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5.4 The Ontario Human Rights Code

The applicability of the Ontario Human Rights Code to hate
activity, is limited, since the prime focus of the
legislation is discrimination in the areas of employment,
services, accommodation and contracts. However, section 13
of the code prohibits the publication or display of notices,
signs, symbols or other similar representations that
indicate the intention of the person to infringe or incite
infringement of the code right. One of the code rights is
"equal treatment ....without discrimination". Potentially,
such hateful symbols as swastikas in the work place or in
housing environrnents could violate the code.

Prohibited grounds of discrimination in the Ontario Human
Rights Code are race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation,
age, marital status, family status, receipt of public
assistance (in accommodation) and record of offences (in
(b) The potential for other civil legislative remedies for
hate activity

In recent years there has been much talk and some movement
toward establishing a civil cause of action in response to
_ate propaganda in particular and hate activity in general.
In fact, current Ontario Attorney General, the Honourable
Charles Harnick, brought forward a private member's bill
initiating such legislation while in opposition. Mr. Harnick
later withdrew the bill.

On the surface, such legislation would seem to be
advantageous to those involved in the fight against racism
and antisemitism. Many believe such legislation would
provide an additional tool to combat hate activity. Further,
the ability to civilly sue hate groups could potentially
cease the operations of hate groups found liable as they
would be hit in the pocketbook. Further, a civil proceeding
could be initiated by targeted groups in those cases in
which police and governmental authorities are either
unwilling or unable to prosecute.

On the flip side, there are many criticisms of the
development of such legislation Some of the arguments in
opposition to the statutory creation of a new tort with
respect to hate activities are as follows:

     * Many anti-racist groups take the position that
     dealing with hatemongers is the state's responsibility.
     In particular, the legislative tools already available
     under both the criminal law statutes and human rights
     code should be used to their full potential
     * Such civil legislation might create the erroneous
     impression that responsibility for dealing with racist
     extremists has shifted from the government and human
     rights commissions to private citizens and
     organizntions. The potential of creating such a
     perception, in and of itself, provides sufficient
     reason for objecting to the creation of new civil
     legislation, with questionable constitutionality and
     impact, which would have the effect of neutralizing
     government action in this area.
     * There is potential for a large number of frivolous
     actions initiated by hate groups and members of hate
     groups against anti-racist organizations which seek to
     fight the promotion of racism and antisemitism.
     Responding to such frivolous actions would sap anti-
     racist organizations of their resources in the form of
     time, energy and money.
     * The focus on civil actions would not create greater
     access for parties without financial resources. It is
     well recognized that access to the civil litigation
     system, despite the potential of availability of legal
     aid, is much easier for those with ample financial
     resources. Thus it is far more equitable to maintain
     the state's sole responsibility to deal with
     hatemongers through the use of criminal law or human
     rights provisions.
     * Public support for the whole idea of combating hate
     group activity could be seriously eroded by an
     onslaught of civil actions dealing with haterelated
     activities. Further, the ability of every group and
     individual to launch civil actions in response to
     alleged hate-related activities is much more likely to
     be abused than currently available criminal and human
     rights sanctions. Thus the potential for stifling
     legitimate free speech would be that much greater with
     legislation creating a civil right to sue.
     * It would be exceedingly difficult for target groups,
     such as the Jewish or black communities to prove
     pecuniary damages. In the event that fines are set out
     in any proposed legislation to get around this problem,
     a new difficulty will be created providing for criminal
     sanctions flowing directly from a civil proceeding. In
     British Columbia there has been a civil cause of action
     for hate activity in effect since 1981. The provision
     has not been used. Possible reasons for the disuse of
     the legislation are the high costs of privately
     commencing civil litigation and the uncertain level of
     darnages available.

Alternatives to creating a new tort include amending the
Ontario Human Rights Code to prohibit a broader range of
hate activity and to permit individuals or groups to file
such complaints with the Ontario Human Rights Comrnission.
An amendment broadening the Human Rights Code to take into
account hate-related matters could be made in conjunction
with providing the Commission with greater resources and, if
necessary, restructuring the Commission so that complaints
could be handled more expeditiously.

Responding to hate-related matters which fall outside the
ambit of the  criminal law, through an expanded _Human
Rights Code_, would: maintain state responsibility for hate
related matters; be less problematic constitutionally; and
be more equitable for complainants on a cost basis as
compared to the civil litigation process.

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