It was gender identity, not incense, that incensed the managers of a London farmer’s market, an Ontario Human Rights Tribunal adjudicator has found.
The discrimination against three people selling candles at the market, and a fourth who employed them, resulted in a total of $40,000 awarded to the applicants.
In addition, the respondents have been directed to take Human Rights training, to post Human Rights Code cards at the market and to train management staff on discrimination prevention. The owner, Edward Kikkert and his management staff are to ensure that all people who identify as transgendered have access to the washroom facilities of the gender with which they identify.
Apology Found Not Effective Remedy
A request for an apology was not allowed, as such remedies have been found to be “inappropriate or an ineffective remedy and raise potential freedom of expression concerns,” Vice-Chair Dawn J. Kershaw found.
The decision was released May 30.
Three transgendered applicants had filed the application. They alleged discrimination with respect to facilities on the basis of sex, specifically gender identity, as transgendered persons. A fourth, the operator of the market booth, alleged discrimination on the basis of association with a person identified by those grounds, as well as reprisal.
In Salsman v. London Sales Arena Corp., 2014 HRTO 775 (CanLII), the adjudicator heard a radio interview the market owner gave about 12 days after the 2011 incident. An electronic copy of the interview was introduced as evidence.
While the respondents had stated they were displeased with the applicants being scantily clad at the “family market,” and had burned incense at the booth they staffed, the adjudicator noted the owner did not mention those concerns in the radio interview.
Rather, the tribunal heard that Mr. Kikkert had made reference to “people like that,” “cross dressing” and “guys dressed up as girls.”
The adjudicator allowed an affidavit into evidence because a witness was not available by telephone. The tribunal heard testimony by telephone from the applicant and two witnesses. The applicant’s representative was allowed to represent, after a finding that she was not paid to do so, and was therefore excluded from licensing requirements. The applications were consolidated at the outset.