Human rights issues have over time attained a prominent position in the global discourse. The importance of human rights can be illustrated by the fact that there exist international conventions and declarations which spell out human rights. Such conventions include the Universal Declaration of Human Rights which was enacted in 1948 and the International Covenant on Civil and Political Rights. In addition to these conventions and declarations, countries have also sought to entrench human rights issues in their respective constitutions. Some countries such as Canada have gone a step further and codified human rights in specific human rights instruments such as the Human Rights Code of Canada. The fundamental principle that underlies human rights is that all human beings are entitled to human rights simply by virtue of being human. Human rights are also universal. This means that would amount to violation of human rights in one part of the world would also amount to human rights violation in other parts of the world. This submission will focus human rights in Canada. It will seek to discuss human rights in Canada through the use of a matter that was decided by the Human Rights Tribunal of Ontario.
The case that will guide the discussion in this submission was adjudicated by the Human Rights Tribunal of Ontario which gave its final verdict on the 17th of January, 2008. The case was between Donna Giguere who as the complainant and the Ontario Human Rights Commission on one side versus Popeye Restaurant and Viola Landry as the respondents. The matter that Tribunal had to determine was whether there had been discrimination on the basis of disability, association and marital status as alleged by the complainant. It is important to highlight the fact that in this matter, disability had a much broader interpretation as it also encapsulated perceived disability. The facts of the case were as follows. The respondent, Viola Landry was the proprietor of a restaurant known as Popeye restaurant which was located in Geraldton, Ontario. Geraldton is a small community in Ontario which has a population of about 3000 people. Ms. Viola was responsible for the day to day running of the restaurant as well as managing all aspects of the human resources function of the restaurant. She was thus the one who hired and who could ultimately ‘fire’ persons who were employed to work in the restaurant. The complainant, Ms. Donna Giguere was by then a thirty six year old woman who also traced her roots to Geraldton and had spent most of her life there. At the material time in 2004, Ms. Giguere was in a common law relationship with a man who was HIV positive and also had Hepatitis C. However, while her partner was positive, Ms. Giguere testified that she was negative. She also testified that she and her partner were open about his status. In April 2004, Ms. Giguere successfully applied for a job as a waitress in Popeye Restaurant. Ms. Giguere and Ms. Viola knew each other as they had worked together before in another restaurant. Ms. Viola subsequently hired Ms. Giguere with full knowledge that her (Giguere) partner was HIV positive. She had made it clear that this would not be an issue of concern to her as all she was interested in is that Ms. Giguere effectively discharges her duties. After working for about two weeks at the restaurant, Ms. Giguere’s employment was terminated by Ms. Viola. According to Ms. Giguere’s testimony, Ms. Viola told her that the termination was because many customers were concerned that Ms. Giguere might contract HIV/AIDS from her partner. They even threatened to cease patronizing the restaurant if she continued working there. However, according to Ms. Viola, she was forced to terminate Ms. Giguere’s employment because the business was performing poorly at the time. The issue for determination by the tribunal was whether Ms. Giguere’s termination in the circumstances amounted to a violation of her human rights as enumerated in sections 5(1), 9 and 12 of the Human Rights Code of 1990.
In arriving at its determination, the tribunal noted that Ms. Giguere’s termination was a violation of the Code. It further noted that a termination will be deemed to be a violation of the Code if only one of the factors that was considered in arriving at the termination was discriminatory. Such factors need not be the primary reason for termination. The tribunal found that Ms. Viola had taken into account the fact that her (Giguere) partner was HIV positive in arriving at the decision to terminate her employment. In essence, Ms. Giguere employment was cut short due to her association with a person with a disability. The tribunal also noted that human rights will always precede and supersede ‘economic rights’ and provided such authorities as Berry vs. Mannor Inn in support of this position. Ms. Viola was subsequently ordered to pay a sum of $2500 to an organization that caters for persons living with AIDS in Geraldton.
This case was particularly important in enhancing my understanding of the role of human rights law. It was especially informative and enlightening on the role and position of human rights law vis a vis economic rights. The case was a clear pointer that the role of human rights law is to protect human dignity and to ensure that it is not violated even when there are other ‘competing interests’. As the case has clearly demonstrated, having an illness, even if it is a terminal illness does not make one any less of a human being than the next person. Having an illness does not entitle the rest of the members of the society to treat one as a lesser human being and in the process violate their fundamental human rights. Where this happens, then the necessary human rights instruments will come into play so as to ensure that the respect for human rights is upheld.
The case was also illustrative in terms of highlighting the challenges that ordinary citizens face in dealing with issues touching on human rights. The respondent in this case opted to violate the complainant’s human rights in the hope of saving her business. Nevertheless, the role of human rights is not to encourage their violation but rather to promote the understanding and respect of human rights by all members of the community.
In conclusion, this submission contends that there are still numerous challenges that are associated with respecting and upholding human rights. This is compounded by the fact that there is lack of adequate knowledge among the general population on what human rights are and why they should be respected. The case of Ms. Giguere calls for more concerted efforts so as to enlighten as many people as possible on the supremacy of human rights over all other rights. Human rights reign supreme because before anything else, one is first and foremost a human being.
References
Human Rights Tribunal of Ontario. (2008, January 17). Human Rights Tribunal of Ontario. Retrieved November 23, 2013, from Human Rights Tribunal of Ontario: http://www.canlii.org/en/on/onhrt/doc/2008/2008hrto2/2008hrto2.pdf
