Salsman v. London Sales Arena Corp., 2014 HRTO 775

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Salsman

Applicant

-and-

London Sales Arena Corp., Edward Kikkert and Victor Desa

Respondents

A N D B E T W E E N:

Falicity Chartrand

Applicant

-and-

London Sales Arena Corp., Edward Kikkert and Victor Desa

Respondents

A N D B E T W E E N:

Daniella (Dan) Freeman

Applicant

-and-

London Sales Arena Corp., Edward Kikkert and Victor Desa

Respondents

A N D B E T W E E N:

Karen Clarke-McIlwain

Applicant

-and-

London Sales Arena Corp., Edward Kikkert and Victor Desa

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: May 30, 2014

Citation: 2014 HRTO 775

Indexed as: Salsman v. London Sales Arena Corp.

APPEARANCES

Judith Salsman, Falicity Chartrand, Daniella (Dan) Freeman and Karen Clarke-McIlwain, Applicants

Michelle Boyce, Representative

London Sales Arena Corp., Edward Kikkert and Victor Desa, Respondents

Gene-Paul Chiarello, Counsel

Introduction

1These four Applications were filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicants in Tribunal files 2012-12420-I, Judith Salsman (“Ms. Salsman”); 2012-12421-I, Falicity Chartrand (“Ms. Chartrand”); and 2012-12422-I, Daniella Freeman (“Ms. Freeman”) allege discrimination with respect to facilities on the basis of sex, specifically gender identity, as transgendered persons. The applicant in 2012-12423-I, Karen Clarke-McIlwain (“Ms. Clarke-McIlwain”) alleges discrimination with respect to facilities on the basis of sex, sexual orientation and association with a person identified by those grounds, as well as reprisal. Ms. Clarke-McIlwain is not a transgendered person and her claim is grounded in discrimination by association with the other applicants. She did not pursue her claim with respect to discrimination on the basis of sex.

preliminary issues

Consolidation

2All parties agreed at the outset of the hearing that these Applications should be consolidated pursuant to Rule 1.7(d) of the Tribunal’s Rules of Procedure because of the overlap between the legal and factual issues in the four Applications.

3The four Applications were consolidated and heard together.

Change of Applicant’s Name

4The applicants’ representative asked that Daniella Dominick’s name be changed to Daniella Freeman.

5The request was not opposed, I granted it and the style of cause is amended accordingly.

Late Submission of Documents by the Applicant

6Ms. Clarke-McIlwain, wished to introduce at the outset of the hearing a handwritten document prepared by her setting out details of her wage loss calculations as through inadvertence it had not been included in the applicant’s documents. The respondents objected, but I allowed the document to be introduced as evidence as the same numbers were in the Application. I advised counsel for the respondents that if he still had objections to the admission of the document after he had cross-examined Ms. Clarke-McIlwain, he could raise it, but he did not do so.

Representation of the Applicants

7The respondents’ counsel objected to representation of the applicants by Michelle Boyce, Executive Director of Alphabet Community Centre for trans-identified and questioning individuals (“Ms. Boyce”), because of an article that was published that indicated the applicants would proceed with this matter despite the cost, which he submitted would put her outside the Law Society of Upper Canada’s exemptions. He introduced a copy of the newspaper article as evidence that Ms. Boyce was being paid by the applicants and could not therefore represent them.

8Ms. Boyce assured me she was not receiving pay to provide assistance. In addition, I find that in accordance with the Social Justice Tribunals Ontario Common Rules, Rule A9.1 which are part of the Tribunal’s Rules of Procedure, she is an unlicensed person who falls within the exemptions allowed by the Law Society of Upper Canada because she is an employee or volunteer from an appropriate organization. I held that the hearing could proceed with Ms. Boyce as the applicants’ representative.

Telephone evidence of the applicant, Falicity Chartrand and of two of the Respondents’ witnesses

9Ms. Chartrand requested that she be allowed to give her evidence by telephone because she lives in British Columbia. The respondents agreed. I allowed this.

10The respondents also requested that two of their witnesses be allowed to testify by telephone, one because he is the sole owner of a bakery which he could not leave, and the second because she resides in Florida during the winter months. The applicants agreed and I allowed this.

Affidavit Evidence of the respondents’ witness, Vera Miller

11I accepted the affidavit evidence of the respondents’ witness, Vera Miller, after inquiring whether she was available by telephone and was advised she was not. The applicants consented.

Removal of Edward Kikkert and Victor Desa as Personal Respondents

12The respondents requested that the two personal respondents be removed as parties. I directed the parties to address this request at the end of the hearing which they did. My decision is provided below.

background

13At the time of the incident that gave rise to these Applications, Ms. Clarke-McIlwain rented a retail booth and sold candles at the market known as Trails End (“the market”) which is owned by the corporate respondent, London Sales Arena Corp. (“the corporate respondent”). The respondent, Victor Desa (“Mr. Desa”), is the rent collector for, and manager of, the market. The respondent, Mr. Kikkert (“Mr. Kikkert”), is the owner of the market and employs Mr. Desa.

14The parties agreed that on September 10, 2011 Ms. Clarke-McIlwain’s booth was staffed by Ms. Freeman for part of the day. Ms. Freeman brought with her the two other applicants Ms. Salsman and Ms. Chartrand. All three of these applicants identify as transgendered.

15It was not disputed that the respondents were displeased with these three applicants tending the booth, which led to Mr. Desa at the behest of Mr. Kikkert, calling Ms. Clarke-McIlwain that evening. The specific reasons for the displeasure and resultant telephone call were disputed and are the subject of these Applications.

16The respondents allege that their displeasure was because the three applicants lit incense at the booth, which was not allowed, and that they were scantily and inappropriately dressed for the market, which Mr. Kikkert describes as a “family market”. The applicants, in contrast, state that the respondents were discomfited by the presence of Ms. Salsman, Ms. Freeman and Ms. Chartrand at the market because they are transgendered. Ms. Clarke-McIlwain alleges she was told she was not welcome at the market if she was going to have Ms. Salsman, Ms. Freeman or Ms. Chartrand operate her booth.

the law

17Section 1 of the Code states in part:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of […] gender identity [and] gender expression […]

18Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

19Section 12 of the Code states:

A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

decision

20I find that Mr. Kikkert and the London Sales Arena Corp. discriminated against the applicants in this matter and remove Victor Desa as a respondent, for the reasons that follow.

evidence

Events on Day in Question

21Mr. Desa testified he went to Ms. Clarke-McIlwain’s booth on the day in question because he got a call on the radio that a neighbouring vendor was feeling nauseous due to incense being burned at the booth. Mr. Desa approached the booth and asked the applicants to put out the incense, which they did. Although he testified that was the only issue he addressed with the three applicants, he noted that the applicants were dressed scantily “like prostitutes”.

22Mr. Desa then received another call from a vendor saying she had lost sales because 3 people walked away from her booth due to their discomfort in the presence of one of the applicants looking at items at her booth. This applicant spent part of her time in Ms. Clarke-McIlwain’s booth but also was shopping.

23Because of what he felt was an impact on market business, Mr. Desa testified that he then called Mr. Kikkert and the two of them went and observed the booth together. Mr. Kikkert testified that on observing the booth from a distance, he observed a “lot of skin” which was inappropriate for the market. He stated he did not know if the applicants were men or women.

24The respondents’ witnesses all testified that two of the three applicants were wearing revealing clothing, although the details of what Ms. Chartrand and Ms. Salsman were wearing were not consistent. The applicants, and the respondents’ witnesses, agreed that Ms. Freeman was not wearing any inappropriate or scanty clothing.

25Mr. Kikkert testified that he decided not to have Mr. Desa address the revealing clothing then because there would have been a huge scene if he had asked the applicants to leave. Mr. Desa testified that Mr. Kikkert instructed him to call Ms. Clarke-McIlwain later.

26Mr. Kikkert and Mr. Desa also testified that they had encountered scanty clothing at the market on another occasion when a woman handing out bank literature had shown too much cleavage. On that occasion, they approached her and asked that she cover up, which she did.

27Mr. Kikkert insisted that his only issue with respect to the three applicants was that there was a lot of skin showing.

Evidence Respecting the Telephone Call

28Ms. Clarke-McIlwain testified that Mr. Desa called and basically delivered her an ultimatum, which was that either she remove her business from the market or remove the other applicants. He made various references to “those people”, “it’s just not right”, and “it’s not normal”, and it was clear to her that he was referring to the fact that they were transgendered because he also made reference to “cross dressing” and being “guys dressed up as girls”.

29Mr. Desa did not deny that he might have begun the telephone call by saying he was calling about the folks Ms. Clarke-McIlwain had working at her booth that day, but did not think it was the first thing he addressed, and if it was, it was a way of bringing to her attention that she had different people working in her booth, instead of operating the booth herself, and that he had to address the incense issue again.

30Mr. Desa denied Ms. Clarke-McIlwain’s recollection that he had said he had talked to a man dressed as a woman and it just wasn’t right, because he said it was ridiculous and too blatant. While I find Ms. Clarke-McIlwain’s evidence credible, I also was not satisfied there was enough evidence to prove that Mr. Desa’s comments constituted any more than his passing along the opinions of Mr. Kikkert at Mr. Kikkert’s direction.

Radio interview

31Mr. Kikkert was interviewed on the radio about 12 days after this incident. An electronic copy of the interview was introduced as evidence. At no time during the interview did Mr. Kikkert comment on the applicants’ clothing or even on the incense. He also raised the spectre of unpaid rent by Ms. Clarke-McIlwain at the hearing, another issue he did not address in the radio interview.

32Mr. Kikkert’s comments on the radio show were with respect to the market being a “family market”; the fact that he did not have washroom facilities for “these people”; and he referred to the applicants as “people like that”.

33When Mr. Kikkert was asked in the interview if transgendered people had a right to make a living and whether they could do that at the market, he said they could if they followed the rules. When asked to clarify what those rules are, he referred to the washroom facilities, implying that the three applicants may have attempted to use a washroom at the market. However, I heard no evidence that the three applicants had used, or tried to use, any washroom on the day in question.

decision and Analysis

Findings

34The central disagreement in this case was what precipitated the telephone call from Mr. Desa to Ms. Clarke-McIlwain and what was said during that telephone call. With respect to the credibility of the witnesses, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

35I find Mr. Kikkert’s and Mr. Desa’s evidence that the issue was revealing clothing not to be credible primarily in light of a radio interview in which Mr. Kikkert participated approximately 12 days after this incident. During that radio interview, Mr. Kikkert did not mention scanty or inappropriate clothing, which contradicts his evidence at the hearing. Moreover, the respondents chose not to address the issue of scanty clothing on the day of the incident, as both testified they had done on a previous occasion.

36Ms. Clarke-McIlwain’s evidence concerning the phone call she had with Mr. Desa, on the other hand, remained consistent throughout the Application, the radio interview and her testimony. It is also in accordance with Mr. Kikkert’s explanation given to the radio interviewer – namely that he was discomforted by the presence of openly transgendered women at his facility and that he did not want them returning.

37I do not accept Mr. Desa’s evidence that the agenda of his telephone call to Ms. Clarke-McIlwain was simply to address the incense issue and “too much skin” primarily because it is inconsistent with Mr. Kikkert’s radio interview.

38I do accept Mr. Desa’s evidence that he was passing along statements from his boss, Mr. Kikkert, and from some other vendors as this was consistent with Mr. Kikkert’s comments in the radio interview.

39I find based on all the evidence 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 transgendered individuals were working in Ms. Clarke-McIlwain’s booth on the day in question.

40Mr. Kikkert agreed during the radio interview that there was still an ultimatum in place that Ms. Clarke-McIlwain had to either remove the transgendered employees from her booth or take her business elsewhere.

41My finding with respect to Mr. Kikkert is supported by the inconsistencies between his evidence and the radio interview and also by the fact that he did not give the applicants the opportunity to cover up if in fact the issue was their clothing, as Mr. Desa and Mr. Kikkert testified they had done with a bank employee on a prior occasion whom they felt was showing too much cleavage. Mr. Kikkert testified that this was because it was later in the day. However, Mr. Kikkert also testified that he felt there would be a “scene” if he asked the applicants to leave. This appears to be a stereotypical assumption by Mr. Kikkert and also belies his evidence that the reason he did not give the applicants the chance to cover up is because of the time of day. I find on all the evidence that Mr. Kikkert discriminated against the applicants.

Removal of the Personal Respondents

42I did not find sufficient evidence that Mr. Desa was doing anything but communicating complaints from Mr. Kikkert and other vendors and the ultimatum from Mr. Kikkert. I find that his actions in following Mr. Kikkert’s instructions were carried out in the performance of his job duties and with the corporate respondent’s authority, and for which the corporate respondent accepts responsibility.

43In keeping with my finding that Mr. Desa was carrying out instructions from his employer, I find that Mr. Desa should be removed as a personal respondent.

44Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party.

45The Tribunal considered this issue in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

46The Tribunal framed the question to be considered in considering such a request in Octavius v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1518 as:

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

47The facts alleged in the Application do not indicate that Mr. Desa was acting outside the scope of his employment duties and authority as a manager. The applicants have not asserted any specific prejudice if this individual respondent is removed and I am unable to find any compelling reason to continue this proceeding against Mr. Desa. Given that I find that Mr. Desa’s conduct was entirely within the context of his employment, I would not award a remedy specifically against him.

48I find however that Mr. Kikkert should not be removed as a personal respondent for the following reasons:

a. it is Mr. Kikkert’s individual conduct that is a central issue in these Applications in that he personally discriminated against the applicants, in addition to which discriminatory acts were carried out against the applicants at his behest;

b. Mr. Kikkert is the president and only shareholder of the corporate respondent; and

c. the nature of the alleged conduct of Mr. Kikkert makes it appropriate to award a remedy specifically against him.

Reprisal

49Ms. Clarke-McIlwain alleged reprisal in her Application. She did not give any evidence with respect to reprisal, and based on that and on the facts surrounding the incident in question, I find there to have been no reprisal. There was no evidence that any of the respondents’ actions were in retaliation for Ms. Clarke-McIlwain claiming or enforcing her rights under the Code.

Association

50None of the parties raised any issue with Ms. Clarke-McIlwain being an applicant in this matter, and I find she properly is an applicant by reason of section 12 of the Code.

remedy

51Section 45.2(1) of the Code sets out the Tribunal’s remedial authority:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Monetary Remedy

52Ms. Clarke-McIlwain testified that after the phone call with Mr. Desa, she felt shocked. By the night after the telephone call, she felt she could not maintain her booth at the market. She also testified to feeling that this was wrong and it was eating at her. She felt sickened and nauseated. She told Ms. Freeman, who was her roommate, and Ms. Chartrand, about the call the next day. All three women testified variously that they were affected adversely by being told that they were not welcomed and that this led to feelings of depression.

53All four applicants requested an award of $30,000 each as compensation for injury to dignity, feelings and self-respect.

54Ms. Freeman also requested wage loss of $12,000. Ms. Clarke-McIlwain requested wage loss in her Application of $270,500.

55As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ONSC) at para. 150.

56In Lane the Divisional Court also says at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

57As is indicated in Lane there is no fixed formula for the Tribunal to follow to assess a monetary compensation award, at para. 157, there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” at para. 152.

58In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

…The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. …

…The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.

59In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed the factors to be considered in assessing an appropriate award for injury to dignity which include:

• humiliation experienced

• hurt feelings experienced

• loss of self-respect

• loss of dignity

• loss of self-esteem

• loss of confidence

• experience of victimization

• vulnerability

• seriousness, frequency and duration of the offensive treatment.

60The applicants submitted that the award for injury to dignity, feelings and self-respect in this case should be at the higher end of the range of damages. I was referred by the applicants to two decisions involving discrimination in employment, not services, which I have not cited here; and two services cases from the British Columbia Human Rights Tribunal, Rai and others v. Shark Club of Langley (No. 2), 2013 BCHRT 204, which dealt with a complainant who was denied entry to a nightclub based on his race and Pardy v. Earle and others (No. 4), 2011 BCHRT 101, in which a comedian was found to have subjected the applicant to adverse treatment by making homophobic comments from the stage and also by assaulting her.

61I also have reviewed other Ontario cases involving the denial of services, albeit with respect to disability. In Thai v. Hing Loong Investments Ltd., 2011 HRTO 2227, the applicant was awarded $2,500.00. The applicant had not experienced prolonged or repeated acts of discrimination and was not very dependent on this business. In Donnelly v. Spinz Coin Laundries, 2009 HRTO 754, the applicant was awarded $2,500.00 after experiencing two incidents of discrimination. While she lacked access to another laundry facility close to her home the award was reduced because of her confrontational behaviour. In Boudreau v. Kingston Bazar, 2012 HRTO 393, an applicant was refused services in a store because of the presence of her guide dog. The Tribunal awarded the applicant $15,000.00 because, although a brief encounter, the applicant was publicly embarrassed and humiliated.

62I have considered these cases and find it appropriate to award Ms. Salsman and Ms. Chartrand $5,000.00 for injury to dignity, feelings and self-respect. Considering the Boudreau case, the discrimination with respect to services in this case did not occur publicly, but in a telephone call to Ms. Clarke-McIlwain. These applicants, unlike in Donnelly, also did not establish their dependence on the market.

63However, the factors increasing the award to an amount greater than in Thai and Donnelly are:

they suffered the emotional impact of being made to feel unwelcome in the market and to feel that they were somehow “not right”; and

they subsequently felt that their journeys toward acceptance of their transition were set back.

64With respect to Ms. Freeman, she suffered the greatest emotional impact because she was Ms. Clarke-McIlwain’s roommate at the time and Ms. Clarke-McIlwain had been kind to her and had helped her emotionally with her journey. She felt responsible for the decision Ms. Clarke-McIlwain felt she had to make to stop working at the market. In addition, she had been working for Ms. Clarke-McIlwain by tending her booth at locations other than the market.

65Ms. Freeman testified that this event slowed her transition; that she went back into her shell and isolated herself; and began to question again whether she could be herself and whether she was accepted for who she was. She went from working for Ms. Clarke-McIlwain to ceasing employment as of approximately Christmas 2011 after this incident because of depression.

66While Ms. Freeman testified she began seeing a therapist and psychiatrist after this incident, she did not provide any medical reports with respect to the effect of this event on her emotional state.

67I find it appropriate to award Ms. Freeman $10,000.00 for injury to dignity, feelings and self-respect. The evidence presented to me strongly suggested that the emotional impact on her exceeded the impact on Ms. Salsman and Ms. Chartrand.

68Although Ms. Freeman requested wage loss, I find that she provided no evidence that her wage loss was directly tied to this incident. She had worked at the market for the first time on the date of this incident. She did not provide sufficient evidence to establish why she could not continue to work after Christmas 2011.

69With 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 accept 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.

70She categorized this as a catastrophic event in her life and stated that as a result of it she was diagnosed with post-traumatic stress and anxiety disorder. However, Ms. Clarke-McIlwain did not provide any medical documents to support her medical conditions or to tie those conditions to this event.

71Her evidence however was compelling with respect to the emotional impact on her. She testified that she felt like she had been put in a position where if she chose to continue to operate at the market, then she was making a biased decision against a friend. She also testified that she never chose to be an advocate for the cause, and this event caused great emotional upheaval for her with the loss of her business and the eventual necessity of having to take a call centre job which means not seeing her daughter much due to her working hours.

72Ms. Clarke-McIlwain had had a booth at the market for more than two years when this incident occurred. In thinking through what to do as a result of the telephone call, she testified that “something was eating at [her] that this [the ultimatum] was wrong”, describing the feeling as being something in her moral core. Despite this being the anchor location for her business, she decided the day after this incident that she could not continue her business there because if she did so, it would be making a biased decision against a friend, namely Ms. Freeman, who not only assisted her at the booth but who was also her roommate.

73Even in the absence of medical information which might well have increased the award for damages to injury to dignity, feelings and self-respect, I find that an appropriate award is $20,000.00. I acknowledge that the fact that Ms. Clarke-McIlwain’s damages for injury to dignity, feelings and self-respect is higher than the award for the other applicants is at first blush unusual. However, Ms. Clarke-McIlwain had to hear discriminatory statements about people who are her friends and one of whom who was her housemate. Ms. Clarke-McIlwain fielded the call in which she was told that her friends were not welcome at the market, which was her principle place of work. She discovered that her principle place of work operated with these discriminatory attitudes, and she could not condone or support those attitudes by working there and supporting them. She felt shock and emotional distress.

74Ms. Clarke-McIlwain also made a substantial claim for loss of business income, but provided no tax returns and no business documents to support those losses. She provided a one page summary that showed her opening inventory, closing inventory and revenue figures for the years 2007 to 2013. In addition to providing no back up documentation, she had great difficulty explaining these numbers. She also alleged that the reason she could not continue working at any location after ceasing her business at the market was because she developed bilateral carpal tunnel syndrome due to the stress of this event, an allegation that was not supported by any medical documentation.

75Given the lack of any medical evidence and almost complete lack of financial documentation to support a loss of business income claim, I decline to award Ms. Clarke-McIlwain any loss of business income.

Non-monetary Remedies

76The applicants asked for non-monetary remedies including:

a. An apology;

b. Training for Mr. Kikkert and Mr. Desa with respect to gender identity and sexual orientation, including the issue of bathroom use by patrons and vendors to bring the market into compliance with the Code.

77The Tribunal has the power to direct any party to an application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance.

Apology

78By way of remedy, the applicants seek an Order from the Tribunal directing the respondents to provide them with an apology.

79As a general rule, the Tribunal is reluctant to order apologies pursuant to its remedial powers under the Code. As the Tribunal stated in Abdallah v. Thames Valley District School Board, 2008 HRTO 230:

Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns. (See also Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.), (2001) 40 C.H.R.R. 333 at para. 264, and the cases cited therein).

Training

80It is clear from the evidence that Mr. Kikkert and the corporate respondent do not understand their obligations under the Code. Mr. Kikkert testified that despite these Applications having been commenced against him, as of the date of the hearing he had not investigated the rights of transgendered individuals under the Code. I find it appropriate therefore that Mr. Kikkert and his management staff take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision. They also within 30 days of this Decision will download and review the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression (available at http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression). They will provide the applicants with written confirmation that they have done so upon completion of the course and review of the policy.

81I also find it appropriate for Mr. Kikkert and the corporate respondent to post Human Rights Code cards in central locations throughout the market to promote future compliance with the Code within 30 days of the date of this Decision.

82In accordance with the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression, transgendered people should be recognized and treated as the gender they live in, whether or not they have undergone surgery. As such, the respondents shall ensure that all people who identify as transgendered have access to the washroom facilities of the gender with which they identify.

order

83I order as follows:

1. Mr. Desa is removed as a respondent in these Applications.

2. Mr. Kikkert and the corporate respondent are jointly and severally liable for these awards.

3. Within 30 days of the date of this Decision, the respondents shall:

a. pay the applicants, Ms. Salsman and Ms. Chartrand, $5,000.00 each as monetary compensation for injury to dignity, feelings and self-respect

b. pay the applicant, Ms. Freeman, $10,000.00 for injury to dignity, feelings and self-respect;

c. pay the applicant, Ms. Clarke-McIlwain, $20,000.00 for injury to dignity, feelings and self-respect;

d. post Human Rights Code cards in central locations throughout the market to promote future compliance with the Code and provide proof to the applicants that they have done so;

e. take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) and ensure that the management staff has taken the same training, and provide the applicants with written confirmation of having done so; and,

f. download and review the Ontario Human Rights Commission’s policy on preventing discrimination because of gender identity and gender expression (available at http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression) and ensure that the management staff has taken the same training, and provide the applicants with written confirmation of having done so.

4. Pre-judgment interest is payable on the monetary payment from the date of the Application to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

5. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

84Mr. Kikkert and his management staff shall ensure that all people who identify as transgendered have access to the washroom facilities of the gender with which they identify.