Thursday, November 12, 2009

Ezra Says The Process Is The Punishment

Fulton Wins But Takes it up the Wazoo

John Fulton owns Downtown Health Club for Women and Fulton Fitness in St. Catherine's Ontario, and was taken to Kangaroo Court by person identifying himself/herself as Lisa MacDonald.

I wrote about his case back in May, and had some of this to say about it at the time:
Now, Mr. Fulton has been in the fitness business since 1982, and is a pretty open minded guy. He supports worthy causes regardless of sexuality, religion, skin color etc. He is basically a pretty smart business man, as well as a stand up guy.

So, a few years back, he was running a special for his clubs and a woman came to join, and as she was about to complete the membership, the discussion got around to the fact that she was in fact transgendered and also still had male genitalia. Mr. Fulton did not know how to handle this and asked for a pause to figure it out.

Well, the prospective client left in a Huff, or some other mode of transport, maybe a broom, and the legal letters started and then the Ontario Human Rights Commission got involved, when they received the complaint from her.
I rendered this impression of the Ontario human rights folks:
You know the Pit Bulls from the Ontario HRC. I am calling them that not because they are persistent, though they are. I am thinking of it more in the context that they come onto your property uninvited, bite you in the a??, then sh?t all over, and then leave you with a sore a??, and a mess to clean up.
Well, wasn't I just the little ole prophet. It seems that when Ms. Macdonald, the Complainant was asked for some hard data by way of medical documents, she withdrew her complaint. Could have saved a few years of Mr. Fulton's time if the Kangaroo Court had asked for this information earlier.

Kaye Joachim was responsible for this abomination from the Ontario HRT. Her final Decision is here. As the Decision reports:
The respondents sought their costs or other relief to compensate the respondents for the loss of dignity and stress associated with the accusation of discrimination and their time and money lost in preparing a defence. With respect to the injury to dignity, the respondents assert that they have been stigmatized as having discriminated against the applicant and have been deprived of the opportunity to have the discrimination allegations dismissed.
This all sounds very familiar, and true. Mr. Fulton is out maybe $100,000 or more fighting this travesty of justice, as reported in the St., Catherine's Standard here.

So, what did Member Joachim have to say for the public record:

The Tribunal has not made Rules regarding the awarding of costs and therefore, in my view, I have no authority to award costs: Dunn v United Transportation Union, Local 104.

The respondents asked, in the alternative, that I exercise my discretion to prevent the applicant’s abuse of this Tribunal’s process caused by the unexplained withdrawal, by making a monetary award against the applicant.

In my view, this may be simply another way to frame the request for costs and I am concerned about whether the Tribunal appropriately can avoid the lack of statutory authority to award costs by framing it as an order to prevent an abuse of process.

In any event, I do not find that the applicant has abused the process in any way. The applicant filed an allegation of discrimination based on a refusal or possibly an unwarranted delay in accepting her gym application. On the respondent’s own evidence, they did delay in accepting her application and in their view would have been justified in refusing the application. The Application therefore raised important and novel questions about the scope of the Code and its application to transgendered individuals.

Further, I find that the respondents may have caused unnecessary legal costs by raising spurious preliminary issues. They raised constitutional arguments which they subsequently abandoned. The respondents also sought extensive production of the applicant’s entire medical history, some of which I found to be completely irrelevant to the issues raised in the Application.

Under the law the Ontario HRT cannot award costs because they have no rules to award costs. That's the law, and Member Joachim's interpretation of it.

The Alternate Chair Ms. Joachim felt that this ridiculous, and frivolous complaint raised "important and novel questions about the scope of the Code and its application to transgendered individuals." You can read that to mean that Barb Hall is looking for the next fish to fry, and another new human right to create. Oh, and by the way, Mr. Fulton can go and pound salt.

Does this strike any of you out there as something that needs to be remedied?

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