The New Ontario Human Rights Code: Implications for an Intersectional Approach to Human Rights Claims

Abstract

This paper explores the theory of intersectionality and its viability for the analysis of human rights under the new legal process and institutional framework in Ontario. First, I examine the debate between essentialism and intersectionality and conclude that intersectionality is a more comprehensive and inclusive approach to anti-discrimination laws. Second, I examine Canadian Human Rights Code cases and Charter equality cases involving intersectional claims. These cases reveal three inadequate approaches to analyzing multiple grounds of discrimination and two positive developments in the intersectional analysis of human rights claims. After assessing the general congruence of the new institutional framework with the principles of administrative justice, I identify three recent changes to Ontario’s system that hinder the development of an intersectional analytical framework and I offer suggestions for improvement. I conclude that an intersectional approach to human rights claims is possible but is currently frustrated by the new institutional framework in Ontario.