A Modernised Court Challenges Program of Canada: A perspective from the Council of Canadians with Disabilities

Presented to:

Standing Committee on Access to Justice and Human Rights

For its study on Access to the Justice System

42nd Parliament, 1st Session

April 19, 2016

Appearance by:

John Rae
Anne Levesque

Written by

Joëlle Pastora Sala
Anne Levesque

On Behalf of the

Human Rights Committee of the Council of Canadians with Disabilities

Professor Aloke Chatterjee
Pat Danforth
Jim Derksen
Anne Levesque
Professor Ravi Malhotra
Joëlle Pastora Sala

With Special Thanks to

April D’Aubin
Yvonne Peters
John Rae

1. SUMMARY OF OUR POSITION 
2. BACKGROUND ON OUR ORGANISATION 
A. Mandate 
B. Human Rights 
C. VIA Rail 
D. CCD and the CCPC 
3. Persons with Disabilities: A context 
A. General Demographics 
B. Disability and Poverty 
C. Discrimination based on Disability 
4. OUR VISION FOR A MODERNISED COURT CHALLENGES PROGRAM 
A. Structure 
B. Funded activities 
C. Provincial cases 
D. Human Rights Complaints Case 

1. SUMMARY OF OUR POSITION

The Court Challenges Program of Canada (“CCPC”) is essential to ensure access to justice for persons with disabilities in accordance with article 12 and 13 of the Convention on the Rights of Persons with Disabilities. If persons with disabilities do not have the means to access the courts, the rights to equality guaranteed in the Canadian Charter of Rights and Freedoms and in human rights legislation are hallow and meaningless.

The Council of Canadians with Disabilities (“CCD”) welcomes the restoration of the CCPC. While the CCD supports the modernisation of the CCPC, certain essential elements, which were key to the success of the CCPC as established in 1994, must remain. Above all, a modernised CCPC must be accountable to the community, meaning members of official language minorities and equality seeking groups. The current structure of the CCPC, in which the board is elected by the membership and funding applications are assessed by experts chosen by the board, ensures this accountability. The operational funding conferred to the CCPC must also ensure that all of its members can fully participate, effectively and directly in the organisation and that all of its services are accessible to persons with disabilities.

The CCD also supports the modernisation of the CCPC. The CCD submits that a modernised CCPC must include funding for individuals or organisations involved in interventions or test case litigation to consult and engage the members of the community or communities whose rights are at stake throughout the entire litigation process. In other words,  the CCD proposes that the 'consultation funding' which was provided under the previous CCPC be expended to cover community engagement not just before the case is launched but in all stages of the litigation.

The CCD also submits that the CCPC ought to provide funding to equality seeking groups, including persons with disabilities, for provincial cases involving the Charter. Likewise, while the CCD continues to advocate that human rights commissions must play an active role in defending the public interest before human rights tribunals, it also believes that CCPC funding ought to be available to complainants advancing systemic cases in order to facilitate the full, effective and direct participations of the community in such cases. 

2. BACKGROUND ON OUR ORGANISATION

A. Mandate

The CCD is a national human rights organisation of people with disabilities working for an inclusive and accessible Canada. The CCD's priorities include:

• Disability-related supports
• Poverty alleviation
• Increased employment for persons with disabilities
• Promotion of human rights
• Ratification of the Optional Protocol to the Convention on the Rights of Persons with Disabilities and implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD)
• Technology developed according to the principles of universal design
• Air, rail, bus and marine transport that is accessible to persons with all types of disabilities

The CCD seeks to achieve these priorities through law reform, litigation, public education and dialogue with key decision-makers. In particular, the CCD believes in the following values:

• Citizenship—People with disabilities have the same rights and responsibilities as Canadians without disabilities. Socially made barriers, which prevent participation and discriminate against people with disabilities must be eliminated.
• Consumer Control—People with disabilities must be involved in all stages of the development of disability services and policies and in all decision-making that affects their lives.
• Equality and Human Rights—The Charter of Rights and Freedoms guarantees equal benefit and protection under the law and the Canadian Human Rights Act prohibits discrimination based upon physical or mental disability. All legislation must conform to the demands of the Charter.
• Universal Design—The environment should be designed to be usable by people with various disabilities.

The CCD is a volunteer lead organisation. The CCD volunteers contribute to an inclusive and accessible Canada by:

• Self-representation—Speaking out to: the courts, decision-makers, the media, Parliamentary Committees.
• Sharing Expertise—Working to create new policy, such as a National Action Plan on Disability.
• Knowledge Development—Researching issues of concern to persons with disabilities, such as poverty, home supports, accessible transportation regulations and income support.

B. The Human Rights Committee

The CCD's work in the area of Human Rights and Equality Rights aims to apprise judges, law-makers and other decision-makers about how disability must be taken into consideration in all areas of community life, thus ensuring Canadians with disabilities have full enjoyment of their human and equality rights. To that end, the CCD's Human Rights Committee monitors court cases and law reform which could affect persons with disabilities, guides CCD's legal interventions, analyses human rights/equality rights questions for the CCD National Council and provides recommendations on possible courses of action. In particular, the Human Rights Committee:

• Provides advice and leadership on the human rights initiatives undertaken by CCD
• Identifies human rights issues of concern to persons with disabilities that could be addressed through law reform initiatives
• Selects human rights/equality rights test cases that will advance the rights of persons with disabilities

Through its committees, the CCD has been involved in numerous cases including:

• Ontario Human Rights Commission v. Simpson Sears, [1985] 2 S.C.R. 536 and Bhinder v. Canadian National Railways, [1985] 2 S.C.R. 561 (bona fide occupational requirement as a defence to discrimination);
• Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (discrimination analysis under s. 15 of the Charter);
• Canadian Council of Churches v. Her Majesty the Queen and the Minister of Employment and Immigration, [1992] 1 S.C.R. 236 (s. 15 Charter rights of persons outside Canada);
• Weatherall v. Canada (AG.), [1993] 2 S.C.R. 872 (ss. 7,15(l), and 15(2) of the Charter in the context of employment and services in prisons);
• Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519 (Charter rights of a person with a disability to assisted suicide);
• Battlefords and District Co-operative Ltd v. Gibbs, [1996] 3 S.C.R. 566 (discrimination against persons with mental disabilities under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.I);
• Brant County Board of Education v. Eaton [1997] 1 S.C.R. 241 (s. 15 of the Charter and integrated education for students with disabilities);
• Eldridge v. B.C. (A.G.), [1997] 3 S.C.R 624 (s. 15 Charter right to sign language interpreters to ensure access to health care services);
• BC Superintendent of Motor Vehicles v. British Columbia Council of Human Rights, [1999] 3 S.C.R. 868 (application of the duty to accommodate to the issuance of a driver's license to a person with a disability, under the British Columbia Human Rights Code, R.S.B.C. 1996, c.210);
• Granovsky v. Minister of Employment and Immigration, [2001] 1 S.C.R. 703, 2000 SCC 28 (s. 15 and the ground of disability in the context of the Canada Pension Plan, R.S.C. 1985, c. C-8);
• Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37 (relationship between ss.15(1) and(2) of the Charter);
• R. v. Latimer, [2001] 1 S.C.R. 3,200I SCC 1 (the application of s. 12 of the Charter to an accused convicted of second degree murder of a child with a disability);
• Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] I 3 S.C.R. 657, 2004 SCC 78 (s. 15 of the Charter and access to therapy for children with autism);
• Newfoundland (Treasury Board) v. NA.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66 (ss. 15 and 1 of the Charter in the context of pay equity);
• Honda Canada Inc. v. Keays, [2007] 1 S.C.R. 650, 2008 SCC 39 (application of human rights principles in the employment law context);
• R. v. Gilles Caron, [2011] 1 S.C.R. 78 (superior court's jurisdiction to order interim costs in litigation in provincial court);
• Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (authority of human rights tribunal to order costs);
• Her Majesty the Queen v. D.A.I. [2012] 1 S.C.R. 149, 2012 SCC 5 (impact of s. 16 of the Canada Evidence Act on the rights of persons with intellectual disabilities to testify in court);
• Frederick Moore on behalf of Jeffrey P. Moore v, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education et al., (B.C.) (SCC Docket: 34040134041) (equal access to public education services for students with disabilities who require accommodation);
• Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C.R. 361, 2002 FCT 727 (application of ss. 7 and 1 5 of the Charter to the admission to Canada of immigrants with a medical disability);
• Wignall v. Canada (Department of National Revenue (Taxation)), [2004] I F.C.R. 679, 2003 FC 1280 (judicial review of the tax system's treatment of a disability-support bursary and the duty to accommodate); and
• McKay-Panos v. Air Canada, [2006] 4 F.C.R. 3, 2006 FCA 8 (definition of disability under the Canadian Transportation Act, S.C., 1996, c. 10).

Furthermore, the CCD was one of the initiating parties in Air Canada v. Canada (Canadian Transportation Agency), CTA Decision No. 6-4T-42008 (leave to appeal refused by the Federal Court of Appeal (2008) FCA 194 and leave to appeal to the Supreme Court of Canada denied 2008 S.C.C.A. No. 322), in which the Canadian Transportation Agency ruled in favour of a policy of One Person/One Fare for persons with disabilities.

C. VIA Rail

The CCD was the initiating party in the proceeding that resulted in the Supreme Court of Canada's decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2O07 SCC 15 ("VIA Rail"). ln VIA Rail, the Supreme Court of Canada ruled in favour of CCD.

Even with CCPC funding, the CCD was forced to spend out of its operating budget to cover its legal bills in VIA Rail. The costs to the organization were immense. In order to manage the unanticipated costs related to filing the complaint to the Agency, and the nearly ten year proceedings which followed, the CCD had to lay off two full time staff. The costs related to these proceedings far exceed any other experience the CCD had had regarding a complaint to a regulatory body. Although the CCD had extensive experience in litigating issues of importance to the disabled community, VIA Rail was the first case in which the net cost to the CCD far exceeded $10,000. The case was not a commercial matter in which the CCD stood to gain financially.

D. CCD and the CCPC

The CCD has been a long time member of the CCPC. It received CCPC funding for many of its cases and interventions as well as for impact studies, discussion papers and outreach materials. 

Anne Levesque, chair of the CCD’s Human Rights Committee, was appointed by the CCD and elected by the CCPC membership to sit on the board of directors of the organisation in 2009 and has served over since.

3. Persons with Disabilities: A context

A. General Demographics

In Canada, in 2012, approximately 3.6 million people, 13.7%, report having a disability with more women than men in every age group reporting a disability. The prevalence of disability increases steadily with age: 2.3 million working-age Canadians (15 to 64), or 10.1%, reported having a disability in 2012, compared to 33.2% of Canadian seniors, those aged 65 or older. Within the working-age population, those reporting a disability was 4.4% for people aged 15 to 24, 6.5% for those 25 to 44 and 16.1% for those 45 to 64. This proportion reaches 26.3% for those aged 65 to 74 and 42.5% among those 75 and older.

The most prevalent types of disability also vary by age. In the youngest age group, 15 to 24, the most commonly reported types of disability were mental/psychological disabilities, 2.2%; learning disabilities, 2.0%; and pain, 1.9%. Among those aged 45 to 64, the most common were pain, 12.7%; flexibility, 9.8%; and mobility, 8.6%. While these three types of disabilities are also the most commonly reported among seniors, the prevalence was higher: 22.1% for pain, 20.5% for mobility and 19.3% for flexibility. The prevalence of hearing disabilities was also high among seniors, 10.4%.

The proportion of those reporting a disability among adult women was 14.9%; for men, 12.5%. Among the oldest Canadians (those 75 and older), 44.5% of women reported a disability compared to 39.8% of men. In the 15 to 24 age group, the proportion reporting a disability for each sex was similar in 2012: 4.5% for men and 4.3% for women.¹

B. Disability and Poverty

The labour market participation rate of people with disabilities in Canada aged 25 to 54 is 66% compared to people without disabilities in this age group (88.2%).²  While the representation of people with disabilities in the workforce has increased from 1.6% in 1987 to 2.6% in 2012, this amounts to only about half of their 4.9% labour market availability (LMA).³  Progress in equitable representation in the workplace is reflected in the narrowing of the gap between workplace representation and a group's LMA.⁴

Canadians with disabilities are more likely to live in poverty than other Canadians. By way of example:

• Adults with intellectual disabilities are three times more likely than Canadians without disabilities to live in poverty;
• Over 75% of adults with intellectual disabilities not living with family members live in poverty;
• Children with disabilities are twice as likely as other children to live in households that rely on social assistance as a main source of income, and families of children with disabilities are more likely to live in poverty than other families.
• Over 55% of working-age adults with disabilities are currently unemployed or out of the labour market;
• For women with disabilities the rate is almost 60%;
• Over 70% of adults with intellectual disabilities are unemployed or out of the labour force.

In light of these statistics, it is obvious that the persons with disabilities simply do not have the means to seek to enforce their rights in courts when they experience discrimination. For these reasons, the CCPC is essential to ensure that the equality rights of persons with disabilities are respected and enforced in Canada.

C. Discrimination based on Disability

Year after year, human rights commissions from across the country report that discrimination on the basis of disability is the most frequent type of complaints they receive. By way of example, in 2015, more than half of the complaints received by the Canadian Human Rights Commission related to disability based discrimination.⁵  For many persons with disabilities in Canada, discrimination is a common occurrence.

4. OUR VISION FOR A MODERNISED COURT CHALLENGES PROGRAM

A. Structure

The CCD welcomes the restoration of the CCPC. While the CCD supports the modernisation of the CCPC, certain essential elements, which were key to the success of the CCPC as established in 1994, must remain. Above all, a modernised CCPC must be accountable to the community, meaning members of official language minorities and equality seeking groups. The current structure of the CCPC, in which the board is elected by the membership and funding applications are assessed by experts chosen by the board, ensures this accountability.

The operational funding conferred to the CCPC must also ensure that all of its members can fully participate, effectively and directly in the organisation and that all of its services are accessible to persons with disabilities. This includes the funding for all members to attend in-person annual general meetings and consultations that are filly accessible to persons with disabilities.

Regardless of whether the modernised CCPC is one integral program for language and equality rights, or divided into two programs, the CCD submits that the funding levels and proportions of funding allocated to equality seeking groups ought to be comparable to those which existed prior to 2006.

B. Funded activities

The CCD submits that a modernised CCPC must include funding for individuals or organisations involved in interventions or test case litigation to consult and engage the members of the community or communities whose rights are at stake throughout the entire litigation process. To that end, the CCD proposes that the 'consultation funding' which was provided under the previous CCPC be expended to cover community engagement not just before a case is commenced but in all stages of the litigation. The importance of engaging with communities has been discussed at length in the literature. As one example, Gil et al (2011) has stated that:

Real participation implies at least full partnership, or potentially, full control by the participants involved.” According to Bickerstaff et al. (2002), effective participation can be achieved by six guiding principles: being inclusive, open, interactive, continuous, begin early in the process, and with effective feedback of participants. Over the years, there has been a shift from very limited levels of participation to broader levels. Higher levels of participation, which can be designated as two-way dialogues, have several benefits over one-way processes. Local communities can provide valuable information for the authorities, thus leading to a wider range of possible solutions. Further, an active involvement of the relevant stakeholders can help avoid future conflicts as it creates a sense of ownership. In decision-making processes, where people have the possibility to participate actively, they feel more committed and responsible for the consequences of the process, thereby guaranteeing a better implementation. Furthermore, public participation strengthens the democratic fabric of a society and can act as a vehicle for individual and community empowerment.⁶

The CCD believes that funding for capacity building and community engagement is key to ensuring that the CCPC:

• fulfills societal expectations of equality seeking groups and official language minorities;
• remains a legitimate and transparent program;
• continues to reflect the needs and values the voices of marginalized individuals and community organizations.

It is also important to emphasize that groups representing equality seeking communities and official language minorities that engage in interventions and test case litigation incur significant costs that were not reimbursed under the former CCPC. This includes, by way of example, the following activities:

• consulting membership and community;
• reporting to membership and community;
• raising awareness within membership and community about a case;
• providing instructions to counsel;
• assisting counsel in developing legal arguments and case strategy;
• gathering evidence;
• preparing affidavits or testifying;
• preparing or reviewing written submissions;
• attending court;
• reviewing decisions;
• responding to questions from the media regarding the case.

None of these activities were funded under the CCPC. The CCD submits that the operational costs of organisations engaging in interventions and test cases litigation ought to be reimbursed by the CCPC. This will ensure that a broader ranger of organisations representing equality seeking groups and official language minorities – not just those with a strong fundraising capacity – can advance the rights of their membership and community in courts .

C. Provincial Cases

According to the CCD, the CCPC should expand its mandate to provide funding for equality seeking groups, including persons with disabilities, for provincial cases involving the Charter and provincial human rights systems where there is no other government funding available to bring forward such cases. Discrimination against persons with disabilities and other equality seeking groups commonly occurs in the context of many provincially regulated areas such as education, health, social services, income maintenance and housing. As such, including funding for provincial cases involving the Charter and provincial human rights legislation where required would better reflect the needs of vulnerable communities, including persons with disabilities.

D. Human Rights Complaints Case

Human rights commissions play an active role in making the human rights process more accessible by assisting complainants through the steps of achieving either a settlement or a Tribunal ruling. The CCD submits that access to justice and human rights are promoted when the human rights commissions assumes the responsibility of carrying complaints to resolution, including appearing before Tribunals.

However, in the federal human rights system and in many provinces, human rights commissions are not appropriately funded to play this important role. Given the importance of human rights legislation in ensuring the full and equal participation of persons with disabilities in Canadian society, the CCD submits that a modernized CCPC ought to provide funding for persons or organizations representing equality seeking groups in bringing forward systemic discrimination cases under federal and provincial human rights legislation where there is no other government funding available to bring forward such cases.

The Supreme Court of Canada has observed that human rights legislation is "often the final refuge of the disadvantaged and the disenfranchised." For people with disabilities, human rights legislation can be an effective public mechanism for promoting social inclusion and creating a more equal society for all. In many cases, complainants are not seeking a financial remedy, but rather are trying to secure public or systemic remedies that benefit the wider community. Human rights complaints have been responsible for realizing equal access to housing, health care, education, transportation, and social services.⁷  But people with disabilities face distinct challenges and incur unique expenses when attempting to prosecute violations of human rights legislation. Disability discrimination cases often require expert evidence relating to the existence of a disability, the need for accommodation, the appropriate comparator group, and the extent of hardship to a respondent. Currently, there is no government funding in the federal and most provincial jurisdictions to bring forward such cases. 

The CCD intervened in Mowat, and argued that for the human rights system to be accessible to people with disabilities, human rights tribunal must have the jurisdiction to compensate successful complainants to ordering a respondent who have been found to have engaged in discrimination to pay for his or her legal fees. The Supreme Court of Canada rejected this argument. As such, in addition to having to pay for their legal costs upfront to bring forward discrimination cases, successful complainants are not compensated for their legal fees after they win their cases. In the federal system in particular, complainants must go up against well resourced respondents, such as government, transportation companies or international airlines, in order to defend their right to be free from discrimination.⁸

The CCD remains committed to its view that the current human rights system is far too often inaccessible to persons with disabilities. By funding systemic human rights cases, the CCPC has the opportunity to change this course for vulnerable communities, including persons with disabilities.

E. Other Areas of Law

The CCD takes no position as to whether the mandate of the CCPC ought to be expended to provide funding for test cases and interventions for cases involving other Charter rights. However, the CCD notes that equality seeking groups often face intersecting and compounding barriers when seeking to access justice and that the CCPC should focus on levelling the playing field for members of historically disadvantaged groups. Should the mandate of the CCPC be expanded to including funding for other Charter rights, the CCD submits that additional funds ought to be provided by the government to fulfil this expanded mandate.

The CCD supports the expanded mandate of the CCPC to include funding for Aboriginal cases. The CCD submits that additional funds ought to be provided for this expanded mandate so as to ensure that this funding is allocated in a manner that is accountable to Aboriginal communities, engages communities and reflects their real needs of Aboriginal.

References

1. Statistics Canada, Disability in Canada: Initial findings from the Canadian Survey on Disability, online: <http://www.statcan.gc.ca/pub/89-654-x/89-654-x2013002-eng.htm>.

2. Human Resources and Skills Development Canada, Disability in Canada: A 2006 Profile, ISSD-042-02-11, 2011, at 26, online: <http://www.esdc.gc.ca/eng/disability/arc/disability_2006.pdf>. 
 

3. Economic and Social Development Canada, Employment Equity Act: Annual Report 2013, LT-185-03-14, 2014, online: <http://www.labour.gc.ca/eng/standards_equity/eq/pubs_eq/annual_reports/2013/docs/eereport2013_en.pdf>.

4. Ibid at 1.

5. Canadian Human Rights Commission, Annual Report to Parliament 2015, online http://www.chrcreport.ca/en/numbers

6. Gil, Artur, Helena Calado and Julia Bentz, "Public Participation in municipal transport planning processes-the case of the sustainable mobility plan of Ponta Delada, Azores Portugal" Journal of Transport Geography 19.6 (2011
 

7. Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, p. 374; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, para. 19; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, para. 2; Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513; Dixon v. 930187 Ontario, 2010 HRTO 256 (CanLII); Ontario Human Rights Commission v. Lepofsky, 2005 HRTO 36 (CanLII)

8. For example, in a recent complaint before the Canadian Human Rights Tribunal, the Government of Canada spend over 8 million dollars in legal fees going up against the First Nations Child and Family Caring Society, a non-for-profit organisations, and the Assembly of First Nations.