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Queen's University
 

 The McKinlay Case(1980)

What objective test is used to assess offensive representations?

Facts:

In February , 1980,  Mr. D.D. Cranfield, General Manager of Dial Agencies, wrote a public letter denouncing the Department of Social Services who had, in his opinion, failed to provide him with satisfactory service. The letter, written on Dial Agencies letterhead and posted in the window of the business, referred to a particularly frustrating interaction with the Minister's Assistant, and contained the following sentence: "After talking to this person I would highly recommend the government of this province hire the handicapped; the situation could only improve if they haired mentally retarded too. Or is this being done already?" Penny Mckinlay noticed the letter while walking outside Dial Agencies. As a person with epilepsy and a human rights activist for persons with disabilities, she complained to the commission that this letter was discriminatory. At the hearing, three witnesses for the respondent, all tenants of Dial Agencies, testified that they were not offended by the letter. McKinlay v. Cranfield and Dial Agencies (1980) 1 C.H.R.R. D/246)

Issue:

Is it possible to determine who or what determines if the letter is discriminatory?

Ruling:

Yes

Reasoning

In a case such as this, it is necessary to invoke the "average reasonable person test". The complainant was not an average reasonable person' as a human rights activist, she was highly attuned to issues of discrimination. The witnesses for the respondent were not average reasonable persons because they had a conflict of interest; they were satisfied clients of the respondent. With regret, the Board of Inquiry, who believed that DD Cranfield did not wish to discriminate against anybody in his letter, ruled that an "average reasonable person" would have found the statements about "the handicapped" and the "mentally retarded" to be offensive and dangerous, potentially waking latent prejudice in employers and landlords reading the letter.

See also the Abrams Case for its two part reasonable person test used to determine the discriminatory nature of newspaper articles.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000