Law Times

Page 10 SePtember 8, 2014 • Law Times www.lawtimesnews.com FOCUS Transgender ruling includes surprising twist By marg. Bruineman For Law Times recent human rights decision has gained some attention, not only for awarding three transgender people damages but also because the tri- bunal found the discrimination had harmed a business owner even though she didn't identify with that category. e issue arose in adjudicator Dawn Kershaw's May 30 decision Salsman v. London Sales Arena Corp. "It's a very interesting ele- ment in Salsman that the highest damages were awarded to a per- son who was not transgendered," says Deborah Howden, who prac- tises employment and human rights law at Shibley Righton LLP. Salsman involved three trans- gender women who were at the booth of a fourth person, Karen Clarke-McIlwain, at the Trails End market in London, Ont., owned by London Sales Arena Corp. Clarke-McIlwain rented a booth at the Trails End market where she sold candles. Dani- ella Freeman was working at the booth on Sept. 10, 2011 and had brought along her friends, Ju- dith Salsman and Falicity Char- trand, all of whom identify as transgender. at night, the market man- ager called Clarke-McIlwain on behalf of the market's owner, Ed- ward Kikkert. e market man- agement claimed the call was to relay a complaint about the burning of incense at the booth and that those attending at the booth were dressed scantily and inappropriately for the "family market." But the complainants said the market operators were un- comfortable with the presence of the trio because they were transgender. e respondent, according to Clarke-McIlwain, told her she wasn't welcome at the market if she was going to have Salsman, Chartrand or Freeman operate the booth. She alleged the respondent gave her an ultimatum to either remove the workers or remove her booth from the market. at phone call, Clarke-Mc- Ilwain testified, le her shocked and she ultimately decided she couldn't maintain her booth at the market. She said it was a catastrophic event in her life and felt she was in a situation where if she continued operating a booth there, she was making a biased decision against a friend. e market owner, Kikkert, claimed the problem was they had lit incense and wore reveal- ing clothing. Kikkert commented on a later radio program that his was a "family market" and referred to Clarke-McIlwain's friends as "people like that." "I find based on all the evi- dence that Mr. Kikkert's issue with the applicants went well beyond the clothing they were wearing, and establishes that he had issues with the fact that three transgen- dered individuals were working in Ms. Clarke-McIlwain's booth on the day in question," wrote in the decision. Clarke-McIlwain's successful claim related to her association with the three people who iden- tified as transgender. Kershaw found she suffered injury resulting from the discrimination experi- enced by her friends. She had received the phone call with the ultimatum and had to re- lay the information to her friends, one of whom was her roommate. "With respect to Ms. Clarke- McIlwain's claim for damages to injury to dignity, feelings, and self- respect, the impact of this incident on her clearly was substantial. I ac- cept her evidence that the decision to cease operating a business that she had spent several years getting off the ground turned her whole world upside down. In her words, everything she had built in good faith and out of a passion for doing something right got taken from her. She testified she never asked to be an advocate for the cause but could not continue operating her business at the market because it felt wrong," wrote Kershaw in the decision. "is was a big step forward for the protection of trans per- sons' rights in Ontario," says Ni- cole Simes, an associate at the MacLeod Law Firm, of the inclu- sion of gender identity and the right to gender expression in the Ontario Human Rights Code two years ago. "However, there have been very few decisions from the Hu- man Rights Tribunal of Ontario interpreting and applying these new protections since then." As a result, she says any direc- tion from the tribunal is positive but she found the general dam- ages awarded in the decision to be on the low side. Kershaw awarded Salsman and Chartrand $5,000. She found that Freeman suffered the great- est emotional harm and awarded her $10,000. e booth owner, Clarke-McIlwain, received $20,000 in damages. at, says Simes, is lower than decisions made in the employment context where general damage awards currently range between $10,000 and $15,000 with the high- est award reaching $45,000. Simes refers to the impact the treatment had on one of the com- plainants, Freeman, who slowed her transition aer the incident and nearly stopped working due to depression arising from the dis- crimination. e reality of the tribunal, says Kumail Karimjee of Karim- jee Greene LLP, is that it doesn't typically hand out large damage awards. Another difference Karimjee sees in this case, as opposed to a civil pleading, is the tribunal made the awards in the absence of medi- cal evidence, something the tribu- nal remarked on. "It's interesting to me to look at this case, comparing the two fo- rums," he says, adding the tribunal may be more comfortable dealing with emotional and medical dis- tress without extensive medical evidence, something that's per- haps consistent with the need to be more accessible and accommo- date those who represent them- selves. LT LEONARD KUNKA | CRAIG BROWN | DARCY MERKUR YOUR ADVANTAGE, in and out of the courtroom. 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She reduced her work schedule to part-time hours despite her desire to work full-time. e Canadian Human Rights Tribunal determined that family status does include child-care responsibilities. It addition to finding the employer had discriminated against Johnstone, it found its policy affected her employment opportunities, including promotion and benefits, in the interim. "Tribunals and courts have recently been looking at balancing in- dividuals' responsibilities to their employer as well as to their family," says Bryce Chandler, a partner with Shibley Righton LLP's office in Windsor, Ont. "e issue in the case was a mother's request for workplace accom- modation in order to allow for daycare for her children." e difficulty here, he points out, was that the Canadian Human Rights Act doesn't contain a definition of family status. In Johnstone, the federal tribunal held that family status doesn't necessarily just involve relationships but should also include the obligations arising from them, which would include child-care obligations. In its ruling, the Federal Court reviewed what conduct constitutes discrimination in light of child-care obligations. "is was the next logical step in the continuing evolution of family status as a protected ground," says Stuart Rudner of Rudner MacDon- ald LLP. "e definition of family status has changed dramatically." Initially, it protected women from losing their jobs because they were married. e scope then widened to protect their right to keep working when they had children. e latest expansion now recog- nizes the need for child care. e decision is unsettling, says lawyer Howard Levitt, who sug- gests it leaves employers, particularly smaller businesses, in an unten- able position. "Employers have to twist themselves into pretzels," he says. "Bor- der services, I guess, can handle it because it's a large employer . . . but what about the small employers? I think the case is a disaster." He suggests that while the intent is to accommodate women with young families, the decision may well have a negative impact by mak- ing them undesirable employees given what employers now have to do to accommodate their child-care obligations. In addition, Levitt sees little prospect of any change in the foresee- able future and he expects provincial tribunals will follow suit when it comes to considering similar cases. LT Family status redefined Continued from page 9

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