Litigating to Advance the Substantive Equality Rights of People with Disabilities

• Author: Gwen Brodsky, Shelagh Day, and Yvonne Peters
• Profession: Director of the Poverty and Human Rights Centre/Chair of the Human Rights Committee, Canadian Feminist Alliance for International Action (FAFIA)/Chairperson, Board of Commissioners, Manitoba Human Rights Commission
• Pages: 223-251

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chapter 7

LITIGATING TO ADVANCE

THE SUBSTANTIVE EQUALITY RIGHTS OF

PEOPLE WITH DISABILITIES

Gwen Brodsky,* shelaGh day,† and yVonne peters‡

A. INTRODUCTION

This chapter analyzes the legal landscape for litigating the substantive

equality rights of people with disabilities in Canada since the two land-

mark human rig hts decisions of the Supreme Court of Canada, Meiorin a nd

Grismer.1

* Gwen Brodsky, Director of t he Poverty and Human R ights Centre; Distin guished

Visiting Schol ar, Faculty of Law, University of Br itish Columbia and Resea rch

Partner in t he SSHRC-CURA Proj ect “Reconceiving Huma n Rights Practice ,” online:

www.socialrightscura.ca.

† Shelagh Day, Chai r of the Human Rights Com mittee, Canad ian Feminist Al liance

for Internation al Action (FAFIA); Di rector of the Poverty and Hu man Rights Centre

and Research Pa rtner in the SSHRC-C URA Project “Reconcei ving Human Right s

Practice,” online: www.socialrightscura.ca.

‡ Yvonne Peters, Chair person, Board of Commi ssioners, Manitoba Hum an Rights

Commission; Co -Principal Invest igator for the SSHRC-CUR A Project “Disabli ng Pov-

erty/Enabl ing Citizenship” and Res earch Collaborator in t he SSHRC-CURA Proj ect

“Reconceiving Hu man Rights Prac tice,” online: www.soc ialrightscu ra.ca.

1 A n earlier version of this ch apter — “Accommodation in the 21st Cent ury” (March

2012), online: Can adian Human R ights Commission ww w.chrc-ccdp.gc.ca — was

referred to by severa l interveners in the appea l in the Supreme Court of Ca nada of

British Columbia (Minist ry of Education) v Moore, 2010 BCCA 478, af‌f ’g 2008 BCSC 264,

leave to appeal to SCC g ranted, 34040 (30 June 2011) [Moore BCCA]. It wa s cited with

approval by the Cour t in its decision in Moore v Br itish Columbia (Education), 2012 SCC

61 at para 28 [Moore SCC].

224► gwen brodsky, shelagh day, and yvonne peters

Together, Meiorin and Grismer of‌fered the promise that human rights

legislation would take adverse ef‌fects discrimination seriously and that

the duty to accommodate would engage with systemic obstacles to equal-

ity. However, this promise has been under attack. Post-Meiorin and Grismer

caselaw reveals dist urbing trends. Ef‌forts have been made to return us to a

minimalist version of accommodation, by narrowing the def‌inition of dis-

crimination and returning to an emphasis on stereotype, applying formal-

istic versions of comparator group analysis that defeat legitimate claims

and distort accommodation analysis, and adopting too narrow def‌initions

of services.

Respondent push back has created new knots in the jurisprudence,

which the authors describe and attempt to untangle. The Supreme Court of

Canada had a n opportunity when it heard the appeal in Moore v British Col-

umbia (Ministry of Education) to renew its recognition that the ful f‌illment of

the rights of persons with d isabilities requires far-reaching, deliberate, and

systemic change to workplaces and services.2 In the twenty-f‌irst century,

especially in light of Canada’s recent ratif‌ication of the Convention on the

Rights of Persons with Disabilities, adjudicators and governments should be

striving to move us, with all speed, towards the goal of full inclusion. In

Moore, the Supreme Court of Canada took some important steps towards

untangling the jurisprudence and provided some much-needed direction

for achievi ng full inclus ion.3

2 At issue in Mo ore SCC, ibid, is a claim th at the BC Ministr y of Education and North

Vancouver School Distr ict No 44 discri minated again st Jef‌frey Patrick Moore and

other students w ith severe learning d isabilities by fai ling to accommodate thei r needs

in the public school s ystem. While at elementa ry school, Jef‌frey Moore w as diagnosed

as having a se vere learning disa bility, in the form of dyslexia , which interfered with

his abilit y to learn to read and to comprehend word s. In the wake of fund ing cuts

by the province for educa tion, the school board closed t he facility that prov ided

the intensive remed iation required by Jef‌fre y and other students with dy slexia. On

the advice of dis trict ocials, Je f‌frey’s parents removed him f rom the public school

system and, at sig nif‌icant persona l expense, sent him to pr ivate schools that provide

special a ssistance to student s with severe learni ng disabilities. T he Moores alleged

that the min istry and the d istrict discr iminated agai nst Jef‌frey Moore indiv idually

and that they a lso discrim inated on a systemic bas is against student s with severe

learning d isabilities. T he claim was successf ul before the BC Human R ights Tribunal,

2005 BCHRT 580. But the wel l-reasoned judgment of the tr ibunal was overt urned

on judicial rev iew, based on the BC Supreme Court’s compa rator group analysis a nd

approach to def‌inin g the service in issue . On further appea l, a majority of the Brit ish

Columbia Court of A ppeal also ru led against the compla inant. Justice Row les dissented.

3 Moore SCC , above note 1.