N.W.T Human Rights Commission appeal supporting legal aid for human rights complaints dismissed

The Court of Appeal for the Northwest Territories has ruled that the Legal Aid Commission's policy to not fund human rights complaints is not discriminatory to people with disabilities.

The decision from the three judge panel stems from a human rights complaint filed by Elizabeth Portman, a champion of the rights of people with disabilities who lives in Yellowknife, against the commission and the territorial government.

Portman had argued the commission's policy was discriminatory after she was denied legal aid for two human rights complaints, filed in 2011, against her then employee, the territorial government and its insurance provider Sun Life Financial. Portman had been denied long-term disability benefits after her multiple sclerosis unexpectedly flared after having been in remission for 10 years.

It is not objectionable for the Legal Aid Commission to draw those lines, knowing that its decisions may have different impacts on different citizens.- Court of Appeal for the Northwest Territories

The commission focuses on criminal matters and does not provide funding for most civil matters or proceedings before tribunals including residential tenancy boards, small claims court and the Worker's Safety and Compensation Commission.

An adjudication panel appointed by the Human Rights Commission concluded that the policy was discriminatory. But that decision was thrown out on appeal from the Legal Aid Commission and territorial government by N.W.T. Supreme Court Justice Karan Shaner in August 2017.

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In its memorandum of judgment, the appeal court said the service Portman asked for was not "customarily available to the public," as the Legal Aid Commission does not provide funding to anyone for human rights complaints.​

Funding issues 

It also said while "in a perfect world" the territory would have universal legal coverage, the Legal Aid Commission has a limited budget and the power to enact policies on how that funding is spent.

"It is not objectionable for the Legal Aid Commission to draw those lines, knowing that its decisions may have different impacts on different citizens," the memorandum states.   

The appeal court also noted that because the Human Rights Commission operates the human rights complaint process, any duty to accommodate would fall on its shoulders.

Chris Buchanan, legal council for the territorial government, said he was "pleased" with the decision and noted it's not possible for legal counsel to be provided in all cases.

"There is no general right in Canada to legal counsel and so really it comes down to funding issues and what is feasible," he said.

Buchanan also said this may be an opportunity for the Human Rights Commission to provide more assistance to people facing barriers to the human rights complaints process.

Improvements to complaint process

Charles Dent, chair of the Human Rights Commission, said the decision provides clarity on the issue and that work on making the human rights complaints process faster and easier to navigate is already underway.

"There's been a lot of work done by both the director's office and the adjudication panel to try and smooth out some of the bumps and warts that were in there," he said. "I believe that people who use the system now would say that it has become a lot better just in the last three or four years, compared to what it was."

Dent said one recommendation in a comprehensive view of the territory's Human Rights Act is to have the commission take on carriage of complaints, rather than leaving it up to a complainant, as is the case in other jurisdictions across the country.

"That would certainly make it a  lot easier for most complaints to get through the process," he said.

The report has been submitted to the Legislative Assembly and Dent said he hopes to see legislation introduced in the fall.

Portman's original human rights complaints against the N.W.T. government and Sun Life Financial are still pending with the Human Rights Commission.

Portman declined an interview with the CBC.