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 30, 2020
Denied a Job Due to Lack of Canadian Work Eligibility? You May Have Been Discriminated Against If you have recently been denied a job due to a lack of proof of permanent eligibility to work in Canada, you may be entitled to compensation under Ontario human rights law. In a decision last year from the Ontario Human Rights Tribunal, Haseeb v Imperial Oil Limited 2018 HRTO 957, an employer (Imperial Oil) refused to hire the applicant to whom they offered a job (Mr. Haseeb) after the job applicant failed to provide requested documentation regarding his legal authorization to work permanently in Canada. Mr. Haseeb, an international student, was a recent graduate of McGill University’s engineering program, and only possessed a postgraduate work permit for up to three years. The applicant anticipated he would attain permanent residency status within three years. Imperial Oil required graduate engineers to have permanent residency or citizenship to be eligible to apply for a permanent full-time job at their company. To circumvent this requirement, Mr. Haseeb repeatedly answered positively when asked about his eligibility to work in Canada on a permanent basis. These responses were false, as he only had a temporary work permit. Although Mr. Haseeb was offered a job at Imperial Oil, the company later rescinded the offer about one month following the deadline for acceptance. The Tribunal found that Imperial Oil did not rescind the offer due to Mr. Haseeb’s dishonesty, but rather because Mr. Haseeb did not provide required permanent work eligibility documentation when it was requested. The Human Rights Tribunal concluded that the employer’s hiring policy was directly discriminatory on its face towards international students. This meant that Imperial Oil was not permitted to rely upon the defence that permanent work eligibility was a bona fide occupational requirement. Moreover, the Tribunal determined permanent work eligibility could not have been required (i.e., an occupational requirement) to do the job effectively, as Imperial Oil was found to have recruited individuals without permanent work eligibility where their skills were particularly sought-after. If you would like more information on discrimination in hiring practices, or would like legal advice on being denied a job for discriminatory reasons, please contact Marty Rabinovitch at 416.446.5826 or 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 LawJuly 23, 2019September 30, 2020
Trinity Western Decision The Supreme Court of Canada has rendered a decision that is an important victory for the promotion of equality, diversity and access to justice in Canada. On June 15, 2018, the Court released the landmark decision, finding that law societies were entitled to deny accreditation to a proposed law school that had discriminatory admissions requirements. The case garnered national attention as it seemingly involved a clash between freedom of religion and the right to equality, values which are central to Canada’s democratic society. Trinity Western University (“TRU”), a Christian university in British Columbia, submitted a proposal to open a law school that was based in the foundational religious beliefs of evangelical Christianity. Admission to the proposed law school would require that all students and faculty adhere to a community code of conduct, which contained a covenant that effectively denied admission to LGBTQ students. The covenant required TRU students to voluntarily abstain from a number of activities and explicitly prohibited “sexual intimacy that violates the sacredness of marriage between a man and woman.” The British Columbia and Ontario law societies voted against accreditation of the school because of the discriminatory nature of the covenant. The school sought judicial review of this decision, claiming that refusal to approve the law school on this basis violated its right to religious freedom under Section 2(a) of the Canadian Charter of Rights and Freedoms. The majority of the Court found that the law societies’ decision to deny accreditation was reasonable and constituted a proportionate balance between the limitation of religious freedoms under the Charter and the statutory objectives of the decision to refuse approval. The Court found that the infringement of religious rights was minor compared to the discrimination members of the LGBTQ community would face under the covenant. The Court found that protection of public interest was a valid objective for law societies to consider when making decisions with respect to admission to the legal profession. The Court further accepted that by promoting equality, supporting diversity within the bar, and preventing harm to LGBTQ law students, the law societies were acting in furtherance of the public interest. In addition to upholding human rights, this decision has broader implications for the promotion of access to justice. A major policy issue experienced by Canadians is the inaccessibility of the legal system. This problem is particularly pronounced among members of historically marginalized groups, including the LGBTQ community. One explanation for the heightened barriers experienced by certain communities in accessing legal services is their lack of representation within the legal profession. Accordingly, there has been a call from policymakers and accessibility advocates to promote diversity within the bar to ensure that members of disadvantaged groups can assess legal representatives who can identify and respond to their unique needs. Paul Schabas, treasurer of the Law Society of Ontario, acknowledged this important implication of the decision, stating, “Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to diverse needs.” Ultimately, this decision of Canada’s highest court recognizes that Law Societies, as self-regulating bodies of the legal profession, have an overarching obligation to promote equality and uphold human rights when making decisions involving admission to the profession. As gatekeepers to the legal system, these decision makers must be prepared to take active steps to remove inequitable barriers and ensure all persons have an equal opportunity to pursue a legal education. For assistance with or legal advice on human rights laws in Toronto, please contact one of our human rights lawyers. “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, Human Rights LawJuly 5, 2018June 16, 2020
Police Brutality Leads to Thrown Out Charges By: Katelyn Bell, Summer Law Student The Canadian Charter of Rights and Freedoms (“Charter”) guarantees certain protections to Canadian citizens, such as the right to life, liberty and security of the person; the right to be free from unreasonable search and seizure; and the right not to be subjected to any cruel or unusual treatment or punishment. The Charter regulates interactions between the state (federal, provincial and territorial governments) and individuals; it does not govern interactions between individuals. If the Charter rights of an accused person were violated during the investigation against them, the court will exclude the evidence obtained in the investigation. This results in a dismissal of the charges. As such, many accused persons will seek to advance a Charter violation argument, which is not often successful. However, in the case of Mr. Jung, the argument was successful. Mr. Jung was stopped at a RIDE spot check in late February 2016. Mr. Jung was over the legal limit and therefore failed the roadside breath test. Mr. Jung was arrested by police at the spot check. Mr. Jung and his girlfriend – a passenger in the vehicle – were than transported to the police station for additional, more conclusive, breath tests. Mr. Jung alleged that during his time with the arresting officers, his Charter rights were violated. According to Mr. Jung, Constable Gill physically assaulted him while he was handcuffed. Mr. Jung stated that the police repeatedly bashed his head with a phone receiver, while the police officer claimed that he accidently hit Jung with the phone receiver. Mr. Jung was also deprived of using the washroom for a prolonged period of time. As documented by in-car video evidence, the two police officers who arrested Jung at the RIDE spot check told Jung to urinate in the back seat of the police cruiser. Mr. Jung’s case was heard at the Ontario Court of Justice on April 5 and 6, 2017. Justice J. W. Bovard released his decision on the matter on July 19, 2017. Justice Bovard found that the police did in fact violate Mr. Jung’s Charter rights, and as such, the breath tests could not be admitted as evidence (at paragraph 126): “I find that in light of this very serious breach of Mr. Jung’s right to security of the person, and considering the behaviour of the police regarding the breach, to admit the breath tests into evidence would bring the administration of justice into disrepute.” Besides the breath tests, there was no other evidence against Mr. Jung on the charge of impaired driving. Thus, the court was unable to find Mr. Jung guilty of impaired driving and the charge was therefore dismissed. Toronto police have said that the court’s decision is being reviewed by the internal Professional Standards Unit. Devry Smith Frank LLP (DSF) is a full service law firm located in Don Mills. If you require representation or have any questions, please contact DSF today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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, Human Rights LawJuly 31, 2017June 22, 2020
The Legality of Refusing to Bake a Wedding Cake Because of Sexual Orientation By: Michelle Cook, Summer Law Student In Canada, it is illegal to discriminate against people on the basis of sexual orientation, especially in the case of commercial business services available to the public. However, a legal case challenging the ability to discriminate against individuals for their sexual orientation because of religious reasons is headed to the U.S. Supreme Court. With Donald Trump’s Supreme Court appointment of Neil Gorsuch, who is clearly pro-religion, anti-LGBT rights, swinging the majority of the Supreme Court to conservative-leaning judges, it appears the U.S. may return to an era where LGBT individuals can be openly discriminated against in the name of “religious freedom.” The Colorado case involves a Christian baker who refused to make a wedding cake for two men. Colorado is one of a few states that have anti-discrimination laws protecting LGBT individuals. The bakery, Masterpiece Cakeshop in Lakewood, was charged with violating the state’s discrimination laws. The state’s civil rights commission ordered the baker to provide wedding cakes on an equal basis for same-sex couples. Instead of complying with the commission’s order, the owner, Jack Phillips, refused to comply with it. Instead, he brought an appeal of the decision based on the 1st Amendment’s guarantee of the freedom of speech and the free exercise of religion. Phillips will also argue that as a baker, he should have artistic freedom that is not regulated by the state. The Colorado Supreme Court refused to hear the case, prompting Phillips to appeal the decision to the U.S. Supreme Court. Masterpiece Cakeshop has received a mixture of backlash and support for his decision. Interestingly, Phillips has noted that he has never strayed from his biblical teachings, even refusing to make cakes to celebrate Halloween, “anti-American or anti-family” themed cakes or ones that have a profane message. This is occurring in the U.S. while Toronto gains recognition as one of the top three most LGBT-friendly cities in the world. That is not to say that discrimination against LGBT individuals does not occur in Canada. In fact, this year a Montreal photographer named Premiere Productions refused to photograph a gay couple’s wedding. While no lawsuit was brought against them, it is clear that this conduct was illegal. This shows that while support for LGBT rights is increasing in both Canada and the U.S., there is still a fight to be made for true equality. What will be interesting to see is how the new conservative U.S. Supreme will delineate the ability to be able to discriminate against individuals based on religious values. Despite the rhetoric of American politicians, homosexuality is not a choice; someone is genetically born with a sexual orientation. Why is it still acceptable to openly discriminate against someone for who they love (an inherently personal matter) but unacceptable to openly discriminate against someone for their skin tone? At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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, Human Rights LawJuly 4, 2017June 22, 2020
Requiring Customers to Come to Stores Has Been Deemed Discriminatory By: Michelle Cook, Summer Law Student Could companies that require their customers to come into their physical stores be guilty of discrimination? A human rights adjudicator seems to think so. In Mills v Bell Mobility Inc, Canadian Human Rights Tribunal member Edward Lustig awarded $10,000 plus interest in compensation for Ms. Mills’ pain and suffering as a result of being required to attend at a Bell store. The Tribunal found that a phone activation policy that required customers to physically present themselves in the company’s stores, thereby endangering the health of some disabled persons, amounted to discrimination based on disability, in contravention of the Canadian Human Rights Act. Bell, one of the many companies that has such a policy, could not justify why disabled persons could not be accommodated through other methods of communication, such as Skype or Facetime. Ms. Mills was disabled as a result of cancer in late 2013 and a stroke that nearly killed her in 2014. Ms. Mills was bedridden, extremely weak and partially paralyzed. Her physician has instructed her to stay home, unless an emergency required her to leave. Her son had made attempts to activate her phone on her behalf, including an offer to come to the store with all Ms. Mills’ identification documents, including a valid Power of Attorney. However, Bell stood by their in-person policy and took the position that that its activation standards policy was necessary in order to combat identity fraud. Ms. Mills eventually relented and attended at a store to have her phone activated. She then commenced a human rights complaint. Interestingly, while she was ultimately successful in getting an award for pain and suffering, the CHRT member refused to find that Bell had committed reckless or wilful discrimination, citing its reputation as a company that “usually cares about its customers, including disabled Canadians,” especially its efforts to combat mental health stigma. For more commentary see: Law Times News Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. 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, Human Rights LawJune 26, 2017June 22, 2020
Bill C-16: Proud to Extend Protections to Transgender and Other Gender-Diverse Persons June is Pride Month, when we celebrate sexual diversity and gender variance in the context of gains made by the Lesbian Gay Bisexual and Transgender (LGBT) communities. It is thus fitting that the Canadian Senate last week passed Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to protect gender identity and gender expression. Gender identity is broadly defined as one’s personal experience of their own sex, their internal sense of being male, female, a combination thereof or neither. Gender expression is the public expression of that identity, through markers such as clothing, speech and body language. Now that better acceptance and legal protection has been secured, after years of advocacy, for the LGB communities, issues facing the T(ransgender) community have moved to the fore. Issues of gender identity and expression have recently featured prominently in the news, particularly south of the border with the introduction of “bathroom bills” that restrict use of a washroom to one’s biological sex. These issues have highlighted the discrimination, isolation and violence faced on a daily basis by trans and gender diverse people. To address the vulnerability of the trans/gender diverse community, the Bill amends: sections 2 and 3 of the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination; and subsections 318(4) and 718.2(a)(i) of the Criminal Code to include gender identity and expression in the definition of an identifiably group and to extend the protection of hate propaganda to persons who are distinguished by gender identity and gender expression. Evidence that violence or hate was aimed specifically against transgender or other gender diverse persons on account of that identity or expression will now constitute an aggravating circumstance court can take into account when imposing a sentence for the crime. Bill C-16 began life in 2005 as a Private Members Bill. After languishing for such a long period of time, it was taken up by the current federal Liberal government as part of the government’s legislative agenda to facilitate its passage. Even still, approval by the Senate was not a sure thing in the face of criticism that the amendments infringed on freedom of expression and/or promoted a lifestyle not every Canadian supported. The argument that protecting minority groups infringes on free speech is often used when those rights are new to our social fabric. Once established, we wonder why there was ever an issue. Indeed, the protections afforded by Bill C-16, in the view of this author, serve to promote freedom of (gender and sexual) expression. In moving to better protect gender diversity and expression Canada again proves its global leadership in the promotion of human rights and dignity. It will make celebration of sexuality and diversity this year particularly sweet. Happy Pride! Marc Kemerer practices fertility and reproductive law at Devry Smith Frank LLP By Fauzan SiddiquiBlog, Human Rights LawJune 20, 2017June 22, 2020
