Wheelchair users recount ordeal of getting restaurant bathroom complaint heard
Shaina Luck | CBC News | Posted: July 6, 2018 10:50 PM | Last Updated: July 6, 2018
Two years after the initial complaint to N.S. Human Rights Commission, a ruling is on the horizon
A human rights hearing into the way the province enforces the rules around accessible washrooms and food safety has concluded in Halifax, leaving wheelchair users watching closely for a ruling in the case.
Wheelchair users Gus Reed, Ben Marston, Paul Vienneau, Jeremy MacDonald and Kelly McKenna made a complaint to the Nova Scotia Human Rights Commission in 2016 that inaccessible restaurant washrooms put their health and public health at risk.
Their lawyer, David Fraser, said in his closing arguments Friday that food safety regulations state washrooms must be available to the public, but currently this regulation is enforced with the "average" able-bodied person in mind. The complainants say this prevents them from taking normal sanitary measures like washing their hands before eating.
The government's lawyer, Kevin Kindred, argued that the complainants are mixing up food safety and accessibility, and that changing the way the regulations are enforced could result in restaurants losing their licenses and closing.
He added that washrooms are not the only places that are inaccessible in some restaurants.
Kindred said the complaint could result those restaurants being forced to build accessible washrooms, without making the front door accessible, which he characterized as an "absurdity."
Board chair Gail Gatchalian expects to render a decision before the end of summer.
Long wait for hearing
The complainants' lawyer reminded the hearing they have been waiting a long time for these issues to be heard.
Lead complainant Gus Reed's case was rejected twice by different Nova Scotia Human Rights Commission (NSHRC) intake officers. The complainants then went to Nova Scotia Supreme Court to have a judge determine whether their case deserved to be heard.
In a March 2017 decision, Justice Frank Edwards ruled that the commission had to hear Reed's case, and that it does not have the authority to refuse to accept a complaint.
The decision examined the intake process for complaints at the human rights commission. It is a two-step process which distinguishes between "inquiries" and complaints which the commission is actively investigating.
"Inquiries are essentially any contact received by the Commission by phone, email or visit. Often these contacts are not related in any way to human rights in which case the individual is referred to the correct government agency or outside organization that can assist them," explained Jeff Overmars, the commission's manager of communications, in an email.
Once a human rights commission officer has determined that the "inquiry" is a matter for investigation under the human rights act, it is re-classified as a "complaint" and investigated.
"The threshold for proceeding to this step is low," Overmars wrote, explaining if the inquiry doesn't proceed, it is usually because the individual decided not to go further, couldn't provide the necessary information or the issue isn't within the jurisdiction of the commission.
However, that's not what happened in Gus Reed's case.
"I think having to take the human rights commission to court in order to hear this is pretty unacceptable," said Reed before the proceedings Thursday. "I think it is most assuredly a case of discrimination. I think they should have paid attention at the very beginning."
Reed said he thought the process to lodge a human rights complaint would be difficult, time-consuming and daunting to many.
The commission's lawyer argued in court that if every inquiry was treated as a complaint, the commission would be "overwhelmed." Edwards responded that he was "not impressed" with that argument and said the commission had provided no statistics to back its case.
CBC asked the commission to provide statistics showing how cases were resolved.
The statistics showed it received between 1,998 and 2,588 inquiries per year, over the last five years.
During that period of time, the average number of inquiries that proceeded to the complaint/investigation stage was 4.9 per cent, or between 98 and 147 cases a year.
The commission did not break down the nature of the inquiries that don't proceed to the complaint stage, but said they could include things such as employers seeking advice on accommodating an employee with a disability or people who want advice from the commission on their circumstances.