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 an alyzes the legal la ndscape for litigating the subst antive

equality rights of people with disabilities in Canada since the t wo 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 r ights

legislation would take adverse ef‌fects discrimi nation seriously and that

the duty to accommodate would engage with system ic obstacles to equal-

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

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

minimalist version of accommodation, by narrow ing the def‌inition of dis-

criminat ion and returning to an emphasis on stereotype, applyi ng formal-

istic versions of comparator group analysis that defeat legitimate claims

and distort accommodation a nalysis, and adopting too n arrow def‌initions

of services.

Respondent push back has created new knots in t he jurisprudence,

which the authors describe and attempt to unt angle. 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 serv ices.2 In the twenty-f‌irst centu ry,

especially in l ight of Canada’s recent ratif‌ication of the Convention on the

Rights of Persons with Disabilities, adjudicators and governments should be

striving to move us, wit h 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.