Written by: Irvin Schein.
A news story last week involved a woman who filed a Human Rights complaint against a barber who refused to cut her hair. It appears that the barber was a Muslim and declined the woman’s business on religious grounds.
The National Post reported the story in terms of this having been a clash of rights. Soon afterwards, George Jonas wrote a commentary in the National Post criticizing the choice of words and insisting that this was not a matter of competing “rights” at all.
Of course, Mr. Jonas is absolutely right. While the barber had every right to decline the woman’s request for a hair cut, the woman had absolutely no right to require that particular barber to cut her hair or to do anything else. The barber could have declined the business on religious grounds or for any other reason if he chose to do so. The woman could have gone anywhere else she wanted to do for her haircut (and presumably did). Instead, she has filed a complaint with the Human Rights Tribunal of Ontario.
I have only had limited experience with that distinguished institution and its predecessor, the Ontario Human Rights Commission. Unfortunately, my experience tells me that this woman is going to have little difficulty making this poor barber’s life extremely miserable.
In the normal course of adversarial proceedings in Ontario, both parties to a conflict have an equal right to put their positions forward and to test each other’s cases in a full and complete way. In a human rights proceeding? Not so much. From my experience, at least at the lower levels, human rights officers behave in a manner similar to the so-called language police in Quebec (I’m from Montreal so I know what I’m talking about) – a group of petty bureaucrats, likely unable to make a living doing anything else, who make it their business to harass shopkeepers whose exterior signage offends Quebec’s language legislation as interpreted by these low level functionaries.
My last appearance before a Human Rights Commission representative took place several years ago. I acted for a landlord against a tenant who had launched a complaint, suggesting that the reason that he had been thrown out of his apartment had nothing to do with the fact that he hadn’t paid rent since forever, but rather had to do with the colour of his skin.
At the initial appearance, I appeared with my client, and the tenant appeared with his lawyer. The tenant was provided with a proper opportunity to put his evidence forward, and he did so. At that point, the presiding official (who if I recall correctly, was a young female who appeared to be approximately 12 years old) told me that I did not have a right of cross-examination. Instead, I could “cross question”. I took this to mean that while I could ask questions, I would not be entitled to actually explore the witness’ evidence in any meaningful way so as to challenge his credibility.
To add insult to injury, this young lady instructed me to hand over to her my list of questions for the witness. I looked at her in disbelief. Sensing, correctly, that she was about to receive some push back from me, she volunteered that she needed to review my questions to make sure that they were “o.k.”. When I told her that I did not have questions written out but only notes of a general nature, she purported to instruct me to write my questions out so that she could read them. She generously gave me about 5 minutes to do so.
The complainant’s lawyer sat across the table from me with a smirk on his face. Only for that reason, I asked the young lady to confirm that she would be requiring opposing counsel to do the same after my client had testified. She indicated that she had no intention whatsoever of doing so. Apparently, this special treatment is reserved for lawyers acting for responding parties only.
Given the kangaroo court-type atmosphere in this proceeding, I should not have been surprised at that answer (although I was). After taking several minutes to ensure that any legible words on the page in front of me had been made illegible, I handed her my notes and sat back. She looked at my chicken-scratching, which even a pharmacist would have had difficulty reading, and solemnly handed them back to me indicating that they were satisfactory. I could barely stop myself from laughing in her face.
In any event, this was a silly case, and my “cross questioning” of the complainant must have persuaded him of that fact because the matter never proceeded any further. The experience, however, is not one which I am likely to forget any time soon. When we all come to our senses and make it our business to ensure that people cannot drag helpless barbers into legal proceedings for idiotic reasons, I will be the first to stand up and cheer.