In a decision issued by the BC Human Rights Tribunal on August 11, 2022, Tribunal Member Devyn Cousineau held that a bookstore discriminated when it failed to provide American Sign Language (“ASL”) interpreters for a man who attended a free workshop and is DeafBlind.
According to the decision, Complainant Craig MacLean requested that Respondent Black Card Books pay for ASL interpreters to accompany him to a three-day workshop in October, 2018 in Vancouver, BC regarding writing and publishing books. The bookstore declined. It suggested that the complainant bring his own interpreters and provided the complainant with the workshop materials in print format. Mr. MacLean attended the workshop without interpreters. He was not able to understand the presentations or communicate with other participants.
In British Columbia, persons with characteristics listed in the BC Human Rights Code (including physical disability) are protected from discrimination when they are accessing publicly available services. To make out a complaint regarding services successfully, complainants must show that they have a protected characteristic, that they experienced a negative impact in relation to the services, and that there was a connection between their protected characteristic and the negative impact. Once this is proven, the respondent needs to justify the impact to avoid a finding against them.
In this case, the complainant showed that there was a connection between his disabilities and his adverse experience at the workshop. He cannot hear and he has a small range of vision within which he can see things up close. To communicate in person, he requires ASL interpretation. Usually he has two interpreters sit close to him to communicate. He did not have the interpreters at the workshop and so was not able to understand the material or communicate. He arrived in what seemed like a large dark room where there were around 100 attendees. This made the room difficult for him to navigate visually. He felt excluded and disheartened.
In finding that Mr. MacLean experienced an adverse impact, the tribunal noted the following at paragraph 22:
As the Supreme Court of Canada has recognized, “the disadvantage experienced by deaf
persons derives largely from barriers to communication with the hearing population”: Eldridge
v. British Columbia (Attorney General),  3 SCR 624 at para. 57. To enjoy equal access to
public services, a DeafBlind person may require that information be communicated in a
different way than for people who are not DeafBlind. This principle is at the heart of human
rights legislation, which is intended to examine “the way institutions and relations must be
changed in order to make them available, accessible, meaningful and rewarding for the many
diverse groups of which our society is composed”
Once the Tribunal found that the complaint experienced an adverse impact in connection with his disabilities, the Respondent Black Card Books needed to demonstrate that it did everything necessary and practical to accommodate Mr. MacLean and anything more would have amounted to undue hardship. Black Card Books was unsuccessful. When the complainant initially asked for interpreters and the respondent told him he could arrange his own, he offered to send the respondent an invoice. The respondent would not agree to pay. They said they would not pay because the event was free. It should be noted that the respondent’s purpose for putting on the event was largely to entice attendees into buying their publishing program, which cost around $35,000. It only made one sale at the event, which according to the respondent witness’s testimony, did not cover the costs of putting on the event.
In considering whether the respondent proved undue hardship, the tribunal held at paragraph 27 that the issue is not whether an accommodation costs money. Usually accommodations cost money. It will always seem cheaper to maintain the status quo. The question is whether the cost is undue, considering factors like the respondents’ size, economic conditions, and available funds. The Tribunal held the following at paragraph 27:
I accept that paying for ASL interpreters would have increased the cost of putting on the
workshop. But that does not end the analysis, because “[i]t will always seem demonstrably
cheaper to maintain the status quo and not eliminate a discriminatory barrier”: VIA Rail at para.
225. The Human Rights Code requires service providers to meaningfully assess the cost of a
required accommodation before concluding that it is too expensive. “Impressionistic evidence
of increased expense” is not enough: Eldridge at para. 41. Ultimately, the issue is not whether
an accommodation costs money – it often does – but whether that cost is undue, considering
factors like the respondent’s size, economic conditions, and available funds: Dunkley v.
University of British Columbia, 2015 BCHRT 100 at para. 427
The Respondent did not demonstrate that the cost was undue because it did not investigate whether it could afford the cost before refusing to pay it. The store did not make inquiries about what ASL interpreters would be available in Vancouver, how much they would cost, and how that would affect their event budget and the company’s overall financial situation. Further, the offer of allowing the complainant to bring his own interpreters was not reasonable because it put the entire burden of accommodation on the complainant. This would require the complainant to “assimilate into a service that was not designed for him, rather than requiring the service to adapt to meet everyone’s needs.” That would be inconsistent with the purposes of the Human Rights Code, which is meant to ensure that services are inclusive and accessible.
After finding that discrimination occurred, the Tribunal decided to award the complainant $2,500 as compensation for injury to his dignity, feelings, and self-respect. The tribunal also ordered that the respondent provide the complainant the opportunity to participate in the workshop with the interpretation services of his choice.