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September 24, 2015

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

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 Millard & Company’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.)

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