Law Times

Law Times • June 8, 2015 Page 7 www.lawtimesnews.com COMMENT Ontario needs case law on sexy dress codes BY DAVID HARRIS For Law Times ave you been in a restaurant or bar lately and felt you had inadvertently walked into a place where they provide sexual services? If you have, you're not the only one. In Ed- monton, a group of female servers has established a web site to allow for consumers and employees of such estab- lishments to voice their concerns with respect to such an apparent code requiring short, low-slung black dresses. In the legal sphere, the 1987 Ontario Divisional Court decision in Ontario Human Rights Commission v. Chrys- alis Restaurant Enterprises Inc. was an early case to touch on the issue. The commission brought the complaint against the employer, a disco bar, due to the alleged sexually revealing nature of the apparel required for the female waitresses. The argument centred on the apparent distinction between the male and female dress code as the former did not require men to dress in such an allegedly provocative fashion. This submission failed before the board of inquiry and also at the subsequent judicial review. Among the fatal findings made at the board level against the com- plainants was the fact that the required manner of dress was not unduly revealing or so "'immodest' or 'sexist' as to transform the waitresses into entertainers." The Divisional Court, however, did agree that the board had erred in its determination of the test to apply in an argument of discrimination based on sex. The majority decision of the Divisional Court noted there might also be circumstances due to gen- der in which the uniform worn by the females had no relationship to the job except for a sexual connotation. "One can see a situation where there was discrimi- nation on the ground of sex if only women were em- ployed in that position but men were able to do the job and the uniform required had no relationship to the job except the sexual connotation," the court stated. Those words opened the door to a complaint based on a dress-code requirement that likely exposes a fe- male worker to sexual exploitation. Does a low-slung, short black dress meet that test? The Divisional Court went on to state that "normal social norms" wouldn't be an appropriate test. "Also, I can see that there could be discrimination even where the dress requirement for one sex was in accordance with commonly accepted social norms," the court stated. Amazingly enough, there has been a dearth of cases dealing with this issue over the years. But the submis- sion in that case based on gender discrimination did al- low the real issue to seep through: sexual exploitation, something that has nothing to do in reality with dif- fering standards between genders. Would such a dress code be acceptable if it exposed both genders alike to sexual exploitation? Clearly, that would be an absurd result. The real question should simply be whether the dress code exposes the person to sexual exploitation. The 2010 decision of the British Columbia Human Rights Tribunal addressed these issues in Bil v. North- land Properties on a motion to dismiss. The complainant alleged she had to wear sleek high-heeled shoes, miniskirts, shirts showing cleav- age, and hair and makeup done with "class and sex appeal." The employer's training manual also stated it preferred the female servers to wear their hair down. In rejecting the motion to dismiss, the tribunal used the usual analysis around gender-biased treat- ment and concluded sexually based dress codes could in law be adverse treatment due to gender. It also re- ferred to the seminal decision of the Supreme Court in Janzen v. Platy Enterprises Ltd. In Janzen, two waitresses employed by Pharos Res- taurant had complained about sexual harassment. They had voiced their concerns to the owner, who had failed to take any corrective action. The Manitoba Human Rights Commission had found they were both victims of sex discrimination, a finding upheld by the Court of Queen's Bench. At the time, the Manitoba statute didn't refer specifically to sexual harassment as a ground of discrimination with the complaint instead based on gender. The case thus required a finding that sexual harassment was actionable based on gen- der discrimination. As to the systemic pattern of hiring young females, it is patently clear that such a policy is a human rights breach. That issue should not be difficult to decide. But what of the argument that the hiring decision turns on the personal attractiveness of the female staff or, for that matter, the male employees? There is likely no barrier to preventing a hiring de- cision based on the candidate's physical attractiveness. A disability such as a facial disfigurement may present another argument. Peter Israel, founding partner of Israel Foulon LLP, notes that early cases against Air Canada found the use of personal attractiveness in hiring decisions to be contrary to the federal human rights protections. Barry Fisher, an employment law mediator, sug- gests it may be possible to simplify the issue by ask- ing whether the employer would hire an attractive 60-year-old woman and mandate the same dress rule in the absence of which there would be an evident case of age discrimination. Gillian Shearer of Shearer Lattal LLP suggests that mandating such a dress code is a risky proposition as "such establishments are not far off from professional sports cheerleaders in that they have the same workplace traits, namely a sexually provocative uniform, most clien- tele is male, and copious amounts of alcohol being served. These factors create a workplace where sexual harass- ment or even sexual assault is predictable. Such employ- ers must have diligent training on harassment or, better still, a new approach to the mandated dress code." It is odd that there is an absence of case law on this subject. Perhaps that will change. It should. LT uDavid Harris, a former lawyer, is publisher of Employ- ment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Carswell. u SPEAKER'S CORNER Dawn of new condo age heralds big changes for lawyers he government has finally tabled the much-anticipated condomin- ium law reform bill. David Orazietti, the minister of government services, introduced bill 106, the protecting condominium owners act, last month. It's spectacular new legislation that will herald a real paradigm shift in condominium ownership in Ontario and arguably none too soon as the province is now home to more condominiums than any other jurisdiction in the Western world with an estimated 1.3 million Ontarians liv- ing in more than 700,000 units and every other new home under construction being a condominium of one sort or another. Word-count limitations pretty much eliminate any possibility of doing the legis- lation justice, but there will be plenty of time for that at a later date and in any number of continuing professional development of- ferings that will no doubt focus on the bill. That said, if the bill passes, Ontario will see condominium ownership legislation that has clearer, more comprehensive rules regarding the costs of buying a newly built unit; establishes a new not-for-profit condo- minium authority to provide quicker, lower- cost dispute resolution; introduces tougher financial management rules for condomin- ium corporations to help prevent financial and organizational mismanagement; man- dates formal training and other governance improvements for condominium directors; and implements mandatory licensing and education requirements for condominium managers who are historically a source of many of the frauds and other financial mismanagement that have plagued condominium owner- ship. Alas, the foregoing sum- mary is too simplistic for a num- ber of reasons. First, the summary doesn't ref lect the sheer breadth and sweeping scope of the revisions the bill proposes. Literally, the government has left not a sin- gle stone unturned in terms of improving the condominium ownership experience. There are few, if any, provisions in the existing Condominium Act dealing with corporate governance, owners' rights or the new con- dominium purchasing process that have escaped the impact of the new legislation. This is a testament to the hard work that went into the bill by the Ministry of Con- sumer Services (now the consumer protec- tion arm of the Ministry of Government and Consumer Services) and their lawyers from the legal services branch of the Min- istry of the Attorney General. Second, the summary belies the sheer quality of the legislative drafting involved in formulating the bill. In terms of legisla- tive drafting, and totally irrespective of the vast changes to substantive law that the bill introduces, the legislation is actually quite masterfully written. In my short stint so far as director of titles, I have come to ap- preciate that there is a real art to legislative drafting and even more so when the re- form sought is quite technical in nature as is the case with condominium governance. Unlike other legislative efforts, the bill is no blunt instrument. There's a lot of nuance and precision evident in the drafting, and it's obvious to me that the legal teams involved really outdid themselves in terms of pure legal craftsmanship. Third, the bill itself belies the incredible amount of stake- holder input and consultation that went into making the pol- icy long before pen ever hit pa- per. The exhaustive collabora- tion and consulting review process that pre- ceded the introduction of the bill was truly remarkable. It included public information sessions, the creation of a residents' advisory panel, the receipt and consideration of more than 400 written submissions, and, most importantly for readers of Law Times, an expert panel comprised of some of the best condominium lawyers in the province. Those experts from the condominium bar gave so freely of their own time and considerable expertise in furtherance of this process that this bill is just as much theirs as anybody else's. Fourth, this summary of the bill gives little hint of how much there's still to do in implementing the new condominium ownership regime. Even if the bill passes more or less as it reads now, implemen- tation will still require extensive regula- tory drafting. It's not unusual to leave a lot to regulation, but the point is that even though the bill is both broad and deep in its reforms, the province has much regulatory drafting to do to achieve and implement the contemplated reforms. One part of the bill, the title, belies nothing. As the title suggests, the bill is all about consumer protection for condo- minium owners. Although there are some sections that deal with what most prac- titioners would characterize as technical condominium development issues (such as the provisions dealing with condominium phasing and easements), the overwhelm- ing thrust is consumer protection. As such, the provisions in the bill will affect residential real estate lawyers signifi- cantly (especially in terms of purchasing new condominiums) and will, of course, have a big impact on that small but active corner of the bar that regularly represents condominium corporations or owners in disputes with each other. As Odysseas Pa- padimitriou, a real estate lawyer at Miller Thomson LLP, points out, the legislation "really is a game changer." "The previous amendments to the act, which came into effect in May of 2001, helped make Ontario a forerunner in con- dominium development. The amendments contemplated by the bill will allow Ontario to continue on that path but also take us a step further to make Ontario a leader in condominium governance and consumer education. It should be an exciting time for the Ontario condominium bar," he says. LT uJeffrey Lem is editor-in-chief of Real Prop- erty Reports and director of titles for the prov- ince of Ontario. The opinions expressed in this article are personal to him and not attribut- able or referable to the Ontario government. T The Dirt Je rey Lem Je rey Lem H

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