Don Cherry, the Sexes and the Barking Frog 


May 2013

Employment and Labour Bulletin

Hockey mad Canadians are used to hearing Don "Grapes" Cherry, CBC's soon to be octogenarian hockey analyst, stir the pot with his often provocative comments. Recently, Cherry caused a media stir with his throwback to the 1970s observations that female reporters should not be allowed in the locker rooms of professional men's sports teams, because "they need to be respected" (the females that is). Not surprisingly Cherry's remarks resulted in significant blowback, since most of us had thought that the access issue is one that women's equality rights groups had long ago put to rest.

Ironically, Cherry's remarks came on the heels of a recent decision of the Ontario Human Rights Tribunal with a twist on the normal sex bias complaint: Maclean v The Barking Frog 2013 HRTO 630.

Kyle Maclean (no relation to Ron!), a resident of London, Ontario has also been focussed on equality rights as they pertain to the sexes, but in this instance it was his right to be treated equally to the females accompanying him to The Barking Frog bar. It seems that Maclean was greatly offended by the doorman at the bar who informed him that the cover charge for the males in his group was $20, while the females could enter for a $10 cover. In fact it was such an affront to Maclean's gender, in his view, that he filed a complaint of sex discrimination under the Ontario Human Rights Code.

When the case came on for summary hearing, Maclean argued that in charging men more than women, the bar was perpetuating a belief in society that men are "less worthy" than women. He also argued that charging a higher cover charge for men discourages them from entering the bar and that therefore men are excluded and/or made to feel unwelcome.

In his decision last month, Tribunal Chair Mark Hart rejected both arguments. In doing so, he distinguished "substantive equality" from "formal equality". He said:

               Formal equality essentially involves ensuring equal treatment for those in similar situations and different treatment for those in dissimilar situations – it is a concept that involves ‘treating likes alike'. On the other hand, substantive equality recognizes that not all differences and treatment are violations of equality rights. The Ontario Court of Appeal has held that, to establish discrimination under the Code, a claimant must demonstrate a distinction on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping: see Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593 at paras. 77 to 91.                     

Hart went on to find that the notion that charging a lower cover charge for women is demeaning to men as a gender does not bear scrutiny. Further, the argument that men are excluded or made to feel unwelcome because a bar charges less for a woman to enter is in fact contrary to reality. He said:

               …one of the primary functions of a ‘ladies night' is to try to increase the attendance of men because of the presence of more women. I fail to see how this strategy can be seen as substantive discrimination in the overall societal context, in light of the privileged position that men hold in our society.                   

This, Hart noted, was apparently a successful business strategy. In conclusion, Hart found that the practice did not amount to substantive discrimination against men and dismissed the application as having no reasonable prospect of success.

This decision clearly demonstrates that not all distinctions based on a prohibited ground engage the right to equal treatment in a substantive sense. Given the trivial nature of the complaint it also highlights, in this writer's view, that the Tribunal's jurisdictional inability to make an award of costs against a losing party is something that the legislature ought to rectify.

As a former bar owner himself (at least on television), I suspect that Don Cherry would agree. 

by David Elenbaas

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013