Right to withhold service over political belief varies across Canada: legal expert


TORONTO — A Canadian restaurant owner inundated by angry reviews because her brunch spot bears a similar name to the U.S. eatery that refused to serve White House press secretary Sarah Huckabee Sanders says she knows firsthand the drawbacks of mixing politics with business.

Diane Smith says she feared she’d have to shut down her Collingwood, Ont., business because Sanders supporters appeared to mistake her eatery, The Olde Red Hen, for the one in Virginia called The Red Hen.

“I was devastated, I thought I’d have to close my doors, I was just beside myself,” she says of the online onslaught that began Friday night.

“I was so scared that I wasn’t going to be able to control that because we are a tourist town, we do have a lot of people come in and say, ‘Oh, I found you on Facebook,’ or, ‘I found you on Trip Advisor, you had great reviews.’ Those are new people that you want.”

Smith says she responds to every post that appears misdirected, and most have been deleted. Meanwhile, hundreds of supporters have added glowing reviews to restore her eatery to a near-five-star rating.

She adds that she’d never turn her restaurant into a political battleground, insisting everyone is entitled to good service, no matter their political stripe.

“If they want to eat, I’ve got a great breakfast, come on in and eat.”

Human rights lawyer Brian Smith says the legality of withholding service over politics is somewhat grey in Canada.

It largely depends on where you are, since the matter is overseen by provincial human rights commissions, says Smith, senior counsel with the legal services division at the federal Canadian Human Rights Commission.

Most provinces and territories protect political belief from discrimination, “but there may be an exception so it would be worth double-checking for anyone who finds themself in that position,” says Smith, noting there may be differences in the way political belief is defined and the law is interpreted.

Alberta, Ontario, Saskatchewan, and Nunavut don’t mention political belief as a prohibited ground for discrimination. In British Columbia, political belief is protected within the context of employment or unions but not in public service.

Although they often involved conflicts more religious in nature, Smith points to several cases involving Canadian businesses that refused to serve members of the LGBTQ community.

A more similar example might be the case of a Halifax bar and axe-throwing club called the Timber Lounge, which last summer ejected a group of so-called Proud Boys members over what its co-owner considered a “safety” concern.

Timber Lounge owner Darren Hudson says the bachelor party celebrants visited the bar in the days following a controversial encounter at an Indigenous protest in Halifax.

Five members of the group, who call themselves “Western chauvinists,” were relieved of their duties with the Royal Canadian Navy after disrupting a Mi’kmaq ceremony Day pending a military police investigation. They returned to their regular duties in August after a military investigation concluded no charges would be laid.

Nevertheless, Hudson says Indigenous staff members felt uneasy at the time about coaching the Proud Boys.

“It was a safety call for us. it wasn’t a political stance or statement or favouritism, it was just simply: These guys have a reputation, they’re local, we could see a potential issue with our staff being Indigenous and so we just said, ‘Hey, this is too hot to handle.'”

It came with a cost, he admits.

The Timber Lounge was flooded with angry social media messages, mostly from posters who appeared to be in the United States and had never been to the bar, says Hudson.

Hudson says the backlash only lasted a week, with the negative reviews eventually outnumbered by support from regulars and supporters.

Still, the nasty comments remain on the bar’s Facebook page.

“I would love to wipe those clean and see those be gone,” says Hudson. “There are still one-star reviews from somebody in Texas at his computer desk.”

If it seems that political standoffs are more heated in the United States, it could be because of increased media attention, and the different ways in which the average U.S. citizen views their constitutional rights, says Brian Smith.

“Certainly the U.S. does have kind of a unique relationship to freedom of expression and freedom of religion that’s a bit different from legally what we see in Canada,” he says.

“But certainly those protections exist here and we do see similar kinds of disagreements.”

Cassandra Szklarski, The Canadian Press