Bhinder Case Factum

IN THE SUPREME COURT OF CANADA

(On Appeal from Federal Court of Appeal)

IN THE MATTER OF THE CANADIAN HUMAN RIGHTS ACT, 25-26 Elizabeth II, Ch. 33

AND IN THE MATTER OF a complaint filed under section 32(1) of the Canadian Human Rights Act, by Mr. K. S. Bhinder against the Canadian National Railway Company

BETWEEN:

K. S. BHINDER and

THE CANADIAN HUMAN RIGHTS COMMISSION

Appellants

(Respondents)

- and -

CANADIAN NATIONAL RAILWAY COMPANY

Respondent

(Appellant)

Factum of the Intervenors 

The Canadian Association for the Mentally

The Coalition of Provincial Organizations of the Handicapped

David Baker

Solicitors for the Intervenors
Advocacy Resource Centre for the Handicapped
40 Orchard View Blvd. Suite 255
Toronto, Ontario
M4R 1B9

Ottawa Agents for the Intervenors

The Public Interest Advocacy Centre
53 Queen Street, Suite 44
Ottawa, Ontario
K1P 5C5

Lawrence L. Band, Q.C. Ian G. Scott, Q.C.

Gowling & Henderson

Canadian National Railway Company

Suite 2400

130 Adelaide Street West 2 First Canadian Place

Toronto, Ontario Toronto, Ontario

Solicitors for the Respondent Solicitors for the Appellant,

K. S. Bhinder

I. G. Whitehall, Q.C. Russell G. Juriansz

General Counsel Canadian Human Rights Commission

Department of Justice 90 Sparks street

Ottawa, Ontario Ottawa, Ontario

Solicitor for Intervenant, Solicitors for the Appellant

Attorney General of Canada Canadian Human Rights Commission

Index

• Part I - Statement of Facts
• Part II - Points in Issue
• Part III - Argument
  • A. Adding Disability as a Protected Class
  • B. The Structure of the Canadian Human Rights Act S.C. 1976-77
  • C. Use of Legislation and Guidelines Enacted Ex Post Facto
  • D. Discriminatory Practices
• Part IV - Nature of Order Requested
• Part V - Table of Authorities
• Appendices

Part I - Statement of Facts

1 .Leave to intervene and participate in this appeal was granted by the Honourable Madame Justice Wilson on September 26, 1983.

Affidavit of Ronald Kanary - President of the Coalition of Provincial Organizations of the Handicapped. (Appendix A) page 20

Affidavit of Marie Gallager - President of the Canadian Association for the Mentally Retarded. (Appendix B) page 20

Part II - Points in Issue

3. The Canadian Association for the Mentally Retarded and the Coalition of Provincial organizations of the Handicapped submit:

The Federal Court of appeal erred in deciding the "discriminatory practices" in sections 7 and 10 of The Canadian Human Rights Act S.C. 1976-77 c.33 did not include practices which created unintended discriminatory effects.

Part III - Argument

A. Adding Disability as a Protected Class

4. For every human function there is a possible spectrum of abilities ranging from excellent to non-existent. A disability can be defined as any level of ability to perform a particular function which falls below the "normal range".

United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (1983) p. 86-101.

Report of the Royal Commission on Equality in Employment (1984) p. 38-40.

5. For every human activity some combination of functional abilities is required. Other functional abilities are non-essential. Therefore a person with a functional impairment to an ability not needed for a given task is no more handicapped in performing that task than a "normal" person.

6. Just as wide variations of ability occur amongst persons with particular types of disability, so too levels of functional ability may vary due to objective factors such as the applicability of techniques and devices to cope with functional limitations and to subjective factors such as personal motivation, experience and education. One these factors have been taken into account, a handicapped person who was incapable of performing the essential duties of a job would not be a qualified applicant.

7. Concepts of disability/ability or handicapped/normal therefore have little utility in the absence of a concrete fact situation. The failure to individualize can lead to either an over or under reaction to functional limitations. This creates obstacles for handicapped people, by denying them opportunities based on their true merit.

8. Sometimes referred to as "the forgotten minority" handicapped people suffer more from neglect than any malicious desire to discriminate. The United States Commission on Civil Rights identifies four major patterns of prejudice toward handicapped people as (1) discomfort, (2) patronization and pity, (3) stereotyping and (4) stigmatization.

United States Commission on Civil Rights supra p. 17-27.

9. When the Canadian Human Rights Act was initially assented to on July 14, 1977, it included protection against "discriminatory employment practices based on physical handicap".

Canadian Human Rights Act S.C. 1976-77 c.33 section 3.

10. On March 30, 1983 assent was given to amendments to the Act, which extended full protection to persons with a disability. The amendments embodied many of the key recommendations of the Obstacles Report of 1981. In certain key areas this protection does not become enforceable until April 17, 1985, the same date upon which section 15 of the Canadian Charter of Rights and Freedoms come into force.

Obstacles: Report of the Special Parliamentary Committee on the Disabled and the Handicapped (1981) p. 18-21 (Appendix C) page 36

Canadian Human Rights Act S.C. 1980-81-83 c. 143 sections 3 and 65.1.

Canadian Charter of Rights and Freedoms section 32 (2).

B. The Structure of the Canadian Human Rights Act S.C. 1976-77

11. The "Purpose" of the Act is stated to be to extend the present laws of Canada to give effect ... to the following principle:

(a) every individual should have an equal opportunity with other individuals to make for himself or herself the life he or she is able and wishes to have, ...

The objective of the legislation is therefore to encourage the removal of barriers to equal opportunity based on an individual's ability, rather than on the prohibition maliciously motivated actions.

Interpretation Act R.S.C. 1970, c. I-23 (as amended), section 12.

Board of Governors of Seneca College v Bhadauria (1981) 124

D.L.R. (3d) 193 at 195-8.

12. The protected classes under the Act are set out in section 3.

13. The key substantive sections of the Act are sections 5 to 13 which set out "discriminatory practices" in a number of areas such as "services", "accommodation" and "employment".

14. Certain practices which would otherwise be considered discriminatory, are deemed not to be so pursuant to sections 14 to 17.

15. Section 22(2) authorizes the Commission to issue guidelines setting forth the extent to which and the manner in which, in the opinion of the Commission, any provision of the Act applies. A guideline is binding on the Commission and a Human Rights Tribunal until it is revoked or modified. Such guidelines, when properly enacted, have "legislative effect".

Reasons for Judgment, Kelly J. Appeal Case page 956 at 57.

Presumably the intention of Parliament in granting to the Commission the power to issue such guidelines was at least two-fold:

(a) to enable an expert body with the power to conduct independent research (section 22(1) (b) to develop substantive as well as procedural interpretations of the Act which elaborated upon the objectives underlying it; and

(b) to provide guidance to potential complainants and respondents without waiting for jurisprudence to emerge based on a case by case analysis.

The guidelines are "statutory instruments" within the meaning of the Statutory Instruments Act S.C. 1970-71-72 c.38. As such they are scrutinized by the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, to ensure that the are authorized by the statute pursuant to which it is made.

16. Pursuant to section 4 a discriminatory practice may be he subject of a complaint. Anyone engaging in a discriminatory practice may be the subject of an order as provided in sections 41 and 42.

Section 42(2) authorizes a Human Rights Tribunal to order a discriminatory practice stopped, compensation for a complainant and certain preventive measures to ensure the discriminatory practice does not recur. An express constraint on the authority of the Tribunal to fashion a remedy is contained in subsection (4).

Where a Tribunal finds a complaint is substantiated, but the Respondent employer's premises or facilities impede proper access or lack proper amenities to accommodate a complainant's physical handicap, the Tribunal may only make recommendations concerning the premises or facilities. It could not order their modification, as it might otherwise have done pursuant to subsection (2). From this it can be inferred that the failure to adapt premises or facilities to the needs of the disabled may constitute a discriminatory practice, however, it is a practice for which no remedy is available.

17. Where a person not only engages in a discriminatory practice, but does so "willfully or recklessly" a Tribunal may order what are in effect punitive damages, pursuant to section 41(3).

C. Use of Legislation and Guidelines Enacted Ex Post Facto.

18. The first guidelines issued pursuant to section 22(2) are the "Bona Fide Occupational Requirements Guidelines" dated December 14, 1981, or more than three months after the Human Rights Tribunal's decision in this case.

Canada Gazette Part II SI/82-3, January 13, 1982.

(Exhibit A to Appendices A and B).

The BFOR Guidelines provide the Commission's opinion as to the extent of an employer's obligation to accommodate a person's physical handicap (section 9 and 10) and religious beliefs (section 12).

It is submitted that the Guidelines are of assistance in interpreting the Canadian Human Rights Act. Prior to the enactment of the present section 37(4) of the Interpretation Act it was a general principle of the common law that where words in a statute have received a judicial construction and the legislation has repeated them without alteration, the legislature must be taken to have used them in the sense in which they have been construed by the court. While the rule has now been abolished by statute, it is still open to a court to conclude that the legislature has by re-enactment adopted a judicial decision. By analogy, this principle should extend to statutory instruments such as guidelines issued pursuant to section 22(2) of the Act.

Cowper v Struder [1951] 2 D.L.R. 81 at 85 cited in E.A. Drieger, Construction of Statutes (2nd ed) (1983) p. 125-6.

In this case, the Canadian Human Rights Act underwent major revisions in 1983. Prior to the amendments, the jurisprudence of every Human Rights Tribunal and the BFOR Guidelines all supported an interpretation of sections 7 and 10 which included discriminatory effects absent intention as "discriminatory practices" and requiring "reasonable accommodation" of a Respondent before it could avail itself of a section 14(a) defence.

The decision of the Federal Court of Appeal was not released until April 13, 1983 some two weeks after assent had been given to the amendments to the Act. This decision not only overturns the jurisprudence, but is in direct conflict with the Guidelines.

19. Similarly, where an Act is amended, and the amendments assist in the interpretation of the unamended legislation, they should be construed as a consolidation and as declaratory of the law as contained in the former enactment.

Interpretation Act R.S.C. 1970 I-23 (as amended) section 36(f).

Even if a court might have reached a different conclusion prior to the amendment, it is submitted the amendment cannot be ignored since to do so would frustrate the intention of Parliament with respect to the prospective operation of the statute.

Ottawa v Hunter (1900) 31 S.C.R. 7; cited in Drieger (supra) page 127.

20. In the 1983 amendments to the Act section 15.1 and 19.1 were added. They apply only to disabled people. The former section authorized the Commission to approve plans for adapting any services, facilities, premises, equipment or operations to meet the needs of the disabled. The incentive for person to submit plans is that the Commission's approval bars any complaint under Part III regarding discrimination based on disability. The latter section authorizes the Governor in Council to make regulations prescribing standards of accessibility to services, facilities, premises, equipment or operations to meet the needs of the disabled. Where the standards are adhered to, they cannot form the basis of a complaint under Part III.

Perhaps the classic case of discriminatory effects for the physically handicapped, is the inaccessible building. Superficially neutral in its application, a stair case at the entrance to a building has the effect of preventing persons in wheelchairs from gaining admission. The revised Act appears to treat the erection of an inaccessible building as a potentially discriminatory practice, subject to the bona fide justification defence in section 14(g) and to the defence that the structure is in conformity with a plan approved by the Commission pursuant to section 15.1.

21. Section 41(4) was also amended in 1983. After April 17, 1985, a Tribunal may require an employer to adapt its premises or facilities in order to meet the needs of persons with the complainant's disability, provided the adaptation will not occasion costs or business inconvenience constituting undue hardship. Should undue hardship result from such an order, the Tribunal's broad powers to grant a remedy under subsection (2) remains limited, and it can only recommend such adaptations as it feels are necessary.

In American human rights legislation and jurisprudence "undue hardship" is consistently used a the degree the of accommodation required of a respondent.

Prewitt v United States Postal Service (1981) 662 F. 2d 292 (5th Cir.) (footnote 22).

Parliament, by placing the words "undue hardship" in the context of requiring respondents to adapt their premises and facilities to meet the needs of disabled people, clearly contemplated more than a de minimus cost. Thus just as the Prewitt case (supra) held that the decision of T.W.A. v Hardison (1977) 432 U.S. 63 was not relevant in the American handicap discrimination context, Parliament has indicated that it should not be adopted into federal human rights jurisprudence either.

22. Should intention in the sense of motivation be a prerequisite to a finding that the development of premises or facilities which exclude the handicapped constitutes a discriminatory practice, then section 41(4) would rarely if ever be used and there would be no inducement to submit plans for approval pursuant to section 15.1.

23. Section 19.1 allows the Governor in Council to make regulations prescribing standards of accessibility to services, facilities or premises by disabled people. While a finding of a discriminatory practice is not a prerequisite to prescribing standards, the legislation clearly contemplates overlaps, since the standards afford an absolute defence to a complaint under Part III.

In the first published Report produced for the government on how such accessibility standards should be implemented, the overlap is considered a strong argument in support of making regulations.

When the provisions of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms come into full force, the adoption of accessibility standards would not significantly alter the legal obligations of carriers. Rather, it would attempt to define them. The basic objective would be to state as specifically as possible what constitutes "reasonable accommodation" of persons with various disabilities in as many situations as possible.

In reality, if such standards are not developed cooperatively and with foresight, they will be imposed ex post facto by human rights tribunals and courts adjudicating specific complaints and civil suits. There are obvious disadvantages to litigation as the mechanism for resolving these issues.

Ed Ratushny, Air Accessibility Standards for Disabled and Elderly Persons Transport Canada (1984) p. xviii Appendix D) page 41

D. Discriminatory Practices

24. The Federal Court of appeal has decided that "discriminatory practices" as defined in section 7 and 10 extend to:

(a) discrimination in which there is discriminatory intention or motivation [i.e. intentional discrimination]; and

(b) differential treatment [i.e. unequal treatment].

The majority of the Court went on to decide that Parliament did not intend to provide for:

c) "adverse effect" legislation in the absence of intent [i.e. discriminatory effects].

25. Prior to the decision, human rights tribunals had consistently held that employment practices which have discriminatory effects are prima facie discriminatory practices. As a result no jurisprudence has emerged which would clarify what is meant by an intention to discriminate, or differential treatment.

26. Section 14(a) provides a defence, in the event that an employer's practice is considered prima facie discriminatory. Therefore the practical consequence of upholding the Federal Court of Appeal's decision will therefore be that

a) practices motivated by sincerely held beliefs which are not bona fide as that term has been defined in the case of O.H.R.C. v Borough of Etobicoke (1982) 132 D.L.R. (3d) 14 at 19, will not be prima facie discriminatory practices; and

b) practices which have the effect of excluding members of protected classes but are not overtly characterized as being squarely based on the protected class will not be prima facie discriminatory practices, therefore distinctions based on levels of ability or functions dependent upon particular abilities may be permissible, and only those based on the arbitrary norms used to define a disability would be prohibited.

27. If intention is interpreted as malicious motivation then, it will be rare that the bona fides or reasonableness of a respondent's practices will be considered. Since malice directed at a persons because of their membership in a protected class will be both irrational and male fides, section 14(a) of the Act would become redundant.

28. Prejudice against the disabled is often motivated by more benign factors. Because the disabled have long been excluded from society, they suffer greatly from misguided benevolence, overprotection and stereotyped assumptions about their levels of ability. Unless the reasonableness of the employer's motivation can be assessed, the Act, will not avail the disabled person who seeks to escape the effects of such prejudice.

Leaving aside whatever legal obligations the Respondent may have been under in this case, and it must be assumed that its "hard hat policy" was motivated out of a desire to protect the Complainant. Overprotection is a major source of discrimination against the disabled. Benevolent intention does not change the consequence of the practice. It is the reasonableness of the Respondent's policy, which dictates whether it acted in a responsible or prejudicial fashion.

If reasonableness is not the standard but the prohibition extends beyond malicious motivation then Human Rights Tribunals will embark not only on the difficult task of assessing circumstantial evidence in order to assess the Respondent's motive, but must then decide which motives are unacceptable.

Presumably an attempt to catalogue unacceptable motivation would relate back to the causes of discrimination in society. This would be a very complex task and would likely result in deciding either on the basis of the reasonableness of the motivation or interpreting intention in the sense of mens rea in the criminal law.

There is nothing in sections 7 or 10 of the Canadian Human Rights Act which would assist in making this kind of distinction. Yet this is precisely the kind of distinction which Parliament intended to be made when determining whether punitive damages should be awarded pursuant to section 41(3).

29. The absence of a discriminatory effects standard will make the interpretation of the unequal treatment standard more important. Because disability is not the absence of ability, but rather a level of ability which falls below the normal range, the characterization of the protected class singled out for special treatment will be more complex in a disability case.

As well the direct connection between level of disability and functional impairments means characterization could create arbitrary results unless distinctions based on reading the printed word, using a conventional telephone or walking upstairs are treated in the same fashion as distinctions based on visual, auditory or mobility disabilities.

Whether or not the unequal treatment standard extends to functional impairments and degrees of ability would therefore be of critical significance to the disabled, absent a discriminatory effects standard.

30. It is submitted that the prima facie discriminatory practices in sections 5 to 31.1 of the Act require only that there be adverse impact or differentiation on a prohibited ground of discrimination. Discriminatory motivation absent such effects is not prohibited. The words "on a prohibited ground of discrimination" add nothing more than a casual link between the protected classes and the differentiation or effects. Motivation only becomes relevant under the Act when punitive damages pursuant to section 41(3) is being contemplated.

When the structure and objects of the Act, and the root causes of prejudice and discrimination in society are considered, it is submitted that a large and liberal interpretation of sections 7 and 10 would hold superficially neutral employment practices which disproportionately exclude members of protected classes, are prima facie discriminatory.

Part IV - Nature of Order Requested

31. The Intervenors, the Canadian Association for the Mentally Retarded and the Coalition of Provincial Organizations of the Handicapped ask that this appeal be allowed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

J. DAVID BAKER
of Counsel for the Intervenors
The Canadian Association for the Mentally Retarded
and
the Coalition of Provincial Organizations of the Handicapped

Part V - Table of Authorities

Cases

Board of Governors of Seneca College v Bhadauria
1981) 124 D.L.R. (3d) 193

Cowper v Struder [1951] 2 D.L.R. 81 at 85
cited in E.A. Drieger, Construction of Statutes (2nd ed) , (1983)

O.H.R.C. v Borough of Etobicoke (1982) 132 D.L.R. (3d)

Ottawa v Hunter (1900) 31 S.C.R. 7; cited in Drieger (supra)

Prewitt v United States Postal Service (1981) 662 F. 2d 292

Text and Reports

Obstacles: Report of the Special Parliamentary Committee of the Disabled and the Handicapped (1981)

United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 1983

Legislation

Canadian Charter of Rights and Freedoms section 32

Canadian Human Rights Act S.C. 1980-81-82-83

Interpretation Act R.S.C. 1970, c.I-23 (as amended)

Appendices

APPENDIX A

IN THE SUPREME COURT OF CANADA
On Appeal from the Federal Court of Appeal
IN THE MATTER OF THE CANADIAN HUMAN RIGHTS ACT
25-26 Elizabeth, II Ch. 33

AND IN THE MATTER OF a complaint filed under
section 32(1) of the Canadian Human Rights Act
by Mr. K S. Bhinder against Canadian National Railway Company
BETWEEN
K. S. BHINDER and
THE CANADIAN HUMAN RIGHTS COMMISSION
Appellants
AND:
CANADIAN NATIONAL RAILWAY COMPANY
Respondents

AFFIDAVIT

I, RONALD KANARY, of the Town of Glace Bay, in the Province of Nova Scotia, MAKE OATH AND SAY AS FOLLOWS:

1. I am Chairperson of the Coalition of Provincial Organizations of the Handicapped and as such have knowledge of the matters hereinafter deposed to.

2. The Coalition of Provincial Organizations of the Handicapped (COPOH) is a national cross-disability organization which was founded in 1976 and incorporated in 1978.

3. COPOH believes that disabled Canadians should have the right and responsibility to present their needs and concerns in all areas of our society. It's objectives are as follows:

a) to promote full integration of disabled Canadians by creating an environment of equality;

b) to establish an open forum where disabled people will freely voice their concerns regarding issues that affect their lifestyle; and

c) to act as a monitoring body, to ensure that all rights and freedoms, once acquired, are maintained.

4. COPOH has 10 provincial affiliates, comprised of approximately 84 local groups which are ultimately accountable to an active membership of more than 25,000 disabled individuals.

5. The organization is administered by a National Council of Representatives consisting of 40 elected representatives (4 from each provincial affiliate) plus a National Chairman.

6. Together with its provincial affiliates, COPOH has provided various levels of government with a consumer perspective on issues affecting the lives of Canadians with disabilities such as employment, transportation, communications, housing, living standards and human rights.

7. On August 13, 1983 the National Council of Representatives passed a resolution authorizing the Association to seek leave from the Supreme Court of Canada to intervene in this case and to instruct counsel accordingly.

8. Unemployment amongst handicapped people of employable age is estimated to range between 80 (Health and Welfare Canada) and 90 (COPOH) percent. Unlike other jurisdictions which rely upon mandatory quota and affirmative action schemes to ensure more acceptable rates of employment amongst their handicapped citizens, Canadian governments have relied upon human rights legislation.

9. The judgment of the Federal Court of Appeal to the effect that the Canadian Human Rights Act "is not sufficiently comprehensive to include the effect of indirect discrimination" i.e. "discrimination in which there is neither discriminatory intention or motivation or differential treatment", is a matter of grave concern to COPOH.

10. Pursuant to section 2(a) of the Canadian Human Rights Act, S.C. 1976-77 c.33 physically handicapped people were protected against discriminatory employment practices. The Act was amended in 1983 S.C. 1980-81-82-83 c.143, thereby extending protecting of the physically handicapped to all substantive areas which it covers.

11. Handicapped people are the most recent class of persons to receive protection under Canada's various human rights statutes. Ontario was the last province to so include the physically handicapped when it amended its Code in 1981.

12. To the best of my knowledge the United States was the first jurisdiction to use human rights legislation to foster the integration of handicapped people when it passed sections 503 and 504 of the Rehabilitation Act of 1973 Pub. L. No. 93-112, 87 Stat. 373 after the landmark decision of Griggs v Duke Power Company 401 U.S. 424 (1971).

13. COPOH believes that equal treatment will avail handicapped people little because most discriminatory action against us is based on the functional differences between handicapped and non-handicapped people. Moreover attempts to discover the intention underlying long standing policies and structures which impede the integration of handicapped people will face serious evidentiary obstacles.

14. COPOH believes that cases where malicious intention to discriminate against handicapped people will be rare. If human rights legislation is to play a significant part in furthering the integration of handicapped people, COPOH believes it must authorize a re-examination of policies and structures which have an exclusionary impact to determine whether they could be modified to accommodate a person's handicap.

15. Now shown to me and marked as Exhibit A to this my affidavit are the Bona Fide Occupation Requirements Guidelines issued by the Canadian Human Rights Commission pursuant to section 22(2) of the Act. They provide inter alia at section 9:

Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a handicapped persons and before he or she refuses such employment opportunity based on bona fide occupational requirement, the employer shall support his or her findings based on the evidence that

a) no method of accommodation exists that would permit a handicapped person to perform the job in a safe and satisfactory manner;

b) to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer; or

c) to make an accommodation would create a predictable safety hazard for other employees or the general public.

If the judgment of the Federal court of Appeal is upheld in this case then the Guidelines in general, and those requiring the reasonable accommodation of physically handicapped people would be clearly ultra vires.

16. I believe that participation of Coalition of Provincial Organizations of the Handicapped as an intervenor would assist This Honourable Court in its consideration of the judgment under appeal.

SWORN before me in the )
City of Sydney in the )
Province of Nova Scotia ) RONALD KANARY
this 19 day of August 1983, )
Brian D. Wilberton
A Commissioner, etc.

(Extract from the Canada Gazette Part II, dated January 13, 1982)

Registration

SI/82-3 13 January, 1982

CANADIAN HUMAN RIGHTS ACT : Bona fide Occupational Requirement Guidelines

The Canadian Human Rights Commission, pursuant to subsections 14(a) and 22(2) of the Canadian Human Rights Act, is hereby pleased to issue as set out in the schedule hereto respecting the manner in which paragraph 14(a) of the Canadian Human Rights Act applies to employment practices.

Dated at Ottawa, this 14th day of December, 1981

GUIDELINES SETTING FORTH THE EXTENT TO WHICH AND THE MANNER IN WHICH PARAGRAPH 14(a) OF THE CANADIAN HUMAN RIGHTS ACT APPLIES TO EMPLOYMENT PRACTICES

Short Title

1. These guidelines may be cited as the Bona fide Occupational Requirements Guidelines.

Interpretation

2. In these Guidelines, "Act" means the Canadian Human Rights Act;

"employment opportunity" includes employment practices, job training, promotion and transfer;

"handicapped person" means a person who has a physical handicap as defined in section 20 of the Act;

"performance of a job" means the performance of the essential tasks of a particular job.

General

3. Paragraph 14(a) of the Act applies in any case where an employer establishes that a specific ability is necessary for the safe and adequate performance of a job.

4. For the purposes of paragraph 14(a) of the Act, the following employment practices are not based on a bona fide occupational requirement:

(a) the eligibility of an individual to participate in an employer's group insurance, pension or other benefit plan;

(b) an assessment of an individual's ability to perform the job that is based on that individual's membership in a class or group of individuals that is protected from discriminatory practices referred to in sections 5 to 13 of the Act rather than on the individual's own merit and ability;

(c) a requirement based on co-worker or customer preference not related to an individual's ability to perform the job; or

(d) a requirement that the job be performed only in a certain way where reasonable alternative ways may be found.

5. Where an employer devises methods of testing an individual's performance of a job, he or she shall proceed as follows to establish bona fide occupational requirements:

(a) identify the essential tasks that make up the requirements of the job;

(b) identify the skills and capabilities required to perform the essential tasks of the job;

(c) use methods that evaluate the ability of the individual to carry out by any reasonable method the essential tasks of the job;

(d) set standards that do not exceed the minimum requirements of the job.

Physical Handicap

6. For the purposes of paragraph 14(a) of the Act, where an employer offers and employment opportunity to a handicapped person.

(a) the requirement that the handicapped person pass tests that would not be required of him if he or she were not a handicapped person is not bona fide occupational requirement; and

(b) a handicapped person shall not be presumed to be unable to perform the job unless testing shows that the person cannot actually perform one or more of the essential tasks of that job.

7. For the purposes of paragraph 14(a) of the Act, where an employer refuses an employment to opportunity to a handicapped person, since the person's handicap would create a safety hazard to the employees of that employer or to the general public, the refusal is deemed to be based on a bona fide occupational requirement.

8. Where an employer finds that the performance of a job by a handicapped person would create a safety hazard to his or her employees or to the general public and before he or she refuses an employment opportunity based on a bona fide occupational requirement, the employer shall support his or her findings by establishing that the safety hazard has been evaluated on the basis of

(a) the probability of the occurrence of accident as a result of the performance of the job by the handicapped person;

(b) evidence that the safety hazard is significantly greater than if the person were not a handicapped person; and

(c) the relation of the safety hazard to the specific physical handicap of the handicapped person.

9. Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a handicapped person and before he or she refuses such employment opportunity based on a bona fide occupational requirement, the employer shall support his or her findings based on evidence that

(a) no method of accommodation exists that would permit a handicapped person to perform the job in a safe and satisfactory manner;

(b) to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer; or

(c) to make an accommodation would create a predictable safety hazard for other employees or the general public.

10. Where an employer refuses an employment opportunity to a handicapped person on the basis that the person's physical handicap could, as a result of the performance of the job and whether or not reasonable accommodation is made, cause an unreasonable risk to himself or herself, and before he or she refuses such employment opportunity based on a bona fide occupational requirement, the employer shall show that the exposure of the person to the risk would likely result in the disruption of the employer's business.

11. Where an employer refuses an employment opportunity to a handicapped person and the refusal is based on a bona fide occupational requirement related to the predicted future work abilities of that person, the employer shall establish that

(a) the abilities of the handicapped person will diminish to such an extent and at such a rate that he or she will not be able to perform the job for a reasonable period of time: and

(b) the diminution referred to in paragraph (a) will result in the disruption of the employer's business.

Religious Beliefs

12. Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a person on the basis of that person's religion the employer shall, before he or she refuses such employment opportunity based on a bona fide occupational requirement, support his or her findings based on evidence that to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer.

Appendix B

IN THE SUPREME COURT OF CANADA

On Appeal from the federal Court of Appeal

IN THE MATTER OF THE CANADIAN HUMAN RIGHTS ACT

25-26 Elizabeth, II Ch. 33

AND IN THE MATTER OF a complaint filed under

section 32(1) of the Canadian Human Rights Act

by Mr. K. S. Bhinder against Canadian National Railway Company

BETWEEN:

K. S. BHINDER and

THE CANADIAN HUMAN RIGHTS COMMISSION,

Appellants

AND:

CANADIAN NATIONAL RAILWAY COMPANY

Respondent

AFFIDAVIT

I, MARIE GALLAGER, of the Village of DeWinton, in the Province of Alberta, MAKE OATH AND SAY AS FOLLOWS:

1. I am President of the Canadian Association for the Mentally Retarded and as such have knowledge of the matters hereinafter deposed to.

2. The Canadian Association for the Mentally Retarded (The Association) is a national charitable organization which was founded and incorporated in 1957.

3. Included amongst the Association's objectives are the following:

a) to ensure the provision of appropriate supports so that people who have mental retardation have the same individual opportunities as other citizens to live in freedom and dignity in a normal environment, and

b) to defend the rights and advocate the interests of all individuals who have mental retardation.

4. The Association has 10 provincial associations which comprise its membership. They in turn have approximately 390 local associations. Some 40,000 Canadians are volunteer members of these associations.

5. A National Board of 27 elected representatives from all regions of Canada administers the Association. In addition, a Consumer Advisory Committee composed of people who have Been labelled mentally handicapped ensures the Association is informed of the views of persons with mental handicaps on issues which directly affect them.

6. The Association, and its provincial members, have been deeply involved in advocating changes in legislation, both at the national and provincial levels, which would enable mentally handicapped people to participate and contribute in society to the fullest possible extent.

7. On August 27, 1983, the Executive Committee of the Association passed a resolution authorizing the Association to seek leave from the Supreme Court of Canada to intervene in this case and to instruct counsel accordingly.

8. Unlike most European countries (including the United Kingdom) and Japan which rely on quota systems, Canada and the United States have attempted to alleviate the serious problems of unemployment and discrimination experienced by their handicapped citizens by including them amongst the protected classes in their human rights legislation.

9. The judgment of the Federal Court of Appeal to the effect that the Canadian Human Rights Act "is not sufficiently comprehensive to include the effect of indirect discrimination" i.e. "discrimination in which there is neither discriminatory intention or motivation or differential treatment", is a matter of grave concern to the Association.

10. On March 30, 1983, an Act Amending The Canadian Human Rights Act received Royal Assent, extending the Act's protection to mentally as well as physically disabled people.

11. Handicapped people are inherently different from non-handicapped people by virtue of their individual handicaps. It is therefore anticipated that a substantial percentage of all human rights cases involving handicapped complainants will involve indirect discrimination and the question of whether the respondent should accommodate the complainant's handicaps.

12. The Association believes that persons rarely discriminate against mentally handicapped people with malicious intent. Rather, innocent but mistaken assumptions about what is "normal" result in the mentally handicapped being screened out without receiving an opportunity to demonstrate their individual capacities.

13. Now shown to me and marked as Exhibit A to this my affidavit are the Bona Fide Occupational Requirements Guidelines issued by the Canadian Human Rights Commission pursuant to section 22(2) of the Act. They provide inter alia at section 9:

Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a handicapped person and before he or she refuses such employment opportunity based on a bona fide occupational requirement, the employer shall support his or her findings based on the evidence that

a) no method of accommodation exists that would permit a handicapped person to perform the job in a safe and satisfactory manner;

b) to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer; or

c) to make an accommodation would create a predictable safety hazard for other employees or the general public.

14. While the Guidelines as presently constituted pertain only to physically handicapped people, the Association anticipates that should this appeal be allowed they will be extended to require the reasonable accommodation of mentally handicapped people as well. If the judgment of the Federal Court of Appeal is upheld then the Guidelines would be clearly ultra vires.

15. I believe the participation of the Association as an intervenor would assist this honourable Court in its consideration of the judgment under appeal.

SWORN BEFORE ME at the)
City of DeWinton, ) MARIE GALLAGER
in the Province of Alberta )

(Extract from the Canada Gazette Part II, dated January 13, 1982)

Registration

SI/82-3 13 January, 1982

CANADIAN HUMAN RIGHTS ACT: Bona fide Occupational Requirements Guidelines

The Canadian Human Rights Commission, pursuant to subsections 14(a) and 22(2) of the Canadian Human Rights Act, is hereby pleased to issue guidelines as set out in the schedule hereto respecting the manner in which paragraph 14(a) of the Canadian Human Rights Act applies to employment practices.

Dated at Ottawa, this 14th day of December, 1981

GUIDELINES SETTING FORTH THE EXTENT TO WHICH AND THE MANNER IN WHICH PARAGRAPH 14(a) OF THE CANADIAN HUMAN RIGHTS ACT APPLIES TO EMPLOYMENT PRACTICES

Short Title

1. These guidelines may be cited as the Bona fide Occupational Requirements Guidelines.

Interpretation

2. In these Guidelines,

"Act" means the Canadian Human Rights Act;

"employment opportunity" includes employment practices, job training, promotion and transfer;

"handicapped person" means a person who has a physical handicap as defined in section 20 of the Act;

"performance of a job" means the performance of the essential tasks of a particular job.

3. Paragraph 14(a) of the Act applies in any case where an employer establishes that a specific ability is necessary for the safe and adequate performance of a job.

4. For the purposes of paragraph 14(a) of the Act, the following employment practices are not based on a bona fide occupational requirement:

(a) the eligibility of an individual to participate in an employer's group insurance, pension or other benefit plan;

(b) an assessment of an individual's ability to perform the job that is based on that individual's membership in a class or group of individuals that is protected from discriminatory practices referred to in sections 5 to 13 of the Act rather than on the individual's own merit and ability;

(c) a requirement based on co-worker or customer preference not related to an individual's ability to perform the job; or

(d) a requirement that the job be performed only in a certain way where reasonable alternative ways may be found.

5. Where an employer devises methods of testing an individual's performance of a job, he or she shall proceed as follows to establish bona fide occupational requirements:

(a) identify the essential tasks that make up the requirements of the job;

(b) identify the skills and capabilities required to perform the essential tasks of the job;

(c) use methods that evaluate the ability of the individual to carry out by any reasonable method the essential tasks of the job;

(d) set standards that do not exceed the minimum requirements of the job.

Physical Handicap

6. For the purposes of paragraph 14(a) of the Act, where an employer offers an employment opportunity to a handicapped person.

(a) the requirement that the handicapped person pass tests that would not be required of him if he or she were not a handicapped person is not a bona fide occupational requirement; and

(b) a handicapped person shall not be presumed to be unable to perform the job unless testing shows that the person cannot actually perform one or more of the essential tasks of that job.

7. For the purposes of paragraph 14(a) of the Act, where an employer refuses an employment opportunity to a handicapped person, since the person's handicap would create a safety hazard, the refusal is deemed to be based on a bona fide occupational requirement.

8. Where an employer finds that the performance of a job by a handicapped person would create a safety hazard to his or her employees or to the general public and before he or she refuses an employment opportunity based on a bona fide occupational requirement, the employer shall support his or her findings by establishing that the safety hazard has been evaluated on the basis of

(a) the probability of the occurrence of accident as a result of the performance of the job by the handicapped person;

(b) evidence that the safety hazard is significantly greater than if the person were not a handicapped person; and

(c) the relation of the safety hazard to the specific physical handicap of the handicapped person.

9. Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a handicapped person and before he or she refuses such employment opportunity based on a bona fide occupational requirement, the employer shall support his or her findings based on evidence that

(a) no method of accommodation exists that would permit a handicapped to perform the job in a safe and satisfactory manner;

(b) to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer; or

(c) to make an accommodation would create a predictable safety hazard for other employees or the general public.

10. Where an employer refuses an employment opportunity to a handicapped person and the basis that the person's physical handicap could, as a result of the performance of the job and whether or not reasonable accommodation is made, cause an unreasonable risk to himself or herself, and before he or she refuses such employment opportunity based on a bona fide occupational requirement, the employer shall show that the exposure of the person to the risk would likely result in the disruption of the employer's business.

11. Where an employer refuses an employment opportunity to a handicapped person and the refusal is based on a bona fide occupational requirement related to the predicted future work abilities of that person, the employer shall establish that

(a) the abilities of the handicapped person will diminish to such an extent and at such a rate that he or she will not be able to perform the job for a reasonable period of time; and

(b) the diminution referred to in paragraph (a) will result in the disruption of the employer's business.

Religious Beliefs

12. Where an employer finds that he or she cannot make reasonable accommodation in order to offer an employment opportunity to a person on the basis of that person's religion the employer shall, before he or she refuses such employment opportunity based on a bona fide occupational requirement, support his or her findings based on evidence that to make an accommodation would impose an undue hardship involving either financial cost or business inconvenience to the employer.

Appendix C

OBSTACLES

SPECIAL COMMITTEE ON THE DISABLED AND THE HANDICAPPED
FIRST SESSION, THIRTY SECOND PARLIAMENT, 1980-81

THE THIRD REPORT

RECOMMENDATIONS

ONE

HUMAN AND CIVIL RIGHTS

"We do not want charity or special favours and privileges; only the same basic rights and freedoms as others. We wish to be treated as equal human beings—to be able to participate in the common life, to the extent of our capabilities, without having to face unnecessary barriers to our involvement. We have the same needs and desires as anyone else—to be self-sufficient—self-determining—to have a measure of dignity and self-respect—to be contributing and responsible members of society—to enjoy the same basic freedoms, rights and responsibilities as anyone else in this country."

Action League for physically Handicapped Adults of Kitchener-Waterloo

"We wish to live the same as the other person and expect to have to do our part for society. Why should we have to keep proving that we have a place in society when the normal person knows they have. We are all here for one reason or another; does this not mean that we should be treated as equals? But are we now? I think not, for we are laughed at, made fun of, or worse—we are pitied for pity's sake and this is not what we want. We want to do our part to help society as a whole."

People First (Vancouver)

"In a technological society such as ours, there is a real danger that the value placed on material progress over-rides the value of human potential and dignity."

Canadian Association of the Mentally Retarded

1. Amend the Human Rights Act to protect disabled persons

Recommendation: That physical handicap be made a proscribed ground of discrimination for all discriminatory practices listed in the Canadian Human Rights Act, and not just for discriminatory employment practices.
That the Canadian Human Rights Act be further amended so that Tribunal orders can be made with respect to access to goods, services, facilities and accommodation, and that it include a qualification that the changes ordered by a Tribunal should not impose undue hardship on the respondent.
That mental handicaps (learning disabilities, retardation or mental illness) and a previous history of mental illness or a previous history of dependence on alcohol or other drugs be added to the proscribed grounds of discrimination under the Canadian Human Rights Act (CHRA).

Committed

Every Hearing: One of the key recommendations in OBSTACLES, the need for changes to the Canadian Human Rights Act, was mentioned at every public hearing. The Committee felt that the matter was of such urgency that it issued an interim report in October 1980 to highlight the need for these changes. This interim report also stressed the need for "full and equal protection" for persons with physical or mental handicaps in any proposed Charter of Rights and Freedoms.

Active Efforts: The Charter of Rights and Freedoms does include protection from discrimination on the basis of physical or mental disability. The inclusion of this Clause was achieved through the active efforts of the Committee members and consumer groups, particularly COPOH (Coalition of Provincial Organizations of the Handicapped).

Drugs and Alcohol: As a further extension of the principle of protection, the Canadian Human Rights Commission (CHRC), in support of this recommendation, has also decided that "previous history of dependence on alcohol or other drugs" should now be simply "dependence on alcohol or other drugs". The Public Service Commission has "major concerns" about inclusion of either mental disability or previous dependence on drugs or alcohol. But there has been strong support for both the OBSTACLES recommendation and the CHRC decision from such groups as COPOH, and the Canadian Mental Health Association.

Priority: The Committee feels that amendments to the Canadian Human Rights Act are urgently needed, and the Minister of Justice stated that he sees this recommendation as a priority.

Unable To Assist: Because the current provisions of the Act allow only for investigation of discrimination on the basis of physical handicap in employment matters, the Canadian Human Rights Commission has been unable to assist in a number of cases of discrimination. For example:

• A physically disabled person, in a wheelchair, was denied access to the second floor of a Federal museum because of difficulties in leaving should a fire occur.

• A physically disabled person could not enter certain government buildings such as employment centres or post offices, because they were inaccessible.

• A person with mild schizophrenia which was totally controlled by medication was employed by a railroad. When the employer found out that the person was taking medication, and the reason for it, the employee was fired.

Demonstrated: The need for amendments to the Canadian Human Rights Act have been amply demonstrated. The Committee urges immediate action on this acknowledged priority item.

Clear Public Direction: Canadians are no longer prepared to accept this form of discrimination in any area of society. By far the most repeated request that the Committee received in its hearings across Canada was for greater protection under the CHRA. In addition, these requests were supported by representations that have been made during the past two years to the Canadian Human Rights Commission, by samplings of public opinion, and by recent legislative developments in several provinces. They all clearly point to the need for improvement under the the Canadian Human Rights Act.

Invisible Disabilities: Those Canadians who are mentally ill, or who have learning disabilities, are in special need of protection because their problems tend to be invisible. As a result, there is a general lack of public understanding about the needs, abilities and problems of these individuals. The mentally ill are occasionally considered to be dangerous lunatics. This attitude is reinforced through rumours, jokes and by stereotypes presented in films and television programs. The learning disabled are sometimes branded as lazy, as having a very weak or very low intelligence. Both groups experience discrimination in a variety of everyday situations—particularly when seeking employment. Legal protection, therefore is needed to safeguard the rights of these individuals who have special needs.

Existing Mechanism: The United States prohibits discrimination on the basis of physical and mental disability in its Rehabilitation Act of 1973. In this country, the Canadian Human Rights Act is an existing mechanism which can be used to provide similar protection for Canadians.

2.  Direct Human Rights Commission to provide detailed guidelines. 

Recommendation: That the Canadian Human Rights Commission (CHRC), in consultation with appropriate consumer groups, develop and publish Guidelines to:

• Confirm and clarify their present administrative practice of hearing similar complaints simultaneously;

• Define methods of establishing "class" for beginning class action complaints to the Commission.

That the Canadian Human Rights Commission should develop precise Guidelines on the scope of "undue hardship" as an exemption from the Act; these Guidelines should be published when the Committee's suggested amendment to the Canadian Human Rights Act is passed.

A. Committed

Not Necessary: The Canadian Human Rights Commission (CHRC) feels that the Act clearly enunciates the procedure followed by CHRC in group or class complaints. Therefore, CHRC feels that publication of the guidelines is not necessary. CHRC will undertake a campaign to publicize the appropriate procedures under sections 10 and 32(4) of the Act. The Committee sees that CHRC is committed to the spirit of the recommendation.

B. Not implemented

Difficult: CHRC believes that Guidelines on "undue hardship" may be difficult to formulate, but the Commission will continue to study the situation. The Department of Transport thinks the grounds for exemption should be "reasonable cause including undue cost". The Canadian Hearing Society and the Canadian Co-ordinating Council on Deafness agree that Guidelines are important, especially for the hearing impaired. The Mayor's Task Force (Toronto) questions the need for Guidelines.

Emphasized: The Committee recognizes that final development and issuing of Guidelines must await a decision on the exact wording of the amendment to the Act. Some experience with the new legislation may also be needed. The need for continuing consultation with disabled consumer groups concerning the scope of any "undue hardship" exemption is emphasized.

Note: The Bona Fide Occupational Requirement Guidelines, brought into effect in January 1982, make the extent of this exemption for employers very clear and provide a legal standard for interpretation of that part of the Act.

Immediate Need: The Committee learned from its hearings that there is an immediate need to clarify certain legal terms used under the Canadian Human Rights Act, and to clarify procedures of "class action" as they relate to complaints made to the Human Rights Commission.

Bona Fide Requirements: "Bone Fide Occupational Requirements" means the essential education, skill or experience that is needed to do a job. Under the present provisions of the Canadian Human Rights Act, employers may use this term to discriminate against disabled persons. For example, the job description for an accounting job may list "using the telephone" as a requirement. This would automatically exclude a deaf person with accounting skills and experience. The question, then, is whether using the telephone is a bona fide requirement. An examination of the situation may show that it is incidental — and that a deaf person with the requisite accounting skills can do the job perfectly well.

The Canadian Human Rights Commission, therefore, should establish a Guideline under the Canadian Human Rights Act to make this term more precise and predictable. This Guideline should make it clear that certain practices will not qualify as a "Bona Fide Occupational requirement."

Undue Hardship: In its First Report, the Committee dealt with possible exemptions under the Canadian Human Rights Act. It recommended that a person could be exempted from having to provide goods, services, facilities, and accommodation to a disabled person if he or she could show that this would cause "undue hardship". For example, a small regional airline would not likely be expected to retrofit or renovate its existing fleet to make all equipment accessible, following the complaint of a wheelchair user. Interim arrangement—such as prearranged boarding assistance—might be accepted in this case. The airline, however, would be expected to make full changes when new aircraft were purchased, or major renovations were undertaken. Each "undue hardship" exemption would be examined carefully, in light of the Guideline. Only real cases of hardship could provide a justification for discrimination.

Avoid Controversy: Both the Canadian Human Rights Act and this exemption for "undue hardship" have the potential for creating controversies and legal haggling. There will obviously be cases where a claim of "undue hardship" is simply an attempt to avoid legal responsibilities. At the same time, there will be cases where disabled persons make unreasonable demands, charging discrimination in situations where the demand for goods, services, facilities and accommodation is clearly unrealistic.

In order to avoid such controversies, the Canadian Human Rights Commission should develop and publish precise Guidelines on the scope of "undue hardship".

Group complaints: Complaints made to the Canadian Human Rights Commission are frequently similar to each other. Wherever possible, the Commission has followed the practice of joining them together. In addition, a group of people may bring their complaints to the Commission as a joint effort. A complaint can be made about an employment practice or policy which results in systematic discrimination.

Class Actions: A type of true "class action" is also required. In a class action a person could make a complaint on behalf of himself and others who have the same problem and who would benefit from the success of the case. In this situation, each of the complainants must give personal authority for the suit, and must be specifically named within the class. Any class action possible before the Commission must also be permissible in other court proceedings arising from the case: for example, an appeal.

Efficient/Economical: It is clear that both of these practices—group complaints and class actions—help to strengthen the force of the complaints, and to save costs for the complainants. Both practices must be publicized, and be more frequently used.

3. Introduce shifting onus into the Human Rights Act

Recommendation: That the Canadian Human Rights Act be amended to stipulate a shifting onus of proof so that once the complainant has made out a prima facie (reasonably believable/reasonable sound) case of discriminatory practice, the onus of proof shifts to the respondent to prove that discriminatory practices did not occur.

Withdrawn

Not Necessary: The Canadian Human Rights Commission (CHRC) is of the opinion that no such amendment is necessary as a shifting onus of proof is inherent in the application of the Act. The concept is clearly spelled out in the criteria concerning physical handicap, and will be emphasized in future publications and, when appropriate, in speeches. The Justice Department feels the amendment is unnecessary since the law of evidence already recognizes the existence of this concept. The Department of Transport rejects the recommendation because the ordinary civil burden of proof is sufficient. The Public Service Commission opposes the change as it would set a precedent for their appeal procedures.

Clearer Than Before: The Committee agrees that the Administrative Criteria on "Physical Handicap and Employment" illustrate the concept of shifting onus for employers, disabled consumer groups and their advocates. The Bona Fide Occupational Requirement Guidelines embody some aspects of the shifting onus in a legal form, requiring the employers to establish certain facts in order to rely on this exemption. Recent tribunal and court proceedings have employed the shifting onus. Thus, legal principles are clearer than before.

Reasonable Responses: The Committee believes the responses to be reasonable, and therefore, has withdrawn this recommendation.

4. Include primacy clause within the Human Rights Act.

Recommendation: That the Canadian Human Rights Act be amended to add a primacy clause stating that, as a matter of statutory interpretation, the Act shall be applied unless Parliament expressly exempts the legislation from the Canadian Human Rights Act.

Withdrawn

Eliminates Need: The Justice Department is of the opinion that section 15 of the Canadian Charter of Rights and Freedoms eliminates the need for such a clause. The Canadian Human Rights Commission supports the recommendation but feels that it may be unnecessary with the entrenchment of equality rights. The Department of Transport supports the recommendation, with exemptions made for all federal legislation related to safety.

Strict Law: In strict law, the need for a primacy clause is not eliminated for the next three years (until the equality rights in the Charter come into effect). In practice, no amendment would be passed in the meantime. After section 15 of the Charter comes into effect, such a clause will no longer be relevant.

Uncertainty: This will continue to be an area of uncertainty until some definite judgments have been made. Assuming that the courts will interpret section 15 of the Charter of Rights and Freedoms as the Committee believes it was intended, the primacy clause is not needed.

5. Establish postal vote system similar to Manitoba's.

Recommendation: That the Federal Government proceed in developing legislation, together with the appropriate machinery and programs, to establish a postal vote system similar to the one that is successfully in effect in Manitoba.

No Problem: The Chief Electoral Officer, who is responsible for administrations of The Canada Elections Act, say there is "no problem" from an administrative standpoint. He will draw the need for a postal vote to the attention of the Speaker of the House of Commons in his next report. He will review the implications of these proposed changes in the report, which is due at the beginning of the next Session of Parliament. This report will then be studied in detail by the Standing Committee on Privileges and Elections.

Following this Committee's report, the Government will decide whether legislation will be introduced to accommodate the recommendations.

Seriously Consider: The Government House Leader says that "the government will seriously consider these recommendations of the Standing Committee when it plans its amendments to the Canada Elections Act".

Exercise Right: Exercising one's franchise is an important part of individual responsibility as a Canadian citizen. The Committee urges the Government to consider seriously these recommendations which will assist 10% of Canadians to exercise more easily their democratic right. The Committee also recognizes that the Government cannot act immediately because of the process for changing the Canada Elections Act, but it urges speedy examinations of the report of the Chief Electoral Officer and implementation of its proposed amendments.

Poor Accessibility: Throughout its hearings, the Committee heard complaints that the voting system throughout Canada makes it difficult for many disabled Canadians to travel to polls on election day. The one exception to these complaints was the Province of Manitoba, which has made provisions for a postal vote system for provincial elections.

Ten Days Prior Under the Manitoba Elections Act, the Returning Officer receives an application by mail at least ten days before the polling day, and then returns an initialled ballot to the voter at least seven days before the polling day. This ballot is then marked and sealed in a plain envelope, which is placed into another special envelope that is printed in the form of a certificate.

Certification: On the certificate envelope, two people must be identified: the voter, plus another voter who is authorized to vote in the same electoral division. This second person must certify that the first person's information is correct. The voter can then send the ballot and the certificate to the Chief electoral Officer by any means before the close of the polls. In the case of postal disruptions, the ballots may be picked up by the Division Returning Officer, or be dropped off by friends or family.

Track Record: In the last Manitoba provincial election, 900 mail-in votes were received (total cost: 488.821) and were mostly from urban voters. Manitoba's Chief Electoral Officer advertised the details of the postal vote, and felt that the subsequent results were very satisfactory.

Throughout its hearings, the Committee heard complaints that the voting system throughout Canada makes it difficult for many disabled Canadians to travel to polls on election day.

6. Cease the policy of centralizing polling places.

Recommendation: That the Chief Electoral Officer be directed to immediately cease the present policy of centralizing polls and to accommodate, as fully as is reasonably possible, the mobility problems of disabled person, including persons with disabilities due to aging.

That the Canada Elections Act be reviewed and amended to reflect the fundamental principle that elections are conducted for the convenience of all voters, including the disabled and aging; amendments should include provision for special polls at hospitals and nursing homes, the location of polls in apartment buildings, and should remove the discretionary power to centralize polls, contained in Section 33(6).

More Flexibility: The Chief Electoral Officer, in his last report to the Speaker, recommended more flexibility in setting the maximum number of electors in a polling division. Upon questioning by the Committee, he agreed to give clearer instructions "that where an apartment building constitutes a poll in its own right, the poll should be there and people should not be expected to go any distance". He noted that Section 33(9) makes it mandatory to set up polls in public buildings, and that apartments are not considered public buildings. He will review the implications of these proposed changes, therefore, in his report which is due at the beginning of the next Session of Parliament. (See recommendation 5 for the process of amending the Canada Elections Act).

Appendix D

Air Accessibility Standards for Disabled and Elderly Persons

A Report to the Honourable Lloyd Axworthy, Minister of Transport,
from Ed Ratushny, Special Advisor

Summary of Observations, Conclusions and Recommendations

Chapter One: Background and Introduction

A. Recent Developments

There has been a gradual improvement in the provision of goods and services to disabled consumers in our society in recent years. Nevertheless, there remain a great many unnecessary barriers that inhibit disabled persons from participating as fully as possible in our society. This situation was effectively demonstrated in the landmark report of the Special Parliamentary Committee on the Disabled and the Handicapped entitled Obstacles.

The Canadian Transport Commission held a public hearing or open meeting on the problems related to transportation of disabled persons in November 1979. A Summary of Proceedings was published which provides a short, general summary of the specific concerns of disabled air passengers.

The Policy on Transportation of Disabled Persons was prepared in consultation with many groups, including provincial governments, carriers and organizations representing disabled consumers. It was released publicly by the Honourable Lloyd Axworthy, Minister of Transport, in January 1984.

The Canadian Human Rights Act was extended to protect disabled persons from discrimination in the provision of goods, services, facilities and accommodation. On April 27, 1982, Canada received a new Charter of Rights and Freedoms containing an "equality rights" provision in Section 15 which specifically prohibits discrimination on the basis of "mental or physical disability".

The important factors of safety, technology and economics, as well as basic dignity, must be considered in determining the extent to which disabled persons can be accommodated. In the end, the courts are likely to fall back on the general criterion of "reasonableness" in defining the boundaries of corresponding rights and obligations in this area.

The ultimate judicial task of defining "reasonableness" will not be easy. A great deal would be gained if some general consensus could be reached as to what constitutes "reasonable accommodation" in relation to each relevant stage or aspect of each mode of transportation, taking into account the needs of disabled consumers and the limitations on public carriers. Otherwise, human rights tribunals and the courts will have to define that phase on an ad hoc basis as specific cases come before them, with the corresponding uncertainty, expense and delay of litigation.

Mr. Axworthy has adopted the policy of developing and encouraging the development of accessibility standards for all modes of public transportation. However, standards of accessibility are relevant not only to transportation but also to other areas such as communications, education and accommodation. Some of the observations and recommendations in this report may assist in considering the adoption of standards for such other areas.

B. The Disabled consumer

Many definitions have been used to describe the "disabled person". The Policy on Transportation of Disabled Persons estimates that there are approximately one million physically disabled persons who are transportation-handicapped to some extent. While such definitions may be necessary for certain purposes, human abilities occur as spectrums with a range of ability to perform. The presence of a "disability" may depend largely upon the context. Since facilities are often designed to accommodate the mythical average man almost any atypical traveller exceeds the tolerances of the equipment. Even where the physical disability is the same in two individuals, the response to the barrier may have to be different. In other words, it may not be productive to establish categories or to focus on the disability except to isolate the specific barriers and determine how best they can be overcome.

The concept of "reasonable accommodation" has been described as a pivotal concept in handicap anti-discrimination law because it serves as a realistic middle ground between doing nothing and doing everything to assist handicapped people. This simply means taking reasonable steps not to preclude persons with disabilities from participating as fully as possible in every aspect of our society. That goal has benefits not only for the disabled but for all of society.

It is now well-recognized that one of the greatest obstacles faced by persons with visible disabilities is the attitudes of others. "Invisible" disabilities may generate other problems because of general assumptions. While overt prejudice against disabled persons may not be common, lack of knowledge, experience and sensitivity by well-meaning individuals can also create prejudice and discrimination.

Recommendation: Accessibility standards should be developed and drafted with the objective of achieving greater integration wherever possible, as opposed to providing separate services.

Recommendation: When accessibility standards are developed and drafted, opportunities must be provided for appropriate consultation with individual consumers as well as their associations and professional associations which may speak on their behalf.

C. The Air Carriers

If economy could be ignored, it would be a simple matter to provide complete access so that every flight could accommodate almost every disabled passenger. The reality, of course, is different. Airplanes are expensive to design, construct, modify and operate. Air travellers must be accommodated within limited time and confined space.

Fundamental human rights cannot be calculated through cost-benefit analysis. In our society, the economic burden of providing accommodation is a "cost of doing business" that must ultimately be borne by all consumers of the product or service. Nevertheless, economic as well as safety considerations are appropriate in determining what accommodation is "reasonable" in all of the circumstances.

Recommendation: In developing and drafting accessibility standards, opportunities must be provided for appropriate consultation with individual air carriers as well as their associations.

With the anxiety of many air travellers is placed in the context of special time and space constraints, a great deal must be expected of airline personnel. Many of these employees have performed admirably. However, further education and training would do much to reduce the difficulties faced by many disabled passengers.

Many air carriers in recent years have considerably improved their accommodation of passengers with disabilities. While these initiatives have demonstrated that the industry is willing to respond to special needs, problems remain. Although a number of complaints were received during our consultation, we were, surprised at the number of positive comments about air carrier performance.

D. The Regulators

The National Transportation Act sets out a basic national transportation policy for all modes in very general terms. The Aeronautics Act describes the duties of the Minister of Transport with respect to the development, supervision and control of aeronautics in Canada.

Under the second part of the Aeronautics Act, the Canadian Transport Commission is responsible for the economic regulation of commercial air carriers. The licensing of commercial carriers is done by the CTC's Air Transport Committee. The Committee defers to Transport Canada by ensuring that any ruling it makes on a service matter does not conflict with Transport Canada's safety requirements.

The Canadian Human Rights Commission has broad duties to conduct research and education programs and to use its persuasive powers to discourage and reduce discriminatory practices. A central role of the Commission is to enforce the provisions that prohibit discrimination, by processing specific complaints.

In recent years, some human rights decisions have been appealed to the Supreme Court of Canada for final determination. When the "equality rights" provision of the Canadian Charter of Rights and Freedoms comes into force on April 17, 1985, there will be a significant number of direct court actions apart from the machinery established under human rights legislation.

E. The Consultation Process

In February 1984, a notice was sent to a number of groups and associations of disabled persons, professional associations, air carriers, provincial governments, suppliers and others, requesting written comments. Approximately one hundred submissions were received, some of these being detailed and comprehensive briefs. Preliminary meetings were held with the Air Transport Association of Canada, the Advisory Committee on the Transportation of the Handicapped, the Canadian Transport Commission and the Canadian Human Rights Commission.

It became apparent that there is a pattern of repeated concerns in relation to commercial air travel by persons with disabilities. However, perhaps most encouraging result of the consultative process was the desire to achieve reasonable and practical solutions.

Chapter Two: Nature and Scope of Standards 

A. The Existing Legal Framework

The individual tariffs files by air carriers contain provisions for all passengers as well as specific provisions related to the carriage of disabled passengers. The latter are accepted by the CTC and, for scheduled operations of major carriers, formally consolidated as Rule 33 of the Local and Joint Passenger Rules. At present, Rule 33 applies to carriers providing approximately 85% of all passenger service flights in Canada. All Canadian airlines, nonetheless, must comply with Transport Canada's safety procedures when dealing with disabled passengers. The existing practice does not offer an appropriate means to establish standards of accommodation for disabled persons.

Section 19.1(1) of the Canadian Human Rights Act provides that: The Governor in Council may, for the benefit of persons having any disability, make regulations prescribing standards of accessibility to services, facilities or premises. The section also provides that where a standard exists in relation to a matter and the standard is met, a complaint may not be made in relation to that matter. No standards have yet been enacted under this section. However, it seems to contemplate specific provisions for specialized areas of activity. These would state precisely what constitutes reasonable accommodation in various situations.

Another approach is embodied in section 15.1 of the Act. Under this section, a purveyor of goods and services can submit to the Canadian Human Rights Commission a plan to adapt any services, facilities, premises, operations, or equipment to meet the needs of disabled persons.

The nature of reasonable accommodation in transportation must be shaped by safety, technological and economic as well as human rights considerations. However, the Canadian Human Rights Act provides no formal mechanism for linking the Commission's role in relation to either accessibility standards or adaptation plans with the role of other specialized regulators.

The Minister may make regulations under Part 1 of the Aeronautics Act which could be essentially the same as the "accessibility standards" available under the Canadian Human Rights Act. However, the Canadian Transport Commission has the authority to make regulations under Part II of the same Act. Generally speaking, the Minister has responsibility for safety-related matters, while the Commission is primarily concerned with economic regulation. The subject of "service" overlaps both spheres. Indeed, a potential regulation could embody safety, economic and service considerations.

Accessibility standards could be established: (a) as conditions of licenses through regulations passed by the Canadian Transport Commission under the Air Carrier Regulations pursuant to Part II of the Aeronautics Act; (b) as regulations made by the Governor in Council pursuant to section 19.1 of the Canadian Human Rights Act; or (c) as regulations made by the Minister of Transport, with the approval of the Governor in Council pursuant to Part I of the Aeronautics Act. Nevertheless, some standards could fall within the exclusive jurisdiction of only one or two of the three potential regulators.

B. The Need for Standards

In our context, "standards" represent the level of accommodation and service required of air carriers to meet some of the special needs of consumers with disabilities. This could include the conformity of equipment to certain requirements, the availability of special equipment, the establishment of certain "systems" or procedures for dealing with special situations and the provision of individual assistance not ordinarily provided.

Of course, air carriers have been providing service to disabled passengers for years. Informal practices and procedures have developed. Nevertheless, problems persist.

When the provisions of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms come into full force, the adoption of accessibility standards would not significantly alter the legal obligations of carriers. Rather, it would attempt to define them. The basic objective would be to state as specifically as possible what constitutes "reasonable accommodation" of persons with various disabilities in as many situations as possible.

In reality, if such standards are not developed cooperatively and with foresight, they will be imposed ex post facto by human rights tribunals and courts adjudicating specific complaints and civil suits. There are obvious disadvantages to litigation as the mechanism for resolving these issues.

The courts could always reject such standards on the basis that they do not meet the requirements of section 15 of the Charter. However, the reverse is more likely to be true. The courts are apt to welcome precise accessibility standards because they would aid in defining the legal scope of section 15. This is particularly true where, as suggested earlier, the shape of "equality" must be fashioned in the context of safety, technology and economics.

Where three different bodies can create and enforce laws dealing with the same subject matter, there is an obvious need for cooperation and coordination. There is much to be aid for the Minister responsible for a particular subject area, such as transportation, to assume the leadership and responsibility for developing and recommending accessibility standards in that area.

Recommendation:

1. The Minister responsible for a particular subject area should assume responsibility for developing and recommending accessibility standards pursuant to section 19.1 of the Canadian Human Rights Act.

2. The advice and agreement of the Canadian Human Rights Commission should be sought prior to making a recommendation to Cabinet.

3. Where that Minister is reluctant to act, the Minister of Justice, on the advice of the Canadian Human Rights Commission, should assume such responsibility.

The ideal would be to adopt identical standards as regulations under part I of the Aeronautics Act and as a condition of licenses under Part II of the Aeronautics Act. The adoption of identical regulations by all three authorities would eliminate uncertainty in terms of any suggestion, for example, that safety requirements could not be met because of human rights demands or that human rights requirements were incompatible with economic regulations. Another advantage of adopting identical accessibility standards in all three spheres would be the different enforcement mechanisms.

Recommendation:

1. Identical standards of accessibility for air carriers should be adopted:

(a) as regulations under section 19.1 of the Canadian Human Rights Act;

(b) as regulations under section 6, Part I, of the Aeronautics Act; and

(c) as conditions of licenses pursuant to regulations under section 14, Part II, of the Aeronautics Act.

2. The relevant authorizing legislation should be amended to ensure that identical accessibility standards can be adopted under all three spheres.

The adoption of accessibility standards, of Course, will not solve all problems. If they can increase certainty and consistency in even a few important areas, they will be valuable. Accessibility standards cannot be specific in every respect. In some situations, a degree of flexibility may be desirable. The adoption of accessibility standards must not have the effect of creating rather than eliminating barriers.

Likewise, these standards must not be treated as maximum rather than minimum standards of conduct and accommodation. Legal regulations cannot replace human decency and common sense. Rather, they should provide a context within which those qualities may thrive.

C. A Continuing Process

Recommendation:

1. The Minister of Transport should designate a permanent coordinator for the development of air accessibility standards and appoint an air accessibility standards committee having representatives from: The Canadian Human Rights Commission; the Canadian Transport Commission; disabled consumers; air carriers, and Transport Canada.

2. The coordinator, in consultation with the committee, should be responsible for ongoing development, monitoring and re-evaluation of air accessibility standards and for making recommendations to the Minister for changes to such standards whenever appropriate.

3. Committee work should proceed in a completely open atmosphere, and it should take special initiatives to draw public attention to items of broad interest.

Chapter Three: The Fundamental Issue of Self-Determination

A. Introduction

Perhaps the most fundamental issue concerning access by a disabled traveller is the right to make a personal assessment of one's self-reliance. Should the traveller decide whether he or she can mange without an attendant? Or should he air carrier be permitted to deny access completely unless the traveller is accompanied by such an attendant?

For most commercial flights, Rule 3 of the Local and Joint Passenger Rules applies. Implicitly, the carrier has the ultimate decision as to whether or not a disabled traveller is entitled to travel alone or whether an attendant is required.

Few difficulties are encountered since the disabled passenger's response is accepted. Nevertheless, the carrier is not bound to rely on the passenger's assessment and, occasionally, it refuses to do so. This could seriously compromise the dignity of the disabled passenger, which is protected by section 15 of the Canadian Charter of Rights and Freedoms. Without reasonable legal standards to govern these situations, litigation under human rights legislation and section 15 of the Charter is inevitable.

Return to top.