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David Fraser Wins Access Justice for All Nova Scotians
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March 31, 2017
Please join us in thanking McInnes Cooper’s David Fraser and six complainants for their commitment to equal access to justice for all. On March 28, 2017, the N.S. Supreme Court in granted David’s pro bono judicial review challenging the N.S. Human Rights Commission’s authority to refuse to accept and process a complaint of discrimination in Reed v. Nova Scotia (Human Rights Commission.
Says David, “This decision is about getting in the Human Rights Commission’s door; these complainants just want to be heard, and they have that right to be heard without that door being slammed in their faces”.
The particular human rights complaint stems from the Province’s application of its policies. David’s clients assert that when restaurants seek a new permit to for a summer patio, they should be required to bring their facilities into compliance with the current codes, including wheelchair accessible washroom facilities. However, the complainants allege provincial building inspectors consistently waive this requirement – and that amounts to systemic discrimination against disabled people by the Province.
When the Commission received the clients’ complaint last summer, it refused to even accept it – twice – let alone consider it, saying it relates to how a government department failed to enforce its regulations. The first time, the Commission referred the complainants to the Ombudsman; the second time, it recommended they complain about the individual restaurants. The complainants, represented by David, applied to have the N.S. Supreme Court review the Commission’s refusal to accept the complaint.
“The complaints were not about the individual establishments who have unwittingly been the beneficiaries of this apparently systemic discrimination, but about the systemic discrimination itself,” wrote David in his submission to the Court.
Paul Vienneau, an applicant who uses a wheelchair, said it’s important for him to be able to wash his hands before eating at a restaurant.
“I carry an unnamed hand cleaner with me constantly, which is not a legit answer to this problem,” Vienneau told Global News.
Deciding in the complainants’ favour, the Court was clear: the N.S. Human Rights Act does not give the Commission the discretion to allow the Commission to refuse to accept a complaint it receives. It is mandatory that the Commission inquire into complaints made to it; only then does it have discretion to dismiss the complaint on the limited grounds in the Act. Justice Edwards was “not impressed” with the Commission’s argument that it has insufficient capacity to treat every “inquiry” as a complaint: “[the complainant] was not simply making an ‘inquiry’, he was lodging a complaint. As such, he had the right to expect that his complaint would be ‘inquired into’. It is simply not an option for the intake worker to decide not to accept a complaint… A complaint alleging discrimination has been filed. The HRC is obliged to deal with it”.
The Court ordered the Commission to process the complaint. The Human Rights Commission has said it will appeal the decision, though it has not yet filed that appeal.
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