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Human Rights Coverage: The Unrealized Promise

Editor's Note: John Rae, Robin East and Donna Jodhan are AEBC National Board members, and are experienced litigants in the human rights process.

In the 1970s and early 80s, the Disability Rights Movement in Canada invested a lot of time and energy to obtain human rights protection for persons with disabilities (PWDs) at all levels. We were seeking the establishment of an equitable legal framework, and in many jurisdictions governments were not willing to provide us with our rights. In many instances, we had to fight very hard, but in the end we succeeded, and today PWDs are covered by all human rights statutes across the country, though numerous differences exist from jurisdiction to jurisdiction.

John Rae had the great honour of participating in some of this tough work, and he remains convinced that this time and energy was well invested. However, we have not achieved as much progress as our movement had expected. We may have achieved an equitable legal framework, but we are still far away from achieving a similar level of substantive equality. Far too many PWDs continue to live on the sidelines in this affluent country.

An individual who feels discriminated against must first determine the correct body to which to complain. For example, when Air Canada introduced its inaccessible flat-screen entertainment system, should John Rae and Marcia Yale, former AEBC National Secretary, have complained to the Canadian Transportation Agency (CTA), citing an "undue obstacle to travel," as CTA’s criteria requires, or was this a case of discrimination covered by the Canadian Human Rights Commission (CHRC)? Since they travelled on these and other airlines, it seemed like a clear case of discrimination. They filed with the CHRC, which took their complaint.

The Court Challenges Program (CCP), which once provided financial assistance for initiating challenges under Canada's Charter of Rights and Freedoms, was invaluable in giving all equality-seeking groups, including the disabled community, the opportunity to test some federal government actions, and to try to extend the impact of the law. The cancellation of the Equality portion of the CCP by the Harper government has greatly weakened our community's ability to test federal government actions. If we want to launch new Charter challenges, we must now seek the support of a legal clinic, like ARCH Disability Law Centre, or find lawyers who are willing to work with us on a pro bono basis.

We had hopes and expectations that Human Rights Commissions would make a profound difference in our daily lives, by helping to level the playing field between citizens and large organizations, but resource inequalities continue to plague the human rights process. In addition, their emphasis on complicated judicial-like procedures, individual complaints, and our misperceptions of how Commissions really operate, can get in the way of making maximum use of what they can offer.

A complainant must first succeed in filling out the forms and figure out how to get their complaint taken. Today, it often seems as if Commissions are making the process needlessly complicated as a way of discouraging new complainants from even filing. Many potential complainants, furthermore, believe that the Commission provides a lawyer to "represent" them, but this is not the case. Even when a Commission lawyer does get involved, this is only after the process is well underway.

When a Commission lawyer is involved, he is there to "represent the public interest." In cases where the complainant is seeking a systemic or public-interest remedy, you may be able to work closely with the lawyer, who may be extremely supportive in developing and presenting the systemic side of your case; however, he is not there to represent you as the complainant. You are basically on your own.

After filing a complaint, you will likely be asked to participate in a mediation meeting, to which you may bring a friend, advocate or lawyer at your own expense. During mediation, the Commission may subtly, or not so subtly, encourage (or even pressure) you to settle.

Sometimes, there are good reasons to agree to a settlement. The facts in your case may not be as clear cut as you might like, for example, Or settling will be quicker and will alleviate the pressure cooker of going through a Tribunal, a quasi judicial hearing, where you may win or you may lose altogether. Settling, furthermore, will likely gain you something, such as systemic changes and/or a monetary amount in your favour. Sometimes, you may even be able to reach a substantial settlement, as John Rae and Marcia Yale did on March 12, which they hope will bring about an accessible onboard entertainment system on Air Canada and Air Canada Jazz flights.

For persons with disabilities who may be unemployed or live in chronic poverty, dangling even a partial victory in the form of a small monetary award may prove to be a carrot that is too attractive not to accept. Settling writes no law, however. Whenever a complaint is settled, it goes unreported and is of no help to others who have also been discriminated against. Thus, there is no indication as to which organizations are habitual respondents, information that would be useful in planning community actions.

In recent years, some settlements have not included the strict "cloak" clause, whereby the settlement is written in such a way to educate respondents and complainants. In such cases, neither the complainant nor the respondent is named. An example is a settlement on alternate formats that came out of the Canada Revenue Agency. This type of settlement can be useful but, again, most settlements remain entirely cloaked, in order to protect the respondent.

In the disabled community, the difficult task of filing complaints rests on the shoulders of too few individuals. It is easy for a Commission to say, "Oh no, here comes Robin or Donna or John again.” What should we be seeking from what often can seem like a David versus Goliath scenario? The process needs to be streamlined to prevent a well-resourced respondent from dragging out the proceedings because they can afford to do so. Before the human rights process in Ontario was overhauled, its Commission instituted a "fast-track" system that saw cases moving at a much faster pace, but this system was not in place long enough for us to know if it would succeed in the longer term.

Commissions need to devote more resources to cases that can bring about systemic remedies. While enabling an individual to seek personal redress in instances of discrimination will always be important, individual remedies do not help others confronted by a similar problem. Commissions also need to make greater use of the power that many possess to initiate complaints of discrimination that are in the public interest, and to try to extend the impact of important decisions that contain systemic remedies. Since David Lepofsky, a blind lawyer, won two cases against the Toronto Transit Commission concerning the calling out of subway and bus stops, the Ontario Human Rights Commission (OHRC) has used that decision to pressure most other Ontario transit providers to take similar action, thereby alleviating the need for additional community members to file separate complaints against their own transit providers.

We ourselves need to develop a group of individuals across Canada who are prepared to file complaints, as there may come a time when we will want to file a similar case in several provinces or territories simultaneously. And when we file, do we ever think of also alleging harassment, along with discrimination? When filing, if there are ever doubts on what grounds to cite, or what remedies to request, all ideas could be included at the time of filing.

Canada's Disability Rights Movement has fought hard to achieve human rights coverage, and disability, particularly in the area of employment, has consistently remained the number one category of discrimination complaints across the country. We must continue to support each other in taking cases to Human Rights Commissions, especially through the Tribunal process, where law gets written. After all, there was no point in securing this legal protection if we don’t use it.

Photo: Robin East, AEBC President
Photo: John Rae, AEBC, 1st Vice President
Photo: Donna Jodhan, AEBC, 2nd Vice President

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