The Ontario Human Rights Tribunal (the "Tribunal") recently dismissed a discrimination claim filed by Peter Zanette against the Ottawa Chamber Music Society operating as Ottawa Chamberfest ("Chamberfest"). In Zanette v Ottawa Chamber Music Society, decided on July 15, 2024, the Applicant, Zanette, a long-time volunteer, alleged discrimination with respect to employment because of sexual orientation, gender identity, and gender expression after he was asked to remove a rainbow sticker from his volunteer name badge. In that regard, Zanette alleged that the Chamberfest's refusal to allow him to affix the rainbow sticker to his name badge was discriminatory. The Tribunal found no evidence of discrimination, and concluded that Chamberfest's actions were consistent with its uniform policy.
The incident occurred in 2019, while Zanette was volunteering as an usher at a Chamberfest performance. He had affixed a rainbow sticker, a symbol of the 2SLGBTQ2 community, to his name badge that was issued by Chamberfest for its volunteers. Loretta Cassidy, the Volunteer Manager at the time, requested that he remove the sticker. Following an email exchange with Peter MacDonald, the General Manager, Zanette complied with the request.
Zanette subsequently filed an application with the Tribunal, alleging that Chamberfest's refusal to allow him to display the sticker constituted discrimination under the Ontario Human Rights Code (the "Code"). Chamberfest denied the allegations, asserting that the request was made in accordance with its dress code policy for volunteers.
The Tribunal acknowledged Zanette's membership in a protected group under the Code (includes individuals with specific characteristics—such as race, gender, disability, or age—who are legally safeguarded against discrimination in areas like employment, housing, and services) and that being asked to remove the sticker constituted adverse treatment. However, the Tribunal noted that the core issue was whether his protected characteristic was a factor in the adverse treatment.
The Tribunal emphasized that not all differential treatment is discriminatory under the Human Rights Code. Discrimination, in the legal sense, requires proof that the adverse treatment was connected to a protected ground under the Code:
I have first considered whether the applicant's allegations amount to direct discrimination under s. 8 of the Code. It does not. The respondent's request that the applicant remove the rainbow sticker from the name tag that was issued to him was based on their uniform policy. This policy was applicable to all volunteers and there was no evidence to suggest that it was arbitrarily applied to the applicant because of his sexual orientation, gender identity or gender expression or because it was a form of advocacy for the 2SLGBTQ2 community.
In considering whether the allegations constituted direct discrimination under section 8 of the Code, the Tribunal found there was no evidence to suggest that the request to remove the sticker was arbitrarily applied to Zanette due to his sexual orientation, gender identity, or gender expression. Instead the Tribunal found that Chamberfest's policy was applied to all volunteers and employees.
The Tribunal also rejected the argument that the allegations constituted indirect discrimination under section 11 of the Code, noting that indirect discrimination occurs where a requirement, policy standard, qualification, rule or factor that appears neutral excludes or disadvantages a group protected by the Code. Again, the Tribunal found that the Chamberfest's policy applied equally to all volunteers and did not permit any personal expressions to be displayed on their name badges, without regard to the content of such alterations.
The Tribunal distinguished the case from Hudler v London (City), where a mayor's refusal to proclaim "Pride Weekend" as requested by the Homophile Association of London ("HALO") was deemed discriminatory. During her term of office, the mayor had issued 252 proclamations and had only refused proclamation requests from HALO. In contrast, the Tribunal found there was no evidence to suggest that Chamberfest ever permitted any alteration to the name tags it issued, consistent with its desire to protect its brand, from any incursion.
The Tribunal also found that the Amir and Siddique v Webber Academy Foundation case did not apply. In that case, a school was found to have discriminated when it refused to accommodate students' request for a quiet, private space for the purpose of praying and those students were subsequently prohibited from enrolling at the school for the following year because they insisted on performing their mandatory religious duties. The Tribunal differentiated this case by noting that daily prayers are an essential element of an individual's religious beliefs and that those beliefs were protected from discrimination under the Code. In contrast there was no evidence that the wearing of a rainbow sticker was an essential element of being a member of the 2SLGBTQ2 community.
Similarly, the Tribunal cited Macdonnell v Waterloo (Regional Municipality), where a municipal employee's request to wear a kilt was denied. The Tribunal in that case found no discrimination, on the basis that wearing a kilt was not intrinsically connected to the applicant's Scottish ancestry and as such there was no evidence to establish prima facie discrimination based on ancestry. Similarly, the Tribunal in this case found no evidence that wearing a rainbow sticker was an essential element of Zanette's identity as a member of the 2SLGBTQ2 community and as such there is no evidence to establish prima facie discrimination based on sexual orientation, gender identity or gender expression.
In closing, the Tribunal concluded that Zanette failed to establish a prima facie case of discrimination under the Code as there was no evidence presented that suggested that Chamberfest's decision was motivated by bias against the 2SLGBTQ2 community nor was there any evidence that Zanette's sexual orientation, gender identity, or gender expression was relevant to the Chamberfest's request to remove the rainbow sticker from his name badge. The Tribunal dismissed the application, finding that Chamberfest's actions were consistent with its neutral uniform policy.
This case demonstrates that the protections from discrimination under the Human Rights Code are subject to reasonable limitations. In that regard, where an organization's policies are reasonable and reflect legitimate, operational needs of an organization, and where those policies are enforced equally and consistently with all employees and/or volunteers of the organization, this would not likely serve as the basis for a successful allegation of unlawful discrimination.
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