HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:

Kyle Maclean

Applicant

-and-

The Barking Frog

Respondent

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DECISION

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Adjudicator: Mark Hart

Date: April 16, 2013

File Number: 2012-12519-I

Citation: 2013 HRTO 630

Indexed as: Maclean v. The Barking Frog

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APPEARANCES ) Kyle Maclean, Applicant ) Self-represented ) ) The Barking Frog, Respondent ) ) Cameron Shillington and Mike Van de Ven, Representative )





[1] Bars across Ontario (and indeed across Canada and parts of the United States) routinely hold what are commonly called “ladies’ nights”, where women are charged a lower cover charge or no cover charge to enter the bar or are given discounts on their drinks. This practice has been common in Ontario and elsewhere for decades.

[2] The facts of the case before me are relatively straightforward. The applicant is a young man who lives in London, Ontario. Late in the evening on September 6, 2012, he and some friends went to a local bar, The Barking Frog, and approached the doorman to inquire as to the cover charge. The applicant states that he was told that the cover was $20 for the men but only $10 for the women in the group. The applicant was affronted and, unwilling to part with the requisite $20, did not enter the bar.

[3] This is disputed by the respondent, who states that there was a flat cover charge of $5 for all customers that night. The respondent, however, does not dispute that its doorman may have offered the applicant and his friends a differential price in order to “jump the line”. In my view, this is a distinction without a difference. Whether offered as the regular cover charge or offered only as a special charge to “jump the line”, the dispute here focuses on the charging of a lower price for women in order to enter the bar. The question before me is whether this can amount to discrimination because of sex in violation of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[4] By Case Assessment Direction dated October 4, 2012, this matter was referred to a summary hearing to assess whether the applicant has a reasonable prospect of success in establishing that his rights under the Code were violated. A teleconference hearing to hear the parties’ oral submissions on this issue was held on February 6, 2013.

[5] The Code is aimed at achieving substantive equality as opposed to formal equality. 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 in 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.

[6] During the teleconference hearing, I explained the concept of substantive equality and asked to hear from the applicant about how charging a higher cover charge for men at a bar perpetuates prejudice and stereotyping against men.

[7] In response, the applicant argued that, by charging men twice what was being charged to women, the respondent was perpetuating a belief in society than men are less worthy than women. I do not accept that submission. There are many things that could be said about societal beliefs in Ontario, but the notion that men are less worthy than women is not among them. In fact, the entire history of gender discrimination in this province reveals the opposite, which is why women had to fight for basic equality through a right to vote and for equal pay for equal work, to give just two examples. While progress has been made, discrimination against women in our society still persists, including through under-representation of women in management and political positions of power. In my view, the notion that charging a lower cover charge for women somehow demeans men as a gender in the overall societal context does not bear scrutiny.

[8] The applicant next argued that charging a higher cover charge for men discourages men from entering the bar. The argument here is that men are excluded and/or made to feel unwelcome in the bar because women are charged less to enter. Quite the contrary. The purpose of “ladies’ nights” is to try to attract more women to enter a bar. But far from being instituted to exclude men, the attraction of more women into a bar is designed to increase overall attendance at the bar and the bar owner’s profit. This is apparently a successful business strategy that has been used by many in the business for many years. Far from operating to exclude or discourage men from entering a bar or to keep bars segregated between genders, 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.

[9] It may be that the applicant himself merely wished to attend the bar on the night in question with his friends and in this context the differential fee struck him as unfair. But whether or not something is unfair in some general sense does not mean it is discriminatory within the meaning and purpose of human rights legislation. In my view, in the overall societal and cultural context of Ontario, holding “ladies’ nights” or setting a lower cover charge for women by bars in Ontario cannot be found to substantively discriminate against men. As a result, I find that the Application has no reasonable prospect of success.

[10] For the foregoing reasons, the Application is dismissed.

Dated at Toronto, this 16th day of April, 2013.

“Signed by”

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Mark Hart

Vice-chair