Conflicting Human Rights and Abuse of Process

Sometimes, one individual’s protected ground might conflict with another individual’s protected ground under Human Rights laws, as we saw in Ontario many years ago, when a woman was denied a haircut by a barber whose religion forbids contact with strange women. While that case was settled privately, it caused us to wonder how competing rights might be accommodated.

Last year, the British Columbia case of Yaniv v Various Waxing Salons explored conflicting human rights, but ultimately dismissed the case due to an abuse of process.

The complainant, a transgender woman, filed a human rights complaint stating that multiple beauty salons denied her a waxing service on the basis of her gender identity and gender expression. In examining her facts, the British Columbia Human Rights Tribunal (“BCHRT”) dismissed her complaint, holding that scrotum waxing was not a service customarily provided by the salons, and that the arm and leg waxing complaints were filed with improper motives.

The respondents—separate salons made up of racialized and immigrant women—were perceived to be hostile to the rights of LGBTQ+ people by the complainant. The BCHRT dismissed the complaint, relying on evidence demonstrating the complainant’s deception and intention to target vulnerable persons for financial gain and punishment.

What about Ontario?

In Ontario, gender identity and gender expression are also protected grounds under Ontario’s Human Rights Code in areas such as employment, services, and housing.

The Human Rights Tribunal of Ontario likewise prohibits and dismisses vexatious proceedings considered to be an abuse of process. However, dismissing a case on this basis is considered an extraordinary remedy, and a pattern of vexatious conduct is likely required.

Although the British Columbia case is not binding on Ontario, it provides insight on how human rights might compete, and how no right is absolute. Generally, while services should be made available to everyone to avoid discrimination, each matter is reviewed on a case-by-case basis to see whether both sides can be accommodated.

Employment Considerations

Employers who work in the service industry should train their employees on their human rights obligations. Should an employee require special accommodation, for example, their religion prohibits them from performing certain duties, the employer should consider alternatives, such as providing those duties to another employee who is able to provide the service.

If no employee can provide the service to specific group members, but the service is still available to others, the employer should consider hiring an individual who can serve the group members without exclusion.

Contact Us for Help

If you are an employee who wants to assert or know about your human rights, or an employer looking to comply with the law or respond to a human rights application, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at  1-(800) 771-7882, or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].