Confrontational Canadian system makes people with disabilities fight for their human rights in court
It took Jeffery Moore 20 years to get special educational funding that he needed in elementary school.
By the time his case was decided by the Supreme Court of Canada (Moore v. British Columbia (Education), 2012 SCC 61), Jeffery graduated high school and was employed as a plumber.
Moore was one of the lucky few whose parents could mortgage their home and endure a 20 year legal battle against the Canadian legal system.
Justice delayed means justice denied is the “legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.” (Wikipedia)
If it takes 20 years to arrange educational funding for people with disabilities that qualifies as justice denied.
If the person with the disability, or their guardians, cannot afford a lawyer, they have very little hope of being treated fairly except when businesses or authorities choose to allow their rights.
Canada versus the United States
Canada’s system of justice for people with disabilities is based on constitutional rights in the Charter of Rights and Freedoms and the various Provincial Human Rights Commissions.
In the United States, all people living with disabilities are protected by extensive laws and regulations include the Federal Americans With Disabilities Act, Individuals with Disabilities Education Act, Fair Housing Act, Rehabilitation Act, Voting Accessibility for Elderly and Handicapped Act, Civil Rights of Institutionalized Persons Act and Architectural Barriers Act.
While Americans with disabilities can hire their own lawyers and sue, the Federal EEOC or Equal Employment Opportunity Commission will investigate, negotiate and prosecute cases on behalf of Americans with disabilities. During 2011, the EEOC successfully resolved 10,800 cases of disability discrimination under the ADA.
With the enforcement arm of the EEOC, Americans with disabilities have fought discrimination by corporations like Sony, RiteAid, Texas, Wendy’s, and the University of Maryland.
Relatively few cases in Canada get settled in favor of Canadians with disabilities.
Neither the Canadian Federal or Provincial governments enforce human rights for people with disabilities. A person who feels their rights have been infringed either at work, at school, in public services, in access to premises or in their trade or professional organization has to launch their own legal complaint.
Courts and human rights commissions force Canadians with a disability to clear the legal hurdle of establishing 1) they are disabled, 2) they have been treated adversely or had an adverse effect, and 3) they can prove a connection between the first two factors.
“To demonstrate prima facie discrimination under s. 8,” wrote Justice Abella in Moore.., “complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact with respect to a service customarily available to the public; and that the protected characteristic was a factor in the adverse impact.”
“Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.”
While cases may seem on the surface obvious discrimination, proving that from a legal point-of-view can be frustratingly difficult. Many cases of discrimination get tossed before they go to this stage.
The other side of the discrimination complaint will likely be a government agency or company that can hire expensive lawyers. Their legal fees are paid totally or partly by taxpayers, creating a disadvantage for the disabled.
The Pinto report on Ontario’s Human Rights Commission found that more than 50% of applicants, including those with disabilities, “are self-represented at the Tribunal whereas respondents are almost always represented.”
How many people living with disabilities have the money to hire a lawyer for a long disability lawsuit? The Moore’s won at the Province of BC Human Rights Tribunal only to have the Province fight back with appeal after appeal, almost 20 years of court battles.
In the end, the battle was a David and Goliath fight against the Attorney General of Ontario, British Columbia Teachers’ Federation with intervention by 14 other organizations.
Disability complaints are rejected in the United States but not at the same rate as Canada. We don’t have pan-Canadian statistics since each province has its own jurisdiction. In the US, the EEOC rejects about 55% of complaints filed, lower than Canada were less than 10% of complaints get to an official hearing.
BC and Ontario are attempting reforms of the Human Rights process but change is slow to arrive for Canadians with disabilities as long as the deck is stacked against them.
For the latest report on Ontario’s reform, please see the Pinto Human Rights Report.