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Human Rights (Federal) - Services. Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. As a preliminary matter at the appeal, the appellant/applicant alleged fairness breaches at the Federal Court as the court scheduled only one day for hearing, and the AG moved without notice to strike part of the record - both of which he alleged impacted on his ability to present his case due to his autism.
In these quotes the court cites disability discrimination doctrine, particularly here in the context of court hearing 'services' [see para 32 re 'wokeness']:II. The Courts’ Obligation to Accommodate Litigants with Disabilities
[18] Equality before the law for individuals with disabilities is guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Subsection 15(1) of the Charter provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination […] based on […] mental or physical disability”.
[19] Similarly, section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, makes it a discriminatory practice to discriminate in the provision of services that are customarily available to the general public (such as those offered by the Courts Administration Service) on a prohibited ground of discrimination. Section 3 of the Act identifies “disability” as one of the prohibited grounds of discrimination.
[20] Discrimination does not have to be direct: a rule (such as the time allocated for a hearing) may be neutral on its face, but may nevertheless have an adverse effect on members of protected groups: Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1 at paras. 30-31. For example, individuals with a neurological condition such as autism may require additional time to process information. In either case, however, a service provider is required to accommodate the needs of the individual service recipient to the point of undue hardship: see, for example British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3.
[21] Even if a person with a disability is treated in exactly the same way as others, there may still be discrimination. Indeed, identical treatment may in some cases result in serious inequality: see, for example, Fraser, above at paras. 32-36; Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at para. 26. It is therefore sometimes necessary to treat people with disabilities differently than others, in order to achieve substantive equality: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 46.
[22] A simple example illustrates the point: it is no answer to a claim of discrimination from a litigant in a wheelchair to say that everyone is expected to climb the stairs in front of a courthouse to have their day in Court, and that the wheelchair-bound litigant was treated no differently than anyone else. Facially neutral legislation can be discriminatory: R. v. Sharma, 2022 SCC 39 at para. 42. For more on this, see the Supreme Court’s extensive analysis in Fraser at paras. 29-55.
[23] Similar obligations are imposed on service providers (such as Courts Administration Service) by the Accessible Canada Act, S.C. 2019, c.10. This is a relatively new Act designed to proactively identify, remove and prevent barriers to accessibility for people with disabilities, so as to, amongst other things, allow them to fully exercise their rights and responsibilities in a barrier-free Canada. One of the guiding principles underlying the Act is that service providers must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons with disabilities: see section 6(e).
[24] Insofar as judges are concerned, these principles are reflected in the Ethical Principles for Judges (Ottawa: The Canadian Judicial Council, 2021). Part IV of the Ethical Principles provides that judges are to “conduct themselves and the proceedings before them to ensure equality according to law”. Judges are further counselled to carry out their duties with respect for all persons, without discrimination or prejudice.
[25] The Ethical Principles further observe that the law’s commitment to substantive equality seeks to protect individuals from both direct and adverse effect discrimination, and that “this approach to equality seeks to acknowledge the equal worth and dignity of all persons”. Equality, is, moreover, “fundamental to justice and is strongly linked to judicial impartiality and to public confidence in the administration of justice”. Consequently, judges are advised to ensure that their commitment to equality is unwavering, and that their conduct is such that any reasonable and informed member of the public would have confidence in the judge’s respect for and commitment to equality.
[26] Related to this is the judge’s obligation to ensure that those appearing in court receive a procedurally fair hearing. Indeed, counsel for the Attorney General acknowledged at the hearing before us that the duty to accommodate litigants (or counsel) in the courtroom setting finds its voice in the judicial setting through the principles of procedural fairness.
[27] As the Supreme Court of Canada held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the values underlying the duty of procedural fairness reflect the principle that individuals should have the opportunity to present their case fully and fairly. Moreover, decisions that affect their rights, interests, or privileges should be made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision: Baker, above at para. 28.
[28] The Supreme Court identified a number of factors that can assist a court in determining whether the procedures followed in a specific case respected the duty of fairness. That said, the list of factors relevant to determining whether the common law duty of procedural fairness has been respected in a given set of circumstances is not exhaustive, and other considerations may also be important in a given case: Baker, above at para. 28.
[29] One such consideration is the accommodation needs of litigants with disabilities.
[30] The steps necessary to accommodate a litigant with a disability will obviously depend on the nature of the disability in question and the unique needs of the individual litigant. There is, moreover, an obligation on individuals seeking accommodation to assist in securing appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 43.
[31] Courts must, however, remain mindful of their duty to accommodate the needs of the disabled so as to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians.
[32] Lastly, it is perhaps important to state that these principles have nothing to do with political correctness or wokeness. They are not a bow in the direction of what might be trendy or in vogue at the moment. They are about something far more fundamental, far more enduring, far more essential. They are about making our fellow human beings feel included, welcome and empowered in one of the most fundamental institutions of our democratic state. . Kemp v. Canada (Finance)
In Kemp v. Canada (Finance) (Fed CA, 2022) the Federal Court of Appeal, in the course of dismissing an appeal for late filing, considered whether the statutory provision of the RRSP program constituted a 'service' with the meaning of the CHRA. The discrimination alleged was the age limitation of the RRSP program, which required 'cashing out' of RRSP funds at 71:[11] The human rights officer then considered whether the facts set out by Mr. Kemp would constitute a discriminatory practice under section 5, specifically, a discriminatory practice in relation to the provision of services customarily available to the public. The human rights officer cited a decision of the Supreme Court of Canada (Gould v. Yukon Order of Pioneers, 1996 CanLII 231, [1996] 1 S.C.R. 571) as establishing that "“service”" under section 5 of the Act has a transitive connotation in that the service must pass from the service provider to the member of the public.
[12] The human rights officer then considered whether federal laws can be a service under section 5 of the Act and, thus, can be the subject of a complaint. On this, she considered Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, which was directly on point and binding (the CHRC case). In the CHRC case, the Supreme Court confirmed the jurisprudence which held that lawmaking does not have a transitive connotation, which means that lawmaking or legislation is not a service under section 5 that can give rise to a discriminatory practice: CHRC case at paras. 61-64. In light of this binding authority, the human rights officer concluded that section 5 does not permit challenges to discriminatory impacts when those discriminatory impacts flow directly from the unambiguous wording of federal legislation.
[13] Based on this analysis, the human rights officer concluded that complaints that directly challenge legislation have no reasonable prospect of success. In Mr. Kemp’s case, she found that the "“requirement to ‘cash out’ RRSPs beginning at age 71 is determined by the unambiguous, non-discretionary wording of section 146 of the Income Tax Act”": Appeal Book at Tab 1-13. Since the complaint was a challenge to the legislation, which could not succeed, it was frivolous within the meaning of the Act. As a result, the human rights officer recommended that the Commission not deal with Mr. Kemp’s complaint.
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[19] The Federal Court noted the Commission’s position that Mr. Kemp’s complaint related to the fact that he was required to begin "“cashing out”" his RRSP at age 71, which Mr. Kemp characterized as age discrimination. The Court further noted the Commission’s conclusion that this was mandated by section 146 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). As a result, the Court noted that the Commission found it could not consider Mr. Kemp’s complaint because it had no jurisdiction to deal with complaints that were solely aimed at the validity of legislation. The Court observed that Mr. Kemp denied that his complaint was aimed solely at the relevant provisions of the Income Tax Act but determined that he failed to show how his complaint went beyond the rule that he was required to begin to "“cash out”" his RRSP at age 71.
[20] In the end, the Federal Court found that it could not distinguish Mr. Kemp’s proposed application from the facts that were before the Supreme Court of Canada in the CHRC case. The rationale of that case, as found by the Court, is that the Commission only has jurisdiction over discriminatory practices, whereas the adoption of legislation cannot be considered to be a "“service” "and so could not give rise to a discriminatory practice. According to the Court, this reasoning would doom Mr. Kemp’s application should he be given an extension of time to proceed. As a result, his request for an extension of time was dismissed without costs.
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