As Canada continues to diversify, service providers continue to be faced with new challenges in their obligation to balance the needs and human rights of their customers.
Issue at Porter Airlines
This issue of competing human rights was recently highlighted in this story. A female passenger flying with Porter Airlines was asked by a flight attendant to move seats in order to accommodate a male passenger who, for religious reasons, refused to sit next to the woman because of her gender. The flight attendant on duty reportedly asked the female passenger to move instead of accommodating the male passenger by finding him a seat that would meet his religious needs.
Handling Competing Human Rights
In this situation, the competing rights protected by the Ontario Human Rights Code (“Code”) are the right to religious accommodation and the right to equal treatment by a service provider on the basis of sex or gender.
Porter seemingly prioritized the rights of the religious male passenger. However, the Human Rights Tribunal of Ontario (“Tribunal”) has been clear in its decisions that there is no hierarchy of rights.
In assessing competing rights claims, the Tribunal will determine whether a situation involves legitimate rights, how significant the interference with a right is, and whether there are solutions to protect both rights or come close.
In the Porter incident, the act of altering the female client’s service on the basis of her gender could constitute a breach of the Code if it resulted in injury to her dignity, self-worth or self-respect. For example, in this decision, the YMCA of Barrie provided different memberships and facilities to its female and male patrons. When two women filed complaints under the Code, the predecessor to the Tribunal found that they were entitled to $8,000 and $10,000 each.
If Porter was able to move the male passenger instead of the female passenger, but chose not to, it is likely that the Tribunal would find a breach of the woman’s human rights under the Code. Although, it is unlikely that the Tribunal would award as much as $8,000 in damages in this case.
If you have experienced discrimination or differential treatment because of your gender or religious needs or based on any other human rights ground, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).
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