Assemblée législative de l'Ontario

The House resumed at 8 p.m.

HUMAN RIGHTS CODE (CONTINUED)

Resuming the debate on the motion for second reading of Bill 209, An Act to revise and extend Protection of Human Rights in Ontario.

Mr. Renwick: Mr. Speaker, I will continue. The assembly does not march to my particular drum and I do not intend to detain the assembly unduly long, although I have some matters that are of immense importance to me in this debate on Bill 209, An Act to revise and extend Protection of Human Rights in Ontario.

A very brief summary of what I was saying before the dinner recess is that we cannot here in Ontario isolate ourselves from the obligations which Canada, as a nation state and member of the General Assembly of the United Nations, has assumed on behalf of Canada. I was trying before dinner to indicate quite clearly that in the preamble of the bill which is before us, the reference is to the Universal Declaration of Human Rights proclaimed by the United Nations. That was back in 1948. Since that time in 1976, Canada has adhered to two international treaties, the covenant with respect to civil and political rights and the covenant with respect to cultural and other rights.

In a strange way, I think we have to be clear in our own minds what that adhesion by Canada as a nation state to the international community to these two covenants means with respect to the obligations of Ontario under those covenants. The particular covenants I am referring to are the covenant with respect to economic, social and cultural rights and the covenant with respect to civil and political rights. I am not knowledgeable, except by reading, about the rights included in the covenant with respect to economic, social and cultural rights. I am, however, knowledgeable about the Canadian response to the international covenant on civil and political rights simply because, under that covenant, the government of Canada was required to respond to the UN committee set up under that covenant about the position of Canada and about the position of Ontario.

I want to make that connection because my emphasis at the beginning was to select from the comments made by the Minister of Labour (Mr. Elgie) when the bill was introduced into the assembly the statement that this is a beginning and not necessarily the end of reform. It is very much a beginning.

Let me illustrate without quoting at great length, but quoting because it describes succinctly and well our relationship in Ontario to Canada and Canada’s adhesion to the international covenant to which I refer. My reference is to the report of Canada on the implementation of the provisions of the covenant on civil and political rights, dated March 1979. It is published by the Secretary of State of Canada. It contains, unknown I am certain to very many members of the assembly, some 55 pages about Ontario in relation to the performance by Canada in an international setting of its obligations under that covenant. Those 55 pages set out a number of statutes of Ontario and a number of problems related to Ontario’s performance of the obligations which Canada has assumed in the international setting on its behalf about human rights and political rights.

As I said, I do not pretend to be knowledgeable about it, but presumably when the matter goes out to committee we can deal with the other international covenant, that is, the international covenant on economic, social and cultural rights. I think it is very important that members of this assembly understand what Canada has assumed on behalf of the provinces within the constitutional limitations that Canada has because of the nature of this country as a federal state.

Let me state the position, then let me make a recommendation and then let me make a comment about it. I know my colleague the member for St. George (Mrs. Campbell) will be interested in this because she has expressed an interest on a number of other occasions in this nexus or connection between what we do here in Ontario about civil and political rights and what we do here in Ontario about economic, social and cultural rights in relation to Canada as a nation state.

I want to quote, simply because it says better and more succinctly than I could say what the position is. I hope members of the assembly will on occasion ponder on this and when we are in committee perhaps we can deal with it: “The international covenant on civil and political rights and the optional protocol to the international covenant on civil and political rights were adopted by the United Nations General Assembly on December 16, 1966, and came into effect May 23, 1976. On May 19, 1976, Canada acceded to the covenant and to its optional protocol.” I may say here at this point that the best information I have is that Canada also acceded on August 19, 1976, to the international covenant on economic, social and cultural rights.

“Since the instruments of accession to these agreements were deposited that day with the Secretary General of the United Nations, the covenant and protocol took effect in Canada on August 19, 1976.” Presumably, that is the same day to which I have referred in regard to the other international covenant. I am skipping a part of what is said here because it is not necessarily germane but of information to the House.

“Canada’s accession to the international covenant on civil and political rights and to its optional protocol has both international and domestic implications.” Domestic, of course, means internal implications. I want to make the distinction. “At the international level, by acceding to the covenant, Canada undertook to respect and to guarantee to all individuals within its territory and subject to its jurisdiction the rights recognized in the covenant without discrimination of any kind, such as on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, not only in the fields under federal jurisdiction” -- and I emphasize this -- “but also in the fields under provincial jurisdiction. Indeed, article 50 of the covenant clearly states that the provisions of the present covenant shall extend to all parts of federal states without any limitations or exceptions.

“Further, by acceding to the optional covenant to the international covenant on civil and political rights, the government of Canada recognized the jurisdiction of the human rights committee” -- that is the committee set up under the covenant -- “to receive and consider communications from individuals within its jurisdiction claiming to be victims of a violation by Canada of any of the rights set forth in the covenant; and this whether such breach occurs in a field over which Parliament or the provincial legislatures have jurisdiction. Such persons must, however, exhaust all available domestic remedies before presenting their communications to the committee.”

My colleagues will be aware that there is already one petition to that particular human rights committee set out under this covenant with respect to the status of an Indian woman who has been deprived of her status under the Indian Act because of her marriage to a person of non-Indian descent. We will see references to that decision at some point by the human rights committee. That is by way of a digression, but I want members to understand it is because of Canada’s adherence to the protocol that right is available to an individual.

8:10 p.m.

I think that also means that a person in Ontario, if deprived of a right over which this provincial Legislature has jurisdiction and having exhausted the procedures available under this Bill 209 which we have set forward, can, by direct application to that committee have the matter dealt with respecting Canada’s adhesion to the covenant on civil and political rights. I assume there may be some correlative way of appeal under the other covenant. I am not knowledgeable about that but it is a matter we would have to deal with in committee.

To repeat: “Such persons must, however, exhaust all available domestic remedies before presenting their communications to the committee. Therefore, the government of Canada is answerable to the international community for noncompliance in Canada with the obligations assumed. When exercising its jurisdiction over foreign relations, it acceded to the covenant and optional protocol whether the noncompliance occurs in a field under its jurisdiction or that of the provinces.”

That is the position at the international level of the obligations which are assumed. “In Canada,” that is at the domestic level, “international treaty law is not automatically a part of the law of the land. The provisions of a treaty may be incorporated into domestic law either by enacting legislation giving to the treaty the force of law or, if necessary, by amending domestic law to make it accord with the treaty. In general, however, the Canadian constitution does not authorize Parliament to legislate in fields under provincial jurisdiction to give effect to obligations assumed under a treaty.”

That has been true since the labour conventions case in which this province was involved on a constitutional matter with the Attorney General of Canada in the Supreme Court of Canada in 1937 at the time when appeals were allowed to the Privy Council. The statement was that the federal government could not, on the basis of a treaty- making power, move into provincial legislative fields when the same legislative privilege was otherwise denied to it. That is the succinct statement which generally has guided the provision.

In another way this quotation from the report says the same thing: “Thus, implementation of a treaty whose provisions come under one or other or both levels of government requires action by the Parliament of Canada, the provincial legislatures and, unless Parliament decides otherwise, the territorial legislative councils for those portions of the treaty that fall under their respective jurisdictions.”

There has been no legislative action here with respect to the adhesion by this assembly to what Canada as a nation state has adhered to under the convention of the United Nations. I am going to skip the part which deals --

Mr. Sargent: I am glad you are skipping something.

Mr. Renwick: I am sure the member is glad. The member for Grey-Bruce is not particularly interested in this topic. I hope perhaps during the course of the evening he will contribute his thoughts about the question of human rights.

The report that was filed with the human rights committee with respect to this covenant tries to set out the divided areas of jurisdiction under the British North America Act with respect to human rights. It goes on: “Given the fact that Parliament did not have jurisdiction to give effect to all the obligations which Canada assumed towards the international community by acceding to the covenant and its optional protocol, the government of Canada consulted the provinces before acceding to the covenant and the protocol and the latter” -- that is the province -- “undertook to ensure compliance with those provisions of the covenant falling within their jurisdiction.”

This Legislative Assembly did not accede to those and was not consulted. The Ontario government was consulted and it therefore has the sole responsibility for the implementation within Ontario of the rights to which Canada has adhered under the covenant to which I have referred.

“Obtaining provincial consent in no way changes the international responsibility of the government of Canada. However, from a domestic standpoint, the fact that the province has consented to Canada’s accession to the covenant means that they, like the federal government, agree to take the necessary measures to give effect to the rights recognized in the covenant.”

I want to emphasize that distinction. There has been no legislative authority at the Parliament of Canada and no legislative authority here with respect to compliance by the federal government or the provinces on the international obligations accepted by Canada as a nation state. It has been purely an operation of the executive governments. I happen to think that is wrong. I happen to think we have to correct that in this assembly if we are serious about human rights and really want to establish the kind of protections which are necessary for citizens.

Let me carry on: “Although all the governments in Canada” -- the governments, I emphasize, not the legislative assemblies or the elected members -- “undertook to give effect to the provisions of the covenant, no government has as yet decided to incorporate into its domestic legislation the provisions of the covenant which fall within the scope of its jurisdiction. However, to fulfil its obligations under the covenant, each government has committed itself to amend domestic law in order to bring it into accord with the covenant, wherever this might prove necessary.

“Since the covenant was not incorporated into domestic law and, therefore, does not have the force of law at the federal, provincial and territorial levels, an individual cannot base a recourse on the covenant itself if there has occurred within Canada a breach of a right or freedom therein recognized.”

That, of course, is the Achilles heel and that is the way it was designed when the government of Canada and the government of this province chose not to deal with the assembly on the question of this adhesion to the international covenant to which Canada is bound.

“However, the individual can resort to the remedies provided in Canadian law to have his rights respected.” That in a funny way defeats entirely the adhesion by Canada to the protocol that is involved in this matter, and in my judgement, for what it is worth, will defeat the application made by the particular applicant to the human rights committee set up under the covenant to which I have referred earlier, with respect to her status as an Indian under the Indian Act In Canada.

“In conclusion, we should mention the federal-provincial conference on human rights held in Ottawa on December 11 and 12, 1975.” I doubt if there is a member of this assembly who is aware that that particular conference took place. I certainly was not aware that it took place. I saw no report to this assembly about that conference and yet it seems to have been a matter of considerable importance.

“This conference enabled the federal government and provincial governments to agree on the mechanisms for implementing in Canada the treaties, conventions and other international instruments concerning human rights. This conference also set up a continuing federal-provincial committee of officials responsible for human rights” -- not the assemblies; the officials responsible for human rights. “The mandate of this committee is to allow, on a permanent basis, for federal-provincial discussion on matters related to human rights.”

My point is clear. If the minister responsible for this legislation and the government understand their obligations, then it is important they introduce into this assembly the legislation which will implement the treaty to which Canada is a party under the United Nations assembly. I think it is absolutely essential we consider that. That is why I chose those particular words from the minister’s remarks, that this is a new beginning and not the end of the reform which is required, because there are many human rights.

8:20 p.m.

This is not by way of criticism. We cannot cover everything at once. Many human rights, many cultural, social and economic rights are spelled out in the covenants to which Canada has adhered as a nation state in the General Assembly but are not touched upon in the code of human rights we have here.

Let me give the members an example. When the select committee on constitutional reform was meeting, we dealt with some of these questions and tried to frame an economic rights position for our own committee. It was impossible for all three parties to agree, no matter how carefully expressed, to a minimum economic rights policy for every citizen of Canada who happened to be living in Ontario.

What I have been trying to say very clearly to the House is that the minister’s opening remarks about a new beginning have a depth and a meaning far exceeding what we perhaps thought was the case. It is not just a question of a few changes here and there and we will have a model code which will stand examination anywhere in the world. It requires an immense concentration of attention to the requirements of both those covenants to which Canada has acceded -- the original universal declaration of human rights -- to make certain we have the best possible code available anywhere in the world.

The minister should give serious consideration in committee, with whatever limitations are required, to an inclusion in the preamble of the bill of a reference not only to the universal declaration on human rights, which was passed in 1948 by the General Assembly of the United Nations, but also to the present reality of Canada’s adhesion to those covenants, the covenant with respect to economic, social and cultural rights and the covenant with respect to civil and political rights. There is a vast field to be covered.

Let me make a second important recommendation. I think the government should commit itself to introducing legislation into this assembly, with whatever time lag is required in order to effect compliance, that will implement in domestic law, by law of this assembly, the treaty obligations accepted by Canada elsewhere. It is very strange. We went through that ritual in 1974 in a matter respecting wills, which, of course, is fairly esoteric. We are being asked to go through that same ritual again of Ontario’s adhesion to an international obligation accepted by Canada in order to give effect in Ontario to matters with respect to the custody of children.

I am saying to the government, let us stop the nonsense. Let us get the kind of legislation before the assembly that will stand up and recognize that in Ontario, as part of Canada, we accept to the extent of our legislative jurisdiction the civil and political rights and the economic, social and cultural rights that are in the covenants to which we have agreed. I am not satisfied with, and I dissociated myself from, the view that those are matters to be decided by a committee of officials. I think it is time for Ontario to stand up and be counted in this whole matter.

I recall for the assembly that I was fortunate enough to articulate a resolution that expressed the views of all the members of the House about matters relating to terror, cruelty and killing in the world. That matter was referred earlier to the select committee on the Ombudsman and, in due course, it will report to the assembly.

I think it is extremely important that, just as we do for regulations wherein we have a statute that establishes by statute, not a standing committee by virtue of the orders of the House but, by regulation under the statute, a regulations committee to review regulations, so we should consider establishing in this Ontario Human Rights Code a statutory committee of the assembly to deal with matters related not only to Ontario in human rights but with respect to other matters the select committee and the Ombudsman may report about in due course.

The members will understand that I have gone on at some length because those are matters of immense importance to me. They are matters that need to be clarified and that have to be dealt with. I make those recommendations. That is why I personally am anxious, among other things, that the matter go to committee so that we can discuss this matter at greater length.

I am sure the law officers of the crown can explain better than I can the intricacies of the procedures involved. But the fact of the matter is that the Legislative Assembly of Ontario has been excluded from, and has no knowledge of, the obligations Ontario has assumed in the international world by virtue of Canada having adhered to those particular covenants.

Let me return to the bill. I want at this point to be a little bit technical without deriding it in any way. I want to talk about the legal questions in the bill. First of all, no citizen of Ontario has a right of civil action in the courts of Ontario by virtue of any provision of this bill. Any citizen in Ontario can be discriminated against under this bill and he has no right of civil action. I make that as a comment simply so that people will be aware of it. By making the point, I do not necessarily express a value judgement on it, but it is a matter that should be thoroughly considered in committee, whether a breach of such a fundamental statute as this should automatically entitle the person, if the breach can be established, to a civil right of action for damages in the courts of Ontario for any loss that may be suffered in respect of it.

Let me also emphasize that this is very much a closed-circuit bill. It is extremely self-contained. The only exit from the ambit of the bill, the circuitry of the bill, is if there is a decision of a board of inquiry with which one disagrees and one wants to go outside the ambit of the statute to the Supreme Court. That is the only exit from it. Everybody’s rights are contained within and defined by the terms of the bill in the legal sense.

Let me make it clearer. Whereas it is public policy in Ontario to recognize that every person is equal in dignity and worth and to provide for equal rights and opportunities without discrimination, that is contrary to law, and the law is in this act. The function of the Ontario Human Rights Commission with respect to this question of the enforcement of rights has nothing to do with all the grandiose expressions about educational mediation and other functions the commission may have, which are valuable, necessary, and important, but comes back to the function of the commission to enforce this act and orders of boards of inquiry and to perform the functions assigned to it by this or any other act.

8:30 p.m.

What that really means is that a complainant can go to the commission and the commission can decide whether the complainant has established an infringement of a right under the bill. If it decides adverse to the complainant, the complainant can ask the commission to reconsider. The commission can reconsider and, if adverse to the complainant, the decision of the commission is final and binding.

It gives to the commission the power, if it wishes to do so, to decide that a board of inquiry should be appointed. It is up to the commission. It is no right of the citizen or the complainant to get beyond that decision. The commission decides that matter. If it decides a board of inquiry is necessary in the particular instance, then the board of inquiry can make the decision as to whether or not there has been an infringement. Only at that point in the process is it possible, in the event of an adverse decision, for a complainant to reach out further to the courts.

Again, I am not making a value judgement. There may well be good and sufficient reasons for that kind of circuitry in the system, but I do want to say it is a closed circuit with that one and only out, that one connection out.

I want to say to the assembly that kind of restrictive avenue of enforcement of the rights we all value and feel important seems to me to require consideration in committee. The extent of the power of the commission with respect to those matters is extremely all-embracing. It is true that people can request the commission to reconsider and that is a step forward, but there is no doubt whatsoever that a reconsideration, once made, is final and binding.

I know the minister, being a lawyer, would indicate that if there is a breach in the due process, that is, the hearing part of it, there may be a recourse to the courts under the Statutory Powers Procedures Act. I am not talking about that. I am talking about the commission acting in good faith within its jurisdiction, providing a proper hearing and coming to a decision. The commission is the end of the road unless the commission orders the board of inquiry.

As I said earlier, it is not my particular wish to go into the minutiae of each of the various sections involved. I want to comment briefly about three or four of them.

I am not certain we are talking to the right minister tonight. Obviously, the minister is the one who has had the responsibility for the genesis, the establishment and the introduction of the bill. It is interesting that he is not named in the bill. It says that whoever the executive council may appoint is the person who is charged with the administration of the act. Usually, in most bills, it names the particular existent minister and then provides for any other member. I think it would be important for the minister to indicate to us whether it is the government’s intention to transfer the jurisdiction elsewhere.

Going back to the circuitry argument I have made, I also notice that appeals to the court from a decision of a board of inquiry requires the consent not of the Minister of Labour but of the Attorney General. The chances of being a complainant and ultimately getting to the court to decide the question has that additional obstacle. I think the government should advise us very clearly tonight who will be responsible for the administration of the act and why it has been decided that the person who will grant the consent is the Attorney General of Ontario. Again, I exercise no value judgement. It requires an explanation as so many of these matters do.

I have dealt now with the technical process under the bill. I said I did not want to take away in any sense from the other functions of the commission. Those functions are set out in the bill which is before us at some considerable length. I do not disagree with any of them. It relates to the educational function; it relates to the outreach function of the commission. It does not relate to the process of the complaint procedure, which I dealt with in the remarks I have just made. I want to see the commission take advantage of and perform those function in a very important and very real aspect.

They are contained in section 25 of the bill. I need not read them other than the very technical ones I referred to, namely, to enforce the act and orders of boards of inquiry and to perform the functions set out. The functions are well expressed and they are very clear; they are not mere rhetoric. They have an essential educational requirement that is inherent in the performance by the commission of its obligations.

I now want, if I may, to move on to five specific matters of concern to me in the bill, and to try to deal with them in a generic sense and not in the sense and not in the sense of the minutiae of the decisions. I welcome, and everyone welcomes, the obvious thought and attention the ministry has given, since its ill-fated introduction last year of an attempt to segregate the handicapped people into a different bill, to the introduction of and inclusion into the bill of the nondiscrimination provision against handicapped persons. I think that is extremely important.

We were fortunate, in our caucus, to meet with representatives of the Coalition on Human Rights for the Handicapped. We were very impressed with their comments. We met with them three or four months ago -- of course, the minister did also -- I showed them to him today. He indicated to me that he had not as yet had an opportunity to consider in detail the provisions of the letter from the Coalition on Human Rights for the Handicapped, dated December 2, 1980, to him about the proposed amendments to the Human Rights Code. It includes in it a summary of the issues pertaining to the proposed amendments to the Human Rights Code indicating matters of real concern to that group of people about the actual provisions of the bill. It includes in it as well, as my colleague from Ottawa East (Mr. Roy) has already referred to, a discussion paper prepared by the Coalition on Human Rights for the Handicapped in the province.

That is another reason I personally feel it is essential that these matters go before a committee of the assembly for a thorough discussion and review as to the implications of these provisions so that we can be certain, as we go into the 198th and the International Year of Disabled Persons, that we have the best possible bill related to those matters that it is possible to devise at this time.

The next matter I want to talk about has something to do with the work place. I am not certain I can adequately express this particular concern. But there is a funny thing happening out there in the work place. First of all, it started out as selection for employment on the basis of sex related to reproductive functions of women, which amounts to discrimination. Then it progressed to the point where the effects were not just on the reproductive functions of women, but were also on the reproductive functions of men. Therefore, it was not a selective process to get the kind of individuals in society who could perform without that kind of hazard to them. In a very strange way it was a transference to the individual of the blame for being unable to perform the job, rather than the importance of the employer clearing up the work place. This relates to both occupational health and safety in the work place, and to the question of human rights.

8:40 p.m.

But it has gone somewhat further than that. It is almost as if in our society there is going to be a kind of genetic selection of those people who are able to perform certain kinds of employment. If one has the genetic inheritance he will be able to perform; if one does not have it he will not be able to perform. It is almost like adapting people to the work rather than having the work adapt to people. It is giving a primacy to the work place over the people who work.

I wish to read a letter dated October 27, 1976, from the then chairman of the Ontario Human Rights Commission, T. H. B. Symons, addressed to the Treasurer (Mr. F. S. Miller), who at that point was the Minister of Health. He was trying to set out this concern which I do not find addressed in the bill. I do not pretend to understand the implications of it, but the committee of the assembly must deal with it:

“Dear Mr. Miller: The Ontario Human Rights Commission recently completed an investigation into seven complaints of alleged discrimination on grounds of sex filed by female workers against their employer, General Motors Limited of Oshawa. The substance of their allegation is that all females in the General Motors battery plant are required to produce a medical certificate indicating that they can no longer bear children.

“Since this requirement applies to females only, the complainants considered it discriminatory on the basis of sex and in contravention of section 41(c)(e)(f) and (g) of the Ontario Human Rights Code, Revised Statutes of Ontario 1970, Chapter 318, as amended.

“Because of the complex issues raised by the complaints, the commission reviewed the scientific literature on the subject and sought expert medical opinion, in addition to conducting extensive interviews with all concerned parties including both the complainants and representatives of General Motors. In the course of our investigation, it became increasingly clear to us that the issues raised were predominantly medical rather than legal.”

This is why I take it upon myself to read it to the minister -- because he combines in his person a capacity to deal with medical as well as legal matters.

“Consequently, the commission has recommended to the Minister of Labour, that a board of inquiry under the terms of the Ontario Human Rights Code not be appointed in this case. Such a recommendation if accepted would have the effect of dismissing all seven complaints against General Motors. None the less, the commissioners were alarmed by the medical evidence, which appeared to be confirmed in virtually all the literature it examined on the subject, that exposure to quantities of lead oxide emissions could lead to foetal injury.

“Moreover, medical evidence appeared to indicate that injury to the foetus may be brought about when either the father or the mother is exposed to these conditions, either directly or indirectly by exposure, for example, to the clothing or personal effects of those working in such conditions.

“Thus the commission believes strongly that both men and women capable of producing children should be protected against the possibility of exposure to levels of lead oxide that could cause foetal injury.

“By unanimous vote, the commissioners have asked me to express to you their concern and their sense of urgency about this matter and to request that your ministry act immediately to investigate throughout the province the health dangers involved for all those working in conditions where they are exposed to lead oxide emissions in order to ensure a safe working environment for all employees in Ontario battery plants.

“Copies of this letter are being forwarded to all the parties in the complaint.

“Yours sincerely, T. H. B. Symons, chairman of the commission.”

That raises in my mind a form of discrimination which is not touched by this bill before us so far as I can understand it. The Canadian Centre for Occupational Health and Safety said in its newsletter -- I do not have the date on it, but the dateline on the comment I want to make is Montreal, January 1980 -- “All too often the focus of the scientific community is directed to the victims of occupational diseases rather than to the work place. Dr. Andre Lebrun from the University of Montreal is undertaking a three-year study to determine workers’ ‘genetic susceptibility’ to asbestosis.

“According to an article in the Medical Post, ‘The purpose of the study is to develop a screening test which would allow doctors to advise certain workers not to work with asbestos. Approximately 10 to 20 per cent of asbestos workers will develop asbestosis and Dr. Lebrun hopes to be able to identify those workers. Unfortunately, asbestos does not cause only asbestosis, it also causes cancer of the lungs, throat, stomach and intestines. The screening test would not identify workers susceptible to cancer. The only way to eliminate asbestosis-related diseases is to eliminate exposure to asbestos’.”

Then the Metropolitan Toronto Labour Council in November 1978 published a health alert, Work Place Hazards to Reproduction. That document was referred to approvingly by the Women’s Occupational Health Centre in July and August 1980. In April and May 1980, new US guidelines on reproductive hazards were proposed. Without pretending to understand it all, let me quote from it. These are guidelines proposed in the United States by the Equal Employment Opportunity Commission and the Department of Labour to clarify the relationship between employment discrimination and protection of workers against reproductive hazards.

“Some members are said to fear that allowing any sex-based exclusions might give employers an excuse not to clean up the work place for all employees. The principal points of the guidelines are: one, an employer/contractor whose environment involves employee exposure to reproductive hazards shall not discriminate on the basis of sex (including pregnancy or childbearing capacity), in hiring, work assignment or other conditions of employment; two, an employer/contractor may not have policies, practices or plans designed to protect employees from reproductive hazards which by their terms exclude applicants or employees from employment opportunities on the basis of sex. Such policies are discriminatory on their face.”

I need not elaborate further on that matter, except to say that in a position paper, Reproductive Health Hazards in the Work Place, June 1980, of the Canadian Advisory Council on the Status of Women, the same matter was raised and I quote:

“Although women have always been part of the work force and have often been employed in jobs posing serious health hazards, their movement into a greater variety of occupations, many of them traditionally restricted to men, has raised new concerns. The hazards of male-dominated occupations have generally been better researched and more publicized. As a result, women seeking employment are often confronted by industrial policies which make them ineligible for employment in areas where exposure to certain toxic substances or other hazards could adversely affect a foetus.

“Such policies ignore an increasing body of evidence that work-place hazards can have serious effects on the reproductive system of the male and for his potential offspring. The resulting discrimination is double-barrelled. The women are denied lucrative jobs unless they can prove sterility and the men are left in a work environment which is hazardous to their general health and reproductive capacity.”

Very briefly again: “Every protective measure must ensure that all workers will be protected equally from the effects of harmful agents and conditions of work. There must be no distinction in the rights and treatment of female and male workers.”

The recommendation of the Canadian Advisory Council on the Status of Women is as follows: “That the federal government amend the Canadian Human Rights Act and the Canada Labour Code to prevent discrimination in hiring, job placement, promotion and other conditions of employment based on factors related to reproductive physiology such as reproductive capacity, pregnancy or childbirth; that exclusionary policies and practices arising from such issues be prohibited by law and that the legislation be monitored and enforced on a continuing basis.”

8:50 p.m.

I am not going to go on at length. The position paper is undoubtedly available to the minister.

In so far as the work place and the problems of discrimination and employment are concerned, we need to address very real concerns in committee in order to understand the provisions with respect to the rights against discrimination in employment on the basis of sex, let alone on the basis of other matters.

I want to turn now, if I may, to a problem which has vexed Metropolitan Toronto for some time -- racism. I do not need to go on at any length about the problems involved in racism. I simply want every member of the assembly, if he or she has not already done so, to take an opportunity to read the very perceptive, understanding discussion of the question of racism which appeared in the Insight section of the Toronto Star on Saturday, December 6, by Sol Littman, the community relations editor, and not just because it happens to be in Metropolitan Toronto and happens to be related to the Albert Johnson case. The title of the article is “Assessing the Effects of the Johnson Case.”

I hope there will be some understanding of the problems with respect to the Johnson case and its aftermath as a result of Sol Littman’s perceptive, empathetic insights. That article comes after how many studies? Let me recite them, although I cannot give them all with their exact dates: the Maloney report; the Morand report; the Gerstein report; the Frances Henry research report on Dynamics of Racism in Toronto; the Social Planning Council of Metropolitan Toronto report on law enforcement and race relations; the draft report of the Toronto Board of Education’s subcommittee on race relations; Cardinal Carter’s report; Now is Not Too Late, the report of Walter Pitman; The Immigrants and Ethnic Groups in Metropolitan Toronto, by Anthony Richmond; the task force on immigrant women by the three advisory councils -- the women’s advisory council, the senior citizens’ advisory council, the multicultural advisory council; and of course one of the major reports, the equal opportunity and public policy report by Dr. Ubale, the present race relations commissioner under the code.

There has been a tremendous focus in Toronto on the question of racism, related not just to the police but also to the indigenous sense of racism within the society and there have been an immense number of studies and reports on the topic. The provisions of Bill 209 address, to some extent, the obligations of the Ontario Human Rights Commission to deal with that particular problem by educating the public. It would be helpful in committee to discuss how we can deal with those particular matters.

The next matter with which I want to deal is the omission from the proposed bill of the question of discrimination based on sexual orientation. I want to approach the problem in this sense. I am subdued and quite sad that the temper of our times does not permit the assembly to deal with that question by providing something called leadership in order that persons other than heterosexuals will have the right to protection against discrimination in our society.

I go back to what I said, that we are talking about a bill which is limited in its applications. Regardless of these other functions that it may perform, it is limited in its application of giving redress to citizens for discrimination that is contrary to law. If it is not in the bill, then the discrimination may take place with the tacit approval of the society, whether it is agreeable to society or not.

I happen to be one of the persons who is extremely concerned that during the last municipal election -- whatever the reasons and I do not pretend to understand it -- there were outcroppings of an ugly display of intolerance in our society against those who are not heterosexual by sexual orientation. It was against those who, in the language of the day, are members of the gay community, and against those who, in the language of the day, are members of the homosexual community in its broadest sense. It was ugly. It attacked the dignity of citizens and the worth of citizens. In a funny way its non-inclusion in the code is a matter of regret rather than a matter of declamation.

I go back again to the opening statement made by the minister that I referred to earlier. It reflects the problem that we, as elected members of the assembly, must deal with. I want to quote it again because it is very pertinent to this matter and to the attitude I want to express in this assembly. I am quoting the minister’s statement when he introduced the bill on November 25 last:

“I have characterized this as a new beginning in both substantive and symbolic terms. I have described the substance of the proposals. The symbolic importance of these revisions cannot be overemphasized. I hope the people of Ontario will recognize that the new code represents this government’s rededication to the elimination of the corrosive effects of discrimination in our society. Ultimately, of course, the success of laws, especially in this sensitive area, depends on the goodwill, tolerance and maturity of our people.”

I think it is sad to indicate that the temper of our times will not allow this assembly to reflect the need to protect a definable group of the population against the kind of discrimination to which the group’s members are subjected because they are members of the homosexual community. I may say, by way of minor explanation, homosexual includes lesbian relationships. There is nothing male about it. It is an omnibus term, as I am certain all of us are aware.

Again I come back to the immense humanity of the report of Dr. Symons. I may say that as Dr. Symons was embarking on his report, I took the liberty of talking to the then House leader of the Conservative Party, the present Deputy Premier (Mr. Welch), I took the liberty of talking to the then deputy leader of the Liberal Party, the member for Brant-Oxford-Norfolk (Mr. Nixon), and I was trying to express the view of our own caucus about it. I talked to Dr. Symons about it. I said I thought it would be the time of wisdom because I said I thought the time was propitious and that people were in the mood of tolerance for change, of tolerance for differences of one kind or another and would accept an inclusion in the code of the very problem which still continues to cause us such immense concern.

9 p.m.

It was not accepted and the recommendation was not accepted, but I still think one must read pages 81 and 82 of the report Life Together, of the Ontario Human Rights Commission, with respect to sexual orientation. I am not going to read it all. It is available for those who want to read it. But let me quote it:

“Because they are not protected from discrimination on the grounds of their sexual orientation, many people in Ontario who are homosexuals live in constant fear that they may lose their jobs, their living accommodation and other basic necessities if their sexual orientation becomes known. As things now stand, this can and often does happen despite the fact that the individuals concerned may be exemplary employees or tenants. They are being discriminated against because of something which is a part of their private life.

“There can be no doubt that homosexual men and women suffer from frequent and extensive discrimination because of their sexual orientation. Although firm statistical data about the proportion of Ontario residents who are homosexual are difficult to obtain, it is clear that homosexuals constitute a quite sizeable minority of the population. Yet, as many briefs noted, and as the commission’s own research confirms, individuals have been fired or denied accommodation, or have in many other ways suffered indignities simply because they are homosexuals. This is deplorable in a society which claims, as its public policy, that ‘every person is free and equal in dignity and rights’.”

It refers to various other organizations which support the position taken by the commission, and it goes on: “Because of the possible consequences of public disclosure in these circumstances, many people in Ontario who are homosexual in their sexual orientation are vulnerable to blackmail and intimidation. The scope for such blackmail and intimidation would be radically reduced if the Ontario Human Rights Code provided protection from discrimination on the ground of sexual orientation.

“Following careful deliberations and discussions and with the support of many briefs and submissions, both from the homosexual community and from other groups, including many religious denominations, the Canadian Labour Congress” -- I may insert the Ontario Federation of Labour at its recent convention concluded in Toronto -- “and the Canadian Association of University Teachers, the commission recommends that the Ontario Human Rights Code be amended to extend to homosexuals the same protection against discrimination which is provided to their fellow citizens by including sexual orientation as a ground on which discrimination is prohibited by the code.

“The commission recommends further that, as with all other grounds, provision be included in the code for exemptions to he granted, on a case by case basis, in situations where sexual orientation may be a bona fide consideration.”

I do not pretend to understand all the implications of why society responds as it does to this question of homosexuality in something which is ostensibly a heterosexual society. That is a very deep problem and it would take many people much wiser than any of us here in the assembly. I may say that compared to the question of racism and the list of studies, analyses and discussions which have taken place on the question of discrimination on the basis of racism, I know of no study or no understanding in depth which has taken place with respect to the problem.

I reassert it as a problem because it obviously is a problem. It raised in the last municipal election, related to the school system and related to children, very deep and profound feelings within the community. I am not engaged in trying to assess who won or what lost an election. I am not talking about that. I am talking about the ugliness that appeared in the city of Toronto as an outcropping of very deep feelings raised by an issue that none of us understands.

Let me simply say that both in the minister’s estimates when the Ontario Human Rights Commission was before us quite recently and in the estimates of the Solicitor General (Mr. McMurtry) a few days ago, I raised this particular piece of literature published by the League Against Homosexuals. This group says it is “a registered nonprofit organization seeking co-operation and/or amalgamation of any and all individuals and organizations concerned with the welfare of all children.”

“Stand up and fight for children; they are our future. Join and/or support the League Against Homosexuals.” It has a post office box address and there are four names of individuals attached to it.

It states, “Queers do not produce; they seduce.” I will not read the whole thing, but it also says: “Some facts about queers: Queers are against God and the Christian Bible. Queers are against humanity. Queers are against every race and religion. Does our society need queers?”

“Who is against queers? All decent citizens. All normal, healthy heterosexual families. All couples that produce children. All right-wing political parties. All those who believe in Christ and his teaching.”

Hon. Mr. Norton: I hope they do not claim to be charitable.

Mr. Renwick: The member can say what he wants. I do not pretend to joke about this topic.

I am simply saying that is hate literature. I do not think there is anybody in this room who does not think the ability of an organization, apparently incorporated, apparently recognized by the government -- I do not mean recognized by the government, but recognized as a corporation incorporated under our laws -- can produce that kind of hate literature so destructive of the dignity and worth of individuals.

When I presented the literature to the Solicitor General and asked him whether he would give consideration to whether a prosecution could be taken under the Criminal Code for that kind of literature -- assuming as I do that it is hate literature; if people want to disagree with me, that is fine -- he said he would look into it, and I am sure he will. He said he thought he had seen the literature, but the problem was that the League was not an identifiable group for the purposes of the hate literature provisions of the Criminal Code.

So it means that people who are something called “queers” in the mind of the League Against Homosexuals will continue to be subjected to that discrimination. I accept it as a personal defeat, as many members of the assembly will, not because of any particular concerns about the question of homosexuality as against heterosexuality, but because of questions with respect to the attack on the dignity of significant numbers of people in our society. I accept it as a defeat at this point.

The temper of our times does not permit it. There are people like Sol Littman and others whom I respect. One of the commentators I respect, and some honourable members may have heard about him, is a man by the name of George Steiner. I want to put this comment on the record:

“Neither sociology nor cultural history, neither political theory nor psychology has even begun to handle authoritatively the vast theme of the part played by homosexuality in western culture since the late 19th century. The subject is so diffuse, of such methodological and emotional complexity, that it would require a combination of Machiavelli, de Tocqueville and Freud to produce the great missing book. There is hardly a branch of literature, of music, of the plastic arts, of philosophy, of drama, film, fashion, and the furnishings of daily urban life in which homosexuality has not been crucially involved, often dominantly. Homosexuality can be seen to have been one of the main generators of the entire fabric and savour of urban modernity in the West. This is a vast and as yet only imperfectly understood development of which the role of homosexuality in politics is only a specialized or dramatic feature.”

9:10 p.m.

When I raised the matter with the minister in the estimates when the Ontario Human Rights Commission was before him, I urged upon the commission that if ever a matter cried for study, analysis and concern it was the question of what happened in the city of Toronto in the last municipal election which produced that kind of ugliness as an outcropping of deeply felt emotions. Many persons legitimately felt traditional emotions about the problem.

All I am saying is I guess we are going to have to be content over a long period of time to do the kind of educational work that is one of the main areas of the function of the Ontario Human Rights Commission: to understand, analyse and provide a forum for discussion of that question before we will be able to move in a legislative way to provide that protection. I do not know what the outcome or the result will be, but I can say quite clearly we should have the same number of studies in the same compression of time about the question of homosexuality in our society that we have had about racism.

Even though it has been difficult to achieve all the improvements we wanted in the field of racism, at least some perceptible movement has been made with respect to the maturity of society about these matters. If we could have the equivalent of a Pitman report, a Morand report, a Maloney report, a Carter report or a Frances Henry report, if we could have an Ontario Human Rights Commission report about this matter then it might well be we would be able to solve this problem at some point.

I emphasize that I accept, with a considerable degree of regret, that the time is not now to deal with this problem. I therefore have to accept the responsibility of the commission under its functions to deal with this problem in an educational, informative and studied way. Unless we deal with it, we will be harassed in society in Toronto with this kind of ugliness until we solve the problem. It will not go away.

I come back to what I said. Civilization, civility, a mutual respect and tolerance are on the chopping block in Toronto on this issue. We have made some progress -- not perfect -- in the area of racism. I think it will be possible for us to make some progress on this next question of whether it is possible for those persons of a nonheterosexual orientation to be protected against discrimination in this society so that their dignity and worth can be protected and preserved.

I have gone on at immense length.

[Applause]

Mr. Renwick: I know there are some members who would be glad if I sat down, but I generally do not accommodate myself to other than those members who have the privilege of sitting in opposition.

There is a section in the bill dealing with and excluding insurance from the provisions of nondiscrimination under the bill. It is section 20. I sat on the select committee on company law when it produced four reports on the insurance industry. Two were on automobile insurance and two on other aspects of insurance. There were recommendations about these matters. Let me summarize them briefly.

In the jurisdictions we visited and in the recommendations we made, we urged the government to get away from discrimination in automobile insurance on the basis of sex and age and to get to the point where it would accept some other criteria.

“In summary, the committee is impressed with the arguments in favour of eliminating age, sex and marital status as criteria to be used in determining automobile insurance premiums, and it urges the industry and the superintendent to develop alternative criteria. The committee considers that more appropriate criteria would be driving experience, driving record, and miles travelled if an objective measurement of this latter factor could be found.”

I am not going to quote the whole of the particular chapter which is involved in that report. We will recall the astonishment of seeing the headlines in the paper that the Minister of Consumer and Commercial Relations was hauling the insurance industry in before him because they were going to do away with these matters. What a retreat he has beaten. He disappeared back into the woods and we have never heard about that topic again. Yet it reappears in section 20 of this bill that it is quite permissible to discriminate in automobile insurance on the basis of sex, age and marital status. I ask any members of the assembly who want to pursue that matter to read the second report of the select committee on the insurance industry dealing with automobile insurance.

Then we come to the question of life insurance. In the committee that tried to deal with this matter we had many presentations indicating quite clearly to us that the actuarial tables of the distinctions on longevity between males and females were such that it was a proper discriminatory basis. There was nothing unfair about it. It meant that those who bore the risks paid for the risk. We clearly recognized that distinction. We accepted that proposition of the insurance industry, but we went on to say “that there may be grounds in public policy to say that the overriding basis is the equality of the sexes and that there should be no discrimination.” The matter should be ironed out on that basis and the actuarial tables melded into one table.

Again, I simply want to point out that the select committee on company law in its fourth report, which many members of the assembly here will remember, has made a very clear statement about the decisions that were made by that committee on that matter.

Let me come to a much more fundamental question about the life insurance industry. We tried to grapple with it. The life insurance industry went on the basis of something called the normal person. They accepted something called the normal person. They developed actuarial tables with respect to the rates to be charged for life insurance for that person based upon the age of the person and the expected longevity. If there was any deviation of the individual from that norm, the matter was referred to the medical doctors. The medical doctors, on the basis of their views of medical science, then adjusted the rates so that the rate charged to a person who was not a norm was based, not on actuarial evidence of the incidence of the trauma, the disease of the handicap that was involved but simply on the doctor’s judgement with respect to whether that person’s longevity was affected. The actual facts of the matter, of course, have shown that as far as the methods of computing the actuarial information are concerned many of those decisions were wrong.

We recommended very clearly in that report that the basis now should not be medical judgement but must be actuarial judgement. You start from the basis that, for life insurance purposes, all people are equal unless the actuarial bases on an evidentiary method are sufficient to say there should be an actuarial difference to properly distribute the weight of the cost of that burden for the particular group that was paying the cost for it.

I want to say that I think it is important that those questions related to insurance be properly aired and properly discussed again in committee.

9:20 p.m.

Mr. Speaker, I have gone on at great length. I do not apologize. I simply ask the House to understand that these are matters on which I, and I am sure other members of the House, feel deeply and strongly. They are matters of immense concern. I was constrained to speak at some length, because I know that when a bill such as this, a total revision of the Ontario Human Rights Code, comes before us, when it is all over and it is part of the statutes, then it is unlikely we will see any significant amendments to it for a long time. It is for all those reasons that I have taken up such an undue amount of time in the assembly.

There is the matter that my colleague the member for Sudbury East (Mr. Martel) has raised about that application for employment. I believe there is some indication that section 21 of the bill covers -- what shall I say? -- that disastrous, horrendous application for employment, and I spoke a little bit about employment criteria. I was dignified the other day as a Jesuit in my legal analysis of problems, but even my Protestant relation to the Jesuits does not permit me to see how the, problem of my colleague, the member for Sudbury East is solved by section 21 of the bill. I would ask the minister in due course to speak to it.

Mrs. Campbell: Mr. Speaker, I would like to address myself in the first instance to one of the points made by the member for Riverdale, and that is the whole question of the ratification by Parliament, by Canada, of the United Nations convention.

During the course of the constitutional discussions, I had occasion to leave that committee and to meet somewhat briefly with the select committee on the Ombudsman which in turn had as witnesses before it a member of the staff of the Department of External Affairs and the Ambassador to the Vatican, who had been sitting as our representative at the United Nations.

On that occasion, when we were discussing the resolution to which my friend the member for Riverdale referred, we did get into a discussion about the ratification. We were advised, for example, that Canada did not ratify any of the human rights provisions until such time as there was “ratification by each and all of the provinces.”

Listening to that particular discussion, I was very deeply puzzled in the select committee on constitutional reform as to the whole matter of our discussion of entrenchment of human rights. It was my belief that, if such rights were ratified, therefore there had been, in effect, amendments ongoing to the constitution of Canada. I sought clarification of that position.

We were advised by the staff member from External Affairs that there is an officer in Ottawa whose business is to pursue, with the provinces, the amendments to their legislation to bring them into conformity with the commitments of Canada to the United Nations convention. At this point, it is important that each and every one of us in this House understands what those commitments are and is able to discuss them and discuss our own legislation, which might very well include other labour legislation, in the light of those commitments.

As I understand it, there has been, for example, a ratification of a convention on the right to work. I have not as yet had an opportunity to study what the convention says or what it actually provides. I know the minister is very much aware of the other convention to which the member for Riverdale referred. I refer, of course, to the Hague convention, which has been signed although not as yet ratified, but which we in this House, I understand from the Attorney General (Mr. McMurtry), will be ratifying by a piece of legislation.

It was hoped that it would be ratified before the end of this session; I take it that now is a hope deferred. Nevertheless we are moving to ratify an international convention. I think it is very important that we all understand that process, which I must confess I still do not fully understand. The distinctions may be the distinctions made by the member for Riverdale between the signing and the ratification. Nevertheless, we are faced with an international commitment and, according to External Affairs, we must move to bring all our legislation within the terms of the commitment to that United Nations convention.

So it is important as we deal with this piece of legislation that the committee has the opportunity of hearing from the representative of External Affairs as to where we stand on some of these conventions. I do know there is a convention in preparation dealing with aboriginal rights. It seems to me we should be at least aware of what that convention says and how it applies to our aboriginals in this country. Albeit, it was brought forward because of some problems in the Third World, nevertheless if ratified by Canada, it certainly would become of necessity a part of our domestic law as I understand the situation.

9:30 p.m.

I think it is important that we really try to understand where we are in this province in the context of the international society of which we, as part of Canada, are also a part. It is because we now have this review of this legislation that I believe the time is most appropriate for this sort of discussion and understanding as to where this legislation fits into our international commitment.

As far as the bill is concerned, let me say this: I congratulate the government for moving in some of the areas where there has been a cry for the addressing of wrongs and inequities. I do not believe I should get involved in any great detail in the bill itself. If it is going to committee, that is where it can be addressed in detail. I really am interested in the statement in section 25: “It is the function of the commission (a) to forward the policy that every person is equal in dignity and worth and is entitled to equal rights and opportunities without discrimination” -- and then the clinker -- “contrary to law.” Every person in this province is not entitled to be equal in dignity and worth and is not entitled to equal rights and opportunities. That expresses my great sense of failure: that I can be asked to stand and support a bill that denies equality and dignity and worth to people within this community. I do not understand how we arrive at this position.

I recognize the problems in our community. I recognize there are many people who are honestly concerned about some of these problems, who find it very difficult to accept that, for example, in our society today there should be any group against whom the hate literature provisions of the Criminal Code do not apply. The fact that one can write as one likes about some people without fear of criminal prosecution is, to me, in itself an offence.

In our world today the violence we see, God knows, is with us morning, noon and night. One cannot pick up a newspaper, one cannot watch television without seeing it brought right into one’s home. Surely one of the things we must learn to do, perhaps falteringly -- perhaps we cannot expect to have courage -- surely to goodness what we have to do, is to eliminate hate if we are going to take the first step to eliminating violence. Of course, this bill does not make any provisions to soften that situation.

I will not go into the enforcement aspects. I am sure those provisions will find amendment if the bill is going to committee.

I understand how difficult it is to establish a case today under the present provisions of the Human Rights Code. I am afraid that during the course of the hearings I did ask those hearing petitions to give some consideration to changing the onus of our procedures under this code -- somewhat, I suppose, à la motor vehicle type of situation where a person would present a prima facie case and then the onus would switch, although there are those who say the onus does switch. But what happens is there is a prima facie case by an applicant or a complainant; one then is met with another prima facie case by way of defence, and there really is not the provision of an onus to bring forward a case. This is why the bill has been rather poor. It has not been successful, as we know by the number of women, for example, who have brought forward cases; it is almost impossible to prove beyond a shadow of a doubt that one is being discriminated against.

The minister was on a television program with me and with one of the critics for the NDP, and we looked at a woman who had been laid off, a woman who had no job. What did she say to the minister? She did not know she was speaking to the minister, but she pointed out that she could not get a job because of her age. The code says one cannot do that, but I think we all recognize at in her case: that is precisely what her problem was -- that and the area in which she lived, where jobs were not all that plentiful.

We have defined, age in this particular bill, and we know that one cannot discriminate by reason o. age, save and except if somebody is under 18 or over 65. I sometimes wonder what we should do with all the people out there who get to be over 65. Do they really cease to be persons deserving of dignity and worth? That question is not dealt with in this legislation.

9:40 p.m.

I have spoken broadly on the matter. I too have a great sense of failure about this bill. I hope when we get into committee, with the advice of External Affairs, perhaps we can resolve some of the questions as to our immediate responsibilities. Perhaps we in this House will not then need to have the courage to give to everybody the same right and dignity in work because it is in a convention to which we are committed.

Mr. Bounsall: Mr. Speaker, I must congratulate this government and this minister for finally bringing in this legislation. As the Acting Speaker (Mr. MacBeth) may well remember from his days as Minister of Labour at the time when I was the spokesman for our party as labour critic and, therefore, the spokesperson for our party on human rights, I have been trying ever since I came into the Legislature in 1971 to see that some amendments came into this act, which we were all concerned about, becoming effective. Finally, we have it before us.

I view this act, although it is a completely rewritten one, as a good start on revised legislation for Ontario, even though I am fully aware because of fighting for it since 1971 that it may well be another 10 years before we see any further amendments to this act. So the act we have before us today is one with which we will have to live.

I recall particularly in the fall of 1974 that the then Minister of Labour, the member for Humber (Mr. MacBeth), gave a commitment during the estimates of the Ministry of Labour that there would be amendments to the Human Rights Code by the spring of 1975. That is five and a half years ago. I understand what happened on some of it. He was as surprised as all the rest of us when the Ontario Human Rights Commission formed its committee and went on its code review. There was a bit of disappointment certainly in myself, that when action was commenced by the commission without, it appears, having much contact with the minister at that time, that action delayed any action, at all until the report Life Together, which has been referred to many times here tonight, was released.

That was in the summer of 1977. Then a strange thing happened again. One would have thought, with such an excellent report put together by that committee of the human rights commission, we would have had this legislation long before now. Certainly this legislation is much more proper and much more satisfactory for the disabled in Ontario than the bill brought forward by the minister last year which would have treated them as a separate entity.

The way we have now gone is certainly the way we were urging all along. We are very pleased to see the minister has gone this way, even though there may be some fringes around the areas of the particular coverage of the disabled which are not 100 per cent, but this route is certainly much more preferable than the other route which the minister had at that time chosen to go.

I could turn to some of the details of the bill. There are certain things in this particular bill which cause questions in my mind or cause me some concern as we try to protect everyone in the province from discrimination, to recognize that every person is equal in dignity and worth and to provide equal rights for all those persons, to paraphrase slightly the preamble to the act. One matter that has been tickling me is this sort of new inclusion into the act in section 1 of services, goods and facilities. What do those service include? It is an interesting question because, when one turns to the definition section, we find that all it says is what services do not include, services do not include, according to that definition section, a levy, fee or tax imposed or authorized by law. That is all very good, but I would like to know just how encompassing it is and what “services” means, because there are certainly court cases in Canada that would indicate that is rather narrowly defined.

In the minister’s reply, I would like to know just what he intends by the word “services.” He has defined it as what it is not, and yet certain courts in this land have defined it rather narrowly and have tended to define services and facilities as simply hotels, restaurants and other like facilities. Does the minister intend that services would be much more broadly based than that?

Under the handicapped section, the definitions there include one that has concerned us all over the years in this Legislature. Certainly in my work with my own constituents, as well as with cases around the province, it has been of concern. I refer to epileptics. Epileptics are and have been very badly discriminated against in employment, but in this day and age epilepsy can be carefully controlled by medication. Yet they are so widely discriminated against that they need the protection of this code to function as productive people in our society, which they can do in most cases if given a chance.

I also wonder whether the minister would consider the inclusion of diabetes, because diabetes is another of those categories for which there is some discrimination in our society in terms of hiring and in certain services that those who suffer from diabetes perform. I am not at all sure that they fall within the terms of the definition of the handicapped. I would ask the minister to comment on the diabetes situation and whether they should be included In this act, or whether they are included in the general definition.

I understand we must have various sections relating to the handicapped which sound reasonable, but I am a little concerned about section 16, not so much by the way it is written but by how the minister and the commission would interpret it. It reads: “A right under part I to nondiscrimination because of a handicap is not infringed by discrimination” because “the handicap renders the particular person incapable of performing the essential duties attending the exercise of that right.”

Does this apply to housing? For example, does the handicapped person not have a right to housing simply because the apartment building has no ramp? Would it not be reasonable in this day and age, through grants if necessary, for older apartment buildings to be equipped with ramps? Most of them that are more than three storeys must have elevators. Would it not be a good act of this ministry, in this day and age, through this act to encourage the building of ramps so handicapped people who require wheelchairs may live in this province where they prefer to live and have a much wider choice than what they now have?

Does section 16, the way it is written, forever allow a landlord to continue to build apartment buildings without ramps at entrances and not require that person to provide the proper kind of entrance to the building? How section 16 of this act will be applied is a continuing concern to me. I would be interested in the minister’s answer to that.

9:50 p.m.

Among some of the other sections that deal with the problems of what is not counted as discrimination, section 19 bothers me as well. According to section 19 it is not discrimination in occupancy and accommodation if the owner shares a bathroom with the tenants. One can then discriminate and the appropriate section on accommodation does not apply. That seems eminently reasonable.

We have a section that allows male-only and female-only buildings, such as men’s and women’s residences. We have the provision in section 19(3) that, if the landlord is living in the building and there are no more than four units, there can be an exclusion based on marital status. That seems reasonable enough as well.

It is the next section that seems forever to perpetuate the adult-only apartment buildings in our society. It says the rights of a family are not infringed if there is a common entrance in that building. Does that mean any landlord of an apartment building in Ontario served mainly by a common entrance, with perhaps another entrance that can be used from time to time, may exclude families?

I would like clarification from the minister on exactly what this section means. The way I read it, it would seem any apartment building would fall under this definition and therefore families would be excluded and the adult-only apartment buildings -- quite unreasonably so phrased in many structures in the past -- would be allowed to continue.

When rents get particularly tight in any given city and the vacancy rate is low, it is virtually impossible for people who have children to find accommodation. This has been particularly common in Toronto and any city in which the vacancy rate has fallen to a very low level. People with families can find virtually no place in which to live.

My concern here is that any apartment building, because it has a common entrance, will be forever allowed to have adults only and will not take families. If that is the case -- and that is the situation under section 19(4) -- I have to say this is a section that very much needs to be amended. I suggest we can put in its place a section that deals with the type of thing that would be reasonable.

I can see that there can be senior-citizens-only apartment buildings. We could write a section where that would be allowed, as we have in many places in the province, and rightly so. But in a normal apartment building, which is a mix of two- and three-bedroom apartments, why would we have adult-only occupancy? That has become the case many times in Ontario whenever there has been a low vacancy rate.

This section appears to allow for that. If that is what it does, I suggest we rewrite this to cover the senior-citizens-only apartment buildings. Then we would not be tolerating in this province the discrimination that occurs against families. There are fewer problems when there are no children, and that very heavy penalty comes upon families whenever there is a low vacancy rate.

I would like the minister to explain that. If it is as I interpret it, and I am a very careful reader of legislation and its wording, it seems to me to perpetuate that particular discrimination against families which, in many cases, is an unreasonable one.

I also say to the minister that in my careful reading of the act, and we discussed this in the estimates, the inclusion of the disabled and the definition of the handicapped in this act in the way we have it would forever wipe out the question on application forms, “Have you ever received workmen’s compensation?” If the person answers in the affirmative, irrespective of how light the compensation case may have been, or how lightly disabling it might have been so that he or she is permanently recovered, he or she does not get the position. If the answer is in the negative and some months later it is found out, although the injury does not at all affect the way he or she does the job, that he or she has answered that question incorrectly, that of course is grounds for dismissal even under most union contracts.

I would be very pleased to have the minister, having come to this second reading debate, give assurance to this House that the situation will not prevail where they will be able to continue to ask those questions. Those who are former Workmen’s Compensation Board recipients will then have an equal opportunity for employment in Ontario and, having gotten that employment, will not find themselves unemployed because they have been recipients of workmen’s compensation benefits in some other job where, in many cases, the work-place situations have been unsafe and they were injured through no fault of their own.

Virtually the only omission in this act which the human rights code review committee in its report Life Together recommended be included was a reference to sexual orientation. This government included virtually everything else except that which was recommended in that very far-reaching report from the committee chaired by Dr. Symons after it toured the whole province. It did not include some of the administrative recommendations on which, in this bill, the ministry has actually improved. Some of the report’s administrative suggestions would not have worked all that well. I think the administrative sections in this act are an improvement over the recommendations.

Apart from those administrative changes, the ministry has included virtually everything else, but it has not had the courage to include that recommendation. To have included it would not have been an encouragement in any way to those persons to proselytize or to expand their numbers, nor would it be, or would it have been seen to be, in any way an approval of their lifestyle. It would have been a simple statement that we as a society should not discriminate against them or exclude them on that basis from the very basic protections of existence this act confers.

I regret that this government included everything that Life Together recommended after that thorough study except this. I understand that this government feels it is, and it is indeed, a touchy and a sensitive issue. But if it had the courage to bring it in, it would have passed. The simple inclusion would have shown leadership on the government’s part, and not exercising that tiny bit of leadership by extending non-discriminatory protection to them certainly shows a lack of courage on its part.

What bothers me, in that they are not being included and there is no protection, is that as this is the one area where there is no protection for continuation of employment for individuals whose sexual orientation is not heterosexual but homosexual. Persons may be employed and perform their jobs quite satisfactorily and adequately but, if it becomes known they are homosexual, they are either fired or hassled out of their jobs simply because of that. They certainly will continue to be discriminated against in the future if there are no protections under this act. We in the Legislature condone that attitude and that action by not extending protection in that particular area. It is not to our credit in our society in Ontario at this time that we cannot see that injustice and remedy it here by this particular act.

10 p.m.

One of the positive things about the act which rather delighted me -- it was rather a surprise, bearing in mind the attitude of this government over the years -- was the section dealing with contract compliance. It appears on the surface to he well written and covers every case in Ontario in saying there must be no discrimination on the basis of sex in employment -- referring back to that section -- by any person who has dealings with the government or any group that has received a grant from this government.

I hope the minister will make it very clear that by “grant” he means any of the moneys paid to the boards of education, colleges and universities or any moneys that normally flow out of the Treasury of Ontario to all the areas this government supports. If that is what is meant by “grant,” then this is indeed contract compliance and an entry for affirmative action in many of the work places across this province.

What this government should do, of course, is to have legislated affirmative action covering every employer in Ontario, and I think it might best be under the Employment Standards Act. But here at least we have a step, and I was surprised and rather pleased to see it, even though I think the wider step could be best taken in a different piece of legislation.

The other area that pleased me is what appears to be a very strong section on sexual harassment. It is short but very clear, and it appears to grant protection from sexual harassment to persons in this province. It follows, and puts into place and into legislation, the actions the commission has been taking over the last few months. But here it very clearly spelled out and not open to much interpretation by the courts, as I read it. This is certainly a welcome step in this legislation.

One of my favourite exclusions which the minister did not include in this act is that of political affiliation. During the years in which I was labour critic and dealing with the problems that come to the Ontario Human Rights Commission, it was surprising to me the number of calls I got, from both union and nonunion sources, over having to answer a question on an application form in Ontario: “Have you ever been a Communist?” They were not affronted by that question because they were Communists. They were law-abiding Canadian citizens who knew something about the political process; they knew the Communist Party was a legal party in Canada and Ontario, and they were affronted that they should have to answer that question on an application form when it was simply a form that was used south of the border and transferred up here with the branch plant of a multinational corporation. There is nothing in the code that prevents that question being asked -- nothing in the old code and nothing in this new code.

It would not have hurt the force of the bill -- in fact, it would have improved it -- if the minister could have included political affiliation so that question could be removed from the application forms. There are those who ask, “Why is that question there and why is that allowed in Ontario and in Canada?” That is a question that cannot be answered except to say, “Yes, it should not be allowed.” The only way it cannot be allowed is to have it covered in the code.

There are a couple of other things which cause me a little concern or cause me to ask questions. One is the makeup of the commission with a minimum of seven commissioners. In the appointing of these commissioners, I wonder if it is not time for the minister and this government to look at various groups in our society that should be represented there. However it is arrived at, I hope there may be a representative of the handicapped community as one of the commissioners. In terms of the way labour has stood up front for human rights in every form in this province, a representative of labour should be on the human rights commission and would be of assistance to that commission in terms of attitude and the matters which come before it.

Another matter which I must give the minister credit for -- I think it is a step forward -- is the section under enforcement which allows for a payment of mental anguish as a result of having suffered discrimination under this act. Quite apart from anything else which may fall to that person, his return to work, back pay, being allowed to live in some accommodation and whatever else, he can be compensated up to $5,000 for mental anguish involved in the pursuit of that right and the laying to rest of the discrimination which befell him. It is important that this bill allows for that principle.

However, I would say to the minister I wonder if the amount is high enough. If this act may stand for eight or 10 years without amendment, that amount is either not high enough or it would need constant amendment by regulation. Although I am opposed to the general principle of things being done by regulation, $5,000 in eight or 10 years time, before this act is seriously amended again may well be a pittance. One may well want to arrange so it can be upped yearly or on a regular basis to keep in step with the cost and the standard of living in Ontario as our minimum wage, Workmen’s Compensation Board pensions and other payments by this province should be done periodically, more than is done at the present time.

I expected to find a primacy clause in any major revision of the Human Rights Code and I do.

Mr. Speaker: Again, you are talking about the exclusions.

Mr. Bounsall: The inclusion of a primacy clause in this act.

Mr. Speaker: Are you talking about something that is in the bill?

Mr. Bounsall: Oh, yes, it is right there in section 44.

Mr. Speaker: I thought you said you would have liked to have seen it.

Mr. Bounsall: No, it is here in the bill. It is a primacy clause. It does not surprise me it is here because it should be. It is in section 44. One really cannot say it is excellent because it is well expected. The primacy clause says that clearly this act prevails over all other acts.

Of course, it is qualified. It does not have to apply to present acts and regulations until two years after this act comes into force. Future acts or regulations to those acts specifically could contain a provision that this act is not to apply. I trust over the next few years this government will not amend a whole series of acts to exclude those acts from the protection and primacy of this act, and with acts in the future, will not write them such that they give those acts or sections of those acts primacy over this Human Rights Code.

I trust that will not happen and that this is indeed the primacy clause which the government intends to be virtually all-encompassing over all legislation in Ontario.

10:10 p.m.

There are many other detail points I could make, Mr. Speaker. Let me conclude by saying that this new act has given the Ontario Human Rights Commission virtually all of the legislative tools to do a good job for us in the province. I still wonder if they will have the manpower to do the job. We are all aware there is an expansion in the human rights commission, an expansion which will allow them to do things they have not done in the past. But will their attitude change? Will it be one of really going out and trying to change society, of trying to change the attitudes? It allows them to do educational work and to do an effective job of affirmative action in this province. Will they embrace that enthusiastically?

From this point on, I hope that with an expanded personnel, the attitude of commission employees to all those who come before them, many in very disturbed states of mind because of discrimination or perceived discrimination, will be encouraging. I hope their attitude will not be discouraging as it has been from time to time in the past. I hope when a case is brought before them they will move with speed and enthusiasm. I hope the commission, with this new legislative tool, will show it means business in extending to all the citizens of Ontario the very basic and basically good protections of this act.

Mr. B. Newman: Mr. Speaker, I rise to make a few comments concerning Bill 209, An Act to revise and extend Protection of Human Rights in Ontario. I do not intend to be very lengthy. I rise with a feeling of glee, but I am also a bit disappointed.

I am very pleased the minister has finally introduced a bill to amend the Human Bights Code. I am sure he and the Provincial Secretary for Social Development (Mrs. Birch) are aware I have introduced legislationtlime and again in the past -- if I am not mistaken, it might be seven, eight or nine years ago -- dealing with only one aspect of the Human Rights Code, namely, eliminating discrimination because of physical handicap, where that handicap did not interfere with the individual’s performance of his work.

This legislation is an improvement on what I had originally suggested because I dealt only with the physically handicapped. The minister has implemented a lot of additional changes and, as a result, discrimination is now going to be eliminated for a fairly comprehensive series of reasons. I could suggest to the minister that he has probably erred a bit in his definition of the handicapped. That is on page three of the bill under the heading, “Interpretation and Application.” I think he erred by not including diabetics because the minister knows that can be kept under control with medication.

Hon. Mr. Elgie: The general definition includes it.

Mr. B. Newman: Possibly the definition may include it, but I would have preferred to have seen the word “diabetes” included in that definition section

Hon. Mr. Elgie: We have to include every disease. It is included.

Mr. B Newman: I will accept what the minister says and hope I am not disappointed when the application of the legislation is eventually put into practice.

The two individuals who will be responsible for the implementation of the human rights legislation have been involved in human rights and with the handicapped for a long time. The Provincial Secretary for Social Development knows the two individuals. I think she would agree with me that both are extremely capable and should be considered. One is Jack Longman, who is involved with the ministry on one of the committees. The other one is Marilyn Malott who, as editor of Our Future, a newspaper in the city of Windsor, has made a very substantial contribution over the years to the elimination of discrimination essentially because of the physical handicap.

I could come along and read into the record a lot of the comments I made on this when my bill was discussed back on May 31, 1976, but the minister’s officials can read that themselves. I hope they do take into consideration some of the comments that were made, not only by myself but by other members who took part in that debate in the private members’ hour.

I want to commend the minister for finally acting because his predecessors for many years had hesitated to introduce legislation that would, in my estimation, have eliminated discrimination because of the physical handicap, and that is essentially where my interests were concerned. As I said previously, the minister has improved on the legislation. I hope with that improvement that at least in the future discrimination will be at a minimum. We will never eliminate it at all, regardless of what type of legislation we may pass, if in the heart of the individual he does not want to accept that legislation and insists on being discriminatory in his practices.

Mr. McClellan: Mr. Speaker, I am pleased to be able to take part in the second reading debate on this very important and significant bill. Let me say at the outset, in passing, what an improvement this is over that thoroughly inadequate Bill 188 the minister brought before us last year. The minister gets agitated when we mention that.

Hon. Mr. Elgie: You never did understand what that bill was all about. You never did understand what was finally agreed to.

Mr. McClellan: I think the proof is in the pudding, whether I understood the process or whether the members on this side of the House understood the process that took place last spring or not. I think we understood the process very clearly, thank you. The fact that the minister was unable to proceed with Bill 188 last spring because of the objections of the opposition, not in isolation and not in any kind of a vacuum, but based on the substantial and substantive opposition of the handicapped consumer organizations, resulted in substantially better and substantially more significant legislation being in front of us here today and which we are tonight debating.

Again, the minister shakes his head.

Hon. Mr. Elgie: This is going to be substantially the same.

Mr. McClellan: It is as different as chalk and cheese; it is absolutely different. There is no comparison whatsoever. We should be very clear about what this bill does well and what it does not do. I do not get very much consolation from the way the bill addresses the needs of women. I look, for example, at the ongoing plight of domestic workers; they are not going to be helped substantially or at all by this legislation. I look at the provisions with respect to families, and I don’t get any sense that the kind of anti-family bias that seems increasingly to characterize our society is being adequately addressed in this legislation, although there are provisions that ostensibly call for an end to discrimination because of family.

There are loopholes that are large enough to drive a 10-ton truck through. I think that is regrettable, but I guess we had better understand what we have in front of us. We don’t have an amendment to the Human Rights Code or a new Human Rights Code that is principally designed to meet the needs of families. That is not what this thing is. Other speakers have talked about the fact that sexual orientation is the great silence in this bill. It is not mentioned at all. That protection is not even addressed in passing as are some of the other provisions.

10:20 p.m.

What this bill principally deals with is the needs of handicapped people, but I want to repeat the theme in that context. I want to repeat the remarks my colleague the member for Riverdale made, that this is simply a beginning and we should not, either on the government side or on the opposition side, delude ourselves about how much benefit will accrue simply from the passage of a human rights statute.

I think there is a real danger, because of my expectation of a public relations campaign over the course of the next few months and even in the normal course of the reporting of this kind of legislation in the media of the kind of debate we are having tonight and because of the subsequent debates that will take place, that false expectations will be raised. We need to be very clear about what human rights legislation can do for the physically handicapped and what it cannot do.

I think it is important for the government to acknowledge that as important as this legislation is, and I will concede as good as it is, as it affects the physically handicapped, there is still a whole myriad of problems which, while they are addressed in the language of the bill, will not be solved with the passage of the bill. I think it is absolutely essential, particularly as we are on the eve of International Year of Disabled Persons, that we do not play rhetorical games with the passage of this legislation as significant, as good and as important as it is.

Let me try to illustrate what I am talking about. The very first part of the bill, part I, set out under the heading “Freedom from Discrimination” the new grounds which are prohibited and talks about the right of equality in the occupancy of accommodation, I am speaking from the perspective of the needs of the physically handicapped. That is very nice. That is very good, and I am not being sarcastic. I have a tendency to sound sarcastic even when I am not intending to sound sarcastic. That is good language, but it does not deal with the problem of buildings not adapted to the needs of the physically handicapped.

If somebody who is a quadriplegic or a paraplegic applies for an apartment which is not equipped to admit physically handicapped people, because the doorways are too narrow to accommodate a wheelchair, because the elevators are not adapted to meet the needs of somebody who is travelling in a wheelchair, or because the apartments are not adapted to meet the needs of a tenant who lives in a wheelchair, then that language is as meaningless as if it did not exist.

We must not delude ourselves that we are solving the housing problems of the physically handicapped because we pass a statute that says every person has a right to equal treatment in the occupancy of accommodation and because we say in the preceding paragraph we will not permit discrimination by virtue of handicap. The discrimination de facto will continue. The discrimination will continue unless the government does a whole bunch of other things.

For example, the government has to amend part V of the building code to require buildings to be adapted to meet the needs of the physically handicapped. That is a project currently under way which somehow got lost in the shuffle between the Provincial Secretary for Social Development, who wants part V of the code to be amended, and the Minister of Consumer and Commercial Relations (Mr. Drea), who does not appear to want part V of the building cede amended to cover residential accommodation. That is where it was when we had our discussion in the estimates, I say to the Provincial Secretary for Social Development. Unless that is done, this section is meaningless because we have the exemption section. Unless these other things are done, there remain loopholes wide enough for anybody to drive a truck through. Unless the government brings in other programs as well to fund housing designed for the needs of the physically handicapped, that is, provides funds to redesign and equip apartments to accommodate the physically handicapped and to provide support services, this section will be utterly meaningless.

Another section of the bill deals with employment and prohibits discrimination in the work place on the grounds of a handicap. Now, for the first time in our history, a handicap is a prohibited ground of discrimination. What does that mean? On its face value, all things being equal, it means nothing. It means almost nothing. According to the Canadian Council on Social Development, 80 per cent of the physically handicapped in this country are unemployed.

We know that with the proper kind of support services, the proper kind of manpower programs and the proper kind of adaptation in the work place, a large percentage of those handicapped people who are currently unemployed will be able to join the work force, work productively and make a full contribution to their community. The simple passage of this statute does not address that problem because there is nothing in the statute that talks in legal language about reasonable accommodation, which is another way of saying that our employers and our work places should not be permitted to deny physically handicapped people access to them. We have not addressed that, I do not think. That is something we will have to look at in a long and tough kind of way. That is an obvious flaw in the legislation that is drafted.

The legislation does nothing about the fact that many handicapped people cannot compete on the basis of equality with people who are not handicapped. It does not talk about the needs of the economy to make those kinds of concessions. We know the economy is not going to make those kinds of concessions on its own, not our kind of economy, which operates solely on the basis of profit considerations. Those kinds of adaptations will only be made if the government requires them to be made, either through incentives by the carrot, or by the stick through the introduction of quota legislation. It is an either-or situation. We have to do one or the other is what I am saying. It is not going to happen magically all by itself.

I have been advised that the government House leader has some business to do and that this would be an appropriate time to adjourn the debate.

On motion by Mr. McClellan, the debate was adjourned.

BUSINESS OF THE HOUSE

Hon. Mr. Wells: Mr. Speaker, as I indicated last Thursday, I would like to indicate now the business of the House for tomorrow and part of Thursday. Tomorrow the House will sit from 2 p.m. to 8 p.m. and on Thursday we intend to sit from 10 a.m. through to 2 p.m. when we will have routine proceedings.

We will consider legislation tomorrow afternoon, Wednesday, and Thursday morning in this order: Starting tomorrow afternoon, we will have third readings on the Order Paper, followed by private bills on the Order Paper and reported from committees, except for Bills Pr18 and Pr36. Then we will move to second readings and committee of the whole House, if necessary, beginning with the bill we have been discussing tonight, Bill 209, followed by Bills 190, 177, 192, 193, 205, 188, 201, 204, 214, 215, 221 and then Bill Pr36, followed by Bill Pr18.

The business for Thursday afternoon and evening will be announced tomorrow afternoon.

The House adjourned at 10:30 p.m.