Factum of the Intervener, Council of Canadians with Disabilities, in the Federal Court of Canada Case Brown v. Public Works.

Court File No. T-1132-06

FEDERAL COURT

B E T W E E N:

DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA Applicant

-and-

BOB BROWN and the CANADIAN HUMAN RIGHTS COMMISSION

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 Huard

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 Tribunalv 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

1. Brown Complaint Concerns Crown Lands
2. Public Works & NCC are Crown Agents Overseeing
3. Adjoining Crown Lands

PART II—POINTS IN ISSUE

PART III—SUBMISSIONS

Issue 1: Public Works is liable for its refusal to participate in the accommodation process and for its failure to assist in rectifying the discriminatory situation.

A. Public Works is Liable for Failing to Co-operate in the Accommodation Process

1. i) Public Works Notified that York Steps Construction Implicates Connaught Building
2. ii) Public Works Aware That Accessibility Inquiry Implicates Connaught Building
3. iii) Public Works Aware that Connaught Building Subject of CHRC Investigation
4. iv) Public Works Raised During Human Rights Hearing

B. Accommodation is a Multi-Party Process

C. Tribunal's Power to Add Parties Necessary to Uphold Human Rights

D. Bureaucratic Divisions of Government Should Not Hinder Accommodation

Issue 2: Public Works is a proper party to the Brown proceedings for the purpose of remedial enforcement.

E. Tribunal's Remedial Powers Must Be Broad

F. Public Works Shares in the Obligation to Consult

G. Conclusion

PART IV—ORDER SOUGHT

PART V—LIST OF AUTHORITIES

APPENDIX A—STATUTES

PART I—STATEMENT OF FACTS

A. Overview

1. This judicial review considers the question: should one arm of the federal government be liable when, through indifference and inaction, it frustrates the accommodation process of another arm of the federal government? The Tribunal in the present case reached the reasonable and logical conclusion that the duty to accommodate applies to both emanations of government, and therefore, both government entities are liable.

2. Based on compelling factual evidence, the Tribunal found that the Applicant, Public Works and Government Services Canada (Public Works) ignored Mr. Brown's accessibility complaint regarding the York Steps simply because those concerns and criticisms were levied against its neighbour, the National Capital Commission (NCC). The Tribunal concluded that Public Works was uncooperative in resolving Mr. Brown's accessibility concerns and treated those concerns as the sole responsibility of the NCC.

• Brown v. National Capital Commission et al., 2006 CHRT 26 at paras. 266-89 [Tribunal Decision]. Applicant's Record, vol. 1, Tab B

3. Contrary to well-accepted tenets of human rights, Public Works resiles from the principle that all branches of government share in the responsibility to provide accommodation. Public Works challenges the principle that when a party embarks on an accommodation inquiry, another related party, having been informed of the situation, is required to co-operate and facilitate the accommodation to the point of undue hardship.

4. The CCD submits that Public Works' claim is founded upon the erroneous belief that 'intention to discriminate' is a requisite element of 'failure to accommodate'. Long-standing human rights principles hold that, notwithstanding the motive of a respondent, failure to co-operate in an accommodation process is a violation of the Canadian Human Rights Act. As the Tribunal in the present case aptly pointed out, "[it] is against public policy to allow a party to raise its own failure under the Act as a defence to a complaint of discrimination."

• Tribunal Decision, supra at para 211. Applicant's Record, vol. 1, Tab B

B. Complaint Background

i) Brown Complaint Concerns Crown Lands

5. Her Majesty the Queen, in the right of Canada, owns various parcels of land and buildings located in the National Capital Area created by the National Capital Act, R.S., c.N-3. The Brown complaint involves Crown land at the intersection of Sussex Drive and York Street. Mr. Brown seeks access at the York Steps, located at this intersection. The National Capital Commission (NCC), a Crown corporation, oversees and administers the lands upon which the York Steps are built.

• Affidavit of Simon Bernier sworn August 4, 2006 at para. 4. Applicant's Record, vol. 1, Tab C at page 53
• Tribunal Decision, supra at paras. 2, 5 & 6. Applicant's Record, vol. 1, Tab B

6. The Connaught Building is the office block immediately adjacent and south of the York Steps. The Connaught Building is bordered to the east by Sussex Drive and to the west by MacKenzie Avenue. The frontage along Sussex Drive and MacKenzie Avenue, as with the York Steps, falls under the NCC's responsibility and administration. The York Steps serve as a promenade thoroughfare between Sussex and Mackenzie and offer a convenient route to access these two streets.

• Tribunal Decision, supra at paras 5-7, 85, Applicant's Record, vol. 1, Tab B

7. The Connaught Building is under the "care, management, and control" of Public Works on behalf of the Crown. Public Works is a department of the federal government and its activities are "...directed mainly toward providing the departments, boards and agencies of the Government of Canada with services in support of their programs." The Connaught Building is occupied by the Canadian Customs and Revenue Agency (CCRA) under 'a licence to occupy' granted by Public Works.

5. The Department shall operate as a common service agency for the Government of Canada, and its activities as a common service agency shall be directed mainly toward providing the departments, boards and agencies of the Government of Canada with services in support of their programs.

• Department of Public Works and Government Services Act, R.S.C.,1996 c. 16, s.5. Appendix A of CCD's Memorandum of Fact and Law [Appendix A]
• Tribunal Decision, supra at para. 7. Applicant's Record, vol. 1, Tab B

8. Like the York Steps, which sit immediately north of the Connaught Building, the land immediately to the south of the Connaught Building is Crown land. This land to the south was referred to throughout the hearing and in the Tribunal's decision as the "Daly site". The parcel of land upon which the Daly site is situated is also controlled and operated by the NCC on behalf of the Crown.

• Tribunal decision, supra at para 4, Applicant's Record, vol. 1, Tab B
• Affidavit of Simon Bernier, sworn August 4, 2006 at para. 7. Applicant's Record, vol. 1, Tab C at page 53

ii) Public Works & NCC are Crown Agents Overseeing Adjoining Crown Lands

9. Public Works is the property manager for the Connaught Building. Similarly, NCC is the property manager for the York Steps. Both have stewardship of these properties on behalf of the Crown.

National Capital Commission Annual Report, Exhibit 32 to the Affidavit of Danielle Desrosiers sworn September 18, 2006 (Desrosiers Affidavit), vol. 2, Tab 32

• Tribunal Decision, supra at para. 276. Applicant's Record, vol. 1, Tab B

10. The York Steps, the Connaught Building and the Daly site are adjoining properties, all with common ownership as Crown land. As "public lands", the NCC is responsible for the general area.

• National Capital Act, s.2 and s.11, Appendix A
• Tribunal Decision, supra at para. 6. Applicant's Record, vol. 1, Tab B

PART II—POINTS IN ISSUE

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

A. Public Works is liable for its refusal to participate in the accommodation process and for its failure to assist in rectifying the discriminatory situation.

B. Public Works is a proper party to the Brown proceedings for the purpose of remedial enforcement.

PART III—SUBMISSIONS

Issue 1: Public Works is liable for its refusal to participate in the accommodation process and for its failure to assist in rectifying the discriminatory situation.

A. Public Works is Liable for Failing to Co-operate in the Accommodation Process

12. Public Works argues that the Tribunal has no jurisdiction to add a party as a respondent without an allegation that the party has discriminated against the complainant. The Tribunal found that Public Works failed to co-operate in the process of accommodation and that Public Works' inaction and indifference was a discriminatory form of conduct.

• Tribunal Decision, supra at para. 298(2). Applicant's Record, vol. 1, Tab B

13. The CCD submits that the Tribunal properly determined that Public Works is liable for its conduct. When a government department hinders another public agent in an accommodation investigation and resists the development of accessibility solutions, this impediment constitutes a breach of that government department's human rights duties under the Canadian Human Rights Act (CHRA).

14. Public Works' denial of involvement rings hollow given its role in the history of the York Steps design process and the number of occasions it was notified of Mr. Brown's accessibility concerns through the NCC and the Canadian Human Rights Commission (CHRC). Public Works was well aware of the problem and its own on-going association with the problem. Public Works' deliberate detachment in the accessibility review and lack of interest or sensitivity to the gravity of the human right issues belies its characterization of itself as an 'innocent bystander'.

15. The below chronology reveals that despite repeated notification of the inaccessibility issues and the human rights complaint, Public Works refused to co-operate with the other parties in investigating solutions.

i) Public Works Notified that York Steps Construction Implicates Connaught Building:

i. In and around 1994, the NCC commenced the design process for the York Steps. This development was undertaken in conjunction with the construction of a new United States (U.S.) Embassy, which is immediately adjacent to the north of the York Steps. The York Steps provide a convenient thoroughfare between Sussex Drive and MacKenzie Avenue, as well as an improved access route around the new U.S. Embassy. NCC representatives met with the architects retained by the U.S. Embassy in October 1994 to discuss design options for the new Embassy and the York Steps.

• Letter from Ned Arcement to John N. Abel, November 8, 1994. CHRC Record, File No. T-1117-06, vol. 1, Tab 4 at 15

ii. The new U.S. Embassy was intended to be a showpiece—designed and constructed to be "the first fully accessible Embassy in the world".

• Letter from Warren P. Nixon to Bob Brown, March 31, 1999. CHRC Record, File No. T-1117-06, vol. 1, Tab 12 at 84

iii. In correspondence dated November 8, 1994, U.S. Embassy officials expressly sought confirmation of the NCC's position regarding "Application of Handicap Criteria" to the York Steps and "Site Access by Vehicles" with the neighbouring Connaught Building.

• Letter from Ned Arcement to John N. Abel, November 8, 1994. CHRC Record, vol. 2, Tab B9

iv. Further to this correspondence, the NCC pursued the issue of shared access of the adjacent Connaught Building with colleagues at Public Works. Consequently, based on these communications it is apparent that, as early as the initial design stage, both the NCC and Public Works were alert to the fact that universal accessibility and vehicle access at the York Steps presented potential ramifications for the neighbouring Connaught Building.

• Letter from John N. Abel to Ned Arcement, December 20, 1994, Exhibit 48, Desrosiers Affidavit, CHRC Record vol. 3, Tab 48

ii) Public Works Aware That Accessibility Inquiry Implicates Connaught Building:

v. On November 22, 1994, at one of the earliest York Steps design meetings, two Public Works architects met with NCC representatives. This meeting was attended exclusively by Public Works and NCC representatives and the purpose of the meeting was to consider the issue of accessibility of the York Steps.

• Summary of Meeting, November 22, 1994. CHRC Record, vol. 2, Tab B10. Public Works representatives C. Charbonneau and J. Verity
• Tribunal Decision, supra at para. 132. Applicant's Record, vol. 1, Tab B

vi. At this meeting, the Public Works architects expressly recognized that "the combination of the steep gradient and length of the ramp would act as a deterrent for use by people which go up to or down the York Steps and a challenge that very few would be capable of achieving." The participants in this meeting concluded that alternatives should be investigated, such as

collaboration with adjacent properties to provide accessibility.

• Summary of Meeting, November 22, 1994. CHRC Record, vol. 2, Tab B10
• Tribunal Decision, supra at para. 132. Applicant's Record, vol. 1, Tab B

vii. On December 13, 1994, the NCC met with a disability service organization to discuss the issue of the accessibility of the York Steps. Copies of the Minutes of this meeting were sent to Public Works a few weeks later.

• Summary of Meeting, December 13, 1994. CHRC Record, vol. 2, Tab B11

viii. In correspondence dated December 20, 1994, the NCC notified U.S. officials that it wished to proceed with the inaccessible stair option, rather than a ramp option or a mechanical elevator/funicular option. The NCC also confirmed that the issue of shared access with the adjacent Connaught Building had been "followed up with our colleagues at Public Works and Government Services Canada (PWGSC)."

• Letter from John N. Abel to Ned Arcement, December 20, 1994. Desrosiers Affidavit, CHRC Record, vol. 4, Tab 48

ix. In correspondence dated January 9, 1995, the NCC provided copies of the Minutes of the December 13, 1994 meeting to Public Works.

• Letter from Alex Kilgour to Judy Lux, January 9, 1995. Exhibit 27, Desrosiers Affidavit, CHRC Record, vol. 2, Tab 27, Letter cc'd to C. Charbonneau and J. Verity

x. All parties acknowledge, and the NCC does not deny, that NCC instructed the construction of the York Steps to proceed "without accessibility considerations".

• Tribunal Decision, supra at paras. 32, 253 & 256. Applicant's Record, vol. 1, Tab B
• Letter from John Abel to Ned Arcement, December 20, 1994. Exhibit 48, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 48
• Letter from Patsy L. Thomasson to Judith A. Haslam, April 14, 1999. CHRC Record, vol. 1, Tab 21 at 148

xi. According to the U.S. architect responsible for the design stage of the York Steps, the use of the Connaught Building "was talked about in passing" and "Public Works said that it was a non-starter." The Connaught Building was not explored as an option because the firm "had to take it from Public Works that it [the Connaught Building] was not a viable option". This architect also testified that because of the selected design, persons with disabilities were "displaced" from the York Steps.

• Transcript of cross-examination of Corush at 1829 at lines 22-23. CHRC Record, File No. T-1117-06, vol. 7, Tab 12
• Transcript of cross-examination of Corush at 1819 at line 16. CHRC Record, File No. T-1117-06, vol. 7, Tab 11
• Tribunal Decision, supra at para. 108. Applicant's Record, vol. 1, Tab B

xii. The interface of the York Steps construction and the Connaught Building continued to be discussed between the U.S. architects and various federal government officials in 1995 and 1996. The York Steps construction took place between September 1998 and June 1999.

• Document entitled "Executive Summary". Exhibit 22, Desrosiers Affidavit, CHRC Record, vol. 1, Tab 22

iii) Public Works Aware that Connaught Building Subject of CHRC Investigation:

xiii. The York Steps construction was completed in 1999, the very year that the NCC celebrated its 100th anniversary of stewardship over the development and enhancement of the national capital so as "to represent Canadians and inspire them with pride". In 1999, various articles and letters to the editor were published in Ottawa newspapers describing and debating the controversy about the inaccessibility of the York Steps.

• National Capital Commission, Annual Report 2001-2002. Desrosiers Affidavit, CHRC Record, vol. 2, Tab 32
• Tribunal Decision, supra at para. 14. Applicant's Record, vol. 1, Tab B
• Letter to the Editor of the Ottawa Citizen from Catherine Schellenberg, entitled "Site of York Steps too steep for ramp", February 11, 1999. Desrosiers Affidavit, CHRC Record, Tab 11
• Newspaper article from the Lowertown News entitled "Residents step up fight over new market staircase", February 5, 1999. Desrosiers Affidavit, CHRC Record, Tab 15

xiv. On August 31, 1999, Mr. Brown filed a complaint with the Canadian Human Rights Commission (CHRC) alleging that lack of access at the York Steps discriminated against persons with disabilities in the provision of services and that there was a failure to undertake adequate consultations while planning the Steps.

• Tribunal Decision, supra at paras. 17, 19, 218. Applicant's Record, vol. 1, Tab B

xv. The CHRC issued its initial Investigation Report dated June 13, 2000. This Report confirms that Public Works representatives met with NCC representatives in 1994 and were involved in the design stage of the York Steps construction. The Commissioners of the CHRC referred the Brown complaint back for further investigation.

• CHRC Investigator Report, June 13, 2000, Exhibit 24, Desrosiers Affidavit, CHRC Record, Tab 24 at para 9

xvi. In a letter dated October 24, 2000, the CHRC Investigator sought details from the NCC about the Connaught Building, including information regarding the service entrance area, the front area and floor plans. There were communications between the NCC and CHRC with respect to this matter in February 2001. In a letter dated February 22, 2001, the NCC confirmed that the information the CHRC was seeking regarding the Connaught Building would be provided by a representative of Public Works.

• Letter from Sandy Kozak to Gerald Lajeunesse, October 24, 2000. Exhibit 66, Desrosiers Affidavit, CHRC Record, Tab 66
• Letter from Gerald Lajeunesse to Sandy Kozak, February 22, 2001. Exhibit 67, Desrosiers Affidavit, CHRC Record, Tab 67

xvii. The CHRC retained an Accessibility Expert to provide an opinion about the York Steps situation. The CHRC's Accessibility Expert reviewed the Connaught Building floor plans. In his report, the CHRC's Accessibility Expert opined that, with respect to the question of "how the location could be made accessible to wheelchair users", there was "an obvious answer. Consult/negotiate with the owner/manger of the Connaught Building to upgrade existing entrances/exits and interior elevator (to current accessibility standards)."

• An Accessibility Review & Expert Witness Report of The York Street Steps, June 24, 2001 at page 7. Exhibit 49, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 49

xviii. The CHRC issued a Supplemental Investigation Report, dated June 29, 2001. This Supplemental Investigation Report confirmed the Accessibility Expert's advice that the NCC should consult and negotiate accessibility with Connaught Building representatives. This report was shared with the NCC on or about July 5, 2001.

• CHRC Investigator's Report—Supplementary, June 29, 2001. Exhibit 25, Desrosiers Affidavit, CHRC Record, vol. 2, Tab 25
• Letter from Gerald Lajeunesse to Sandy Kozak, October 3, 2001. Exhibit 69, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 69

xix. In and around this time, the NCC officials notified Public Works representatives about the on-going concerns surrounding the accessibility of the York Steps. Since the Supplemental Investigation Report focused on the Connaught Building, the NCC forwarded the CHRC documents to Mr. Raymond Charette, the Property and Facility Manager of the Connaught Building and Public Works representative.

• Tribunal Decision, supra at para. 96. Applicant's Record, vol. 1, Tab B
• Letter from Gerald Lajeunesse to Sandy Kozak, October 3, 2001. Exhibit 69, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 69

xx. In a letter dated September 13, 2001, Mr. Raymond Charette wrote to the NCC and confirmed receipt of the "correspondence and information package regarding the universal access at the York Stairs." In this letter, Mr. Charette, on behalf of Public Works, advised that high security and prohibitive costs precluded opening the building for accessibility. The Tribunal characterized this letter as "cursory".

• Letter from Raymond F. Charette to Gerald Lajeunesse, September 13, 2001. CHRC Record, vol. 2, Tab B12
• Tribunal Decision, supra at para. 96. Applicant's Record, vol. 1, Tab B

xxi. The NCC confirms that it twice inquired as to whether universal access might be provided through the Connaught Building and on both occasions Public Works took the position that no access could be provided through the building because of security concerns associated with the CCRA's tenancy.

• Examination in chief of Rapson at 1081 at lines 10-14. CHRC Record, File No. T-1117-06, vol. 4, Tab 4

xxii. In April 2002, the NCC solicited bids from architect firms to conduct an accessibility review of York Steps, and in their correspondence, the NCC identified Public Works as one of the stakeholders "who are implicated in this study."

• Letter from Sherry Berg to Robert Martin & Danica Robertson, April 23, 2003. Exhibit 41, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 41, at page 2

xxiii. Shortly thereafter, the firm Robertson Architects & Associates (Robertson firm) was retained by the NCC to conduct an accessibility review of the York Steps. On or about June 16, 2002, the Robertson firm prepared an "interim synopsis". In their covering note to the NCC, the Robertson firm explicitly stated the "best option to provide universal accessibility for the site would be an elevating device accessed from the delivery entrance beside the Connaught building". The very next day, the Robertson firm provided a copy of this interim synopsis to Public Works representative Raymond Charette.

• E-mail from Danica Robertson to Sherry Berg, June 17, 2002. Exhibit 42, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 42
• E-mail from Robert Martin to Ray Charette, June 27, 2002 at 30. Desrosiers Affidavit, CHRC Record, vol. 2, tab 34

xxiv. On or about June 27, 2002, Mr. Charette responded to the Robertson firm's recommendation that universal accessibility should be secured at the Connaught Building. Mr. Charette wrote to the Robertson firm and indicated that the option of installing an elevating device would compromise building security, and therefore, was not an acceptable option.

• E-mail from Ray Charette to Robert Martin, June 27, 2002 at 30. Desrosiers Affidavit, CHRC Record, vol. 2, tab 34

xxv. On July 11, 2002, the Robertson firm issued an invitation to Mr. Charette, as the Public Works representative, to attend a meeting that would "bring together interested parties and stakeholders to discuss the options being proposed by the Universal Accessibility Study of the York Street Steps" (Draft Universal Accessibility Study). In this correspondence, Public Works was invited to indicate whether or not it wished to receive a copy of the Draft Universal Accessibility Study.

• E-mail from Robert Martin to Ray Charette, July 11, 2002. Exhibit 34, Desrosiers Affidavit, CHRC Record, vol. 2, Tab 34 at 38

xxvi. On or about July 18, 2002, after completing its review of the lack of accessibility at the York Steps, the Robertson firm circulated a Draft Universal Accessibility Study.

• E-mail from Robert Martin to Ray Charette, July 24, 2002 at 39. Desrosiers Affidavit, CHRC Record, vol. 2, tab 34
• Tribunal Decision, supra at para. 117. Applicant's Record, vol. 1, Tab B

xxvii. On July 23, 2002, the Robertson firm convened a meeting with representatives of the NCC, the U.S. Embassy, the City of Ottawa Accessibility Committee and three disability organizations. Despite being invited to participate in the meeting, receive a copy of the Draft Universal Accessibility Study and in spite of having been notified that accessibility options at the Connaught Building may be canvassed, representatives of Public Works did not attend this meeting. The meeting lasted 11/2 hours. The Tribunal described this meeting as "rushed", "closed", and seemingly "the results were pre-ordained".

• Minutes of Meeting No. 1, July 23, 2002. Exhibit 51, Desrosiers Affidavit, CHRC Record, vol. 3, Tab 51
• E-mail from Robert Martin to Ray Charette, July 11, 2002. Exhibit 34, Desrosiers Affidavit, CHRC Record, vol. 2, Tab 34 at 38
• Tribunal Decision, supra at paras. 117, 119, & 243, Applicant's Record, vol. 1, Tab B

xxviii. The Draft Report was provided to Public Works representative Raymond Charette via e-mail on July 24, 2002. In an email communication dated July 24, 2002, Mr. Charette thanked the architect firm for keeping him informed.

• E-mail from Ray Charette to Robert Martin, July 24, 2002 at 39. Desrosiers Affidavit, CHRC Record, vol. 2, tab 34

iv) Public Works Raised During Human Rights Hearing:

xxix. On or about December 31, 2002, the CHRC requested that the Canadian Human Rights Tribunal institute an inquiry into Mr. Brown's complaint.

• Affidavit of Simon Bernier, Applicant's Application Record, Tab 11 at para 21

xxx. A human rights hearing into Mr. Brown's complaint was commenced in and around July 2003. The CHRC called its Accessibility Expert to testify about the options he concluded might provide access to the York Steps. At this time, the Daly site elevator was still under development and not yet built.

xxxi. On or about July 9, 2003, the CHRC's Accessibility Expert testified as to his opinion that the Connaught Building was an "obvious answer" to the lack of accessibility of the York Steps. The Tribunal queried whether Public Works should be involved in the hearing given the fact that the Connaught Building was raised as a viable option for resolving the inaccessibility of the Steps. The Tribunal noted that, should it issue a remedial order that impacted on the Connaught Building, the entity responsible for control of the Connaught Building was not before the Tribunal.

• Examination in chief of Rapson at 1061 at line14, 1081 at lines 3-7, 1083 at lines 19-24. CHRC Record, File No. T-1117-06, vol. 4, Tab 4

xxxii. On October 30, 2003, the Tribunal heard submissions from all parties on the motion to add Public Works. By decision dated December 9, 2003, the Tribunal ordered that Public Works be made a party respondent in the proceedings.

• Brown v. National Capital Commission et. al., 2003 CHRT 43 [Tribunal's Interim Decision]. Applicant's Record, vol. 2, Tab C.16

16. It is strikingly evident from the foregoing chronology that Public Works was aware of the problem of inaccessibility of the York Steps in 1994, repeatedly notified of the concerns of inaccessibility over the years, and again was asked to participate in the reviews conducted by both the NCC and the CHRC. Notwithstanding these various overtures, Public Works remained willfully oblivious to the needs of, and its obligations to, the disability community. It is remarkable that, more than a decade later and in the face of a human rights order to co-operate, Public Works continues to shirk its public duty to participate in the accommodation process.

B. Accommodation is a Multi-Party Process

17. Public Works argues that the duty to accommodate applies only to the owners and operators of public facilities and as Public Works neither owns nor operates the York Steps, it cannot be held to be responsible for accommodation. Yet, as the Supreme Court of Canada has stated, "discrimination ... is everybody's business."

• Memorandum of Fact and Law of the Attorney General of Canada (representing Public Works), T-1132-06, at para. 94

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 991 [Renaud], CHRC's applying Office and Professional Employees International Union, Local 267 v. Domtar Inc. (1992), 8 O.R. (3d) 65 at para. 28 (Div. Ct.). CHRC's Record, vol. 4, Tab 24

• Tribunal Decision, supra at paras. 273-4. Applicant's Record, vol. 1, Tab B

18. In Renaud, Sopinka J., writing for the Supreme Court of Canada, described the process of accommodation as a "multi-party inquiry". In that case, the Supreme Court explained that the employer, the union, and the complainant have a shared responsibility to collaborate in securing an appropriate accommodation. The duty of the union to co-operate with the employer was addressed specifically:

If reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination. In these circumstances, the union, while not initially a party to the discriminatory conduct and having no initial duty to accommodate, incurs a duty not to contribute to the continuation of discrimination. It cannot behave as if it were a bystander asserting that the employee's plight is strictly a matter for the employer to solve.

• Renaud, supra at 991, 994. CHRC's Record, vol. 4, Tab 24

19. More recent applications of Renaud have held that the duty to accommodate applies to third parties if their "co-operation is necessary in order to make accommodation possible, and no other reasonable alternative has been found or could reasonably have been found that would accommodate" the claimant.

• See for example: Hamilton Police Association v. Hamilton (City) Police Services Board, [2005] O.J. No. 2357 at para. 29 (Div. Ct.) (QL) CCD's Book of Authorities, Appendix B, Tab 1. [Appendix B]

20. The principle that accommodation is a multi-party process, as articulated in Renaud, has also been applied in human rights cases concerning discrimination in services. As the British Columbia Human Rights Tribunal indicated in McLoughlin v. British Columbia (Ministry of Environment, Lands and Parks), the duty on third parties in the services context is the same as in the employment context: ...all those involved are required to work together to find a solution that adequately balances the competing interests. The process requires the party best placed to make a proposal to advance one. The other party or parties must then respond with alternative suggestions and refinements as necessary and the exchange should continue until a satisfactory resolution is achieved or it is clear that no such resolution is possible. A spirit of cooperation is obviously beneficial to this process.

• (1999), 36 C.H.R.R. D/306 at para. 77 (B.C.H.R.T.). Appendix B, Tab 2
• See also, Wong Morriseau v. Wall (2000) 39 C.H.R.R. D/422 at paras. 38-39 (Man.Bd.Adj.); Appendix B, Tab 3; and Hinter v. Save On Foods (2003), 55 C.H.R.R. D/209 at paras. 60-61, 2006 BCHRT 37. Appendix B, Tab 4

21. This line of jurisprudence rejects the idea that only the accommodation provider has the 'strict responsibility' or 'exclusive jurisdiction' over the accommodation process. Clearly, all related public actors have various roles and responsibilities to play during the accommodation process and frequently different public entities are required to co-operate for the achievement of a successful accommodation. As such, it was entirely appropriate for the Tribunal to have invoked the multi-party ambit of the duty to accommodate and the objects of human rights law as the basis to hold Public Works liable for its refusal to co-operate in the process.

22. In this case, Public Works, the very department of the federal government mandated to support the services of other government agencies and the operator of the building adjacent to the York Steps, was repeatedly asked to facilitate the accommodation inquiry of the neighbouring government agent. The duty to accommodate, therefore, manifested as an obligation on both government bodies to participate, consult and assist in the investigation of a non-discriminatory solution.

• Department of Public Works and Government Services Act, R.S.C.,1996 c. 16, s.5. Appendix A

23. When a public department thwarts another public agency's efforts to investigate appropriate accommodations, this constitutes a breach of its duty, the same duty as that owed by a union in the employment context. Therefore, the Tribunal's finding that Public Works has a legal obligation under the CHRA to participate in the accommodation inquiry and to make meaningful efforts to assist in resolving the inaccessibility problem is a proper and sound conclusion in law.

• Tribunal Decision, supra at paras. 274, 288. Applicant's Record, vol. 1, Tab B

24. Whether Public Works itself provides the service or facility at issue is irrelevant in this case. The issue is whether "the effect of any action by" Public Works contributed to the discrimination against persons with disabilities in respect of the provision of services or facilities. Any other interpretation of obligations under the CHRA would create a gap in the accommodation process, whereby persons essential to the accommodation could block or undermine the process with impunity, thereby rendering human rights protections ineffective.

• Laidlaw Transit Ltd. (c.o.b. Yellow Cab) v. Alberta (Human Rights and Citizenship Commission), [2006] A.J. No. 1559, 2006 ABQB 874 at paras. 63, 64, 65. Appendix B, Tab 5

25. Public Works should not be absolved of its public duty to participate in the accommodation process. It was clear to all those involved that Public Works, a related government department was, and still is, in a position to assist the NCC in achieving an effective accommodation. Yet, Public Works repeatedly ignored the human rights concerns regarding the inaccessibility of the York Steps. It resisted and refused to explore potential accommodation options at the Connaught Building. Public Works should not be able to use its own indifference and inaction as a way to circumvent the human rights protection the CHRA is intended to provide to persons with disabilities. The Tribunal had both sufficient evidence and a legal basis upon which to conclude that Public Works is a proper party to the complaint because of its willful failure to assist in the accommodation process.

C. Tribunal's Power to Add Parties Necessary to Uphold Human Rights

26. The language of the CHRA makes clear that proceedings before the Tribunal are to be conducted as informally and expeditiously as possible. The Tribunal has the broad jurisdiction to inquire into all aspects of the complaint and is authorized to decide all questions of law or fact necessary to determine the matter. Further, section 48.9(2)(b) of the CHRA specifically contemplates the addition of parties to the proceedings before the Tribunal.

• CHRA sections 48.9(1), 48.9, 48.9(2), 50(2) Appendix A
• Guay v. Royal Canadian Mounted Police, [2004] C.H.R.D. No. 32 (QL), 2004 CHRT 34 at paras. 16-17, [Guay] CHRC's Record, vol. 4, Tab 20

27. It is apparent from the overall scheme of the statute that, once the Tribunal instituted the inquiry into the Brown complaint and believed that Public Works' co-operation was necessary to determine the matter, the Tribunal was empowered to add Public Works as a party to the proceedings. As the Supreme Court of Canada recently stated, "a Canadian Human Rights Tribunal ... has broad powers under s. 48.9 to enforce ... participation in its hearings," through the addition of parties or interested persons, and the summoning of witnesses.

• Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667 at para. 78. Appendix B, Tab 6

28. In this case, when evidence disclosed the extent of Public Works' past involvement in the complaint and its potential role in the resolution of the matter, it was incumbent on the Tribunal to add Public Works as a party so as to efficaciously fulfill its mandate to inquire and dispose of the complaint. In Guay, the Canadian Human Rights Tribunal considered the Brown precedent, namely the instant case, and described the addition of Public Works as "essential for a more appropriate enforcement of the decision that would be made against the Respondent".

• Guay, supra at para. 27. CHRC's Record, vol. 4, Tab 20

See also, Ripplinger v. Saskatchewan (Human Rights Commission) [2002] 131 D.L.R. (4th) 697 at paras. 4, 13 [Ripplinger]. Appendix B, Tab 7. In Ripplinger, the Saskatchewan Court of Appeal upheld the Tribunal's right to add a respondent to the proceeding for the purpose of ensuring enforcement of a remedial order.

29. It is both consistent with the intent of the CHRA, which requires that human rights hearings proceed as informally and expeditiously as possible, and in the public interest that the Tribunal's power to add parties be upheld. As the Tribunal commented in its Interim Decision, forcing Mr. Brown to file a second complaint would not only run counter to the spirit of the CHRA, but "use up the scarce resources of the system of justice."

• Tribunal's Interim Decision, supra at para 48. Applicant's Record, vol. 2, Tab C.16
• see also Syndicat des employés d'exécution de Québec-téléphone v. Telus Communications, 2003 CHRT 31. CHRC Record, vol. 4, Tab 18, as cited by the Tribunal in its Interim Decision

30. Public Works argues that the reach of the duty of accommodation and the Tribunal's power to add parties cannot extend to it because it was neither the service provider nor a named respondent at the commencement of the proceeding. This approach conflicts with the purpose of the CHRA, which is to protect and promote fundamental human rights and provide redress for discrimination.

D. Bureaucratic Divisions of Government Should Not Hinder Accommodation

31. Pursuant to Part IV, the CHRA is expressly "binding on her Majesty in the right of Canada." Contrary to Public Works' contention, human rights accommodation is not a solo enterprise in the exclusive jurisdiction of the particular government entity who oversees the public property upon which the discriminatory barrier is erected. All public entities involved in the creation, maintenance or prolongation of a barrier have a duty to participate in seeking out solutions to eliminate the barrier. Government responsibility to ensure that people with disabilities have equal access to public services is not diminished just because the co-operation of more than one emanation of the government may be required. All emanations of government are charged with the task of ensuring that public services are accessible, and are subject to a concurrent duty to facilitate accommodation.

• Canadian Human Rights Act, R.S.C. 1985, c. H-6, Part IV, s.66(1). Appendix A

32. Public Works' position must be considered against the backdrop of the deeply entrenched nature of systemic discrimination against persons with disabilities and the historical disadvantage of the disability community in society. It is imperative, from a disability perspective, that human rights tribunals have expansive powers to inquire into accessibility complaints and to add potential parties whose co-operation may be necessary to the accommodation process.

33. This is especially important in situations where the barrier exists in a public setting and where those involved in the service or facility are public entities. Because of the multifaceted nature of government, more than one public entity may have a role in facilitating the accommodation to a successful end. Given the proliferation of public—private relationships and the devolution of government functions and powers, human rights tribunals must be empowered to hold government, in all its manifestations, to a collective responsibility for accessibility. If government delegates or transfers its powers to other entities, all must share in the exercise of searching for accessibility solutions and are responsible for remedying the discrimination.

34. Persons with disabilities rely on a variety of supports and services, and these are often provided through a complex labyrinth of government and non-government agencies. As recognized by the Supreme Court in Eldridge, "[t]here are myriad public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy." If artificial lines are drawn between government and its agents, this would create significant hardship for people with disabilities in seeking redress for human rights concerns, particularly in the service arena.

• Eldridge v. Attorney General (British Columbia), [1997] 3 S.C.R. 624 at para. 36. Appendix B, Tab 8

35. Two recent human rights cases provide examples of how various hybrid public/private entities deliver disability services, and illustrate the necessity to have all possible players before human rights tribunals to address accommodation concerns. In both cases, the Tribunals considered it to be in the public interest to add third parties to the human rights proceeding. The Tribunals clearly understood the importance of adopting a purposive approach to assessing what entity should be at the human rights table in order to 'get at' the heart of the discrimination, as well as to achieve a holistic and effective solution.

• Buss v. Greater Vancouver Transportation Authority (2006), C.H.R.R. Doc. 06-748, 2006 BCHRT 548. Appendix B, Tab 9
• Arzem v. Ontario (Ministry of Community and Social Services) (No. 5) (2006), C.H.R.R. Doc. 06-295, 2006 HRTO 12. Appendix B, Tab 10

36. Specifically, the Tribunal in Arzem was sensitive to the fact that "the delivery of educational services for exceptional pupils is multifaceted and multilateral". Therefore, to be able to ultimately fashion a systemic remedy, the Tribunal ordered the addition of numerous public and quasi-public entities to the proceeding. In that case, although funding and policy development of the disability education services took place at the Ministerial level, the Tribunal found it critical to look beyond the Ministry. The Tribunal added several school boards as respondents so as to properly assess the facts as to their involvement and the possible discriminatory effects of their actions. A further illustration of the complexity of disability services, and the need for a systemic redress, is the Tribunal's decision to include the bargaining agents of the educational assistants of the respective school boards as interveners in the matter.

• Arzem, supra at para. 75 (emphasis added). Appendix B at Tab 10

37. In Buss, the complaint alleged discrimination in services customarily available to the public for failing to maintain the wheelchair lift located in a commercial building used to access the Vancouver Sky Train. The complaint was made against two respondents. Both respondents refused to fix the lift and claimed the other party was responsible. The Tribunal considered whether a third party related entity was potentially responsible for maintenance of the wheelchair lift. When adding this third party to the proceeding, the Tribunal noted that the third party had been "live to the issue" from the outset. The CCD submits that, as in the Buss case, Public Works is a related entity that has been "live to the issue" since 1994.

• Buss, supra at para 14. Appendix B at Tab 9
• Summary of Meeting, November 22, 1994. CHRC Record, vol. 2, Tab B10

38. The Scott Task Force, formed in 1995 to look at the appropriate role of the federal government in the area of disability issues, highlighted how the multiplicity of government and its fragmentation and lack of co-ordination can frustrate efforts to address disability issues and aggravate the marginalization of the disability community. The Task Force's reproach is apposite:

Because disability issues cut across the federal government's organizational lines, they often get lost in a bureaucratic shuffle. In some instances, a positive action by one department may be lost because of the inaction of another that unintentionally cancels out the first. In other cases, a department may have the will to act but needs the support and input of others to get the job done. While government departments are able to join forces to meet disability-related goals, it is important to establish clear lines of accountability at the federal level. [emphasis added]

• Federal Task Force on Disability Issues, Equal Citizenship For Canadians With Disabilities: The Will To Act, 1996, p.25. Appendix B, Tab 17

39. After hearing persuasive evidence regarding the Public Works' history of unresponsiveness with respect to the York Steps matter, the Tribunal properly held that Public Works' failure to participate in the accommodation process constituted a form of discriminatory conduct. In order to both protect the reach of the duty of accommodation, and to promote remedial enforcement, human rights tribunals must be empowered to add parties to effectively address systemic discrimination. Human rights tribunals cannot allow public entities to passively disengage from their human rights responsibilities.

Issue 2: Public Works is a proper party to the Brown proceedings for the purpose of remedial enforcement.

E. Tribunal's Remedial Powers Must Be Broad

40. The Tribunal found that the involvement of Public Works during the accommodation process is necessary in order to search for an effective remedy. The evidence revealed that Public Works' refusal to actively participate from the outset of the accommodation inquiry constrained the search and deprived the interested parties of information and the opportunity to consider potential accessibility options. The Tribunal's remedial order therefore strategically targeted this inertia and resistance to the accommodation by ordering Public Works to participate in the consultation process. By establishing a duty to participate in the accommodation and consultation process on Public Works, the Tribunal seeks to curtail the on-going discrimination and maximize creative accommodation resolutions.

• Tribunal's Interim Decision, supra at para. 41. Applicant's Record, vol. 2, Tab C.16
• Tribunal Decision, supra at paras. 266-89. Applicant's Record, vol. 1, Tab B

41. The CHRA enables the Tribunal to make broad remedial awards in order to fulfill the legislation's ultimate purpose, to remedy discrimination. With this goal in mind, the CHRA does not limit the making of remedial orders to those initially named in a complaint. Rather, section 53 provides that remedial orders can be made "against the person found to be engaging or to have engaged in the discriminatory practice". The addition of third parties, such as Public Works, is not only contemplated by s. 48.9(2), but also falls within the remedial scope of the CHRA, as clearly intended by Parliament.

• CHRA, supra at ss. 48.9(2), 53. Appendix A

42. The principles governing the exercise of remedial powers under human rights law are well-settled. Human rights legislation is remedial in object; it is not punitive. The overarching purpose of human rights law is to prevent discrimination both for the protection of disadvantaged groups and for the betterment of society as a whole. Given that tribunals have broad remedial powers to serve the public interest, human rights protections would be robbed of their purpose if remedies were not proactive, accessible, comprehensive and preventative in nature.

• CHRA, supra at s. 2. Appendix A

43. The Supreme Court has repeatedly emphasized the remedial goal of human rights legislation since some of its earliest human rights jurisprudence:

Generally human rights legislation has been given a broad interpretation to ensure that the stated objects and purposes are fulfilled. A narrow restrictive interpretation which would defeat the purpose of the legislation, that is, the elimination of discrimination, should be avoided. [...]

• [T]here simply cannot be a radical dissociation of "remedy" and "prevention". Indeed there is no prevention without some form of remedy.
• Action Travail des Femmes v. Canadian National Railway Company et al. [1987] 1 S.C.R. 1114. Appendix B, Tab 11

44. Similarly, in Robichaud v. Her Majesty the Queen, La Forest J. on behalf of the Court, explained that because human rights legislation "is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns." Rather, human rights law "is directed to redressing socially undesirable conditions". Specifically with regards to CHRA, Justice La Forest stated:

Any doubt that might exist on the point is completely removed by the nature of the remedies provided to affect the principles and policies set forth in the Act. This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected.

• [1987] 2 S.C.R. 84 at 90 and 92. CHRC's Record, vol. 4, Tab 25 (emphasis added)

45. Much of the discrimination experienced by persons with disabilities is systemic in origin. The barriers facing persons with disabilities are longstanding, reflecting deeply entrenched patterns and practices of discrimination in the social and physical environment. Such barriers will continue to exist unless systemic remedies are fashioned to dismantle them:

Removing barriers and providing environmental changes that facilitate functioning are ways of addressing distributional inequality. And the law can be an important social tool in making this possible.

How then can the law serve the equality interests for persons with disabilities? The law can serve equality by addressing inequalities arising from both corrective and distributive injustice, through a variety of legal instruments and remedies. Anti-discrimination law is one of those legal tools, there is no doubt. But to be effective as an instrument of corrective justice, anti-discrimination law must be substantively focused and procedurally relevant to its remedial purposes. ... If the law is to more fully serve the equality interests of persons with disabilities, it must gingerly approach the complex, political arena of distributive justice. The law must seek creative ways of increasing full participation in employment, education, family, and community life for all people with disabilities by providing the resources, accommodations, and opportunities that make meaningful participation possible.

• Jerome E. Bickenbach, "Disability and Equality" (2003) 2 J.L. & Equality 7 at 14-15. Appendix B at Tab 18

46. In cases of systemic discrimination, piecemeal approaches lead to uncoordinated and unsuccessful attempts at addressing root causes of discrimination. Constraining the power of human rights tribunals to order effective and responsive systemic remedies would have a detrimental impact on the disability community and undermine the purpose of human rights legislation.

• Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No.7) (2002), 45 C.H.R.R. D/61 (Ont.Bd.Inq.), at para. 243. Aaff'd (2004), C.H.R.R. Doc. 04-419 (Ont. C.A.). [McKinnon]. Appendix B at Tab 12
• Lepofsky v. Toronto Transit Comm. (No. 3) (2005), C.H.R.R. Doc. 05-365, 2005 HRTO 21. Appendix B at Tab 13

47. As in the Lepofsky decision, and McKinnon before it, the case at bar involves the need for systemic remedies. In Lepofsky, the need arose because the respondent repeatedly failed to provide reliable accommodation for persons with vision disabilities for an excess of 10 years, despite numerous complaints. The Ontario Human Rights Tribunal appointed a special Monitor to oversee the on-going provision of services by the respondent and to consult with the parties. In McKinnon, the Court of Appeal affirmed that systemic remedies were necessary to address the Ministry's failure to rectify a racially poisoned work environment, and upheld the Tribunal's authority to issue ministry-wide systemic directives in order to achieve compliance with human rights law.

• Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 7) (2002), 45 C.H.R.R. D/61 (Ont. Bd. Inq.), aff'd [2004] O.J. No. 5051 (Ont. C.A.) at para 4. Appendix B at Tab 14
• Lepofsky v. Toronto Transit Comm., supra. Appendix B at Tab 13

48. In Green v. Canada (Public Service Commission), Lemieux J., citing the Justice LaForest in Ross v. New Brunswick School Board, recognized that the important fact-finding functions of human rights tribunals mandate significant deference. Lemieux J. held that the Canadian Human Rights Tribunal in Green was performing a "fact-finding function" when it ordered a systemic remedial award. The systemic order flowed from the Tribunal's evidentiary findings, was a reasonably connected remedy and consistent with the "special context" of systemic discrimination experienced by the disability community as recognized by the Supreme Court of Canada.

• Green v. Canada (Public Service Commission), [2000] 4 F.C. 629 at paras 85, 96-104, 130, 136-7 [Green]. Appendix B at Tab 15

49. Systemic orders aim to prevent future discrimination, as well as remedy discriminatory situations. The Tribunal in the case at bar properly understood the correlation between meaningful public consultations, the promotion of universal design principles and the protection of disability human rights. The Tribunal recognized that substantive equality evokes the values of inclusion and empowerment which, in turn, are manifested in principles of universal design and consultation. The Tribunal's remedial order reflects this progressive understanding. As in Green, the Tribunal in the present case is similarly entitled to enjoy significant deference with respect to its remedial order, wherein it intended to remedy "the chasm between the Government of Canada's theory and practice in terms of the application of its anti-discriminatory procedures".

• Tribunal Decision, supra at para. 198. Applicant's Record, vol. I, Tab 2
• Green, supra at para 134. Appendix B at Tab 15

50. In the Charter context, the Supreme Court has clearly pronounced that government entities "should not be allowed to evade their constitutional responsibilities by delegating" to private entities the implementation of their own policies and programs that they would otherwise implement. Although there is no question that Public Works and the NCC are both emanations of the Federal government, Public Works' position essentially seeks to elude and pass human rights obligations to another government actor, without considering its own role and responsibility. Therefore, the CCD respectfully submits that Public Works "should not be allowed to evade" its own human rights responsibilities.

• Eldridge, supra at para. 42. Appendix B at Tab 8

51. It is difficult to conceive of a less punitive and more public interest-oriented order than that fashioned by the Tribunal in the case at bar. The Tribunal simply ordered two neighbouring government entities to sincerely collaborate and openly consult about accessibility options. It is important to the disability community that the Federal Court sustain this order and uphold the Tribunal's power. Given the widespread nature of systemic discrimination encountered by persons with disabilities, particularly with regards to the physical environment, human rights tribunals must have the power to design orders to stimulate systemic resolutions. Systemic remedies avoid piecemeal ad hoc efforts and are critical to ensuring that barriers are comprehensively dismantled. For these reasons, it is of paramount importance to the disability community that the broad remedial powers of human rights tribunals be upheld, and that such powers not be diminished or curtailed.

F. Public Works Shares in the Obligation to Consult

52. A central issue in this case is the "duty to consult". The CCD submits that the duty to consult necessarily flows from the duty of accommodation short of undue hardship and is triggered by the obligation to canvass the needs of the individual(s) who require accommodation. 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. Additional submissions regarding the duty to consult are made in the CCD's Memorandum of Fact and Law in the companion Application for Judicial Review of the National Capital Commission (File No. T-1117-06).

• CCD's Memorandum of Fact and Law, File No. T-1117-06

53. The preceding factual chronology reveals that had the NCC conducted proper consultations, Public Works would have been required to participate and answer for its position. The Tribunal recognized that the NCC's failure to properly consult contributed to Public Works' indifference. The CCD submits that Public Works shares in the duty, with the NCC, to participate in meaningful consultations, as part of its duty to facilitate the accommodation process.

• Tribunal Decision, supra at paras. 266, 289. Applicant's Record, vol. 1, Tab B

54. The importance of Public Works' involvement in the consultation process is based on the simple premise that consultations are not meaningful if they do not include key players. The previous chronology reveals that all those concerned with the York Steps had identified Public Works as a key player, including the NCC and the CHRC and their respective architects and experts. Moreover, as early as the initial 1994 design stage, Public Works itself had identified that the accessibility issues surrounding the York Steps required the "collaboration" of adjacent properties.

• Summary of Meeting, November 22, 1994. CHRC Record, vol. 2, Tab B10

55. A basic element of a full and meaningful consultation process is the open communication and exchange of information that allows key players to learn and understand the needs, interests, desires, and capabilities of those affected. A meaningful consultation process provides for the involvement and empowerment of the very community affected and thereby increases autonomy and self-determination of that community. For persons with disabilities, such communication removes the dialogue from the realm of impressionistic ideas and affords them the opportunity to confront stereotypes and breakdown attitudinal barriers. Inclusive consultations recognize that the process is founded on the value of participatory democracy, creates transparency, makes government accountable for its decision-making and promotes diversity.

56. Fostering the participation of persons with disabilities as full citizens in Canadian society is a goal that must be shared by all sectors of society. As the Government of Canada has stated, "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." Thus, all departments of government must share an overarching responsibility to work in collaboration with each other to achieve this goal. Notwithstanding its apparent reluctance, Public Works must share in the responsibility.

• Advancing the Inclusion of People with Disabilities (2006) (Ottawa: Human Resources and Social Development Canada, 2006) at Introduction and p.5, per the Honourable Diane Finley, Minister of Human Resources and Social Development Canada [Advancing Inclusion 2006]. Appendix B at Tab 19

57. As part of its obligation under the CHRA to facilitate the accommodation process of a neighbouring and related government agent, Public Works must be required to co-operate with the NCC's accommodation inquiry into the inaccessibility of the York Steps. This duty of accommodation on Public Works also gives rise to a duty to assist the NCC in its consultation process regarding potential avenues of redress. The Tribunal held that the public policy reasons for this are obvious: without such assistance, the NCC may not be able to provide the logical remedy for the discrimination.

• Tribunal Decision, supra at paras. 288-89 Applicant's Record, vol. 1, Tab B

G. Conclusion

58. In conclusion, it is submitted that Public Works has a duty under the CHRA to co-operate and participate in the NCC's accommodation investigation and consultation process. To hold otherwise would exempt government entities from the responsibility to meaningfully assist other public agents in fulfilling important human rights obligations, and undermine the fundamental duty of accommodation, which the Supreme Court has recognized is the essence of substantive equality.

• Andrews v. Law Society of British Columbia, [1989] 2 S.C.R. 143 at para (p.169). Appendix B at Tab 16

59. The Tribunal was cognizant of the serious and pressing public policy reasons for why Public Works should be held accountable in this case. At the core is recognition of the pervasiveness of systemic discrimination against persons with disabilities and how many different entities have a role in perpetuating and reinforcing the segregation and marginalization of the disability community. Drawing artificial lines between Crown agents would allow such systemic discrimination to continue in its ubiquitous form, unrecognized and unchallenged. By making a finding against Public Works, the Tribunal was merely following the "discrimination to its logical remedy, in accordance with the larger public interest".

• Tribunal Interim Decision, supra at para 41. Applicant's Record, vol. 2, Tab C.16

60. The CCD questions why Public Works is so disputatious about its involvement in this case when the evidence unequivocally confirmed that Public Works was aware of the problem of inaccessibility from the outset and the prospect that it may be the lynchpin to the resolution. The Tribunal's remedial order merely requires that Public Works participate in the NCC's accommodation inquiry and consultation process so as to mobilize these government entities to remedy inaccessibility. This order serves as a stimulus for creative accommodation and transformative consultation to foster a more inclusive society in harmony with the objects of the CHRA, and as such, should be upheld.

PART IV—ORDER SOUGHT

61. The CCD respectfully submits that this Application for Judicial Review be dismissed and that this Honourable Court find that Public Works owes a duty to participate in the accommodation investigation and consultation process regarding Mr. Brown's human rights complaint.

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. 233v Fax: (416) 482-2981
TTY: (416) 482-1254
Email: chadhae@lao.on.ca, lattanr@lao.on.ca Counsel for the Intervener

PART V—LIST OF AUTHORITIES

CASES

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

Hamilton Police Association v. Hamilton (City) Police Services Board, [2005] O.J. No. 2357

McLoughlin v. British Columbia (Ministry of Environment, Lands and Parks), (1999), 36 C.H.R.R. D/306

Wong Morriseau v. Wall (2000) 39 C.H.R.R. D/422

Hinter v. Save On Foods (2003), 55 C.H.R.R. D/209

Laidlaw Transit Ltd. (c.o.b. Yellow Cab) v. Alberta (Human Rights and Citizenship Commission), [2006] A.J. No. 1559, 2006 ABQB 874

Guay v. Royal Canadian Mounted Police, [2004] C.H.R.D. No. 32 (QL), 2004 CHRT 34

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

Ripplinger v. Saskatchewan (Human Rights Commission) [2002] 131 D.L.R. (4th) 697

Syndicat des employés d'exécution de Québec-téléphone v. Telus Communications, 2003 CHRT 31

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

Buss v. Greater Vancouver Transportation Authority (2006), C.H.R.R. Doc. 06-748, 2006 BCHRT 548

Arzem v. Ontario (Ministry of Community and Social Services) (No. 5) (2006), C.H.R.R. Doc. 06-295, 2006 HRTO 12

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

Robichaud v. Her Majesty the Queen [1987] 2 S.C.R. 84

Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No.7) (2002), 45 C.H.R.R. D/61 (Ont.Bd.Inq). Aaff'd (2004), C.H.R.R. Doc. 04-419 (Ont. C.A.)

Lepofsky v. Toronto Transit Comm. (No. 3) (2005), C.H.R.R. Doc. 05-365, 2005 HRTO 21

Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 7) (2002), 45 C.H.R.R. D/61 (Ont. Bd. Inq.), aff'd [2004] O.J. No. 5051 (Ont. C.A.)

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

Andrews v. Law Society of British Columbia, [1989] 2 S.C.R. 143

SECONDARY AUTHORITIES

Federal Task Force on Disability Issues, Equal Citizenship For Canadians With Disabilities: The Will To Act, 1996

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

Advancing the Inclusion of People with Disabilities (2006) (Ottawa: Human Resources and Social Development Canada, 2006), per the Honourable Diane Finley, Minister of Human Resources and Social Development Canada [Advancing Inclusion 2006]

APPENDIX A—STATUTES

Department of Public Works and Government Services Act, R.S.C.,1996 c. 16, s.5

[...]

ACTIVITIES OF THE DEPARTMENT

Common service agency
5. The Department shall operate as a common service agency for the Government of Canada, and its activities as a common service agency shall be directed mainly toward providing the departments, boards and agencies of the Government of Canada with services in support of their programs.

[...]

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

[...]

CANADIAN HUMAN RIGHTS TRIBUNAL

[...]

Conduct of proceedings
48.9 (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.

Tribunal rules of procedure

48.9(2) The Chairperson may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing
(a) the giving of notices to parties;
(b) the addition of parties and interested persons to the proceedings;
(c) the summoning of witnesses;
(d) the production and service of documents;
(e) discovery proceedings;
(f) pre-hearing conferences;
(g) the introduction of evidence;
(h) time limits within which hearings must be held and decisions must be made; and
(i) awards of interest.

[...]

INQUIRIES INTO COMPLAINTS

Power to determine questions of law or fact
50(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.

[...]

Complaint dismissed
53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.

Complaint substantiated
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;

(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.

Special compensation
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

Interest
(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate. R.S., 1985, c. H-6, s. 53; 1998, c. 9, s. 27.

[...]

APPLICATION

Binding on Her Majesty 66. (1) This Act is binding on Her Majesty in right of Canada, except in matters respecting the Yukon Government or the Government of the Northwest Territories or Nunavut.

Loi sur le ministère des Travaux publics et des Services gouvernementaux (1996, ch. 16 )

[...]

MISSION DU MINISTÈRE

Organisme de services communs
5. Le ministère est un organisme de services communs pour le gouvernement, sa mission en tant que tel consistant surtout à fournir aux ministères et organismes fédéraux des services destinés à les aider à réaliser leurs programmes.

[...]

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.

[...]

TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE

[...]

Fonctionnement
48.9 (1) L'instruction des plaintes se fait sans formalisme et de façon expéditive dans le respect des principes de justice naturelle et des règles de pratique.

Durée du mandat
48.2 (1) Le président et le vice-président du Tribunal sont nommés à titre inamovible pour un mandat maximal de sept ans et les autres membres le sont pour un mandat maximal de cinq ans, sous réserve, quant au président, de la révocation motivée que prononce le gouverneur en conseil et, quant aux autres membres, des mesures correctives ou disciplinaires prévues à l'article 48.3.

[...]

INSTRUCTION DES PLAINTES

Questions de droit et de fait
50(2) Il tranche les questions de droit et les questions de fait dans les affaires dont il est saisi en vertu de la présente partie.

[...]

Rejet de la plainte
53. (1) À l'issue de l'instruction, le membre instructeur rejette la plainte qu'il juge non fondée.

.Plainte jugée fondée
(2) À l'issue de l'instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l'article 54, ordonner, selon les circonstances, à la personne trouvée coupable d'un acte discriminatoire :
a) de mettre fin à l'acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
(i) d'adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande d'approbation et de mettre en oeuvre un programme prévus à l'article 17;
b) d'accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l'acte l'a privée;
c) d'indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l'acte;
d) d'indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d'autres biens, services, installations ou moyens d'hébergement, et des dépenses entraînées par l'acte;
e) d'indemniser jusqu'à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.

Indemnité spéciale
(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l'auteur d'un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s'il en vient à la conclusion que l'acte a été délibéré ou inconsidéré.

Intérêts
(4) Sous réserve des règles visées à l'article 48.9, le membre instructeur peut accorder des intérêts sur l'indemnité au taux et pour la période qu'il estime justifiés.

[...]

APPLICATION

Obligation de Sa Majesté
66. (1) La présente loi lie Sa Majesté du chef du Canada sauf en ce qui concerne les gouvernements du Yukon, des Territoires du Nord-Ouest et du Nunavut.

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

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INTERPRETATION

Definitions
2. In this Act,
"Chairperson"
«président »
"Chairperson" means the Chairperson of the Commission;
"Commission"
«Commission »
"Commission" means the National Capital Commission referred to in section 3;
"department"
«ministère »
"department" means
(a) any department named in Schedule I to the Financial Administration Act,
(a.1) any division or branch of the federal public administration named in Schedule I.1 to that Act,
(a.2) any commission under the Inquiries Act designated as a department for the purposes of the Financial Administration Act,
(b) any corporation named in Schedule II or III to the Financial Administration Act, and
(c) any board, commission, corporation or other body that is, for all its purposes or for all the purposes of the Act of Parliament under which it is established, an agent of Her Majesty;
"Her Majesty"
«Sa Majesté »
"Her Majesty" means Her Majesty in right of Canada;
"highway"
«voie publique »
"highway" includes any street, road, lane, thoroughfare or driveway;
"local municipality"
«municipalité locale »
"local municipality" means a municipality wholly or partly within the National Capital Region;
"member" «Version anglaise seulement »
"member" means a member of the Commission;
"Minister"
«ministre »
"Minister" means the Prime Minister of Canada or such other member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act;
"National Capital Region"
«région de la capitale nationale »
"National Capital Region" means the seat of the Government of Canada and its surrounding area, more particularly described in the schedule;
"property"
«bien » ou
«propriété »
"property" means real or personal property or any interest therein;
"property of the Commission"
«bien de la Commission » ou
«propriété de la Commission »
"property of the Commission" means property under the control and management of, or vested in the name of, the Commission;
"public lands"
«terrains publics »
"public lands" means real property or any interest therein, under the control and management of a department;
"Vice-Chairperson"
«vice-président »
"Vice-Chairperson" means the Vice-Chairperson of the Commission;
"work" «Version anglaise seulement »
"work" means any work, structure or undertaking.

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DEVELOPMENT

Coordination of development
11. The Commission shall, in accordance with general plans prepared under this Act, coordinate the development of public lands in the National Capital Region.

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

DÉFINITIONS

Définitions
2. Les définitions qui suivent s'appliquent à la présente loi.
«bien » ou «propriété »
"property"
«bien » ou «propriété » Bien immeuble ou meuble. Les dispositions les concernant s'appliquent également aux droits ou intérêts y afférents.
«bien de la Commission » ou «propriété de la Commission »
"property of the Commission"
«bien de la Commission » ou «propriété de la Commission » Bien relevant de la Commission et géré par elle, ou placé à son nom.
«Commission »
"Commission"
«Commission » La Commission de la capitale nationale constituée par l'article 3.
«ministère »
"department"
«ministère »
a) Ministère mentionné à l'annexe I de la Loi sur la gestion des finances publiques;
a.1) tout secteur de l'administration publique fédérale mentionné à l'annexe I.1 de cette loi;
a.2) toute commission nommée sous le régime de la Loi sur les enquêtes désignée comme tel pour l'application de la Loi sur la gestion des finances publiques;
b) personne morale mentionnée à l'annexe II ou III de la Loi sur la gestion des finances publiques;
c) office, commission, personne morale ou autre organisme qui est, dans le cadre de sa mission ou par l'application de sa loi constitutive, mandataire de Sa Majesté.
«ministre »
"Minister"
«ministre » Le premier ministre du Canada ou tel autre membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l'application de la présente loi.
«municipalité locale »
"local municipality"
«municipalité locale » Municipalité située, en tout ou partie, dans la région de la capitale nationale.
«président »
"Chairperson"
«président » Le président de la Commission.
«région de la capitale nationale »
"National Capital Region"
«région de la capitale nationale » Le siège du gouvernement du Canada et ses alentours, plus particulièrement définis dans l'annexe.
«Sa Majesté »
"Her Majesty"
«Sa Majesté » Sa Majesté du chef du Canada.
«terrains publics »
"public lands"
«terrains publics » Biens immeubles placés sous l'autorité d'un ministère et gérés par lui. Les dispositions les concernant s'appliquent également aux droits ou intérêts y afférents.
«vice-président »
"Vice-Chairperson"
«vice-président » Le vice-président de la Commission.
«voie publique »
"highway"
«voie publique » Route, rue, chemin, ruelle, passage ou allée.

AMÉNAGEMENT

Coordination de l'aménagement
11. La Commission coordonne, conformément aux plans généraux établis en application de la présente loi, l'aménagement des terrains publics dans la région de la capitale nationale.