Court File No. 29597

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL
FOR NEWFOUNDLAND AND LABRADOR)

BETWEEN:

Newfoundland and Labrador Association
Of Public and Private Employees

Appellant
(Respondent)

- and -

Her Majesty the Queen in Right of Newfoundland
As represented by Treasury Board and the Minister of Justice

Respondent
(Appellant)

- and -

Attorney General of Alberta, Attorney General of New Brunswick,
Attorney General of Québec, Women's Legal Education and Action Fund,
Hospital Employees' Union, Health Sciences Association,
British Columbia Government and Services Employees' Union,
Canadian Labour Congress, Canadian Association for Community Living,
Canadian Hearing Society, and the Council of Canadians with Disabilities

Interveners

FACTUM
Canadian Association for Community Living,
Canadian Hearing Society, and Council of Canadians with Disabilities

(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

1. The Canadian Association for Community Living ("CACL"), the Canadian Hearing Society ("CHS"), and the Council of Canadians with Disabilities ("CCD") intervene in this matter pursuant to the Order of the Honourable Madam Justice Louise Arbour, dated 8 March 2004.

2. The CACL, the CHS, and the CCD intervene to make submissions regarding how changes to the test under s. 1 of the Canadian Charter of Rights and Freedoms ("Charter") could affect persons with disabilities.

   Part I - Statement of Facts

3. The CACL, the CHS, and the CCD take no position with respect to the facts.

   Part II - Statement of Questions in Issue

4. Does s. 9 of the Public Sector Restraint Act, S.N.L. 1991, c. 3, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?

5. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

6. Did the Court of Appeal err in adding a further step to the section 1 analysis, namely a requirement for the Court to determine whether the separation of powers doctrine has been offended?

   Part III - Statement of Argument

   A. The Equality Right and its Interpretation

7. The Charter, at s. 15(1), guarantees equality to persons with disabilities.

   Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, Interveners' Brief of Authorities at Tab x

8. The Charter must be interpreted broadly to achieve its purpose.

   Hunter v. Southam, [1984] 2 S.C.R. 145 (S.C.C., per Dickson J.) at 155-156, Interveners' Brief of Authorities at Tab x
   Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577 (S.C.C.) at 612, Interveners' Brief of Authorities at Tab x
   Law v. Canada (Minister of Employment and Immigration) (1999), 170 D.L.R. (4th) 1 (S.C.C.) at 23, Interveners' Brief of Authorities at Tab x

   B. For Persons with Disabilities, Equality Requires Accommodation

9. For persons with disabilities, achieving equality often requires being extended accommodation.

10. Accommodation can mean many things, depending upon the circumstances. In the employment context, it can mean supporting the ability of a person with a disability to do their job through workplace modifications, individualized training, assistive devices, or flexibility with respect to rules. It can mean enabling access to housing and services through building renovations. It can also mean excusing certain actions and accepting certain behaviours that are a manifestation of a disability. Given the varying ways in which accommodation may be effected, this Honourable Court has described the meaning of accommodation in general terms:

    "Accommodation" refers to what is required in the circumstances to avoid discrimination.

    British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 181 D.L.R. (4th) 385 (S.C.C.) at 394.

11. Accommodation performs the function of facilitating the inclusion of persons with disabilities, so that they may live in and participate in their communities and be able to access all of the privileges of citizenship.

12. Accommodation is very important to persons with disabilities. Without it, they have been historically subjected to marginalization and exclusion, and unable to access the privileges of citizenship.

    Numbering in excess of 4 million, persons with disabilities in Canada often and disproportionately experience serious socio-economic disadvantage. For most people in Canada, unemployment rates are unacceptable when they climb to 9 to 10 per cent. According to 1991 federal data, employable aged persons with disabilities faced shocking unemployment rates of 52 per cent. For disabled Canadians, an average unemployment rate of 10 per cent would be a massive improvement.

    People with disabilities are over-represented among the poor, including among the population receiving social assistance. They are under-represented among those persons who have graduated from post-secondary educational institutions. People with disabilities are disproportionately dependent on government bureaucracies, private sector charitable agencies and health care providers for many basic needs. They are generally under-represented in society's mainstream, where upward mobility is most likely.

    Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects?" (1997) 7 N.J.C.L. 263 at 268, Interveners' Brief of Authorities at Tab x

13. This Honourable Court has acknowledged the exclusion and marginalization faced by persons with disabilities:

    It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years: What Progress? What Prospects?" (1997), 7 N.J.C.L. 263. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms. . . . One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed.

    Eldridge v. British Columbia (A.G.) (1997), 151 D.L.R. (4th) 577 (S.C.C.) at 613, Interveners' Brief of Authorities at Tab x

    C. Section 15(1) of the Charter Requires Accommodation

14. The purpose of s. 15 of the Charter is, inter alia, to ensure equality for persons with disabilities. Because equality for persons with disabilities is often contingent upon receiving accommodation, a duty to accommodate has been developed as a requirement of s. 15(1).

15. For persons with disabilities, the s. 15(1) right to equality compels governments to provide accommodation. Some of the case law touching upon the duty to accommodate is extracted below:

    [T]he accommodation of differences . . . is the essence of true equality.

    Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1 (S.C.C.) at 13, Interveners' Brief of Authorities at Tab x
    Eaton v. Brant County Board of Education (1997), 142 D.L.R. (4th) 385 (S.C.C.) at 405, Interveners' Brief of Authorities at Tab x

    It is recognition of the actual characteristics, and reasonable accommodation of these characteristics, which is the central purpose of s. 15(1) in relation to disability [emphasis added].

    Eaton v. Brant County Board of Education (1997), 142 D.L.R. (4th) 385 (S.C.C.) at 405-406, Interveners' Brief of Authorities at Tab x
    Granovsky v. Canada (Minister of Employment and Immigration) (2000), 186 D.L.R. (4th) 1 (S.C.C.) at 24, Interveners' Brief of Authorities at Tab x

    What s. 15 of the Charter can do, and it is a role of immense importance, is address the way in which the state responds to people with disabilities. Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfilment in a world relentlessly oriented to the able-bodied [emphasis added].

    Granovsky v. Canada (Minister of Employment and Immigration) (2000), 186 D.L.R. (4th) 1 (S.C.C.) at 16, Interveners' Brief of Authorities at Tab x

    Due sensitivity to these differences is the key to achieving substantive equality for persons with disabilities. In many cases, drawing a single line between disabled persons and others is all but meaningless, as no single accommodation or adaptation can serve the needs of all. Rather, persons with disabilities encounter additional limits when confronted with systems and social situations which assume or require a different set of abilities than the ones they possess. The equal participation of persons with disabilities will require changing these situations in many different ways, depending on the abilities of the person. The question, in each case, will not be whether the state has excluded all disabled persons or failed to respond to their needs in some general sense, but rather whether it has been sufficiently responsive to the needs and circumstances of each person with a disability. . . .

    [I]t is vital to keep in mind the rationale underlying the prohibition of discrimination based on disability. As I stated above, this rationale is to allow for the recognition of the special needs and actual capacities of persons affected by a broad variety of different disabilities in many different social contexts. In accordance with this rationale, s. 15(1) requires a considerable degree of reasonable accommodation and adaptation of state action to the circumstances of particular individuals with disabilities [emphasis added].

    Nova Scotia (Workers' Compensation Board) v. Martin (2003), 231 D.L.R. (4th) 385 (S.C.C.) at 429 and 434, Interveners' Brief of Authorities at Tab x

    D. The Defence of Undue Hardship

16. The duty to accommodate in Charter jurisprudence was imported from human rights jurisprudence. So also was the defence of undue hardship.

17. The defence of undue hardship implies, by its very name, that hardship must be endured in order to avoid discrimination. It is only when the hardship reaches the point of becoming "undue" that the defence is made out:

    The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test.

    (Renaud)

18. There is a prevailing myth that the costs associated with accommodating persons with disabilities are excessive, which the Interveners wish to address. In fact, accommodations - such as flexibility with respect to rules - often cost nothing at all. Most accommodations that involve costs are relatively inexpensive:

    The cost of accommodating persons with disabilities is often exaggerated, reflecting a pervasive stereotypical attitude that assumes disability necessarily means dysfunctionality, and that persons with disabilities require massive help before they can function on a footing of equality.

    David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects?" (1997) 7 N.J.C.L. 263 at 397, Interveners' Brief of Authorities at Tab x

    Accommodating someone with a disability is seldom as expensive or difficult as is sometimes imagined. Over two-thirds of job accommodations cost under $500; many cost nothing at all.

    Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Ontario: Ontario Human Rights Commission, 2000) at 27

19. Cost is considered in an assessment of undue hardship but it must be measured against the social goal of accommodation and the inclusion of persons with disabilities in society:

    While in some circumstances excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. This Court rejected cost-based arguments in Eldridge v. British Columbia (Attorney General).

    British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 181 D.L.R. (4th) 385 (S.C.C.) at xxx, Intervener's Brief of Authorities at Tab x

20. Due to the fundamental importance of ensuring that persons with disabilities achieve equality, this Honourable Court has defined the standard that must be met under the undue hardship test to be high. To prove undue hardship, it must be demonstrated that it was "impossible" to accommodate:

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

    (Meroin at 25)

21. The undue hardship standard to which governments are held in duty-to-accommodate cases is extremely important to persons with disabilities. Without such a high standard, the equality right of persons with disabilities would be significantly weakened.

22. It is essential, in the submission of these Interveners, for there to be a stringent undue hardship standard associated with the duty to accommodate. Without such a standard, it would become easier for governments to avoid accommodating persons with disabilities and, concomitantly, more difficult for persons with disabilities to achieve equality.

    E. Undue Hardship Defences are Raised at Section 1

23. In Charter litigation, the defence of undue hardship may be raised at s. 1:

    It is also a cornerstone of human rights jurisprudence, of course, that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation. The obligation to make reasonable accommodation for those adversely affected by a facially neutral policy or rule extends only to the point of "undue hardship." . . . In my view, in s. 15(1) cases this principle is best addressed as a component of the s. 1 analysis. Reasonable accommodation, in this context, is generally equivalent to the concept of "reasonable limits." It should not be employed to restrict the ambit of s. 15(1) [emphasis added].

    Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577 (S.C.C.) at 624, Interveners' Brief of Authorities at Tab x

24. In the Eldridge decision, this Honourable Court analyzed the defence offered by the government and found that it did not pass the undue hardship standard:

    In the present case, the government has manifestly failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services for the deaf constituted a minimum impairment of their rights. As previously noted, the estimated cost of providing sign language interpretation for the whole of British Columbia was only a $150,000, or approximately 0.0025 per cent of the provincial health care budget at the time. This figure was based on an extrapolation from the services then being provided by the Western Institute for the Deaf and Hard of Hearing in the Lower Mainland area. Although there was little evidence presented of the precise content of this service, it was not suggested that its extension throughout the province would not have fulfilled the requirements of s. 15(1). In these circumstances, the refusal to expend such a relatively insignificant sum to continue and extend the service cannot possibly constitute a minimum impairment of the appellants' constitutional rights.

    ...

    In summary, I am of the view that the failure to fund sign language interpretation is not a "minimal impairment" of the s. 15(1) rights of deaf persons to equal benefit of the law without discrimination on the basis of their physical disability. The evidence clearly demonstrates that, as a class, deaf persons receive medical services that are inferior to those received by the hearing population. Given the central place of good health in the quality of life of all persons in our society, the provision of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a "reasonable accommodation" of the appellant' disability. In the language of this Courts' human rights jurisprudence, it has not accommodated the appellants' needs to the point of "undue hardship" [emphasis added].

    Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577 (S.C.C.) at 627-631, Interveners' Brief of Authorities at Tab x

25. From the last quotation, it is apparent that the "undue hardship" standard is imported into the "minimal impairment" consideration of the s. 1 test.

26. With the undue hardship standard imposed on government defences in cases in which a duty to accommodate arises, the government is rightly held to a high standard in defending itself at s. 1 of the Charter.

    F. Undue Hardship Standard Consistent with Other s. 1 Jurisprudence

27. The undue hardship standard is consistent with the requirement that there be a high standard applied to s. 1 defences in equality rights cases.

28. While this Court recognizes that governments may be afforded some latitude with respect to making decisions as between legitimate policy objectives, there are nevertheless limits to the latitude:

    [A]lthough this Court has recognized that the Legislatures ought to be accorded some leeway when making choices between competing social concerns . . . judicial deference is not without limits.

    (Vriend at para. 126)

    [T]he leeway to be granted to the state is not infinite. Governments must demonstrate that their actions infringe the rights in question no more than is reasonably necessary to achieve their goals. Thus I stated the following for the Court in Tétreault-Gadoury, supra, at p. 44:

    It should go without saying, however, that the deference that will be accorded to the government when legislating in these matters does not give them an unrestricted licence to disregard an individual's Charter rights. Where the Government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down.

    Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577 (S.C.C.) at 627 (paragraph 86), Interveners' Brief of Authorities at Tab x

    Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable.

    (RJR-MacDonald at para 136)

29. It is submitted that the undue hardship standard constitutes a reasonable limit to the latitude granted to governments in duty-to-accommodate cases.

    G. Undue Hardship Standard is Necessary

30. The undue hardship standard is necessary because, in case after case, the standard defence offered to justify discrimination against persons with disabilities is to claim that government budgets are insufficient to avoid discrimination.

31. "Budgetary considerations" defences seem to be raised predominantly in disability discrimination cases:

    It is striking that in the case of equality for other traditionally disadvantaged minorities, fears about the cost of providing equality are never as frequently expressed [as in equality cases regarding persons with disabilities].

    David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects?" (1997) 7 N.J.C.L. 263 at 397, Interveners' Brief of Authorities at Tab x

32. It is especially important, in the context of adjudicating disability discrimination cases, for the "budgetary considerations" defence to be scrutinized; this is because such defences seem to be too-easily and too-frequently raised in disability discrimination cases. Especially when one remembers the prevailing myths regarding the costs of accommodation, it is necessary for the judiciary to have available to it a mechanism for evaluating the "budgetary considerations" defences claimed by governments in disability discrimination cases.

33. This Court has expressed understandable concerns regarding government usage of the "budgetary considerations" defence at s. 1:

    Seen in this light I have considerable doubt that the type of utilitarian consideration [including a consideration of resources] brought forward by [the Minister] can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so.

    (Singh at para 70)

    This Court has held, and rightly so, that budgetary considerations cannot be used to justify a violation under s. 1.

    (Schachter at para 62)

    Budgetary considerations in and of themselves cannot normally be invoked as a free-standing pressing and substantial objective for the purpose of s. 1 of the Charter.

    Nova Scotia (Workers' Compensation Board) v. Martin (2003), 231 D.L.R. (4th) 385 (S.C.C.) at xxx, para 109, Interveners' Brief of Authorities at Tab x

34. Despite the concerns raised with respect to "budgetary considerations" defences, the defence is raised often and primarily in the context of disability discrimination cases.

35. The undue hardship standard, as it has been developed in human rights jurisprudence and was applied in the Eldridge case, provides the judiciary with a principled way to evaluate "budgetary considerations" defences in disability discrimination cases.

36. Because the strength of the equality right of persons with disabilities is contingent upon the stringency of the undue hardship standard, it is important that the standard not be weakened as a consequence of judicial changes to the s. 1 test.

37. For instance, if the "budgetary considerations" defence was afforded more deference than the undue hardship standard currently permits, then the effect would be dire for persons with disabilities. It would become far easier for governments to justify discrimination against persons with disabilities.

    H. The Decision Below Could Affect the Undue Hardship Standard

38. The decision below could affect the undue hardship standard in two ways.

39. First, the Court of Appeal invites this Honourable Court to revisit the long-standing test, originally set out in R. v. Oakes, used to assess s. 1 defences:

    [I]t cannot be said that s. 1 endows the judiciary with licence to stand in the shoes of other branches of government as ultimate arbitrator of which policy choices were in the best interests of the governed. For the foregoing reasons, it would appear that the Oakes proportionality requirements court such a risk. Accordingly, it seems that some revisitation of them is in order.

    . . . The Oakes proportionality requirements provide potential for incursions by the field of public policy transcending the bounds of judicial sorties into that field which are tolerable under the Separation of Powers Doctrine, and go beyond s. 1's intent in empowering the judiciary to pass on the justification of Charter infringements. Hence, there is a need to revisit those requisites.

    NAPE at 647-648 (in DLRs), paras 362-363

40. If this Honourable Court accepts the invitation of the Court below to revisit the Oakes test, especially in the context of adjudication outside of the context of disability rights, then the Interveners worry that there is a danger that the test could be modified in a way that would affect - and possibly diminish or even eliminate - the undue hardship standard.

41. Second, the Court below added a new, fourth, step to the Oakes test:

    In following these requisites, and as the fourth and final consideration, the ensuing s. 1 analysis will address, at the end of each stage of the appraisal of compliance with the Oakes criteria for justification under s. 1, whether the exercise of judicial power in coming to those findings was in consonance with the Separation of Powers Doctrine.

    NAPE at 651 (DLRs)

42. The concern that the Interveners have with the additional step that was added to the existing Oakes test regards the implications of analyzing a Charter violation, particularly a violation of s. 15(1), through the lens of the "Separation of Powers Doctrine."

43. The Court below indicated that the application of the "Separation of Powers" doctrine will involve greater judicial deference to governmental policy choices:

    [The Separation of Powers Doctrine and s. 1] constitute defining features of the Constitution, and are intended to operate in rational harmony with each other in furthering the goals of a free and democratic society,

    This harmony is achieved through judicial deference to the policy choice adopted to address communal or societal needs. That is not to say that courts must automatically defer to executive or legislative conclusions that communal ends were sufficiently important to justify violations of individual rights. Such determinations are squarely reserved to the judiciary under s. 1. It does mean, however, that the judiciary should defer to the opted policy choice, and not inquire into other alternatives whose realization might appear outweighed by the violated right's enjoyment in striking that "delicate balance between individual rights and community needs" of which La Forest wrote in RJR-MacDonald.

    (Nfld case at para 423)

44. The Court below expressed particular concern regarding the need for more deference to be extended to governments with respect to the "minimal impairment" consideration in the s. 1 test:

    This difficulty is especially pronounced in applications of the minimal impairment requirement. . . .

    [T]he judiciary is mandated by Oakes to determine if the objective of the limitation measure could have been realized in a manner trenching less intrusively on the affected constitutionally protected right. This inevitably requires courts to satisfy themselves not only as to the reasons why the executive or legislature made the policy choices behind the limitations whose justification are subject to analyses, but also to pass on the reasonableness of those choices in relation to alternatives.

    No linguistic curtain drawn around the minimal impairment requirement can mask the reality that in so inquiring into the alternate means of promoting legislative or executive goals, the judiciary enters into the policy field in a manner which defies rationalization with the Separation of Powers Doctrine.

    (NAPE at 645-646, paras 358-359)

45. Since the undue hardship standard is considered at the "minimal impairment" stage of the s. 1 test, and the Court below is urging - in effect - more deference at the "minimal impairment" stage, the understandable worry is that the decision of the Court below, if upheld, will lead to the watering-down or loss of the undue hardship standard.

46. The undue hardship standard is not a deferential approach to government decision-making.

47. It has been too easy, historically, for governments to justify the exclusion and marginalization of persons with disabilities on the basis of "budgetary considerations" and "fiscal realities."

48. Protecting the Charter rights of persons with disabilities requires a non-deferential standard, which can put government claims, that costs prevent them from treating persons with disabilities equally, to the test. The appropriate, non-deferential standard that is presently used is the undue hardship standard.

49. The undue hardship standard is of vital importance to the rights of persons with disabilities and, these Interveners submit, the standard should not be undermined or eliminated in a revisitation of the Oakes test or in an effort to harmonize the "Separation of Powers Doctrine" with the s. 1 test.

50. The Court below is urging this Honourable Court to take a more deferential approach to s. 1 defences offered by governments, especially at the "minimal impairment" stage at which the undue hardship standard is considered. The Interveners submit that doing so would weaken the equality rights of persons with disabilities.

51. Asking courts to be more deferential at the "minimal impairment" stage would surely have the effect of weakening the undue hardship standard to which governments are held in duty-to-accommodate cases. Weakening the undue hardship standard would weaken the equality rights of persons with disabilities.

    I. Conclusion

52. Courts should feel no need to apologize for demanding a high standard of justification under s. 1 in equality cases. In such cases, governments are not just trying to demonstrate that an approach to governance that affects all Canadians is justifiable, but that an approach to governance that discriminates against certain groups of Canadians is justifiable.

53. Persons with disabilities are frequently told that being treated discriminatorily by a government is justifiable on the basis of "budgetary considerations." Since these defences are often and easily asserted, is important that the Court maintain for itself a mechanism for evaluating them. The current mechanism is the undue hardship standard, against which "budgetary considerations" defences are measured.

54. It is submitted that if, in the context of deciding the present case, this Honourable Court decides to revisit the Oakes test, that it do so with advertence to the possible effects that such a revisitation would have on the undue hardship standard.

55. The undue hardship standard is an integral part of the s. 15(1) guarantee for persons with disabilities, and it is essential that it remain a consideration at the "minimal impairment" stage of the s. 1 analysis.

56. The Charter exists to protect minority groups such as persons with disabilities from discriminatory practices that might otherwise be adopted by the majority. It has been too easy, historically, for the majority to adopt policies promoting the exclusion and marginalization of persons with disabilities.

57. Protecting the Charter rights of persons with disabilities requires that a non-deferential standard be employed when evaluating the 'justifications' offered for violating the Charter rights of persons with disabilities. It is submitted that the undue hardship standard is the appropriate standard used by the courts when evaluating government 'justifications' for discriminating against persons with disabilities.

58. It is submitted that holding governments to an undue hardship standard when defending violations of the rights of persons with disabilities is essential for there to be meaning to the right, of persons with disabilities, to equality.

59. Once again, the Interveners caution this Honourable Court not to adopt the new approach to s. 1 being promoted by the Court below or to otherwise change the approach in a way that would weaken the undue hardship standard and consequently weaken the equality right of persons with disabilities.

    Part IV - Submissions Concerning Costs

60. The CACL, the CHS, and the CCD make no request for costs. As not-for-profit charitable organizations making submissions, with leave, regarding the constitutional rights of persons with disabilities, the Interveners submit that this would not be an appropriate case for costs as against them.

    Part V - Order Requested

61. The CACL, CHS, and the CCD respectfully request, with respect to the Order that is made, that it preserve an "undue hardship" standard to which governments must be heald in duty to accommodate cases within the ambit of s. 1 of the Charter.

    ALL OF WHICH is respectfully submitted this 28th day of April, 2004.

    ---

    William Holder
    Lesli Bisgould
    
    ARCH: A Legal Resource Centre
    for Persons with Disabilities
    425 Bloor Street West, Suite 110
    Toronto, Ontario, M4W 3R5

    Tel 416-482-8255
    Fax 416-482-2981
    TTY 416-482-1254
    Email holderw@lao.on.ca
    bisgoull@lao.on.ca

    Counsel for the Interveners,
    Canadian Association for Community Living,
    Canadian Hearing Society, and
    Council of Canadians with Disabilities

    Part VI - Table of Authorities

62. X

63. X

64. X

    Part VII - Table of Statutes

65. X

66. X

67. X