The Law

Not unexpectedly, I received notice that I am not a party in this matter, so I feel free to share it with a larger audience.  I think I'll do it more often.

Gus Reed

**************

Donald C. Murray, Q.C. 

Board of Inquiry Chair

July 13, 2022

Dear Mr. Murray,

I am the co-founder of the James McGregor Stewart Society, which advocates for people with disabilities.  We have participated in many actions affecting PWDs:

• Making MLA constituency offices accessible

• Having a wheelchair division at the Bluenose Marathon

• Questioning the building code allowance of inaccessible restaurants

• Raising full funding for an accessible playground at Westmount

• Making an annual $1000 award to a disability rights advocate

• Writing a critique of the original Bill 59

• Authoring over 400 posts to our blog

I have served on the HRM Accessibility Committee, the Minister’s Panel on Accessibility and the Advisory Board under the Accessibility Act.

What prompts me to take the unusual step of making this uninvited submission to you is the province’s failure to enforce (self exemption) a 2018 decision of Gail Gatchalian in a previous Board of Inquiry: 

1. An order 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;

Without question, wheelchair users are entitled to hygienic amenities and government is obliged to follow its own rules.  Unfortunately, the province chose to delay compliance by commencing a course of ‘Restorative Justice’ to which the five complainants, myself included,  reluctantly agreed.  As far as I know, no complainant continues to be involved, there have been few if any meetings, and 46 months later, no offending restaurants have been made accessible.  Restorative Justice, which is neither, is the preferred avenue for human rights complaint resolution.

I believe your inquiry focuses on whether the province can exempt itself from the Court of Appeal ruling that the government’s failure to offer “meaningful” access to housing for people with disabilities amounted to a violation of their basic rights.  The province claims the exemption under Section 6 of Nova Scotia’s Human Rights Act by arguing the discrimination is justified by this clause:

(ii) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society;

To my untrained eye, this phrase from the Charter pertains only to the balance of rights.  Free speech, hate speech.  What competing right is advanced by allowing discrimination against people with disabilities?    

You say: “By (I think you meant “But”) proposing to remedy symptoms or manifestations of discrimination, rather than the source of the discrimination, is the wrong solution for a systemic problem. Looking for justifications of outcomes rather than the prima facie discriminatory “approach” to the Province’s obligations would be a misdirected inquiry.”

and

“... it is the policies and practices that produced those disadvantages which must be justified or excepted from the requirements of the Human Rights Act.”

Exactly.

In the July 12 hearing Mr. Kindred said words to the effect that finding “motives” was impossible, and one must only consider results.  To the contrary, government attitudes can be enumerated:

• Endemic prejudice

• A pervasive and persistent insistence on viewing people with disabilities as ‘other’.  For example, many with intellectual disabilities are exempted from minimum wage laws.  There is no code of conduct for staff at social enterprises.

• Inertia

• The province cannot bring itself to facilitate Registered Disability Savings Programs, thus depriving PWDs of millions of dollars in federal funding.

• Misdirected priorities

• The provincial budget can and should be examined.  Is a spaceport more important than human rights?  Could some money be redirected from ferry subsidies in order to ensure Charter ideals?

• Conflict of interest

• The Human Rights Commission falls under the Justice Department,  If memory serves, the Commission takes no stand - ”watching brief” they call it - as if they had no position on Human Rights.  The respondent is represented by the very same Justice Department.  “Arm’s length” means parties aren’t too closely related.  

Thank you for reading this.

Yours truly,

Warren Reed

The James McGregor Stewart Society