Speaking Out On Human Rights

By Catherine Frazee

The following is excerpted from a panel presentation on October 17 at the 1993 Rehabilitation International Conference, "Partners for Independence: Models that Work." Catherine L. Frazee, Vice-Chair of the Workers’ Compensation Appeals Tribunal, made these remarks on the following topic:

How has legislation promoted the economic integration of persons with disabilities?

My focus for this morning’s panel will be human rights legislation in Canada. Every Canadian province and territory has a Human Rights Code which prohibits discriminatory practices in employment, provision of services, housing, etc. A similar statute at the federal level governs the activities of certain national institutions. While there are differences in the specific provisions of each distinct piece of legislation, I think it can safely be generalized that human rights codes in Canada, like various anti-discrimination statutes in America, provide a legal guarantee that no person shall be denied access to employment, housing or other services because she or he happens to have a disability.

This will not be a formal "paper," rooted in empirical research or scholarly analysis, but rather an exercise in "thinking out loud" about the extent to which human rights legislation has and hasn’t, can and cannot advance the economic integration of persons with disabilities. I will begin with a brief account of two human rights cases: the very first case I ever heard of and the most recent case I have been involved with. For reasons that we may wish to discuss later, neither of these cases involves an employment issue; both cases instead involve the economic integration of persons with disabilities not as members of the paid work force, but as consumers of services and marketplace products.

The two cases I will be referring to are Huck v. Canadian Odeon Theatres Ltd., which was decided by a Board of Inquiry appointed under the Saskatchewan Human Rights Code and later upheld on appeal by the Saskatchewan Court of Appeal in 1985, and Elliott v. Epp Centres Inc., which was decided by a Board of Inquiry appointed under the Ontario Human Rights Code in June of this year.

Some of you will be familiar with the case of Huck v. Canadian Odeon Theatres Ltd. The complainant in this case, Michael Huck, was a wheelchair user who attended a local movie cinema and was offered the choice of being transferred from his electric wheelchair into a theatre seat or remaining seated in his own chair and watching the movie from in front of the first row of seats or behind the last row of seats. Mr. Huck’s complaint to the Human Rights Commission that this amounted to discriminatory treatment became the leading Canadian case in the area of disability and accommodation. The Board of Inquiry ruled that the theatre’s failure to provide Mr. Huck with seating choices comparable to those provided for its able-bodied patrons amounted to a violation of the Human Rights Code. The respondent, Canadian Odeon Theatres Ltd., was ordered to retrofit the facility to provide wheelchair users with more reasonable seating choices.

When I first joined the Ontario Human Rights Commission in 1985, I was pretty much out of my depth in terms of legal knowledge, political awareness and advocacy experience. My first package of reading material prior to my first formal Commission meeting was overwhelming in volume and complexity. The text of the Huck decision was contained within that daunting package, all of the other contents of which I have long since forgotten. Huck, however, unlike everything else that was in that package, I understood. Huck spoke to me. Huck spoke to me, not because I understood its significance as the leading Canadian decision in the area of disability and accommodation, but because, like Michael Huck, I enjoy film. Like Michael Huck, I would rather not sit in the front row of a movie theatre. Like Michael Huck, I have heard more times than I care to remember the embarrassed and solicitous explanations that my presence in the aisle of the theatre constitutes a fire hazard.

So when I read the Huck decision in 1985 I had a moment of personal awakening. I knew that I had come upon something very, very important. Perhaps what I was feeling was a surge of power: this remarkable legal instrument of a human rights code could translate into a life of meaningful choices for people like Michael Huck and myself. We could sit where we chose in theatres, and by extension, move where we chose in the world. Access was our right, not our occasional good luck or a kindness bestowed by a generous-spirited other.

Now let’s consider the second case. The complainant in this case, Marjorie Elliott, is another wheelchair user who was unable to find a parking space suitable for her specially equipped van when she visited a local shopping mall. Ms. Elliott filed a complaint with the Ontario Human Rights Commission, alleging that the failure of the mall management to designate an accessible parking space infringed on her right to equal treatment without discrimination. The Board of Inquiry’s recent ruling orders that accessible parking be provided and that the complainant be awarded $1,000 in compensation.

Eight years after Huck, when I first read the Elliott decision, I was delighted for the complainant, who is an acquaintance, but my own personal response was far less impassioned. After all, it seemed to me to be "trite law" that accessible public facilities are required under Canadian human rights legislation. To my great surprise, however, the media response to the Elliott decision was overwhelming. The Toronto Globe and Mail described Elliott as "a landmark decision," alerting businesses across the province to the "threat of legal challenges" for failure to provide adequate access for persons with disabilities. A spokesperson for the Canadian Federation of Independent Businesses described the ruling as "draconian" in a comment to The Toronto Sun. My former colleagues at the Ontario Human Rights Commission were run off their feet with calls and inquiries.

I now believe that the press was not so far off the mark in its reporting of the Elliott decision and that my own response was, sad to say, naive. Elliott is big news. Of course, the law upon which Elliott is founded is not new in Ontario, it has been in place since 1989 and in other Canadian jurisdictions such as Saskatchewan it was well established in 1985. But Elliott is the first case in Ontario to be decided under that law.

The fact of the matter is that access is a right, and has been for some time in Canada. Access, however, is not a reality. The span of time between the Huck and the Elliott decisions, and the great furor over the Elliott decision, stand as dramatic evidence that a law is only as good as its enforcement.

The problems with enforcement of human rights legislation are many and complex. Among the more obvious are:
- Our human rights protections are only invoked when complaints are filed and processed. Until there is a complaint, there is no sanction against discrimination; even the most blatant violation of human rights law will continue until challenged by a formal complaint. Eight years after the Huck decision, there are as many inaccessible movie theatres in our country as there are accessible ones.
- Human Rights Commissions charged with the enforcement responsibility for these laws are, without exception, under-resourced to handle the ever-growing number of complaints in their caseload. Backlogs and delays have reached enormous proportions; Marjorie Elliott filed her complaint almost five years before its ultimate resolution.
- The significant burden of initiating and following through with a human rights complaint rests largely upon the shoulders of the individual whose rights are in jeopardy. While there need be no financial expense incurred, the stress and emotional costs can be considerable.
- Human rights complaints within a commission’s caseload are generally handled on a "first-come, first-served" basis. While this is perhaps as it must be to ensure fairness to all parties waiting their turn, the results tend to support the development of an eclectic or idiosyncratic jurisprudence. As a strategic choice, would persons with disabilities in Ontario have elected to highlight the need for designated parking as the cornerstone issue for access advocacy? Would persons with disabilities in Canada have elected to advance the two precedent-setting cases of the decade in the context of access to recreational activity, rather than addressing issues of access to employment, education, transportation, health care, housing, etc.?

The nature of minority disadvantage is far more complex and multi-dimensional than the comparatively straightforward issues of prejudice and bigotry which human rights statutes were designed to address. Failure to hire a qualified candidate for reasons which pertain to his or her disability is generally prohibited. But failure to cultivate a pool of qualified, job-ready candidates with disabilities -- the systemic root of our economic marginalization --has an offense which human rights legislation is largely inadequate to remedy.

Our emerging awareness of the limitations of human rights legislation -- our "loss of innocence," as it were, between the time of the Huck decision and the present -- has triggered a number of new strategies and approaches, the most effective of which engage stakeholders with disabilities in partnership with human rights commissions. Two recent cases in Ontario serve to illustrate how the Human Rights Code can be used to achieve results beyond some of the limitations outlined above.

The first example involves a single complaint filed in 1990 by an individual with a disability seeking physical access to a rural Ontario courthouse. He had been charged with failure to wear a seat belt and in order to defend himself in court, had had to haul himself up three flights of stairs to reach the assigned courtroom. Two provincial ministries, the Ministry of the Attorney-General and the Ministry of Government Services, were the named respondents in this context. The Human Rights Commission, recognizing the potential for a broad-based remedy, assigned senior compliance and legal staff to initiate settlement discussions within these ministries. The respondents, doubtless influenced by political factors of the time, cooperated fully in negotiating terms of settlement.

Within several months, the parties had entered into a binding settlement wherein the responsible ministries had committed to a timetable for making leased and owned courthouses in the province accessible to persons with sensory mobility impairments. In addition, for the interim period until completion of this plan, an integrated toll-free hotline was established to facilitate access to information about courthouse facilities and to coordinate alternate venue requests. An advisory committee which included representatives from consumer/advocacy organizations contributed to the development of both the interim strategy and the necessary staff training, and actively involved themselves in the media launch of the entire program.

The "courthouse initiative" yielded results far in excess of a traditional human rights complaint:
- The ultimate settlement addressed not only the requirements of the individual complainant in his individual circumstances, but extended to all provincial courthouses and recognized the various access requirements of persons with sensory and mobility impairments.
- The mediated resolution took less than one year to achieve, as there was no need in this case for extensive investigation or preparation for litigation.
- The interests of all persons directly and potentially affected by the outcome of this case were represented at the design table as the "remedy" was being fashioned.
- The respondents enjoyed the public positioning as responsible "champions of democracy," rather than as human rights violators.
- The Commission achieved a high-impact remedy with a minimal investment of resources, and actually avoided a possible proliferation of similar, individual complaints.

A second case example involved the Ontario Human Rights Commission itself initiating a complaint on behalf of the community of persons with disabilities in Ontario. The Commission’s initiatory powers were invoked following extensive consultations with the disability community to identify priorities for strategic human rights enforcement. These consultations identified multiple barriers in the domain of higher education impeding the ultimate career and economic advancement of persons with disabilities.

In late 1990, the Commission initiated a complaint against Trent University in Peterborough, naming both the individual university and the provincial Ministry of Colleges and Universities as respondents to the complaint.

The complaint delineated an impressive listing of all of the barriers encountered at the university by people with disabilities, including:
- inaccessible buildings on campus;
- unavailability of printed material in alternate formats;
- lack of flexibility in examination procedures;
- inadequate accessible transportation and housing facilities;
- failure to provide attendant care services; and
- difficulties in accessing food service during student break periods.

Activists within the disability community ensured that the initiation of this complaint received extensive publicity province-wide. While it remains to be seen what the precise outcome of this initiative will be (as the Commission is still attempting to resolve the complaint without resort to litigation), there is good reason for optimism. Universities around the province have already demonstrated an increased emphasis on access in terms of both policy and programming, and the provincial government appears to be moving toward an "education equity" initiative.

Huck and Elliott were critical stepping stones on the path toward equality and economic integration for persons with disabilities in Canada. They established clear and precedential legal authority for the principle that the special needs of persons with disabilities must be accommodated and that the duty to accommodate extends well beyond the de minimus standard found in earlier American jurisprudence. The time has come, however, to move beyond these cases and apply the law selectively, strategically and realistically. Human rights commissions must dedicate a portion of their scarce resources to initiatives which have the potential to yield high-impact results. Under present legislative schemes, individual complaint backlogs can only continue to grow; nevertheless, commissions must resist the sometimes enormous pressure to function wholly in reaction to a case backlog. Proactive, strategic enforcement of human rights legislation is effective. When commissions partner with consumers to identify key issues and target real social forces, we begin to realize the full potential of the powerful legal tools at our disposal.
(Catherine L. Frazee is the former chair of the Ontario Human Rights Commission.)