Shakedown in St. Catharines

Remember the case of the women's health club owner who got in hot water with Ontario's "human rights" officials for barring a pre-op transexual from bringing her meat-and-two-veg to his table (so to speak)? Karen Selick writes in the National Post that "(w)ithin a week, two more 'transitioning' men tried to join the women's gym, even though there's a co-ed gym right next door"--which Selick describes as an obvious attempt at a "shakedown". Which put gym owner John Fulton in a bit of a quandary. Should he allow "transitionals" in the locker, and risk alienating that portion of his clientele that prefered a dickless environment, or should he fight the shakedown, and end up having to pay mucho dinero in legal bills? Sort of a lose-lose proposition, you might say. And, indeed, that's how it turned out. Fulton, writes Selick, is thousands of dollars in the hole, even though the transitional ended up dropping her complaint (and is not out of pocket by so much as a cent, since like all complainants, she gets a free ride courtesy the taxpayer), and even though Fulton is the antithesis of a bigot and has even been recognized "for community service for his long-standing support of AIDS Niagara." Can he recoup his losses? The 'roos say no, but Selick, a litigator, says not so fast:

...Fulton applied to the Human Rights Tribunal of Ontario for an award of costs to help pay his legal fees. He was turned down flat. The tribunal lacks the legal authority to award costs, it ruled.

True enough -- but things are not quite so simple. The tribunal lacks the authority only because it has never taken the trouble to avail itself of the power which the law grants to it of adopting rules relating to costs. The opportunity is there, under sections 17.1 and 25 of Ontario's Statutory Powers Procedures Act, but the tribunal has never bothered to set up a process for enabling it.

And indeed, why bother? The number of cases that end like Mr. Fulton's, with the accused walking away free from conviction or having to pay out a sizable amount of money, are very few indeed. Many cases settle at the mediation stage, when the nature of the shakedown process is first revealed. Targets are told, in essence, "You can settle for $25,000 now or pay $200,000 in legal fees later. Take your pick." Most pick settlement...

I don't know that's it's a question of "why bother?" I think, rather, that the tribunal's "not bothering" actually serves the shakedown process: if you know you can never recover your legal fees, you're more apt to submit to the shakedown at the outset.