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Victory for wheelchair users in human rights case, and another embarrassment for the NS Human Rights Commission

Paul Vienneau, NS Advocate contributor, and one of the complainants, talks with reporters during the tribunal in July. Photo Robert Devet

KJIPUKTUK (Halifax) – In July we reported on a Nova Scotia Human RIghts tribunal asked to decide whether to prevent people who use wheelchairs from washing their hands in a restaurant amounts to discrimination.

Well, this time the good guys won.

In a decision published earlier this week Board of Inquiry Chair Gail Gatchalian ordered that that the province must enforce the regulation requiring restaurants to have “washroom facilities for the public available in a convenient location.”

Gatchalian rejected each of the many arguments put forward by the province.

The complaint, lodged by five wheelchair users, suggested that the government is selectively enforcing public health laws by allowing restaurants to get away with not providing accessible washrooms to people who live with disabilities and use wheelchairs. David Fraser is the lawyer acting on behalf of the complainants.

The provincial government did not agree.

It’s a building code issue, not a health issues, said government lawyer Kevin Kindred, and the building code does not allow for retrofits of existing buildings.  Also, the Human Rights Act refers to services, and enforcement of a regulation is not a service. Furthermore, the focus of the food safety act only deal with food safety.

Even if the Board were to find for the complainants, Rome wasn’t built in a day and the government has a plan to deal with this through its Accessibility Act, which will come into full effect in 2030, the government argued.

Thankfully the Board of Inquiry chair was did not find these bureaucratic arguments in the least convincing.

“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,” write the now victorious complainants in a press release issued yesterday.

“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 press release states. “The province let this injustice happen and the province should find the solution.”

NS Human Rights Commission rejected the complaint previously

The decision is also an embarrassment for the Nova Scotia Human Rights Commission, who fought tooth and nail for the issue never to even reach the stage of a tribunal.

As is so often the case, the Nova Scotia Human Rights Commission (NSHRC) had rejected the complaint off hand and without formal consideration, and it required a Nova Scotia Supreme Court decision to get the case back on track.

Dismissing a complaint without investigation is counter to the Nova Scotia Human Rights Act, wrote Nova Scotia Supreme Court Justice Frank Edwards in his decision issued on March 1st, 2017

When you lodge a complaint you have the right that this complaint will be inquired into, wrote the judge. If as a Commission you feel you’re too busy, go talk to the government, or change the law, but don’t just turn down complaints without providing reasons that are deemed valid in the Human Rights Act.

A similar case against the NSHRC earlier that year, this one launched on behalf of people with disabilities on social assistance, was also decided in favour of the complainants.

“They are so busy trying to pigeonhole and dismiss a complaint that they don’t take time to think. It would be simple thing for them to do,” Warren Reed, one of the complainants, told the Nova Scotia Advocate in April. “But instead the NSHRC mounts lots of peripheral arguments about jurisdictions and procedures, and I find that disappointing. They should take the law seriously, and if it is inconvenient, I am sorry, but there is more at stake than their convenience.”   


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One Comment

  1. Wonderful news for all of us in the disability community ! Hopefully such obvious and just accommodating may eventually trickle down to those with invisible disabilities also.

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