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Woman Denied Haircut, Files Human Right Complaint


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#151 elvis15

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Posted 16 November 2012 - 04:27 PM

The Charter applies to government breaches of a person's rights. Commercial and private discrimination are covered by human rights codes

Indeed, and you'd mentioned it before about him particularly stating it as "I can't because my religion doesn't allow me to" isn't in his favour as a business offering a service doesn't get to deny service for religious reasons, but common sense should also apply as to whether or not the lawsuit itself has merit or is frivolous. What if the court ruled he couldn't avoid cutting women's hair based on religion but he continued to refuse service for anything other than more traditional men's haircuts?

I've seen bad analogies for both sides, but here's one I find that might apply when considering the point about whether she could have realistically expected to get a hair cut involving modern techniques regardless of the length of her hair:

Someone posted a thread a while back about a 3 year old that was given a ticket for public urination after being seen urinating in his own yard. The officer who saw the child do it had a habit of parking at the end of the family's road (which was in a particularly rural area). The mother of course complained, thinking no one would reasonably expect a 3 year old to understand the need for a public urination law and how useful it is to write a ticket for such an act.

To apply that to the current topic, would a woman going into a barbershop which most often has the connotation of involving men's only services - except in cases where the barbershop is the only available service, or there is limited service, in an area with both men and women - be able to file a lawsuit for refusal of service without it being seen as purposeful and frivolous?
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#152 debluvscanucks

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Posted 16 November 2012 - 04:29 PM

Golfing is a little different....haircuts involve physically touching another person and golfing shouldn't.

So the guy's uncomfortable with it? Again, I understand why she's entitled to demanding a haircut, just not sure there wasn't a really simple solution that didn't have to involve so much negative energy or output. I'd walk around the corner to a salon - problem solved. In this world we may be "right", but it isn't always right to go to battle over it. How about a friendlier world that says, "ok, no problem"?? Do people have to make a stink over every little thing? You've not being turned away from an ER with a gaping wound, your split ends need trimming - get over yourself.

Ha, the guy should make amends by inviting her in for a free haircut. The worst possible haircut she could ever imagine. "See?, I told you so".
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#153 TOMapleLaughs

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Posted 16 November 2012 - 04:46 PM

Here's an interview from best-selling author, lawyer, legal reform activist, founder and chair of Common Good, a “nonprofit, nonpartisan legal reform coalition dedicated to restoring common sense to America,” and contributor to the New York Times and the Wall Street Journal.

Life Without Lawyers: Liberation of America from too much Law.

Since the beginning of the industrial revolution, Howard says, but especially since the 1960s, we’ve created legal structures that have skewed people’s choices and pushed aside common sense. People no longer have freedom in their daily choices. A “legal self-consciousness” has descended upon society like a “heavy lead blanket,” stifling even simple choices that people make in their day to day life. People go through the day thinking about self protection from litigation.

Interestingly, the problem is not in itself caused by too much litigation:

“Not that many people bring frivolous claims. When they do bring frivolous claims, they don’t generally win. But the trouble is that the system of justice allows people to bring those claims, and allows the plaintiffs to maintain them for years. The result is that nobody trusts justice. Because they don’t trust justice, they don’t feel free to do their jobs properly.”

The result, Howard says, of the legal self-consciousness is that health care costs more; kids aren’t allowed to go outside and play even in the midst of an obesity epidemic; teachers can’t maintain control of the classrooms; managers can’t be honest with their workers; and governments can’t toss out bureaucrats who aren’t doing their jobs because of iron-clad tenure and a fear of wrongful dismissal claims.

The legal self-consciousness has profoundly changed public schools in America. Howard explains that over 40% of high school teachers in America say that they spend at least half their time trying to maintain discipline, which means half their time isn’t spent teaching. Teachers have lost control of the classroom, for fear that they’ll be “dragged through a hearing by an angry parent.”

According to a poll conducted by Common Good, 82% of teachers say they practice “defensive teaching” – their decisions are motivated by a desire to avoid legal challenges. The administration is paralyzed as well. This chart demonstrates the nightmare of bureaucratic hoops that an administrator must jump through in order to fire a teacher that everyone agrees is inept.

Health care has also been transformed. Over 90% of doctors say that they order tests that aren’t clinically needed, partly for fear of negligence claims. It’s difficult to quantify these “defensive medicine costs,” but Howard says that they’re probably in the $100 billion dollar range, a figure that has been cited elsewhere. That doesn’t even take into account other inefficiencies. Howard points out that doctors are reluctant to communicate with their patients and suggest treatments for common maladies by email, because in 1 out of 100 cases, it would have been better to see the patient. Ultimately, people don’t get proper care because of fear of the few.

This, Howard says, is one of the overriding problems with American legal structures – they cater to the lowest common denominator, and “as a result, the common good is harmed.” A system that caters to everyone sounds good in theory, but in practice, it becomes over inclusive and can’t work when resources are scarce.

I asked Howard to what extent civil procedure rules play a role in creating these problems, since those can be reformed with relative ease. Howard replied that the problem goes far beyond procedural rules. The roots extend much deeper into our legal philosophy.

For instance, there is a myth that the judiciary ought to be completely neutral, and must avoid making value judgments.

Howard argues that judges must be impartial, but that doesn’t mean they should be neutral; they should be much more assertive in the trial process. That’s because “the notion of letting everybody have their day in court has become letting everybody have their decade in court. It doesn’t matter whether the claim is valid or not.”

Law, he says, is not about avoiding value judgments. It’s about asserting them on behalf of society. When somebody sues for $54 million because they’ve lost a pair of pants, the court should be able to say, immediately, that “at best you’ve got a claim for $200 in small claims court. Case dismissed without prejudice to re-file in small claims.”

The pants case is an example of “process run amok.”

“When process is so neutral that judges sit on their hands and don’t make obvious value judgments that correspond to the reasonable values of the society around them, then justice basically favours whoever is in the wrong.”

A liable defendant can waste a court’s time advancing even the most absurd legal arguments ad infinitum all the way to the Supreme Court. Conversely, an “extortive plaintiff who thinks he can get a million dollars after finding a fly in the water” can pursue the claim for years, clogging up the system to the detriment of worthy plaintiffs that ought to get their just compensation.

Ultimately, Howard says that excessive neutrality fuels distrust in the judicial system, which in turn leads to paralysis and a loss of freedom.

Common Good conducted a survey which asked how many Americans would “trust the system of justice if someone brought a baseless claim against them.” Only 16% said they would trust the system. Freedom is lost because whenever people are dealing with others, they will have an overriding sense of caution – a fear of a claim being brought against them, whether it be legitimate or frivolous.

I also pondered to what extent law schools were to blame for the litigation culture. Howard agreed that law schools were certainly worthy of blame for pumping the system full of lawyers. More lawyers means more litigation. But he said they were also to blame for creating presumptions and frames of reference – “that people should be allowed to sue for anything and that’s the highest form of justice.”

I asked what Philip Howard thought of apology legislation, currently being touted in Ontario as a way to reduce litigation. His feeling was that apology legislation was a step in the right direction, but that the problem is so large that the impact will be minuscule.

The problem in America, he says, is not with doctors feeling like they will be found liable when they make a mistake and say sorry. It’s with doctors feeling like they’re going to be sued even when they’ve done nothing wrong at all.

Finally, I asked whether Howard had any specific solutions to help inject some common sense back into the legal system. His book is full of them, but he was willing to provide a couple of interesting examples.

For one, we no longer know what constitutes a “reasonable risk.” People have no guidance on whether their behaviour is reasonable, or else risky enough that it might draw litigation. Howard proposes risk commissions that could set clear standards for what constitutes reasonable risk. Such commissions could be set up in a wide range of fields, from medicine, to discipline, to environmental protection.

The whole idea of providing social services as a matter of right, he says, also needs to be reconsidered: where resources are scarce, we need to have officials with the authority to deny things in order to balance all interests. The problem with the current approach to social services, he says, is that it “encourages people to bang the table in order to get everything that they can just for themselves heedless of the effect on all others.”

Howard tells me that his organization, Common Good, has broad-based support for numerous proposals. He has built coalitions across the political spectrum for legal structural reform.

The appetite for change, he says, is definitely there.

Basically, not necessarily over-litigation, but the threat of litigation is killing western society.

What's interesting about this interview is that it's pointed out that in Ontario there is the Apology Act, 2009, which was devised to reduce lawsuits.
http://www.slaw.ca/2009/12/09/the-apology-act-2009-sorry-is-no-longer-the-hardest-word-to-say/


So what happened to a simple, "I'm sorry" and "Oh, that's alright. I was being unreasonable" in this case?


The article also mentions that a reasonable risk commission would help eliminate needless lawsuits.

Tell me, what's the 'reasonable risk' associated with her not getting her freakin' haircut done during her lunch hour?


PS. Imo the correct approach in dealing with her complaint is to first immediately assess that she's wasting everyone's time, then to slap an 'i have no common sense' sticker on her forehead, before handing her awarded damages: A link to a free flowbee from 1988 available on craigslist, so she doesn't have to seek out a bad haircut from a barbershop again. We need a GTFO commission an i should be in charge.
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#154 Langdon Algur

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Posted 16 November 2012 - 05:01 PM

The Charter applies to government breaches of a person's rights.  Commercial and private discrimination are covered by human rights codes


Good point but it looks like freedom of religion is also protected by the Ontario Human Rights Code. Although it seems to be more structured to someone being denied a service based on their relgion rather then protecting someone from denying a service to someone else based on the service providers relgion.  Gay marriage I agree is probably a fair analogy can a priest refuse to marry someone in Ontario based on the priests religious beliefs?  Or can a Catholic priest refuse to marry a couple of another religious belief?

Edited by Langdon Algur, 16 November 2012 - 05:02 PM.

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#155 unknown33429

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Posted 16 November 2012 - 05:09 PM

I already responded to this. "While I agree she was looking for a fight, in the progressive lands of Canada, she should not have been successful at finding one."

Also, why didn't Jews and blacks just build another golf course? Why didn't Rosa Parks just move to another seat on the bus? Change is made by those that look for fights, not docilely going with the flow. Look at Wetcoasters precedent on the first page about the same-sex couple being refused service. There are other bed and breakfast's they could have gone to, correct? Were they just attention whores or people sick of discrimination?


Different situation. You are asking someone to break their religious belief without providing a really good justification. I don't see malice behind his actions. There are 2 rights to balance here: one is the right to service without discrimination, and the other is to practice religious freedom.

Religious practice does have it's limits but I don't think this case goes to that limit. I'm basically an atheist, but we should strive to protect religious rights whenever it's reasonable.

The same sex couple issue seems analogous, but I don't think it is. The act (cutting hair) in this case is prohibited by his religion. I could be wrong but I don't think any Christian religious practice is refusing service to gay couples.

I'm trying to think of a similar situation but i'm having a hard time.

This is a bit of stretch but assuming prostitution was legal, you could not bring a human rights challenge a person refusing "service" based on your gender. There are limits to everything.
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Some fans overrate their players, and then there is this guy.

#156 canucks since 77

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Posted 16 November 2012 - 05:23 PM

Other than the law and human rights tribunal decisions on this issue?

The "law" was made to be broken. Just have to watch our federal govt. for proof. Frivolous suit is frivolous.
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#157 Wetcoaster

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Posted 16 November 2012 - 05:26 PM

Indeed, and you'd mentioned it before about him particularly stating it as "I can't because my religion doesn't allow me to" isn't in his favour as a business offering a service doesn't get to deny service for religious reasons, but common sense should also apply as to whether or not the lawsuit itself has merit or is frivolous. What if the court ruled he couldn't avoid cutting women's hair based on religion but he continued to refuse service for anything other than more traditional men's haircuts?

I've seen bad analogies for both sides, but here's one I find that might apply when considering the point about whether she could have realistically expected to get a hair cut involving modern techniques regardless of the length of her hair:

Someone posted a thread a while back about a 3 year old that was given a ticket for public urination after being seen urinating in his own yard. The officer who saw the child do it had a habit of parking at the end of the family's road (which was in a particularly rural area). The mother of course complained, thinking no one would reasonably expect a 3 year old to understand the need for a public urination law and how useful it is to write a ticket for such an act.

To apply that to the current topic, would a woman going into a barbershop which most often has the connotation of involving men's only services - except in cases where the barbershop is the only available service, or there is limited service, in an area with both men and women - be able to file a lawsuit for refusal of service without it being seen as purposeful and frivolous?

This is not a lawsuit in the usual sense of the term but rather a complaint made to the quasi-judicial tribunal (the Ontario Human Rights Commission) charged with with a broad mandate including enforcement of the the Ontario Human Rights Code.

As far as the public nature of the urination in the case that you cite, that depends upon the specific wording of the law and the manner in which the statute and /or courts define "public" for such a purpose. IIRC public in that scenario meant open to view of the public,

This issue is quite a bit more clear cut (pun intended).

Even if the barber sought to hide behind a more generic reason it would be available to the tribunal to infer a discriminatory intent.
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#158 Wetcoaster

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Posted 16 November 2012 - 06:14 PM

Good point but it looks like freedom of religion is also protected by the Ontario Human Rights Code. Although it seems to be more structured to someone being denied a service based on their relgion rather then protecting someone from denying a service to someone else based on the service providers relgion. Gay marriage I agree is probably a fair analogy can a priest refuse to marry someone in Ontario based on the priests religious beliefs? Or can a Catholic priest refuse to marry a couple of another religious belief?

Different issues.

The Civil Marriage Act and the Ontario Human Rights Code both contain specific exemptions for religious officials in a recognized Church to refuse to marry same sex couples without contravening the law - it is not there for barbers to refuse to cut a woman's hair.

However a civil Marriage Commissioner cannot refuse to marry a same sex couple on the basis of his religion - which would be more like the barber case. This wasraised after the Civil Marriage Act was enacted as decided by the Saskatchewan Court of Appeal and the SCOC did not grant leave to appeal. Per Justice Robert Richards supported by justices John Klebuc, Ralph Ottenbreit, Gene Ann Smith and William Vancise held that while requiring marriage commissioners to perform same-sex services may curtail their religious rights somewhat, it's justified, Richards wrote.

"The Supreme Court has repeatedly confirmed that freedom of religion is not absolute and that, in appropriate cases, it is subject to limitation," he said. "This is clearly one of those situations where religious freedom must yield to the larger public interest."


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#159 Wetcoaster

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Posted 16 November 2012 - 06:15 PM

The "law" was made to be broken. Just have to watch our federal govt. for proof. Frivolous suit is frivolous.

Nice homily but it is not applicable to this situation.
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#160 bjh

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Posted 16 November 2012 - 07:11 PM

A bogus analogy.

If you had asked for an item on the menu and your were refused service based upon on of the prohibited discriminatory grounds then you would have a complaint.


A haircut for women was "not on the menu" at this barber shop.

Is McDonalds discriminating against Prime Rib? Maybe we have a bigger issue here.

I don't understand your point.



I've been turned down myself when I was in my teens when I went to a barber shop. I had a full head of hockey hair and they said they don't cut long hair.

I started going to a new place at the time.


When do people start to be rational ?

Edited by bjh, 16 November 2012 - 07:14 PM.

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#161 canucklehead44

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Posted 16 November 2012 - 07:33 PM

Lol what an attention whore. There are so many other places she could go. It is not like he said no to her cause she is ugly, he had religious reasons. Do people not have anything better to do with their time? Talk about first world problems.
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#162 Wetcoaster

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Posted 16 November 2012 - 07:37 PM

A haircut for women was "not on the menu" at this barber shop.

Is McDonalds discriminating against Prime Rib? Maybe we have a bigger issue here.

I don't understand your point.



I've been turned down myself when I was in my teens when I went to a barber shop. I had a full head of hockey hair and they said they don't cut long hair.

I started going to a new place at the time.


When do people start to be rational ?

Haircuts were the service being offered and the refusal was based upon a prohibited ground.

In your case the ground would not have been prohibited.

Edited by Wetcoaster, 16 November 2012 - 07:38 PM.

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#163 bjh

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Posted 16 November 2012 - 08:05 PM

Haircuts were the service being offered and the refusal was based upon a prohibited ground.

In your case the ground would not have been prohibited.



So we force this man to act against his religious beliefs?

The same barber shop has already offered the woman a haircut from one of their employees who doesn't share the same religious beliefs and she turned them down.

If it's not about getting the service she wanted from the business, what is it about?
Does she want to force one man to cut her hair even though his religion condemns it?


At what point do you stop quoting the law and say "wait a minute this isn't right".

I'm not a religious person but I fail to see the big problem here. I think the problem is people making such a big deal out of a non-issue when there are much bigger fish to fry.

If there are competing rights in a situation such as this I would say it is prudent to walk down the street to another establishment.

Edited by bjh, 16 November 2012 - 08:07 PM.

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#164 Wetcoaster

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Posted 16 November 2012 - 08:10 PM

So we force this man to act against his religious beliefs?

The same barber shop has already offered the woman a haircut from one of their employees who doesn't share the same religious beliefs and she turned them down.

If it's not about getting the service she wanted from the business, what is it about?
Does she want to force one man to cut her hair even though his religion condemns it?


At what point do you stop quoting the law and say "wait a minute this isn't right".

I'm not a religious person but I fail to see the big problem here. I think the problem is people making such a big deal out of a non-issue when there are much bigger fish to fry.

Yes, that is what is required - you do not get to pick and choose customers when offering a public service based upon a prohibited ground.

"Sorry sir we do not cut the hair of Black people in this barbershop"... likely also a non-starter.
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#165 bjh

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Posted 16 November 2012 - 08:14 PM

Yes, that is what is required - you do not get to pick and choose customers when offering a public service based upon a prohibited ground.

"Sorry sir we do not cut the hair of Black people in this barbershop"... likely also a non-starter.


It's just not the same thing.

Sure my prior analogies in this thread were bogus, but so is that one.

There are differences in training for barbers and hair professionals in salons; it is common practice for barbers not to cater to women.


I guess this is another case where the law fails to bring justice to a specific scenario.


There is little use arguing because the law is indeed behind your position, but I do disagree with the way it serves this scenario. I see no issue with this man believing what he wishes to believe. We've already established this woman could have her haircut as the same establishment by somebody else or go elsewhere. There is of course no shortage of places to get your hair cut.

Edited by bjh, 16 November 2012 - 08:18 PM.

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#166 Newsflash

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Posted 16 November 2012 - 09:43 PM

Because it was a barbershop, my initial reaction was that she went there purposely to get some Muslims (or men) in trouble or start a lawsuit trying.

But then I looked at her picture...

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No wonder she went to a barbershop to get a haircut! That's a manlier haircut then most guys I know.
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Buddy I called this EXACT situtation on here two years ago and was flamed, so I guess I have a bit of hockey knowledge, not to mention the 4 years I played in the OHL idiot.


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#167 Wetcoaster

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Posted 16 November 2012 - 10:13 PM

It's just not the same thing.

Sure my prior analogies in this thread were bogus, but so is that one.

There are differences in training for barbers and hair professionals in salons; it is common practice for barbers not to cater to women.


I guess this is another case where the law fails to bring justice to a specific scenario.


There is little use arguing because the law is indeed behind your position, but I do disagree with the way it serves this scenario. I see no issue with this man believing what he wishes to believe. We've already established this woman could have her haircut as the same establishment by somebody else or go elsewhere. There is of course no shortage of places to get your hair cut.

The law provides that if there is a bona fide reason for refusal of service then it is a defence - a barber who will not cut a woman's hair on religious grounds is not such a reason.
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#168 DarthNinja

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Posted 16 November 2012 - 10:29 PM

Yes, that is what is required - you do not get to pick and choose customers when offering a public service based upon a prohibited ground.

"Sorry sir we do not cut the hair of Black people in this barbershop"... likely also a non-starter.


It is a non-starter because quite frankly it is a nonsensical comparison.
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Posted 16 November 2012 - 10:46 PM

And the Ontario Human Rights Code recognizes that:


Restriction of facilities by sex
20. (1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency.


Couldn't the Barber use this in his defense? If his religion claims in indecent to do so... ?


I really think this woman is the wrong here, even if she does have a legal bases for her suit. It's a tough call either way.

The best analogous situation like this I think, might be Obama forcing Christian health care providers to provide for contraception - which, ironically, I agree with. So yeah, I'm a bit torn.

Wetcoaster - question: is there any way for a business like this to be set up to only provide services to one gender without being prosecuted in a court/tribunal? I imagine actually putting up a sign that says "Men Only" would put them in more trouble.
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#170 DarthNinja

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Posted 16 November 2012 - 11:07 PM

Couldn't the Barber use this in his defense? If his religion claims in indecent to do so... ?


I really think this woman is the wrong here, even if she does have a legal bases for her suit. It's a tough call either way.

The best analogous situation like this I think, might be Obama forcing Christian health care providers to provide for contraception - which, ironically, I agree with. So yeah, I'm a bit torn.

Wetcoaster - question: is there any way for a business like this to be set up to only provide services to one gender without being prosecuted in a court/tribunal? I imagine actually putting up a sign that says "Men Only" would put them in more trouble.


In 2006 a man from right here in Vancouver lost a Human Rights case against a ladies-only gym. Furthermore, last year a man from St. John, NB was considering running a female-only taxi service (which actually exist in some parts of Europe, in fact I believe there are several companies in London competing with one another for the offering of this service).

Edited by DarthNinja_S19Blade, 16 November 2012 - 11:12 PM.

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#171 Dral

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Posted 16 November 2012 - 11:24 PM

In 2006 a man from right here in Vancouver lost a Human Rights case against a ladies-only gym. Furthermore, last year a man from St. John, NB was considering running a female-only taxi service (which actually exist in some parts of Europe, in fact I believe there are several companies in London competing with one another for the offering of this service).


Why would you need a ladies only taxi service? Are women in Europe forced to share cab rides with strange men? I don't generally have a problem with that, but it seems a little bizzar to me as most girls I know only get into cabs with guys that they know lol...
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#172 DarthNinja

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Posted 16 November 2012 - 11:32 PM

Why would you need a ladies only taxi service? Are women in Europe forced to share cab rides with strange men? I don't generally have a problem with that, but it seems a little bizzar to me as most girls I know only get into cabs with guys that they know lol...


I think it is more for women who commute alone or in groups of women. Some women do not like to be alone in a confined space with a man who is a stranger and some genuinely feel uncomfortable and unsafe in such situations. This in turn created a business opportunity that seems to be rather successful in some parts of Europe. Pink Ladies women-only taxi service in London has over 7000 registered members for example.
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#173 Dral

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Posted 16 November 2012 - 11:37 PM

I think it is more for women who commute alone or in groups of women. Some women do not like to be alone in a confined space with a man who is a stranger and some genuinely feel uncomfortable and unsafe in such situations. This in turn created a business opportunity that seems to be rather successful in some parts of Europe. Pink Ladies women-only taxi service in London has over 7000 registered members for example.


So you mean the taxi's are driven by women?

MIND = BLOWN!

Seriously though, it might seem a bit silly, but I have no problem with that. Just as I have no problem with men-only barber shops. If there are ample amounts of the same service that can be conveniently found elsewhere, I don't see the big deal. Maybe that way of thinking is a bit of a slippery slope, but I don't see how 1 Muslim barber, refusing to cut the hair of one woman because it goes against his religious beliefs, will send Canada back to the stone age.
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#174 Wetcoaster

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Posted 17 November 2012 - 12:58 AM

It is a non-starter because quite frankly it is a nonsensical comparison.

How is is it nonsensical? Both are prohibited grounds of discrimination.
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#175 Aleksandr Pistoletov

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Posted 17 November 2012 - 01:07 AM

How is is it nonsensical? Both are prohibited grounds of discrimination.

If someone is a barber and isn't properly trained to cut/style a woman's hair (especially long or long+complicated hair), the prohibition of refusal to cut a woman's hair is asinine. The prohibition itself or the interpretation is excessive and overreaching, thus nonsensical, and needs to be re-evaluated as to it's usefulness.

Edited by zaibatsu, 17 November 2012 - 01:09 AM.

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#176 bjh

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Posted 17 November 2012 - 08:00 AM

If someone is a barber and isn't properly trained to cut/style a woman's hair (especially long or long+complicated hair), the prohibition of refusal to cut a woman's hair is asinine. The prohibition itself or the interpretation is excessive and overreaching, thus nonsensical, and needs to be re-evaluated as to it's usefulness.


I've already tried the same appeal, if it isn't the letter of the law you won't draw a response from him.
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#177 Wetcoaster

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Posted 17 November 2012 - 10:38 AM

If someone is a barber and isn't properly trained to cut/style a woman's hair (especially long or long+complicated hair), the prohibition of refusal to cut a woman's hair is asinine. The prohibition itself or the interpretation is excessive and overreaching, thus nonsensical, and needs to be re-evaluated as to it's usefulness.

You are making assumptions that are not borne out by this case. The pictures of the woman do not show "especially long or long+complicated hair" and even if it were the case it is immaterial based on the particular facts..

The reason for the refusal to cut her hair by Omar Mahrouk said, was that as a Muslim he could not cut the hair of a woman who was not related to him on religious grounds. That prima facie is a breach of the Ontario Human Rights Code.

Edited by Wetcoaster, 17 November 2012 - 10:40 AM.

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#178 Aleksandr Pistoletov

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Posted 17 November 2012 - 12:29 PM

You are making assumptions that are not borne out by this case. The pictures of the woman do not show "especially long or long+complicated hair" and even if it were the case it is immaterial based on the particular facts..

The reason for the refusal to cut her hair by Omar Mahrouk said, was that as a Muslim he could not cut the hair of a woman who was not related to him on religious grounds. That prima facie is a breach of the Ontario Human Rights Code.

It needs to be changed.. badly. It's stupid as hell, and this level of political correctness that makes superior "right of service" superior to the "freedom of religion" right, is outraging. There are reasonable levels of limitations on a right, this is not one. All he has to do is say he doesn't cut women's hair on the grounds of not having the skill and it's suddenly different.. whether true or not.. that pretty much shows you how ridiculous this is. Pointless nitpicking garbage.

Edited by zaibatsu, 17 November 2012 - 12:37 PM.

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#179 Wetcoaster

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Posted 17 November 2012 - 02:37 PM

It needs to be changed.. badly. It's stupid as hell, and this level of political correctness that makes superior "right of service" superior to the "freedom of religion" right, is outraging. There are reasonable levels of limitations on a right, this is not one. All he has to do is say he doesn't cut women's hair on the grounds of not having the skill and it's suddenly different.. whether true or not.. that pretty much shows you how ridiculous this is. Pointless nitpicking garbage.

I disagree - nothing "politically correct" or "nitpicking garbage" about this. Your stereotyping and "reasoning" are precisely what is being targeted for change by the Ontario legislature - it is one of the major reasons for the OHRC being enacted in the first place.

We are not dealing with right of service but rather the right to equal service and service that does not contravene enumerated grounds of discrimination.

Like other humans rights legislation in other jurisdictions, the OHRC is given primacy over all other provincial laws - as sort of quasi-constitutional status that we first saw in the 1960 Diefenbaker Bill of Rights.

The Code Comes First

Number 1 - the Code has primacy. This means it is more important than most other laws. If there is a conflict between the Code and other provincial laws, you must follow the Code first, unless there is a specific exception. http://www.ohrc.on.c...ode-has-primacy


It is a fundamental and basic application of equality and the removal of discrimination based on clearly enumerated statutory grounds as intended by the legislation. It is clear that this sort of discrimination falls under the jurisdiction of the Tribunal:

The Code protects men and women from harassment and discrimination, including assumptions about their abilities that result from stereotypes about how men and women ”should” behave, dress or interact.

http://www.ohrc.on.c...ode_grounds/sex

The barber could try to say that but it would be untrue since he has already revealed his real reason. And even if true on its face it would be open to the Tribunal to find such a claim to constitute "constructive discrimination".



Constructive discrimination

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.


If one offers a commercial service in a public business then the law requires such services be offered equally to all in a non-discriminatory manner unless one can elucidate a bona fide and reasonable justification (such as public decency - judged by way of community standards and not by way of one's personal morals or beliefs or undue hardship - which does not seem applicable here). This one does not appear to qualify as such an exception however the final decision on the complaint rests with the Ontario Human Rights Commission. And the bona fide nature of the claimed defence to exceptional treatment is strictly interpreted:

11. (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.


Nor can the business get around the requirements by designating itself as a "men only" service as has been suggested:

13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.


Also note affirmative action programs are specifically allowed under the OHRC (as with the Charter of Rights and Freedoms) so the American claim of "reverse discrimination" is a non-starter as long as the special program meet the requirements set out.

14. (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.


Edited by Wetcoaster, 17 November 2012 - 02:42 PM.

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#180 DonLever

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Posted 17 November 2012 - 03:16 PM

Different issues.

The Civil Marriage Act and the Ontario Human Rights Code both contain specific exemptions for religious officials in a recognized Church to refuse to marry same sex couples without contravening the law - it is not there for barbers to refuse to cut a woman's hair.

However a civil Marriage Commissioner cannot refuse to marry a same sex couple on the basis of his religion - which would be more like the barber case. This wasraised after the Civil Marriage Act was enacted as decided by the Saskatchewan Court of Appeal and the SCOC did not grant leave to appeal. Per Justice Robert Richards supported by justices John Klebuc, Ralph Ottenbreit, Gene Ann Smith and William Vancise held that while requiring marriage commissioners to perform same-sex services may curtail their religious rights somewhat, it's justified, Richards wrote.



"The Supreme Court has repeatedly confirmed that freedom of religion is not absolute and that, in appropriate cases, it is subject to limitation," he said. "This is clearly one of those situations where religious freedom must yield to the larger public interest."


So you are saying that religious officials can refuse to marry a gay couple because they have an exemption under current law.
What happens if the human rights tribunal rules in favour of the barber? Will that create a precedent that says barbers can refuse to cut womens hair because of religious reasons? And is this one of the situations where religous freedom must yield to the public interest? Is refusing to cut a woman's hair on par with denying gay marriage? ie. is this really a frivlous challenge by the complainant since there are plenty of other men barbers who will cut womens hair. Why she choose this particular barber to go after is puzzling.

Edited by DonLever, 17 November 2012 - 03:20 PM.

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