The Human Rights Tribunal basically ruled that is a violation of rights to attempt to force someone else to act in a bigoted manner.
The case was Salsman v. London Sales Arena Corp. Salsman is notable because the highest damages awarded did not go to any of the three transgender individuals involved but to their non-transgender employer.
The case involved three transgender women who were working at the booth of Karen Clarke-McIlwain at the Trails End market in London, Ontario which is operated by London Sales Arena Corp.
Clarke-McIlwain rented the booth at Trails End in order to sell candles.On September 10, 2011, transgender woman Daniella Freeman was working the booth along with two transwomen friends, Judith Salsman and Falicity Chartrand.
That evening Clarke-McIlwain received a telephone call from the market manager on behalf of the store's owner, Edward Kikkert. Market management claimed that the call was to "pass on" complaints about the burning of incense at the booth and that those attending the booth were "scantily clad" and "inappropriate for the family market."
The complainants testified that the market operators were uncomfortable with the employees because they were transgender. The market manager told her gave her an ultimatum: either remove the workers or remove her booth.
Clarke-McIwain testified that the phone call left her shocked and she ultimately decided to withdraw her booth rather than make a biased decision against a friend. She called the event a "catastrophic event" in her life. Freeman was her roommate.
Kikkert aid his problem was really with the incense and the the scanty clothing, but was heard later commenting on a radio program that he had issues with the fact that his was a "family market" and he referred to Clarke-Mc-Ilwain's friends as "people like that."
I 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.
--adjudicator Dawn Kershaw
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 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.
--Kershaw
This was a big step forward for the protection of trans persons’ rights in Ontario.
However, there have been very few decisions from the Human Rights Tribunal of Ontario interpreting and applying these new protections since [they were included in the Human Rights Code].
--Nicole Sims, MacLeod Law Firm
Sims did say she found the damages awarded to be on the low side.
Kershaw awarded Salsman and Chartrand $5000 each, Freeman $10000 (for the greatest emotional harm) and Clarke-McIlwain $20000. Sims says that is lower than decisions made in the employment context, where general damage awards range between $10000 and $15000 and highest awards reach $45000.
Sims pointed out that the treatment by Kikkert and the management company caused Freeman to slow her transition after the incident and Freeman nearly stopped working due to resulting depression.
Kumail Kurimjee of Karimjee Greene LLP said the reality of the tribunal is that it does not hand out large awards.
Karimjee compared the case with a civil proceeding.
It’s interesting to me to look at this case, comparing the two forums,” he says, adding the tribunal may be more comfortable dealing with emotional and medical distress without extensive medical evidence, something that’s perhaps consistent with the need to be more accessible and accommodate those who represent themselves.