Understanding the first wave of IHRA litigation, and what our Centre is doing about it
Summary: Foodbenders is a business in Toronto that vocally supports Palestinian rights. In 2020, it became the focal point of a wave of litigation that aims to use the IHRA definition of antisemitism to create a legal precedent that criticism of Zionism or Israeli policies towards Palestinians is discriminatory and therefore illegal.
If this litigation is successful, it may have negative effects on advocates in Canada. The Legal Centre for Palestine has been on the frontlines of this litigation. We share our analysis of the legal ramifications of this litigation and lessons activists can learn to mitigate legal risk.
In November 2021, the Ontario Court of Justice released its decision in R v 2404749 Ontario Ltd. [1] The case is the first of four pieces of litigation against a Toronto catering business commonly known as Foodbenders. All four cases will rely on the International Holocaust Remembrance Alliance’s (IHRA) definition of antisemitism to argue that, legally, opposition to Zionism is a form of antisemitism prohibited by law.
The Legal Centre for Palestine has been heavily involved in this precedent-setting litigation. This article briefly discusses the ramifications of the IHRA definition from a legal perspective, why the Foodbenders litigation will prove important for Palestinians and their allies in Canada, and what we at the Centre are doing about it.
Why is the IHRA definition concerning and how does it relate to the Foodbenders litigation?
The Centre stands against antisemitism in all its forms. However, being critical of Israel, its policies towards the Palestinians, or the wrongs that were committed in its establishment is not antisemitic. The issue with the IHRA definition is not that it attempts to provide a common understanding of what antisemitism is, but that it misses the mark by wrongly casting anything beyond soft or shallow criticism of Israel as racism. Several human rights organizations have therefore criticized the Ontario government’s recent adoption of the IHRA definition through an Order in Cabinet, [2] worried this adoption will curtail advocates’ freedom of speech and introduce a chilling effect into their work. [3]
While some argue that Ontario’s adoption of the IHRA definition is merely symbolic, several pro-Israel organizations are using it to argue that opposition to Israeli policies towards the Palestinians or to Zionism as a political ideology is discriminatory, and therefore unlawful. The Foodbenders litigation represents the first wave of legal action with that aim. In fact, the International Legal Forum, an Israel-based organization involved in the litigation against Foodbenders, has openly stated that it intends to use the Foodbenders cases “to utilize IHRA's working definition of antisemitism thus creating a precedent, which will then enable it to be used worldwide […].” [4]
If these attempts are successful, the Foodbenders litigation may very well set key precedents that render much of Palestinian advocacy in Canada illegal. Activists, academics, workers, and even business owners who speak up for Palestinian rights may therefore find themselves subject to various complaints and even quasi-criminal proceedings.
What is the Legal Centre for Palestine doing about this litigation?
The Legal Centre for Palestine has been heavily involved in this precedent-setting litigation. Stephen Ellis, one of the Centre’s co-founders, is also a leading member of our lawyers network. He agreed to act as counsel for Foodbenders on all four matters.
Thanks to Mr. Ellis’ tenacious advocacy, the Court ruled in favour of Foodbenders on the first case, R v 2404749 Ontario Ltd. Despite this legal victory, the Foodbenders litigation remains ongoing. The Court’s decision is being appealed, and Foodbenders is still facing three other related proceedings in both human rights tribunals and Ontario courts.
What happened in R v 2404749 Ontario Ltd?
Foodbenders is a catering business located in Toronto. The business’s owner, Ms. Kimberly Hawkins, is vocally critical of the Israeli government's policies with respect to the Palestinian people. In the summer of 2020, as Israel threatened to escalate it breaches of international norms by illegally annexing Palestinian lands, many supporters of Palestinian human rights took to social media. Among them was Ms. Hawkins, who used the hashtag #ZionistsNotWelcome in one of her posts, referring specifically to the political ideology that Israel uses to justify its policies towards the Palestinians.
B’nai Brith, the Centre for Israel and Jewish Affairs, and other pro-Israel organizations called on their supporters to pressure Ms. Hawkins. [5] Dr. Gordon Arbess visited Foodbenders’ Bloor Street location on July 5, 2020, accompanied by his son. He approached an employee at Foodbenders and said “we are Jewish and we believe in a two-state solution. Are we welcome here?”
According to testimony at trial, the employee responded “We believe in a one-state solution.” Arbess’s son then repeated the question “Am I allowed to shop here?”, to which the employee replied “Yes. Why wouldn’t you be? No one is stopping you from shopping at the store.” As the conversation became more heated, the employee became emotional, and Hawkins subsequently asked Arbess and his son to leave. Arbess then complained to the City of Toronto, alleging that Foodbenders discriminated against him based on his creed.
Under the Toronto Municipal Code, anyone operating a catering business must acquire a municipal license, a requirement of which is for the business to refrain from discriminating against any individual on the basis of creed. Those who violate this provision are liable to pay up to $50,000 in fines. [6] The City relied on the Code to ask the Court to revoke Foodbenders’ municipal license and impose a fine against the business.
To succeed, the City had to show that:
Foodbenders did indeed deny service to Arbess or his son,
Foodbenders did so because of the Arbess family is Jewish or because they support Zionism, and
If Foodbenders actions were because of the Arbess family'’s support of Zionism, then being opposed to Zionism is discriminatory on the basis of creed.
In other words, at the heart of the City’s argument was the claim that opposing Zionism as a political philosophy is a form of antisemitism. The Court never had to make any determination as to the accuracy of this claim. Instead, it found that there was simply no evidence that Foodbenders denied service to the Arbess family to begin with. Whether the issue will be reopened on appeal is not yet known.
What other litigation is ongoing?
Other individuals have launched complaints at the Human Rights Tribunal of Ontario against Foodbenders, relying on similar allegations. The Tribunal is the main forum in Ontario for hearing allegations of discrimination between members of the public. Its decisions are based on the Ontario Human Rights Code. The Code makes it unlawful to discriminate in certain areas against another person on the basis of race, ethnicity, or creed, among other things.
If these cases proceed to hearings at the Tribunal, it is very likely that the complainants will use the IHRA definition to argue that Ms. Hawkins’ opposition to Zionism or criticism of Israel amounts to antisemitism. As this article stressed earlier, some pro-Israel organizations have been open of their intention to make this argument. [7] If the Tribunal accepts this position, such a precedent will surely have a chilling effect for advocates of Palestinian rights across the country.
Even if Foodbenders wins, the cost of litigation is already high
Despite the fact that none of the cases against Foodbenders has been successful yet, the costs of the litigation have proven debilitating. Foodbenders permanently closed its doors in late 2020. No doubt, the hefty legal fees and drawn-out proceedings had much to do with this. Foodbenders estimates that its legal fees will be in the hundreds of thousands of dollars.
Foodbenders’ financial troubles speak to larger trends that advocates must remain mindful of. First, whether an activist is in the right or in the wrong, litigation against them can incur debilitating legal costs. These costs can be mitigated by ensuring that any case that is built up against an activist is so weak that a court or a tribunal will agree to dismiss it summarily — that is, without going to a hearing. Therefore, even if the IHRA litigation fails, advocates must remain attentive and strategic.
Second, the movement for Palestinian rights in Canada must work collectively and with its allies to develop a reliable and sustainable legal fund. Such a fund would be dedicated to (1) mitigating the legal fees that activists incur in defending against false claims, (2) initiating legal action against individuals or groups defaming activists for their work, and (3) pursuing litigation to address harmful policies like the IHRA definition.
The Legal Centre for Palestine is working to establish such a fund in collaboration with other organizations across the country. Those interested can donate here.
For those interested in assisting Foodbenders directly, you can donate funds here.
How can activists mitigate legal risks in the meantime?
As the Legal Centre for Palestine continues to work to ensure the safety and security of advocates for Palestinian rights, here are five things you can do now to minimize the risks associated with the IHRA definition:
1. Assume your speech will not be given the benefit of the doubt.
Be intentional in your speech. Use accurate and precise wording and avoid ambiguity. Remember to proactively distinguish between, on the one hand, criticism of Israel or Zionism and, on the other hand, Judaism and the Jewish people.
Remember to also take calculated risks and make strategic choices in what you say or advocate for. Even when you know you are right, the costs of legal action can be very high.
2. Learn to detect, and then avoid, true instances of antisemitism
The hardest cases to defend are the ones that mix legitimate criticism of Israel with speech that is actually antisemitic. In most scenarios, the individual making the statement does not know that some of what they are saying is crossing a line.
These mistakes can be addressed proactively. Take the time to learn about the history of antisemitism independently or with the support of Jewish members/allies of your group. Involve a variety of perspectives in reviewing your posts or in providing input into your organizing. And if you see a mistake within your group, use it as a chance to learn, educate, and grow.
3. Begin advocating against the IHRA definition now
Some jurisdictions in Canada have already adopted the IHRA definition of antisemitism. But many have not. Organize now and build relationships with the relevant decision makers in your jurisdiction. Be prepared to utilize your groups and network of advocates.
Regardless of your jurisdiction, the Legal Centre for Palestine will work in the coming months to analyze the constitutionality of using the IHRA definition to penalize advocates for Palestinian rights. We hope that the resource will be helpful in your advocacy. If you have a background in legal research or advocacy and would like to assist, connect with us through our website.
4. Help us develop a legal fund to mitigate the costs of litigation
The movement for Palestinian rights in Canada must work collectively and with its allies to develop a reliable and sustainable legal fund. Such a fund would be dedicated to (1) mitigating the legal fees that activists incur in defending against false claims, (2) initiating legal action against individuals or groups defaming activists for their work, and (3) pursuing strategic litigation.
The Legal Centre for Palestine is working to establish such a fund in collaboration with other organizations across the country. Those interested can donate here.
5. Join our mailing list and help us spread the word on social media
Register for regular updates on our mailing list to receive the latest legal insights, tools, and analysis. You can do so by filling the form here.
Citations
[1] Citation pending release of transcript.
[2] Order in Council 1450/2020.
[3] Canadians for Justice and Peace in the Middle East, “"The IHRA is designed to silence speech: CJPME submissions on Bill 168”, 27 October 2020, online at https://www.cjpme.org/submission_bill_168_ihra.
[4] International Legal Forum, “ILF files groundbreaking case in Toronto utilizing the IHRA definition”, online at https://www.ilfngo.org/foodbenders.
[5] B’nai Brith Canada, “Foodbenders - Sensible ways you can help”, 5 July 2020, online at https://www.bnaibrith.ca/foodbenders_how_to_help/; Centre for Jewish Israel Affairs, “Foodbenders & antisemitism”, 7 July 2020, online at https://www.cija.ca/foodbenders-and-antisemitism/.
[6] City of Toronto, Toronto Municipal Code (as at 16 July 2021), s 545-8.4.
[7] Above at note 4.
