Hockey mad Canadians are used to hearing Don
"Grapes" Cherry, CBC's soon to be
octogenarian hockey analyst, stir the pot with his often
provocative comments. Recently, Cherry caused a media stir with his
throwback to the 1970s observations that female reporters should
not be allowed in the locker rooms of professional men's
sports teams, because "they need to be respected"
(the females that is). Not surprisingly Cherry's remarks
resulted in significant blowback, since most of us had thought that
the access issue is one that women's equality rights
groups had long ago put to rest.
Ironically, Cherry's remarks came on the heels of a
recent decision of the Ontario Human Rights Tribunal with a twist
on the normal sex bias complaint: Maclean v The Barking
Frog 2013 HRTO 630.
Kyle Maclean (no relation to Ron!), a resident of London,
Ontario has also been focussed on equality rights as they pertain
to the sexes, but in this instance it was his right to be treated
equally to the females accompanying him to The Barking Frog bar. It
seems that Maclean was greatly offended by the doorman at the bar
who informed him that the cover charge for the males in his group
was $20, while the females could enter for a $10 cover. In fact it
was such an affront to Maclean's gender, in his view,
that he filed a complaint of sex discrimination under the
Ontario Human Rights Code.
When the case came on for summary hearing, Maclean argued that
in charging men more than women, the bar was perpetuating a belief
in society that men are "less worthy" than women.
He also argued that charging a higher cover charge for men
discourages them from entering the bar and that therefore men are
excluded and/or made to feel unwelcome.
In his decision last month, Tribunal Chair Mark Hart rejected
both arguments. In doing so, he distinguished "substantive
equality" from "formal equality". He
Formal equality essentially involves ensuring equal
treatment for those in similar situations and different treatment
for those in dissimilar situations – it is a concept that
involves 'treating likes alike'. On the other hand,
substantive equality recognizes that not all differences and
treatment are violations of equality rights. The Ontario Court of
Appeal has held that, to establish discrimination under the Code, a
claimant must demonstrate a distinction on a prohibited ground that
creates a disadvantage by perpetuating prejudice or stereotyping:
see Ontario (Disability Support Program) v Tranchemontagne, 2010
ONCA 593 at paras. 77 to 91.
Hart went on to find that the notion that charging a lower cover
charge for women is demeaning to men as a gender does not bear
scrutiny. Further, the argument that men are excluded or made to
feel unwelcome because a bar charges less for a woman to enter is
in fact contrary to reality. He said:
...one of the primary functions of a 'ladies
night' is to try to increase the attendance of men
because of the presence of more women. I fail to see how this
strategy can be seen as substantive discrimination in the overall
societal context, in light of the privileged position that men hold
in our society.
This, Hart noted, was apparently a successful business strategy.
In conclusion, Hart found that the practice did not amount to
substantive discrimination against men and dismissed the
application as having no reasonable prospect of success.
This decision clearly demonstrates that not all distinctions
based on a prohibited ground engage the right to equal treatment in
a substantive sense. Given the trivial nature of the complaint it
also highlights, in this writer's view, that the
Tribunal's jurisdictional inability to make an award of
costs against a losing party is something that the legislature
ought to rectify.
As a former bar owner himself (at least on television), I
suspect that Don Cherry would agree.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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