accommodation

Maintaining a Discriminatory Status Quo is not Always Cheap: Tribunal Finds Bookshop’s Failure to Arrange for ASL Interpreters at Free Workshop Discriminatory, Awards Complainant $2,500

kaylabergssonLeave a comment

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), [1997] 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.

Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

kaylabergsson1 Comment

Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

Do the BC COVID-19 Vaccination Passport Orders Prevail Over Human Rights Legislation Requiring Disability Accommodation?

kaylabergssonLeave a comment

The law regarding BC’s COVID-19 vaccination passport and entry into various establishments in the province was published today. This post discusses the publication of the relevant orders, their lack of human rights (disability) accommodations, the issue of whether they prevail over the discrimination protections set out in the Human Rights Code, their relationship with the Charter, and the protections available to service providers who follow them. Activities that are not covered by the orders will be set out in a later post.

Publication of the Orders

While BC Premier John Horgan, Provincial Health Officer Dr. Bonnie Henry, and Health Minister Adrian Dix announced the upcoming provincial health order(s) on August 23, 2021, the law itself was not published here on the BC Office of the Provincial Health Officer website until yesterday evening and this morning. The Provincial Health Officer Order regarding post-secondary institution housing and the COVID-19 vaccine cards is dated September 9, 2021 but was published yesterday evening. The Provincial Health Officer Orders regarding the COVID-19 vaccine passport and food and liquor serving premises is dated yesterday September 10, 2021 but was published today, and the Order regarding COVID-19 vaccination passports and “gatherings and events” is also dated yesterday but was published this morning. In this post, I will call all three of these, taken together, the “Orders.”

Lack of Human Rights (Disability) Accommodations

Further to my post of August 23, 2021 and in line with what Dr. Henry stated at the press conference regarding the anticipated Orders on August 23, 2021, the Orders do not provide exemptions for people who cannot get vaccinated or provide proof of vaccination for medical reasons. The only people who the orders make exemptions for are those under 12 years of age. This means that the orders will conflict with the BC Human Rights Code, which prohibits discrimination and requires service providers to accommodate people with disabilities to the greatest extent possible. The orders also conflict with the guidance of BC’s Human Rights Commissioner, who released a policy guidance document in July, 2021 affirming that service providers must seek to accommodate people who are unable to get vaccinated on the grounds of their BC Human Rights Code protected characteristics (disability, religion, family status, etc.).

The orders are more restrictive than the current order regarding face coverings in indoor spaces, which does include human rights exemptions for people with disabilities, as follows:

Requests to Reconsider Order

Though there is not specific provision for disability accommodations in the Orders, there is mention that persons who want to avoid complying with the Orders can ask the Provincial Health Officer (Dr. Bonnie Henry) directly for reconsideration of the Orders applying to them. The process is set out in section 43 of the Public Health Act as follows:

The manner of making requests is set out by the Provincial Health Officer as follows:

As such, the Order can only be varied in relation to certain individuals in a limited set of circumstances, when a request is made to the Provincial Health Officer with documentation from a medical practitioner that the health of a person would be “seriously jeopardized” if the person were to receive the vaccine, as well as the person’s relevant medical records. And consideration of these requests is discretionary; there’s no guarantee for an exemption even with the required medical documentation.

Do the Orders Prevail Over the Human Rights Code?

There is uncertainty surrounding whether service providers who are in breach of the Human Rights Code due to acting in accordance with the Public Health Officer orders will be shielded from liability for discrimination. On the one hand, there are Public Health Act provisions meant to protect those who are following the Orders from legal and other adverse action. However, at the same time, there is a paramountcy provision in the Human Rights Code stipulating that if there is a conflict between the Human Rights Code and another enactment (such as the Public Health Act), the Human Rights Code prevails.

Public Health Act Provisions Regarding Immunity from Legal Proceedings

The provisions of the Public Health Act that give immunity to service providers responsible for the vaccine passport screening are as follows:

As such, it may be that service providers acting in accordance with the order but contrary to the Human Rights Code cannot have a human rights complaint brought against them successfully UNLESS they are acting in bad faith. It is a high threshold for finding bad faith conduct and it would need to involve something uniquely egregious.

However, sections 92 and 93 of the Public Health Act may also be read narrowly so that they only capture court actions (for example in tort or contract) for damages, but not human rights complaints brought in the BC Human Rights Tribunal. Or the provisions could be interpreted so that they allow a complainant to successfully bring a human rights complaint, but not be entitled to any damages.

Further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below.

Additional Public Health Act Protection from Adverse Action for Service Providers

In addition to being shielded from legal proceedings, potentially including human rights complaints, service providers acting in accordance with the orders are also generally shielded from any “adverse action,” which is defined as “an action that would adversely affect, or that threatens to adversely affect, the personal, financial or other interests of a person, or a relative, dependent, friend or business or other close associate of that person, and includes any prescribed action.” This means that if someone feels aggrieved by a service provider carrying out an order and so attempts to take adverse action against that service provider in some way, they’re potentially contravening the Public Health Act section 94. One such contravention might include the recent rumours that opponents of the vaccination passports plan to call restaurants carrying out the order and make fake take out orders to harm the businesses.

It is possible that this provision may also be interpreted as preventing potential complainants from successfully bringing a complaint under the BC Human Rights Code, because doing so could potentially be interpreted as an “adverse action.” However, it does not appear that the intention of this provision was to capture human rights complaints, and this section of the Public Health Act is so broad that it may potentially be unconstitutional. And again, further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below

As per section 99 of the Public Health Act, contraventions of section 94 are an offence. Section 99 offences can come with alternative penalties under section 107 such as paying a person compensation and/or, additionally under section 108 of the Public Health Act, a fine of up to $25,000, imprisonment of up to 6 months, or both.

No Mention of Human Rights Code in Events and Gatherings Order

Interestingly, there is no mention of the BC Human Rights Code in the third order regarding events and gatherings. In contrast, the other two Provincial Health Officer orders regarding food and liquor establishments and university housing have included a provision in their preamble regarding the Provincial Health Officer’s consideration of the Human Rights Code. For example, in the preamble to the order regarding vaccine passports at university housing, the following is stated about the Human Rights Code:

O. In addition, I recognize the interests protected by the Human Rights Code, and have taken these into consideration when exercising my powers to protect the health interests of residents, staff and faculty at post-secondary institutions;

Human Rights Code Paramountcy Provision

Although there is no mention of the Human Rights Code in one of the Orders, the code still generally applies when someone experiences an adverse effect (such as being denied entry to a venue) as a result of their disability not being accommodated by a service provider.

The Public Health Act sections potentially shielding service providers from human rights code liability for discrimination, or having to pay damages for discrimination, must be read and analyzed with reference to section 4 of the Human Rights Code, which stipulates as follows:

Code prevails

4   If there is a conflict between this Code and any other enactment, this Code prevails.

Given this section of the Human Rights Code, a complainant could argue before the Human Rights Tribunal that although the Orders mandate vaccination cards without any reasonable exemption to accommodate for disability, this conflicts with the Human Rights Code, which requires accommodation. Per section 4 of the Human Rights Code, the code, with it’s accommodation requirements, prevails.

Further, a complainant could also potentially argue before the Human Rights Tribunal that although the Public Health Act provides immunity from legal proceedings for damages and protection from adverse actions to service providers when they follow the Orders, this conflicts with the Human Rights Code, which allows complainants to bring a human rights complaint, for damages, when they have been discriminated against. Per section 4 of the Human Rights Code, the prevailing provisions are those of the Human Rights Code that allow a complainant to bring a human rights complaint for damages.

Constitution/Charter of Rights and Freedoms Consideration

All three of the recent orders regarding vaccination passports do include a provision regarding the Canadian Charter of Rights and Freedoms. I often hear people bringing up the issue of these types of orders violating their charter rights and therefore being of no force and effect. That is not necessarily true. Under Canada’s Charter, it is possible for law to violate constitutionally protected rights, but in a way that is considered justified per the Charter. And so in that case, a court considering a Charter challenge can uphold a law even though it was considered unconstitutional, because the Court finds this justified under the Charter. The Orders bring up this issue by stating as follows in their preambles:

I further recognize that constitutionally-protected interests include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary and evidence-based restrictions to prevent loss of life, serious illness and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID-19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles;

Activities Not Covered By the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to university housing, the second to food and liquor service premises, and the third to “gatherings and events.”

I plan on discussing what is not covered by the Orders in a separate post, which will follow.

Human Rights Tribunal Rules Burden on Mother to Consider Non-Corporate, Home-Based Daycare as Solution to Work Schedule/Childcare Conflict

kaylabergssonLeave a comment

child plays with wooden blocks with letters on the floor in the room a little girl is building a tower at home or in the kindergarten.

In reasons issued on June 5, 2020, the BC Human Rights Tribunal dismissed the complaint of a Pacific Blue Cross (PBC) employee who alleged that her employer failed to accommodate her in relation to her family status.

The complainant was a team leader in PBC’s customer service department. She had just returned from maternity leave, which was already cut short due to a childcare issue.

Childcare can be difficult to find in BC. As parents of young children know, you often need to put your child on a childcare wait list, especially if you are looking to get them into childcare as an infant. It can take over a year to get off of a wait list. As a result, some parents in BC put their children on childcare wait lists before they are even born. Once your child’s turn on the wait list comes up, you need to choose to either put them in care or lose your spot.

Thus, when a spot became available for the complainant’s child at 10 months old, she decided to take the opportunity to get him into the facility and go back to work for PBC. Her office was in Burnaby and her home and childcare facility were in Langley. With traffic, the commute can be between 45 and 90 minutes.

The complainant’s work schedule prior to her maternity leave ended at 4:30pm and she understood it would continue to end at that time when she returned. Her son’s childcare required pick up by 6:00pm.

When she returned to work, she was told that her schedule would change to require her to work until 5:00pm for one week every four weeks. The complainant told PBC that she could not do this because it would not allow her time to reliably pick up her child by 6:00p.m. She expected PBC to accommodate her childcare schedule. They did not. As a result, she filed a human rights complaint asserting that she was discriminated against on the basis of her family status.

Tribunal Member Norman Trerise noted in his reasons that the law puts the onus on a the complainant to prove that the employer changed a term or condition of the employment and that the change seriously interfered with a substantial parental duty or obligation. Mr. Trerise held that the complainant did show there was a change to a term of the complainant’s employment. He held, however, that the change did not seriously interfere with a substantial parenting duty or obligation.

According to the member, this was because the complainant did not do enough to explore alternate childcare options. He held as follows:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which PBC imposed on the TLs. She eliminated, without any visits to ascertain their suitability for her child’s needs, all home‐based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre‐conceived idea that
“corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Further, he held:

[66] Instead of searching for a suitable daycare her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules for TLs and alternatively a search for alternate employment.

…

[68] Ms. Ziegler has made it clear in her evidence that she felt it was unfair for PBC to put her in the position where she must alter the childcare arrangement she had in place. In particular, she was not prepared to consider a non‐corporate, home‐based daycare as a possible solution. Many parents might react similarly, particularly given the age of her child. The test for discrimination on the basis of family status under the Code, however, makes it clear that more is required.

This decision provides a lesson for parents alleging discrimination in failing to accommodate their childcare schedules in the future. As per this decision, parents need to show that they have made an effort to find a solution to the problem. This could mean exploring alternative types of childcare facilities, an alternate schedule with the daycare provider you have, or an alternate schedule with your spouse and their employment. Even if your efforts are fruitless because you still could not solve the problem, the point is to show that you tried.