Wednesday in Halifax, six prominent disability rights activists will ask the Supreme Court to order Nova Scotia’s Human Rights Commission to do its job.
The activists want the court to order the commission to hear their complaint against Environment Minister Margaret Miller and Chief Medical Officer of Health Robert Strang for selectively enforcing Nova Scotia’s Food Safety Regulations in a manner that discriminates against wheelchair users—and puts their health at risk in the process.
The regulations require restaurants in Nova Scotia to have “washroom facilities for the public available in a convenient location” as a condition of their license. Many Halifax restaurants have summer patios accessible to wheelchair users, but do not have a washroom that is conveniently located, or even reachable, by such customers.
As lawyer David Fraser wrote to the court in a pre-hearing brief:
While one might presume this is solely about the ability to access a toilet, this complaint and the concern that motivated it is also about access to basic hygiene. Individuals in non-motorized wheelchairs spend most of their day with their hands on the handrims of the wheels in order to move the chair. These handrims are in close proximity to the ground and generally get dirty through the day. This dirt is transferred to the operator’s hands. Where no accessible bathroom is available, individuals in wheelchairs do not have access to hand-washing facilities and their health is placed at risk.
Early last year, Gus Reed, a wheelchair user and one of the appellants, wrote to Environment Minister Margaret Miller complaining that her inspectors were not enforcing the requirement. Miller’s somewhat obtuse reply acknowledged the regulation, but noted that restaurants are subject to many laws, including the building code, which she claimed takes precedence in matters of washrooms. She referred him to HRM’s bylaw compliance officer.
Reed then wrote to Strang, who replied that his concern “is best handled through the NS Building Code.” Strang referred him to the Fire Marshall.
Last August, Reed and five other wheelchair users—including Kelly McKenna, who led the successful 2009 fight to make MLA constituency offices barrier free, and Paul Vienneau, who is celebrated in Halifax as the Asshole with a Shovel—complained to the Human Rights Commission.
They cited four Halifax restaurants (Effendy, The Wooden Monkey, Le Coq, and The Five Fishermen) whose washroom facilities they could not use, but stressed that their complaint was not directed at the businesses, but at Miller and Strang for, “a pattern of discrimination in the enforcement Food Safety Regulations.”
To be clear, the Minister and the MOH devote significant resources to the enforcement of this regulation with respect to most Nova Scotians. They fail to enforce it only with respect to people using wheelchairs. This subset of the population—persons with a disability—is a protected category under the Nova Scotia Human Rights Act. The selective enforcement complained of is therefore a violation of the Act.
Human Rights Officer Tamara Powell tried to reject the complaint in a phone call. Only when Reed insisted did she follow up with a letter. It said the complaint, “falls outside the jurisdiction of the Commission because, based on the information you have provided, it is a matter of a provincial government department failing to enforce its own program or policy.” Powell referred Reed to the Ombudsman.
Reed appealed instead to the commission’s Intake Analyst, Darryl MacPherson, who confirmed Powell’s rejection in a rambling email. He claimed the Environment Minister is not responsible for Food Safety Regulations (in fact, she is); he said the grandfathering provisions of the building code, which exempt pre-existing businesses from new rules such as those requiring accessibility, mean the minister could not retroactively apply food safety regulations; he said wheelchair users are not the only group that, “experience challenges when trying to access such services,” citing, “older persons and persons with children [who] experience similar challenges when accessing certain establishments.”
Finally, MacPherson said the commission might hear a complaint against the restaurants, but not the government.
The substance of the complaint will not be at issue at Wednesday’s hearing, which will hear arguments about the commission’s process. As lawyer Fraser summarized in his brief:
In the Human Rights Act, the Commission has no discretion and no leeway to turn away complainants if the complaint is made in writing and it addresses subject matter within the Commission’s legal competence.
But sometimes process is substance, as citizens with disabilities, faced with a familiar parade of officials passing the buck instead of doing their duty, know all too well.