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September 6, 2018

770 Days later.........

A Board of Inquiry under the Nova Scotia Human Rights Act today ordered the province to enforce the regulation requiring restaurants to have “washroom facilities for the public available in a convenient location”, requiring those washroom facilities to be accessible to wheelchair users.  Click here for the decision.

The order came in response to a complaint of discrimination by Warren Reed, Ben Marston, Paul Vienneau, Jeremy MacDonald, and Kelly McKenna, all of whom use wheelchairs. The complainants issued the following statement in response to the ruling:

We are very pleased. Today's decision on our Human rights complaint, filed 770 days ago, affords us the same health protection as other Nova Scotians, and better protects all Nova Scotians from food-borne illness.

In her lengthy decision, Board of Inquiry Chair Gail Gatchalian found that the food safety regime has discriminated against wheelchair users. She rejected each of the many arguments put forward by the province.

Her decision complements an earlier ruling in the case by Supreme Court Justice Frank Edwards, who rejected the Human Rights Commission’s longstanding practice of refusing to accept most of the complaints it receives. He ruled that the Commission must consider all complaints.

We are especially pleased that the Board of Inquiry cited Section 10 of the Human Rights Act, opening the doors to challenges of the many government regulations that are enforced in a discriminatory fashion:

136. Subsection 10(1) of the Human Rights Act provides that regulations that are discriminatory on their face are void and of no legal effect:

10 (1) Where, in a regulation made pursuant to an enactment, there is a reference to a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5 that appears to restrict the rights or privileges of an individual or class of individuals to whom the reference applies/ the reference and all parts of the regulation dependent on the reference are void and of no legal effect.

137. If s.20(l) of the Food Safety Regulations were amended to state that food establishments need not have a washroom that is accessible to wheelchair users, it would have the same effect as the practice of the Province being challenged in this case, and would run afoul of s.l0(l) of the Human Rights Act.

In terms of remedies, the decision offers this:

192. Some food establishments may be able to provide accessible washrooms for the public. Some may not be able to do so without experiencing undue financial hardship. Some may need time to comply. This does not justify the Respondent's approach, which is that no accommodation is necessary.

We completely understand that in a business with razor-thin profits, the provision of washroom facilities my be a hardship.

Let's be clear: the province has failed in its enforcement duties and must make good in a responsible manner. Subsidized loans, tax credits, and differential property assessments are some of the many ways the province can and should help.

The province let this injustice happen and the province should find the solution. 


We are immensely indebted to the talent and forthrightness of our pro-bono attorney, David Fraser of McInnes Cooper.  

Ellsworth Campbell of the Centers for Disease Control in Atlanta provided the scientific support to counter the Chief Medical Officer's contention that public health is subservient to the building code.

Despite rejecting our complaint twice and losing an appeal in the Supreme Court of Nova Scotia, the Human Rights Commission chose to remain officially neutral.

September 2, 2018

Grits in Charleston just aren't the same as Grits in Halifax

Thanks to Elizabeth Portman of the N.W.T. for pointing to this very timely article.

People with disabilities are awaiting a decision on the equitable enforcement of public health regulations in Nova Scotia.  While the Charleston article has a slightly different slant, there are some commonalities with the situation in Halifax:

With the Charleston area graying faster than the rest of the country, thanks in part to the city’s repeated appearances on lists of “Best Places to Retire” published by Kiplinger, Forbes and U.S. News, mobility experts say it won’t be long before a significant portion of the population will need a cane, walker, wheelchair or other assistive device to go out on the town. And in a city lauded by those same magazines for “well-preserved antebellum architecture” and “cobblestone streets,” that could present a problem.

In a low-margin business like the restaurant industry, it’s not hard for an owner to claim there’s no money in the budget for reconfiguring booths or installing ramps. 
(In Nova Scotia, the government makes more on your meal in HST than the restaurant does in profit)

...members of the city’s Committee on Disability Issues are trying to encourage more open discussion of what it takes to make everyone feel welcome in a restaurant. They want the hospitality community to understand that seemingly arcane guidelines dictating the height of sinks and width of corridors determine whether they’ll order a second drink or just nurse one, because the bathroom is essentially off-limits to them.

While diners who walk without assistance might zero in on stairs as the main obstacle for wheelchair users, bigger frustrations are often invisible to them, such as being directed down a back alleyway to wait outside an accessible door alongside a Dumpster. Ultimately, Saxon says, “It’s discrimination. Disability rights are civil rights.”

Wheelchair users quickly learn that people who aren’t in wheelchairs tend to have a liberal definition of “accessible.” A restaurant may describe itself as accessible because there’s only one step leading to the door, or because it has low-top tables. Marka Rodgers remembers being told Taziki’s Mediterranean Café in Mount Pleasant was accessible, only to discover before dessert that there wasn’t a bathroom she could use. Since then, she says, she’s always called restaurants before visiting to go over their amenities in detail.

August 28, 2018

DTCs and RDSPs revisited

I've used this before, but I forget where:
Fitzgerald: The rich are different from you and me.
Hemingway: Yes, they have more money.
I've been an enthusiastic supporter of the Disability Tax Credit (DTC) and the Registered Disability Savings Program (RDSP), but their effect needs full disclosure.  Under the program, the higher your income, the greater the benefit.  To parallel the quote:
Fitzgerald: The rich are different from you and me.Hemingway: Yes, they have more expensive disabilities.

The basics are:
  • The DTC is a nonrefundable tax credit of up to $12,846 
  • Having a DTC means you are eligible to have an RDSP
  • Low and moderate income RDSP holders are eligible for government contributions 
  • Those contributions must remain untouched for 10 years before withdrawal.

The DTC is worth $8,113 plus another $4,733 each year if it is for a family supporting a minor child.  Call it $13,000.  A person making $200,000 would owe about $75,000 in taxes.  With a DTC, that becomes $62,000.  There are no requirements for how that $13,000 DTC can be spent.  It's a gift from taxpayers.  Over ten years, the total value of the DTC is $130,000.  If the DTC is invested in an RDSP with 5% return, it becomes $161,576, all taxpayer funded.

Now consider a minimum wage worker making $22,000.  Taxes would be $2,257, and the DTC would cover that nicely.  Since it is a non-refundable credit, $2,257 is the annual cost to taxpayers.

A minimum wage income entitles a person to a $1,000 annual government contribution to an RDSP, so the total annual cost to taxpayers becomes $3,257, almost exactly 25% of the $13,000 available to the $200,000 earner.  Over 10 years, taxpayers have invested $32,570.  Private contributions from the minimum-wage earner are unlikely.

It gets better.  In year 10, if the $200,000 earner needs a $30,000 wheelchair it is generously covered by the RDSP.  For the minimum wage earner hoping to fund the wheelchair from their RDSP, there is a holdback equal to the government contributions over the previous ten years.  In our example, the RDSP value after 10 years is $12,578.  The holdback is $10,000 and the maximum RDSP payout would be $2,578.  

Don't forget that whatever is done with the tax credit, it continues over the entire life of the DTC holder.  Over a lifetime, the minimum wage earner gets less than a third of the subsidy given to the high earner.

From 8 to 83
High Earner $200KMinimum Wage Earner $22k
Lifetime Contributions$200,000$20,000
From taxpayer100%100%
Lifetime Payout$3,121,765$283,603
20 Year average annual payout$156,088$14,180
Additional DTC used$462,441$171,532
Total taxpayer subsidy$662,441$191,532

--> I still recommend an RDSP for everyone with disabilities, but without a doubt the DTC favors high earners.

Useful annual DTC$12,846$2,257
Annual government contribution to RDSP$0$1,000
Annual private contribution funded by DTC$12,846$0
RDSP value at 10 years$161,576$12,578
Holdback when withdrawing from RDSP$0$10,000
Wheelchair cost not covered by RDSP$0$27,422

This is patently unfair.  The government just hands $13,000 to prosperous families, no questions asked, but sets draconian requirements on the much smaller amounts given to low and moderate earners.

DTCs and RDSPs are generously conceived but unfairly realized.  At the very least, the 10 year holdback should be eliminated.  Better yet, the DTC should be refundable, so rich and poor get equal benefit.  After all disabilities don't vary by income, so why does the offer of help differ?