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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. 

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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.

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