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October 17, 2018

Food Safety, The Road Ahead

Some have suggested that I have been too critical of the Department of Justice's press release about the course they will take in the decision by a Human Rights Board of Inquiry. Here is the order from the Board of Inquiry:
... that the Respondent interpret, administer and enforce the words "washroom facilities for the public available in a convenient location" in s.20(1) of the Food Safety Regulations as requiring those washroom facilities to be accessible to members of the public who use wheelchairs;
the press release from the Justice Department says:
"The province will not appeal the Sept. 6 decision of a human rights board of inquiry.
The Department of Environment was ordered to require restaurants to have accessible washrooms in order to comply with the food safety regulations, unless that requirement can be shown to cause undue hardship.
The province will fast track an action plan that will ensure the human rights decision is implemented in a timely fashion. This plan will be developed in collaboration with stakeholders, including the disability community and the restaurant industry."
The order does not mention "undue hardship", but directs the Department of the Environment to enforce a regulation in effect since 2005. It does not call for collaboration, a plan or permit any delay.

In a press release, the plaintiffs (advised by their lawyer) anticipated that the Province's press release would outline a "wrongheaded and unacceptable response".

The decision not to appeal seems inevitable:
  • The Board of Inquiry rejected every argument the Province made
  • Defending the charge cost the province an estimated $80,000
  • From beginning to end, the Human Rights process took over two years
  • For this my fellow plaintiffs and I each were awarded $1000, (which is evidently not part of the fast track plan).
We are not the enemy of the restaurants, although their association has been pretty insulting. Their brief to the Board of Inquiry said:
"In our sector when we refer to the term “public” we are speaking about the general good for the largest number of people. This unfortunately does not include all people. There are many that we can’t serve for a variety of reasons, including certain disabilities"
The province makes twice as much in HST on every meal than restauranteurs do in profit. Three times if you count the Federal portion. Restauranteurs can make a compelling case for the province to pay for accessibility upgrades. since the province reaps a hefty reward.

There's a lengthy section about "undue hardship' in Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 (CanLII), issued on March 23, 2007 which includes this paragraph where the majority says:
The threshold of “undue hardship” is not mere efficiency. It goes without saying that in weighing the competing interests on a balance sheet, the costs of restructuring or retrofitting are financially calculable, while the benefits of eliminating discrimination tend not to be. What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment? It will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.
I don't think the province or the restaurant industry, should venture down the "undue hardship" road. Equality and dignity clearly can be used to offset financial considerations. And, when a workplace is inaccessible, there is always the problem of people using wheelchairs facing discrimination in opportunities for employment.

Here is a fast track I could accept:
  • Now - begin 2 year moratorium on enforcement
  • April 2019 - no permits for patios without accessible washrooms
  • June 2019 - financing agreement between province and restaurants
  • October 2020 - end of moratorium on enforcement.
I learn from an article in The Star from Friday the 12th:
Gerry Post, executive director of the Accessibility Directorate, said while it’s difficult to put a timeline on getting something done, he wants to see action as soon as possible. “People talk that it will take until 2022, well that’s not the case,” Post said. “It may get a little complex to get to a resolution on this and to move forward, but I’m optimistic we can do it within the next year.”
"Within the year is promising", and Post is a man of his word. He's already accomplished a great deal, so let's hope the Department of the Environment pays attention.









October 11, 2018

Unappealing


The winners of the recent Human Rights decision, Reed, Marston et al, expect the Nova Scotia Government to announce Friday that the province will not appeal that decision.

However, we expect the Government to say only that they will work with stakeholders to develop a specific accessibility standard for restaurants that will not be in place until 2022.

This is a wrongheaded and unacceptable response to the decision, which unequivocally concluded that the province is discriminating in its enforcement of public health regulations. The Food Safety Regulations require that all restaurants have an accessible washroom for patrons. This latest move by the Government demonstrates its indifference to the impact of this discrimination on the health and well-being of people with disabilities. It is a matter of public health and science, not building codes.

The winners will seek legal remedies to enforce the decision of the Human Rights tribunal

Warren Reed
406-1540 Summer St
Halifax, NS B3H 4R9

902 482 4017
919 200 8078 (if traveling)


October 7, 2018

Undue Hardship


In Nova Scotia, the single reference on the Human Rights webpage to "Undue Hardship" is in the context of employment:

Duty to Accommodate

Employers must not discriminate against employees based on protected characteristics, such as disability or gender. In fact, an employer has what is called a “duty to accommodate." This means they must do what is reasonable to allow a person to get, or keep, a job.

Accommodating a person may mean allowing shorter work hours, changing job duties, or providing equipment that will let a person continue to work. All employers must try to accommodate the needs of their employees up to the point of undue hardship. Where this point is depends on several things, including the size of the organization and the role of the employee within the organization. For example, the larger the organization, the greater is the ability to accommodate. Accommodation does not have to be perfect, but it should be reasonable.

Those of us on the receiving end of ''accommodation" are accustomed to hearing "undue hardship" used in the context of physical barriers.

  • "We don't provide level access to our business because a ramp isn't feasible and a lift is too expensive"
  • "Our doorways are 800mm wide and it would be an undue hardship to renovate them to 1000mm"
  • "Our washroom is downstairs and it would cost a fortune to move it"
There's a lengthy section in in Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 (CanLII), released on March 23, 2007 which includes this interesting paragraph:

225 The threshold of “undue hardship” is not mere efficiency. It goes without saying that in weighing the competing interests on a balance sheet, the costs of restructuring or retrofitting are financially calculable, while the benefits of eliminating discrimination tend not to be. What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment? It will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.

To me this introduces the important idea that it's not just the undue hardship of a business or process that counts, but also the undue hardship of the user or patron and the undue hardship of the community.  So instead of just:
The cost to accommodate is unreasonable.
it becomes
The cost to accommodate + the cost to the individual + the cost to the community is unreasonable.

As an example, consider situation of a newly-minted social worker who is deaf.  A complete accounting of "undue hardship" might start with the cost of having an ASL interpreter at meetings and some technology, but should include the fact that we all have quite an investment in her education and that we collectively stand to benefit from her employment.  So it the cost to accommodate is
ASL Interpreter + fancy voice recognition device
- what we spent on her education
- the benefit of having a social worker 

I would feel better if the new Accessibility Standards had this a a principle - that accommodation has benefits as well as costs.  They can be harder to quantify, but the effort must be made.