Windsor business fined $35,000 for 'discrimination and reprisal' of Indigenous transgender woman

Mad Wax hair removal on Walker Road on May 11, 2018. (Ricardo Veneza / CTV Windsor)

The Human Rights Tribunal of Ontario has agreed Mad Wax Windsor Inc. “profoundly affected” a transgender woman for failing to provide a leg wax and taking the story to the media.

Warning: contains graphic content.  

The incident

According to the HRTO decision, on March 17, 2018, A.B. called the waxing salon to book a leg wax and specifically asked if trans women were welcome.

The call-taker initially said, “no” then, “I don’t know”, before referring the call to her boss. The employee told the tribunal she did not know what trans meant.

In a subsequent call, HRTO Adjudicator Karen Dawson found A.B. was “repeatedly misgendered” by the respondent, Jason Carruthers according to the HRTO decision.

Dawson found Carruthers asked about A.B.’s genitalia because he assumed she wanted a Brazilian wax and he told her he did not have any staff who performed male waxing.

Carruthers denied A.B.’s allegation that he said he could not provide service to “someone like you”.

A.B. told Carruthers it was a spas’ responsibility to provide services to any client regardless of gender.

“I prefer the evidence of the applicant,” Dawson wrote. “The applicant’s (A.B.) evidence about the telephone call was clear and consistent throughout her testimony. By contrast, as noted above, the individual respondent’s (Carruthers) evidence changed on key points when challenged on cross-examination.”

Going public

After the second phone call, A.B. posted a video on her employer’s private Facebook page about her interaction with Mad Wax. At the time, she was employed by an agency that supports the local transgender community.

“(A,B.) said she posted the video to advise her organization’s clients that they should not seek waxing services from Mad Wax as they were not willing to provide them,” Dawson wrote.

Within an hour, A.B. removed the video from social media.

Carruthers told the HRTO he did not see the video, but a stranger alerted him to its allegations of “discrimination and poor business practices”.

As a result, Carruthers reached out to three unidentified Windsor media outlets to “set the record straight” and he provided reporters with A.B.’s name and contact information.

Although no stories were published at that time, after A.B. filed her HRTO application, Carruthers issued a news release and included her contact information again.

Carruthers told the HRTO he “saw this was becoming a big issue again,” so he went to the media to “get both sides out there.”

A.B. told the tribunal the media attention “opened up a non-consensual public conversation as to the status of her physical transition”. As a result, A.B. began to reuse “substances to cope”, lost her job, considered suicide, got divorced and moved seven hours away from Windsor.

“She said she felt unsafe in public spaces,” Dawson wrote.

The penalty

Dawson ordered Carruthers to pay A.B. $35,000 in damages, although she had asked for $50,000.

“I find that the respondents’ actions struck at the core of the applicant’s identity and in a very public way,” Dawson wrote. “Accordingly, a significant general damages award is required to place her in the position she would have been in absent the discrimination and reprisal of the respondents.”

Carruthers must also pay pre-judgment interest back to March 2018 and post-judgment interest if the fine is not paid by June 23, 2024.

He and his staff must also take human rights training and provide proof of completion by June 23.

Possible appeal

Carruthers has launched a crowd-funding website to pay for his legal defence and a “judicial review” of the HRTO ruling.

“This ruling is unjust and proves that any small business owner can be accused of discrimination,” the website reads. “This ruling has placed an immense emotional and financial burden on me and my family as we continue the legal fight.”

A message on the Mad Wax voicemail indicates the salon is closed until early July.

The reaction

“She was ecstatic,” A.B.’s lawyer Megan Evans Maxwell told CTV News Tuesday.

“I think that the decision does bring her peace, I know, but it also really shows the reality of life for trans people in Ontario that are just trying to find their space in their community can be a very difficult process.”

Evans Maxwell, who works at the Human Rights Legal Support Center, says A.B. would not have filed the application to the tribunal were it not for the public shaming she endured.

“One shouldn't be exposed to a trial by media when they go in to get something as routine for most people, as a leg wax,” said Evans Maxwell. “She went from being honoured as a very hard working member of her community, to being vilified online and being exposed to misgendering comments and to misinformation about herself in the media.”

Judicial review

According to documents obtained by CTV News, Carruthers has asked for a judicial review of Dawson’s decision.

Lawyer Ray Colautti calls it “deeply flawed”.

Colautti intends to argue Dawson didn’t take into account several factors;

*it was not clear to Carruthers what service A.B. was requesting

* she alluded to “some women have penises” first before Carruthers mentioned genitalia

*Adjudicator Dawson didn’t ask for documentary proof of the counselling A.B. alleges to have received for her pain and trauma.

Colautti is also arguing Dawson failed to take into account A.B.’s identity was in the HRTO filing which is publicly available, and not in Carruthers’ news release. A news release they say was never publicly disseminated.

He notes as well A.B.’s name was not included in any local media coverage of the HRTO filing .

According to his judicial review filing, Mad Wax was dissolved as a business in November 2018, nine months after the alleged incident with A.B.

As of Tuesday afternoon, Evans Maxwell had yet to be served with notice of judicial review.