Report of the Council of Canadians with Disabilities Human Rights Committee's Litigation: 2009-2010

Since the spring of 2009, the CCD Human Rights Committee has been involved in four very important cases involving the interpretation of equality and persons with disabilities. This report provides a summary of the Committee's work regarding public interest litigation.

The factum (a legal brief that details the arguments put forward by CCD to the courts) for each case can be found on CCD's website www.ccdonline.ca

1. Peter Hughes and the Canadian Human Rights Commission v. Elections Canada

(CCD helps to secure victory on voting rights.)

Last spring, the Committee learned that a complaint dealing with the lack of access to a Toronto polling station for persons with disabilities was on its way to a Canadian Human Rights Tribunal. Ensuring that persons with disabilities are able to exercise their right to vote with dignity and independence is a long-standing issue for the membership of CCD. Thus the Committee decided that CCD should seek standing as an interested party before the Tribunal. With the legal assistance of the ARCH Disability Law Centre, CCD was granted standing and the opportunity to make oral and written submissions.

On March 17, 2008, Peter Hughes set out to cast his vote in a federal by-election at the St. Basil's church located in downtown Toronto. Mr. Hughes uses a walker, and on the day in question, he approached the accessible entrance to the church where he discovered it to be locked with a sign directing voters to another entrance. Mr. Hughes located the identified entrance where he was greeted with a flight of stairs leading downwards; clearly not an accessible entrance. After considering his options, Mr. Hughes decided to go down the stairs on the seat of his pants which he found to be a risky and humiliating experience.

Once down the stairs and reunited with his walker, matters did not improve for Mr. Hughes. As he approached the polling booth, he found his path blocked by tables which were placed too close together to accommodate his walker.

Mr. Hughes advised an Elections Canada official of his difficulties and was told that lack of access was due to financial reasons. Wishing to avoid the barriers caused by the stairs, Mr. Hughes was persuaded by Elections Canada officials to exit out a back entrance. Once again, he was confronted with obstacles such as heavy doors and a very narrow steep and icy ramp that he could not use without assistance. On June 5, 2008, Mr. Hughes filed a complaint with the Canadian Human Rights Commission (CHRC) against Elections Canada.

In October 2008, a federal election was held. According to a voter information card, complete with a universal access symbol, Mr. Hughes was advised once again to cast his vote at the St. Basil’s Church. Hoping that the access issues had been resolved, Mr. Hughes went off to cast his vote only to discover a disappointing repeat of his previous experiences.

In December 2008, Mr. Hughes's complaints regarding the By-election and general election were referred to a tribunal. A hearing took place in October 2009 and the Adjudicator handed down his decision on February 11, 2010. The decision ruled that the Complainant had substantiated his complaints and that Elections Canada had engaged in a discriminatory practice contrary to the Canadian Human Rights Act.

The Tribunal decision acknowledges the assistance provided by CCD in its oral and written submissions. The decision sets out a 12 point order which requires Elections Canada to undertake a number of activities to avoid similar complaints. The actions required by Elections Canada include:

• Paying $10,000 to Mr. Hughes for the pain and suffering he experienced,
• Consulting with voters with disabilities regarding access issues, and in particular, consulting with CCD,
• Ceasing from the practice of situating polling stations in locations that do not provide barrier-free access, subject to the standard of bona fide justification and the duty to accommodate,
• Conducting a review of policies and guidelines dealing with accessibility developed by Elections Canada,
• Including a requirement in lease agreements that polling locations provide level access and are barrier-free,
• Reviewing, revising and updating training material and programs with respect to accessibility,
• Developing a process for dealing with, and responding to, written and verbal complaints concerning access, and
• Providing regular progress reports to the Tribunal on the activities it ordered to rectify the complaints.

The actions required by the Tribunal will be monitored by the Canadian Human Rights Commission. Elections Canada has begun its consultations with the litigation parties, including CCD.

2. Alberta v. Caron

(CCD joins forces with other equality-seekers to persuade the Supreme Court of Canada to award advanced costs to parties that lack the financial resources to engage in test case litigation.)

On February 11, 2010, CCD, in coalition with the Poverty and Human Rights Centre, the Women's Legal Education and Action Fund and the Charter Committee on Poverty Issues, was granted leave by the Supreme Court of Canada to intervene in the Caron case. At issue in this case is the Court's discretion to award advanced costs to litigants who would otherwise be unable to litigate their public interest claims.

The case was begun by Mr. Caron who was issued a traffic ticket in English. In the interest of preserving his Constitutionally protected French language rights, Mr. Caron went to trial and argued that the ticket was invalid because it was not in French. Initially, Caron received funding from the Court Challenges Program to pursue the protection of his language rights. However, Caron's access to such funds was cut off by the cancellation of the Court Challenges Program in September 2006. Caron then turned to the Court for an order that would require the Crown to provide advanced costs to cover the cost of the litigation.

Where a case raises special circumstances and is important to the public interest, and where a party to the litigation does not have the financial resources to pursue the case, the court has the discretion to order other parties to the litigation to cover such costs to avoid unfairness or injustice. With the dismantling of the Court Challenges Program, seeking advanced costs may be a useful legal strategy for CCD and other equality-seekers.

Mr. Caron's request for an order of advanced costs was upheld by the Alberta Court of Queens Bench and the Alberta Court of Appeal. This issue is now the subject of the appeal to the Supreme Court of Canada.

The issue of arguing for advanced costs is not a new issue for CCD. In 2007, CCD sought intervener status in the case of Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) where this was a central issue. CCD was unsuccessful in securing intervener status in the Little Sisters case. However, the Caron case offers another opportunity to push for a more equitable interpretation of advanced costs.

Of particular interest to CCD and its coalition partners in the Caron case, is the court's interpretation of the criteria that requires a party seeking advanced costs to establish that the issue being litigated raises special circumstances and represents a rare and exceptional case. To ensure that this criteria is interpreted in an equitable and generous manner, the Coalition argues that the court must consider the "interests of justice" at stake, and must do so in light of the rule of law, the norm of substantive equality and the principle of access to justice as well as the legal principles underlying Canada’s international human rights obligations.

The issue of advanced costs is important to organizations like CCD because it can help to increase access to the courts. Due to the elimination of the Court Challenges Program, restricted access to legal aid and the decreased availability of any other sources of funding, it has become more and more difficult for equality seekers to advance and enforce their Constitutional rights. The factum of the Coalition argues that, in the interest of justice and equality, legal claims that advance the full social and political participation of marginalized and minority groups should be considered as exceptional cases deserving of advanced costs.

Gwen Brodsky and Melina Buckley have been retained as counsel to represent the Coalition in this intervention. The Coalition appeared in the Supreme Court of Canada on April 13th.

3. Frederick Moore on behalf of Jeffrey Moore v. the Ministry of Education of British Columbia and the Vancouver Board of Trustees School Division No. 44

(CCD advocates for a comprehensive and inclusive approach to the duty to accommodate.)

In May 2009, Gwen Brodsky, Karey Brooks and Yvonne Peters spent 5 days at the B.C. Court of Appeal representing CCD in its intervention in the Jeffrey Moore case.

Jeffrey Moore was enrolled in school in 1991. While in school, Jeffrey was diagnosed as having a severe learning disability in the form of dyslexia. Owing to limited funds provided by the Ministry of Education, the School Board cut back on services provided to students like Jeffrey. When Jeffrey was in grade 3, school officials advised his parents to transfer him from a public school to a private school where he could receive the educational services he required to accommodate his disability. However, attendance at a private school required his parents to pay out-of-pocket for this type of education.

The fact that Jeffrey had to leave a public school due to lack of services and then pay out-of-pocket for such services in a private school did not seem fair to his parents. Thus, they decided to file complaints against both the Ministry of Education and the relevant School Board under the B.C. Human Rights Code alleging that the Ministry and the School Board discriminated against Jeffrey both individually and systemically for failing to provide students with dyslexia with the services they required. The matter was sent to a tribunal that lasted several years. A decision was finally handed down in 2005 which found that indeed, Jeffrey Moore had been discriminated against by both the Ministry and School Board.

Both respondents sought judicial review to have the Tribunal's decision quashed at the B.C. Supreme Court. This Court determined that Jeffrey Moore was not seeking access to a service customarily available to the public; that is, he was not seeking access to general educational services offered to "regular" students, but rather was seeking individually based services tailored to his special needs as a student with a disability. Relying on the Supreme Court ruling in Auton, the Court ruled that there was no mandatory provision in the school legislation requiring the Minister to create or impose any standards regarding programs for special needs children. It said that this is a discretionary matter and it is within this discretionary function that accommodation can be provided for students with special needs.

The Court distinguished between general education services and special needs services. As such, it identified the question to be the adequacy of the special needs services provided to Jeffrey Moore. It further determined that because of the discrete population served by special needs services, they could not be characterized as services customarily available to the public.

CCD disagreed with the lower Court's analysis of educational services. It argued that the central issue in this case is the legal duty to accommodate persons with disabilities in a manner that achieves substantive equality. The key argument conveyed to the Court by CCD was that the remedial purpose of accommodation is to render structures and services equally accessible to persons with and without disabilities.

It has been over a year since the B.C. Court of Appeal heard the Moore case. To date, there has been no decision.

4. Eddy Morten and the Canadian Human Rights Commission v. Air Canada

(CCD tries to weigh in on yet another transportation case.)

In the fall of 2009, CCD sought to intervene in the Eddie Morten case. Frances Kelly of Vancouver’s Community Legal Assistance Society was retained as counsel. Unfortunately, CCD's application for intervener status was denied.

Mr. Morten is profoundly deaf. He is also blind in his left eye and has limited vision in his right eye. In August 2004, he booked a flight on Air Canada through his travel agent, to fly from Vancouver on September 29 to San Francisco, return. His travel agent told the Air Canada reservations agent that Mr. Morten was deaf/blind and that he wanted to travel unaccompanied. Air Canada told his travel agent that Mr. Morten could not travel alone and would need an attendant to travel with him. Air Canada was concerned that the airline crew would not be able to communicate effectively with Mr. Morten in the event of an emergency.

Mr. Morten filed a complaint with the Canadian Transport Agency (CTA) and argued that Air Canada was creating an undue obstacle by requiring him to travel with an attendant. The CTA did not agree with him and dismissed his complaint.

In September 2005, Mr. Morten filed a complaint with the Canadian Human Rights Commission alleging that Air Canada discriminated against him because of his disability. He claimed that by requiring him to have an attendant, Air Canada singled him out and treated him adversely because of his disability, thus contravening s. 5 of the Canadian Human Rights Act. The complaint was considered by a Canadian Human Rights Tribunal which handed down its decision on January 26, 2009. It determined that Air Canada had not explored all possible forms of accommodating Mr. Morten. In other words, it had not conducted an individual assessment as to his ability to fly independently. The Tribunal concluded that the complainant had established a prima facie claim of discrimination.

Both Air Canada and the Canadian Transport Agency have sought judicial review of the Tribunal's jurisdiction to determine whether or not the attendant policy was discriminatory. They argued that as a result of the VIA Rail case, it is the CTA that should decide questions of human rights involving the transportation of persons with disabilities. This is a very troubling argument for persons with disabilities.

If the Court accepts the arguments of Air Canada and the CTA, the authority of the Canadian Human Rights Act could be seriously restricted in the area of federally-regulated transportation. Persons with disabilities want a robust human rights system that is capable of effectively and efficiently responding to the complexities of systemic discrimination. CCD will continue to monitor this case and consider seeking intervention should the matter be subject to further appeals.