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Focus: Transgender ruling includes surprising twist

|Written By Marg. Bruineman

A recent human rights decision has gained some attention, not only for awarding three transgender people damages but also because the tribunal found the discrimination had harmed a business owner even though she didn’t identify with that category.

The issue arose in adjudicator Dawn Kershaw’s May 30 decision Salsman v. London Sales Arena Corp. “It’s a very interesting element in Salsman that the highest damages were awarded to a person who was not transgendered,” says Deborah Howden, who practises employment and human rights law at Shibley Righton LLP.

Salsman involved three transgender women who were at the booth of a fourth person, Karen Clarke-McIlwain, at the Trails End market in London, Ont., owned by London Sales Arena Corp.

Clarke-McIlwain rented a booth at the Trails End market where she sold candles. Daniella Freeman was working at the booth on Sept. 10, 2011 and had brought along her friends, Judith Salsman and Falicity Chartrand, all of whom identify as transgender.

That night, the market manager called Clarke-McIlwain on behalf of the market’s owner, Edward Kikkert. The market management claimed the call was to relay a complaint about the burning of incense at the booth and that those attending at the booth were dressed scantily and inappropriately for the “family market.”

But the complainants said the market operators were uncomfortable with the presence of the trio because they were transgender. The respondent, according to Clarke-McIlwain, told her she wasn’t welcome at the market if she was going to have Salsman, Chartrand or Freeman operate the booth. She alleged the respondent gave her an ultimatum to either remove the workers or remove her booth from the market.

That phone call, Clarke-McIlwain testified, left her shocked and she ultimately decided she couldn’t maintain her booth at the market. She said it was a

catastrophic event in her life and felt she was in a situation where if she continued operating a booth there, she was making a biased decision against a friend.

The market owner, Kikkert, claimed the problem was they had lit incense and wore revealing clothing. Kikkert commented on a later radio program that his was a “family market” and referred to Clarke-McIlwain’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,” wrote in the decision.

Clarke-McIlwain’s successful claim related to her association with the three people who identified as transgender. Kershaw found she suffered injury resulting from the discrimination experienced by her friends.

She had received the phone call with the ultimatum and had to relay the information to her friends, one of whom was her roommate.

“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,” wrote Kershaw in the decision.

“This was a big step forward for the protection of trans persons’ rights in Ontario,” says Nicole Simes, an associate at the MacLeod Law Firm, of the inclusion of gender identity and the right to gender expression in the Ontario Human Rights Code two years ago.

“However, there have been very few decisions from the Human Rights Tribunal of Ontario interpreting and applying these new protections since then.”

As a result, she says any direction from the tribunal is positive but she found the general damages awarded in the decision to be on the low side.

Kershaw awarded Salsman and Chartrand $5,000. She found that Freeman suffered the greatest emotional harm and awarded her $10,000. The booth owner, Clarke-McIlwain, received $20,000 in damages.

That, says Simes, is lower than decisions made in the employment context where general damage awards currently range between $10,000 and $15,000 with the highest award reaching $45,000.

Simes refers to the impact the treatment had on one of the complainants, Freeman, who slowed her transition after the incident and nearly stopped working due to depression arising from the discrimination.

The reality of the tribunal, says Kumail Karimjee of Karimjee Greene LLP, is that it doesn’t typically hand out large damage awards.

Another difference Karimjee sees in this case, as opposed to a civil pleading, is the tribunal made the awards in the absence of medical evidence, something the tribunal remarked on.

“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.

  • Karen ClarkeMcIlwain
    If you study the case further, the amount of the award to Miss Freeman takes into consideration in her testimony that her transition was slowed. However, it does not take the word of Ms.Clarke-McIlwain that the incident triggered PTSD and a variety of conditions which resulted from the stress of losing her anchor location at the beginning of the peak revenue season for her business, thus bringing to a virtual standstill the income Ms.Clarke-McIlwain required to sustain the household as a single mother. Clearly, the court felt the delay in transition for a transgender individual did not require a note from a physician to substantiate Miss Freeman's claim. Yet, the pain and suffering the non-minority applicant suffered did. This was noted in the decision, the lack of such evidence affected the award given to Ms. Clarke-McIlwain. Why is it, when the integrity of her testimony was consistent and accepted, that her description of her suffering carried less weight than that of Miss Freeman?
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