“Human Right” in Conflict with Property Rights
A Paper Given at the CanPRRI Conference, Calgary, 1998
by Karen Selick
The title of this essay is ““Human Rights” in Conflict with Property Rights”, but I want to make it clear from the start that in the political philosophy I subscribe to, there is no such conflict. I think that if the term “human rights” is properly defined, it includes property rights. To put it another way, property rights are a subset of human rights.
In fact, I would argue that, properly understood, there are no genuine rights which can conflict with any other genuine rights. I explain this viewpoint in a little more deal at the end.
However, throughout most of this essay, I will simply take the expression “human rights” as it is used in common parlance and in Canadian law, and give some examples of how these so-called rights, which in my view could most politely be described as pseudo-rights, come into conflict with property rights.[i]
Disabling Those Pesky Property Rights
The first example concerns a disabled woman in London, Ontario. She had been born with a condition which caused her to use a wheelchair at all times. In 1988, she decided that she wanted to retain the services of a chiropractor in London. She made an appointment with a particular chiropractor. He worked at a clinic owned by a second chiropractor, who was also the owner of the building where the clinic was located.
When she arrived for her appointment, she found that the building was not wheelchair-accessible. There were steps leading up from the front entrance to the examining rooms. There was no ramp or elevator. She couldn’t get in. She went home.
She spoke to the chiropractor on the telephone. He suggested three alternatives. First, he said, she could come back to the clinic, and he and the other chiropractor who owned the building would carry her up the stairs. Or, if she preferred, he would come to her home and treat her there. The third alternative would be that he would arrange to borrow facilities from another chiropractor who had a wheelchair-accessible building, and he would treat her there.
The disabled woman wasn’t happy with any of these suggestions. She felt that she was being discriminated against because she could not get her chiropractic treatment in the clinic she had selected, like other people who weren’t in wheelchairs. She complained to the Ontario Human Rights Commission, and they agreed with her. This was discrimination, they felt. This was illegal. Nothing less would do but that the building be made wheelchair accessible. A ramp, or elevator, or wheelchair lift would have to be installed. As well, the waiting room, examining rooms and washroom would all have to be made wheelchair accessible.
The chiropractor who owned the building quite understandably resisted the notion that he should have to make alterations to his property for the sake of this one prospective patient. His building complied with all the existing zoning regulations and building codes for the city of London. This patient might well decide, after her first visit, that she didn’t like that chiropractor and would prefer to look for another one, or that she was cured of the problem that had sent her there in the first place and didn’t need any more treatments, or that she was moving away to another city, or any of a dozen other things that would have meant her first visit would also be her last.
After years of negotiations with the Human Rights Commission (which accomplished nothing), a board of inquiry was convened. The chiropractor, of course, had to retain a lawyer. He had to retain expert witnesses, one in construction and one in accounting. The cost of these professional services has not been made public, but they probably weren’t cheap.
The hearing finally took place in 1995—almost 7 years after the original complaint.[ii] The issues were these:
· First, did the absence of wheelchair accessibility constitute discrimination against the disabled woman? The board of inquiry said “Yes”.
· Second, did the chiropractor have a duty to accommodate the disabled woman? The board said “Yes”.
· Third, could the chiropractor accommodate the needs of the disabled woman without “undue hardship”? Again the board said, “Yes.”
The board ordered the chiropractor to install a wheelchair ramp leading from the parking lot to the first floor of the building where the waiting room and examining rooms were. The chiropractor’s expert had testified that this would mean the loss of one parking space on the premises, the loss of one examining room which would become too narrow to be used, and an outlay of approximately $20,000. Furthermore, it would violate an existing zoning by-law, and permission would have to be sought from the city of London to make the alteration. The board held that none of these factors constituted undue hardship, and that it was the chiropractor’s duty to accommodate the complainant by doing these things.
As well, the chiropractor was also ordered to pay the disabled woman $500 in damages for infringement of her rights.
This is a pretty obvious example of a case in which it was held that the complainant’s “human rights” trumped the respondent’s property rights. The effect of the decision is tantamount to the Human Rights Commission simply expropriating $20,000 worth of the chiropractor’s money, and damaging his building into the bargain.
What makes this decision even more irrational, and futile, and destructive for all of society (not just the chiropractor) is that there is no evidence at all that the spending of this $20,000 and the disfiguring of the building will ever bring any benefit to anyone—not even the complainant. If she needed chiropractic treatment back in 1988, there’s a good chance she didn’t wait seven years for this decision to be rendered before going to another chiropractor. She has probably had her treatment long since, and she may never set foot—or should we say, never set wheel?--in this particular building for the rest of her life. It may turn out that this clinic never gets another patient in a wheelchair. So this whole exercise may be all for naught—a dead-weight loss to the economy (and more especially to the chiropractor), and a monument to an ideology which holds that the acute sensitivity of one individual to insult or offence is all-important, while the right of another individual to control his property and retain the fruits of his labour counts for nothing.
This decision of the board of inquiry is particularly objectionable and frustrating because it is full of contradictions and inconsistencies even on its own terms, and especially when you look at the purported goals of the Human Rights Code.
One of the themes of the decision is that people with disabilities are “seen both by themselves and by society as not the same as everyone else.” Unfortunately, building a wheelchair ramp won’t change this. People in wheelchairs will still be unmistakably different. They’ll be the ones wheeling up the ramp while other people will be walking. If we really wanted to make the differences between disabled people and able-bodied people unobservable, we would have to pass a law requiring everybody to use wheelchairs.
A second theme in the judgment is that the disabled don't want charity or pity; they don't want to be dependent upon others. That's understandable--who does? But to pretend that this decision--or indeed, any application of the Human Rights Code--makes the disabled any less the recipients of charity or any more independent requires a prodigious feat of self-delusion. They may not be dependent on someone else to carry them up the stairs, but they are still dependent on someone else to build them a ramp.
If the complainant had wanted to demonstrate true independence, she would have gone to the other chiropractor's office where someone had already installed wheelchair access voluntarily, instead of burdening a stranger with a $20,000 expense. Or she could have offered to pay for the ramp herself, rather than forcing an unwilling victim to provide it to her. The route she chose, of using the coercive power of a state agency to appropriate someone else's property for her benefit, underscores the very dependency she is attempting to deny.
A third theme of the decision is dignity. We're told that the alternatives offered by the chiropractor offended the woman's dignity. One wonders what she and the Board of Inquiry expected him to do when initially confronted with the situation. Was he supposed to say, "Okay, just wait a few weeks while I get a zoning variance from the city, arrange a new mortgage, and spend $20,000 installing a ramp so that we can see whether you really want me as your chiropractor?"
Most people who need chiropractic services need them now, not a few weeks from now. It made far more sense for the doctor to offer quick expedients than to offer to install a ramp. In my view, the complainant's own behaviour robbed her of dignity. A dignified response would have been for her to realize that the doctor was trying to accommodate her and to have met him halfway. Instead, she insisted that everything be done entirely her way. That's not dignified--that's bullying.
The Human Rights Code says its purpose is to enhance the dignity of "every person," not just disabled people, but the decision--indeed, the whole proceeding--overlooks any consideration of the chiropractor's dignity. The judgment reveals details of his assets, his debts and his earnings over several years. There it all is, in black and white, for his colleagues, his patients, his neighbours, or any other nosy stranger to read. Undoubtedly he finds that very dignified.
Even worse, his judgment as a businessman regarding the appropriate financial conduct of his business has been completely overridden. No doubt he would willingly have installed a ramp, in order to expand his potential client base, if he had perceived a reasonable prospect that the extra traffic would justify the expense. His opinion apparently was that it wouldn't. The Board of Inquiry couldn't care less. It’s as though he is but a child, the Board is his parent, and he has to do what it says, regardless of how foolish its decision may be from a business point of view. I'm sure he finds that very dignified too.
One witness, quoted approvingly by the Board, described the proceedings this way: "It really is...about persons with disabilities taking control of their own lives." Not at all. It's really about the Human Rights Commission, in the name of a few legally privileged groups, taking control of other people's lives and other people’s property.
A Landlord’s Rights—Going, Going, Gone
The second example arises out of three separate complaints lodged with the Ontario Human Rights Commission by some Torontonians who had applied to rent apartments but were turned down by the landlords. They said their applications had been refused because the landlords were using a standard screening test to determine whether they would be able to pay their rent. Essentially, the test was that the rent should not exceed 30 percent of the prospective tenant’s income.
This made the news in 1993 when the Human Rights Commission asked the Ontario government—which was then Bob Rae’s NDP government—to appoint a board of inquiry on this issue[iii]. The commission was hoping to outlaw the use of the standard screening test. They claimed it discriminated against several groups: low-income people, young people, old people, women and welfare recipients.
Ontario’s Human Rights Code contains a section explicitly prohibiting landlords from discriminating against tenants on all the usual grounds—race, ancestry, colour, sex, age and so on. It goes even further—it also says landlords can’t discriminate against tenants on the grounds that they receive public assistance. It doesn’t say that they can’t discriminate against people of low income. “Low income earners” are not what the Code refers to as “persons identified by a prohibited ground of discrimination”.
But the Human Rights Commission took the position that if landlords apply the 30 percent test, they may not be explicitly discriminating against one of the protected groups (welfare recipients or senior citizens or young people or single mothers or immigrants), but the effect will be just the same as if they were. This is what they call “adverse impact” discrimination. It’s not intentional discrimination on one of the prohibited grounds, but it’s any practice, neutral on its face, that happens to impact more heavily on a protected group than on other people who aren’t members of a protected group.
The board of inquiry finished its hearings in January 1997. As of the date when this essay was submitted for publication, the final verdict still had not been released. However, The Fair Rental Policy Organization of Ontario (the landlord’s organization who funded the defence), is expecting that the board will rule that using a guideline such as “rent can’t exceed 30 percent of the tenant’s income” is a prohibited practice under the Human Rights Code. Their expectations are probably accurate.
The Human Rights Commission moderated its position somewhat from the very extreme position they took initially in this affair: namely, that any screening device used by landlords constituted discrimination. In other words, they seemed to be saying at first that the renting of apartments should proceed on a strict “first come, first served” basis, without regard to the tenant’s ability to afford the rent at all. Later, they modified their position to say that certain types of financial checks were acceptable—things such as phoning previous landlords for references, doing formal credit checks through credit bureaus to see if the person had a history of unpaid debts or judgments against them, and so on. But they were still objecting to the 30 percent test.[iv] They claimed that there was “nothing but anecdotal evidence to show that demanding a person pay a maximum of 30 per cent of income will give a landlord any greater protection from a tenant not paying the rent."[v]
Whether the evidence is merely anecdotal or whether it’s backed up by a dozen scientific surveys seems quite immaterial. The point is, the property belongs to the landlord, and since it is his, he should be able to decide when and to whom he rents it; and if the landlord believes that a 30 percent test is a helpful tool even though a scientific study might prove that it isn’t, then he should be free to make that mistake regarding his property simply because it’s his own property. Maybe somewhere out there is a landlord who believes that only Sagitariusses can be trusted to pay their rent, and he won’t rent to anyone who isn’t a Sagitarius. It may seem to onlookers that he is making a big mistake, but he is the one who will suffer financially if his business decisions are irrational.
What caused the Human Rights Commission to back off from its initial extreme position? No-one knows. If it truly believed that it was following the correct principles regarding the 30 percent test, then it seems that it was being perfectly consistent when it took its initial extreme position, and in fact that extreme position is the inevitable position to which those principles must logically lead. Furthermore, if it is adverse effect discrimination that must be weeded out, then the entire price system that our whole economy is based upon is at fault, and every act of commerce that a landlord or other business person engages in constitutes a violation of the Human Rights Code.
There has been a move afoot recently among activists in the so-called “human rights” movement to make “poor people” a protected class of persons under the legislation. Michelle Falardeau-Ramsay, the head of the federal Human Rights Commission, has said on more than one occasion that she wants “poverty” to be made one of the prohibited grounds of discrimination.[vi] If we couple this with the notion of “adverse impact” discrimination, it spells doom for the market system and for the entire concept of private property.
Consider the effect on landlords, first of all. Most of them ask new tenants to provide a deposit consisting of first and last months’ rent before they move in. If someone says he can’t afford that deposit, and the landlord says “Well, in that case, I won’t rent to you,” it could be argued that the landlord has just discriminated on the grounds of poverty. This means a landlord’s demand for a deposit should be illegal. Suppose a tenant manages to scrape together the deposit but defaults on the rent a few months later, saying he can’t afford it. Should the landlord be entitled to take eviction proceedings? Surely that would be discriminating against that tenant on the basis of his poverty. And if you follow this line of thinking through to its logical conclusion, the very act of fixing the rent at a particular level would constitute an act of discrimination against that group of people who can’t afford that level of rent. Surely that is also discrimination on the basis of poverty. The only act that wouldn’t be discriminatory would be giving away free shelter, no questions asked, and no payment required, to anyone who expresses a desire to live on your premises.
Think what this would mean in other areas of commerce. Isn’t it discriminatory for butchers to charge more for filet mignon than for hamburger? Low-income groups are consequently going to eat less filet mignon than the rich. Aren’t the poor being discriminated against because they have to spend a higher percentage of their incomes on food than the rich? Shouldn’t food, like shelter, be given away for free, in order to truly eliminate discrimination? Shouldn’t all goods and services be free?
Maybe you think I’m exaggerating about the logical implications of this kind of thinking. Maybe you think that the human rights activists would never go as far as I am suggesting. But this mindset does exist. You see examples of it with increasing frequency. Just think about the opposition that exists in this country to private medical clinics or “two-tiered medicine”. Whenever anyone suggests that people should be allowed to buy medical care using money out of their own pockets, we hear cries of outrage that the rich might be able to get something better than the poor.
Typically, these people argue that medical care is different from other goods and services because it’s a “necessity,” so rich and poor should all be able to have the same quality and quantity without regard to ability to pay. Now, there are many, many flaws in that argument—too many to discuss here, given the scope of this essay. But if we accept, for the sake of argument, that “being a necessity” is a valid reason for a good or service to be provided universally and free of charge, then surely the same argument could be made with regards to food and shelter. And in this country, given the climate, the same argument could be made for shoes and clothing. And given the vast distances that exist in Canada between our homes and our workplaces, the same argument could be made for transportation (everyone should be provided with free automobiles, or at least bus passes) and communications (free telephone and internet services for all). Is there anything that can’t make a case for being a necessity these days?
Back in 1994, when the Ontario government announced plans for a new universal day-care program, the Toronto Star carried a front-page article quoting Kerry McCuaig, executive director of the Ontario Coalition for Better Child Care, as follows:
“You aren’t supposed to get to the front of the line for heart surgery because you have a lot of money. Well, right now in Ontario people with money are at the front of the line for day care. That will change. Now everyone will have the same access regardless of income.”[vii]
So it seems there are people who think that the right to equality means the right to be provided with the same level of material well-being as anyone else in the country. If these people ever get control of the Human Rights Commission, we can expect to see all sorts of bizarre challenges to the price of steak, the price of shoes, and so on. This will be nothing other than full-fledged socialism under the guise of human rights.
The good news in regard to this landlord issue (and I use the term very guardedly, because the “good” news is only slightly better than no news at all) is that Ontario recently amended its Human Rights Code as part of a bill called The Tenant Protection Act[viii]. The Code now says that the provincial government can pass regulations about what tests landlords can use to screen their tenants financially, and if they use the tests approved by the government, they won’t be held to be in violation of the Code. This is only a slight improvement from the landlords’ point of view. It means that instead of prospective tenants having control of the landlord’s property by virtue of the ever-present threat of a complaint to the Human Rights Commission, the provincial government will now have control over their property. And while the current Ontario government may appear to be sympathetic towards landlords, governments do change every time there’s an election, and regulations can of course be changed simply by the provincial cabinet, without any further submission to the legislature. So this is small comfort indeed.
Property Rights Aren’t Worth Peanuts These Days
The third example concerns peanut allergies. As you may know, there are some individuals who have very severe reactions when they come into contact with peanuts or peanut butter. About 50 Canadians die each year from this. In some cases, it is alleged, the allergy can be so severe that even catching a whiff of peanut butter from an open jar can be fatal.
There have been demands from some parents of allergic children to ban peanuts and peanut butter from schools. In Oakville, Ontario, one parent has filed a complaint with the Ontario Human Rights Commission against the Halton Board of Education. The argument is that a child with a peanut allergy has a disability, and anyone who is in the business of providing services to the public cannot discriminate against the disabled, and must accommodate them unless doing so would cause undue hardship. Therefore, the school must keep peanut products off its premises.
Is this an interference with property rights? The complicating factor in this particular example is the fact that it is public property (that is, a government-owned elementary school) whose property is under discussion here. One could argue that the school grounds are partly owned by the allergic child and her parents, so they should have some say as to whether peanuts are allowed on “their” property. But then so should everybody else, including parents who want to send their kids to “their” school with peanut butter sandwiches. But this is just a red herring: an extra little problem that arises whenever we talk about government-owned institutions. It’s actually a good argument against public institutions—but that’s beyond the scope of this essay.
The real conflicts with property rights will start when people try to carry this type of complaint over to privately owned institutions. Already, there have been people objecting to the serving of peanuts on airplanes. One can imagine many different businesses serving the public that might have occasion to have peanuts on their premises—restaurants, bars, amusement parks, grocery stores and so on.
There was a case reported in Paris, Ontario where a church-owned day care centre refused to allow an allergic 3-year-old boy to continue attending unless his parents signed a waiver of liability. Apparently, the day care’s insurer had told them it could nullify their insurance coverage if they attempted to provide emergency injections of adrenalin for the child. It seems likely that this case will end up before the Human Rights Commission, who will attempt to supercede the day care’s property rights both by telling it that a particular child must be allowed into its program and that it must prevent a particular substance from appearing on its property.
There is one interesting footnote to this peanut butter example. In Etobicoke, one of the former boroughs of Metropolitan Toronto, St. Stephen Catholic Elementary School had given in to demands for a peanut ban at the school, but they found themselves still facing a complaint under the Human Rights Code. One woman, a divorced mother of four who was receiving social assistance, objected that the peanut ban discriminated against her because she was poor. She said that peanut butter was a cheap source of nutrition for her children and it was contrary to their human rights to be prevented from taking it to school. So here we have an example of a human rights claim conflicting not only with property rights, but also with another human rights claim. It would almost be amusing if it were not such a danger to our liberty and our prosperity.
Property Right Going to the Dogs
My fourth and final example comes from Kitchener, Ontario. In 1989, Sara Donner purchased a residential condominium unit there. The condo corporation’s declaration and by-laws stated that no pets were to be kept in the building. When Ms. Donner signed her purchase documents, she agreed to abide by those rules.
For more than seven years, Ms. Donner lived elsewhere and rented her unit out to tenants. In 1996, however, she informed the condominium corporation that she intended to move into her unit with her 85-year-old mother and her mother’s small dog. Ms. Donner asked the corporation to amend the “no pet” clause. Her mother was totally deaf, and the dog had been trained to alert her to ringing telephones, intercoms, smoke detectors and so on.
The corporation refused the amendment. Ms. Donner moved the dog in anyhow, and the corporation, supported by 117 of the 172 unit holders in the building, sought a court declaration that she was in breach of the condominium’s declaration and rules. The court held that enforcement of the building’s rules would constitute discrimination against Ms. Donner’s mother on the ground of her disability. It would not assist in enforcing the terms that Ms. Donner had knowingly agreed to. It said:
"[t]he Ontario Human Rights Code has been enacted by the legislature of the Province of Ontario for the benefit of the community at large and of its individual members". The parties are not entitled to contract out of its provisions. To allow the parties to do so would be contrary to public policy.” [ix]
The court clearly understood that its decision would constitute a violation of the property rights of the other unit holders in the building. It attempted to minimize this violation by adding that its ruling was not to be construed as carte blanche for the dog to wander at will through the common areas of the building. It directed that the existing practice of taking the dog downstairs in a tote bag for its daily walk should continue.
The court did not repeal the “no pets” clause; it merely refused to enforce the clause against an individual with a handicap. Presumably, an able-bodied occupant who tried to keep a dog in contravention of the rules would have met with a different fate. But where will the courts draw the line as to who gets to violate others’ property rights and who doesn’t? Would an autistic child who showed some interest in a pet be considered a worthy case for protection by the Human Rights Code? What about an individual who was chronically depressed and claimed that his pet was one of the few things that gave him pleasure in life?
This decision raises other interesting questions. While the other unit holders in the building might not be permitted to compel Ms. Donner’s mother to get rid of the dog or move out, would they be entitled to damages against Ms. Donner for breach of contract? After all, she is not the person with a disability entitled to the protection of the Human Rights Code, and she did knowingly breach the contract she had previously voluntarily agreed to. Would section 3 of the Ontario Human Rights Code give the other unit holders any relief? It provides:
“Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.” [Emphasis added.]
I have always wondered just what this section might mean, given that the other sections of the Code are all designed to override, rather than protect, freedom of contract. Would the non-handicapped unit holders be able to argue that they are entitled to as much protection as a handicapped person in the enforcement of their contracts, because if they didn’t get such protection, they would be suffering from discrimination on the basis of handicap?
What would happen if there were other occupants of the building who suffered from different handicaps? Suppose an individual in a nearby unit had an extreme allergy to dogs and found that the building’s ventilation system was sending dog allergens into her living quarters. Or suppose another resident had a phobia of dogs, so severe that even the sight of a small dog in a tote bag would trigger a panic attack. Whose disability would trump whose?
At the moment, all we know about these questions is that they will keep many, many lawyers busy in the years to come.
The Lopsidedness of Human Rights Legislation
In researching some of these human rights cases, I was struck by what might be called the “lopsidedness” of human rights law. There’s a certain lack of symmetry about it that has disturbing implications.
The provincial human rights laws generally divide the population into two classes, who are given completely different treatment. The first group can be broadly described as consumers. They can't be discriminated against on the grounds of race, sex, handicap, etc., by anyone providing services, goods, facilities or accommodation. If they think they have been discriminated against, they can complain to the Human Rights Commission.
The second group can be broadly described as business people. They are the ones who provide the services, goods, facilities and accommodations, in exchange for money. The first group can freely discriminate against the second on every imaginable ground, because there is nothing in the Code that forbids discrimination in the provision of money.
So if a person in a wheelchair chooses to eat at an English-style pub rather than at the French, Jewish or Chinese restaurants (all with ramps at their entrances) in the same block, the snubbed restaurateurs can't go complaining to the Human Rights Commission about her cruel ethnic discrimination. Nor can any of the ethnic restaurateurs claim "systemic discrimination" if his restaurant fails while those of his neighbours succeed. The Human Rights Commission won't force the locals in the neighbourhood to eat their "fair share" of Chinese food. Business people simply have to live with the fact that in a market economy, consumers are free to deal with whomever they choose.
Here's another example. Clients occasionally tell me they picked my name out of the yellow pages because they wanted a female lawyer. Presumably, there are other people who choose not to hire me for precisely the same reason—namely, because I’m female and they’d prefer a male lawyer. In Ontario, the Law Society Benchers (the body that governs the conduct of lawyers) endorsed this discriminatory practice back in 1994 by allowing the Lawyer Referral Service which they operate to fill gender-specific requests. A Law Society Committee was even asked to consider permitting clients to request a referral by race or ethnicity. But the Rules of Professional Conduct make it clear that lawyers cannot screen out clients on the basis of sex, race or ethnicity.
Why should there be any such dichotomy? Every commercial transaction consists of two parties making an exchange: goods, services, facilities or accommodation flow in one direction, and money flows in the other. Both parties to the transaction must feel that what they are getting is more valuable to them than what they are giving up; otherwise, they wouldn't agree to the deal. So why should one group be free to select the identity of the person they wish to profit from, while the other isn't?
Don't misunderstand--I am certainly not advocating that the Human Rights Code should apply in both directions. On the contrary, I am suggesting that it should be scrapped, so that freedom of contract and private property rights can prevail for all.
The only way to make sense of the dichotomy is to realize that the Code is not about protecting minorities against racism, sexism or other -isms at all. No, what it's really about is subjugating those classes of people who are presumed to be powerful to those who are presumed to be powerless. Business people and landlords of all races, sexes and abilities are the targets; consumers and tenants are the beneficiaries.
Of course, the presumptions about power are not particularly accurate. There are many consumers and tenants who are wealthier and more influential than business people and landlords. But little facts like this never bother those who want to dismantle the free-market system.
The chiropractor decision contains the unspoken declaration that the doctor has some sort of obligation to provide services to the disabled woman, even though she is under no corresponding obligation to purchase his services. Interestingly, he has no general obligation to provide chiropractic services to the world. He can retire from practice and take his services off the market entirely if he chooses. But if he has no obligation to provide his services to anyone at all, then how can he have an obligation to provide services to the disabled woman in particular?
What the Human Rights Code actually does is to impose a form of involuntary servitude on certain members of society--the goods and service providers. It transforms others--consumers who belong to one of the privileged minority groups--into overlords. The latter have the right to force the former to perform services for them against their will. There was a time when this was called "slavery," but there aren’t many people willing to call a slave a slave these days.
Why Rights Don’t Conflict
I started this essay by explaining that in my own theory of rights, any conflict between “human rights” and property rights was impossible. At this point, I want to explain why.
“Rights” are a moral concept developed by human beings in order to allow them to live in society rather than as isolated individuals. The concept of rights would not be necessary for Robinson Crusoe living alone on a desert island. It is not a concept that defines man’s interaction with inanimate objects or even with living creatures incapable of reason. If Crusoe found himself standing in the path of falling rocks or a charging wildcat, proclaiming his right to life won’t help him. In fact, if it detains him for even a split second, it will probably hurt him. But the moment man Friday comes along, and there are two human beings who have to co-exist, the concept of rights becomes important. It is the moral interface between each individual and the society he forms part of, however large or small that may be.
The concept of “rights” allows human beings to live up to their potential, to flourish, to live the best life possible to them, given the kind of creature they are. Human beings are unique among living things because they possess the faculty of reason. It is reason that makes it possible for men to live a better life than brute beasts--by cultivating food, building houses, manufacturing clothing, by trading the products of their labour and so on. But to act on the basis of reason, one must be able to exercise one’s independent judgment; and to exercise one’s independent judgment, one must be free from coercion by others. It is the concept of rights that allows human beings to live in proximity with one another, and to reap the enormous benefits that human co-operation can offer, yet still maintain sufficient barriers to protect individuals from coercion by others so that they can exercise their reason.
If this is the correct understanding of why we have rights, it follows that all individuals must be entitled to the same rights. We are all in the same boat. We all need rights to live in society. We all survive by exercising our faculty of reason. We all need to be free of coercion to exercise our independent judgment. There is no conceivable reason why one person’s rights should be any different than another’s.
Every time a human being claims something as a right, his statement contains the implicit assertion that everyone else in the world has a corresponding obligation. My right to life means that everyone else is obliged not to kill me. My right to liberty means everyone else is obliged not to coerce me. It is this inextricable combination of rights and obligations that means we have to be very, very careful about what we define as a right; because if we define a right too broadly, the corresponding obligation on others might well entail an abrogation of their rights.
Thus, if we define the right to life as merely the right not to be killed, we are on safe ground. My right not to be killed does not interfere with your equal right not to be killed. We can both be “not killed” without denying or violating the other person’s right to be the same.
But if I tried to define the right to life to include a right to physical sustenance, in the form of food, for example, then that would imply a corresponding obligation on everyone else in the world to provide me with food. Now, some of the other people in this world are virtually one meal away from starvation themselves. If such a person happened to be the unlucky one who got called upon to fulfill the obligation to me, my right to life would literally mean that he had to forfeit his. Admittedly, there are some people in the world who have surplus food and could give me some without immediately dying. However, even in these cases, my so-called right would still entail some forfeiture by them. If a person has used a portion of his lifetime to work and produce material goods, or to work and trade for material goods, then the property he has acquired can be fairly called the embodiment of his life and liberty. Take it away from him, and you might as well have taken away the hours he devoted to acquiring that property. You might as well have said to him, for those hours, that he was not free, but he was a slave, and was working not for his own benefit, but for someone else’s.
This is the origin of property rights. They are a necessary derivative of the rights to life and liberty. To the extent that they are not respected, to the same extent do we fail to respect the acknowledged “human rights” of life and liberty. Anyone who maintains that there is a conflict between these two types of rights, or suggests that “human rights” should take precedence over “property rights”, demonstrates that he or she does not genuinely believe in human rights.
In fact, the phrase “human rights” is redundant, because it is only humans who can have rights—at least, until such time as we make contact with another intelligent species somewhere in the universe that is able to recognize the reciprocal obligations that rights impose.
Similarly, the phrase “property rights” is deceptive, because it seems to imply that the rights in question belong in some way to the property--to a plot of land, or a tree, or an automobile--rather than to the human being who owns the property. This, of course, is nonsense. When we refer to property rights, we mean the rights of the human beings over property. The right not to be trespassed upon doesn’t belong to the land; it belongs to the landowner. The right not to be stolen doesn’t belong to your TV set; it belongs to you, the owner of the TV set.
It is unfortunate that the concept of property rights has become, in the minds of some, at best a poor second cousin to human rights—of lesser importance, something that can be dispensed with if inconvenient. It is important that we work to restore the idea that property rights are an integral part of human rights, and that an abrogation of the former is also an abrogation of the latter.
[i] Portions of this paper have been previously published in Canadian Lawyer magazine.
[ii] Quesnel v. Eidt, Ontario Human Rights Commission, Boards of Inquiry File # 92-0035, Decision #95-012
[iii] Kearney et al. V. Bramalea Limited and Shelter Corporation, Ontario Human Rights Commission, Boards of Inquiry Files 92-0213, 92-0214, 92-0216.
[iv] This information obtained from The Fair Rental Policy Organization of Ontario, 869 Yonge Street, Suite 105, Toronto, Ontario M4W 2H2 in telephone conversation and letter of January 6, 1998 addressed to the author.
[v] Statement of Alok Mukherjee, acting chief commissioner of the Ontario Human Rights Commission, reported in Canadian Press database article “Landlords”, February 22, 1993
[vi] See, for example, the Introduction to the 1997 Annual Report of the Canadian Human Rights Commission.
[vii] The Toronto Star, Ontario Edition, February 18, 1994, page A1, “Ontario to introduce universal day care.”
[viii] Tenant Protection Act, S.O. 1997, Chapter 24 (originally Bill 96, 1st session, 36th Legislature).
[ix] Re Waterloo North Condominium Corporation No. 198 and Donner, 36 O.R. (3d) 243
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