also called review panels), limiting participation only to those who are “directly affected” by the project.  The latter would align the federal process with that in Alberta, which is highly restrictive and excludes environmental groups and nearby residents.

If these changes are made, the already dysfunctional federal environmental assessment process will be left in shambles.  Since the Conservatives took over, a series of amendments have trickled in, with astounding randomness, through budget bills starting with the 2010 federal budget.   Even the latest amendments appear to bear little connection to the review of federal assessment legislation which was just completed.  Nowhere is there any meaningful vision presented for how future environmental assessments will look or work or how the amendments fit in.  This is a wrecking ball approach.

Canadians responded to deep and divisive conflict over resources by enacting environmental assessment legislation in the mid‑1990s.  Without any semblance of process to buy into, we will likely revert back to the bad old days of politically charged and deeply divisive tensions and conflicts.  It seems foolhardy to discard the relative truce between big development and environmental groups that these processes foster by privileging science over strife.  It will not benefit the environment, investors, business or the federal government.

For more information and to take action visit:  http://www.envirolawsmatter.ca or http://www.sierraclub.ca/en/tar-sands/take-action-and-wake-up-parliament

Section 35(1) of the Fisheries Act currently states, “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.”

This section of the Fisheries Act currently protects all fish (and by extension all aquatic) habitat in Canada equally, without the need for the public or regulators to prove that the habitat has a subjective value.  Those wishing to harm fish habitat must apply for a permit, a requirement that triggers a federal environmental assessment and allows permit conditions to be imposed to reduce the harm done.

The Proposed Amendments

No official proposals have been tabled in the House of Commons or released for public consultation.  The leaked amendments reported in news media would see the term “habitat” replaced with the phrase “fish of economic, cultural or ecological value” and the phrase harmful alteration, disruption or destruction with “adverse effect”.  See the full list of proposed amendments here.

These changes would mean that a prosecutor or regulator would need to prove or provide evidence that the fish population threatened by destruction of its habitat is of “economic, cultural or ecological value.”  Consequently, it could be easier to destroy fish habitat.

Moreover, the changes would make the process of determining whether to issue a permit to destroy fish habitat a question of opinion rather than fact.  The “value” of the fish, arguably something which is entirely subjective and ever changing, could be assessed in a way which allows destruction of fish habitat without a permit.

For example, under the amendments, a proponent could provide a consultant’s opinion to DFO that states that the aquatic habitat in question is marginal or of low quality, resulting in no permit or conditions being required if DFO agrees.  These methods (providing arguments regarding fish habitat quality to justify harm) are already used by proponents, however they cannot successfully circumvent the requirements of the Fisheries Act as it is worded right now.  If the proposed amendments are brought in, they will.

Effect on the Environmental Assessment Process

Currently, to trigger an environmental assessment, fish advocates need only show that the project will disrupt fish habitat.  For example you need only determine that the project alters a watercourse, and there are fish in the watercourse.  Fish are easily found in watercourses making the process transparent and easy to determine for non‑experts.  The threshold in the current section is low, essentially if the project will interfere with fish habitat, the requirement is triggered.

With the proposed amendments, there would be considerable latitude for proponents to argue that no environmental assessment is required based on whether the fish are of value, and whether the activity would cause an “adverse effect”.  In a dispute about whether a federal environmental assessment is required, the fish advocates would have to get expert opinions on the type of fish, their value, and the extent of the harm.

This will almost certainly mean that very few projects are subject to either federal permits or environmental assessments.  The upshot is that conditions that could mitigate harm would not be imposed.  It would also leave a large number of projects that are currently assessed federally un‑assessed from an overall environmental perspective.

While the Harper Cabinet argues it is simply speeding up bureaucratic processes related to pipeline projects, the legacy of the section 35 amendments could be significant and the new provisions could very well lead to immeasurable Fisheries Act enforcement difficulties in the future.

For more, be sure to read Otto Langer’s response to the Minister’s defense of the changes.

New exemptions and longer timelines under the Endangered Species Act

Schedule 19 would add exemptions to the habitat and species protection provisions in the ESA for infrastructure repairs, alterations near private residences, and eliminate health and safety permits and permits for activities that will assist in species protection, creating new exemptions for those activities.  Timelines are extended for long periods for the requirement to create recovery strategies, respond to recovery strategies, and respond to management plans.  These amendments would put Ontario species at much greater risk of extinction or extirpation than the current act.

New exemptions under the Crown Forest Sustainability Act

Schedule 15 would add an exemption from the requirement that the Minister require that a forest management plan be prepared for a management unit.  There are further exemptions to harvesting limit and compliance with management plans to be enacted by regulation based on activity purpose.

Exemptions from the Fish and Wildlife Conservation Act

Schedule 23 would allow new regulatory hunting exemptions, allowing prescribed persons to hunt without a licence, including with dogs.  It would also allow authorizations and exemptions for the destruction of bird nests and eggs.  Exemptions are also included for the keeping of live game and consumption of game and transport of game out of Ontario.  There are also provisions allowing custodians to kill injured wildlife.  The bird nest and eggs amendment may place this provincial law at odds with federal migratory bird protection legislation and international treaties.

Other amendments

Niagara Escarpment Planning and Development Act, Schedule 44 would make minor amendments to s.17 which addresses the process for reviewing the plan.

Ontario Clean Energy Benefit Act, Schedule 46 is amended to limit financial assistance in respect of electricity costs to a maximum of 3,000 kilowatt hours of electricity per eligible account per month. Cabinet may prescribe a different maximum number of kilowatt hours for multi-unit complexes and may make regulations governing the determination of the maximum financial assistance to which consumers are entitled under the Act.

Provincial Parks and Conservation Reserves Act, Schedule 58 would amend subsection 10(6) which deals with public consultation of reviews of management plans and management statements.  A new subsection 14 (2.1) would authorize the Minister to issue new land use permits in respect of land in provincial parks and conservation reserves.   Cabinet approval would be removed for agreements respecting access roads, making it easier to have roads approved in protected spaces.

Public Lands Act, Schedule 59 would amend the Act to allow Ministerial delegation.  Regulation making powers would be broadened for activities carried out on public lands and shore lands and to allow the Minister to exempt persons from obtaining a work permit for those activities.

In an article on spacingtoronto.ca, Mathew Blackett praises the action, writing, “instead of the typical cycling activist action of taking over an intersection and holding bikes high overhead to piss off drivers, the Union is taking the game to the City.”

The Union has given the city ten days to respond after which they will submit their request to the Minister of the Environment.

Read the Toronto Cyclists Union’s press release and the legal opinion here.

UPDATE: April 5, 2011

This issue has received a lot of media attention. Read stories here: Toronto Star, National Post,  Torontoist, ibiketo.ca,  Toronto Sun, insidetoronto.com,  Now Magazine, CBC, CTV, 680 News, CityTV, Open File, BlogTO, Toronto Life

In our first entry, Paula Boutis writes about the March 8, 2012 NDP motion which expands the investigative powers of Elections Canada in response to the “robocall” scandal. The motion passed unanimously. Paula explains what this will mean.

Read it here.

Ministry of Natural Resources Transformation

To enable the Ministry of Natural Resources to transform the stewardship and conservation of Ontario’s natural resources in the most fiscally responsible way, the ministry is proposing to:

• transform key parts of its legislation, regulations, policies and guidelines with a view to streamlining and automating permitting processes and requirements;
• conduct resource management with a stronger regional focus and fewer field offices; and
• redesign its science and delivery activities to shift away from a species-by-species approach to a risk-based ecosystem/regional approach.

…

The Province is proposing amendments to the Endangered Species Act that maintain its commitment to protecting species at risk while streamlining approvals and permitting.

Earlier this year, we wrote about Sierra Club Canada’s application in the courts challenging the first permit issued to harm species at risk and/or their habitat under the Endangered Species Act (Act) After a loss at the Divisional Court, Sierra Club Canada sought leave to appeal to the Court of Appeal, which was denied.

As counsel for Sierra Club Canada, I had an in‑depth look at how the first permit was issued to harm species or their habitat for the Windsor Essex Parkway (WEP).  I can certainly attest to the fact that a lot of work was done by the Ministry of Natural Resources in “going through the process” required by the Act; but it was Sierra Club Canada’s conclusion, that when viewed objectively, one would be hard pressed to say that there would be no jeopardy to the recovery or survival of certain of the species at risk affected by the WEP, as the Endangered Species Act requires.  In particular, this was Sierra Club Canada’s view for three species affected by the project, Eastern Foxsnake (Carolinian Population), Butler’s Gartersnake, and Colicroot, a plant species.

Between granting the permit and the project proceeding, Butler’s Gartersnake was elevated from threatened to endangered.  This necessitated a new permit to allow the destruction of the habitat of that species, as well as to harm individuals of the species.  The Ministry of Transportation therefore made a second application for another permit under the Act.

The Act requires the Minister of Natural Resources to obtain opinions from experts independent of the project to provide an opinion related to the jeopardy of the survival or recovery of the species that would be impacted by the WEP.

In the first permitting round, the Minister received two conflicting opinions related to Butler’s Gartersnake: one (pdf) indicated there would be jeopardy, while the other (pdf) indicated there wouldn’t be jeopardy.

In the second permitting round, the Minister received another opinion that Butler’s Gartersnake would be jeopardized.  Nonetheless, the Minister’s opinion was that it would not be jeopardized, and the second permit was issued.

Ultimately, the Divisional Court has pronounced in law that the Minister does not need to base his or her opinion on the expert advice received. The Court held that the Minister’s decision to issue the permit was one of public policy, rather than one based on science and species protection.  The precautionary principle was only a consideration.

As it stands the fundamental purpose of the Act, which is to protect species at risk, cannot be achieved if permitting decisions are ultimately relegated to “policy” questions and the independent expert opinions are irrelevant.  The government clearly made a policy decision that the WEP needed to go ahead, even if jeopardy to the recovery or survival of certain species was likely.  While it seems that the Ministry of Transportation and the Ministry of Natural Resources will try to do everything possible to avoid this outcome, the science indicates that in fact, nothing could realistically be done for some of the species, best efforts (and significant amounts of money thrown at the problem) notwithstanding.    The efforts are a waste of taxpayer dollars.

The government’s proposed amendments to move away from protection of individual species to an ecosystem approach is entirely consistent with how it approached the permit challenged by Sierra Club Canada for the WEP.   The environmental community has opposed the ecosystem approach as unworkable for species at risk, as the data indicates that multi‑species approaches are significantly less effective than single species approaches.

From the perspective of Dan McDermott, Sierra Club Ontario Chapter Director, “the McGuinty Government’s political will to protect species at risk was suspect before this budget.  Now it can be said to have evaporated.”

UPDATED March 30: Edited to remove an inaccuracy.