Factum of the Intervener, Council of Canadians with Disabilities, in the Supreme Court of Canada Case Honda Canada v. Kevin Keays

S.C.C. File No. 31739

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:

Honda Canada Inc.-operating as Honda of Canada Mfg.

APPELLANT
(Respondent by Cross-Appeal)

- and -

Kevin Keays
RESPONDENT

(Appellant by Cross-Appeal)
- and -

Council of Canadians with Disabilities,
Human Resources Professionals Association of Ontario,
Ontario Human Rights Commission,
Ontario Network of Injured Workers' Groups,
Canadian Human Rights Commission,
Women's Legal Education and Action Fund,
Manitoba Human Rights Commission,
National ME/FM Action Network, and
Alliance of Manufacturers and Exporters Canada
INTERVENERS

FACTUM OF THE INTERVENER,
COUNCIL OF CANADIANS WITH DISABILITIES
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

Frances M. Kelly Gwen Brodsky Community Legal Assistance Society 300-1140 West Pender Street Vancouver, BC V6E 4G1 Tel: (604) 685-3425 Fax: (604) 685-7611 Email: flcelly@clasbc.net Counsel for the Intervener, Council of Canadians with Disabilities

Patricia J. Wilson Osler, Hoskin & Harcourt LLP 1900—340 Albert Street Ottawa, ON, KIR 7Y6 Tel: (613) 235-7234 Fax: (613) 235-2867 Email: pwilson@osler.com Agent for Counsel for the Intervener, Council of Canadians with Disabilities

ORIGINAL TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A 0J1

AND TO:

Earl A. Cherniak, Q.C.
Jasmine T. Akbarali Lerners LLP
2400—130 Adelaide Street West
Toronto, ON M5H 3P5
Tel: (416) 867-3076
Fax: (416) 867-9192
Email: echerniak@lenaers.ca
jakbarali@lerners.ca

J. Daniel Dooley
Eric O. Gionet
Purser Dooley Cockburn Smith LLP
300—151 Ferris Lane
Barrie, ON
L4M 6C1
Tel: (705) 792-6910
Fax: (705) 792-6911
Counsel for the Appellant (Respondent by Cross-Appeal)

Jeffery W. Seedell
Lang Michener LLP
300—50 O' Connor Street
Ottawa, ON
Kl P 6L2
Tel: (613) 232-7171
Fax: (613) 231-3191
Email: jbeedell@langmichener.ca
Agent for Counsel for the Appellant (Respondent by Cross-Appeal)

Hugh R. Scher
Scher & De .A.ngelis LLP
210—69 Bloor Street East
Toronto, ON
M4W IA9
Tel: (416) 515-9686
Fax: (416) 961-2534
Email: hugh@sdlaw.ca
Counsel for the Respondent (Appellant by Cross-Appeal)

Robert E. Houston
Burke Robertson
70 Gloucester Street
Ottawa, ON
K2P OA2
Tel: (613) 236-9665
Fax: (613) 235-4430
Agent for Counsel for the Respondent. (Appellant by Cross-Appeal)

Stuart E. Rudner
Andrew J. Roman
Laura Cassiani
Miller Thomson LLP
5800, 40 King Street West
Toronto, ON
M5H 3S1
Tel: (416) 595-8672
Fax: (416) 595-8695
Email: srudner@millerihomson.com
aroman@millerthomson.com
lcassiani@nillerthomson.com
Counsel for the Intervener,
Human Resources Professionals Association of Ontario

Marie-France Major Lang Michener LLP
300—50 O'Connor Street
Ottawa, ON
KIP 6L2
Tel: (613) 232-7171, ext. 131
Fax: (613) 231-3191
Email: mmajôr@langmichener.ca
Agent for Counsel for the Intervener, Human Resources Professionals Association of Ontario

Hart Schwartz
Ontario Human Rights Commission
700 -180 Dundas Street West
Toronto, ON
M7A 2R9
Tel: (416) 326-9858
Fax: (416) 326-9867
Counsel for the Intervener, Ontario Human Rights Commission

Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
2600 -160 Elgin Street
Ottawa, ON
KIP 1C3
Tel: (613) 786-0212
Fax: (613) 788-3500
Agent for Counsel for the Intervener, Ontario Human Rights Commission

Debra McAllister
ARCH: A Resource Centre for Persons with Disabilities
110—425 Bloor Street East
Toronto, ON
M4W 3R5
Tel: (416) 482-8255
Fax: (416) 482-2981
Email: mcallid@lao.on.ca
Counsel for the Intervener, Ontario Network of Injured Workers' Groups

Dougald E. Brown Nelligan O'Brien Payne LLP
1900—66 Slater Street
Ottawa, ON
KIP 5H1
Tel: (613) 231-8220
Fax: (613) 788-3698
Email: dougald.brown@nelligan.ca
Agent for Counsel for the Intervener, Ontario Network of Injured Workers' Groups

Philippe Dufresne
Canadian Human Rights Commission
344 Slater Street
Canada Building, 9tb Floor
Ottawa, ON
K1A lEl
Tel: (613) 943-9162
Fax: (613) 993-3089
Counsel for the Intervener, Canadian Human Rights Commission

Susan Ursel
Women's Legal Education and Action Fund
30 St. Clair Avenue West,
10th Floor
Toronto, ON
M4V 3A1
Tel: (416) 969-3515
Fax: (416) 968-0325
Email: sursel@greenchercover.com
Counsel for the Intervener, Women's Legal Education and Action Fund

Carole J. Brown
Borden Ladner Gervais LLP
World Exchange Plaza
1100 -100 Queen Street
Ottawa, ON
KIP 1J9
Tel: (613) 237-5160
Fax: (613) 230-8842
Email: cbrown.@blgcanada.com
Agent for Counsel for the Intervener, Women's Legal Education and Action Fund

Sarah Lugtig
Manitoba Human Rights Commission
7th Floor -175 Hargrave Street
Winnipeg, MB
R3C 3R8
Tel: (204) 945-3016
Fax: (204) 945-1292
Counsel for the Intervener, Manitoba Human Rights Commission

Brian A. Crane, Q.C.
Gowling La.fleur Henderson LLP
2600 -160 Elgin Street
Box 466, Station D
Ottawa, ON
KlA 1C3
Tel: (613) 233-1781
Fax: (613) 563-9869
Email: Brian.crane@gowlings.com
Agent for Counsel for the Intervener, Manitoba Human Rights Commission

Andrew K. Lokan
Paliare, Roland, Rosenberg, Rothstein LLP
501- 250 University Avenue
Toronto, ON
M5H 3E5
Tel: (416) 646-4300
Fax: (416) 646-4301
Email: Andrew.lokan@paliareroland.com
Counsel for the Intervener, National ME/FM Action Network

Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
2600 -160 Elgin Street
Box 466, Station D
Ottawa, ON
KlA 1C3
Tel: (613) 233-1781
Fax: (613) 563-9869
Email: Brian.crane@gowlings.com
Agent for Counsel for the Intervener, National ME/FM Action Network

George Avraam
Baker & McKenzie LLP
BCE Place; Suite 2100
181 Bay Street, P.O. Box 874
Toronto, ON
MSJ 2T3
Tel: (416) 865-6935
Fax: (416) 863-6275
Email: George.avraam@bakernet.com
Counsel for the Intervener, Alliance of Manufacturers and Exporters Canada

Jeffrey W. Beedell
Lang Michener LLP
300—50 O'Connor Street
Ottawa, ON
KIP 6L2
Tel: (613) 232-7171
Fax: (613) 231-3192
Email: jbeedell@laxrgmichener.ca
Agent for Counsel for the Intervener, Alliance of Manufacturers and Exporters Canada

TABLE OF CONTENTS

Part I: Overview of Position and Facts

Part II: Position on Issues Raised

Part III: Statement of Argument

1. A. Historical context
2. B. Contextualizing discrimination: the social/legal reality of persons with disabilities
3. C. Conclusion: modernizing the law of wrongful dismissal, without losing sight of the public interest in human rights
4. D. Access to justice should be protected

Part IV: Submissions on Costs

Part V: Request for Permission to Present Oral Arounents

Part VI: Table of Authorities

PART I: OVERVIEW OF POSITION AND FACTS

1. The Council of Canadians with Disabilities (CCD) is a national, not-for-profit umbrella organization representing people with a variety of disabilities. The CCD consists of 8 provincial member groups, 7 national disability organizations, and 2 affiliate members, and is accountable to a membership of several hundred thousand Canadians with disabilities. The CCD's mandate is to create a voice for Canadians with disabilities with the goal of promoting the full participation of, and equal opportunities for, persons with disabilities in Canadian society. In fulfilling this equality mandate, the CCD's position here is that human rights protections must be accessible to persons with disabilities. However, increasing the availability of remedies in civil actions should not come at the cost of diminishing the existing administrative human rights system.

PART II: STATEMENT OF POSITION ON THE ISSUES RAISED

2. The CCD's position in this matter is two-fold:

1. i. the Court should recognize that human rights protections are an implied term in every employment contract; and
2. ii. the Court should, when defining the scope of the courts' ju'risdiction to provide redress for discrimination, consider any consequences that such a decision may have on the statutory human rights system and the accessibility of human rights protections for people with disabilities.

PART III: STATEMENT OF ARGUMENT

3. This case has the potential to affect the manner in which human rights claims are adjudicated across the country, and to affect the historical relationship between courts and statutory human rights institutions. We therefore ask the Court to consider the matters in issue against a contextual background that includes the historical nature and purpose of human rights legislation, the historical structure of statutory human rights institutions, and the importance of access to human rights adjudication for people with disabilities.

4. The goals of human rights legislation include ending the social exclusion and eradicating the systemic barriers faced by people with disabilities. To realize these goals, there must be legal remedies for human rights violations, and the norms of equality and non-discrimination must be absorbed into all aspects of the law.

5. However, the position of the CCD is cautious. We support increasing the availability of human rights protections in a manner that does not undermine access to or marginalize the administrative human rights system, which has an important role in the development and delivery of human rights. This is expanded below.

A. Historical context

6. Human rights legislation occupies a special place in Canadian society, and in the Canadian legal system. This Court has consistently held that human rights legislation is "pre-eminent," "fundamental," and "quasi-constitutional," and that it should be interpreted in a broad and purposive manner in order to advance the broad policy considerations underlying it.

Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at pages 157-58; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at page 156

7. This Court has explained that one of the reasons that human rights legislation has a special status is that it is "often the final refuge of the disadvantaged and disenfranchised" and "the last protection for the most vulnerable members of the society."

Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at page 339

8. The human rights of Canadian residents are protected primarily by federal and provincial statutes, which are enforced through administrative systems. The benefit of the administrative nature of such systems has been noted in,a British Columbia Administrative Justice Project background paper:

[1]ike the courts, administrative tribunals are expected to be impartial and fair. As an alternative to the courts, they are also expected to be more accessible, less costly and more able to reach decisions in a timely and efficient manner.

British Columbia, Administrative Justice Project, On Balance: Guiding Principles for Administrative Justice Reform in British Columbia (Victoria: Ministry of the Attorney General, 2402) at page 3

9. It is well established that human rights statutes and their associated administrative machinery have a dual purpose. They are designed to resolve individual disputes. They also have an important public interest dimension, in that they aim to remove discrimination in Canadian society.

Canada, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, (Ottawa: Department of Justice, 2000) at page 46 [Promoting Equality]; William Black, "Human Rights Reforms in B.C." (1997) 31 U. Brit. Coluxn. L. Rev. 255 at pages 255-256 [Black, "Reforms in B.C."]

10. The public interest dimension of human rights statutes reflects a legislative objective and public policy that recognizes that continued discrimination harms society and individuals. Particularly damaging are the repeated patterns of discrimination entrenched in the structure of society. Human rights statutes are remedial, and aim. to create a genuinely inclusive society.

Promoting Equality, supra at page 46; Black, "Reform in B.C.", supra at page 256; William Black, Report on Human Rights in British Columbia, (Victoria: Government of British Columbia, 1994) at page 84 [Black, "Report on Human Rights"]; William Black, "Grading Human Rights in The Schoolyard: Jubran v. Board of Trustees" (2003) 36 U. Brit. Colurn. L. Rev. 45 at page 47

11. Historically in Canada, since the emergence of the first comprehensive human rights codes, human rights commissions have been central to the fulfillment of the public interest purpose of human rights legislation, and have been given a broad mandate to: investigate, screen and carry complaints to hearing, represent complainants; launch systemic complaints; conduct public hearings; approve affirmative action programs; issue guidelines and public reports; and promote human rights through education.

Promoting Equality, supra at page 46; Black, "Report on Human Rights", supra at page 3; Justice Walter S. Tarnopolsky and William F. Pentney, Discrimination and the Law: including equality rights under the Charter, (Scarborough, Ontario: Thompson Professional Publishing Canada, 2004) at page 14-11 [Tarnopolsky]

12. In more recent years human rights commissions have come under criticism and review. The power of commissions to dismiss a complaint without a hearing, known as the "gatekeeper" function, has attracted particular criticism.

Promoting Equality, supra at pages 46-51; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Syndicat des employés de production du Québec et de l Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, Wilson and L'Heureux-Dubé JJ. dissenting; Black, "Report on Human Rights," supra at pages 29-31

13. Public reports have considered many possible ways to reform the statutory human rights system, including:

• Keeping commissions intact, but clearly separating their statutory functions to avoid potential conflict;
• Keeping commissions intact, but creating a right to access the tribunal for those complaints dismissed by the commission; and
• Keeping commissions intact as an advocate for human rights, but removing the commission's role as a gatekeeper and allowing complainants direct access to the tribunal.

Promoting Equality, supra at pages 51-52

14. It is important to note as a contextual factor that no public report has ever suggested eliminating the statutory human rights system, or replacing it with the court system.

15. Although some criticisms of the statutory human rights system may be valid, and some jurisdictions have less comprehensive schemes than others (for example, human rights commissions are absent from the legislative schemes of Nunavut and British Columbia), the fact remains that the statutory human rights system has the potential to serve the public interest in ways that a private law model of tort or contract litigation does not. In general, the statutory human rights system in Canada is characterized by the presence of prominent, accessible, specialized public institutions that embody and reinforce public and legislative policy against discrimination, including but not limited to administrative tribunals with broad discretion to award non-monetary and structural remedies, at no cost to the individual complainant. Although it is appropriate that human rights norms be absorbed into all parts of the law, it is also necessary to ensure the statutory human rights system remains vigorous. People with disabilities are, as a group, vulnerable to both discrimination and poverty. For people with disabilities, it is therefore particularly important to ensure that there are no financial barriers to the enforcement of human rights.

B. Contextualizing discrimination: the social/legal reality of persons with disabilities

16. It is well established that, as a group, people with disabilities face systemic barriers to employment and experience higher rates of poverty than other groups in society. The intersection of poverty, disability, and discrimination, as well as the important public goals of the statutory human rights system, are critical contextual factors in this case.

17. This Court has recognized that it is not the "biomedical" nature of a disability which results in discrimination and exclusion. Rather, it is the problematic response of society to the needs of persons with disabilities that leads to systemic barriers.

Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 26

18. The poverty, unemployment, marginalization and exclusion faced by persons with disabilities has been acknowledged by this Court:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years —What Progress? What Prospects?" (1997), 7 NJ C.L 263This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms; see Sandra A. Goundry and Yvonne Peters, Litigating for Disability Equality Rights: The Promises and the Pitfalls (1994), at pp. 5-6. One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed; see Minister of Human Resources Development, Persons with Disabilities: A Supplementary Paper (1994), at pp. 3-4, and Statistics Canada, A Portrait of Persons with Disabilities (1995), at pp. 46-49.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para.. 56

19.—The systemic poverty experienced by persons with disabilities has also been acknowledged by the British Columbia Human Rights Tribunal:

In his expert report (Exhibit 5), Mr. Goldberg states that disabled individuals experience significantly higher rates of poverty compared to non-disabled individuals. Further, the poverty experienced by disabled individuals is "longer and deeper" than that experienced by non-disabled individuals. The factor which appears to contribute to these high poverty rates most directly is that disabled individuals often encounter difficulties participating in the work force, whether due to lack of access to disability-related supports, absence of workplace accommodation, or discrimination in hiring.

Mr. Goldberg reviewed research which indicated that barriers to the work force are the key factor in the high poverty rate among those with disabilities. Disabled individuals have a lower level of participation in the work force than those without disabilities (even controlling for education) and, when they do participate in the work force, have a lower hourly wage than individuals without disabilities.

Hussey v. British Columbia (Minister of Public Safety and Solicitor General) (2003) 48 C.H.R.R. D/1, 2003 BCHRT 76 at paras. 46-47 and 82

20. Human rights legislation has an important public function: it was created to end discrimination and to further the rights of vulnerable groups who have experienced exclusion and historical disadvantage. The public function of human rights legislation to eradicate systemic barriers has a particularly important role in the lives of persons with disabilities who face multiple barriers on a daily basis.

21. Poverty can. interact with and exacerbate other forms of disadvantage because poverty in itself can stand in the way of access to basic social institutions, such as employment. Further, poverty can also undermine access to the justice system, as people living in poverty cannot afford the attendant costs. The administrative system of human rights was created with this consideration at the forefront. Taxnopolsky and Pentney state: Many complainants cannot afford private legal action, and that was an important consideration when the Commissions were originally established. Tarnopolsky, supra at page 15-186

22. Human rights legislation has an important public function to ensure that persons with disabilities have equal access to all of society's institutions, opportunities, and resources. Access to the processes and remedies set out in human rights legislation is central to achieving its goals.

C. Conclusion: modernizing the law of wrongful dismissal, without losing sight of the public interest in human rights

23. The CCD supports the idea that the common law should evolve to reflect human rights norms. Also, to enjoy the equal benefit and protection of human rights guarantees, persons with disabilities must be able to seek remedies in an appropriate forum, which could include the administrative or judicial system. 24. However, the capacity of the legal system to provide human rights remedies must be improved in a manner that does not marginalize the administrative human rights system. An accessible human rights system is of critical importance to persons with disabilities. Remedies must be accessible to meet the goals of human rights legislation to end exclusion and eradicate discrimination. It is important that access not be improved in one area in a manner that may undermine access in another.

25. CCD therefore takes the position that human rights should be an implied term of every employment contract. This has the potential to increase the availability of appropriate adjudication of discrimination issues, as well as eliminate the difficulties of relying on punitive damages to address human rights violations in court. These difficulties include requiring harsh conduct and the conflicting purposes of punitive damages (punishment) and human rights remedies (remediation). Recognition of an implied contractual term will also serve to lessen the current disparity between unionized and non-unionized employees.

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Parry Sound (District) Social Services Administration Board v. O.P.S.EU., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42

26. If human rights protections are an implied term of every employment contract, then the next question is: how, will these implied human rights protections be enforced? CCD submits that there are three possible ways to enforce the implied protections, each with its own advantages and disadvantages:

i. The implied protections could be enforceable only in an action commenced in the administrative human rights system. This would protect the role of the statutory system, but require multiple proceedings to address a single dispute, forcing the severance of the issues in the matter. This may lead to decisions that do not reflect the full context of a dispute.

ii. This Court could develop a contextual test to determine the essential nature of a dispute and to identify the appropriate adjudicative forum. If the matter is one essentially based on an existing civil action, but has a human rights component, then a court could assume jurisdiction to decide all issues in a single proceeding. If a human rights breach is the essential nature of the dispute, then a court could decline jurisdiction and the matter would go to the statutory system. This option would allow the court, if appropriate, to apply the whole law to the entire context of the dispute.

Quebec (Attorney General) v. Quebec (Human Rights Tribunal) [2004] 2 S.C.R 223, 2004 SCC 40; Tranchmontange v. Ontario (Director, Disability, Support Program), [2006], 1 S.C.R. 513, 2006 SCC 14

iii. This Court could overturn its previous holding and recognize a complete, independent civil action of discrimination. This option would increase flexibility for those in the position to choose between the administrative system and the court, but may undermine the statutory system and create serious access to justice issues.

Seneca College v. Bhadauria, [1981] 2 S.C.R. 181

27. Because of uncertainty about the legal and institutional implications of each of these options, we do not take a position on the preferable means of enforcing the implied contract terms. When considering the most appropriate forum for a dispute, which may be the administrative or the judicial system, we ask that this Court keep the importance of access to justice and the goals of human rights protections in mind.

D. Access to justice should be protected

28. The CCD is concerned that this case not have the unintended consequence of further eroding government commitment to strengthening the statutory human right system. A funded and accessible administrative system of human rights is critical to the realization of human rights goals. People with disabilities are typically poor and may lack resources to access the courts.

29. The explicit concern of the CCD is that, in increasing de jure access to human rights remedies in civil court actions, the decision in this case may have the consequence of sending a message that a civil action in court can fulfill the same role as an administrative action under the existing statutory schemes, and that de facto financial barriers to access do not matter.

30. The CCD is concerned that the decision in this case does not diminish the important and distinctive role played by the statutory system, both as a more efficient and affordable option when compared to courts, and as a means of fulfilling the public interest purpose of human rights protections. These issues are particularly important for people with disabilities because they face additional financial barriers that may impede their access to court actions, and the discrimination they face is often entrenched and systemic in nature.

31. The CCD concedes that the existing statutory human rights systems have not been problem free. They have faced significant problems with resources and delays. However, comprehensive, accessible administrative systems are the best hope to ensure the realization of all the goals of human rights legislation.

32. Thus, improved access to human rights remedies in one area should not be attained at the cost of decreased access in another. The following caution of Professor Mullan, in considering whether a constitutional tort of discrimination was viable, should be heeded:

A case can be made for one store shopping in the case of human rights violations. Indeed, given the inaccessibility of the regular civil courts to most victims of discrimination, the creation here of a parallel system has even greater potential than in most other spheres of administrative justice to create a two-tier system of justice where only rich or public interest group supported victims will be able to afford the luxury of the regular court processes.

Therefore, a constitutional right of access to the regular courts is likely to be no more than a bandaid solution rendered palatable only by reasons of government parsimony in the support of adequate administrative processes.

David Mu11an, "Tribunals and Courts the Contemporary Terrain: Lessons from Human Rights Regime" (1999) 24 Queen's L. J. 642 at page 663 [Mullan]

33. Professor Mullan further comments that a properly resourced administrative system is the best solution to ensure the goals of human rights legislation are met:

In the case of Human Rights Commissions and their companion tribunals, these concerns about capacity of administrative justice regimes to do a good job bring me back to the central theme of the constitutional argument I have advanced in this paper. Clearly, the best solution would be to strengthen the existing processes of Human Rights Commissions and their companion tribunals by providing more adequate resources.

Mullan, supra at page 664

34. In conclusion, modernizing the law of wrongful dismissal to incorporate human rights principles as suggested above should not be understood to indicate that the court system ran serve as a substitute for the public interest voice and publicly funded access to justice historically provided through the statutory human rights system.

35. Regardless of the proposed forum for providing human rights remedies, a great many people with disabilities face financial and systemic barriers in their lives. We urge the Court; when considering the issues in this case, to keep in mind the real needs of vulnerable groups that human rights legislation is designed to protect.

PART IV: SUBMISSIONS ON COSTS

36. The CCD does not seek costs from any party, and requests that it not be ordered to pay the costs of any party to this proceeding.

PART V: REOUEST FOR PERMISSION TO PRESENT ORAL ARGUMENTS

37. We respectfully request that the Court grant the CCD 15 minutes to make oral submissions.

38. The CCD is in the unique position, as a representative of â wide cross-section of Canadians with disabilities, to provide context for the Court, particularly with respect to the possible consequences of this decision on access to human rights protections by people with disabilities.

ALL OF WHICH IS RESPECTFULLY SUBNIITTED

DATED: at Vancouver, British Columbia, this 9h day of January, 2008.

FRANCES KELLY

GWEN BRODSKY
Counsel for the Intervener, Council of Canadians with Disabilities

PART VI: TABLE OF AUTHORITIES

Cases	Paragraph Number
Blencoe u British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44	12
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624	18
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28	17
Hussey v. British Columbia (Minister of Public Safety and Solicitor General)
(2003), 48 C.H.R.R. D/1, 2003 BCHRT 76	19
Insurance Corp. of British Columbia u Heerspink, [1982] 2 S.C.R. 145	6
Parry Sound (District) Social Services Administration Board v. O.P.S.EU., Local 324 [2003] 2 S.C.R 157, 2003 SCC 42	25
Quebec (Attorney General) v. Quebec {Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223	26
Seneca College v. Bhadauria, [1981] 2 S.C.R. 181	26
Syndicat des employés de production du Québec et de l Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879	12
Tranchmontange u Ontario (Director, Disability, Support Program), [2006] 1 S.C.R. 513	26
Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701	25
Winnipeg School Division No. I v. Craton, [1985] 2 S.C.R. 150	6
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321	7

Secondary Sources	Paragraph Number
Black, William. "Grading Human Rights In The Schoolyard: Jubran v. Board of Trustees" (2003) 36 U. Brit. Colum. L. Rev. 45	10
Black, William. "Human Rights Reforms in B.C." (1997) 31 U. Brit. Colum. L. Rev. 255	9, 10
Black, William. Report on Human Rights in British Columbia, (Victoria: 10; Government of British Columbia, 1994)	11, 12
British Columbia, Administrative Justice Project, On Balance: Guiding Principles for Administrative Justice Reform in British Columbia (Victoria: >Ministry of the Attorney General, 2002)	8
Canada, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, (Ottawa: Department of Justice, 2000)	9, 10, 11, 13
Mullan, David. "Tribunals and Courts the Contemporary Terrain: Lessons from Human Rights Regime" (1999) 24 Queen's L. J. 642	32,33
Tarnopolsky, Walter S. and William F. Pentney, Discrimination and the Law: including equality rights under the Charter, (Scarborough, Ontario: Thompson Professional Publishing Canada, 2004)	11,21

S.C.C. File No. 31739

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:

Honda Canada Inc.-operating as Honda of Canada Mfg.

APPELLANT
(Respondent by Cross-Appeal)

- and -

Kevin Keays
RESPONDENT

(Appellant by Cross-Appeal)
- and -

Council of Canadians with Disabilities,
Human Resources Professionals Association of Ontario,
Ontario Human Rights Commission,
Ontario Network of Injured Workers' Groups,
Canadian Human Rights Commission,
Women's Legal Education and Action Fund,
Manitoba Human Rights Commission,
National ME/FM Action Network, and
Alliance of Manufacturers and Exporters Canada
INTERVENERS

FACTUM OF THE INTERVENER,
COUNCIL OF CANADIANS WITH DISABILITIES

Frances Kelly and Gwen Brodsky
Counsel for the Applicant, Council of Canadians with Disabilities
Community Legal Assistance Society
#300 1140 West Pender Street
Vancouver, BC V6E 4G1
Telephone: 604-685-3425
Facsimile: 604 685-7611