by Stephen Bindman
from The Front Page, Justice Canada, Vol 1 No 2
Scott Simser has never hesitated to meet life’s challenges head on.
Though he was born deaf, Simser’s parents rejected the advice of doctors to put him in a school for the deaf and instead placed him in the local mainstream school.
Upon enrolling in Osgoode Hall Law School, he was told he would be refused accommodation inside the classroom. He filed a human rights complaint and quickly received funding for real-time captioning in his classes.
And, in September 2000, he settled a landmark human rights case against the Tax Court of Canada.
The settlement means the court will now pay for sign language interpreters, or the services of real-time reporters who can create instant transcripts, for any deaf or hard-of-hearing witnesses, parties, lawyers or articling students appearing before its 40 courts. It is believed to be the first policy of its kind anywhere and will apply to all court proceedings, including motions and hearings in chambers.
“I believed the principle was important,” said Simser, 35, a tax litigator in the Department of Justice Ontario Regional Office. “I didn’t anticipate the circumstances that would bring about this dispute. I was caught off-guard and when I reflected upon it afterwards, I just felt that something terribly wrong had happened.” Simser is referring to the circumstances that arose in January 1998, when he, as an articling student, was facing the first trial of his legal career, in Tax Court. About a month before the trial, he asked the court reporting service that works for the Tax Court if they would provide a hook up to the computerized transcribing, system they regularly used. Simser asked the court reporter to polish up the regular shorthand transcribing, to accommodate him by providing output in “real-time captioning” format. Simser speaks for himself when presenting his client’s case, but relies on others to provide delivery of the words spoken in court to him as he cannot hear these words well enough.
Real-time captioning is a service in which an experienced shorthand translator, who usually has been trained as a court reporter, transcribes every spoken word and displays it live on a computer monitor. Real-time captioning can be booked for deaf or hard-of-hearing people at conferences, court proceedings and meetings. Its use is also widespread on television, and now it is an option available on any new television set.
The reporting firm was initially very positive, and completed a successful test run at another trial, with Simser attending as an observer. However, two days before Simser’s case, the firm informed him the service would not be provided because the contract with the Tax Court did not allow for the provision of real-time captioning to a third party. After scrambling to find another service, Simser found a firm that would provide him with real-time captioning, but the Department of Justice had to pick the $100-an-hour tab.
Despite the last-minute reprieve, Simser felt it was unfair that the court would not provide accommodation services for him as a deaf lawyer. Since the Tax Court provides a service to the public, the court should pay for the captioning just as it would pay to make its facilities wheelchair-accessible, he reasoned.
The Department wrote the court asking it to pay for the services but the court refused, saying accommodation costs were the responsibility of the employer. Simser then filed a complaint with the Canadian Human Rights Commission. The commissioners overruled a staff recommendation and ordered a hearing before a tribunal. With the support of the Canadian Hearing Society, the Canadian Hard of Hearing Association and the Canadian Association of the Deaf, Simser and his lawyer, respected disability rights advocate David Baker, assembled a list of witnesses. Shortly after the Tax Court received the witness list, negotiations began and a settlement was reached September 5, about a week before the scheduled start of the tribunal.
Simser, a native of Kanata, Ontario, earned degrees in business and accounting from the University of Ottawa and worked as a budget analyst for the Ontario Ministry of the Environment. He was keen to start his own business and, since there was then no other deaf lawyer in private practice in Canada other than one in Vancouver, he turned to law and figured he would have a thriving practice. After joining the Department of Justice, however, he decided to stay on because of the Department’s excellent track record as an equal opportunity employer.
The Department has provided him with a special phone that allows him to communicate with anyone through a Bell Canada operator whose service is already paid for by the public. He has kept the same phone number through numerous office moves, and the excellent e-mail technology within the Department allows him to do much of his work electronically, if no client confidentiality is involved. “I can hire sign language interpreters for work-related meetings, training or court procedures any time, and I can also hire real-time captionists. This is all at my discretion so I feel very empowered, knowing that they trust me to make these decisions. I believe I have used these services only when warranted and, in fact, I have had meetings one-on-one with clients without an interpreter, where I felt I could handle it alone.”
Simser, who also reads lips, calls the Tax Court settlement “a significant legal victory” and a substantial advance for deaf persons in general, and deaf lawyers in particular. But he promises to keep up the fight. “We are confident that all courts across Canada will one day make these provisions. As this case demonstrates, it is essential that our courts be open to removing barriers to the inclusion of persons with disabilities if we are to be afforded equal access to justice in this country.”
The Tax Court policy recognizes that a range of types of accommodation will be necessary and, while captioning and sign interpretation are specifically mentioned, the registrar will entertain requests for other forms, such as note-taking and oral interpretation. It does not cover procedures outside the presence of a judge, such as discoveries, cross-examinations and settlement discussions, but Simser vows to raise this matter with the Tax Court’s Rules Committee.
The Canadian Hearing Society said the new policy “sets the stage for a whole new generation of deaf, deafened and hard of hearing lawyers” in Canada. If the policy spreads to other courts, it will help open up the legal profession to the deaf, said Susan Main, of the Society. There are now only four deaf lawyers in Canada, one in British Columbia and three in Ontario.
Judge Richard Brown, the presiding judge of the Wisconsin Court of Appeals, who is deaf and participated through speaker phone at a press conference announcing the settlement, said the Tax Court “has done something so novel, so welcome, it really is out in the forefront in the world.”
Jennifer Jackson, a second-year deaf law student at Osgoode Hall Law School, also attended the announcement. “My options for future employment have suddenly grown enormously. Prior to this policy, my only realistic job opportunities were with governments who do provide the necessary accommodation.”