Do I really have the same rights as heterosexuals when it comes to the law in Ontario?

By H. Louise Waterfall

Disclaimer: the content of the following article is provided for informational purposes only and should not be construed as legal advice. No action with regards to your particular matter should be taken until you have first sought full legal or professional advice from a lawyer fully retained to act on your behalf.

Although society has a lot of catching up to do to ensure that everyone really is treated equally, Ontario’s laws continue to improve to reflect our changing norms. I was recently asked to answer some questions about the rights of people that are not heterosexual, to clarify if there are legal differences in the way people are allowed to be treated. In most cases, the short answer is “no.” Canadian and, more specifically, Ontario law requires people to be treated equally. Sexual orientation has been recognized as a prohibited ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. Further, the Ontario Human Rights Code (Code) prohibits discrimination based on sexual orientation. The Code prohibits actions that discriminate against people based on a protected ground in a protected social area. There are some exceptions stated under the Code (for example insurance), but the exceptions are specific. Where accommodation is necessary to prevent discrimination, it is required to the point that it would create “undue hardship” (i.e., result in unreasonable financial costs or risks health and safety) for the person providing the accommodation. Accommodation isn’t something that is likely to come up in the context of discrimination due to sexual orientation. 

The Code protects everyone from being discriminated against for any of the following reasons:

  • Age

  • Ancestry, colour, race

  • Citizenship

  • Ethnic origin

  • Place of origin

  • Creed

  • Disability

  • Family status

  • Marital status (including single status)

  • Gender identity, gender expression

  • Receipt of public assistance (in housing only)

  • Record of offences (in employment only)

  • Sex (including pregnancy and breastfeeding)

  • Sexual orientation

  • Individuals are protected in the following social areas:

  • Accommodation (housing)

  • Contracts

  • Employment

  • Goods, services and facilities

  • Membership in unions, trade or professional associations

It can be socially uncomfortable to assert your rights when someone treats you improperly, but knowing your rights is the first step to being able to correct them. If you have a complaint against someone who discriminates against you, the Ontario Human Rights Tribunal (OHRT) may hear your claim. The Human Rights Legal Support Centre exists to assist people who face discrimination for any reason, including discrimination based on sexual orientation. They have a great website (www.hrlsc.on.ca) and provide information and support by telephone.

Questions

Q.  Can my same-sex partner become a common-law spouse? 

A.   Yes. Two people of any gender can become common law spouses—what is more complicated is that it depends on the purpose as to how common law spouse is defined in Ontario. In most cases, the Family Law Act requires that people live together for 3 years before they are considered common law spouses. However, if the individuals have a child together, that can result in them being considered spouses even if they haven’t lived together very long. As described below, the Health Care Consent Act defines someone as a spouse if they have lived together longer than a year. 

Q.  Legally, how does gay marriage work in Ontario—is it different? 

A.   It is the same. The wording of legislation has been revised to refer to a union between 2 persons. However, it is legal for people who perform marriage ceremonies to refuse to do so for personal religious reasons. This means not every place of worship will (or is required to) permit a marriage ceremony of same-sex partners and religious leaders are not required to perform marriage ceremonies for a type of union they believe is not in keeping with their religion. That being said, it is likely that anyone getting married wants their marriage ceremony to be conducted by someone who believes in them and their relationship. In my opinion, this is the government’s attempt at a difficult balance between the religious leaders’ personal religious beliefs and discrimination against a “non-traditional” marriage. 

Q.  Can mortgage lenders legally discriminate against same-sex couples? 

A.   No. As described above, the provision of services to individuals must not discriminate against those of different sexual orientation or family status. This is a basis for a claim at the OHRT.

Q.  Do landlords have the right not to rent to tenants based on sexual orientation? 

A.   No. As explained above, this is discrimination under the Code and is a basis for a claim at the OHRT. This is not a matter for the Landlord Tenant Board, because there is not yet a landlord/tenant relationship, so the Residential Tenancies Act doesn’t apply.

Q.  Can I be evicted for reasons relating to my gender or choice of romantic partner? 

A.   No. As explained above, this is discrimination under the Code and is a basis for a claim at the OHRT. If you are required to appear before the Landlord Tenant Board (LTB) because you have received an eviction notice and believe that you are being evicted because your landlord is discriminating against you because of your sexual orientation, you can address this at your hearing. The LTB requires its Members to take into account discrimination prohibited under the Code.

Q.  Can an employer ask about my sexuality? 

A.   No, in most cases. In the context of potential employment, asking about sexuality crosses the line, as it appears that an employer is then basing their decision to hire you on your sexual orientation. However, employers that are related to, or specifically identify with, an identified ground listed in the Code, can discriminate against other groups to hire people related to their group. For example, a trans-focused media group may discriminate to specifically hire a publicist that identifies as trans.

Q.  Do employment laws in Ontario protect me from being fired because I am a member of LGBTQ community? 

A.   Yes. As explained above, this is discrimination under the Code and is a basis for a claim at the OHRT

Q.  Do sexual harassment laws differ, in Ontario, when it's same-sex harassment? 

A.   No. Sexual harassment in the employment context can be inflicted by an individual of any gender on an individual of any gender. Employment policies are intended to create safe workplaces, prevent consequences for raising concerns and acknowledge individual differences (i.e., what I find offensive or uncomfortable may be different from what the next person finds offensive or uncomfortable) and every individual should feel comfortable.

Q.  Is the process when making a will or power of attorney different for same-sex couples? 

A.   The process of making a will engages with marital status, but not sexual orientation. Being a legal power of attorney for someone who loses capacity is not related to sexual orientation. However, the wishes of one’s will are not always respected by estranged families. This could be a cause for legal challenge by a beneficiary, but has sometimes publically taken the form of mutilation of remains by family members not respecting the identity of the deceased. As much as it is possible, ensure that family members and those around you know your wishes, as well as those assisting you in your estate planning. For those that are extremely concerned about this, one option may be pre-paid funeral plans.

Q.  What are my partner's legal rights when I am sick or injured and unable to speak for myself? 

A.   Your partner has the same legal rights as anyone else’s partner in the same situation. Under the Health Care Consent Act, if someone does not have capacity to make a decision for themselves regarding treatment, the following hierarchy is followed to determine who can make the decision for the individual:

  1.  A court appointed guardian, if the guardian has authority to regarding consent and personal care;

  2.  An attorney appointed by a power of attorney for personal care;

  3. A representative appointed by the Consent and Capacity Board;

  4. The person’s spouse or partner (spouse is defined as either by marriage; or living in a conjugal relationship (i) for over a year, or (ii) as parents of a child, or (iii) have a cohabitation agreement);

  5. The person’s child (if over 16) or parent;

  6. The person’s parent—with right of access only;

  7. The person’s brother or sister;

  8.  Any other relative;

  9. The Office of the Public Guardian and Trustee (if there is no other person to act).

It is important to know that if you are least 16 years old and are concerned that you will not be in a position to make decisions for yourself regarding treatment, you can apply to the Consent and Capacity Board to appoint someone to consent to treatment or the withholding of treatment on your behalf.