Can a Business Choose Its Clients Or Must It Serve Everybody?

Sep 24, 2015

It has now been almost twenty years since Ray Brillinger of the Canadian Lesbian and Gay Archives walked into a downtown Toronto print shop and was refused service.

The owner of the shop, Scott Brockie, objected to printing letterhead, envelopes and business cards for the archive because his religious beliefs forbade him from promoting the LGBT organization.

That was 1996. Brillinger filed a human rights complaint against Brockie and the print shop. In 1999, Brillinger and the archives were vindicated. The matter was appealed twice, landing at the Ontario Court of Appeal, primarily on the issue of costs, in 2004. (Brillinger’s lawyer, David Corbett, was a partner at Symes Street & Millard’s predecessor); in 2003 he was named a justice of the Ontario Superior Court.)

5347149787_7a0e8c3991_zIt was, at the time, a controversial case, and it divided even members of the LGBT community. Some feared that a decision in the archives’ favour could pave the way to human rights complaints against LGBT businesses which choose to serve exclusively LGBT patrons. Do businesses not have the freedom to choose their clients?

Section 1 of the Ontario Human Rights Code remains at the heart of anti-discrimination law in the province. It protects people from discrimination in the provision of “goods, services and facilities”, a broad category which includes commercial transactions such as printing services.

Set against that are two religious exemptions. Section 18 allows for religious and other groups to discriminate in restricting its membership. And section 18.1 allows for discrimination by marriage officiants with respect to marriage ceremonies. In general, the tribunal must also make its decisions in a way that takes into account the respondent’s Charter right to freedom of religion.

The religious exemptions don’t apply to most cases where discrimination is alleged in the provision of commercial services like those of a print shop.

If your business is open to the public, you generally have to serve everyone who walks in the door. Because of the Human Rights Code, you’re not allowed to refuse to serve someone because of their race, ethnic origin, gender or sexual orientation.

That said, the Human Rights Code does not prevent a business from declining to serve a client for non-discriminatory reasons. For example, a restaurant can turn you away because it is full, or because you’ve failed to make a reservation.

The issue of balancing religious freedom and LGBT equality is far from settled – and it’s set to take centre stage again, thanks to an evangelical school in Langley, BC. Trinity Western University faces resistance to receiving accreditation for a proposed new law school. The reason for the resistance is that Trinity Western requires students and staff to sign a pledge which forbids them from engaging in same-sex intimacy. Legal proceedings were initiated in three jurisdictions — and many lawyers predict that at least one of these cases is destined for the Supreme Court of Canada.

(Note: photo by Daniel Ansel Tingcungco, used under creative commons licence, is not a picture of Brockie’s facility. Used for illustration only.)

Marcus McCann speaks to the Class of ’75 about tuition and debt

Sep 13, 2015

1280px-University_of_toronto_law_falconerA version of this talk was delivered to the University of Toronto Faculty of Law Class of 1975 Reunion on September 9, 2015 by Symes Street & Millard Associate Marcus McCann.


I’ll keep this brief, because the message from the future is a bit of a downer.

Tonight is rightly about celebrating your talents and gifts. But as you think about all of your wonderful, hard fought accomplishments, I hope you will take what I say and think about what choices brought you to this point, and what gave you the freedom to make them.

I grew up in a modest income family in working class Hamilton. I financed law school through government student loans, faculty bursaries, and commercial loans. The faculty paid some of the interest on the commercial loans while I was in school.

That’s how most law students at U of T cobble together tuition and living expenses. Students now qualify for $150,000 lines of credit, plus about $35,000 in government loans.

It’s impossible to talk about financial aid without talking about tuition. It’s gone up a staggering 800 percent since 1997. It’s now more than $30,000 a year, the highest in the country.

Financial aid has failed to keep pace. The faculty used to report on the percentage of students who got full bursaries. Now, none do. While I was in school, they were still reporting the number of students who qualified for bursaries equal to half of their tuition. The last year they reported it, the number was two percent. Now, it’s fallen off their reports.

This can only affect the make-up of who goes to law school. The number of racialized students at U of T law has been stagnant in recent years. And the faculty doesn’t overlay real socioeconomic data onto this stat. So we have no idea whether this stat actually means that people from diverse economic backgrounds are coming. But anecdotally, my sense is that they are not.

High tuition and inadequate financial aid contributes to a tidal pull away from people-focussed work, away from public interest, away from Crown and government work, away from work at small firms.

It’s no wonder that my graduating class – I’m very proud of this – protested our own graduation.

I want to thank you for the care and concern you’re showing for students in situations that are like mine. It will mean a lot to them if the faculty, with your help, can fix the growing gap between tuition and financial aid. I understand Dean Iacobucci gave you a very soft sell on fundraising for financial aid. I’m not here to ask you for money.

But when the faculty does roll out their financial aid fundraising plan, which I imagine is coming, I encourage you to give. And when you do, I encourage you to ask lots of questions – to be your lawyerly selves, to be inquisitive, even interrogative. Is the current state of affairs a problem? What mistakes were made along the way? How do we avoid making them again?

I’d love to talk with you about this more. I’ll stick around tonight, and you can always find me online. Thanks again. You are and continue to be a remarkable class.

Photo credit: Wiki commons

Uber: What the relationship between Uber, taxi companies and their drivers can teach us about employment law

Sep 08, 2015


Guest post by Emily Burke

The California Labour Commission recently deemed at least one Uber driver to be legally considered an employee rather than an independent contractor, despite Uber’s insistence that their drivers are the latter. Though Uber drivers pick up passengers and are paid to take them to their destination, the company argues it is not a taxi company but that in fact it is a technology platform that responds to demand by matching drivers with passengers. Uber’s business model was designed with the intention to treat the drivers as independent contractors because having employees means taking on hefty costs and responsibilities.

On September 1, 2015, a California judge certified a class action by current and former drivers against Uber, which suggests that the issue is not going away any time soon. The expense is significant enough that if California’s findings were to ripple across other cities and outposts of the company, Uber’s entire profit structure could be compromised and prices may rise for customers.

Though this would be a blow to Uber users everywhere, employment laws are in place to maintain a fair relationship between employer and employee. For example, Canadian employment law states that just because a company refers to a person as a contractor rather than an employee, the courts may find otherwise.

“In Canada, decision makers often look beyond the paperwork to see if someone is an employee,” says Marcus McCann, associate lawyer at Symes Street & Millard. Courts in this country are careful to take a broad look at the relationship between the employer and the worker. “Important factors include, who sets the hours of work, who owns the tools, whether the work is performed on premises, whether the employee/contractor has other clients.”

As for Uber, it’s not cut and dry, explains McCann. “The cars are owned by the drivers, and they don’t have set hours of work. They accept the risk of not getting fares, and the potential to earn a profit. Those all suggest a contractor relationship. On the other hand, the tariffs are set by Uber, there are Uber policies which govern the drivers’ working lives, and many drivers have no other “clients” – their only contract is with Uber. That sounds like employment.”

To complicate matters further, Uber is in hot water already in Toronto where 36 of its UberX drivers have been fined for operating a transportation vehicle without a license. Also, City Councillor Jim Karygiannis called out Uber drivers for not charging HST. If indeed they are independent contractors, they need to be making federal HST payments, argues Karygiannis. The Uber case and the way that it evolves in the comings months and years will be one to watch. Any company or contractor that sees similar holes, trends and grey areas in its own employment relationships will want to not only follow Uber’s story, but also consider consulting legal counsel to be clear on where they stand.

“The bottom line is that, if you signed a contractor agreement, that’s not the end of the story,” says McCann. “As a result, employers may want to have a chat with their lawyer before imposing discipline or dismissing the worker. And for workers – especially long-term workers – the takeaway is that they may be entitled to more than they think, especially at the end of the relationship.”

Symes Street & Millard specializes in employment law and has represented both employers and employees in many legal cases.

[Photocredit: SAiM, used under a Creative Commons licence]

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