06 Sep Wheelchair activists vindicated—despite our feckless HR Commission

The long quest of five wheelchair activists protesting the province’s discriminatory administration of its Food Safety Regulations ended in victory today, but their marathon trek exemplifies much what’s wrong with Nova Scotia’s torpid, ineffectual Human Rights Commission:

• The Commission took 770 days to resolve the complaint
• It twice refused to accept the complaint (as it does the overwhelming majority of complaints it receives)
• When the Supreme Court ordered it to hear the complaint, the Commission took more than a year to put a hearing in place
• Even then, the Commission, stung by the tongue-lashing it received from Mr. Justice Edwards, refused to take sides, offering only a purposeless “watching brief” during the hearing.

Briefly, the Food Safety Regulations require that every restaurant in the province, “must have… washroom facilities for the public available in a convenient location, unless exempted by the Administrator.” The provincial Department of Environment and the Chief Medical Officer of Health interpret this requirement to exclude members of the public who use wheelchairs. They have licensed hundreds of restaurants, including many with seasonal sidewalk patios that welcome wheelchair users, that have no accessible washrooms.

No one wants to be stuck in a bar or restaurant where they can’t relieve themselves, but access to a washroom involves more than personal convenience. It’s also a matter of public health, since the province’s discriminatory enforcement of this regulation means wheelchair users cannot wash their hands before eating. Hand-washing is a first line of defence against the spread of infectious disease. The province has experienced many outbreaks of illness traced to restaurants. Hand-washing is a particular concern for wheelchair users, since their hands may come into contact with their wheels, and the wheels, in turn, come into contact with whatever is on the street.

Board of Inquiry Chair Gail Gatchalian rejected every argument the province put forward in defence of its discrimination. A news releaser by the complainants welcomed the ruling, and offered an olive branch to restaurants that may be affected by it. In particular, they noted one statement by the Board of Inquiry:

Some food establishments may be able to provide accessible washrooms for the public. Some may not be able to do so without experiencing undue financial hardship. Some may need time to comply. This does not justify the Respondent’s approach, which is that no accommodation is necessary.

“We completely understand that in a business with razor-thin profits, the provision of washroom facilities my be a hardship,” the complainants said. “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 Human Rights Commission could help, too, with a detailed public report on how it will implement Justice Edwards’ ruling that it must stop refusing to accept complaints. As Edwards put it:

There is no provision of the Act which allows an HRO to refuse to accept a complaint….

Counsel for the Commission argues that the HRC would be overwhelmed if every inquiry had to be treated as a complaint. I am not impressed with that argument. Mr. Reed 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” [s.29(1)]. If the Commission or the Director ultimately decided to dismiss the complaint, then that dismissal must be on the basis of one of the reasons set out in s.29(4). It is simply not an option for the intake worker to decide not to accept a complaint.

Counsel for the HRC referred to the “sheer volume” of inquiries. What that means and how it relates to Mr. Reed’s complaint is somewhat puzzling. If there are statistics available to show that unless staff can refuse to accept complaints the Commission will be overwhelmed, those statistics should be shown to the appropriate legislative authority. They have no relevance in the context of this review.

The low level intake worker who initially refused to accept the complainants’ complaint only put this rejection in writing at the complainants’ insistence. The result was an embarrassing word salad devoid of meaning. The written decision of an appeal officer confirming this rejection was longer, but even less logical or intelligible. The record reflects badly on the Commission, which must now find a way to enquire into all the complaints it receives.

That will require a top-to-bottom overhaul of the commission. Bring it on.