Novel Issues Raised by Transgender Human Rights Complaints A recent human rights complaint against several salons in Vancouver, British Columbia sheds new light on the relationship between human rights law and persons who identify as transgender. DISCRIMINATION AGAINST TRANSGENDER PERSONS Jessica Yaniv, a transgender woman from British Columbia, has launched human rights complaints against several salons in Vancouver who refused to wax her on the basis that she had male genitalia. While no ultimate decision has yet been released, the reasons of the British Columbia Human Rights Tribunal in Yaniv v. Various Waxing Salons, 2019 BCHRT 106 (CanLII) have raised some novel issues in human rights litigation. The Tribunal has been critical of Yaniv particularly because of the manner in which she is pursuing her complaint. She has launched dozens of separate complaints against different salons. The Tribunal noted that this “opens a valid question about her motives in filing so many complaints.” On the other hand, the Tribunal has not taken issue with the substance of the complaints. Instead, it has noted the issues raised by Yaniv are complex and require in-depth consideration. While waxing was characterized by the Tribunal as crucial “gender-affirming care for transgender women”, it was nonetheless considered to be “a very intimate service that is sometimes performed by women who are themselves vulnerable. JY’s complaints raise a novel issue around the rights and obligations of transgender women and service providers in these circumstances”. WITHDRAWAL OF HUMAN RIGHTS COMPLAINTS The Tribunal also took issue with the fact that Yaniv withdrew many of the complaints she launched against various salons. In particular, Yaniv repeatedly withdrew her complaints once opposing counsel was retained. While the Tribunal mentioned that withdrawing complaints is an acceptable practice, it also stated that it is not proper to do so where such a withdrawal would significantly prejudice other parties or the Tribunal “in a manner constituting improper conduct warranting the sanction of costs.” The Tribunal continued by noting, “I am now of the view, based on these new facts, that JY’s [Jessica Yaniv’s] pattern of filing such a high volume of complaints and then withdrawing in the face of opposition undermines the integrity of the Tribunal.” The Tribunal concluded by reminding the parties it would “deliver its service in a way that is respectful and does not expose her [Yaniv] to further discrimination. However, she must also understand that respondents are entitled to defend themselves and expect that they will.” WHAT DOES THIS HUMAN RIGHTS COMPLAINT TELL US? Transgender discrimination complaints at Human Rights Tribunals will continue to be seriously considered. However, because transgender discrimination actions have the potential to raise many novel legal issues, it is difficult to predict how Tribunals will respond to the competing interests at stake in similar human rights cases. As a result, if you are planning on launching a transgender discrimination complaint, or are required to defend against one, retaining legal advice to guide you through the process is crucial. This litigation also tells us that Tribunals and adjudicative bodies in general do not take legal actions lightly. If complaints or actions are launched repetitively and excessively, courts and certain tribunals have the power to enact punitive measures to deter such conduct, including but not limited to cost awards. If you would like legal advice on this subject, or would like more information generally on human rights or employment law, please contact experienced human rights & employment lawyer Marty Rabinovitch at marty.rabinovitch@devrylaw.ca or at 416-446-5826 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawSeptember 12, 2019September 30, 2020
Could a Gift Card Compensate for a Minor Human Rights Tribunal Complaint? A recent British Columbia Human Rights Tribunal decision has struck down a human rights complaint by a supermarket customer on the grounds that she was already compensated by the store for her complaint. But what compensation was considered enough? In Duke v Sobeys, 2018 BCHRT 283, the complainant went grocery shopping at a Sobey’s in British Columbia. While shopping, the complainant stated she was approached by an employee who told her inappropriate sex jokes. The employee admitted to his behaviour. Ms. Duke then requested a $250 gift card and an apology, both of which Sobeys provided. After the fact, Ms. Duke filed a complaint with the British Columbia Human Rights Tribunal. The Human Rights Tribunal concluded that the gift card and the apology were sufficient compensation in the circumstances. The Tribunal found that Sobey’s promptly responded to the complaint, immediately investigated it and addressed it appropriately. Because Sobey’s dealt with the complaint as efficiently as possible to ensure that if any discrimination existed, it would be resolved appropriately, the court felt no other remedial measures were necessary. The Tribunal also stated, “it does not further the purposes of the Code to encourage a complainant to increase what is sought, after they receive what they initially ask for”. Since the customer asked for compensation, and Sobey’s promptly provided it to her, no further remedies were required. The complaint was ultimately dismissed under section 27(1)(d)(ii) of the British Columbia Human Rights Code as it did not further the purposes of the Code. What does this decision tell us? As an employer, it is very important to respond quickly to complaints to avoid negative legal consequences. In this case, Sobey’s was quick to investigate the complaint and dealt with it in a reasonable manner that clearly ameliorated their customer’s concerns, at least at the time. This was sufficient to allow Sobey’s to avoid an unfavourable decision of the British Columbia Human Rights Tribunal. If you would like more information on human rights and employment law, contact Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawAugust 20, 2019September 10, 2024
