Human Rights-Based Approach to Policy and Program Development

 

Get it right the first time: Find out how to design and develop policies and programs that meet your human rights obligations in Ontario through the Human Rights-Based Approach (HRBA) framework.
 

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Contents
 

• The Ontario Human Rights Code (Code)
   
• Why use the HRBA Framework?
   
• What is a human rights-based approach (HRBA)?
   
• What are the potential outcomes of applying the HRBA Framework?
   
• The HRBA Framework
   
  1. Stage one: Context analysis
      
  2. Stage two: Undertaking research & analysis
      
  3. Stage three: Planning engagement
      
  4. Stage four: Developing options & recommendations
      
  5. Stage five: Seeking approvals 
      
  6. Stage six: Implementing programs & services
      
  7. Stage seven: Monitoring & evaluation

 

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The Ontario Human Rights Code (Code)

The Ontario Human Rights Code is for everyone. It is a provincial law that gives everybody equal rights and opportunities without discrimination in areas such as jobs, housing, and services. The Code’s goal is to prevent discrimination and harassment because of 17 protected grounds, in five social areas.

 

Protected grounds	Protected social areas
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	Accommodation (housing) Contracts Employment Goods, services, and facilities Membership in unions, trade, or professional associations

 

The Code was one of the first laws of its kind in Canada. Before 1962, various laws dealt with different kinds of discrimination. The Code brought them together into one law and added some new protections. The Code has primacy and all other Ontario laws must agree with the Code.

The preamble of the Code provides that, "it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination". To comply with the Code, public policy must consider the human rights of the people in Ontario.

 

Why use the HRBA Framework?

The Code prohibits discrimination in these social areas based on protected grounds. A ground can be a personal identity characteristic, attribute or trait that is protected from discrimination under the Code. A person can experience discrimination based on multiple protected grounds, such as sexual orientation and race.

People with multiple, intersecting identities may be particularly vulnerable to discrimination, such as Indigenous women and girls, older East Asian people and racialized people with a disability. Policy and program decisions that don’t consider the unequal burdens and systemic discrimination faced by people may be in violation of the Code.

A human-rights based approach to policy and program development means that particular attention is given to people who are vulnerable or disadvantaged based on grounds protected under the Code, such as gender, race, creed or disability. This includes ensuring that people are not subject to discriminatory treatment and that policies and programs should account for pre-existing sources of discrimination and inequitable conditions. 

For example, it is well established that racialized people, older people, single parents, and people with disabilities, including mental health and addictions disabilities, were disproportionately burdened by the COVID-19 pandemic. In many instances, pre-existing barriers and disadvantages have been perpetuated or exacerbated by COVID-19. In this context, policy and program decision-makers should have a heightened awareness of the need to ensure policies and programs benefit people equally.

 

What is a human rights-based approach (HRBA)?

A human rights-based approach is derived from international and domestic human rights obligations and is used to promote and protect human rights in policy and program development. At the heart of a human rights-based approach is the recognition that inequality and marginalization deny people their human rights and often keep them in poverty.

A human rights-based approach seeks to analyze inequalities and redress discriminatory practices. It empowers the most marginalized communities by supporting their participation and inclusion in program or policy development and strengthens the capacity of government policy and decision makers to respect, protect and fulfill their legal human rights obligations.

It ensures that program or policy development, implementation, management, and ongoing monitoring consider human rights principles and goals including equality and non-discrimination, participation of impacted groups, and oversight and accountability.

 

What are the potential outcomes of applying the HRBA Framework?

1. The requirement to meet human rights obligations will permeate the entire program and policy development cycle.
2. Policies and programs will account for pre-existing sources of discrimination and inequitable conditions.
3. People will benefit equally from policies and programs.
4. Policies and programs will address structural-level inequalities that interfere with human rights and will avoid adversely impacting people.

 

The HRBA Framework

The following human rights-focused questions and considerations help users to think differently about human rights and fulfilling their obligations under the Code. Understanding human rights obligations, both procedural and substantive, is a gateway to building policies and programs that meet the human rights of all Ontarians.

 

Stage one: Context analysis – Identifying the human rights context of your initiative

What are the main program or policy challenges your initiative seeks to address?

What human rights issues are engaged by the program or policy?   What existing relationships do you have, or will you need to build with Indigenous communities and organizations to engage meaningfully and respectfully on your initiative?

How will this initiative respect and uphold the rights of First Nations, Métis, and Inuit (Indigenous) Peoples, e.g., Jordan’s Principle?

What historical and current factors underlie gaps or present challenges to effectively addressing those gaps?

Will the initiative require the use of a population-specific equity tool, e.g., a tool that focuses on disability?

 

Stage two: Undertaking research & analysis – Conducting research and analysis that considers and reflects human rights obligations

Does any current research/analysis identify potential barriers or systemic discrimination that may impact the ability of people protected under Code grounds to benefit from the initiative?

Does your research/analysis consider government and non-governmental sources of socio-demographic data collected in this program or policy area, e.g., data arising from comparable initiatives in other jurisdictions?

Does your research/analysis include the perspectives of human rights experts and people with lived experience?

 

Stage three: Planning engagement – Working with impacted communities to develop an engagement process that works for everyone

Have you built in time, adequate funding, and flexibility to allow for effective engagement throughout the policy or program development process?

Have you considered which communities will be specifically impacted and the extent to which a more individualized approach is necessary based on the unique circumstances of these communities?

How will you reach individuals and groups who have been disproportionally impacted by past policies and programs in this area and who can provide knowledgeable input about barriers, e.g., lived experts and frontline service providers?

What is your organization’s current relationship with the communities you are working with?

Do you have a specific and tailored plan to engage First Nations, Inuit, and Métis communities?

 

Stage four: Developing options & recommendations - Proposing options and recommendations that respond to the rights, needs and perspectives of communities identified during research and engagements

Do any options/recommendations include unintentional barriers preventing marginalized people protected under Code grounds from accessing the program or service and reaping equal benefits?

Do the options/recommendations mandate the collection of socio-demographic data? And how will it use that data to inform decision-making and evaluate outcomes for the options/recommendations?

How do the options/recommendations seek to address the root causes of systemic discrimination in this area?

Do the options/recommendations address the specific needs of First Nation, Inuit, and Métis communities?

 

Stage five: Seeking approvals - Decision makers have confidence in a recommended approach that thoroughly considers and addresses human rights obligations

Do your approval documents demonstrate how human rights were considered/addressed?

Were there outstanding human rights issues you were unable to address and are they identified in your documents?

Are there unintentional barriers for people being created by this decision that you were unable to address and why?

 

Stage six: Implementing programs & services – Upholding human rights in service delivery and implementation

What mechanisms are in place to ensure that your initiative is delivering the intended benefits to all participants, including marginalized people protected under Code grounds, and that any barriers can be identified and addressed?

Is your public communication inclusive, accessible, and provided in multiple languages where needed?

How will the data be collected and shared back with communities in culturally sensitive and ethical ways?

 

Stage seven: Monitoring & evaluation - Monitoring/evaluation frameworks to assess the human rights’ impacts of the initiative

How will you monitor for potential disparate impacts? And what information will you rely on to inform decision-making and evaluate outcomes?

How will your monitoring and evaluation process document steps taken to assess, mitigate or remove any barriers that have been identified?

Would the monitoring/evaluation benefit from the involvement of impacted communities and organizations in designing, carrying out and or commenting on the evaluation?

 

Appendix
 

A Human Rights-Based Approach to Discriminatory Displays of Names, Words and Images

 

Objective

The Ontario Human Rights Commission has prepared this guidance on applying the HRBA framework in developing policies and procedures to respond to situations that involve displays of names, words and images.

 

Background

Across Ontario, names, words and images referring to current or historical figures, events or symbols have been in use in various forms, including but not limited to:

• commemorative days, events, statues and plaques  
• names of roads, buildings, or landmarks
• names, logos or mascots of groups or organizations

Perspectives shared by Indigenous peoples and racialized communities, among other people, have led to a greater awareness that names, words and images can sometimes be appropriating, derogatory, exclusionary, and discriminatory. Frequently cited examples of this include:

• commemoration of current or historic persons known for their discriminatory views and actions, including committing or perpetuating acts of racism against people protected under grounds in the Human Rights Code (Code)
• use of derogatory terms and images that might represent or be linked with discriminatory views and actions
• use of names, words and images that might negatively represent or appropriate the culture of a group protected by the grounds of the Code

In 2015, the Honourable Murray Sinclair and Chair of the Truth and Reconciliation Commission (TRC) noted the profound impact that stereotypes in sports have on young Indigenous people. The TRC Final Report documents the challenges Indigenous youth face in forming their identities and the important role of sports in developing self-esteem. One of the TRC’s Calls to Action includes a call to ensure that sport policies and programs are inclusive of Indigenous peoples.

Additionally, the TRC calls for Indigenous peoples’ right to self-determination to be integrated into civic institutions in a manner consistent with the principles norms and standards of the United Nations Declaration on the Rights of Indigenous Peoples, which affirms that “all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.”

 

Context

Commemorations and other displays of names, words and images can, in certain circumstances, amount to discrimination contrary to section 1 of the Code if they discourage or prevent a person from equitable access to a service for reasons associated with the protected grounds under the Code.

Discriminatory displays of names, words and images are also prohibited under Section 13(1), which states that a right under the Code is infringed by a display before the public, such as a notice, sign, symbol, emblem, or other similar representations that indicates the intention to infringe or incite the infringement of the rights of others.

To establish discrimination, it must be shown that rights that are protected under the Code have been infringed by the display of the name, word or image. The OHRC’s Policy on preventing discrimination based on creed provides guidance on factors to consider when reviewing creed-specific symbols:

There is a significant difference between an individual person expressing their creed belief by using a symbol in a private capacity, and an organization displaying or endorsing a creed-based symbol. Whether the display of a creed symbol in a social area may comply with the Code may depend on several factors, including: who is displaying the symbol and why, the symbol's location, visibility, or contemporary significance, the extent it may be associated with the organization as a whole versus an individual person, and whether the display has any significant negative impact (for example, by causing creed-based pressure, exclusion or discrimination against others).

Arguments typically advanced in defense of maintaining the status quo are that:

• preserving such symbols demonstrates the pervasiveness of colonialism, racism or discrimination which persists to the present day
• the cost for removing, replacing, or modifying the display of the name, word or image is prohibitive, or an inefficient use of funds
• it would create an unfair burden on residents, business owners, and other members of the community who would have to re-register or update their mailing address for government documents, financial accounts, and other services
• removing the discriminatory name, word or image constitutes “reverse discrimination”, or that such actions attempt to rewrite or erase moments in history
• using a derogatory word or image should be treated differently than commemorations that are open to broader interpretation
• the actions of the individuals commemorated and the decisions made by those in the past should not be judged by present day standards

While these factors may be considered in determining appropriate steps to remedy a discriminatory display of a name, word or image, they do not override a service provider’s responsibility to meet its human rights obligations.

The Code permits organizations to take corrective actions to assist people that have been subjected to historical, systemic discrimination. Such actions seek to remedy systemic discrimination and are not reverse discrimination (see section 5.3 of the OHRC’s Policy and guidelines and racism and racial discrimination for the OHRC’s response to claims that involve reverse discrimination).

 

Guided steps to apply the HRBA framework

The following human rights-focused considerations and questions will help you develop policies and procedures to prevent and respond to situations that involve displays of names, words and images.

 

Stage one: Identifying the human rights context

Policies on naming, commemoration, and other displays of names, words and images should require an analysis of the human rights context of a situation. Whether your organization is developing new policies or you already have existing policies, they should account for the following:

• Do your policies and procedures recognize people’s rights under the Code to be free from discrimination?
• Do your policies recognize your organization’s responsibilities under the Code to maintain environments that are free from discrimination?
• When deciding on the display of a name, word or image, or reviewing concerns about a display, do your processes include an analysis for discrimination and examine whether it can contribute to an atmosphere of inclusion or exclusion?
• Do those processes consider historical and cultural factors that underlie the impact of a display?
• Do those processes recognize the importance of participation from the affected group? Do you have resources and engagement strategies to develop relationships with affected groups and ensure that they are meaningfully participating in your process?

 

Stage two: Undertaking research and analysis

Historical research is necessary to understand how a situation may interfere with someone’s human rights as a result of systemic discrimination: the policies, practices, and culture of an organization that create or perpetuate disadvantages. Failure to consider the structural context involved could perpetuate exclusionary and differential treatment. For example, municipal street naming policies may be problematic if they promote commemorations of individuals of historic importance but do not require research to identify whether some parts of the community may view the person’s actions as discriminatory.

 

Stage three: Planning engagement

Allocating time and resources to formally engage with impacted communities is essential to preventing and responding to claims of discrimination. Effective engagement is necessary because:

• the history and legacies of individuals and events once celebrated, and the meaning and understanding of words and images, may have become complicated and problematic as different perspectives and information are more widely known and recognized
• community members might not share or interpret contextual information the same way (for Indigenous communities this means taking an inclusive approach, possibly with members both on and off reserve as well as groups including urban Indigenous and Indigenous women’s organizations)
• the meaning and understanding of a symbol might have changed over time
• in some cases, the difficulties in understanding the concerns raised may reflect the need for a broader understanding of the challenges that marginalized members of the community are experiencing

Ineffective engagement or failing to engage at all with affected people may exacerbate harms that result from the situation. The opposition to then-Holland Township’s efforts to rename Negro Creek Road (see a summary of the situation in the case examples below) demonstrates that service providers should not make assumptions about the perspectives of affected people and act prior to engaging with them. It may be necessary for service providers to revisit long-standing norms, or seek expert guidance about history, context and negative impacts before making decisions.

 

Stage four: Developing options and recommendations

Policies on the displays of names, words and images should include guidelines and procedures that recognize the protections provided under the Code and clearly state how the organization will respond to and remedy allegations of discrimination.

Organizations must review their policies, practices and programs to ensure that they do not have an adverse impact or result in systemic discrimination. They can create inclusive, non-discriminatory environments and avoid costly resolutions through positive and proactive practices. 

Including a public awareness and cultural competency training component to resolve a situation may help address misinformation and other barriers that contribute to tension and conflict.

 

Stage five: Seeking approvals

To act in accordance with human rights principles when making decisions:

• consider every situation as unique and do not rely on the decisions that were made elsewhere. While situations may share similarities, the human rights context may differ. Municipalities with roads or buildings that have the same name, or sports organizations with the same logos, may need to resolve situations differently based on the feedback from their local communities;organizations must maintain environments that are free from discrimination. This may require a decision to act unilaterally to prevent discriminatory impacts
• organizations must demonstrate undue hardship before citing cost as a prohibitive factor to meeting their human rights obligations

 

Stage six: Implementing programs and services

Adopting a collaborative approach to understanding diverse perspectives during the implementation of a change to a policy or the display of a name, word or image could lead to amicable resolutions that prevent or reduce the tension and divisiveness associated with this issue. Engaging meaningfully with affected communities early in the process may allow for positive working relationships to create safe spaces that are culture-based and trauma informed, limiting the harms to individuals who may have experienced discrimination. Ideally, fostering positive relationships will aid in facilitating conversations that are led by members of the affected community.

All parties involved have a responsibility to act in good faith, show respect to one another, and cooperate to identify steps forward, including considering options that preserve, modify, replace or remove the display of a symbol.

 

Stage seven: Monitoring and evaluation

Organizations that are responsible for displays of names, words and images should continuously monitor and evaluate the meaning and use of those names, words and images, and engage with affected communities. The broader engagement with affected communities achieved in Stage Three should aid in gathering feedback to help make informed decisions. 

 

Cases involving the display of names, words and images

 

Negro Creek Road

In 1996, the descendants of Black settlers filed a human rights complaint to restore the name of Negro Creek Road after Holland Township’s municipal council (now Chatsworth Township) changed it to Moggie Road. The descendants called for the preservation of the road’s name to commemorate the Black settlers and to prevent the erasure of their history and that of rural Black Canadians. The township agreed to restore the name as a result of the human rights complaint.

 

Colonization Road

In 2021, the town of Fort Frances renamed Colonization Road East to Agamiing Drive and Colonization Road West to Sunset Drive. The town also developed a street naming and renaming policy. Colonization Roads were constructed for migrating settlers to move in under the Public Lands Act to displace First Nations people.

This decision reflects the town’s commitment to Indigenous reconciliation, and the Truth and Reconciliation Commission’s call to “repudiate concepts used to justify European sovereignty over Indigenous peoples and lands.”

 

Indigenous-themed imagery in sports

In 2015, an Indigenous parent filed a human rights application against a sports organization and the City of Mississauga for displaying Indigenous-themed imagery on team banners and apparel and in municipally-operated recreational facilities.

The OHRC reached a settlement with the City of Mississauga, in which the municipality agreed to:

• Remove all Indigenous-themed mascots, symbols, names and imagery from the city’s sports facilities that are associated with non-Indigenous sports organizations.
• Develop a policy on the use of Indigenous images and themes at its sports facilities, in collaboration with Indigenous organizations.
• Supplement its Diversity and Inclusion training with expanded material addressing reconciliation and Indigenous peoples.

 

Swastika Trail

In 2022, the township of Puslinch decided to rename Swastika Trail to Holly Trail. The road received its name when swastikas were associated with well-being, before their appropriation by Nazis and reinterpretation as a hate symbol. While some residents did not want to be associated with the symbol’s modern interpretation, others argued that renaming the road would erase a part of the community’s popular history as a resort destination.

 

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Frequenly Asked Questions (FAQ's)

 

1. How does this new tool help Ontarians meet their human rights obligations?

The OHRC calls on everyone in Ontario, including service providers, employers, advocates, and provincial and municipal governments, to use this tool to meet their legal responsibilities towards Ontarians.

The tool helps people through each stage of developing a new policy or program by posing human rights questions and considerations. It can help identify inequalities and correct discriminatory practices. It can empower marginalized communities by supporting their participation and inclusion in program or policy development. Also, it strengthens the capacity of government policy and decision-takers to respect, protect and fulfil their legal human rights obligations.

 

2. Why should I use the HRBA Framework?

You should use the HRBA to understand your responsibilities and take human rights into consideration at every step of your planning and implementation of policies, programs and services. The tool will help you save time and effort, work with impacted communities, and meet your human rights obligations.

 

3. Do I have a legal obligation to use the HRBA Framework?

The HRBA Framework is not mandated or required by the law, but it is meant to support municipal and provincial governments, service providers and employers across the province in designing and developing policies and programs that meet their human rights obligations under the Code.

 

4. What happens when the intent of a particular policy, program or service is not discriminatory, but the impact is?

Intent is not relevant for establishing that discrimination has occurred. If a particular policy, program or service has a discriminatory impact, steps must be taken to address the discrimination.

Policy and program decisions that do not consider unequal burdens and systemic discrimination may violate the Code and can lead to costly litigation, investigation and other reputational risks for an organization.

 

5. What if my organization is already using tools to design and develop equity policies and programs?

The HRBA Framework is a tool that helps municipal and provincial governments, service providers and employers to meet their legal obligations under the Code by helping to design and develop policies and programs that consider the differing needs and circumstances of everyone.

Your organization can use the HRBA Framework in the development and delivery of human rights-focused policy, program, and services. 

 

6. What resources are available to support the implementation of the HRBA Framework?

You can use the HRBA Framework along with other related OHRC guidelines and policies, such as human rights and rental housing, preventing discrimination based on mental health disabilities and addictions, racism and racial discrimination, and preventing discrimination based on gender identity and gender expression.  These resources will guide you with particular situations or projects.

The Human Rights 101 3rd Edition (2020), Call it out: racism, racial discrimination and human rights and the Duty to Accommodate e-learning modules can also help organizations  across Ontario to develop policies, programs and services that meet their Code obligations.
 

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To learn more about how the HRBA framework can help you apply a human rights lens to your policies, programs and services, please refer to these user guides:

• A how-to for advocates and researchers
• A how-to for employers
• A how-to for health and human service providers
• A how-to for municipalities
• A how-to for provincial policy and program makers   

 

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