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The Justice of Equality

Access for All Canadians

Michelle Falardeau-Ramsay
Originally published in the Forum department of Abilities,
Issue 45, p. 42, Winter 2000

"The thrust of human rights legislation is to... break down the barriers that stand in the way of equality for all."
  -- Madam JusticeBeverley McLachlin, speaking for the Supreme Court of Canada in the Grismer case

In September, Canada’s disability community moved one step closer to knowing true equality when the Tax Court of Canada issued a new policy recognizing its duty to accommodate the needs of all persons appearing before it.

Under this new policy, the Tax Court will provide translation services, including real-time captioning or sign language interpretation, to persons who are deaf, when the Court receives notice that the services are required.

The new policy was announced in response to a complaint filed with the Canadian Human Rights Commission by Scott Simser, alleging that the Tax Court of Canada discriminated against him by failing to accommodate his disability.

Mr. Simser, a deaf lawyer, was an articling student with the federal Department of Justice. At an appearance before the Tax Court of Canada on behalf of his employer, he requested that his disability be accommodated with real-time captioning. While the Court offered to provide the service, the Department of Justice had to pay the costs associated with the captioning. In his complaint, Mr. Simser alleged that the Court discriminated against him by refusing him services generally available to the public.

The Commission referred the complaint to the Canadian Human Rights Tribunal, which then granted intervener status to the Canadian Hard of Hearing Association, the Canadian Association for the Deaf and the Canadian Hearing Society. Mr. Simser, the three interveners and lawyer David Baker successfully negotiated with the Tax Court before tribunal hearings began, resulting in the landmark policy being issued.

On September 11, the Tax Court issued the policy that pledges to arrange and to pay for "a competent and independent real-time captionist or sign language interpreter or, if requested, any other widely recognized method of accommodating the translation needs of a deaf, deafened, or hard of hearing party or witness, lawyer or articling student." Accommodation will be ensured if such requests for services are made "two weeks before they are required." According to the policy, requests made on less than two weeks’ notice will receive "best efforts to accommodate the request."

This policy by the Tax Court of Canada acknowledges a fundamental human right: that access to justice is not the exclusive prerogative of able-bodied Canadians, but of all Canadians. It provides equal access to deaf persons and confirms that the needs of persons with disabilities must be accommodated if we are to ensure equal participation for everyone within our society.

The Commission views the new policy as a major step in ensuring that people with disabilities are accommodated in the legal system, and I congratulate both Mr. Simser and the Tax Court of Canada for reaching this settlement.

Indeed, outcomes such as this one have a systemic impact, in that the solutions reduce the potential for similar future complaints. If all of our disability complaints had such positive results, I dare say that our work would be greatly diminished.

Unfortunately, such is not always the case, as evidenced at my Commission’s September meeting. At that time, half of the 24 complaints we referred to tribunal dealt with the responsibility of employers to accommodate the needs of employees with disabilities.

The Supreme Court of Canada emphasized the duty to accommodate up to a point of undue hardship in two cases last year. As a result of the Meiorin and Grismer cases, federally regulated employers and service providers must now show that their standards foster real equality. The decision also emphasizes the need for systemic accommodations to ensure equal opportunity.

As we were reminded in the 1997 Supreme Court of Canada decision in Eldridge, it is not sufficient for service providers to offer the same services to all clients. They must ensure that the disadvantaged groups benefit equally from services offered to the general public. By adopting this new policy, that is precisely what the Tax Court of Canada has done.

(Michelle Falardeau-Ramsay is the Chief Commissioner of the Canadian Human Rights Commission. More information about the CHRC can be found on the Commission’s website, www.chrc-ccdp.ca.)

 
 

Scott Simser LL.B., M.B.A., C.M.A.
Barrister & Solicitor
30 Hewitt Way, Kanata
Ottawa, Ontario K2L 3S6
Phone: 613.599.2223
Fax: 613.599.9050
scott@simserconsulting.com