Webcast archive: 18/01/26

In this episode of Euthanasia & Disability, Amy Hasbrouck and Christian Debray discuss:

  • Review of Canadian disability rights legislation: the Territories

Please note that this text is only a script and that our webcast contains additional commentary.

REVIEW OF CANADIAN DISABILITY RIGHTS LEGISLATION: THE TERRITORIES

  • Welcome to the final part of our series on disability rights laws in Canada’s provinces and territories. We’ve covered the southern portion of the country; all that’s left is the three northern territories: Nunavut, the Northwest Territories, and the Yukon. Given the small population (less than 120,000), we’ve gathered all three territories into one webcast. We’ll focus on how disability rights are handled under the territories’ Human Rights Acts, and some case studies.
  • As with all human rights acts, the northern territories recognise “disability” as one of several grounds for promoting equality and preventing discrimination, along with factors like race, gender identity, religion, or age.
  • There are similarities and differences among the definitions of disability in the three laws.
  • Under the Northwest Territories Human Rights Act, “disability” is defined as:
    • “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness,
    • a condition of mental impairment or a developmental disability,
    • a learning disability,
    • a dysfunction in one or more of the processes involved in understanding or using symbols or language,
    • a mental disorder.
  • The Act also protects people who have had a disability, those who are believed to have a disability, and someone with a predisposition to developing a disability.
  • Nunavut’s Human Rights Act defines “disability” as “any previous … existing or perceived mental or physical disability, includ[ing] disfigurement and previous or existing dependency on alcohol or a drug.”
  • In the Yukon Human Rights Act, physical and mental disabilities are defined separately:
    • “’mental disability’ means any mental or psychological disorder such as organic brain syndrome, emotional or mental illness, or learning disability”
    • “’physical disability’ means any degree of physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect or illness…”
  • Under the Northwest Territories Act, “discrimination…does not require an intention to discriminate.”  Nunavut has a similar provision, and the Yukon Act implies that intent is not required (“Any conduct that results in discrimination is discrimination.”)
  • In all three laws, discrimination is prohibited in:
    • Hiring and all aspects of the employment relationship;
    • Membership in unions or professional organizations;
    • Provision of goods and services;
    • Access to accommodation and facilities; and
    • Tenancy;
  • Discrimination means different things depending on the setting.  Some forbidden practices are:
    • Preventing disabled people from taking advantage of goods and services;
    • Failing to accommodate a person’s disability (without good reason);
    • Discharging or expelling someone because of their disability; or
    • Intimidating or harassing someone because they complained about discrimination.
  • All three statutes allow an exception to the non-discrimination mandate for “reasonable justification.”  This usually refers to when providing an accommodation would impose an “undue hardship.” but could also include if the person had a criminal record or would be unable to do a job, even with accommodations.
  • Each Human Rights Act has an “undue hardship” provision, which removes the duty to accommodate should the burden and cost become unreasonable.  Both the Yukon and Nunavut Human Rights Acts list factors to consider in deciding if something is an “undue hardship”:
    • health and safety;
    • disruption to the public;
    • effects on contractual obligations;
    • cost; and
    • business efficiency.
  • The definition of “undue hardship” has also been clarified in court decisions.  The Supreme Court of Canada stated that the employer doesn’t have to change working conditions in a fundamental way, but does have a duty to arrange the employee’s workplace or duties to enable the employee to do his or her work.
  • Disability-based human rights violations are among the most common.  Disability-related complaints made up between 30% and 60% of complaints in the provinces and territories, and 50% of complaints to the Canadian Human Rights Commission between 2009 and 2013.
  • According to a report published by the Canadian Human Rights Commission in 2015, the Northwest Territories Human Rights Commission received 51 complaints of disability discrimination out of a total of 101 complaints from 2009 to 2013.  Disability-related complaints increased between 2011 and 2013, from 55% to 73%.
  • Here are some notable disability complaints the Northwest Territories Human Rights Commission dealt with:
    • In 2008, the Commission found that Le Frolic Bistro Bar discriminated against a woman who was forced to leave with her assistance dog after being told that dogs were not allowed in the bar. The Panel found that Le Frolic’s conduct violated the Human Rights Act, but did not award monetary damages.
    • In 2016, the Commission found the City of Yellowknife had discriminated against a woman with physical disabilities and ordered the City to complete accessibility renovations to a public pool.  The Commission also ordered the city to stop using a discriminatory fee structure for the transit system, and to compensate the woman for the cost of bus fare and for injury to her dignity.
  • The Nunavut Human Rights Act has two important exceptions. It does not apply to:
    • Buildings, which “complied with the applicable building requirements” of any other law when the Human Rights Act came into effect, or
    • any other law that the Human Rights Act says is exempt.
  • Nunavut’s Human Rights Commission website includes annual reports only through 2012. Later reports can be found on the Legislative assembly’s website.
    • The one case file available concerns a decision made in 2011, where a man was injured while working in a mine, three months before he planned to leave his job. A doctor cleared his return to work, but the employer told the man that he could not return to his job, since he had already planned to leave.  The Tribunal ruled that the injury counted as a disability under the Human Rights Act, and that the man should receive compensation equal to the amount of pay he lost.
    • The most recent annual report from Nunavut (2014-15) provides statistics on the number of disability-related complaints.  Of a total of 90 complaints filed between 2004 and 2015, 22 (or 13%) were based on disability.
  • Like Nunavut’s legislation, the Yukon Human Rights Act, does not apply to buildings which existed when the law came into effect.
  • According to the report from the Canadian Human Rights Commission, the Yukon Human Rights Commission received 46 disability-related complaints out of 106 total complaints, from 2009 to 2013. 31 concerned employment and 15 had to do with providing “services.”
  • One notable disability decision from the Yukon concerned a woman with Fetal Alcohol Spectrum Disorder who was evicted from her apartment.  The Human Rights Tribunal found that, though the language of the statute limits the duty to provide for “special needs” to “physical disability … case law would hold that accommodation is required for all disabilities.”  The board also ruled that the accommodation requested, that the landlord interact with a social worker from an agency specializing in the disorder, was reasonable.  Since the landlord knew of the claimant’s disability and did not accommodate her, a human rights violation was found.

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