The Canadian Bar Association
Immigration, Human Rights

Difficult to prove 'undue hardship' when denying services

For those delivering services to the public in Ontario, it is very difficult to justify picking and choosing clients unless you can prove undue hardship under the provincial Human Rights Code — and religious views are not one of the criteria, explains Toronto immigration lawyer Andrew Carvajal.

At a recent event hosted by Why Should I Care (WSIC) in Toronto exploring the delicate balance between human rights and religious freedom, Carvajal, a partner with Desloges Law Group, joined columnist Michael Coren to discuss the issues stemming from a 2012 human rights complaint filed by a Toronto woman, after a barber declined to cut her hair. The barber argued his religion prevents him from touching a woman outside his family.

Carvajal, who has appeared before the Ontario Human Rights Tribunal on behalf of clients, explains that these types of cases can prove to be challenging from the point of view of the person hit with a claim.

For example, he says, awards can be out of proportion compared to the courts, with the tribunal generally awarding $10,000 to $15,000 for denial of services.

“No costs are awarded against a losing party; there is no disincentive for a person with a meritless claim to not push it all the way to a hearing — particularly if unrepresented or represented by lawyer from a legal clinic,” says Carvajal.

Carvajal told attendees of a case he had earlier this year that dealt with human rights, religious freedom and safety concerns.

His case, involving a store owner in a diverse Toronto neighbourhood, dealt with the delicate balance of accommodating a patron’s religious wear within the setting of a business that has a robust security system to prevent vandalism and credit card fraud.  

In this scenario, explains Carvajal, “regardless of the intention of a business owner, differential treatment based on something that can be associated with religion could be construed as discrimination."

When a violation or a restriction of human rights occurs through a denial of service, a store owner would have to show that they could not accommodate a person’s religious wishes due to “undue hardship,” says Carvajal. 

In determining undue hardship, the Human Rights Code only considers three factors – significant cost, outside funding and health and safety requirements. The person claiming undue hardship also bears the onus of proof, says Carvajal.

“In proving undue hardship, you cannot refer to factors such as business inconvenience, employee morale, third-party preference; collective agreements or contracts,” says Carvajal.

If undue hardship is present, Carvajal suggests businesses must limit the other person’s rights as little as possible.

Carvajal told attendees that his case was different than that of the barber, as in that other situation, the person seeking accommodation of his religious rights was the person who was denying services.

However, he says, if the barber was his client, “I would advise that in order to protect his rights and not run contrary to human rights legislation at his shop, he should have another employee to service women.”

Ultimately, says Carvajal, having a clear policy is one of the most effective ways to protect your business against human rights complaints.

“Include in those policies provisions that address what to do in cases when a customer makes a request for accommodation. The point of this is to minimize the impact on the limitations of others’ rights to the extent possible.”

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