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The Canadian Human Rights Commission Strives to Design a New Business Model: What Does This Mean for Persons with Disabilities?
May 11, 2013
January 29, 2013
April 17, 2012
For the Council of Canadians with Disabilities
by Yvonne Peters
TABLE OF CONTENTS
- Significance of the Canadian Human Rights Act for Persons with Disabilities
- Time for Change
- Purpose of this Report
II. UNDERSTANDING THE CANADIAN HUMAN RIGHTS MACHINERY
- Overview of the Purpose and Scope of the Canadian Human Rights Act
- The Purpose
- The Scope
- The Complaint Process
III. HIGHLIGHTS OF THE COMMISSION'S NEW BUSINESS MODEL
- Representing the Public Interest
- Promotion of Other Avenues of Redress
- Alternative Dispute Resolution Service
- Intake and Pre-Complaint Procedures
- Preliminary Assessment
- Discrimination Prevention
- The Knowledge Centre
- Current Organizational Structure of the Commission
- A. The Complaint Process
- Screening and Intake
- The Rejection or Rerouting of Complaints
- Some Observations Regarding Initial Contact
- The Investigation Process
- The Mediation Process
- Screening and Intake
- Overall Satisfaction and Recommended Improvements for the Complaints Process
- Tribunals and the Promotion of the Public Interest
- Taking a Pro-Active Stance in Eliminating Disability-Based Discrimination
- The VIA Rail Case and its Pronouncement on Access and the Duty to Accommodate
- The International Convention on the Rights of Persons with Disabilities
- Existing Tools Available Pursuant to the Act
The implementation of accessible, effective and enforceable human rights legislation has been a central and long time goal of the Council of Canadians with Disabilities (hereinafter referred to as "CCD"). In that spirit, CCD offers this report in the hopes of eliciting further thoughts and ideas on how to continue this work and achieve this goal.
I have been asked by CCD to review and assess the new business model currently being used by the Canadian Human Rights Commission ("hereinafter called the Commission") to manage human rights complaints and to promote human rights in Canada. As a member of CCD of over 25 years, particularly as a member of the Human Rights Committee, I am very pleased to undertake this work. Naturally, this report is, as much as possible, based on objective research methods. However, it is also fair to say that I bring to bear my personal experience as a human rights lawyer, a Manitoba human rights Commissioner, a former provincial human rights staff person and a human rights complainant in a number of cases. To be clear, my human rights experience serves merely as a point of reference. It is not the main source on which this report is based.
Thirty years ago, the federal government passed the Canadian Human Rights Act (hereinafter referred to as "the Act"). For persons with disabilities, this event began with high hopes and ended in disappointment. After decades of isolation and exclusion from mainstream society, persons with disabilities were initially encouraged by the introduction of human rights as a new area of the law and were hopeful that a life based on rights would supplant a life based on a pathology of charity, misfortune and physical and mental limitations.
However, the new Act restricted its protection to persons with physical disabilities and only applied in the area of employment. Persons with mental disabilities were conspicuously absent from this limited protection. Moreover, persons with physical or mental disabilities were nowhere to be seen in other areas of the Act including access to goods, services and facilities. According to some observers, such restrictions may have been, in part, linked to a lack of knowledge and understanding about disabilities among government officials at that time.
For example, the Coalition of Provincial Organizations of the Handicapped (now known as the Council of Canadians with Disabilities) recounts an amusing story that suggests that some government officials believed that providing comprehensive human rights protection to persons with disabilities would suddenly require all telephone books to be published in Braille.4 This is of course extremely impractical and unnecessary as other forms of access were already in place.
In 1981, persons with disabilities were successful in securing recognition of their equality rights in the Canadian Charter of Rights and Freedoms. The Constitutional guarantee of equality, no doubt, played a significant role in convincing the government in 1982 to amend the Canadian Human Rights Act to provide comprehensive protection for all persons with disabilities.
A. Significance of the Canadian Human Rights Act for Persons with Disabilities
The Act is overseen and administered by the Commission. Over the years, both the Act and the Commission have become significant icons in the lives of Canadians with disabilities. They represent a forum for seeking justice and equality. The need for such a forum is abundantly evident in light of the fact that, as a group, persons with disabilities are more vulnerable to intense social and economic disadvantage than their able-bodied peers. For example, persons with disabilities have a long-standing history of high unemployment and underemployment and are more likely to be living in poverty.
Across the country, there is no coordinated policy response in place to address this deplorable fact. Instead, those who require income assistance and services rely on a patchwork of local/provincial/territorial and federal programs that overlap, grab back, and fail to provide adequate income and the basic supports required to remove barriers associated with disability. Persons with disabilities have been the subject of numerous reports and studies on the need to respond to the wrenching barriers and challenges to decent livelihoods, and yet Canadians with disabilities remain one of the largest sectors living on social welfare. Indeed, approximately a half million Canadians with disabilities must today rely upon provincial welfare or upon welfare-like programs. The economic disadvantage experienced by persons with disabilities is further aggravated by numerous social and structural barriers in combination with discriminatory attitudes which culminate in the lack of access to the built environment and which create obstacles to programs and services.
Given the profound effects of persistent poverty and unrelenting social and economic barriers, it is not surprising or unreasonable for persons with disabilities to look to the Commission and the Act it administers to take a staunch lead in advocating redress and equality. Clearly, the Commission is well aware of the plight of Canadians with disabilities. In its 2001 annual report, the Commission observed:
"Canadians with disabilities face obstacles wherever they go. Whether it is a door threshold that is too high for a person using a wheelchair, the absence of publications in Braille or large print, or inadequate tax and social security measures, people with disabilities are far too often denied full citizenship in Canadian society."
Further evidence of disability-related barriers and discrimination is reflected in the numbers of complaints filed with the Commission. For example, in 2002, the Commission reported an 85% increase in disability-related complaints. The table set out below illustrates that complaints based on the ground of disability consistently far outrank other grounds of discrimination such as sex.
|Reporting Year||Total number of signed complaints received by the CHRC||Number of cases where disability is cited as ground of discrimination||Percentage of total cases where disability cited as a ground of discrimination||Percentage of total cases where sex cited as ground of discrimination|
While it can be argued that the Canadian Human Rights Act has provided positive symbolic value in shifting the disability discussion from charity to rights, it has made very little progress in dismantling the most obvious barriers let alone those of a more endemic nature. This failure is not entirely the fault of the Commission. The lack of resources such as appropriate funding and staff have all played a part. Moreover, the historical focus on individual complaints rather than on persistent patterns of inequality has had little impact on the activities of Canadian society.
B. Time for Change
The Commission has not been oblivious to the need for change. In 2002, it announced that it would be making a number of significant changes with respect to its operations. It stated:
"Canada has changed a great deal in 25 years, and the human rights challenges facing the Canadian public and the Commission today have changed from the ones envisaged by the drafters of the Canadian Human Rights Act in 1977."
For example, the Commission pointed to changing demographic data which demonstrated an aging and more diverse population with escalating disability issues. It also recognized that discrimination had become more subtle and more complex over the past 25 years. Inequality results not only from deliberate acts of discrimination and prejudice, but also from seemingly even-handed policies and activities that exclude individuals and groups.
The Commission went onto opine that the rising number of complaints had forced it to invest most of its resources into investigation and litigation. Thus it was spending most of its time engaged in adversarial activities rather than remedial activities such as prevention of discrimination and compliance with human rights law./p>
Moreover, the challenges plaguing the Commission did not go unnoticed by other public bodies such as the Auditor General (September 1998 Report) and the Canadian Human Rights Act Review Panel (2000) Report—Promoting Equality: A New Vision. These reports, along with others, concluded that the Commission's complaint process was too slow and cumbersome. The result was a chronic backlog that hindered the ability of the Commission to carry out other areas of its mandate. This situation could not be sustained.
In an attempt to realign the many activities required by the Act, the Commission undertook a review of its business practices based on the following four principles:
- Greater use of alternative dispute resolution, which can provide a non-adversarial forum that looks at needs, interests and solutions and can promote early healing;
- A complaints handling process that is more efficient, timely and cost-effective;
- New tools to identify and focus on those human rights cases and complaints that raise systemic or serious human rights issues and that have the greatest human rights impact; and
- A strengthened management infrastructure.
- The Commission asserts that the changes envisioned "in great measure address and exceed the desired benefits of a direct access model while avoiding significant pitfalls, and are manageable within the fiscal limits assigned by Parliament."
C. Purpose of this Report
Over the past five years, the Commission has continued to implement changes to its organizational structure and the way in which it carries out its mandate. The purpose of this report is to outline the nature of these changes and to consider the effectiveness of these changes in protecting and promoting the human rights of persons with disabilities.
The report begins by providing a general overview of the purpose and scope of the Act. This is followed by a summary of the changes currently being implemented by the Commission. The report then offers a disability rights analysis of these changes drawing on reports and studies as well as the first hand experience of persons with disabilities who have filed complaints with the Commission. The report concludes with recommendations addressing:
- a) Policy and legislative changes aimed at advancing the human rights of persons with disabilities, and
- b) Ways in which CCD and the Commission can work together to achieve greater recognition of the human rights of persons with disabilities.
In addition to the reliance on information obtained through a typical literature search, this report also reflects the comments and experiences of persons with disabilities who have had contact with the Commission in the past five years or so, as well as the perspective of human rights experts. These experiences and perspectives have been obtained through oral interviews by CCD researchers. Due to the sensitive nature of many of the issues discussed, the names of the persons interviewed are not disclosed.
Persons interviewed were recruited by way of a public notice which was circulated to all CCD member groups and partners. The notice also appeared in the Abilities magazine and in A Voice of Our Own—the CCD newsletter. CCD received a significant number of responses to its notice.
The criteria used to select those for interviews were based on:
- That the issue in question fell within the jurisdiction of the Canadian Human Rights Act,
- That she/he had had actual contact with the Commission, and
- That the matter had occurred with in the past 5 years.
Unfortunately, many of the people who responded did not meet the specified criteria and thus were rejected. Due to limited resources, both time and funds, CCD was not able to engage in another round of solicitations. Consequently, CCD was only able to interview five people who had recent contact with the Commission. In this report, these persons have been assigned a number rather than using a name and are referred to as "Interviewees". Owing to the limited number of Interviewees, the information obtained through the interviews is not statistically relevant, but rather is used for the purpose of providing examples or for highlighting various points in the analysis and recommendation section of this report.
It is important to keep in mind that this report is not designed to provide a formal evaluation of the changes adopted by the Commission. Rather its objective is to foster discussion and dialogue among persons with disabilities, government officials, members of the Commission and members of Parliament on how human rights protections can be strengthened and effectively implemented to eliminate disability-based discrimination. (The interview guide used for the Interviewees is attached to this report as Appendix A.)
II. UNDERSTANDING THE CANADIAN HUMAN RIGHTS MACHINERY
A. Overview of the Purpose and Scope of the Canadian Human Rights Act
1. The Purpose
The purpose of the Canadian Human Rights Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
Unlike criminal law, the Act is not designed to render punitive consequences. The overall purpose of the Act is remedial in nature and aimed at eliminating discrimination so that all persons living in Canada can participate fully and equally in society. From time to time its purpose has been amended to reflect the progress of human rights development. For example, during the mid 90s its purpose was amended to include the recognition of the duty to accommodate.
Initially when the Act was proclaimed its purpose was to eliminate direct or intentional forms of discrimination. As long as an employer or service provider did not intend to discriminate, there was no violation of the Act. Essentially, this approach promoted a formalistic or "same treatment" model of equality. In the mid 80s, the Supreme Court of Canada expanded the purpose of the Act and said that it also covered forms of adverse effects or unintentional discrimination. This move recognized that Canadian society is composed of individuals and groups with unique needs and capacities.
In 1987, the Court added the redress of systemic discrimination to the responsibilities contemplated under the purpose of the Act. Goundry & Peters describe systemic discrimination as follows:
"Systemic discrimination refers to the big picture in which the very operation of a 'system' or 'complex' of policies, rules and practices excludes members of disadvantaged groups to their detriment. As such, systemic discrimination has a group component. Eliminating systemic discrimination is the twin goal of promoting substantive equality."
Consequently, through its purpose, the Act embodies the important public policy of eliminating discrimination and promoting equality. In recognition of the prominence of such public policy, the Supreme Court of Canada has characterized human rights legislation as quasi-constitutional. This means that the Act is almost as fundamental to our legal structure as the Charter, even though it is a law passed by Parliament. Moreover, the Court has ruled that where there is a conflict between human rights legislation and other laws, human rights legislation takes priority, unless the human rights law creates a clear exception.
2. The Scope
The Act is divided into four main parts with the first three parts forming the substance of the Act. Part I prohibits certain forms of discrimination. Section 3.1 states that discrimination is prohibited on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. This part prohibits direct and indirect discrimination in matters such as the provision of goods, services, facilities and accommodations; the provision of commercial premises or residential accommodations; and the availability of employment opportunities.
Section 15 stipulates that discrimination will be permitted where an employer can establish a defense of a bona fide occupational requirement, or where a service provider can establish a defense of a bona fide justification. However, in both instances, persons claiming such defenses must demonstrate that they cannot accommodate the affected individual or group short of undue hardship, considering health, safety and costs.
Part I also gives the Governor in Council the authority to make regulations in relation to standards for assessing undue hardship and for providing accessibility for persons with disabilities to services, facilities or premises. (See ss. 15(3) and ss. 24(1))
Part II establishes the Commission and sets out its responsibilities regarding general administrative matters. Part III provides further details on the responsibilities of both the Commission and Tribunals. In addition to the requirements of the Canadian Human Rights Act, the Commission is also responsible for the enforcement of employers' obligations under the Employment Equity Act.
The Commission can only deal with matters that come within the federal pervue. These include federal departments, agencies and Crown corporations; Canada Post; chartered banks; national airlines; inter-provincial communications and telephone companies; inter-provincial transportation companies; and other federally regulated industries, such as certain mining operations and First Nations employers (for employment or service issues that are not exempt under s. 67 of the Act).
3. The Complaint Process
Section 40(1) of the Act permits any individual or group of individuals who believe that they have experienced discrimination to file a complaint with the Commission subject to certain exceptions. Additionally, s. 40(3) permits the Commission to initiate a complaint on its own volition where it has reasonable grounds to believe that a person is engaging in discriminatory acts or behaviour.
The Commission can refuse to deal with a complaint where it believes that another avenue of recourse exists, the complaint goes beyond the jurisdiction of the Act (i.e. the complaint is trivial, frivolous, vexatious or made in bad faith) or the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. (See s. 40(1)(a)—(e))
Where a complaint is accepted by the Commission, it may designate a person to investigate the complaint. (See ss. 43(1)) Following the completion of the investigation, the investigator must submit her/his findings to the Commission. (See ss. 44(1)) Upon receipt of the investigator's report the Commission may:
- Refer the matter to a Tribunal for adjudication, or
- Dismiss the complaint. (See ss. 44(3))
The Commission may also appoint a "conciliator" for the purpose of attempting to bring about a settlement of the complaint. (See ss. 47(1))
Section 48 gives the Governor in Council the authority to establish and maintain a Canadian Human Rights Tribunal. The Tribunal cannot exceed 15 members and must reflect human rights and legal expertise as well as the various regions of Canada. The Tribunal is a separate and independent entity from the Commission.
At any time during the complaint process, the Commission may request that the Chairperson of the Tribunal conduct an inquiry into the complaint. (See ss. 49(1)) All parties involved in the complaint are permitted to participate in the inquiry. (See ss. 50(1)) The role of the Commission in participating in the inquiry is to represent the public interest. (See ss. 51(1))
At the conclusion of the inquiry, the Tribunal may dismiss the complaint, or where the complaint is substantiated, it may order one or more of the following actions:
- Order that a person cease the discriminatory practice and, in consultation with the Commission, take measures to redress the effects of the discriminatory practice and ensure that future discrimination is prevented;
- Provide the complainant with compensation for lost wages or the cost of having to use alternative goods or services; or
- Provide the complainant with compensation up to $20,000 for pain and suffering. (See s. 54)
A decision of the Tribunal can be appealed for judicial review to the Federal Court of Canada.
III. HIGHLIGHTS OF THE COMMISSION'S NEW BUSINESS MODEL
The new business model currently being designed by the Commission is a blend of dispute resolution mechanisms and prevention and knowledge development. Set out below are highlights of this new model taken from a report prepared by the Commission entitled "Innovative Change Management: An Alternative to Legislative Change." It should be noted that the business model is a work in progress and thus, by the time this report is circulated, it may have been revised or updated.
A. Representing the Public Interest
Historically, although not required by the Act, the Commission participated fully in all hearings before the Canadian Human Rights Tribunal. However, in light of its renewed commitment to efficiency, it has determined that it's primary responsibility is to the public interest and not the personal interest of complainants or respondents. As such it has decided that it does not have to be present at all hearings. It argues that it is accountable to the Canadian public through Parliament and not to complainants or respondents.
As a result, complaints can be referred to the Tribunal for adjudication with limited or no involvement by the Commission. In such situations, the responsibility for establishing a prima facy case of discrimination through the production of witnesses and official documentation rests almost exclusively with the complainant.
The Commission recognizes that legal precedents are important and serve as guides for the interpretation of the legislation. Thus, it has decided to focus its limited litigation resources on cases having the greatest impact, such as those involving allegations of systemic discrimination and precedent-setting cases that can clarify the law for all Canadians. To some degree, this model can be seen as a half way point between a model which grants all complainants direct access to the Tribunal as is the case in British Columbia and soon to be in Ontario, and a model which permits the Commission to have complete control over complaints it carries to Tribunal.
B. Promotion of Other Avenues of Redress
Potential complaints are now carefully screened to determine if they can be dealt with by other dispute resolution mechanisms or under other pieces of legislation. The Commission is mindful of recent Supreme Court rulings that state that human rights commissions do not have a monopoly over human rights. It therefore may encourage complainants to explore other avenues for resolving their disputes. For example, a complainant who encounters barriers to national transportation systems or telecommunications may be required to seek redress through the Canadian Transportation Agency established under the Canadian Transportation Act or the Canadian Radio-television and Telecommunications Commission established under the Canadian Radio-television and Telecommunications Commission Act.
C. Alternative Dispute Resolution Service
The Commission has developed an Alternative Dispute Resolution service. Now mediation is available at any stage of the complaint process including before a complaint is filed.
The Commission has the authority to refer complaints for mandatory conciliation at any time. If a settlement is not reached, the Commission may refer the matter directly to a Tribunal. In other cases, an experienced human rights officer may prepare an assessment of the complaint and offer options for settlement based on a new, comprehensive investigation report, submissions received from the parties, and the assessor's own interactions with the parties. If this process fails, the complaint may be returned to the Commission for further review and a determination as to whether it is in the public interest to refer the matter to a Tribunal.
After creating the Alternative Dispute Resolution Services Branch in early 2003, the Commission set up an advisory council of eminent jurists to ensure its integrity and its consistency with human rights principles. The Commission has succeeded in attracting esteemed experts such as former Supreme Court of Canada justices GÃ©rard La Forest and Claire L'Heureux-DubÃ©, as well as former Chief Justice Charles Dubin of the Ontario Court of Appeal, and former Alberta Court of Appeal Justice Roger Kerans.
D. Intake and Pre-Complaint Procedures
As mentioned above, potential complaints are now carefully screened to determine if they can be dealt with by other dispute resolution mechanisms. If a complainant decides to proceed with a complaint and the Commission accepts the complaint, she/he receives a complaint kit and is encouraged to draft her/his own complaint. The Commission advises that in rare circumstances where the complainant is truly at a disadvantage, staff will still assist in the drafting of the complaint.
Complaints are still assigned to individual investigators in accordance with the Act. However, investigators are now able to formally discuss issues with teams that specialize in specific grounds of discrimination which include other investigators, legal counsel and policy advisors. The Commission contends that this approach facilitates consistency in the handling of complaints, expeditious resolution of issues and identification of systemic issues.
The Commission argues that another benefit of the specialized teams is that, because it reviews all complaints related to a particular ground, it is able to identify trends or emerging issues. This information can then be passed onto the Commission's policy development, research work and prevention initiatives.
F. Preliminary Assessment
In 2005, the Commission launched a pilot preliminary assessment project. Preliminary assessment involves a human rights specialist who assists parties to a dispute to clarify and narrow the issues shortly after the complaint is received. It is hoped that this assistance will lead to resolutions including a settlement, an agreement to enter mediation, a non-confidential report that will speed up investigation, or referral to a more appropriate grievance or review procedure.
G. Discrimination Prevention
In 2004, the Commission introduced its new Discrimination Prevention Program. Under this Program, the Commission works with federally-regulated employers and service providers and makes them aware of their responsibilities under the Act. Specifically, the Commission assists employers and service providers to:
- Develop strategies to prevent discrimination;
- Develop human rights-related policies and practices;
- Establish and maintain effective mechanisms to address complaints internally; and
- Ensure that human rights concerns are dealt with effectively and rapidly.
The Commission has begun negotiating and signing memoranda of understanding (MOUs) with employers under federal jurisdiction who are interested in benefiting from the Discrimination Prevention Program. To date, 11 MOUs have been signed covering more than 170,000 employees.
H. The Knowledge Centre
In November 2005, the Commission established the Knowledge Centre. The Centre is responsible for advancing human rights through research, policy development and strategic initiatives. It also supplies internal support by providing advice on legal and policy matters and gathering and analyzeing statistics in support of research, policy development and management decision-making. In addition, the Knowledge Centre assumes responsibility for regulatory affairs, which includes the development of regulations and guidelines related to both the Canadian Human Rights Act and the Employment Equity Act. The Commission's participation at the United Nations in the development of an international convention on the rights of persons with disabilities is an example of a project undertaken by the Knowledge Centre.
I. Current Organizational Structure of the Commission
Set out below is a verbal and visual depiction of the Commission's current organizational structure.
The Chief Commissioner heads the organization, which is made up of four different branches. The Commission members and the Secretary General report directly to the Chief Commissioner. The Secretary General is supported by the following branches:
- Dispute Resolution
- Discrimination Prevention
- Knowledge Centre
- Corporate Management, and
- Corporate Secretary.
The Dispute Resolution Branch is supported by the following units:
- Early Resolution and Alternative Dispute Resolution Services
- Investigations, and
- Litigation Services.
The Discrimination Prevention Branch includes:
- Regional Offices
- Employment Equity Compliance Division
- Prevention Initiatives and Liaison Division, and
- Communications Division.
The Knowledge Centre includes:
- Research and Statistical Analysis Division
- Policy and Regulatory Affairs Division
- National Aboriginal Program, and
- Strategic Initiatives.
The Corporate Management Branch and Corporate Secretary are supported by:
- The Secretariat and International Program Division,
- The Financial and Administrative Services Division,
- The Human Resources Division,
- The Information Management and Information Technology Division,
- The Planning, Audit and Evaluation Division, and
- The Learning and Development Division.
IV. ANALYSIS AND RECOMMENDATIONS
It is too soon and beyond the scope of this report to carry out an official assessment of the effectiveness of the changes currently being implemented by the Commission. On its face, the new business model appears to offer a variety of promising tools, such as a more streamlined approach to complaint management, emphasis on alternative dispute resolution options, a greater focus on far reaching systemic complaints, discrimination prevention and the promotion of human rights as important public policy through education, research and adjudication. Arguably, if implemented with sincerity and commitment, these tools may have the potential to improve the advancement of the rights of persons with disabilities. However, it is important for organizations like CCD to hold the Commission to its promise of a more effective and responsive human rights model and to ensure that legislative goals do not become distorted by administrative and managerial needs. It is somewhat difficult to ignore concerns and suspicions that flow naturally for equality-seeking groups regarding whose interests are really being served, when a term like "a new business model" is used as the flag ship of a new and improved Commission.
As Day & Brodsky caution in their 1999 review of the Commission:
"The Commission's primary goal should be to take the steps that will eliminate discrimination and achieve equality in Canadian society. Often, instead, it appears to be taking the steps necessary to manage human rights law enforcement with fewer staff and less money. The goal of the Commission inevitably becomes 'managing human rights law enforcement' when the Commission lacks expert staff, lacks adequate resources, and does not enjoy the overt support of government for more ambitious and riskier challenges to the status quo of inequality. This combination of inadequate resources and lack of supportive messages drives the Commission to get rid of complaints, ignore the broader implications of some complaints, and fail to challenge the most prevalent and persistent patterns of inequality in Canadian society. In dollar and time terms, from a government perspective, this may appear efficient. However, permitting discrimination to be inadequately addressed is a false economy, and it corrodes the public belief in government's commitment to justice and human rights."
As indicated at the outset of this report, historically human rights commissions have served as a beacon of hope and inspiration for persons with disabilities that Canada is interested in and committed to courageously and tenaciously challenging social and economic barriers and seeking justice and recognition of their equality rights. Human rights are more than routine government policies. They are quasi-constitutional and demand to be safeguarded and promoted by prominent public institutions like human rights commissions. However, as illustrated by our small interviewee sample, the Commission seems to encounter difficulties in living up to these expectations. As described below, all the Interviewees expressed frustration, disappointment and disillusionment with the Commission and the process it uses to resolve complaints of discrimination. Although the Interviewees represent an extremely small research sample, their responses appear to echo many of the informal comments and complaints regularly received by CCD from persons with disabilities who feel they have not been well treated by the Commission.
In light of the importance of human rights in the lives of persons with disabilities, CCD is very interested in assisting the Commission to design and implement its new business model in a manner that will be effective and transformative. It therefore offers a preliminary analysis of some concerns raised by the new business model. It further offers some recommendations on how to develop the model to be more understanding and more responsive to the stubborn and pernicious forms of disability-based discrimination.
A. The Complaint Process
It is helpful to recall the original purpose of human rights commissions when assessing current Commission procedures. The human rights commission adjudication system was created with the idea of establishing the broadest possible approach. It would provide a mechanism for quick, effective action to address human rights violations. The commissions were meant to be accessible to all, with no fee for filing complaints; further, commission legal counsel assumed carriage of complaints that had been substantiated and scheduled for a hearing before a Tribunal, making it unnecessary for complainants to retain their own legal representation. Commissions would also be charged with promotion of human rights principles and values through broad public education initiatives, bolstered by a series of educational remedies that could be ordered by the Tribunals.
In an article prepared for the Canadian Centre for Policy Alternatives, Shelagh Day reviews the fundamental features of human rights commissions when they were first implemented: the quasi-constitutional nature of its legislation, the important public interest aspect to its mandate, the comprehensiveness of its structure, and the remedial focus of the remedies to be ordered by its specialized tribunals, endowed with judicial powers. She further notes: "The hope was that specialized human rights bodies would be able to accomplish things that the courts were not suited for, and had been unwilling to do. The enactment of the codes represented a deepening of the commitment to human rights values in Canada."
1. Screening and Intake
The Commission has implemented a number of steps to streamline its screening and intake process. Before filing an official complaint, a potential complainant is required to fill out an intake form, which describes the nature of the complaint. The form is then reviewed by Commission staff to determine the best method of handling the complaint. With respect to the screening and intake process, CCD has two areas of concern.
a. The Rejection or Rerouting of Complaints
In keeping with recent court decisions, the Commission recognizes that it does not have a monopoly over human rights. Consequently one of the first steps taken by the Commission at the intake stage is to determine if, pursuant to ss. 41(1)(a) and (b), the matter at issue could be handled more effectively through another avenue such as a workplace grievance mechanism or another legislative mechanism. It argues that other redress procedures might offer a quicker, less litigious way of solving a problem. Similarly, it contends that certain specialized legislative bodies may be better placed to deal with particular situations.
The Commission's decision to focus its resources on addressing systemic complaints with broad public impact accords with the aspirations of persons with disabilities. However, the Commission's emphasis on screening out complaints to other avenues of redress does raise some alarm bells. While this approach is supported by the Act, there is concern that if the screening is not conducted by someone with knowledge and sensitivity, important disability rights cases, with significant systemic ramifications may be inadvertently rejected and left unresolved.
For example, all the Interviewees reported that they had to engage in protracted wrangling with the Commission before their matter was taken seriously. Four of the five complaints were eventually accepted as formal complaints. Interestingly, one complaint is currently working its way through the courts and has the potential to establish an important legal precedent with respect to access equal to that of the recent ruling in the VIA Rail case (discussed below).
On its face, the Commission's practice of screening out or referring complaints to other dispute resolution mechanisms may seem reasonable and an efficient use of limited resources. However, a rigorous application of this practice could well mean that significant human rights complaints involving employment discrimination, barriers to national transportation systems, and barriers to a host of tele-communication systems get rerouted to other redress venues. The Commission's screening practice therefore raises two key concerns for CCD.
The first concern stems from the fact that other redress venues may not offer persons with disabilities the same level of access and institutional expertise and support for resolving complaints of discrimination as may be available through the Commission. For example, the redirection of complaints forced CCD to take its complaints against VIA Rail to the Canadian Transportation Agency. Unlike human rights commissions, the Agency does not have the authority to carry the complaint in the name of the public interest and thus has no obligation to cover the costs incurred by complainants who bring forward complaints of discrimination. The complaint made to the Canadian Transportation Agency regarding VIA Rail's failure to make newly purchased rail cars accessible to persons who use wheelchairs nearly bankrupted CCD. Owing to the complexity of the case and the numerous appeals, it was necessary for CCD to retain legal counsel and experts in the field of accessible design of rail cars, which cost several hundreds of thousands of dollars, all of which had to be borne by CCD. CCD was successful in securing a positive ruling from the Supreme Court of Canada which stated that the Agency is mandated and obligated to ensure that the nation's human rights principles are respected by service providers within the federal transportation network. While the VIA Rail case is likely one of the most significant human rights cases involving persons with disabilities, the Commission played no direct role in assisting CCD to achieve this victory; that is, CCD was solely responsible for bearing the burden of litigating and financing the resolution of the complaint. However, in light of the Commission's current emphasis on addressing comprehensive systemic complaints, perhaps today, cases like the Via Rail complaint would not be so quickly redirected.
The second concern flows from the reality that some Tribunals, such as labour arbitrations, may be more focused and more interested in the private resolution of disputes between parties and less inclined to consider the issue at stake within the broad public interest. In other words, private dispute mechanisms do not always have the capacity to recognize and/or deal with the systemic component of a complaint and the corresponding need for a broad-based systemic remedy.
In summary, the Commission now has a two-pronged strategy for gate-keeping. First, it has the discretion to determine which complaints will be accepted and which complaints will be redirected elsewhere. Second, once complaints are accepted, it has the exclusive discretion to decide how such complaints will be handled. This raises the specter of survival of the fittest. In other words, complainants are now required to expend extraordinary efforts to persuade the Commission that their complaint merits consideration by the Commission. This concern is underscored by one of the Interviewees who was told that the human rights process should be seen as a "last resort" effort; a process that should only be invoked after all other options have been exhausted.
Given their current social and economic status, it is unlikely that many persons with disabilities would have the resources, stamina and fortitude displayed by the Interviewees in this report to engage in the bureaucratic sparring that now seems necessary to promote a complaint as being worthy of Commission attention. Nor do most persons with disabilities have the energy, resources or support needed to pursue other avenues of redress which may not offer a publicly funded investigation and resolution process.
In the early days of human rights commissions, the concept of access to justice for complainants alleging discrimination was a central feature of the human rights system. Full and true access was seen to include:
- freedom from financial barriers
- entitlement to appropriate legal support and representation
- the promise of a hearing by expert adjudicators
- who have the power to grant a wide range of remedies, and
- support from a body with the skills, resources, and clout to enforce those remedies.
It is feared that this comprehensive model of human rights promotion and protection is now at risk. Under the Commission's new business model and its intent on efficiency, persons with disabilities may find themselves with less access and less opportunity to seek redress for wrongful acts of discrimination.
b. Some Observations Regarding Initial Contact
The Interviewees in this report advised that, as persons who had just experienced the damaging effects of discrimination, they found the screening and intake process confusing, unwelcoming and bureaucratic. They further advise that this experience was compounded by the perception that intake staff seemed to have little knowledge or understanding about disabilities and the types of discrimination they may encounter. While a cohort of five can hardly be regarded as significant, their comments can be viewed as a warning or caution that first impressions do make a difference. All of the Interviewees unanimously and vociferously denounced their initial encounter with the Commission. Comments included:
The process was "difficult and onerous". "You have to be persistent." "It is difficult to reach someone." "The office and telephone system seemed unwelcoming." (Interviewee #1)
"If there is anything I would say about the Commission, it is difficulties with their front line people: that is, getting through the door to get the complaint filed." (Interviewee #2)
"In my view most of the staff of the Commission has little or no awareness of disability." (Interviewee #3)
"I did not feel understood." "There was no experience with (my type of disability)." "The second time around the process was incredibly difficult." "It was nearly impossible." (Interviewee #4)
"The problem arose in trying to get the complaint accepted." "Submitting a complaint to the head office is no easy task. Let me assure anybody about that." "It took a lot of phone calls to the manager there to get them to actually assign the complaint." "You have to realize that you are dealing with a major bureaucracy." (Interviewee #5)
From a positive perspective, Interviewee #5 did indicate that he had a very good experience when he contacted the Winnipeg office. "The person in Winnipeg was very, very informative and very helpful." "I felt that the person understood the disability—definitely."
Arguably, factors like a complainant being told that her/his complaint does not fit within the jurisdiction of the Act or that she/he does not have sufficient evidence to substantiate a complaint may regard the Commission process as unsatisfactory. Nevertheless, the initial contact that a potential complainant has with the Commission is probably one of the most important points during the complaint process. A complainant who feels listened to, who feels understood, who feels like she/he has been treated with respect and who has been given a thorough explanation of the process and the decisions that will have to be made along the way, is more likely to respond positively to the process.
- That in recognition of the many systemic barriers encountered by persons with disabilities, the Commission only screen out disability-related complaints where it has assured itself that an alternative avenue can provide a solution that is equal to or better than that available under the Act.
- That before a complaint is screened out, the Commission thoroughly consider the systemic ramifications of the complaint and whether an alternative dispute resolution mechanism is properly equipped to deal with such a complaint.
- That the Commission decline to screen out a complaint where other mechanisms would restrict a complainant's access to justice including financial costs, the need for legal representation, the complexity of the administrative procedures and the types of remedies available.
Recommendation #2: That the Commission undertake to educate all intake and front line staff about persons with disabilities and the types of discrimination and barriers they may face, and how such discrimination and barriers may form the basis of a complaint of discrimination.
Recommendation #3: That at the outset, the potential complainant be given complete and accessible information on the complaint process and the various decisions and/or options that she/he may need to consider or make as the process unfolds.
2. The Investigation Process
Once a formal complaint has been signed, the matter is usually assigned to an investigator who gathers the evidence and facts and who provides an objective assessment of the merits of the complaint. The Commission is committed to resolving complaints as quickly and as expeditiously as possible. As a result, a complaint can be referred to mediation or mandatory conciliation at any time during the complaint process.
The concerns expressed by the Interviewees centred primarily on getting the complaint filed. They indicated that they were left on their own to frame their complaint. "No assistance was offered with drafting." "They always seemed very rushed." (Interviewee #1)
Interviewee #2 felt that he received good information on how to draft a complaint, but also felt that he would have benefited from additional help. Because of communication difficulties, Interviewee #2's initial complaint was rejected. Time was then needed to redraft and provide additional information. The complaint was eventually accepted.
Interviewee #3 shared similar experiences. "There was no offer of help made." "Better in the earlier days." "They don't really help you and they don't really help you to understand the issues that they may have with your complaint."
Day & Brodsky describe the investigation process as follows:
"When a complaint is filed with the Commission, it is taken out of the hands of the complainant. Many complainants become witnesses and bystanders with respect to the framing, investigating, disposition and presentation to the Tribunal of their own complaints. This relationship with the Commission is experienced as disempowering."
One suggestion made by Day & Brodsky is to create opportunities to involve organizations that represent disadvantaged groups and that have a stake in the outcome of particular complaints in the dispute resolution process. The involvement of such organizations could be of assistance in two important ways. First, the organization could assist the Commission to identify systemic issues that may arise in a particular complaint, and second, it could assist the Commission to identify the broader systemic remedies required to bring about an effective resolution to the complaint. Additionally, such organizations could represent the broader public interest as interveners at human rights Tribunals to ensure that all policy issues are thoroughly explored and illuminated. The effectiveness of an intervener role has been amply demonstrated by many such organizations which have been granted intervener status in Charter cases.
Currently, there is no formal avenue for involving interested organizations during the investigation process, though it may be possible to participate as interveners at the Tribunal level. Furthermore, the additional involvement of equality-seeking organizations would most likely require resources to enable such organizations to participate fully and effectively. In light of current constraints, it is doubtful that resources for such a project will be available any time soon. Nevertheless, it represents an interesting and innovative idea for ensuring that human rights complaints are as effective and far reaching as possible.
Recommendation #4: While the Commission indicates that, where needed, it offers help to complainants to draft their complaints, it is recommended that this help be offered as a routine part of the intake process when dealing with persons with disabilities.
Recommendation #5: That the Commission explore the idea of involving equality-seeking organizations, including needed resources, to support complainants with disabilities and to assist the Commission to identify the broad systemic issues which may arise from an individual complaint of discrimination.
3. The Mediation Process
The Interviewees gave the mediation process mixed reviews. The process was appreciated because it gave the parties an opportunity to talk about the matter in a face-to-face setting. As Interviewee #3 says: "That is why I like mediation because it forces them to sit and see you." On the other hand, the power imbalance between the parties and the drive to craft a settlement were very troubling to most of the Interviewees.
"In that particular instance I kind of felt that the mediator was just out to get it settled. He was not out for fairness." (Interviewee #2)
"Well the Commission goes there almost insisting on a settlement, so in mediation, you do have the option to walk away but it is a tough thing to do." "There is a lot of pressure to go through mediation. You don't certainly have a choice." "There is a driver and they have the whip." "Everybody else there is getting a salary for sitting at the table. So everybody else has a desire to deal with it as if it is 'Kentucky chicken' and a franchisee and have a business discussion. Well, this isn't business this is quality of life." (Interviewee #3)
"Then you have to realize that the other party has unlimited resources because any federal department that I was dealing with has access to the Department of Justice to do their work." (Interviewee #5)
It is possible that many complainants do not fully understand the process of mediation. Therefore, steps should be taken at the outset of the process to ensure that all parties understand the nature of mediation including the role of the mediator and the role of each of the parties. In addition, it would seem that mechanisms are needed to ensure that there is a perception of fairness and a balance of power.
Recommendation #6: That, when mediation is implemented, the Commission take steps to ensure that the complainant is fully briefed on the process and the roles of the various parties.
Recommendation #7: That the Commission invite the complainant to indicate to it if she/he feels at a disadvantage at any time during the mediation process and that in such a case, the Commission provide the complainant with the resources needed to continue, or, suggest that the process be abandoned if the imbalance cannot be corrected.
B. Overall Satisfaction and Recommended Improvements for the Complaints Process
The overall rating and satisfaction of the complaints process also received mixed reviews. With respect to an overall rating of the complaints process, with '10' being 'outstanding' and '1' being 'very poor', Interviewees responded as follows:
|Interviewee||Rating between 1 and 10 (1 is very poor, 10 is outstanding)||Comments|
|#1||Between 1 and 2|
|#2||Intake rated poor; following process excellent.|
|#3||Between 2 and 3||"My issue is that it is more negative than positive. I never felt welcomed by the Commission."|
In discussing their dissatisfaction the Interviewees made the following comments:
"Did not find the system to be user friendly." "Very structured." "Commission said it was the last resort and that he must negotiate with government." (Interviewee #1)
"The first round is always...'no'. Then you have to make a second round of argument." "Maybe the person is not a person with a disability or understanding of the kinds of issues that there again they are facing." "Unless you have the finances, the resources or the where with all and the energy to bring it to a commission to be judged, it is just not going to happen." (Interviewee #2)
"Most complaints very dissatisfied"; "Most of them did not achieve my objective. Most of them took on a life of their own." "I consider its culture to be one of its biggest problems. The culture is one of processing files-not helping people with quality of life..."; "Then there is the whole issue of simple language, simplified process, and explicit language, recognizing that their role is really to help get the issue on the table and get the thing resolved." "Most people with disabilities will not use Tribunals. And will not use Commissions because they find the process devaluing, degrading, and emotionally stressful because their basic worth as human beings is constantly questioned." (Interviewee #3)
In terms of friendliness—"It is and it isn't." (Interviewee #5)
Three of the Interviewees said that they would not file another complaint. "I wouldn't file another complaint because they were so unfriendly." (Interviewee #1)
"I would not file another complaint because of the difficulty." (Interviewee #4)
"Wouldn't do it again. Would go straight to the courts." (Interviewee #5)
The Interviewees suggested a number of improvements contained in the following recommendation.
Recommendation #8: That the Commission consider the following suggestions made by the Interviewees:
- While it is helpful to have information on the Internet, it should be made more accessible by using plain language. The current language is at too high a level. Educational materials describing the Commission's role and procedures need to be developed using plain language. (Interviewee #1)
- Provide assistance in drafting complaints. (Interviewee #2)
- Incorporate more of a facilitation/negotiation component into the mediation. The Commission needs to be very clear with the parties as to the current state of the law. The process needs to be kept simple. (Interviewee #3)
- The Commission needs to be aware that its behaviour may discourage persons with disabilities from filing complaints. (Interviewee #4)
C. Tribunals and the Promotion of the Public Interest
The Commission indicates that its primary focus is in advancing the public interest. This, it argues, is in keeping with the requirements of the Act. Consequently, although a complaint is referred to a Tribunal for adjudication, the Commission will only participate in the hearing if it believes there is a broad public interest at issue.
The Commission's distinction between an individual interest and the public interest is puzzling. The main purpose of the Act is to promote and safeguard human rights. It is thus hard to imagine how a complaint that involves the promotion and safeguarding of human rights and that requires adjudication by a Tribunal is not in the public interest. As one of the Interviewees says "I have yet to see what in the public interest is different from me it makes me feel like somebody from mars." (Interviewee #3)
It is assumed that what the Commission is attempting to do by focusing specifically on so-called complaints of public interest is to loosen its gate keeper function in terms of complaints going to Tribunal, and at the same time attempting to conserve its legal resources. One of the biggest objections by persons with disabilities to Bill 107, An Act to Amend the Ontario Human Rights Code, which provides direct access to a tribunal, was the fear that they would either have to represent themselves or hire a lawyer to bring their complaints before the tribunal. After much debate and pressure, the Ontario government responded by introducing the Human Rights Legal Support Centre.
A similar legal support centre does not exist at the federal level, and thus complainants abandoned by the Commission are forced to either find their own counsel or cope as best they can in a hearing where the respondent is bound to have far greater access to legal and financial resources. And so, it appears that the Commission's new business model, in the name of promoting the public interest, could actually provide less access to complainants rather than more access.
Recommendation #9: That the Commission interpret the notion of the "public interest" in a large and liberal manner to ensure that the resolution of complaints at the Tribunal level do not fall primarily on the shoulders of individual complainants.
Recommendation #10: That if the Commission continues to abandon complainants of an individual nature, it urge the federal government to establish a human rights legal support centre similar to the centre introduced by the Ontario government to assist complainants with Tribunal hearings.
D. Taking a Pro-Active Stance in Eliminating Disability-Based Discrimination
The Commission's new business model stresses the importance and efficiency of carrying out the purpose of the Act through proactive prevention of discrimination by working with federally- regulated employers and service providers to eliminate systemic barriers before they become the subject of a complaint. The newly established Knowledge Centre offers an excellent opportunity for the Commission to develop policies and plans of action focused on the removal of barriers currently confronting persons with disabilities at the federal level. Such initiatives should be comprehensive in scope and should take into account the principles of equality articulated by human rights legislation, s. 15(1) of the Charter, and leading human rights and equality rights jurisprudence. In this regard, CCD contends that the Commission has a number of tools, arising from recent case law, recent international developments, and its own legislation that it can rely on to develop proactive anti-disability discrimination plans of action.
Set out below are some examples of how such tools could be used to advance the rights of persons with disabilities.
1. The VIA Rail Case and its Pronouncement on Access and the Duty to Accommodate
In December 2000, CCD brought an action against VIA Rail for failing to ensure that newly purchased rail cars met basic accessibility standards. After much legal wrangling, the case was clearly and decisively determined by the Supreme Court of Canada. This determination now makes it abundantly clear that respondents—such as employers and service providers—must now think about the future impact of how they deliver a service or implement an employment rule. While it may not be possible to eliminate every barrier, there is now a clear ruling by the Supreme Court of Canada to prevent new barriers, or at least, not knowingly to perpetuate old ones where preventable. In this way, the Court issued a clear direction that accessibility is expected to increase, not move backwards. Arguably, where there is a policy or plan that does not take full inclusion or accessibility of persons with disabilities into account, it is vulnerable to a human rights complaint.
One of the cornerstones of human rights principles for persons with disabilities is the duty to accommodate. The accommodation advocated by VIA Rail to address the barriers created by its newly purchased but inaccessible rail cars was to transfer passengers with disabilities into a narrow on-board wheelchair. Because in most cases such a wheelchair could not be operated independently by a person with a disability, VIA Rail contended that its staff would assist such passengers with meals, washroom facilities and moving about the train. The Court emphatically rejected this version of accommodation and stated that it is no longer acceptable to maintain discriminatory standards supplemented by accommodation for those who cannot meet the discriminatory standard. That is, standards must now be as inclusive as possible. The Court supported an accommodation solution that would enable passengers to access the cars using their own personal wheelchairs. In support of this view the Court wrote:
"The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations."
Recommendation #11: That the Commission adopt the findings of the Supreme Court of Canada in the VIA Rail decision into its discrimination prevention strategies. Specifically, it is recommended that the Commission adopt a plan of action based on the principles articulated in the VIA Rail decision to work proactively with employers and service-providers (particularly those in the transportation industry) to remove existing disability-related barriers and to prevent the creation of new barriers.
2. The International Convention on the Rights of Persons with Disabilities
In March 2007, the Canadian government decided to act as a signatory to the International Convention on the Rights of Persons with Disabilities (hereinafter referred to as the "Convention". It is assumed that Canada will continue with this initiative by ratifying the Convention in the near future.
Article 33.2 of the Convention tasks national institutions, such as the Commission, with the role of "promoting, protecting and monitoring the implementation" of the Convention at the domestic level.
At the signing ceremony, the Commission speaking as the Chair of the International Coordinating Committee of National Human Rights Institutions (ICC) pledged that it and the other members of the ICC would take the steps necessary to give life to the Convention.
This is an encouraging and promising announcement for persons with disabilities living in Canada. Unlike the Canadian Human Rights Act, the Convention spells out a wide range of specific rights to which persons with disabilities are entitled including the right to justice, the right to inclusive education, the right to live and enjoy mobility in the community, the right to adequate health care and the right to employment. Given that much disability-based discrimination springs from poverty and social and economic barriers, Article 28 of the Convention, which specifies that persons with disabilities are entitled to an adequate standard of living and social protection, is particularly interesting and relevant.
Article 28 reads as follows:
1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.
2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:
(a) To ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs;
(b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;
(c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care;
(d) To ensure access by persons with disabilities to public housing programmes;
(e) To ensure equal access by persons with disabilities to retirement benefits and programmes.
Recommendation #12: That even though the Convention must still be ratified by Canadian governments to be valid in Canada, the Commission should assume that this will eventually take place and should therefore incorporate, without delay, the requirements of the Convention into its discrimination prevention policy initiatives and plans of action.
3. Existing Tools Available Pursuant to the Act
Although seldom used, the Act does contain a number of provisions that enable the Commission to take proactive measures where needed. In keeping with the Commission's emphasis on prevention and knowledge development, CCD contends that the following recommendations accord with the spirit and provisions of the Act and could be used to advance the rights of persons with disabilities.
Recommendation #13: That the Commission consult with persons with disabilities to identify existing barriers at the federal level that should be prioritized for removal.
Recommendation #14: That following the consultations, the Commission formulate a comprehensive plan of action for reducing and removing the prioritized barriers. Such plans of action should include the development of policy statements, educational programs, and guidelines and standards for the prevention of disability-based discrimination. Such plans of action should be presented to national organizations like CCD for consultation and discussion.
Recommendation #15: That all policy statements, guidelines and standards promote a substantive vision of equality rights for persons with disabilities which is based on the requirements of human rights legislation, s. 15(1) of the Charter, human rights jurisprudence and the international Convention.
Recommendation #16: That the Commission actively and vigorously promote the development of barrier removal plans to respondents within its jurisdiction.
Recommendation #17: That the Commission develop a strategy, including evidence of need, to persuade the Governor in Council to introduce regulations prescribing standards for access to goods, services and facilities pursuant to s. 24 of the Act.
Recommendation #18: That where meaningful progress is not made in the removal of prioritized barriers within a reasonable time frame, the Commission exercise its authority pursuant to ss. 40(3) of the Act to initiate a complaint of discrimination against recalcitrant respondents.
The Canadian Human Rights Commission represents a very significant institution in the lives of persons with disabilities. It is important both because of its ability to redress harmful acts of discrimination and because of its ability to take proactive measures to develop and promote human rights as a central feature of Canadian public policy. The cancellation of the Court Challenges Program has no doubt elevated the importance of the Commission for most persons with disabilities who experience discrimination at the federal level, as now it has become the primary avenue for seeking access to justice.
There are many aspects of the Commission's new business model which, if pursued comprehensively and aggressively, could provide increased protection for the rights of persons with disabilities. But, the success of this model depends on the backing of strong political leadership, the allocation of adequate resources and a Commission and staff that is knowledgeable and genuinely committed to eliminating disability-based discrimination. It is hoped that this report and its recommendations will promote an enhanced dialogue with political leaders and the Commission on how to create a society which is welcoming and universally accessible to all persons with disabilities.
Interview Guide for Complainants with Disabilities
Filing a Complaint
- Why did you choose to file a human rights complaint?
- What was the nature of your complaint?
- Where did you obtain information about the CHRC and the complaint process?
- Describe your first contact with the CHRC?
- Did the contact person at the CHRC understand the nature of your complaint? Explain.
The Complaint Process
- Did you receive information about filing a complaint and the complaint process itself? Explain
- Did you receive information about complaint options? vWere you provided with assistance in filing your complaint?
- What type of assistance did you receive?
- What type of assistance would have been helpful to you?
- Would you be able to bring a complaint forward on your own?
- How long did it take to have your complaint investigated?
- Did the CHRC explain the process?
- How was your complaint dealt with; mediation, adjudication? Explain
- What was the outcome of your complaint?
- From start to finish how long did the entire process take?
- Were you satisfied with the results? Explain
- What would have made the process better for you?
- What improvements could be made?
- Are you aware of the changes made by the CHRC to deal with complaints of discrimination? If yes, what do you think about the changes?
- Taking the Lead: Council of Canadians with Disabilities Proposals for Amending the Canadian Human Rights Act, Submission to Canadian Human Rights Act Review Panel, prepared for CCD by Lana Kerzner and David Baker, October 1999 at p. 2, online: Council of Canadians with Disabilities [http://www.ccdonline.ca/law-reform/submissions/humrightsactreview.htm] accessed 31 July 2007.
- Canadian Human Rights Act, 1976-77, c. 33.
- Brief to the Special Joint Parliamentary Committee on the Constitution, Coalition of Provincial Organizations of the Handicapped, November 25, 1980.
- 1976-77, c. 33; 1980-81-82-83, c. 143.
- Gail Fawcett, Living with a Disability in Canada: An Economic Portrait 1996, online: Human Resources and Social Development Canada[http://www.hrsdc.gc.ca/cgi-bin/hrsdc-rhdsc/print/print.asp?Page_Url=/en/hip/odi/documents/livingWithDisability/00_toc.shtml] accessed 31 July 2007.
- Michael J. Prince, "Canadian Disability Policy: Still a Hit-and-Miss Affair" (2004) 29(1) Canadian Journal of Sociology 59-82.
- Michael Mendelson, Ken Battle, Ernie Lightman—Sherri Torjman, Design of a Basic Income (BI) Program in Canada, prepared for the Council of Canadians with Disabilities by the Caledon Institute of Social Policy (work in progress).
- Advancing the Inclusion of People with Disabilities 2006, online: Human Resources and Social Development Canada [http://www.hrsdc.gc.ca/en/hip/odi/documents/advancingInclusion06/index.shtml] at p. 56 accessed 31 July 2007.
- Annual Report 2001, online: Canadian Human Rights Commission [http://www.chrc-ccdp.ca/publications/2001_ar/default-en.asp] accessed 31 July 2007.
- Annual Report 2002, online: Canadian Human Rights Commission [http://www.chrc-ccdp.ca/publications/ar2002-en.asp%3E%20accessed%2031%20July%202007] accessed 31 July 2007.
- Innovative Change Management: An Alternative to Legislative Change, online: Canadian Human Rights Commission [http://www.chrc-ccdp.ca/about/icm_page1_gci-en.asp] accessed 31 July 2007.
- Supra note 10.
- Supra note 14.
- Bhinder v. Canadian National Railway Co.,  2 S.C.R. 56; 7 C.H.R.R. D/3093 (S.C.C.).
- Action Travail des Femmes v. Canadian National Railway Company,  1 S.C.R. 1114.
- Sandra A. Goundry—Yvonne Peters, Litigating for Disability Equality Rights: The Promises and the Pitfalls. Prepared for the Canadian Disability Rights Council, Winnipeg (1994). (Unpublished)
- Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd.,  2 S.C.R. 536; 7 C.H.R.R. D/3102.
- Honourable GÃ©rard La Forest (Chair), Professor William Black, Me. RenÃ©e Dupuis—Professor Harish C. Jain, Promoting Equality: A New Vision, A Review of the Canadian Human Rights Act, 2000, online: Department of Justice Canada [http://www.justice.gc.ca/chra/en/toc.html] accessed 31 July 2007.
- Winnipeg School Division No.1 v. Craton,  2 S.C.R. 150.
- Supra note 14.
- See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,  2 S.C.R. 157; S.C.C. 42 (CanLII) and Tranchemontagne v. Ontario (Director, Disability Support Program)  1 S.C.R. 513; S.C.C. 14 (CanLII).
- Canada Transportation Act S.C. 1996, c. 10.
- Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22.
- Chart reprinted from the Canadian Human Rights Commission - 2006 Annual Report, online: Canadian Human Rights Commission [http://www.chrc-ccdp.ca/publications/ar_2006_ra/page13-en.asp] accessed 31 July 2007.
- Shelagh Day and Gwen Brodsky, Improving Canada's Human Rights Machinery, A Report Prepared for The Canadian Human Rights Act Review Panel (October 1999).
- Shelagh Day, Rolling Back Human Rights in BC: An Assessment of Bill 53—the Government of British Columbia's Draft Human Rights Legislation. online Canadian Centre for Policy Alternatives Policy Brief [http://policyalternatives.ca/documents/BC_Office_Pubs/human_rights_code_brief.pdf], September 2002, accessed 31 July 2007.
- See Other Redress Procedures, online: Canadian Human Rights Commission [http://www.chrc-ccdp.ca/publications/procedures-en.asp?highlight=1] accessed 31 July 2007.
- Supra note 1.
- Council of Canadians with Disabilities v. Via Rail Canada Inc.,  S.C.C. 15.
- The CHRC sought and received permission to intervene in the Supreme Court of Canada hearing which provided substantive support to CCD but did nothing to lessen CCD's litigation and financial burden as the complainant.
- Supra note 28.
- Bill 107 Action Kit, online: Disabled Women's Network Ontario (DAWN Ontario) [http://dawn.thot.net/bill-107-action-kit.html] accessed 31 July 2007.
- Supra note 33 at Â¶187.
- Ibid. at Â¶161.
- Ibid. at Â¶162. Online: United Nations [http://www.un.org/disabilities/convention/index.shtml] accessed 31 July 2007.
- Press Release - New Canadian Rights Chair Urges Action on Disability Convention, online: Canadian Human Rights Commission—Media Room [http://www.chrc-ccdp.ca/media_room/news_releases-en.asp?id=414&content_type=2] accessed 31 July 2007.
Jim Derksen views inaccessible York Street Steps in Ottawa. CCD intervened in the Brown Case, which challenged an inadequate accommodation developed for the Steps.
The Latimer case directly concerned the rights of persons with disabilities. Mr. Latimer's view was that a parent has the right to kill a child with a disability if that parent decides the child's quality of life no longer warrants its continuation. CCD explained to the court and to the public how that view threatens the lives of people with disabilities and is deeply offensive to fundamental constitutional values. Learn more.