Archive/File: orgs/canadian/canadian-jewish-congress/marches-to-modems/mtm-005-03 Last-Modified: 1997/03/30 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 employment). (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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