A Toronto theatre that hosted a performance “exclusively for black audiences” is demanding that the Human Rights Tribunal of Ontario dismiss a complaint because the complainant is white and therefore has “no standing” to claim racial discrimination. 

The complaint was filed by former People’s Party of Canada candidate Robert Stewart earlier this year concerning “Black Out Nights” performances hosted by Theatre Passe Muraille. 

True North was provided with Theatre Passe Muraille’s response to the application. 

In his human rights complaint, Stewart argued that the theatre violated Section 13 and Section 1 of the Ontario Human Rights Code for admitting attendees based on their race, which in turn, caused him a “serious level of discomfort and discouragement.” 

In response to Stewart’s complaint, Theatre Passe Muraille’s lawyer, Morgan Sim, filed a response vehemently denying the allegations and asserting that the complainant, being white, is not entitled to any relief for racial discrimination. 

The theater’s legal argument draws on a previous Ontario human rights tribunal ruling, Lisikh v. Ontario (Education), which held that white individuals and those who are non-racialized do not have standing to claim racial discrimination.

“Here, the Applicant has only identified himself as ‘non-black’. To the extent that the Applicant is a white and non-racialized individual, he has no standing to allege racial discrimination in the context of theatre performances in Toronto,” wrote Sim. 

As it stands, the ruling cited by the theatre remains under appeal. The landmark human rights tribunal ruling caused a stir when first issued. It claimed that “an allegation of racial discrimination or discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized.”

“Vice-Chair Nichols concluded that having identified himself in his application as white, the applicant had no standing to allege racial discrimination in the context of that case,” explained Sim.

“Her analysis regarding the social construction of race suggests that white people may not have standing to claim discrimination on the basis of race given that “race” within the meaning of the Code describes the process of “racialization” which white people do not often experience in the context of a white-dominant culture.”

The theater contends that its “Black Out Nights” events have been conducted without incident and have received positive feedback from the communities they aim to serve. 

These performances typically represent only one show in a production’s run, with invitations extended to people who self-identify as Black, leaving it to audience members to decide if they meet the criteria for attendance, argued lawyers. 

According to the theatre’s submission, in cases where non-Black individuals wish to attend, Theatre Passe Muraille asserts that staff members are available to discuss the specific reasons the patron wanted to go.

According to executive director of Rights Probe and law professor at Queen’s University Bruce Pardy, the Code allows for a “special programs” loophole which enables discrimination in favour of certain groups. 

“Under the Ontario Human Rights Code, every person has a right to equal treatment without discrimination. However, the Code has a loophole for “special programs”, which discriminate in favour of the “correct” groups. The special programs exception is now turning the Code on its head, licensing discrimination instead of prohibiting it, especially against white people,” Pardy told True North. 

“The Tribunal recently said and the theatre is now arguing that white people are fair game for discrimination and have no right to complain about it. For Canadians who asumed that they had a right to equal treatment under the law, this may be a rude awakening. Equity makes the law unequal.”

As part of its argument, the theater’s lawyer also points out that there is no record of Stewart attempting to attend any of the “Black Out Nights” performances, raising questions about the legitimacy of his complaint, however, Stewart contends that he should not have to go through the indignity of buying a ticket and that he was explicitly barred from going by the theatre’s advertisement. 

The case is currently ongoing and the human rights tribunal has yet to make a decision on the claims.