Canada is a hostile human rights jurisdiction for Canadians with disabilities

By Stephen Pate – On December 3, 2014 United Nations Enable – International Day of Persons with Disabilities, Canada is not a leader in Human Rights for people with disabilities. Canada is a human rights regressive paying lip service to UN Conventions and human rights.

For example, in the case of Moore v BC, it took the parents of Geoffrey Moore 20 year to secure the right of their learning disabled son to an education. In a recent PEI Human Rights case the judge admitted the person with a disability was illiterate and not represented by a lawyer before dismissing his complaint. Do either of those cases represent a system of fair human rights for people with disabilities?

Canadian politicians reject any law similar to the US Americans with Disabilities Act. Canadians with disabilities have the Charter, they retort then vote to defund the Charter Challenges program that provided legal help in Charter cases.

Assume for a minute that people with disabilities have the money to hire a lawyer, how are they expected to have the stamina to fight in court for 5-20 years to prove their right to work? The very fact they are disabled indicates they have lower physical and mental capacity than non-disabled people.

To win a human rights complaint in Canada based on disability is almost impossible. In the United States the EEOC – Equal Employment Opportunities Commission – last year settled  “$296.1 million in monetary relief for victims of employment discrimination…through mediation, conciliation and other administrative enforcement” plus $96.5 million in monetary relief litigation.  EEOC Issues FY 2014 Performance Report

No one in Canada seems to care. Politicians are happy. Business people are happy with the system and lawyers are happy since they get paid handsomely to sue the pants off cripples, the blind, deaf and infirm. Other than kicking dogs and suing widows, it’s a lawyer’s dream.

The 5 million Canadians with disabilities need to get organized or this will never change. The governments are content with the system of lip service to human rights for the disabled.

Disability discrimination – what is it?

“Persons with disabilities suffer from discrimination based on society’s prejudice and ignorance. In addition, they often do not enjoy the same opportunities as other people because of the lack of access to essential services. International human rights law determines that every person has:

1. The right of equality before law
2. The right to non discrimination
3. The right to equal opportunity
4. The right to independent living
5. The right to full integration
6. The right to security” (HREA)

This article will deal with a few examples of how Canada discriminates against people with disabilities PWD.

Equal standing before law

People with disabilities are guaranteed equal standing under the law by the Charter of Rights and Freedoms,  Section 15 which states,

Equality Rights Equality before and under law and equal protection and benefit of law

 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Sounds great except the enforcement of those rights has been left up to the Courts which like their cousins in the United States are very strict in allowing people with disabilities to have their human rights.

Claims for human rights discrimination must be filed within 1 year while you can sue your neighbor for having his dog poop on your lawn up to 5 years as general damages.

Most human rights law is administered by the provinces who take unique positions on the law resulting in inconsistency.

A person with a disability human rights complaint must hire their own legal counsel usually and fight against the government and business lawyers funded by the taxpayer.

The courts are generally conservative in applying Human Rights law and have developed complex rules that often defy logic but they are the law.

Statute of Limitations

Both the Federal and Provincial human rights laws deny claims filed after 1 year from the violation of a person’s human rights. Canadian politicians enacted these very strict statute of limitations to protect themselves and business. It has no other value  other than to restrict the ability of people with disabilities to seek justice.

As we see over and over in sexual harassment human rights cases, like the Jian Ghomeshi story, victims often suffer in silence for years until they get the courage to come forward.  People with disabilities can be cognitively impaired, too weak for extended periods of time due to their disabilities, unable to find legal documents that are inaccessible due to vision and hearing impairments,  or otherwise physically unable to work on a human rights complaint. None of those reasons will convince a court to extend the 1 year limitation.

As I said, you can sue someone for general damages up to 5 years from the incident. Which action has more value to our legislators?

Advantage – respondent company

Provincial versus Federal Jurisdiction

Crown corporations, departments of the Government of Canada and federally regulated businesses are subject to the Canada Human Rights Act. All other complaints are dealt with provincially.  The rules across 13 jurisdictions vary considerably.

There are different rules about who to file with first. For example,  some jurisdictions want you to file with your union or labor board first and then file a human rights complaint.

Filing with one board can take years and put your human rights complaint beyond the statute of limitations with another legal body but that is where they send you.

Filing a human rights complaint is a veritable mine field of legal maneuvers that are daunting for the average non-disabled person. For the disabled it’s just cruel and a way to deny them justice.

Advantage – respondent with lawyer

Right to Counsel

The disabled have to hire their own lawyers and the cost is not tax-deductible unless you win.  David and Goliath battles look easy compared with the disadvantage of a person with a disability who has been laid off after a heart attack or other disabling condition.

Legal fees to fight a human rights complaint can exceed $250,000.  A few provinces provide limited legal aid for the disabled. Ontario, one of the few provinces with legal aid, has funded less than 40% of complaints.

Respondents in human rights cases are always companies or government departments who have access to lawyers. Legal expenses for companies are tax-deductible even if the company is proven to be discriminating. Taxpayers are always on the hook for legal expenses of government departments. The CBC for instance spends $3 million of your money a year on lawyers.

Advantage – respondent with lawyer

Conservative courts harm the disabled

When the US Congress enacted the Americans With Disabilities Act in 1990 it was hailed as the equivalent of the Civil Rights Act for people with disabilities, granting them equal standing under law.

US Courts up to the Supreme Court immediately applied conservative judgments in the Sutton and Toyota disability law cases,  to essentially gut the ADA.

18 later years, President Bush Jr. got Congress to pass the ADA AMENDMENTS ACT OF 2008 which said in plain terms that Congress was vacating Sutton and Toyota,

(b) PURPOSES. – The purposes of this Act are—…

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;  ADA as Amended

Parliament and Provincial legislatures have refused  to redress the conservative attitudes of the courts in Canada.  In one Federal case, the judge said that human rights was important and should be upheld by the courts but then said the law must be strictly applied as he refused the complaint. In some cases the courts held that the Canadian Human Rights Commission should hear a compliant and in seemingly similar circumstances find they shouldn’t. Some courts hold that reasonable accommodation means one thing and another court that it means another.

There are a case on PEI where a Provincial government employee lost her sight gravel thrown at her on the road as a flag person. Despite a doctor’s letter stating she could not see well enough to avoid on coming traffic as a flag person, the court held she did not ask for a reasonable accommodation, her right, but told her employer she needed an inside job. A small nuance but enough to get her case turfed. If she was a lawyer and not a flag person, the suggestion would be logical.

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