Factum of the Intervener, Council of Canadians with Disabilities, in the Federal Court of Canada Case Brown v. National Capital Commission.

Court File No. T-1117-06

FEDERAL COURT

B E T W E E N:

NATIONAL CAPITAL COMMISSION
Applicant

-and-

BOB BROWN and the CANADIAN HUMAN RIGHTS COMMISSION and the ATTORNEY GENERAL OF CANADA (Representing the DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA)

Respondents

-and-

COUNCIL OF CANADIANS WITH DISABILITIES
Intervener

MEMORANDUM OF FACT AND LAW

Ena Chadha Roberto Lattanzio

ARCH Disability Law Centre
425 Bloor Street East, Suite 110
Toronto, Ontario, M4W 3R5
Tel: (416) 482-8255 ext. 222, (416) 482-8255 ext. 233
Fax: (416) 482-2981
TTY: (416) 482-1254
Email: chadhae@lao.on.ca, lattanr@lao.on.ca

Counsel for the Intervener, Council of Canadian with Disabilities (CCD)

TO: Ms. Lynn Harnden and Mr. Sébastien Huardv Emond Harnden LLP
Barristers & Solicitors
Glebe Chambers
707 Bank Street
Ottawa, ON K1S 3V1

Counsel for the Applicant, National Capital Commission

AND TO: Mr. Philippe Dufresne
Canadian Human Rights Commission
Litigation Services Division
344 Slater Street, 8th Floor
Ottawa, ON K1A 1E1

Counsel for the Respondent, Canadian Human Rights Commission

AND TO: Mr. David Baker and Ms. Sarah Godwin
bakerlaw Barristers & Solicitors
672 Dupont Street, Suite 400
Toronto, ON M6G 1Z6

Counsel for the Respondent, Bob Brown

AND TO: Ms. Elizabeth N. Kikuchi
Department of Justice Canada
234 Wellington Street
East Tower, Room 1159
Ottawa, ON K1A 0H8
Counsel for the Respondent, Attorney General of Canada (representing Public Works and Government Services Canada)

AND TO: Ms. Holly Lemoine

Registry Office
Canadian Human Rights Tribunal
160 Elgin Street, 11th Floor
Ottawa, ON K1A 1J4
Registry Office, Canadian Human Rights Tribunal

TABLE OF CONTENTS

PART I—STATEMENT OF FACTS

A. Overview

B. Complaint Background

PART II—POINTS IN ISSUE

PART III—SUBMISSIONS

A. Contextual Background

B. Universal Design Is Integral to Human Rights Principles

C. York Steps Perpetuate Historical Exclusion and Segregation

1. a) Denial of Access;
2. b) Denial of Benefits;
3. c) Exacerbates Pre-Existing Disadvantages Causing Extra Time, Travel Distance, Effort and Energy;
4. d) Segregation and Stigmatizes;
5. e) Inferior and Delayed Alternate

D. NCC Violated Duty to Accommodate Short of Undue Hardship

E. Consultation is Fundamental to Duty of Accommodation

1. a) Consultation is Important to Upholding Disability Rights
2. b) NCC Did Not Meaningfully Consult
3. c) Consultation At the Heart of Accommodation
4. d) Accommodation is a Multi-Party Proces
5. e) Duty to Investigate in Human Rights Law

F. Large and Liberal Interpretation of Services Promotes Disability Rights

G. Conclusion

PART IV—ORDER SOUGHT

PART V—LIST OF AUTHORITIES

APPENDIX A—STATUTES

PART I—STATEMENT OF FACTS

A. Overview

1. The architecture of a nation's capital is the face of the nation and gives insight into how the nation envisions itself, its values and culture. Not only does architecture build a community, but it defines and reflects the community's identity and aspirations. This compels the inquiry: what do the York Steps reveal about the Canadian community, its values and commitment towards persons with disabilities? The Council for Canadians with Disabilities (CCD) respectfully submits that the York Steps represent a bleak view of Canadian society where persons with disabilities are segregated and excluded from the mainstream community. The National Capital Commission's design, construction and maintenance of the York Steps as an inaccessible thoroughfare evinces indifference and antipathy towards persons with disabilities, and is antithetical to promoting their inclusion in the society.

B. Complaint Background

2. In 1994, the United States government planned to build its new Ottawa Embassy next to the York Steps as the "first fully-accessible U.S. Embassy in the world." At the same time, the federal agency responsible for developing and enhancing Canada's capital, the National Capital Commission (NCC), instructed the "design [of] the York Steps [be] without accessibility considerations." Consequently, the very government entity charged with promoting a Canadian vision in the capital for all Canadians, deliberately created the York Steps, a promenade thoroughfare of 50 plus stairs, as "an impassable barrier" and "a dead end for persons with mobility constraints."

• Letter from Warren P. Nixon to Bob Brown, March 31, 1999. CHRC Record, vol. 1, Tab 12 at 84
• Letter from Patsy L. Thomasson to Judith A. Haslam, April 14, 1999. CHRC Record, vol. 1, Tab 21 at 148; Letter from John N. Abel to Ned Arcement, December 20, 1994. CHRC Record, vol. 1, Tab 4 at 17
• Draft Report entitled Universal Accessibility Assessment Study of the York Street Steps, prepared for the National Capital Commission, July 19, 2002 at 6, 8. Applicant's Record, vol. I, Tab 3, Exhibit #4 at 217, 219

3. Bob Brown, a resident of Ottawa who uses a wheelchair, filed a complaint with the Canadian Human Rights Commission (CHRC) on or about August 31, 1999 alleging that the NCC discriminated against persons with disabilities in the provision of services by constructing the York Steps as an inaccessible thoroughfare and in failing to undertake adequate consultations while planning the Steps. As part of its defence, the NCC contended that accommodation would eventually be provided through the "Daly site", an alternate location slated to be built with an accessible elevator.

• Bob Brown's Complaint Form, August 31, 1999. Applicant's Record, vol. I, Tab 3, Exhibit A at 101
• National Capital Commission's position regarding allegations of the Complaint and Complainants Reply. Applicant's Record, vol. I, Tab 3, Exhibit #1 at 187
• Brown v. National Capital Commission et al., 2006 CHRT 26 at paras. 248, 256 [Tribunal Decision]. Applicant's Record, vol. I, Tab 2

4. The construction of the York Steps was completed in and around 1999. The Brown hearing was held in 2003 and 2004. The Daly site elevator was fully operational only in the spring of 2005; six years after Mr. Brown launched his human rights complaint and over a decade after the NCC first decided to proceed with the inaccessible design of the York Steps. A more detailed chronology of the design process is set out in the CCD's Memorandum of Law and Fact in the companion Application for Judicial Review filed by Public Works and Government Services Canada (File No. T-1132-06).

• NCC's Notice of Application at paras. 2(a), (g) & (i). Applicant's Record, vol. I, Tab 1 at 4, 6 & 7

5. Subsequent to receiving Mr. Brown's complaint, the NCC retained an architectural firm to review the accessibility of the York Steps. At the human rights hearing, the NCC's architects acknowledged that persons with disabilities were denied direct access at the York Steps and were forced to expend greater effort, time and energy traveling the additional distance as a result of being "displaced" from the York Steps. The NCC's architects recognized that due to "the sheer size of the block", travel to the alternate site "still involved a great deal of distance for person in wheelchairs". The NCC's architects confirmed that the Daly site constituted a 30% increase in distance over direct access at the York Steps. The NCC's architects conceded that it was technically feasible to provide accessibility at the York Steps by installing an elevating device.

• Tribunal Decision, supra at paras 20, 36, 54, 82, 108, 147, 232 & 233. Applicant's Record, vol. I, Tab 2
• Transcript of cross-examination of Martin at 2211, 2328 at line 1 & 2333. CHRC Record, vol. 7, Tab 16 at 1869, Tab 20 at 1928 & 1933
• Transcript of examination-in-chief of Martin at 2058 at lines 11-13, 2061, 2062 at lines 1-3 CHRC Record, vol. 7, Tab 20 at 1860, 1863, & 1864
• Transcript of cross-examination of Corush at 1682 at lines 15-17. CHRC Record, vol. 7, Tab 11 at 1819
• 6. The Tribunal also heard evidence from the NCC's chief landscape architect responsible for the York Steps project, who affirmed that, from the outset, a paramount consideration for the NCC was that the "viewshed had to be protected at all costs".
• Tribunal Decision, supra, at paras. 88, 180. Applicant's Record, vol. I, Tab 2
• Transcript of cross-examination of Lajeunesse at 2554 at lines 12-17. CHRC Record, vol. 7, Tab 23 at 1963

PART II—POINTS IN ISSUE

7. The CCD's Intervention in this case is directed at the following points:

A. The inaccessibility of the York Steps constitutes discrimination contrary to the Canadian Human Rights Act.

B. The duty of accommodation includes a duty to meaningfully consult. The NCC failed both to undertake meaningful consultations and to provide accommodation short of undue hardship.

C. The York Steps come within the purview of section 5 of the Canadian Human Rights Act.

PART III—SUBMISSIONS

A. Contextual Background

8. Persons with disabilities comprise a significant part of Canada's population. In 2001, 12.4 % of the population, or 3.6 million Canadians, reported having some degree of disability. Approximately 48% of all adults with disabilities live with mobility, agility and pain-related disabilities. As such, these three conditions, which often occur in combination, constitute the most prevalent disability categories in Canada. Disability rates increase with age and recent Canadian studies indicate that 40.5% of seniors over the age of 65 have a disability. The most common disabilities amongst the senior population are also mobility (77.9%), agility (72.1%), and pain (61.1%).

• Office for Disability Issues, Disability in Canada, A 2001 Profile (Ottawa: Human Resources Development Canada, 2003) at 7, 17 & 18. CCD's Book of Authorities, Appendix B at vol. 2, Tab 15 [Appendix B]
• Canadian Council on Social Development, Disability Information Sheet, No. 19
• (Ottawa: Canadian Council on Social Development, 2005) at 7. Appendix B at vol. 2, Tab 16

9. The Government of Canada has affirmed its "commitment to making Canada a truly accessible society for all" where people with disabilities can "live to their fullest potential". The Government has recognized that "human rights are fundamental to the full participation of people with disabilities" and that key requirements for such participation are accessibility and disability supports. "Without them, people with disabilities risk being excluded." In this regard, the Canadian Government has pronounced that "we all have a responsibility to remove the barriers that prevent the full participation of people with disabilities in Canadian society, and to create a more accessible Canada".

• Human Resources and Social Development Canada, Advancing the Inclusion of People with Disabilities (2006) (Ottawa: Human Resources and Social Development Canada, 2006) at Introduction and p.5, [Advancing Inclusion 2006]. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 19

B. Universal Design Is Integral to Human Rights Principles

10. Universal design is a proactive approach towards ensuring that services, products and environments are accessible and usable by the broadest possible community, without the need for specialized adaptations, additional modifications or after-the-fact redesign. Universal design addresses not only accessibility for those with physical disabilities, but also for those with vision, speech, hearing and cognitive disabilities. The expert evidence, which the Tribunal accepted, explained that universal design is founded upon seven principles: equitable use, flexibility in use, simple and intuitive use, perceptible information, tolerance for error, low physical effort and size and space for approach and use.

• Tribunal Decision, supra at paras. 36, 197, 198 & Decision Appendix. Applicant's Record, vol. I, Tab 2

11. These seven principles speak to ensuring that the environment is equally available, appealing and useful to a diverse population by providing the same means of use and avoiding segregating or stigmatizing any users. An example of universal design commonplace in modern communities are low floor buses, which, by lowering the bus floor to the curb, allows riders using wheelchairs, riders with strollers, riders with mobility constraints and riders with heavy baggage, to easily board and disembark the bus along with other riders. The Supreme Court of Canada recently emphasized that with respect to disability it is vital to recognize "the special needs and actual capacities of persons affected by a broad variety of different disabilities in many different social contexts".

• Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 at para. 93 [Martin]. Appendix B at vol. 1, Tab 1

12. All parties in the case at bar agreed that universal design principles provide the framework for determining the form of accommodation that is appropriate in a particular situation. The Tribunal recognized that universal design is the very means by which the objects of the Canadian Human Rights Act, namely equality, inclusion and respect for human dignity, are achieved. Universal design promotes diversity and facilitates accommodation for a wide range of populations. In so doing, universal design converges with and advances human rights protections:

The principles of universal design derive from the same notion of equality that lies at the heart of the Canadian Human Rights Act. It seems to me that the principles of universal design can be seen as a natural elaboration of the notion of equality, outside the law, in the field of architecture and plan

ning.

• Tribunal Decision, supra at paras. 197, 198. Applicant's Record, vol. I, Tab 2

13. Universal design has particular import for the disability community. The Supreme Court of Canada has highlighted the 'social construction' of disability as attitudes, systems, practices or circumstances outside of the individual, which serve as obstacles to their participation in society. This approach recognizes the causality of social forces, especially the physical environment, in engendering disability disadvantage. By setting the stage to enable or disable capabilities, the physical environment can accentuate or ignore the disability, as well as reflect social norms and attitudes in the spatial structure. The Supreme Court acknowledged that "[e]xclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and unfortunately, by the state itself." An appreciation of this complex interface of internal and external factors that produce disability disadvantage spotlights the serious human rights implications of inaccessible architecture and the significance of universal design.

• Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665 at paras. 71, 72, 77- 81 [Mercier]. Bob Brown's Book of Authorities at Tab 6
• Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at paras. 30, 34, 36, 37 & 39 [Granovsky]. Bob Brown's Book of Authorities at Tab 22

14. The importance of physical accessibility as a means to foster substantive equality for persons with disabilities is widely recognized within the international human rights community. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, a comprehensive statement of disability rights and principles promulgated by the United Nations in 1993, speak to the importance of accessibility for equalizing opportunities in all sectors of society. Rule 5 provides that States "should initiate measures to remove the obstacles to participation in the physical environment ... [and] ensure accessibility to various areas of society, such as housing, buildings...streets and other outdoor environments". Rule 5 highlights that "accessibility requirements should be included in the design and construction of the physical environment from the beginning of the designing process".

• Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res. 48/96, UN GAOR, 48th Sess., Supp. No. 49, UN Doc A/48/49 (1993) r. 5 (emphasis added). Appendix B at vol. 2, Tab 17

15. The United Nations General Assembly recently adopted the Convention on the Rights of Persons with Disabilities (Convention), open for ratification in March 2007. The Convention recognizes "the importance of accessibility to the physical, social, economic and cultural environment." The Convention mandates that States undertake to "...promote...development of universally designed goods, services, equipment and facilities". Universal design is defined in Article 2 as "the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design." Article 2 further provides that universal design "shall not exclude assistive devices for particular groups of persons with disabilities where this is needed." Canada participated in the negotiations of the Convention and has expressed serious intention towards ratification.

• Convention on the Rights of Persons with Disabilities, Adopted by UN GA 13 December 2006: UN GAOR Plen., 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006), open for Signature March 2007, at Preamble (v), arts. 2, 4, & 9. Appendix B at vol. 2, Tab 18
• Advancing Inclusion 2006, supra at 10, 11. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 19

16. Canada has committed itself internationally to the protection and promotion of human rights for persons with disabilities through the principles of accessibility and inclusion. These principles and obligations have been incorporated into domestic human rights law and advanced in Supreme Court jurisprudence. Through their support and endorsement of various international instruments, Canadians recognize the importance of full accessibility to physical, social, economic and cultural environments and are committed to principles of universal design as a proactive means to prevent obstacles to the participation of the disability community in these environments.

• Ena Chadha & C. Tess Sheldon, "Promoting Equality: Economic and Social Rights for Persons with Disabilities Under Section 15" (2004) 16 N.J.C.L. 27 at 52. Appendix B at vol. 2, Tab 19

17. The principle of inclusion is central to the philosophy of universal design and equality for persons with disabilities. Eschewing a delayed accommodation of difference, universal design seeks to promote participation of persons with disabilities in all aspects of community life. Universal design recognizes that there must be an ethic of proactive inclusion, which signals that persons with disabilities are welcome in society and will not be forced to battle barriers at every step.

18. The Supreme Court of Canada has recognized that upfront inclusion benefits all of society, and not just persons with disabilities. On behalf of the Court in Meiorin, Justice McLachlin (as she then was) noted that at the heart of equality is the value of inclusion. The fundamental principle affirmed in Meiorin, and reinforced in Grismer, is that the concept of equality, particularly in the context of disability, requires that inclusion be considered in the first instance, and not as a belated measure. The Court highlighted that the discriminatory dilemma posed by after-the-fact accommodation is that "the formal standard itself always remains intact." Instead, the Court instructed "[s]tandards must be as inclusive as possible." Respondents now have a positive obligation to design their policies, practices and premises so that inclusion and equality are built into these systems from the outset.

• British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 at paras. 40, 41, 55 & 68 [Meiorin]. Applicant's Book of Authorities at Tab 12
• British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 22 [Grismer]. Applicant's Book of Authorities at Tab 14

19. While the NCC professes to uphold the principles of universal design, its practise reveals otherwise. The choice to accept a design that segregates, as the NCC did with the York Steps, is inconsistent with both the principles of universal design and its obligations entrenched in human rights law. The Supreme Court has counselled that "[t]o the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced".

• Meiorin, supra at para. 68. Applicant's Book of Authorities at Tab 12

20. The Tribunal was cognizant of the foregoing counsel and properly ordered that the inaccessibility of the York Steps must be rectified through consultation. By requiring the NCC to take such steps, the Tribunal appreciated that:

As a universal human condition, one which all people to one degree or another share, disability ought to be a profoundly integrating feature of humanity, not a segregating one. When, because of prejudice, ignorance, or ulterior motives, disability is taken as a reason for unequal treatment—in employment, education, housing, or some other area of human social participation—the appropriate legal tool is anti-discrimination law. Treatment that is disrespectful, one which creates disadvantage, abuse, or neglect on the basis of disability, is unequal treatment warranting a corrective social response.

• Jerome E. Bickenbach, "Disability and Equality" (2003) 2 J.L. & Equality 7 at 11. CCD's Book of Authorities, T-1132-06, Appendix B at Tab 18

C. York Steps Perpetuate Historical Exclusion and Segregation

21. The Supreme Court of Canada has observed that the history of persons with disabilities in Canada is one of exclusion and marginalization. They have too often been denied access to opportunities for social interaction and advancement; subjected to invidious stereotyping and relegated to institutions; excluded from the labour force; subjected to paternalistic attitudes of pity and charity; face persistent social and economic disadvantage and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms.

• Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56 [Eldridge]. Bob Brown's Book of Authorities at Tab 8

22. Historically, exclusion of persons with physical or mental disabilities was carried out through banishment and ostracization; while, in more modern history, exclusion was accomplished through institutionalization. In current society, exclusion predominantly materializes through "ableist geographies", that being the countless physical barriers which impede the mobility, access and participation of persons with disabilities, as well as deny them the concomitant opportunities and privileges of inclusion. This, in turn, reinforces the stigma of persons with disabilities as "outsiders" and perpetuates a cycle of oppression:

The fourth reality which people with disabilities experience is that these pervasive, pejorative and patronizing attitudes transform into a litany of exclusion and discrimination. The exclusion of so many people with disabilities from much of society's mainstream results principally from longstanding, pervasive practices of both intentional and inadvertent disability based discrimination. Most of our mainstream institutions, laws, organizations, buildings, telecommunication systems, schools and universities, public policy initiatives, job descriptions, transit services and other facilities are designed and operated on the unarticulated, erroneous and unfair premise that only persons without disabilities could, would or should participate in or use them. Their design often includes barriers impeding people with disabilities, because their designers do not take into account the needs of persons with disabilities who might wish to avail themselves of them.

• David Lepofsky, "The Charter's Guarantee of Equality to Persons with Disabilities: How Well Is it Working? (1998) 16 Windsor Y.B. Access Just. 155 at 160. Appendix B at vol. 2, Tab 20
• See also Rob Kitchin, "'Out of Place'. 'Knowing One's Place': space, power and the exclusion of disabled people", (1998)13 Disability & Society, No. 3, 343 at p.347 Appendix B at vol. 2, Tab 21; and Turnbull v. Famous Players Inc. (No. 1) (2001), 40 C.H.R.R. D/333 at para. 10. Applicant's Book of Authorities at Tab 11

23. These barriers have serious negative ramifications for persons with disabilities who are forced to incur greater time, effort and expense to carry out daily activities. People with disabilities routinely pay more than the general public for basic goods and services because they have restricted access to commercial and other public places and are limited in terms of mobility and energy. The direct and indirect 'costs' of such barriers include extra exertion and effort in co-ordinating travel, wear and tear on equipment and muscles, fatigue and often isolation. Disability scholarship highlights the compound effect of such direct and indirect adverse 'costs' of inaccessibility:

An inaccessible built environment has a knock-on effect for a wide range of activities, including the choice about where and when to work, type and location of housing, and participation in leisure activities. This in turn inhibits earning and shopping opportunities, while also often leading to higher travel costs and investment of more time in making the necessary or alternative arrangements.

• Colin Barnes & Geof Mercer, Disability (Cambridge, U.K.: Polity Press, 2003) at 50. Appendix B at vol. 2, Tab 22
• See also Kitchin, supra at p.348-9. Appendix B at vol. 2, Tab 21; and Chadha & Sheldon, supra at 63. Appendix B at vol. 2, Tab 19

24. The compound repercussions of inaccessible and ableist environments aggravate and magnify the pre-existing systemic disadvantages endured by the disability community which frustrate their inclusion in society: ... when we refer to ableist environments we are talking about spaces in which people with disabling differences are multiply disadvantaged; where lack of access to spaces of everyday life and spatial isolation are compounded and complicated by such facets of social exclusion as poverty inadequate supports services, barriers to inclusion in significant social institutions, and negative reactions to the presence of disabled persons in space constructed as 'able-bodied'.

• Vera Chouinard, "Making Space for Disabling Differences: Challenging Ableist Geographies" (1997) 15 Environment and Planning D: Society and Space 379 at 382. Appendix B at vol. 2, Tab 23

25. The Tribunal recognized that this very phenomenon of marginalization was operating in this case when the Tribunal pointedly noted that the circuitous "detour" necessitated by the inaccessibility of the York Steps placed an "extra burden" on those very individuals who had the most difficulty travelling.

• Tribunal Decision, supra at paras. 232, 235. Applicant's Record, vol. I, Tab 2

26. The evidence of the CHRC's Accessibility Expert and the NCC's architects spotlighted the powerful discriminatory dynamic apparent in this case. These witnesses exposed the many layers of prejudicial treatment that manifest due to the inaccessibility of the York Steps, as well as the disadvantages associated with the Daly site that vitiate its viability as a form of accommodation. These include:

a) Denial of Access—no direct access on site and denial of convenient thoroughfare route.

• Tribunal Decision, supra at paras. 32, 33, 42, 55, 129, 134 & 139. Applicant's Record, vol. I, Tab 2

b) Denial of Benefits—no direct access restricts user flexibility, including choice of travel method, route and spontaneity of travel, as well as denies pleasure of green space and vista.

• Tribunal Decision, supra at paras. 36, 235, 257, 259-261. Applicant's Record, vol. I, Tab 2

c) Exacerbates Pre-Existing Disadvantages—compound repercussions of expending greater time, effort, energy, further travel distance and potentially aggravating health conditions, as well as inconvenience of ascertaining accessible route, locating and navigating a circuitous detour route.

• Tribunal Decision, supra at paras. 36, 42. Applicant's Record, vol. I, Tab 2
• Transcript of examination-in-chief of Rapson at 690, lines 7-14. CHRC Record, vol. 4, Tab 4 at 1009

d) Segregation and Stigmatizes—harm to dignity by splitting up travellers and displacing and isolating persons with disabilities.

• Tribunal Decision, supra at paras. 21-23, 81, 108, 139 & 237. Applicant's Record, vol. I, Tab 2

e) Inferior and Delayed Alternate—"another location altogether" constituting 30% greater distance than direct access and only fully operational spring 2005.

• Tribunal Decision, supra at paras. 233, 234 & 248. Applicant's Record, vol. I, Tab 2
• NCC's Notice of Application at para. 2(i). Applicant's Record, vol. I, Tab 1 at 6

27. The foregoing catalogue of discriminatory treatment reveals that, as a result of the NCC's design, construction and maintenance of the York Steps, the disability community was denied direct access to the service, provided with fewer options, experienced unfair limits on their social participation and subjected to segregation and stigmatization. There can be little doubt that by constructing this $1.7 million monument of inaccessibility, the NCC offended the dignity of Mr. Brown and the disability community at large.

• Tribunal Decision, supra at paras. 23, 56 & 237. Applicant's Record, vol. I, Tab 2

D. NCC Violated Duty to Accommodate Short of Undue Hardship

28. The duty of accommodation refers to the obligation of service providers to take appropriate steps to provide supports, and or, eliminate impediments and disadvantages that hinder persons with disabilities from access to and benefit of the service. Given the varying ways in which accommodation may be effected, the Supreme Court has described the meaning of accommodation in expansive terms. "'Accommodation' refers to what is required in the circumstances to avoid discrimination."

• Grismer, supra at para. 22. Applicant's Book of Authorities at Tab 14

29. The Supreme Court has established a three part framework for assessing whether the duty to accommodate has been satisfied. If a prima facie case of discrimination is found, the accommodation provider must establish on a balance of probabilities that the discriminatory standard: (1) was adopted for a purpose or goal that is rationally connected to the function being performed; (2) was adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and (3) is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

• Meiorin, supra at para. 54. Applicant's Book of Authorities at Tab 12
• Grismer, supra at para. 20. Applicant's Book of Authorities at Tab 14

30. The duty of accommodation is qualified only to the extent that the accommodation provider encounters "undue hardship". Due to the fundamental importance of ensuring that persons with disabilities achieve equality, the Supreme Court has set a high standard for demonstrating undue hardship. To excuse a failure to accommodate, it must be shown that it was "impossible" short of undue hardship to accommodate the affected community:

To show that the [discriminatory] standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship....

• Meiorin, supra at para. 72. Applicant's Book of Authorities at Tab 12

31. Under section 15(2) of the CHRA, there are only three statutorily prescribed factors for establishing the defence of undue hardship: health, safety and costs. Long-standing principles of statutory interpretation applicable to human rights law propound that while human rights protections receive broad and liberal interpretation, exceptions and defences are narrowly construed. The Supreme Court recently reiterated "...the Canadian Human Rights Act is a quasi-constitutional document and we should affirm that any exemption from its provisions must be clearly stated."

• Canadian Human Rights Act, R.S., 1985, C. H.-6, s. 15(2) [CHRA]. CCD's Memorandum of Fact & Law, Appendix A
• Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536 at 546, 547. Bob Brown's Book of Authorities at Tab 4; Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 1114 at 1136, 1137 CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 11; Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (BOI) at para 70, 71. Bob Brown's Book of Authorities in Application No. T-1132-06 at Tab 10
• Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667 at para. 81. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 6

32. Given that the CHRA has explicitly identified and limited the factors pertinent to a defence of undue hardship, it is clear that aesthetics and design convenience are inappropriate considerations. The Supreme Court has repeatedly admonished that "impressionistic" ideas or evidence cannot discharge the high burden of proving undue hardship. Because of the common perception that accommodation measures and disability features are unusual or odd, if imported into the defence of undue hardship, aesthetics and design convenience pose grave danger for the rights of persons with disabilities. As the Supreme Court pointedly observed, the historical disadvantaged status of persons with disabilities "...has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw." The CCD submits that section 15(2) provides a comprehensive statutory framework for determining whether accommodation short of undue hardship was satisfied. Consequently, it unnecessary from a legal perspective and unacceptable from a disability rights perspective, to inject unprecedented criteria into the accommodation analysis, especially when those factors risk invocation of pejorative stereotypes.

• Grismer, supra at para. 41. Applicant's Book of Authorities at Tab 14
• Quesnel v. London Educational Health Centre, supra at para. 70, 71. Bob Brown's Book of Authorities at Tab 10
• Eldridge, supra at para. 56. Bob Brown's Book of Authorities at Tab 8

33. The NCC claims that, at the time of initial design, full accessibility was too difficult to implement at the York Steps. Ultimately in 2002, the NCC firmed up plans for the Daly site as purportedly the best option for providing accessibility. Contrary to its claims, the NCC's own witnesses confirmed that, while full accessibility was technically feasible at the York Steps, aesthetic considerations were paramount and "to be protected at all costs." Moreover, "there was no serious discussion of the Connaught Building." The Tribunal found that the NCC's approach treated accessibility on a secondary, belated and segregating basis:

The NCC, for its part, has essentially admitted that the York Street Steps were constructed without access, on the rather vague understanding that an elevator would probably be provided at the Daly site. This merely proves the point: the NCC was prepared to build the steps without access, on the basis that it could somehow remedy the situation in the future. It seems to me that this idea openly contravenes s. 5 of the Canadian Human Rights Act.

• Tribunal Decision, supra at paras. 91, 253. Applicant's Record, vol. I, Tab 2
• Transcript of cross-examination of Corush at 1682 at lines 15-17. CHRC Record, vol. 7, Tab 11 at 1819
• Transcript of cross-examination of Lajeunesse at 2554 at lines 12-17. CHRC Record, vol. 7, Tab 23 at 1963

34. The Supreme Court unanimously held in Meiorin that the right to equality and the duty to accommodate create a primary obligation to systemically address the sources of discrimination. Respondents "must build conceptions of equality into [their] standards." In Grismer, the Supreme Court reiterated that all service providers:

... governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics.

• Grismer, supra at para. 19. Applicant's Book of Authorities at Tab 14
• Meiorin, supra at para. 68. Applicant's Book of Authorities at Tab 12

35. Thus, human rights law mandates the provision of full accessibility as the means foremost to achieve substantive equality. Only in situations where providing full accessibility incurs undue hardship because of health, safety or costs, can modified or alternate access be considered. The Supreme Court has unequivocally stated that "[e]xclusion is only justifiable where the employer or service provider has made every possible accommodation short of undue hardship." The NCC failed to appreciate the scope of this obligation, and resorted to segregated access simply because of inadequacies in its design ingenuity. The NCC selected the least dignified option of segregated access, subordinating inclusion and equality to aesthetics and design convenience. The NCC clearly failed to satisfy its duty to accommodate short of undue hardship when, in 1994, it preemptively opted to build the York Steps without accessibility considerations.

Grismer, supra at para. 21. Applicant's Book of Authorities at Tab 14 Tribunal Decision, supra at paras. 226, 235 & 237. Applicant's Record, vol. I, Tab 2

36. If permitted to rely on the entire block of Sussex Drive and Mackenzie Avenue as the 'area of concern' to defend against the discrimination occurring at the York Steps, the NCC circumvents its duty to build equal services through accessible standards in the first instance. In fact, the NCC's Daly site defence harkens back to the era of 'separate but equal', where the rhetoric of formal equality propagated racial segregation and relegated racial and ethnic minorities to separate entrances.

• Applicant's Memorandum of Fact and Law at para. 82. Applicant's Record, vol. II, Tab 5

37. A number of discriminatory myths underlie the NCC's decision to adopt a 'retrofit strategy'. The NCC's after-the-fact approach to accessibility reveals that the needs and interests of the disability community to access the York Steps were regarded as inferior to the interests of non-disabled community. The NCC's contention that the Steps could not be designed without affecting the aesthetic appearance of the location or jeopardizing the "viewshed" echoes the pervasive belief that accessibility features are mundane, unattractive and off-putting. By giving priority to aesthetics over human rights and function, the York Steps now effectively stand as testament of the NCC's indifference towards accessibility and the second class status of persons with disabilities in Canadian society.

• Tribunal Decision, supra, at paras. 88, 180. Applicant's Record, vol. I, Tab 2
• Transcript of cross-examination of Lajeunesse at 2554 at lines 12-17. CHRC Record, vol. 7, Tab 23 at 1963
• Barnes & Mercer, supra, at 52. Appendix B at vol. 2, Tab 22
• Chouinard, supra at 380, 383 & 386. Appendix B at vol. 2, Tab 23

38. The approach taken by the NCC, which holds it acceptable to construct new government properties without addressing the needs of persons with disabilities in the design stage, is seriously problematic. Not only does it embed inaccessible design as the norm, but it erects a national edifice of inaccessibility for future generations. Under human rights law, the NCC was required to provide for full accessibility when designing the York Steps so that persons with disabilities could have direct access to the thoroughfare. Instead, the NCC constructed an entirely new barrier, at the cost of $1.7 million dollars.

E. Consultation is Fundamental to Duty of Accommodation

a) Consultation is Important to Upholding Disability Rights

39. In a long line of disability jurisprudence, the Supreme Court of Canada has espoused the view that government should take positive action to ensure that persons with disabilities benefit equally from services offered to the general public. This involves being sensitive to the differences and needs of the disability community in order to protect and promote their human rights. These guiding principles presume a process of consultation and create an obligation on part of government service providers to consult with persons with disabilities to ensure that government fully understands and appreciates the groups' needs, capabilities and desires.

See Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 67 [Eaton]. Bob Brown's Book of Authorities at Tab 9; Eldridge, supra at para. 73. Bob Brown's Book of Authorities at Tab 8; Grismer, supra at paras. 2, 41. Applicant's Book of Authorities at Tab 14; Granovsky, supra at para. 30. Bob Brown's Book of Authorities at Tab 22; Martin, supra at paras. 81,82 & 93. Appendix B at vol. 1, Tab 1

40. The importance of the duty to consult with persons with disabilities is informed by the historical location of the disability community in society. Traditionally, persons with disabilities have been treated as objects of charity, dependent on social protection and incapable of making decisions as to their needs and well-being. This created a paternalistic dynamic that subverted the right that persons with disabilities have to individual choice and personal responsibilities. The obligation to consult is borne out of the realization that 1.) people with disabilities have a right to identify their needs and are in the best position to develop strategies on how these can be met, and 2.) there is intrinsic value to consultation because it fosters the inclusion, independence and inherent dignity of the disability community.

• Eldridge, supra at para. 56. Bob Brown's Book of Authorities at Tab 8
• Marcia Rioux, "Rights, Justice, Power: An Agenda for Change, A Culture of Diversity, Rights-Based Technology", Perspectives on Disability 2nd, ed. Mark Nagler, (Hamilton: Health Market Research, 1993) 515 at 517-520. Appendix B at vol. 2, Tab 24
• Kitchin, supra at 343-44. Appendix B at vol. 2, Tab 21
• Barnes & Mercer, supra at 50. Appendix B at vol. 2, Tab 22

41. Consultation involves deliberately moving beyond the traditional model of professional 'experts' and recognizing that persons with disabilities are the 'experts' when it comes to their needs, capabilities, desires and interests. Persons with disabilities should have choice and control in how their services are designed and delivered. The obligation to consult provides a mechanism for persons with disabilities to confront and dispel negative attitudes, stereotypes and practices that in the past, whether intentional or not, prevented social inclusion. Including the perspectives of persons with disabilities means:

...giving people autonomy, self-determination and power to make decisions for themselves and look after their own needs. It advocates for the citizenship, self-determination and equality of people with disabilities—basic benefits and rights the rest of society already has. On behalf of people with disabilities the new agenda claims their right to entitlement to participate. .... It involves giving over the power of the service provider, the medical professional, the health care worker, the social worker to the person with a disability. ...For those without disabilities it means giving up their position of power and authority, and recognizing that the expertise lies in the hands of the consumer of services.

• Rioux, supra at 517. Appendix B at vol. 2, Tab 24
• See also Kitchin, supra at paras. 343, 346 & 347. Appendix B at vol. 2, Tab 21

42. Meaningful consultation has an inclusionary and emancipatory effect, whereas failure to consult disempowers and disenfranchises persons with disabilities. As evidenced in the facts of this case, failure to meaningfully consult alienates and exacerbates the experience of persons with disabilities as 'outsiders'. An accountable and transparent consultation process is fundamental and vital to persons with disabilities: it acknowledges that the voice of the disability community is heard and provides a means to hold government responsible for decision-making in the interests of the community. Consultation enhances the disability community's capacity to engage, participate and thereby be full and active citizens.

43. In the present case, the architect responsible for the design stage of the York Steps acknowledged that "there was no real process of consultation and the architects relied on their own judgement." This architect testified that many of the design considerations, including safety, were "intuitive" from "past experiences" and "impressions". Based on these intuitive considerations, the architects "felt it easier [for disabled people] to go a different way" than the York Steps. The CCD submits that this is a conspicuous example of the dangers caused by failing to consult. Failure to consult creates the risk that deeply entrenched social myths, negative attitudes and paternalistic ideas about the needs and capabilities of persons with disabilities will seep into the assessment process of professional 'experts' and thereby reinforce pernicious stereotypes.

• Tribunal Decision, supra at para. 108. Applicant's Record, vol. I, Tab 2
• Transcript of cross-examination of Corush at 1705-1709. CHRC Record, vol. 7, Tab 12 at 1835-1839
• Rioux, supra at 520. Appendix B at vol. 2, Tab 24

44. The importance of consulting with persons with disabilities has been consistently acknowledged and included in international human rights instruments. The international human rights community agrees that persons with disabilities must have the opportunity to be actively involved in decision-making processes that directly and indirectly affect them.

See UN Convention on the Rights of Persons with Disabilities, supra at Preamble, arts. 3, 4. Appendix B at vol. 2, Tab 18; UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, supra at r. 5, 11, 12 & 21. Appendix B at vol. 2, Tab 17; Declaration on the Rights of Disabled Persons, GA Res. 3447 (XXX), UN GAOR, 30th Sess., Supp. No. 34, UN Doc. A/10034 (1975) at arts. 3, 5, 8 & 12. Appendix B at vol. 2, Tab 25; Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities, AG/RES. 1608, 7 June 1999, art. V. Appendix B at vol. 2, Tab 26.

b) NCC Did Not Meaningfully Consult

45. Based on extensive viva voce evidence from numerous witnesses, the Tribunal found that the NCC's efforts at consultation was "rushed", "inadequate", "deficient" and "selective". Dubious of the NCC's consultation, the Tribunal suggested that it seemed "the results were pre-ordained". Given the magnitude of the testimonial and documentary evidence in this regard, the Tribunal's findings should not be disturbed.

• Tribunal Decision, supra at paras. 117, 119, 218, 222, 226, 240-43, 263 & 298(11). Applicant's Record, Vol. I, Tab 2
• Green v. Canada (Public Service Commission) [2000] 4 F.C. 629 at para. 134. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 15

46. The NCC's accommodation inquiry clearly did not consider the myriad of obstacles and difficulties persons with disabilities encounter in navigating the outside environment. Had a meaningful consultation been undertaken, the NCC would have become cognizant of the reality that for persons with disabilities, travel can entail significant time and effort. One such example noted by the Tribunal was the difficult incline wheelchair users experience in negotiating McKenzie Avenue from the Daly site. Had the NCC properly consulted, it would never have pursued a segregating detour design that generated extra burdens for persons with disabilities. The fact that the NCC resiles from the duty to consult reflects the faulty belief that government knows what is best for persons with disabilities.

• Tribunal Decision, supra at paras. 20, 232 & 235. Applicant's Record, vol. I, Tab 2

47. Further, the NCC's arguments run afoul with long-standing human rights principles. The NCC suggests that appropriate considerations for assessing undue hardship include aesthetics and design convenience. The CCD disagrees that aesthetic and design convenience are legitimate considerations for the assessment of undue hardship. These considerations are not simply neutral concepts; they are imbued with social norms and subjective views of what is attractive, conventional design practices and customary design features. A meaningful consultation would shed light on how these concepts can adversely affect persons with disabilities in their daily lives.

• Chouinard, supra at 380, 383. Appendix B at vol. 2, Tab 23
• Rioux, supra at 517-520. Appendix B at vol. 2, Tab 24
• See also Kitchin, supra at 346. Appendix B at vol. 2, Tab 21

48. A meaningful consultation process for developing appropriate accommodation in the architectural context must involve an open and transparent brainstorming process to ascertain the nature of the barrier. This process must include all stakeholders, including the individual client and interested constituent groups, the goal being to identify the obstacles and experiences, as well as the potential approaches and solutions to the problem. It is crucial to include the client and constituent groups in the earliest stage of the process in order to gain an understanding of human functioning, the disability needs and the person-community-environment interaction.

• Tribunal Decision, supra at paras. 240, 250. Applicant's Record, vol. I, Tab 2

c) Consultation at the Heart of Accommodation

49. The Tribunal recognized that accessibility accommodation requires collaboration, consultation and partnership with persons with disabilities. The duty to consult flows from the statutory duty of accommodation and is triggered by the obligation to canvass the needs of the individual(s) who require accommodation. This finding is consistent with the purposive approach to human rights and the goals of accommodation. Consultation is simply a corollary to fundamental disability rights principles of inclusion, independence and inherent dignity.

• Tribunal Decision, supra at paras. 212-23, 225 & 298(5). Applicant's Record, Vol. I, Tab 2

50. The duty to consult recognizes that there are a variety of different ways in which disability needs may be accommodated. Consultation is intended fulfill the respondent's obligation to inform itself of the disability needs, the effects of the barrier, and how the proposed accommodation will mitigate the barrier. A respondent must consider diverse means to achieve its objectives and perform its task so as to ensure the disability needs are satisfied short of undue hardship:

The duty to accommodate has both substantive and procedural components. The duty is to take steps, short of undue hardship to accommodate the individual's needs. One requisite step is for the employer or other parties under a duty to accommodate to undertake a thorough and adequate process of inquiry and deliberations on the request for accommodation. [...] Investigation and deliberation can lead the parties to come up with new options for accommodation that had hitherto not been contemplated. The wider the range of discussions and inquiry, the greater the chance that a workable accommodation will be uncovered.

• David Lepofsky, "The Duty To Accommodate" (1993), 1 Can. Lab. L. J. 1. at 13-14. CHRC Book of Authorities, vol. 9, Tab 23

51. In Meiorin and Grismer, the Supreme Court agreed that accommodation has both a procedural and substantive aspect. The procedural component refers to the obligation on a respondent to investigate all viable forms of accommodation. The substantive aspect considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. The Supreme Court held that it is the respondent who bears the onus of demonstrating impossibility to accommodate those who share the characteristics of the claimant without imposing undue hardship. The Supreme Court stated this requires a comprehensive investigation and analysis of disability-related needs, the bona fides of the impugned standard, alternatives to that standard, as well as options to satisfy the needs. Clearly, such an investigative and analytical process involves a fulsome consultation with those affected by the standard.

• Tribunal Decision, supra at 212, 298 (5). Applicant's Record, vol. I, Tab 2
• Meiorin, supra at paras. 62-68. Applicant's Book of Authorities at Tab 12
• Grismer, supra at para. 23, 42. Applicant's Book of Authorities at Tab 14
• Lepofsky, supra at 13-14, CHRC Book of Authorities, vol. 9, Tab 23

52. The Supreme Court has exhorted that all respondents, employers or service providers, must be respectful of the skills, capabilities and potential contributions of the claimant and be "innovative" when considering how to achieve accommodation goals.

• Meiorin, supra at para. 64. Applicant's Book of Authorities at Tab 12

53. A number of human rights tribunals across the country have recognized the value of consultation on disability accessibility issues, and have ordered respondents to consult with complainants, human rights commissions, and other stakeholders as part of their remedial awards. The expertise and helpful contributions of groups and stakeholders has been recognized in several cases, particularly in the disability accessibility context:

• Moser v. Sechelt (Dist.) (2004), 50 C.H.R.R. D/202 at para. 103. Appendix B at vol. 1, Tab 2
• Ripplinger v. Saskatchewan (Human Rights Commission) [1996] 131 D.L.R. (4th) 697 at 701 and 708 [Ripplinger]. Applicant's Book of Authorities at Tab 11
• McAllister-Windsor v. Canada (Human Resources Development) (2001), 40 C.H.R.R. D/48 at paras. 76, 84 (C.H.R.T.) [McAllister-Windsor]. Appendix B at vol. 1, Tab 3
• Milano v. Triple K Transport Ltd. (2003), 48 C.H.R.R. D/246, 2003 CHRT 30 at paras. 64, 65 & 84(i) [Milano]. Appendix B at vol. 1, Tab 4
• Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at paras. 656, 664, 665 & 667 [Radek]. Appendix B at vol. 1, Tab 5
• Vlug v. Canadian Broadcasting Corp. (2000), 38 C.H.R.R. D/404 at para. 147 (C.H.R.T.). CHRC Record, vol. 10 at Tab 14
• Beryl Nkwazi v. Correctional Services Canada (No.3) (2001), 39 C.H.R.R. D/237 at paras. 274, 275, 277(viii). [Nkwazi]. Appendix B at vol. 1, Tab 6

54. It is a notorious fact that persons with disabilities are disproportionately subjected to systemic discrimination. Consultations have been ordered to combat the longstanding effects of disability disadvantage and target entrenched systemic discrimination. Consultations have also been ordered to stimulate systemic remedies:

• Eldridge, supra at para. 56. Bob Brown's Book of Authorities at Tab 8
• Ripplinger, supra at paras. 4,13. Applicant's Book of Authorities at Tab 11
• McAllister-Windsor, supra at paras. 76, 84. Appendix B at vol. 1, Tab 3
• Milano, supra at paras. 65, 84(i). Appendix B at vol. 1, Tab 4
• Radek, supra at paras. 656, 664, 665 & 667. Appendix B at vol. 1, Tab 5
• Nkwazi, supra at para. 277(viii). Appendix B at vol. 1, Tab 6

d) Accommodation is a Multi-Party Process

55. In Renaud, the Supreme Court pointed out that the search for accommodation is a "multi-party inquiry". All parties must assist in securing appropriate accommodation. The extent of the respondent's inquiries will be evaluated in determining whether the duty of accommodation has been fulfilled. Additional submissions regarding the multi-party nature of the accommodation process are made in CCD's Memorandum of Fact and Law in the companion Application for Judicial Review by PWGSC (File No. T-1132-06).

• Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 994 [Renaud]. Applicant's Book of Authorities at Tab 16
• CCD's Memorandum of Fact & Law in Public Works' Application, T-1132-06 at paras 23(v)

e) Duty to Investigate in Human Rights Law

56. Human rights jurisprudence establishes that employers have a serious obligation to conduct "a full, fair and impartial investigation" regarding an employee's human rights concerns. An employer must demonstrate that it has promptly and effectively addressed concerns of discrimination, including requests for accommodation. In the latter instance, the respondent must show that it canvassed all viable accommodations. A well-developed body of jurisprudence identifies that, for an employer to satisfy this legal obligation, the accommodation inquiry should include discussions with the claimant as to their needs, skills and capabilities; communications with the union, doctors, workers' compensation officials, rehabilitation or occupational specialists; undertake workplace assessments, job analysis functions; and consider alternative work and the interchangeability of operations etc. Clearly, the employer's duty to undertake a thorough investigation in considering all viable forms of accommodation is in effect a thorough consultation on the question of accommodation.

• Grismer, supra at paras. 21. Applicant's Book of Authorities at Tab 14
• Meiorin, supra at paras. 65, 66. Applicant's Book of Authorities at Tab 12
• Kevin D. MacNeill, The Duty to Accommodate in Employment (Aurora, ON: Canada Law Book, 2006) at 13-23—13-54. Appendix B at vol. 2, Tab 27

57. In order to satisfy this important duty to investigate human rights concerns, employers must meet certain criteria such as: prompt inquiries, dealing with issues seriously, ensuring a mechanism in place to consult and allow for the exchange of information, keeping the claimant appraised and obtaining comprehensive information, particularly in accommodation cases, about the barriers and needs presented by the situation and potential solutions. Given this well-established and expansive duty on employers, the CCD submits that a similar obligation must be found to apply to respondents in the service context.

• Murchie v. JB's Mongolin Grill, [2006] O.H.R.T.D. No. 36 at para. 167. Appendix B at vol. 1, Tab 7
• Bryan v. Premark Canada Inc. [1998] O.H.R.B.I.D. No. 18 at para. 97 (QL). Appendix B at vol. 1, Tab 8
• Moffatt v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205 (Ont. Bd.Inq.) at paras. 5, 233, 234 & 246. Appendix B at vol. 1, Tab 9

58. The foregoing human rights standards of investigation and consultation owed to claimant employees must be owed to claimant service patrons as well. The CCD submits that these standards include: investigating the issue promptly and seriously, instituting an inquiry mechanism to gather information, consulting to allow for exchange of information and solutions, transparency, accountability, inclusivity and communication to stakeholders of actions taken. In order for there to be consistency in human rights principles and congruency between the obligations of respondents, the employer's duty to investigate and canvass accommodations must similarly apply to service providers to hold comprehensive consultations that respect the rights and interests of service patrons. As such, it was incumbent on the NCC to take meaningful steps to consult on accessibility just like it is incumbent upon other respondents to conduct full, fair and impartial investigations regarding human rights concerns.

59. The Tribunal fully appreciated that "accommodation short of undue hardship" requires serious and substantial efforts by respondents to investigate accommodation options. Aware that the legitimacy of a respondent's accommodation is based, in part, on the extent and propriety of the respondent's inquiries, the Tribunal found that an appropriate accommodation inquiry must be predicated upon meaningful consultation. Therefore, the Tribunal held that concomitant with the NCC's obligation to investigate accessibility concerns, is the duty to consult in order to search for appropriate resolution to those concerns. The Tribunal found that the NCC's efforts were woefully inadequate and should have involved a more thorough and genuine consultation process. The Tribunal was entirely within its authority to evaluate the NCC's accommodation efforts and to conclude that the failure to meaningfully consult negated these efforts. This finding of discrimination is heavily "impregnated with facts" and evaluations of credibility and therefore should be afforded a high level of deference.

• Tribunal Decision, supra at paras. 212-18, 221-22, 226, 229, 231, 235, 240-50, 251-54, 262-263, 278, 283, 286, 287 & 288. Applicant's Record, Vol. I, Tab 2
• Green, supra at para. 85, citing Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at para. 29. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 15

60. The NCC's interpretation of the duty to accommodate, which rejects an affirmative obligation to consult, would minimize and enfeeble the remedial objects of the CHRA. The result of the NCC's argument would be that a respondent, for example an employer, would have no obligation to consult with stakeholders, such as employees, unions, rehabilitation supports, etc., in investigating accommodation solutions, and could unilaterally impose an accommodation plan.

61. The failure to engage in a meaningful consultation process in this case must be viewed against the backdrop of people with disabilities being routinely and systematically excluded from decision-making about matters affecting all aspects of their lives. The Tribunal's consultation order was designed to engage the affected community, promote accessibility and achieve a workable accommodation. This remedial order reflects the understanding that persons with disabilities must be consulted about their needs and are in the best position to help resolve those needs, and therefore, consultation promotes the equality and inclusion of the disability community consistent with the objects of human rights law.

F. Large and Liberal Interpretation of Services Promotes Disability Rights

62. The Tribunal properly concluded that section 5 of the CHRA includes the York Steps within the protection of "provision of goods, services, facilities or accommodation customarily available to the general public". The NCC's design, construction, maintenance and existence of the York Steps all entail, or relate to, the provision of goods, services and facilities.

• Tribunal Decision, supra at para 162. Applicant's Record, vol. I, Tab 2

63. Human rights statutes are to be given a broad and purposive interpretation to ensure that the goals of the legislation are fulfilled. Section 2 of the CHRA clearly sets forth the legislative purpose of the statute is to ensure that all persons have an equal opportunity to make for themselves the life they wish and to have their needs accommodated in order to participate as full members of society without being hindered and prevented from doing so by discriminatory practices based on disability. This object of the CHRA must be considered when interpreting section 5.

• CHRA, supra at s.2. Appendix A
• Société Radio-Canada v. Bouchard, [1988] F.C.J. No. 957(QL). Appendix B at vol. 1, Tab 10

64. Section 5 of the CHRA directs that all "goods, services, facilities or accommodation customarily available to the general public" provide equal access and benefit to persons with disabilities. This includes the goods, services and facilities provided by roads, sidewalks and travel routes. Discriminatory practices that perpetuate differential treatment or impede access to and benefit of public routes and spaces foreclose the equal opportunities necessary for people with disabilities to actualize their lives and participate as full members of society.

• CHRA, supra at s. 5. Appendix A

65. A large and liberal interpretation of section 5 is consistent with past human rights jurisprudence which has broadly interpreted the term "services" in order to ensure that the objectives of the legislation are fulfilled. Courts and tribunals have found a wide range of activities, programs and operations to constitute the provision of "services", including recent disability human rights cases involving a government built public pathway and a municipal by-law regulating power:

• Moser, supra: A public walkway, built by the municipality and adjacent to a seawall, was held to be an accommodation, service or facility customarily available to the public. Appendix B at vol. 1, Tab 2
• Laidlaw Transit Ltd. (c.o.b. Yellow Cab) v. Alberta (Human Rights and Citizenship Commission), [2006] A.J. No. 1559 at para 62 (QL): The Court found that, even though not the direct service provider, the City of Edmonton, was providing a service customarily available to the public through the enactment of bylaws. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 5

66. The York Steps come within the ambit of both "service" and "facility" because the Steps a) function as a pedestrian thoroughfare between Sussex Drive and Mackenzie Avenue, as well as an access route to Major Hill Park, b) provide the benefit of a convenient shortcut to traverse the hill, and c) provide an outlook from which to view Parliament Hill and other scenic vistas.

67. Human rights jurisprudence accepts that intangible benefits, such as the convenience of a shortcut or the vista provided by the York Steps, constitute services within the purview of human rights protection. In Oliver v. Hamilton (City) the Tribunal found that, despite the intangible nature of the benefit, a Mayoral proclamation of Gay Pride weekend was a service, "because it is generally perceived in the community as being a benefit to the groups that seek it".

• Oliver v. Hamilton (City) (No. 2) (1995), 24 C.H.R.R. D/298 (Ont. Bd.Inq.) at para 32. Appendix B at vol. 1, Tab 11

68. For persons with disabilities access via the York Steps would offer more than a pedestrian thoroughfare. The Tribunal heard cogent evidence that the York Steps provide the convenience of a shortcut and that shorter routes impart significant benefit to persons with mobility disabilities who regularly encounter obstacles in navigating the external environment. Further, the Tribunal heard evidence that access at the York Steps would provide a means for persons with disabilities to traverse the hill without undertaking the onerous 284 metre incline, which was not only more time-consuming, but also described as an "exhausting" experience by the CHRC's Accessibility Expert. For many persons with disabilities such an onerous, time-consuming and exhausting route would be prohibitive.

• Tribunal Decision, supra at paras. 20, 36, 39, 54, 82, 108 & 233. Applicant's Record, vol. I, Tab 2
• Transcript of exam-in-chief of Rapson at 690 at lines 7-14. CHRC Record, vol. 4, Tab 3

69. The NCC makes the error of characterizing the detour route via the Daly site as a viable alternative to the service of the York Steps, rather than appreciating that the York Steps also provide "the means to gain access to the service which is... unavailable to the adversely affected group." A narrow "approach to characterizing the service in issue would defeat the purposes of the Code because it would preclude any inquiry into the essence of the complaint."

• Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) (1997), 30 C.H.R.R. D/262 at paras. 26, 30 (B.C.H.R.T.). Appendix B at vol. 1, Tab 12

70. The NCC argues that the York Steps are not essential for persons with disabilities because there are other travel options, such as the Daly site. However, the CHRA does not distinguish between essential and nonessential services. Such a distinction "would create a level of second class citizens and would not be in accord with the objectives of human rights legislation." By arguing that the York Steps are not a necessary route, the NCC is, in fact, suggesting that it is in a better position to decide for people with disabilities what is necessary and essential. This is a paternalistic approach that entrenches perceptions that people with disabilities are unable to make independent decisions about their needs and are incapable of deciding how best to get where they want to go.

• Applicant's Memorandum of Fact and Law at para. 55. Applicant's Record Vol. II, Tab 5 at 612
• Hill v. Fredericton (City) Mayor [1998] N.B.H.R.B.I.D. No. 1 at para. 29 (N.B. Bd.Inq.) (QL). Appendix B at vol. 1, Tab 13

71. Furthermore, once the NCC deemed it necessary to construct a convenient thoroughfare route at the York Steps, the NCC was obliged to ensure that the disability community could benefit equally from this service offered to everyone else. The NCC's failure to build universal access at the York Steps site, and thereby provide a convenient thoroughfare for persons with disabilities, exacerbated the disparities between non-disabled and disabled pedestrians. The Supreme Court of Canada has repeatedly held that "once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner".

• Eldridge, supra at paras. 72, 73. Bob Brown's Book of Authorities at Tab 8

72. The NCC argues that the York Steps do not amount to a "service", but is willing to concede that the Steps may be a "facility". It is unclear whether the NCC acknowledges that it was providing a service customarily available to the public when it designed and constructed the York Steps as a convenient thoroughfare. Not only do the York Steps provide a service, the CCD submits that the NCC, pursuant to its mandate, also provides a service of enhancing the capital region for all Canadians. The NCC was purportedly performing this very service when it developed the York Steps in accordance with section 10(1) and (2) of its empowering statute.

• Applicant's Memorandum of Fact and Law at para 57. Applicant's Record Vol. II, Tab 5 at 612
• National Capital Act, R.S.C. 1985, c. N-4, ss. 10(1)(a), 10(2)(e). Appendix A

73. Accessibility and support services are interrelated concepts: often persons with disabilities require proactive measures to access public spaces, as well as supports to participate and enjoy the benefits of those environments. The importance of such support services in facilitating access and fostering inclusion of persons with disabilities into the community cannot be underestimated. As the Government of Canada explains:

While accessibility is about ensuring the participation of people with disabilities in all dimensions of society, disability supports are the instruments and means that facilitate their participation in daily living activities and in achieving their personal and economic potential.

• Advancing Inclusion 2006, supra at 13. CCD's Book of Authorities in Public Works' Application, T-1132-06, Appendix B at Tab 19

74. Unfortunately, numerous human rights cases from across the country expose the cruel reality that persons with disabilities are routinely denied equal access to, and benefit of, goods, services and facilities. Examples of disability discrimination abound, including denial of transportation, recreational facilities and educational programs, etc. Any judicial interpretation of the scope of protection to be provided by the "provision of goods, services, facilities or accommodation customarily available to the general public" must be sensitive and responsive to the multitude of arenas where persons with disabilities are unwelcome and prevented from participating.

• Sampling of Cases—Headnotes only Appendix B, vol. 1, Tabs 14A-14K: Dewe et Commission des droits de la personne et des droits de la jeunesse du Québec c. Régis, [1997] J.T.D.P.Q. no. 32; Kellerman v. Al's Restaurant and Tavern Limited et al. (1987), 8 C.H.R.R. D/3924 (BOI); Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Moser v. Sechelt (Dist.) (2004), 50 C.H.R.R. D/202; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Alexander v. Vancouver (City) (2005), 51 C.H.R.R. D/348; Schink v. Chiu [1996] B.C.C.H.R.D. No. 5; Turnbull v. Famous Players Inc. (No. 1) (2001), 40 C.H.R.R. D/333; Youth Bowling Council v. McLeod, [1994] O.J. No. 4420 (Ont.C.A.); Munsch v. York Condominium Corp. No. 60 (1992) 18 C.H.R.R. D/339 (BOI); and Lepofsky v. Toronto Transit Comm. (No. 4) (2005), C.H.R.R. Doc. 05-647, 2005 HRTO 36.

75. On its face, the language of section 5 is expansive and the terms "goods, services, facilities" are intended to be read comprehensively in order to combat the wide-spread discrimination experienced by the disability community. For people with disabilities, "goods, services, facilities" can overlap and intersect. Due to the varied nature of the disability supports and the persistent inaccessibility of society, these terms should neither be narrowly construed nor rigidly applied. A restrictive interpretation of section 5 would exacerbate discriminatory conditions for the disability community and perpetuate their exclusion from society. Given the centrality of supports to facilitating the social inclusion of people with disabilities, the terms must be broadly interpreted to capture the full range of human interactions and activities and to reflect the remedial nature of human rights legislation.

G. Conclusion

76. Outdoor environments offer unique psychological, physiological and spiritual benefits to users. People with disabilities enjoy the same array of personal and social benefits from outdoor recreational pursuits as people without disabilities. Most Canadians take for granted their ability to visit a park and to reach that park by travelling the shortest route available. For many people with disabilities, these seemingly routine aspects of daily life pose challenges, often because of thoughtless barriers built into the physical environment.

77. Human rights jurisprudence reveals that architectural inaccessibility is one of the most prevalent, deeply entrenched barriers and sources of social isolation and discrimination experienced by persons with disabilities. Twenty-five years have passed since one of the earliest Human Rights Tribunals held that Mr. Huck, a wheelchair user, was entitled to equal access and benefit his local movie theatre. In that case, as in the case at bar, the Tribunal ordered the respondent to undertake renovations in consultation with the human rights commission and the claimant. The CCD contests why the NCC persists in perpetuating their anachronistic approach to both architectural design and human rights.

• Canadian Odeon Theatres Ltd. v. Huck (No. 2) (1981), 2 C.H.R.R. D/521 (Sask. Bd.Inq.); aff'd Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.). Bob Brown's Book of Authorities at Tab 20

78. Architecture is the physical manifestation of the society—it tells us about the society and what that society cares about. The NCC's deliberate refusal to incorporate an accessible design into the York Steps reinforces the disadvantaged status of persons with disabilities, who live "in a world relentlessly oriented to the able-bodied".

• Granovsky, supra at para. 33. Bob Brown's Book of Authorities at Tab 22

79. In Eldridge, the Supreme Court of Canada recognized that, "[i]t is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization." The facts of this case, and the York Steps, stand as a stark reminder of how such exclusion remains a pervasive problem for the disability community and how government participates in the perpetuation of this systemic marginalization.

• Eldridge, supra at para. 56. Bob Brown's Book of Authorities at Tab 8

PART IV—ORDER SOUGHT

80. The CCD requests that this Application for Judicial Review be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
DATED at Toronto, Ontario this 28th day of February, 2007

________________________________
Ena Chadha
Roberto Lattanzio
ARCH Disability Law Centre
425 Bloor Street East, Suite 110
Toronto, Ontario, M4W 3R5
Tel: (416) 482-8255 ext. 222, (416) 482-8255 ext. 233
Fax: (416) 482-2981
Email: chadhae@lao.on.ca
lattanr@lao.on.ca

Counsel for the Intervener, Council of Canadians with Disabilities (CCD)

PART V—LIST OF AUTHORITIES

CASES

Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504.

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [1999] 1 S.C.R. 381.

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

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3.

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.

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

Turnbull v. Famous Players Inc. (No. 1) (2001), 40 C.H.R.R. D/333.

Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536.

Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 1114.

Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474.

Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667.

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.

Green v. Canada (Public Service Commission), [2000] 4 F.C. 629.

Moser v. Sechelt (Dist.) (2004), 50 C.H.R.R. D/202.

Ripplinger v. Saskatchewan (Human Rights Commission), [1996] 131 D.L.R. (4th) 697.

McAllister-Windsor v. Canada (Human Resources Development) (2001), 40 C.H.R.R. D/48.

Milano v. Triple K Transport Ltd. (2003), 48 C.H.R.R. D/246.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430.

Vlug v. Canadian Broadcasting Corp. (2000), 38 C.H.R.R. D/404.

Beryl Nkwazi v. Correctional Services Canada (No.3) (2001), 39 C.H.R.R. D/237.

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970.

Murchie v. JB's Mongolin Grill, [2006] O.H.R.T.D. No. 36.

Bryan v. Premark Canada Inc., [1998] O.H.R.B.I.D. No. 18.

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205.

Société Radio-Canada v. Bouchard, [1988] F.C.J. No. 957.

Laidlaw Transit Ltd. (c.o.b. Yellow Cab) v. Alberta (Human Rights and Citizenship Commission), [2006] A.J. No. 1559.

Oliver v. Hamilton (City) (No. 2) (1995), 24 C.H.R.R. D/298.

Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) (1997), 30 C.H.R.R. D/262.

Hill v. Fredericton (City) Mayor, [1998] N.B.H.R.B.I.D. No. 1.

Dewe et Commission des droits de la personne et des droits de la jeunesse du Québec c. Régis, [1997] J.T.D.P.Q. no. 32.

Kellerman v. Al's Restaurant and Tavern Limited et al. (1987), 8 C.H.R.R. D/3924.

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

Moser v. Sechelt (Dist.) (2004), 50 C.H.R.R. D/202.

University of British Columbia v. Berg, [1993] 2 S.C.R. 353.

Alexander v. Vancouver (City) (2005), 51 C.H.R.R. D/348.

Schink v. Chiu, [1996] B.C.C.H.R.D. No. 5.

Turnbull v. Famous Players Inc. (No. 1) (2001), 40 C.H.R.R. D/333.

Youth Bowling Council v. McLeod, [1994] O.J. No. 4420.

Munsch v. York Condominium Corp. No. 60 (1992), 18 C.H.R.R. D/339.

Lepofsky v. Toronto Transit Comm. (No. 4) (2005), C.H.R.R. Doc. 05-647.

Canadian Odeon Theatres Ltd. v. Huck (No. 2) (1981), 2 C.H.R.R. D/521 (Sask. Bd.Inq.); aff'd Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.).

SECONDARY AUTHORITIES

Office for Disability Issues, Disability in Canada, A 2001 Profile (Ottawa: Human Resources Development Canada, 2003).

Canadian Council on Social Development, Disability Information Sheet, No. 19 (Ottawa: Canadian Council on Social Development, 2005).

Human Resources and Social Development Canada, Advancing the Inclusion of People with Disabilities, 2006 (Ottawa: Human Resources and Social Development Canada, 2006).

Ena Chadha & C. Tess Sheldon, "Promoting Equality: Economic and Social Rights for Persons with Disabilities Under Section 15" (2004) 16 N.J.C.L. 27.

Jerome E. Bickenbach, "Disability and Equality" (2003) 2 J.L. & Equality 7.

David Lepofsky, "The Charter's Guarantee of Equality to Persons with Disabilities: How Well Is it Working? (1998) 16 Windsor Y.B. Access Just. 155.

Rob Kitchin, "'Out of Place'. 'Knowing One's Place': space, power and the exclusion of disabled people", (1998) 13 Disability & Society, No. 3, 343.

Colin Barnes & Geof Mercer, Disability (Cambridge, U.K.: Polity Press, 2003).

Vera Chouinard, "Making Space for Disabling Differences: Challenging Ableist Geographies" (1997) 15 Environment and Planning D: Society and Space 379.

Marcia Rioux, "Rights, Justice, Power: An Agenda for Change, A Culture of Diversity, Rights-Based Technology", Perspectives on Disability 2nd, ed. Mark Nagler, (Hamilton: Health Market Research, 1993) 515.

David Lepofsky, "The Duty To Accommodate: A Purposive Approach" (1993), 1 Can. Lab. L. J. 1.

Kevin D. MacNeill, The Duty to Accommodate in Employment (Aurora, ON: Canada Law Book, 2006).

INTERNATIONAL INSTRUMENTS

Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res. 48/96, UN GAOR, 48th Sess., Supp. No. 49, UN Doc A/48/49 (1993).

Convention on the Rights of Persons with Disabilities, Adopted by UN GA 13 December 2006: UN GAOR Plen., 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006), open for Signature March 2007.

Declaration on the Rights of Disabled Persons, GA Res. 3447 (XXX), UN GAOR, 30th Sess., Supp. No. 34, UN Doc. A/10034 (1975).

Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities, AG/RES. 1608, 7 June 1999.

APPENDIX "A"

STATUTES

National Capital Act, R.S.C. 1985, c. N-4,

[...]

OBJECTS, PURPOSES AND POWERS

Objects and purposes of Commission
10. (1) The objects and purposes of the Commission are to
(a) prepare plans for and assist in the development, conservation and improvement of the National Capital Region in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance; and
(b) organize, sponsor or promote such public activities and events in the National Capital Region as will enrich the cultural and social fabric of Canada, taking into account the federal character of Canada, the equality of status of the official languages of Canada and the heritage of the people of Canada.

Powers
(2) The Commission may, for the purposes of this Act,
(a) acquire, hold, administer or develop property;
(b) sell, grant, convey, lease or otherwise dispose of or make available to any person any property, subject to such conditions and limitations as it considers necessary or desirable;
(c) construct, maintain and operate parks, squares, highways, parkways, bridges, buildings and any other works;
(d) maintain and improve any property of the Commission, or any other property under the control and management of a department, at the request of the authority or Minister in charge thereof;
(e) cooperate or engage in joint projects with, or make grants to, local municipalities or other authorities for the improvement, development or maintenance of property;
(f) construct, maintain and operate, or grant concessions for the operation of, places of entertainment, amusement, recreation, refreshment, or other places of public interest or accommodation on any property of the Commission;
(g) administer, preserve and maintain any historic place or historic museum;
(h) conduct investigations and researches in connection with the planning of the National Capital Region;
(h.1) subject to any other Act of Parliament, coordinate the policies and programs of the Government of Canada respecting the organization, sponsorship or promotion by departments of public activities and events related to the National Capital Region; and
(i) generally, do and authorize such things as are incidental or conducive to the attainment of the objects and purposes of the Commission and the exercise of its powers.

Loi sur la capitale nationale (L.R., 1985, ch. N-4)

[...]

MISSION ET POUVOIRS

Mission de la Commission
10. (1) La Commission a pour mission :
a) d'établir des plans d'aménagement, de conservation et d'embellissement de la région de la capitale nationale et de concourir à la réalisation de ces trois buts, afin de doter le siège du gouvernement du Canada d'un cachet et d'un caractère dignes de son importance nationale;
b) d'organiser, de parrainer ou de promouvoir, dans la région de la capitale nationale, des activités et des manifestations publiques enrichissantes pour le Canada sur les plans culturel et social, en tenant compte du caractère fédéral du pays, de l'égalité du statut des langues officielles du Canada ainsi que du patrimoine des Canadiens.

Pouvoirs
(2) Pour l'application de la présente loi, la Commission peut :
a) acquérir, détenir, gérer ou mettre en valeur des biens;
b) prendre, à l'égard de biens, toute mesure compatible avec les conditions et restrictions qu'elle juge utiles, et notamment les vendre, les concéder, les transférer, les louer ou encore les mettre à la disposition de qui que ce soit;
c) construire, entretenir et exploiter des parcs, places, voies publiques, promenades, ponts, bâtiments et tous autres ouvrages;
d) entretenir et améliorer ses propres biens ou, à la demande du titulaire ou autre responsable d'un ministère, d'autres biens placés sous l'autorité de ce ministère et gérés par lui;
e) collaborer ou participer à des projets conjoints avec les municipalités locales ou d'autres autorités, ou leur accorder des subventions, en vue de l'embellissement, de l'aménagement ou de l'entretien des propriétés;
f) aménager, entretenir et exploiter—ou accorder des concessions pour exploiter -, sur toute propriété de la Commission, des lieux d'intérêt ou d'usage public, notamment des lieux de divertissement, de loisir et de rafraîchissement;
g) administrer, préserver et entretenir tout lieu ou musée historique;
h) mener des enquêtes et recherches sur la planification de la région de la capitale nationale;
h.1) sous réserve de toute autre loi fédérale, coordonner les orientations et les programmes du gouvernement du Canada en ce qui concerne l'organisation, le parrainage ou la promotion, par les ministères, d'activités et de manifestations publiques liées à la région de la capitale nationale;
i) d'une façon générale, accomplir et autoriser les actions pouvant contribuer, directement ou indirectement, à la réalisation de sa mission.

Canadian Human Rights Act, R.S., 1985, C. H.-6

[...]

PURPOSE OF ACT

Purpose
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted

[...]

DISCRIMINATORY PRACTICES

Denial of good, service, facility or accommodation
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

[...]

Exceptions
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;

[...]

Accommodation of needs
15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

Loi canadienne sur les droits de la personne ( L.R., 1985, ch. H-6 )

[...]

OBJET

Objet
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.

[...]

ACTES DISCRIMINATOIRES

Refus de biens, de services, d'installations ou d'hébergement
5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public :
a) d'en priver un individu;
b) de le défavoriser à l'occasion de leur fourniture.

[...]

Exceptions
15. (1) Ne constituent pas des actes discriminatoires :
a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées;

[...]

Besoins des individus
15. (2) Les faits prévus à l'alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l'alinéa (1)g), s'il est démontré que les mesures destinées à répondre aux besoins d'une personne ou d'une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.