See also: Case Law

Literature Review

Preliminary research into Human Rights law and jurisprudence relating to breastfeeding.

Three questions considered by our legal committee:

*** NOTE: All excerpts from legislation below are enclosed in blocks surrounded by dashed lines.

Q: Does the statement of breastfeeding policy on the OHRC website have the force of law?

A: Some yes, some no. See below.

In the affirmative:

The Policy reads:

"Policy on Discrimination Because of Pregnancy

9. Services, Goods and Facilities (s. 1)

The code prohibits discrimination in "services, goods and facilities" against women who are breast-feeding. This means that a woman cannot be prevented from breast-feeding a child in, for example, a public area or restaurant.

You have rights as a nursing mother. For example, you have the right to breastfeed a child in a public area. No one should prevent you from nursing your child simply because you are in a public area."

- True. BCHRC 1997 case - Poirier, although this case was decided solely re: a woman's right to breast-feed in the context of her employment. [NOTE: although discrimination re: denial of public facility, etc. was alleged by Michelle Poirier, the tribunal decided that she was denied for work-related reasons, therefore, she did not establich prima facie case needed to proceed re: public facility. This was an outright denial of right to breastfeed; it was either do not breastfeed here or do not come.]

In the negative:

[from the policy:] "They should not ask you to 'cover up', disturb you, or ask you to move to another area that is more 'discreet'."

- I found no case-law re: human rights commissions or courts so far to support this.

- To the contrary, there are a number of strong arguments based in both the Ontario Human Rights Code itself and, apparently, human rights decisions (Alta and Manitoba) re: breastfeeding in other jurisdictions that pose strong challenges to this very broad statement.

The Ontario Human Rights Code

• Disclaimer re: policy on p. 1 -

  "This policy statement contains the Commission's interpretation of ... the Code ... It is subject to decisions by Boards of Inquiry and the courts. The policy should be read in conjunction with those decisions and with the specific language of the Code..."

• Preamble of Act underlines the inherent aim of fostering a climate of understanding and mutual respect and the context of a larger community in which an individual can take part. Clearly, balancing these rights is at the heart of the purpose of the legislation

  And Whereas 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 that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

• I don't think that there has been any human rights violation as the E.Ross was never denied the right to breastfeed. My reading of the human rights jurisprudence re: this situation is that the complainant must establish a prima facie case that her rights have been infringed. I don't think that a request to cover up is sufficient to support a complaint. She can't base her complaint on harassment, as there was a single incident, not the necessary course of conduct:

  "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; ("harcèlement")

• Additionally, the very clause which E. Ross would presumably seek to invoke to establish discrimination contemplates the variety and breadth of people and interests and circumstances who/which must be accomodated.

  1. <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1).

• The definition of equal is expressly required to be considered in a context:

  § PART II
  INTERPRETATION AND APPLICATION

  Definitions re: Parts I and II

  "equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; ("égal")

• Although section 8 below was clearly not intended for this purpose, I think we could make an interesting argument that J. Mason, in safeguarding the rights of all of the people who use the rink house, should be able to do this without threat. Clearly, this section is concerned with the danger of bullying:

  Reprisals

  8. <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.

• Although this does not apply directly to an s. 1 complaint of discrimination, elsewhere in the Act, the harm the legislation is intended to avoid cannot interfere with a person's freedom of expression:

  Announced intention to discriminate

  13. (1) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I. R.S.O. 1990, c. H.19, s. 13 (1).

  Opinion

  (2) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> Subsection (1) shall not interfere with freedom of expression of opinion. R.S.O. 1990, c. H.19, s. 13 (2).

• Although not in our context, the law recognizes the ground of "public decency". [This notion is also mentioned in the BC legislation] [NOTE: we need to research "public decency" - how is it defined, where does it come from, in what circumstances is it invoked etc.]

  Restriction of facilities by sex

  20. (1) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90h19_f.htm> The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency. R.S.O. 1990, c. H.19, s. 20 (1).

Q: In particular, in Ontario, I am interested trying to understand what sort of speech is now seen as a violation of the policy.

A: None, that I have come across so far.

Q: Is this policy statement law or de facto the law because it is all we have got and it is untested?

A: At this point, I think that any statement that goes beyond protecting a woman's right to breastfeed in a public space is policy only and not supported by the law.