Human Rights – The Complications!

I was approached almost a year ago by the Alberta Human Rights Commission to develop or revise a number of human rights training modules.  The majority of the modules were aimed at the workplace, were to be presented primarily to human resource specialists and covered topics from “duty to accommodate” to “creating a healthy workplace”.  Each module was anywhere from two to six hours long and there were eight of them.

Since each module had to have at least three case studies based on actual human rights court case I spend a lot of time on the Canadian Legal Information Institute (CANLI) website reviewing decisions.  I am down to the last two modules which are more general than the workplace setting ones.  One will focus on tenancy and the one I am completing now deals with services/goods.

To use the appropriate language on that I am currently developing a module on Section 4 of the Alberta Human Rights Act.  I say Section 4 because that is where service and goods are identified.  I really need to make that distinction because human rights cases are considered quasi-judicial issues.  When dealing with anything legal the use of language plays a major role.  Using the wrong terminology can cost you your case.  Section 4 of the Alberta Act actually deals with four subjects and they are as follows:

• Goods include, but is not limited to, all transactions involving the buying and selling of items such as cars, groceries, clothing, or building supplies.
• Services include, but are not limited to, public transportation, education, entertainment and hospitality, government services, community services, medical and professional services, and insurance.
• Accommodation includes, but is not limited to, all temporary accommodation such as hotels, motels, inns, bed and breakfasts, and campsites.
• Facilities include, but are not limited to, commercial buildings, arenas, hospitals, community centres and condominiums.

So if one were to file a complaint feeling they were discriminated against when it came to “goods” but in reality it was a “service” you could lose your case because of the terminology.  A simplistic example would be if you, as a driver with a hand control restriction on your licence, wanted to rent a car.  The car rental company has a car with portable hand controls that you knew failed to meet CSA standards.  You have the right (and I might also add responsibility) to turn that car down and be left with a human rights complaint concerning “goods”.  As a side note here any hand controls using Velcro attachments are not only not safe, they are illegal in Alberta but you can find lots of them on the Internet.

However if in this same situation the car rental company doesn’t have any hand controls then you are facing a potential complaint concerning “service”.  The goods are there but unusable to someone with a hand control restriction.  The company has failed to meet their obligation to accommodate and you are left stuck at the airport without a rental vehicle.

Finding suitable case studies was rather difficult because these are the types of cases that are immediate and to many, hardly worth the time to pursue.  After all a human rights complaint can take months and often years so how much time does one really want to invest because, say, the cash clerk at the self serve gas station wouldn’t come out and gas up your car.  This is an accommodation self serve gas stations are supposed to provide for disabled drivers.  I have driven away from more self serve gas stations than I like to admit and often get some friend to go for a drive with me so I can gas up along the way.  I don’t have time to be fighting every little thing like that but that is also the attitude that allows the erosion of our rights.

But I did manage to find a few cases I could use.  The one that got me going involved a visually impaired mother who was doing her grocery shopping in the company of her two children (age 11 and 13 at the time) as well as her service dog, Gypsy (a 60 pound black lab fully identifiable by his working vest).  This incident occurred on Monday April 1 at a Save-On grocery store.  If you are a detail person you you can read the decision yourself , Bergeron v. Alberta Coop Taxi.

Long and short of it she called a taxi to take the groceries home (call logged and presented as evidence at the hearing).  Almost immediately she decided to call back and made them aware of her service dog, not a requirement but a courtesy (also logged and presented as evidence).  Both calls were recorded so the evidence was held on recordings and not hand written notes.  Her, her children and the dog were waiting by the front door when the cab arrived about ten minutes later.  As they approached the cab it suddenly took off which led her to believe he was leaving because he saw Gypsy and that is illegal.  She immediately called called back to the cab company and was informed by the driver supervisor that the driver would be fined $50 and another cab was on its way.  It is reported in the decision that she was quite upset and in tears.

This person also does volunteer work as an advocate for people with visual impairments.  She had run into this problem in the past so she decided this time to pursue the issue through a human rights complaint.  She was aware that there is an actual $250 fine for refusing to pick up a person with a service dog and having had this happen before she decided it was time to make a case of it.

It may not seem like all that big of a deal to many people out there but these “little things” tend to add up.  At some point someone has to take a stand otherwise what is the sense in having rights protection if no one is ever held accountable for infringing on them.  It’s rather like having railroad safety standards but not enough inspectors to make sure the standards are adhered to.  We need to police our own human rights and many provinces have slashed the staffing to the point where a person has to be their own advocate.

This case took two years to resolve.  Now there are a number of criteria that a human rights hearing has to take into account.  As I indicated early, human rights complaints are considered quasi-judicial situations and human rights Acts are considered “primacy legislation” which simply means it takes precedence over other legislation.  The burden of proof rests on the person being discriminated against (the complainant).  One of the conditions that has to be present is called the “balance of probabilities” which is defined as:

• A legal standard, applied in many jurisdictions for deciding the outcome of civil disputes, which requires that a dispute be decided in favour of the party whose claims are more likely to be true

Now maybe in my simple mind watching a taxi you had ordered drive away after it appeared like the driver had noticed the dog would lead one to believe he abandoned the fare due to the dog.  The wisdom of the panel hearing this case (almost two years after the fact) didn’t see it that way.  And I quote here:

• I must be satisfied that every element of the allegation is more probable than not on the basis of the evidence. Based upon the above, I am not satisfied that the Complainant has met the burden placed upon her of proving on a balance of probabilities that the Respondent discriminated against the Complainant on April 1, 2002 in the area of service on the grounds of physical disability, contrary to s. 4 of the Act. As such, I dismiss the complaint.

This is not exactly encouraging to anyone who thinks they should pursue a human rights complaint.  To bad life couldn’t be simple and common sense could make a re-emergence!

Just one man’s opinion