Constitutional Rights vs. Human Rights

“Human rights” and “constitutional rights” often get used interchangeably. In Ontario, though, they come from different laws, apply in different situations, and are enforced in different places. This guide explains the distinctions in plain English for employers, HR, and the public.

The 30-second answer

• Constitutional rights come from the Canadian Charter of Rights and Freedoms. They primarily protect people from government action (laws, policies, decisions). Courts enforce them and can strike down laws or award remedies.

• Human rights in Ontario come from the Ontario Human Rights Code. They prohibit discrimination in services, housing, contracts, employment, and unions, and they bind both private and public organizations in Ontario. The Human Rights Tribunal of Ontario (HRTO) enforces them.

• Source of law

  • Charter: Part of Canada’s Constitution (supreme law).

  • Code: Ontario statute with quasi-constitutional status and primacy over conflicting Ontario laws.

• Who is bound

  • Charter: Governments (federal, provincial, municipal) and entities exercising government functions.

  • Code: Most employers, landlords, service providers, and unions in Ontario (public and private sectors).

• Where it applies

  • Charter: Government laws, policies, decisions, policing, and public administration.

  • Code: Five social areas—services, housing, contracts, employment, and membership in vocational associations.

• Limits and tests

  • Charter: Rights can be limited if demonstrably justified under section 1 (Oakes proportionality test). Section 33 (the “notwithstanding clause”) can be used in defined circumstances.

  • Code: Duty to accommodate to the point of undue hardship; only cost, outside sources of funding, and health and safety are recognized hardship factors.

• How to enforce

  • Charter: Courts (and administrative decision-makers must proportionately balance Charter values).

  • Code: File an application directly with the Human Rights Tribunal of Ontario.

• Remedies

  • Charter: Courts can strike down laws (s. 52) and grant remedies/damages for rights breaches (s. 24).

  • Code: HRTO can order monetary compensation (including injury to dignity) and public-interest remedies (training, policy changes, reinstatement).

• Time limits

  • Charter: Varies by remedy and procedure (e.g., court limitation periods, judicial review timelines). Get advice promptly.

  • Code: Generally one year from the incident (or last in a series) to file at the HRTO.

A closer look

1) Constitutional rights (the Charter)

• Scope
  The Charter applies to governments and to private entities when they are carrying out government programs or exercising statutory powers. It generally does not govern purely private disputes.

• Practical examples
  A police search (section 8), a city by-law restricting expression (section 2(b)), or a public hospital policy that excludes a group (section 15) are all subject to Charter scrutiny.

• Limits and justification
  Even if a right is infringed, the government can try to justify it under section 1 using the Oakes test (pressing objective, rational connection, minimal impairment, overall proportionality). Legislatures can, in limited circumstances, invoke section 33 (the “notwithstanding clause”) to temporarily shield certain laws from parts of the Charter.

• Remedies
  Courts can strike down unconstitutional laws under section 52 of the Constitution Act, 1982, and grant remedies for government misconduct under section 24 of the Charter, including damages and exclusion of evidence. Administrative tribunals and regulators must also make decisions that proportionately balance Charter protections with their statutory objectives.

2) Human rights in Ontario (the Code)

• What’s covered
  The Code prohibits discrimination and harassment on protected grounds (for example, race, disability, sex, gender identity or expression, family status, creed, age) in five social areas: services, housing, contracts, employment, and vocational associations.

• Primacy
  The Code has primacy over conflicting Ontario statutes unless another law expressly says otherwise. It binds the Crown.

• Duty to accommodate
  Organizations must accommodate to the point of undue hardship. Only three factors count toward undue hardship in Ontario: (1) cost, (2) outside sources of funding, and (3) health and safety. Inconvenience, employee morale, or customer preference do not qualify.

• How to enforce and timelines
  Individuals file directly with the HRTO. The general deadline is one year from the incident (or from the last incident in a series).

• Remedies
  The HRTO can order compensation for lost income and for injury to dignity, feelings, and self-respect, and it can impose public-interest remedies such as training, policy changes, and reinstatement.

Federally regulated workplaces: a quick note

If you work for a federally regulated employer (for example, a bank, airline, telecom, inter-provincial transport, or the federal public service), discrimination issues typically proceed under the Canadian Human Rights Act through the Canadian Human Rights Commission and Tribunal, rather than the Ontario HRTO.

Which path fits your situation?

• Government rule, policy, decision, or action at issue?
  Think Charter (constitutional rights).

• Workplace, landlord, retailer, school, or service provider within Ontario at issue?
  Think Ontario Human Rights Code (human rights).

• Overlap can occur (for example, in public institutions). Strategy and forum choice will depend on the facts. Get legal advice early to preserve timelines and pick the most effective route.

Practical tips for employers and HR

• Public-sector or delegated decision-makers: stress-test policies for proportionality and clarity of objectives before rollout.

• All Ontario organizations: build a consistent accommodation process, document decisions, assess undue hardship only on the three recognized factors, and train managers to identify and escalate accommodation requests promptly.

Bottom line

In Ontario, constitutional rights mostly check government power, while human rights law polices discrimination in everyday life—especially at work, in services, and in housing. Knowing the difference helps you choose the right process, timeline, and remedy.

This article is legal information, not legal advice. For guidance on your specific situation, contact Vanguard Law.