How Human Rights Legislation is Dealing with Serious Disabilities that Tend to Result in Social Judgment and Social Exclusion

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.

This report considers whether statutory human rights litigation is serving the needs of persons with permanent, lifelong disabilities who are chronically unemployed, underemployed, and marginalized in Canadian society.

In preparing for this report, I reviewed all post-Meiorin[1] and post-Grismer[2] court cases which involved statutory human rights claims and at least some analysis of discrimination and/or the duty to accommodate, totaling 118 court decisions.[3] In addition, I reviewed tribunal and labour arbitration 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 and fifty-five arbitral decisions.[4] Next, I attempted to isolate those cases brought by, or on behalf of, persons with "serious," permanent, lifelong disabilities that are associated with stigma, poverty, and marginalization. I recognize that there was a degree of subjectivity, and even arbitrariness, to this process, and that many will surely disagree with the disabilities and cases which I have, and have not, included. Please note that it was not my intention to deny the seriousness of any disability, but simply to get a sense of whether the adjudicative framework is working to speed the integration and inclusion of persons with disabilities who have traditionally been banished from the labour market and the community.

Please note that in writing this report, I have assumed that the reader has basic knowledge regarding the standards and tests used by adjudicators in this context, as well as the common obstacles which complainants face in proving their case. I have elaborated upon these standards, tests, and obstacles in companion reports; thus, I have taken the liberty of employing jargon here as a form of short-hand when describing the issues as they have impacted complainants with serious, permanent, lifelong disabilities (e.g. Law[5] test, comparator group analysis, etc.)

II. Breakdown of Disabilities

My review of the 207 employment cases uncovered nineteen that were brought by, or on behalf of, persons with serious disabilities of the kind described above. A breakdown of the types of disabilities involved in these cases is as follows: cerebral palsy (two),[6] multiple sclerosis (three),[7] Parkinson's disease (one),[8] lupus (one),[9] epilepsy (one),[10] autism (one),[11] bipolar disorder (seven),[12] schizophrenia (two),[13] and a disability involving partial paralysis (one).[14]

My review of the forty-eight service cases revealed that fourteen were brought by, or on behalf of, persons with serious disabilities of the kind described above. A breakdown of the types of disabilities involved in these cases is as follows: autism (three),[15] schizophrenia (one),[16] Noonan syndrome (one),[17] blindness (four),[18] deafness (two),[19] cerebral palsy (one),[20] multiple sclerosis (one),[21] and other disabilities involving serious mobility impairments (two).[22]

Some of the more obvious omissions from these lists include addictions, other mental illnesses (e.g. depression), and learning disabilities (e.g. dyslexia). The reason that I omitted addictions, despite the fact that they are highly stigmatized and can be very debilitating, is that these cases tend to involve an array of unique considerations which would detract from the focus of this report. With respect to other mental illnesses and learning disabilities, these cases were omitted because of the range of severity inherent in these disorders and also because it was often difficult to determine the seriousness of the complainant's condition from the decisions. In other instances, the disabilities did not appear to have had the same exclusionary impact as that experienced by persons with disabilities selected for this report.

At a glance, it is evident that cases dealing with serious, permanent, lifelong disabilities made up a small minority. Furthermore, persons with certain types of disabilities were absent in some contexts. For instance, not one of the 207 employment cases which I reviewed involved a complainant who was blind or deaf.

III. Success of Complaints

The next question I considered was what proportion of complainants with serious, permanent, lifelong disabilities met with success in litigation. In the employment context, 47% of these complainants were successful (9/19).[23] In the service context, the success rate was substantially higher; 71% met with success (10/14).[24] Thus, it appears that although few cases involving complainants with serious disabilities have been litigated, those which have been litigated have fared no worse than other cases of disability discrimination.

Despite the fact that complainants with serious disabilities did not lose cases at higher rates, I inquired as to whether these complainants encountered obstacles and tests, which increase the burden for all complainants with disabilities, more often than persons with disabilities in general. This was not the case. In the employment context, the Law test was only applied in one case involving a complainant with a serious disability and it did not thwart the claim.[25] Likewise, the comparator group analysis was applied in just one of these cases (the same case that applied Law) and it too did not defeat the claim.[26] In the service context, the Law test and comparator group analysis appeared in only one of the cases brought by a person with a serious disability and neither of these factors defeated the claim.[27]

IV. Unsuccessful Complaints

Next, I examined the unsuccessful cases brought by persons with serious disabilities. I discovered that these cases failed for a wide range of reasons; in fact, I am unable to identify a single factor which appears more problematic for these complainants than for persons with disabilities in general. The same issues arose and with no greater frequency.

In the employment context, half of the unsuccessful claims were defeated at the first stage of the discrimination analysis while half were defeated at the second stage. Each of the five cases that failed at the prima facie stage failed for a different reason. One failed because the adjudicator, applying a formal model of equality, found no differential treatment.[28] Another case failed because the complainant had not been treated in an arbitrary manner.[29] One complaint was dismissed on the basis that the adjudicator found no adverse treatment.[30] Another failed because the adjudicator defined the matter as a one of compensation.[31] The final case failed because the decision maker found no nexus between the grievor's disability and his misconduct.[32] Similarly, the five cases that failed at the accommodation stage of the analysis did so for a variety of reasons. One complaint was remitted back to the tribunal because the original tribunal had ignored relevant evidence.[33] Another case was unsuccessful because the legislation through which the employee brought her appeal dealt only with whether selection was made in accordance with the merit principle.[34] One case faltered because the decision maker found that the complainant had not done her part to facilitate accommodation.[35] Finally, two cases were unsuccessful because the employer was found to have accommodated to the point of undue hardship (both of these cases involved a person with schizophrenia).[36]

Half of the unsuccessful cases brought by persons with serious disabilities in the service context were defeated at the first stage of the analysis while the other half were defeated at stage two. Of the cases defeated at the first stage, one failed because the adjudicator found no adverse treatment[37] and the other failed on the basis that the decision maker found no differential treatment.[38] Of the cases that were defeated at stage two, one was defeated because the adjudicator accepted and applied the so-called "network defence" and held that the complainant could not expect a perfect solution.[39] The other failed because the decision maker found that the complainant had been accommodated to the point of undue hardship (once again, this case involved an individual living with schizophrenia).[40]

V. Conclusion

Given that more than half of the cases litigated by persons with serious disabilities were successful, I decided to examine these in more detail to determine whether favorable facts alone could account for their outcomes, or whether adjudicators were applying principles of the disability-rights paradigm which aim to advance substantive equality. I found that many of the decision makers who had ruled in favor of these complainants applied favorable principles. For example, some decision makers emphasized the importance of accommodating persons with disabilities so as to maximize dignity.[41] Some emphasized that respondents need to explore "every possible accommodation"[42] before they can be said to have justified a prima facie discriminatory standard or conduct.

That being said, it would be wrong to minimize the challenges faced by complainants with serious, permanent, lifelong disabilities asserting their rights in litigation. The above review of the many reasons that unsuccessful claims were defeated reveals that, like persons litigating matters of discrimination on the basis of disability in general, these complainants face a myriad of obstacles with potential to thwart their claims.

• [1] 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].
• [2] 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].
• [3] This statement is qualified by the fact that I only reviewed the highest level court decision for each case.
• [4] I did not review decisions arising from preliminary motions, including motions to dismiss.
• [5] Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497 [Law].
• [6] Regina (City) v. Kivela, 2006 SKCA 38, 55 C.H.R.R. D/403 [Kivela]; and British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421, 54 C.H.R.R. D/468 [Hutchinson].
• [7] Tremblay v. Canada (Attorney General), 2003 FCT 466, CHRR Doc. 03-091 [Tremblay]; Layzell v. Ontario (Human Rights Comm.) (2003), CHRR Doc. 03-325 (Ont. Div. Ct.) [Layzell]; and Cassidy v. Emergency and Health Services Comm. (No. 2), 2008 BCHRT 125, 62 C.H.R.R. D/459 [Cassidy].
• [8] Krickemeyer v. K-line Trailers Ltd., [2008] B.C.H.R.T.D. No. 187 [Krickemeyer].
• [9] >Saskenergy Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 649 (Zielenin Grievance), [2008] S.L.A.A. No. 10 [Saskenergy].
• [10] DeSouza v. 1469328 Ontario Inc., (2008) 63 C.H.R.R. D/197, 2008 HRTO 23 [DeSouza].
• [11] Dawson v. Canada Post Corp., (2008), CHRR Doc. 08-657, 2008 CHRT 41 [Dawson].
• [12] Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2), 2002 BCCA 495, (2002) 43 C.H.R.R. D/487 [Oak Bay]; Calgary (City) v. Weitmann, 2001 ABQB 181, 45 C.H.R.R. D/155 [Weitmann]; Alberta (Human Rights and Citizenship Comm.) v. Federated Co-operatives Ltd., 2005 ABQB 587, 53 C.H.R.R. D/496; [Federated]; Yukon (Human Rights Comm.) v. Yukon, 2009 YKSC 39, CHRR Doc. 09-1011 [Yukon]; ADGA Group Consultants Inc. v. Lane (2008), CHRR Doc. 08-524 (Ont. Div. Ct.) [ADGA]; British Columbia Public School Employers' Assn. v. British Columbia Teachers' Federation [Deol Grievance], [2008] B.C.C.A.A.A. No. 218 [Deol]; and Selinger v. McFarland, [2008] O.H.R.T.D. No. 48 [Selinger].
• [13] National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW - Canada), Local 80 v. Honeywell Ltd., [2003] O.J. No. 3699 (Ont. Sup. Ct.) [Honeywell]; and Communications, Energy and Paper Workers Union, Local 440 v. Kimberley-Clark, Nova Scotia (2000), 185 N.S.R. (2d) 145 (N.S.S.C.) [Communications].
• [14] Watt v. Canada (Attorney General), 2006 FC 619, 148 A.C.W.S. (3d) 951 [Watt].
• [15] Newfoundland and Labrador (Ministry of Health and Community Services) v. Sparkes, 2004 NLSCTD 16, 48 C.H.R.R. D/457 [Sparkes]; Lalji v. British Columbia (Human Rights Comm.), 2004 BCSC 4, 48 C.H.R.R. D/515 [Lalji]; and Zavadsky (Litigation Guardian of) v. Ontario (Minister of Education), [2009] O.H.R.T.D. No. 732 [Zavadsky].
• [16] Metropolitan Toronto Condominium Corp. No. 946 v. J.V.M. (Public Guardian and Trustee of), [2008] O.J. No. 5412 (Ont. Sup. Ct.) [Metropolitan].
• [17] 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.].
• [18] Morten v. Air Canada (No. 2), (2009) CHRR Doc. 09-0134, 2009 CHRT 3 [Morten]; Smolak v. 1636764 Ontario Ltd. (c.o.b. Mr. Sub), (2009) O.H.R.T.D. No. 1003 [Smolak]; Brown v. Trebas Institute of Ontario Inc., (2008) 62 C.H.R.R. D/329, 2008 HRTO 10 [Trebas]; and Jones v. Strata Plan 1571, [2008] B.C.H.R.T.D. No. 200 [Jones].
• [19] Morten, ibid.; Canada (Human Rights Comm.) v. M.N.R., 2003 FC 1280, 49 C.H.R.R. D/38 [M.N.R.].
• [20] Hutchinson, supra note 6.
• [21] File No. SOT-00795, 2008 LNONLTB 4 [SOT-00795].
• [22] National Capital Comm. v. Brown (No. 1), 2008 FC 733, 63 C.H.R.R. D/359 [Brown]; and Foglia v. Edwards, 2007 BCSC 861, 158 A.C.W.S. (3d) 636 [Foglia].
• [23] Kivela, supra note 6; Federated, supra note 12; Hutchinson, supra note 6; ADGA, supra note 12; Watt, supra note 14; Dawson, supra note 11; Cassidy, supra note 7; DeSouza, supra note 10; and Selinger, supra note 12.
• [24] Sparkes, supra note 15; Hutchinson, supra note 6; Lalji, supra note 15; Foglia, supra note 22; Morten, supra note 18; J. and J., supra note 17; Smolak, supra note 18; Trebas, supra note 18; SOT-00795, supra note 21; Jones, supra note 18.
• [25] See Hutchinson, ibid.
• [26] Ibid.
• [27] Ibid.
• [28] Weitmann, supra note 12.
• [29] Yukon, supra note 12.
• [30] Krickemeyer, supra note 8.
• [31] Saskenergy, supra note 9.
• [32] Deol, supra note 12.
• [33] Oak Bay, supra note 12.
• [34] Tremblay, supra note 7.
• [35] Layzell, supra note 7.
• [36] Communications, supra note 13; and Honeywell, supra note 13.
• [37] M.N.R., supra note 19.
• [38] Zavadsky, supra note 15.
• [39] Brown, supra note 22.
• [40] Metropolitan, supra note 16.
• [41] See e.g. Trebas, supra note 18.
• [42] See e.g. Morton, supra note 18.