The basis for using international human rights law to interpret Ontario’s laws and to challenge decisions and policies that violate social and economic rights

Canada is a ‘dualist’ system, as opposed to a ‘monist’’ legal system.  This means that international treaties and conventions that have been ratified by the Canadian government are not considered binding law in Canadian courts unless a legislature passes a law that directly incorporates the treaty into domestic law.   Having a dualist system does not excuse a country from fulfilling its international legal obligations.  Nor does it mean that courts need not consider international human rights law when making decisions.

By ratifying international human rights treaties, Canada and all of the provinces and territories agree to ensure that domestic law conforms with international human rights guarantees.  If Ontario fails to create provincial law that implements the rights and obligations contained in the international human rights treaties that Canada has ratified, or passes laws that are inconsistent with these international human rights, then Canada is in violation of its international human rights obligations.   Social rights such as the right to adequate food and housing are largely within provincial jurisdiction, yet provinces often pay little attention to international human rights.  It is important that the legislature be reminded of its obligations under international law, and that legislation and policies be thoroughly reviewed for compliance with international human rights law.  Where international human rights are violated by Ontario, these violations can be the subject of reviews or inquiries by international human rights bodies, and complaints may also be filed under international human rights procedures.

Ontario’s obligation to ensure that its laws and policies comply with ratified international human rights law also gives rise to important principles of interpretation of provincial law by courts and tribunals to protect social and economic rights in Ontario.   Courts and administrative decision-makers are obliged to avoid putting Canada and Ontario in violation of international human rights obligations wherever possible.  This means they must interpret and apply Ontario’s law and ensure that policies and decisions are consistent with international human rights law.

Applying this fundamental principle and using international jurisprudence, may provide advocates and rights claimants with important legal tools to challenge violations of social and economic rights in Ontario.  If a decision-maker could have interpreted Ontario law in a way that conforms with international human rights, or exercised discretion in a way that protected someone’s right to housing or food, and instead made a decision that violated an international human right, a higher court may be asked to review and overturn this decision.  For example, if an administrative tribunal has the discretion under provincial law to decline or delay an eviction application for a small arrears of rent in a case where a family would be rendered homeless, and the tribunal fails to consider the obligation under international human rights law to ensure protection from homelessness, a decision to evict a family could be challenged as ‘unreasonable’ based on international human rights law.

The Supreme Court of Canada has strongly affirmed this principle that domestic law should be interpreted consistently with international human rights law.  It has recognized that international treaties and conventions that Canada has signed constitute persuasive sources for constitutional and statutory interpretation in Canada.   Justice L’Heureux-Dubé noted for the majority of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration) that:  “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.” The Court cited R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

“[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.”

Interpretation in conformity with international human rights law is particularly important in the context of the Canadian Charter of Rights and Freedoms.  The Charter is the leading guarantee of human rights in Canada and, thus, the primary vehicle for the implementation of Canada’s international human rights obligations.  The Supreme Court of Canada affirmed in Slaight Communications v Davidson that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”  In that case, the Court pointed to Canada’s ratification of the International Covenant on Economic, Social and Cultural Rights [ICESCR] as evidence that the right to work must be considered a fundamental human right.   All provincial law and policy must comply with the Charter, so this provides an important basis for arguing for consistency with international human rights.

Below is a list of rights to which Ontarians are entitled to under international law by virtue of the Government of Canada signing the relevant treaties.  Clicking on each right will bring you to a page that inventories the jurisprudence from UN human rights bodies relating to that specific right.  Each page also provides an outline of potential arguments that can be made regarding that specific right.  When advocating for a client whose social rights are being violated, it may be useful to reference the resources found under each link.  These pages are designed to provide the starting point for formulating the argument that Ontario’s legislative schemes should be interpreted and applied in a manner that meets international human rights standards and international human rights treaty obligations. 

International Jurisprudence:

1.     Right to an adequate standard of living (food, clothing, housing)
2.     Right to physical and mental health
3.     Right to social security
4.     Right to special protection of mothers and children
5.     Right to non-discrimination
6.     Right to life, liberty and security of the person
7.     Right to an effective remedy
8.     Right to participate/to procedural fairness 
9.     Right to freely chosen work under just and favorable conditions
10.     Reasonableness ( Right to a reasonable policy/program)