The Commission continues to believe that the rights of people with disabilities deserve particular focus within the broader fabric of human rights. During the year under review, government, business and service providers took steps to ensure that people with disabilities have opportunities to participate fully in Canadian society. It is clear, however, that much more needs to be done before they share equitably in all that Canada has to offer.

Employment and accessibility are two of the principal challenges. As the chapter on Employment Equity notes, people with disabilities do not receive a fair share of hirings in either the public or private sectors.

Similarly, we are no closer to a national set of building codes that require accessibility for people with disabilities. In the fields of transport, access to information, and communications, progress largely depends on the pursuit of individual complaints. And though the Supreme Court of Canada's 1997 ruling in Eldridge v. British Columbia enjoined service providers to ensure accessibility, there is little evidence that this is taking place in a concerted way.

Ensuring Full Participation

Vigorous debate continued throughout 1999 on strategies to ensure full citizenship and participation for people with disabilities. This debate revolved around a number of documents. The first was Reflecting Interdependence: Disability, Parliament, Government and the Community, issued by the Parliamentary Sub-Committee on the Status of Persons with Disabilities. Then there was A National Strategy for Persons with Disabilities: the Community Definition, a work in progress issued by the Council of Canadians with Disabilities on behalf of a coalition of disability rights groups. Finally, there was the federal government's policy framework, Future Directions, and the related Federal Disability Agenda.

While these documents offer differing views on how to achieve change, each identifies the need for integrated, consistent and accountable services and support. Each recognizes the need for partnerships between federal, provincial and territorial governments, private business, community groups, and people with disabilities. And each recognizes the need to eliminate systemic barriers to participation.

Together with the principles adopted in the February 1999 Federal, Provincial and Territorial Social Union Framework Agreement, this common view offers hope for concrete change in the year to come. The Commission will contribute to that change by participating in various working groups and advisory bodies, and by continuing to provide advice and encouragement to those seeking to eliminate discrimination.

The Federal Disability Agenda

The Commission welcomes many of the initiatives in the Federal Disability Agenda. It is especially pleased to see work continue on a new Health and Activity Limitation Survey, or HALS, and the establishment of committees to examine issues such as accessible information technology.

The Commission supports the commitment to an "access and inclusion lens" to be applied to all programs, policies and practices. Equally important is the need to integrate this examination of new and existing programs and policies into a strategic planning and reporting framework, since it will inevitably reveal barriers. Removal of these barriers could best be achieved through the development, by all departments and agencies involved, of mutually reinforcing action plans. These would include time frames for implementation and a specific commitment of resources.

Both the disability rights sector and the Parliamentary Sub-Committee have expressed concern about the lack of accountability and enforcement of policy in government. The disability rights sector has called for a new and independent "responsibility centre" to act as an advocate within government. The Parliamentary Sub-Committee, meanwhile, has called for a "consolidated responsibility centre for disability issues ... to act in both policy and program areas."

While it fully supports the need to make individual departments and programs accountable for removing barriers, the Commission will continue to call for stronger enforcement and accountability systems.

The issue of reporting is crucial. The Parliamentary Sub-Committee called for the Treasury Board and Human Resources Development Canada to report annually on progress in the removal of barriers. To ensure integration, consistency, and accountability in all government programs and services, the reports would require information on outcomes, commitments and performance indicators.

The government responded by saying that while it will develop an interdepartmental framework for reporting on progress on disability issues, it will, as a first step, look to integrate reporting into existing mechanisms.

While the Commission welcomes this commitment, it has concerns. For instance, the Parliamentary Sub-Committee went so far as to say that existing reporting mechanisms such as departmental performance reports serve to "perpetuate the isolation chambers that have prevented cross-departmental coordination and accountability." The Commission believes that annual reporting should be based on criteria developed in consultation with the community. To ensure that the issues receive suitable attention, such reports should preferably be prepared separately from departmental performance reports.

Many of the issues addressed in the Federal Disability Agenda fall within the ambit of the Canadian Human Rights Act. Under the Act, government departments and agencies are already required to eliminate barriers and provide accommodation up to the point of undue hardship. The importance of taking active steps to meet the needs of minority groups was strongly reaffirmed in 1997 by the Supreme Court of Canada in Eldridge v. British Columbia and in 1999 in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union, better known as the Meiorin case. These rulings suggest that the removal of barriers to participation should be built into policies, services and programs, rather than being addressed after the fact through accommodation. The Commission hopes that proceeding in this way will help achieve the vision expressed in Future Directions.

Access and Participation

During the year, the Commission continued to advise on the requirements of the law and to encourage a systemic approach to removing barriers. In this regard, Commission staff contributed to the work of Human Resources Development Canada's Interdepartmental Committee on Disability; the Treasury Board's Access Working Group; and the joint Treasury Board and National Research Council Interdepartmental Task Force on the Integration of Employees with Disabilities through Information and Communications Technologies. The Commission also contributed to the Committee on Barrier-Free Design Standards of the Canadian Standards Association, now known as CSA International, and to the Canadian Transportation Agency's and Transport Canada's Accessible Transportation Advisory Committees.

The Commission is especially pleased to see that the Canadian Standards Association has completed technical and design standards for accessible automatic teller machines. It hopes that manufacturers and all service providers, not only federally regulated financial institutions, will move quickly to introduce the machines across Canada once the standard is adopted. In this context, the Commission congratulates the Royal Bank of Canada, which received an award in 1999 for introducing audio automatic teller machines. The bank took action after a blind person lodged an accessibility complaint against it, and is to be commended for its willingness to address the problem, and to do so in consultation with organizations representing blind and visually impaired people.

The Access Working Group and the Interdepartmental Task Force are committed to ensuring that communications technology and Internet services are accessible. Their proposals, including matters relating to procurement contracts, home page design, and workplace accommodation, should receive serious consideration by the federal government and the business community.

The Commission continues to receive complaints about inaccessible transport services and facilities, particularly from people who have difficulty accessing information and those who use mobility aids. On a positive note, the Canadian Transportation Agency issued a new voluntary Code of Practice in 1999 on the accessibility of ferries.

Another area of concern is the lack of access to teletypewriter facilities in airports, railway stations and booking services. The Commission and the Agency have received complaints, and are considering how best to address this issue. The Commission is also speaking with telecommunications companies about providing teletypewriter services in public areas.

In 1999, the Canadian Radio-television and Telecommunications Commission concluded a review of its policies in relation to private television. Part of that review included questions on closed captioning and providing descriptive video services to blind and visually impaired people.

The CRTC chose to stay with its 1995 policy on closed captioning, which requires that targets be set according to the annual advertising revenues of licensees. Similar targets were also established for French-language broadcasters. Although the extension of targets to the latter is welcomed, the technological advancements and reduced costs associated with captioning requirements may warrant a review of this policy in the near future.

Concluding that it would be premature to impose specific requirements, the CRTC also chose to encourage licensees to introduce descriptive video services gradually. In light of developments elsewhere, it is to be hoped that the CRTC will revisit this decision. For example, the United States' Federal Communications Commission has proposed a rule requiring larger television broadcasters to provide roughly four hours per week of prime time or children's programming accessible to people with hearing impairments.

Special Issues in Disability

Jurisprudence

Two decisions handed down by the Supreme Court of Canada in 1999 are likely to have a significant effect on the work of the Commission, and warrant particular attention by employers and providers of services to the public.

The first, the Meiorin case, dealt with an allegation of sex discrimination concerning a fitness standard for firefighters that the respondent claimed was a bona fide occupational requirement. Madam Justice Beverley McLachlin, who wrote the decision for the Court, revised the traditional test for bona fide occupational requirements, which led to different outcomes depending on whether the Court found that direct or adverse effect discrimination was at issue. Instead, the Court established a unified test addressing both types of discrimination. The Meiorin decision sets out a clear series of questions to be used when analysing standards or policies to determine whether they are discriminatory.

The decision also emphasizes the need to focus on substantive equality when designing standards and policies. As Justice McLachlin noted:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. (Paragraph 68)

The second decision - British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), the Grismer case - dealt with an allegation of discrimination in the provision of licensing services. The respondent claimed that it had a bona fide justification to exclude people with a particular visual disability from obtaining a driver's licence. The Court, applying the reasoning from the Meiorin decision, rejected the respondent's claim. In delivering the court's ruling, Justice McLachlin agreed that, in certain circumstances, it is reasonable to impose standards or rules on the provision of services. However, these rules will not survive the Meiorin test if they are not carefully designed to accommodate people with disabilities. To quote Justice McLachlin:

This decision stands for the proposition that those who provide services subject to [human rights law] must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship. (Paragraph 44)

Naturally, the Commission welcomes both decisions, which clarify the obligations on employers and service providers to develop and maintain non-discriminatory and inclusive standards and policies.

HIV and AIDS

As the twentieth century was coming to a close, some 33.6 million people with the Human Immunodeficiency Virus, or HIV, faced the possibility of developing Acquired Immune Deficiency Syndrome, or AIDS. In Canada, although the number of AIDS cases is dropping, the number of reported HIV infections is on the rise. By the end of 1999, more than 54,000 Canadians had been exposed to HIV. Every day, about a dozen more are exposed.

Complaints received by the Commission and other agencies suggest that people continue to experience discrimination because they have tested positive for HIV or have AIDS. Examples include access to medical benefits, harassment in the workplace, and termination of employment. People with HIV and AIDS are also denied some services such as bank loans.

The year saw the release of a report on the legal and ethical issues surrounding injection drug use, HIV, and AIDS. The report, prepared by the Canadian HIV/AIDS Legal Network, noted that the spread of HIV and hepatitis C among injection drug users in Canada merits serious and immediate attention. In 1996, half of the estimated new HIV infections were among injection drug users. The dual problem of injection drug use and HIV infection is particularly severe among certain groups, such as street youth. The report calls upon the federal government to examine how some current legislation, including the Criminal Code, has a disproportionate impact on the most vulnerable members of society. It concludes that from "an ethical perspective, considering alternatives to the current approach is not just possible, but required."

Complaints

In 1999, the Commission completed work on 604 complaints of discrimination based on disability. Seventy-three cases were settled at mediation, at conciliation, or in the course of investigation. The Commission dismissed 70 cases for lack of evidence, appointed a conciliator in 102 cases, and referred eleven cases to the Canadian Human Rights Tribunal.

Disability Discrimination Complaint Outcomes for 1999
(number and percentage)

Settled¹: 73 (12 %)
Referred to alternate redress mechanisms: 79 (13 %)
Referred to conciliation: 102 (17 %)
Referred to a tribunal: 11 (2 %)
Not dealt with²: 14 (2 %)
Dismissed: 70 (12 %)
No further proceedings³: 32 (5 %)
Discontinued⁴: 223 (37 %)
Total: 604 (100 %)

² Cases that the Commission decided not to pursue because they were filed more than one year after the alleged act of discrimination, or were, technically, without purpose.

³ Cases in which the complainants withdrew or abandoned their complaints, the matters were outside the Commission's jurisdiction, or the complaints did not warrant referral to a tribunal.

⁴ Cases that were closed prior to investigation because the complainants did not wish to pursue them or because a link could not be established between the alleged act and a prohibited ground of discrimination.

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