Overview of Complaints under Human Rights Legislation Regarding Access to Services for Persons with Disabilities

Prepared for the Council of Canadians with Disabilities CURA "Disabling Poverty/Enabling Citizenship" by Nathan Irving (LL.B. student, University of Manitoba), September 6, 2009

I. Introduction

This report was prepared as a backgrounder for a larger future research project that intends to explore the impact of the human rights principle of the "duty to accommodate" on persons with disabilities. It is one of five reports prepared for further research purposes.

The report addresses issues, trends, and obstacles facing complainants in cases involving discrimination in services and accommodation.[1] These cases tend to be critical for persons with disabilities, as they often have far-reaching implications regarding accessibility to, and the inclusivity of, core institutions, facilities, and services (e.g. education, transportation, communication, public buildings, etc.).

In preparing this report, I reviewed all post-Meiorin[2] and post-Grismer[3] court cases which involved statutory human rights claims and at least some analysis of discrimination and/or the duty to accommodate, totalling 118 decisions.[4] Of these 118 court cases, twenty-eight involved allegations of discrimination in services. In addition, I reviewed tribunal cases for the years 2008 and 2009 which involved both allegations of discrimination on the basis of disability and at least some analysis of discrimination and/or the duty to accommodate, totalling eighty-one tribunal decisions.[5] Of these tribunal decisions, twenty addressed allegations of discrimination in services.

II. Success Rates

In spite of the many obstacles encountered by complainants in the service cases (discussed below) the majority of complainants in these cases met with success. Of the forty-eight service-related cases reviewed, twenty-nine were decided in favour of the complainant (60%). Success rates were nearly identical in court cases as compared to cases at the tribunal level (61%:60%).

Government was a respondent in nearly half of the service cases I reviewed (22/48 or 46%). However, the proportion of cases in which government was a respondent was significantly higher in the court cases reviewed as compared to tribunal level cases. Of the twenty-eight court decisions reviewed, government was a respondent in eighteen (64%). Of the twenty tribunal decision reviewed, only four involved a government respondent (20%).

Success rates for service-related claims were slightly higher when government was not a respondent. For court decisions, complainants were successful in 56% of the cases where government was a respondent (10/18) as compared to 70% of cases where government was not a respondent (7/10). For tribunal decisions, complainants were successful in 50% of cases where government was a respondent (2/4) as compared to 63% of cases where government was not a respondent (10/16).

III. Test for Proving Discrimination

As in all statutory human rights cases, complainants who alleged discrimination in services carried the initial burden of proving, on a balance of probabilities, a prima facie case of discrimination. But what a complainant was required to demonstrate in order to satisfy this burden was not consistent from case to case. A myriad of tests for prima facie discrimination has emerged in the jurisprudence, and there is great disagreement among decision makers as to which test is appropriate to apply in various circumstances. This issue is far from being a matter of mere academic interest, however, for some tests have proven to be more difficult for complainants to satisfy than others.

One test of discrimination found in the cases, developed in the context of Charter[6] litigation and often viewed as imposing a particularly onerous burden for complainants, was set out by the Supreme Court of Canada in its Law[7] decision. In a nutshell, this approach requires complainants to prove not only that they have been subject to adverse treatment on a prohibited ground but also that such treatment resulted in a violation of their human dignity in light of a number of contextual factors.

Given that government is always a respondent in Charter litigation and because government is so frequently a respondent in service cases, it has been suggested that the Law analytical framework might find its way into service cases at a higher rate than in other human rights cases, such as, for instance, those involving allegations of discrimination in employment. Indeed, this does seem to be the case. Whereas adjudicators in employment-related court cases directly applied the framework in Law in just over 4% of the cases reviewed (4/91), decision makers in service-related court cases applied Law in 21% of the cases (6/28).[8] Moreover, the unique requirements of the Law test played a role in defeating a greater proportion of service-related court cases (7% or 2/28)[9] than cases in employment (1% or 1/91). One service-related case was defeated after the court concluded that substantive discrimination had not been made out in light of the contextual factors.[10] In the other defeated service case, the court ruled that had it not had reason to reject the claim on one ground, it would have found no prima facie discrimination for lack of a violation of human dignity.[11]

A number of courts adjudicating service cases expressly rejected the application of the Law test in the statutory human rights context or at least within the confines of their particular case.[12] Rather than applying tests developed in the constitutional context, these courts applied the traditional test for prima facie discrimination in the statutory human rights context, namely adverse treatment on the basis of a prohibited ground.

As in the employment cases, not a single tribunal adjudicating a service case directly applied the Law test. While one adjudicator considered the contextual factors in deciding whether discrimination had been proven in a substantive sense, this decision maker ultimately rejected the formal Law analysis.[13] At any rate, consideration of the contextual factors outlined in Law did not hurt this complainant's particular case.

Another analytical framework developed in the Charter context for deciding cases of discrimination, and now being applied by adjudicators deciding whether prima facie discrimination has been established in statutory human rights claims, is the so-called comparator group analysis. This analytical framework requires complainants to prove that they have been treated differently than a specific group which mirrors their characteristics save for the alleged ground of discrimination. As noted in a companion report, the comparator group analysis can and has created obstacles for rights claimants. As with the Law test it has been suggested that the comparator group analysis might appear at higher rates in the service cases than in other contexts.

Of the 118 court decisions reviewed, the comparator group analysis was mentioned, discussed, and/or applied in just twenty. Of these twenty court cases, fourteen involved allegations of discrimination in employment, while seven involved claims of discrimination in the provision of services.[14] Thus, 15% of the employment court cases (14/91) referred to the comparator group analysis, while 25% of the service court cases (7/28) made some mention of the analysis. At the tribunal level, of the eighty-one decisions reviewed, the analysis was mentioned, discussed, and/or applied in just two; one involved alleged discrimination in employment and one in the provision of services.[15] Thus, less than 2% of employment-related tribunal decisions (1/61) referred to the comparator group analysis, while 5% of service-related tribunal decisions (1/20) mentioned the analysis. Overall, it appears that the comparator group analysis is being considered at a higher rate in service cases than in employment cases.

Of the seven service-related court cases which made reference to the comparator group analysis, only one was defeated by it.[16] This does not confirm suspicions that the comparator group analysis would be particularly problematic in the service context. While a greater proportion of service court cases than employment court cases referred to the comparator group analysis (25%:15%), the proportion of service court cases which were defeated by the comparator group analysis was nearly equal to the proportion of employment court cases defeated by this analysis (3.6%:3.3%).

Nevertheless, it would be a mistake to ignore the comparator group analysis's potential to thwart claims in the service context. Perhaps the most glaring illustration of its ability to defeat claims of discrimination in services is revealed in Moore, a 2008 decision of the British Columbia Supreme Court.[17] In this decision, the Court's act of re-defining the service in issue as well as the "correct" comparator group ultimately defeated a claim to equality in education. The Court held that the "correct" comparator group was comprised of other students with disabilities, and since there was no evidence upon which to show that these students were treated better than the claimant (to be more exact, the claimant's son), the court did not find that a case of discrimination had been made out.

Although tests of prima facie discrimination which were developed in the Charter context have made significant inroads into statutory human rights service cases, most adjudicators in this context continue to apply the "traditional" three-step test of prima facie discrimination: (1) that the complainant had a disability or perceived disability; (2) that she received differential or adverse treatment with respect to an accommodation, service or facility customarily available to the public, and; (3) that her disability was a factor in that treatment.[18] While this test may be regarded as setting a relatively low threshold for proving prima facie discrimination, some decision makers have applied it in ways that have been unfavourable to complainants. One example, which is not unique to cases applying this particular test, occurred when an adjudicator maintained that a distinction was not made out on the basis of disability but rather on the basis of something else which happened to be strongly correlated with disability.[19]

A good illustration of this is found in a 2007 decision of the Ontario Divisional Court;[20] although the court was applying the Law test rather than the traditional approach, it is a very clear illustration of the problem. The case arose after the complainants were refused an inquest into the death of their respective family members who were involuntary patients in a psychiatric facility at the time of their death. The complainants alleged that section 10 of Ontario's Coroner's Act violates the Human Rights Code because it discriminates on the basis of disability in that inquests are mandatory for prisoners who die in police custody or in penal institutions, but are discretionary for involuntary mental health patients who die in psychiatric facilities. In rejecting their complaints, the Court held:

…no distinction is drawn on the basis of disability. In providing mandatory inquests, the legislation draws a distinction on the basis of the different vulnerable circumstances of particular persons, the varying levels of public oversight of their conditions while living, and the different risks that accompany deaths in particular locations."[21]

Another difficulty that some complainants have encountered in service cases when adjudicators have applied the traditional approach is the decision maker's failure to find adverse or differential treatment.[22] A 2003 decision of the Federal Court shows how this failure can arise from adherence to a formal model of equality.[23] The complainant in this case was permanently deaf and required sign language interpretation to attend university. He obtained a grant for this purpose, which he passed along to his university in accordance with its request. The Department of National Revenue required him to include this grant in his taxable income. The complainant argued that the tax treatment of his grant, to the extent that it had an adverse financial impact on him, constituted discrimination on the basis of disability. The Court, however, failed to find an adverse consequence to the complainant, as the complainant "was still $2,975 ahead of where he was before receiving the grant."[24]

Having considered the issues, trends, and obstacles experienced by complainants in service cases at the first stage of the discrimination analysis, I now turn to the second stage. This is the point at which the onus shifts to respondents to justify prima facie discrimination by proving, among other things, that the complainant has been accommodated to the point of undue hardship.

IV. Obtaining Accommodation and Proving Undue Hardship

One thing is certain; complainants have very favourable Supreme Court of Canada jurisprudence to rely upon at the second stage of the discrimination analysis. I am referring in particular to a majority judgment of the Court in its 2007 VIA Rail decision.[25] This case arose after the Council of Canadians with Disabilities made a complaint regarding VIA Rail's purchase of 139 rail cars and car parts which were all inaccessible to persons with disabilities using personal wheelchairs. Via Rail defended its purchase, maintaining that its employees would transfer passengers into on-board wheelchairs and provide assistance with meals, washrooms, and other services. The majority of the Court was not satisfied that this fulfilled the duty to accommodate. In its landmark ruling, the majority emphasized the following principles: service providers must take positive steps to employ inclusive standards and accommodate persons with disabilities to the point of undue hardship;[26] service providers have a duty to prevent new exclusionary barriers or, at minimum, not to knowingly perpetuate old ones whenever possible;[27] and the goal of accommodation is to render public services and facilities equally accessible to persons with and without disabilities.[28] In its discussion on this last point, the majority noted that persons using wheelchairs have a "fundamental human right" to have "independent access to the same comfort, dignity, safety and security as those without physical limitations… [emphasis added]."[29]

A number of tribunals have adopted the language of this decision, and have required respondents to take positive steps to remove exclusionary barriers and to accommodate persons with disabilities so that they may access services "in a dignified and as full a way as an able-bodied person".[30] Consider the following passage from a recent Ontario Human Rights Tribunal decision:

The complainant has a disability and relies on her scooter for mobility. It is well established that there is a duty to accommodate individuals with disabilities in the provision of services, short of undue hardship. The needs of persons with disabilities should also be accommodated in a manner that most respects their dignity. In my view, Mr. Costabile's request that the complainant move her scooter outside was inappropriate in that it resulted in a failure to accommodate the complainant's needs in a way that most respected her dignity and autonomy.[31]

It must be noted, however, that the VIA Rail decision has not always been used in a way that is favourable to rights claimants. One example is found in a 2008 decision of the Federal Court.[32] In this case, discrimination was alleged on the basis that the York Street Steps were constructed without a ramp or adjacent elevator; instead, an elevator was constructed at a site 130 meters away. The Court drew an analogy between these circumstances and those in VIA Rail. Specifically, the Court reasoned that just as the Supreme Court did not order VIA to make all 139 cars accessible but rather looked at the "whole network" and was satisfied with an accommodation that ensured an accessible car on every train, so too would one elevator in the general area constitute a reasonable accommodation.[33]

This so-called "network defense," however, has not found favour amongst all adjudicators. For instance, in a 2008 decision of the British Columbia Human Rights Tribunal, the tribunal rejected the respondents' argument that a reasonable accommodation was provided to tenants who could not ascend the lobby stairs in that they were free to use an elevator in the parkade.[34]

In a companion report, I noted that two of the most serious impediments to successful rights claims at the second stage of the analysis were set out in Renaud,[35] a 1992 decision of the Supreme Court of Canada. The case set out two major principles: 1) A complainant has a duty to facilitate the search for an accommodation, and 2) a complainant has a duty to accept reasonable accommodation without expecting a perfect solution.[36] Citing these principles, many courts, tribunals, and arbitrators, have dismissed employment-related claims on the basis of the complainant's conduct. On the other hand, these principles have rarely been invoked to defeat claims in the service-context. Of the forty-eight service cases reviewed, only one claim was dismissed due to the complainant's failure to facilitate the search for accommodation,[37] and just two decisions were impacted in some way by the duty to accept reasonable accommodation.[38]

V. Conclusion

The foregoing discussion shows that while complainants have faced many of the same obstacles whether they are litigating in an employment or service context, the likelihood of encountering many of these obstacles depended on the context of the alleged discrimination. Furthermore, while there are clearly many barriers to consider whenever challenging discrimination in the provision of services, there is also very favourable jurisprudence developed in this context which can and should be utilized by, and on behalf of, rights claimants.

  • [1] Hereinafter, I refer to cases considering discrimination in services and accommodation collectively as service cases.
  • [2] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257 [Meiorin].
  • [3] British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129 [Grismer].
  • [4] I only reviewed the highest level court decision for each case.
  • [5] I did not review decisions arising from preliminary motions, including motions to dismiss.
  • [6] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.)., 1982, c. 11 [Charter].
  • [7] Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497 [Law].
  • [8] The service cases included British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421, 54 C.H.R.R. D/468 [Hutchinson]; Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 62 C.H.R.R. D/315 (Ont. Div. Ct.) [Ontario]; Van der Smit v. Alberta (Human Rights and Citizenship Comm.), 2009 ABQB 121, CHRR Doc. 09-0522 [Van der Smit]; Eagleson Co-Operative Homes, Inc. v. Theberge, (2006), 274 D.L.R. (4th) 359 (Ont. Sup. Ct.) [Eagleson]; Alberta (Minister of Human Resources and Employment) v. Alberta (Human Rights, Citizenship and Multiculturalism Commission), 2006 ABCA 235, 273 D.L.R. (4th) 116 [Alberta]; and Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685, 217 D.L.R. (4th) 341 [Gwinner].
  • [9] Alberta, ibid.; and Ontario, ibid.
  • [10] Alberta, ibid.
  • [11] Ontario, supra note 8.
  • [12] See e.g. Canada (Human Rights Comm.) v. M.N.R., 2003 FC 1280, 49 C.H.R.R. D/38 [M.N.R.]; Ontario (Director, Disability Support Program) v. Tranchemontagne, [2009] O.J. No. 1613 (Ont. Sup. Ct.) [Tranchemontagne]; Manitoba High Schools Athletic Association Inc. v. Pasternak, 2008 MBQB 24, 10 W.W.R. 729 [Pasternak]; and Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, 262 D.L.R. (4th) 360 [Nixon].
  • [13] J. and J. on behalf of R. v. British Columbia (Children and Family Development) (No. 2), 2009 BCHRT 61, (2009) CHRR Doc. 09-0232 [J. and J.].
  • [14] One case was considered to be both an employment and service case. The service cases included: Hutchinson, supra note 8; M.N.R., supra note 12; Ontario, supra note 8; Moore, infra note 16; Van Der Smit, supra note 8; Tranchemontagne, supra note 12; and Gwinner, supra note 8.
  • [15] The service tribunal case was J. and J., supra note 13.
  • [16] British Columbia (Ministry of Education) v. Moore (No. 2), 2008 BCSC 264, 62 C.H.R.R. D/289 [Moore].
  • [17] Ibid.
  • [18] See e.g. Mahoney v. Strata Plan No. NW332, (2008) 63 C.H.R.R. D/283, 2008 BCHRT 274 at para. 79 [Mahoney].
  • [19] See e.g. Sinopoli (Litigation Guardian of) v. Walling, [2009] O.H.R.T.D. No. 55 [Sinopoli].
  • [20] See Ontario, supra note 8.
  • [21] Ibid. at para. 63.
  • [22] See especially M.N.R., supra note 12.
  • [23] Ibid.
  • [24] Ibid. at para. 28.
  • [25] Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, 59 C.H.R.R. D/276 [Via Rail].
  • [26] Ibid. at para. 183.
  • [27] Ibid. at para. 186.
  • [28] Ibid. at para. 162.
  • [29] Ibid.
  • [30] Brown v. Trebas Institute of Ontario Inc., (2008) 62 C.H.R.R. D/329, 2008 HRTO 10 [Trebas]. See also Mahoney, supra at note 18; and Donnelly v. 1531315 Ontario Ltd. (c.o.b. Spinz Coin Laundries), [2009] O.H.R.T.D. No. 743 [Donnelly].
  • [31] Donnelly, ibid. at para. 94.
  • [32] National Capital Comm. v. Brown (No. 1), 2008 FC 733, 63 C.H.R.R. D/359 [Brown].
  • [33] Ibid. at paras. 121-129.
  • [34] Mahoney, supra at note 18.
  • [35] Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 [Renaud].
  • [36] Ibid. at paras 43-44.
  • [37] See Epp v. Strata Plan VR2692, (2009) CHRR Doc. 09-0354, 2009 BCHRT 97 [Epp].
  • [38] Epp, ibid.; and Brown, supra note 32.