The CCD has intervened in landmark disability rights cases before the Supreme Court of Canada including:

Andrews v Law Society of British Columbia, [1989] 1 SCR 143, establishing the discrimination analysis under section 15 of the Charter;

Battlefords and District Co-operative Ltd v Gibbs, [1996] 3 SCR 566, involving discrimination against employees with mental health disabilities under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.l;

Brant County Board of Education v Eaton [1997] 1 SCR 241, a section 15 Charter analysis with respect to integrated education for students with disabilities;

Eldridge v BC (AG), [1997] 3 SCR 624, involving the equality rights of a person with a hearing disability to sign language interpretation to ensure access to health care services;

BC Superintendent of Motor Vehicles v British Columbia Council of Human Rights, [1999] 3 SCR 868, a case involving the application of the duty to accommodate in the issuance of a driver’s license to a person with a disability, under the under the British Columbia Human Rights Code, RSBC 1996,c.210

Frederick Moore on behalf of Jeffrey P Moore v Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education et al, [2012] 3 SCR 360, where the court determined that students with disabilities who require accommodation had a right to equal access to public education services;

Carter v Canada (Attorney General), 2015 1 SCR 331, a section 7 Charter challenge to ss 241 and 14 of the Criminal Code prohibiting physician assisted dying in Canada.

The CCD was the initiating party in Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15 (VIA Rail) regarding the accessibility of Via Rail’s train.

• Stewart v Elk Valley Coal Corp, 2017 SCC 30, involving the termination of a person with an addiction disability in a safety sensitive workplace.

British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27, in which CCD was granted public interest standing to bring a constitutional challenge to mental health legislation in British Columbia.

CCD advocated for an approach to understanding disability based on the social model of disability as opposed to the medical model.  The medical model viewed disability as an abnormality or flaw in the person that could be treated or cured. The social model provides that disability is not due to an inherent deficiency in the individual, but rather due to society’s creation of structural and negative attitudinal barriers that results in the disability. 

A person with a disability may have no limitations in everyday activities other than those created by stereotypes or the lack of accommodation.  The social model of disability has been adopted by the Supreme Court of Canada in [Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v Boisbriand (City), [2000] 1 SCR 665 (Mercier), par 77-84, Eaton, par. 67).

CCD has been at the forefront of transformative change in the advancement of the Charter rights and human rights of persons with disabilities across Canada and in respect of a diverse range of disabilities.
 

Some Case Summaries

British Columbia (Attorney General) versus CCD, 2022 SCC 27

What is this Case About?

The Council of Canadians with Disabilities (CCD) along with two individuals brought a legal challenge to the mental health laws in British Columbia (BC).  These laws permit persons with mental health disabilities who are being held involuntarily to be treated by force with psychiatric medication without their consent (even if capable of making their own treatment decisions). The law also removes their right to a substitute decision-maker, like a representative or family member, to give or refuse consent on their behalf.  CCD started the case alongside two individuals who were directly affected by these mental health laws. When these individuals no longer wished to continue the case, CCD was left as the sole litigant (person or party involved in a lawsuit). 

At issue in the appeal before the Supreme Court, was whether CCD had public interest standing to continue the legal case on its own without a directly affected person as a co-litigant.

Outcome

The Supreme Court of Canada granted public interest standing to the CCD to continue the legal challenge to the BC mental health laws. 

Why is this Case Important for Persons with Disabilities?

“Public interest standing” is a very important litigation tool for marginalized communities, including persons with disabilities who face social, economic and legal barriers accessing justice. Public interest standing allows public interest organizations, like the CCD, to bring cases of public interest before the courts even though they are not directly impacted, and their own rights are not affected.

In its decision, the Court determined that it is not necessary for an individual who is directly affected to participate when granting a public interest organization “public interest standing.” The Court recognized the barriers faced by individuals with mental health disabilities impacted by the mental health laws being challenged in BC, in pursuing a long and complicated court case.

Specifically, the Court noted that such individuals may experience challenges bringing “lengthy, complex litigation and to stay its course. Some may fear reprisals from health care providers who, under the legislation at issue, control their psychiatric treatment. Or they may hesitate to expose themselves to the unfortunate stigma that can accompany public disclosure of their private health information. CCD taking on the role as plaintiff in this litigation alleviates those significant barriers”. 

By granting CCD public interest standing in its legal challenge to the BC mental health laws, the Court reaffirmed the legal test for public interest standing set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 with some important clarifications.

Read the Decision: British Columbia (Attorney General) v. Council of Canadians with Disabilities - SCC Cases (lexum.com)

Disability Rights Coalition versus Nova Scotia (Attorney General), 2021 NSCA 70

What is this Case About?

This case related to a human rights complaint filed by three individuals with disabilities in Nova Scotia. The three individuals were all held in institutions (including hospitals), involuntarily and contrary to medical advice, for a long period of time. The reason they were in an institution was because the Province of Nova Scotia did not provide them the supports and services they needed to live in the community. A separate human rights complaint was also filed by the Disability Rights Coalition relating to the systemic nature of this issue, affecting many more people with disabilities. The Human Rights Board of Inquiry found that the service providers discriminated against the three individuals based on their mental and physical disability. The Board did not agree that the discrimination was “systemic,” affecting many more people.

CCD joined the Canadian Association for Community Living and People First of Canada to form a Coalition to bring their case to the Nova Scotia Court of Appeal. This Disability Rights Coalition argued that the province discriminated, not just against the three individuals, but systemically discriminated against all people with disabilities in Nova Scotia who have been denied supports and services in order to live in the community.

The Coalition further advocated for the implementation of Article 19, of the UN Convention on the Rights of Persons with Disabilities, which focuses on the rights of persons with disability to live independently and be included in the community. 

Outcome

The Nova Scotia Court of Appeal ruled that the Disability Rights Coalition had established on a prima facie basis (see “Definitions” above) that Nova Scotia’s institutionalization practices had systemically discriminated against persons with disabilities by denying them supports and services to live in the community.

Why is this Case Important for Persons with Disabilities?

This case reaffirms the principle of respect for the individual autonomy of persons with disabilities.  The Court’s finding of systemic discrimination is important for persons with disabilities who are often subjected to systems that operate to create barriers to their full inclusion.  In particular, persons with disabilities have been historically institutionalized without the availability of accessible services and supports to live independently in the community, including proper income and home supports and affordable and accessible housing units.  The Nova Scotia Court of Appeal sent a strong message to governments across Canada that when their social benefit programs must consider the impacts and distinct needs of persons with disabilities. Read more.

Read the Decision: 2021 NSCA 70 (CanLII) | Disability Rights Coalition v. Nova Scotia (Attorney General) | CanLII

SA versus Metro Vancouver Housing Corp, 2019 SCC 4

What is this Case About?

The litigant, called SA, is a person with a disability who lives in subsidized housing and received a rent subsidy.  When her father died, SA became the beneficiary of a Henson Trust, which protects the assets of a person living with a disability and their right to collect government benefits, regardless of those assets. An “asset” is property that can actually be used to pay for debts or other obligations, like monthly rent. 

A Henson Trust is designed so that families can set aside money for persons with disabilities without affecting their entitlement to social assistance benefits. A Henson Trust is also known as an absolute discretionary trust, which is structured so that the money is not in the control of the person with a disability. This means that the property or value of the trust is not available to them and cannot count as an asset when determining eligibility for social programs.

SA’s housing company wanted to know the value of SA’s Henson Trust, so it could take this asset into account when deciding if SA would continue to receive a rent subsidy. This case raises the issue of whether the Henson Trust, which is supposed to be an absolute discretionary trust, can be considered an asset in determining eligibility for a rental housing subsidy. 

Outcome

The Supreme Court of Canada ruled that the value of the Henson Trust is not relevant when deciding whether the litigant was eligible to receive a rent subsidy. Since the litigant did not have access to the assets in a Henson Trust, she could not use it to pay rent.

The Supreme Court of Canada held that, because a person with a disability has no enforceable right to receive any of the trust’s income or capital, an interest in a Henson trust is not an asset that can be considered when determining eligibility for a rent subsidy. The Supreme Court held that the trustee had the absolute discretion to decide whether, how much and when payments out of the trust would be available to the beneficiary (person with a disability).  Due to this feature of a Henson Trust, SA had “no enforceable right to receive any of the trust’s income or capital. Her interest in the trust is akin to a mere hope that some or all of its property will be distributed to her at some point in the future”.

Why is this Case is Important for Persons with Disabilities?

Many persons with disabilities rely on Henson Trusts to help to pay for disability-related expenses or an enhanced quality of life, or other items not covered by social assistance. These trusts allow family members to put aside money for persons with disabilities, while still being entitled to social assistance benefits. The money received from Henson Trusts can work together with social assistance to cover important costs that social assistance alone does not.

People with disabilities in Canada are disproportionately affected by poverty and must often bare the financial burden of cost-related barriers to their inclusion. The Court's decision recognizes that absolute discretionary trusts are an important vehicle for assisting persons with disabilities to meet their additional costs of living, while ensuring access to social assistance programs. This is essential for the full inclusion and participation of persons with disabilities in society.

Read the Decision: S.A. v. Metro Vancouver Housing Corp. - SCC Cases (lexum.com)

Canadian Human Rights Commission versus Canada (Attorney General), 2018 SCC 31

What is this Case About?

Two individuals brought complaints of discrimination to the Canadian Human Rights Commission (Commission) as a result of being denied registration as Indians base on rules about who can be registered in the Indian Act. Being registered as an Indian entitles people to certain benefits, including some government health benefits, education and child development programs.

The Commission found that it did not have the jurisdiction to hear these complaints because they were challenges to legislation (the Indian Act) rather than challenges to the delivery of services - registration services under the Indian Act.  As a result, the complaints should have been brought as a legal challenge in the Court and not to the Commission.

Outcome

The Supreme Court found that challenges of discrimination based on the wording of a federal law cannot be brought to the Canadian Human Rights Commission. Instead, these challenges must be brought before the courts as Charter challenges.

Why is this Case Important for Persons with Disabilities?

The Court’s decision means that anyone who feels they have been discriminated against because of rules or requirements in federal laws will have to go to court to bring a Charter challenge to the law. They will not be able to bring their complaints to the Canadian Human Rights Commission. This will undermine access to justice for people from equity seeking groups, including persons with disabilities. Going to court is a more expensive and less accessible process than bringing a case to the Human Rights Commission.

Read the Decision: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - SCC Cases (lexum.com)

Stewart versus Elk Valley Coal Corp, 2017 SCC 30

What is this Case About?

This case involves an employee, Mr. Stewart, a person with an addiction disability, who was terminated from his safety sensitive employment in a coal mine due to a minor accident after which he tested positive for the use of drugs. As a result of his disability, he was only able to disclose his addiction disability following the accident. CCD intervened jointly with the Empowerment Council (EC) in the case.  The CCD and EC made submissions regarding the barriers in the workplace faced by persons with addictions disabilities including the challenges of disclosing their disability-related needs for accommodation. The CCD and EC also made arguments regarding the scope of an employer’s duty to accommodate, including in circumstances where an employee’s failure to disclose their disability is itself disability-related or due to stigma and discrimination.

Outcome

The majority decision of the Court found that Mr. Stewart was not discriminated against on the basis of his disability, but re-affirmed the test for prima facie (obvious) discrimination set out in the Moore case.  The powerful dissenting judgment found that Mr. Stewart was discriminated against and recognized that, “drug dependence – whether through stigma or denial – can be a factor in an employee’s failure to voluntarily disclose their disability.  On that basis, prima facie discrimination was satisfied here.” (para. 119)

Why is this Case Important for Persons with Disabilities

The dissenting judgment recognized that persons with addiction disabilities “represent one of the marginalized communities that could easily be caught in a majoritarian blind spot in the discrimination discourse” and that such persons require equal protection from discrimination and must not be excluded from the scope of human rights protections. In reaffirming the three-part test for prima facie discrimination, the majority of the court maintained the appropriate threshold for establishing discrimination in future cases.

The three-part test for prima facie discrimination requires that the complainant has a protected characteristic under the relevant human rights legislation; that the complainant suffered disadvantage or adverse impact; and that the protected characteristic was a factor or had contributed to the disadvantage or adverse impact.)

Read the Decision: 2017 SCC 30 (CanLII) | Stewart v. Elk Valley Coal Corp. | CanLII

Moore versus British Columbia (Education), 2012 SCC 61

What is this Case About?

Jeffrey Moore, an elementary student with a learning disability, brought a case against his school board and the government of British Columbia for not giving him proper educational supports to learn in public school. Jeffrey needed intensive one-on-one learning support to receive the education available to all students in British Columbia.

This type of learning support had been available to students with learning disabilities in the public education system from a program provided by the school board. However, the school board eliminated this program after a reduction by the government in general funding for public education.  As a result, Jeffrey had to attend and pay for a private school to get the learning support he required in school. 

Jeffrey argued that he was discriminated against by the school board and government because of his disability as he did not receive the programs, services and supports that he needed in order to receive equal educational services.

Outcome

The Supreme Court of Canada decided that the school board discriminated against Jeffrey when it did not give him the intensive individual educational supports that he needed to learn. These supports were necessary in order to equally receive the public education that all students in British Columbia were entitled to. 

The Court said that the school board’s financial difficulties did not fully excuse its failure to provide the necessary educational programs to support Jeffrey’s learning disabilities.  The Court noted that the school board focused its cuts on learning supports for students with disabilities, rather than cutting other student programs such as an outdoor program where students learned about the community and the environment. The Court found that the school board did not consider what other options could be available to support students with learning disabilities if they cut their disability related learning programs and supports.  

The Court ordered the school board to pay back the tuition that Jeffrey paid to attend private school until the end of high school, half of the costs for his transportation to attend private school, and $10,000 for the harm caused to Jeffrey for the discrimination he experienced. 

Why is this Case Important for Persons with Disabilities?

This decision was a success not just for Jeffrey but it also sends a strong message to all school boards to provide proper individual learning supports so that students with disabilities who require accommodation can receive equal access to public educational services available to all students.

Read the Decision: Moore v. British Columbia (Education) - SCC Cases (lexum.com)

Read the Factum: Factum in the Moore Case | Council of Canadians with Disabilities (ccdonline.ca)

CCD versus VIA Rail Canada Inc, 2007 SCC 15

What is this Case About?

CCD brought a complaint to the Canadian Transportation Agency (CTA) regarding the inaccessibility of a large number of new railway cars purchased by Via Rail. CCD argued that there were 46 features of the new railway cars that created barriers to the mobility of persons with disabilities including that: (i) the sleeper cars were not accessible to passengers in wheelchairs (ii) passengers in wheelchairs could not ride in the economy coach cars (iii) no washroom facilities in any type of car were accessible to passenger-owned wheelchairs, (iv) and the new railway cars did not provide adequate accommodation for persons with vision disabilities who had service animals.

Rather than modifying the new railway cars themselves to make them accessible for individuals to use their own personal wheelchairs and be able to access food services and bathrooms independently, Via Rail offered to accommodate persons with disabilities by having its employees deliver meals to its customers in wheelchairs, transfer passengers into on-board wheelchairs, and assist them with using the washroom. VIA Rail also stated that in the past it had sent passengers to their destinations by taxi when they could not be accommodated on its trains.

Via Rail argued that although some of its train routes did not have railway cars that were accessible to persons with disabilities, the fact that it had some train routes that were accessible was sufficient accommodation. The CTA and the Supreme Court disagreed.

Outcome

The Supreme Court ruled that the form of accommodation proposed by Via Rail left persons with disabilities entirely dependent on others. The Court required changes to 30 of the 139 newly purchased railway cars so that one car per train would be accessible to persons with disabilities using their own wheelchairs.

The Court found that transportation services including rail services are to be accessible in themselves and not through the use of alternative transportation services like taxis.  “Persons with disabilities are entitled to ride with other passengers, not consigned to separate facilities”.  Finally, the Court held that the availability of accessible trains travelling along some routes does not justify inaccessible trains on other routes.

Why is this Case Important for Persons with Disabilities?

This case advances accessibility in the area of public transportation which is very important for promoting the autonomy, dignity and equality of persons with disabilities. 

The Court stated “The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations”.

Finally, the requirement to modify the actual railway cars to ensure they were accessible for personal wheelchair use is consistent with the social model of disability and human rights law which locates the barriers for persons with disabilities in the environment and not in the individual themselves. The court’s use and reflection of the social model of disability promotes substantive equality for persons with disabilities.

Read the Decision: CCD versus VIA Rail Canada Inc, 2007 SCC 15

Read the Factum: VIA Rail Factum | Council of Canadians with Disabilities

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624

What is this Case About?

This case raises the issue of whether a hospital’s denial to fund sign language interpretation for Deaf patients in the delivery of publicly funded medical services violates the equality provision of Section 15 of the Canadian Charter of Rights and Freedoms. 

The Appellants, who were Deaf, were denied government funded sign language interpretation when receiving medical care in the hospital. They argued that due to the communication barriers that existed between them and their health care providers, without government funding for sign language interpretation, they received a “lesser quality of medical services” as compared to hearing patients. While the delivery of free medical services in British Columbia appeared to be available to both hearing and Deaf patients, the lack of funding for sign language interpretation adversely impacted patients who were Deaf, who therefore faced communication barriers when interacting with their healthcare providers. 

Outcome

The Supreme Court of Canada made two significant rulings:

First, the Court found that the Canadian Charter of Rights and Freedoms (Charter) applies to a private entity, including a hospital, when delivering or implementing a specific governmental policy or program, in this case, publicly funded health care services in the Province of British Columbia. Therefore, in the circumstances of the case, the Court held that the Charter applied to the hospital’s decision to deny free sign language interpretation in the delivery of important medical services to its patients who were Deaf. 

Second, the Court also found that the government’s failure to provide free sign language interpretation, where necessary for effective communication, denied Deaf patients access to medical services on an equal basis to hearing patients and therefore discriminated against them based on Section 15 of the Charter.  If Deaf patients are not able to community effectively with their doctors without an interpreter, then, they will not receive the same level or quality of medical care as hearing patients. The court found the government’s failure to take positive steps to provide sign language interpretation denied Deaf patients the ability to receive publicly funded healthcare services that were available to everyone else.

Why is this Case Important for Persons with Disabilities?

The Court recognized a principle of discrimination in the Charter context that had been “widely accepted in the human rights field”.  Specifically, the Court stated that discrimination can “accrue from a failure to take positive steps to ensure that the disadvantaged groups benefit equally from services offered to the general public”. 

The Court also recognized that governments should not be able to “evade their Charter responsibilities by implementing policy through the vehicle of a private arrangements” or “by delegating the implementation of their policies and programs to private entities”.  In this case the government was using the hospital as the vehicle to deliver the province’s publicly funded health care scheme and therefore the Charter applied to its conduct.

Read the Decision: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

Read the Factum: Eldridge Case Factum | Council of Canadians with Disabilities

Definitions

Litigation is the process of taking legal action.
Litigant, plaintiff or appellant is the person or party taking legal action against another party. 
Prima facie is Latin for “at first sight,” or based on first impression.  In law, the term is used to say that, upon first examination, a legal claim has enough evidence to proceed to trial or judgment.