50 Years of Legal Excellence

CLAS has represented its community in precedent-setting litigation that has provided long-lasting benefits to thousands of people in its 50 year history. From Canada’s first consumer class action lawsuit, to landmark human rights cases and beyond, CLAS has helped to shape the social justice landscape in Canada.

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Canada's First Consumer Class Action

Chastain v. B.C. Hydro and Power Authority, [1973] 2 W.W.R 461 (“Chastain”)

– CLAS Lawyers Ian Waddell, Q.C. and David Mossop, Q.C.

This was the first consumer class action launched in Canada in 1972. It successfully resulted in hundreds of thousands of dollars being returned to thousands of consumers, the vast majority of whom had a low-income.

Ms. Karen Chastain, a mature student at Simon Fraser University, along with a few other plaintiffs, sued on their own behalf, as well as for the class of any persons in a like position, seeking a declaration that security deposits demanded by BC Hydro as a condition precedent for the supply, or continued supply, of electrical power and gas, were illegal.  The action sought a permanent injunction and return of the security deposits on behalf of the entire class.

By way of background, it appears that BC Hydro was demanding security deposits from students, the unemployed, artists, and generally anybody who in the sole discretion of BC Hydro was deemed to be a risk of potentially not paying their utility bills. Additionally, when customers eventually closed their accounts and the deposits were returned, no interest was paid to these poorest of customers.

This discriminatory practice turned out not to be based on any hard evidence, but merely on prejudicial assumptions.

Following a new American legal concept of the “class-action law suit”, in which you sue on behalf of a group of people suffering the same illegal action and not just yourself, two of our first lawyers at CLAS, Ian Waddell, Q.C. (our second Executive Director at the time) and David Mossop, Q.C., decided to frame the legal action in this manner. The two also researched and relied on a legal principle that a public utility in a monopoly position cannot discriminate amongst its customers (note: this action predated the BC Human Rights Code).

The action was ultimately successful and BC Hydro was ordered to repay $350,000 to 12,500 people. After being put on notice that the BC Government intended to appeal the decision, Mr. Waddell was subsequently informed that the newly elected BC Premier, Dave Barrett of the NDP, had instructed that the appeal be abandoned. As Mr. Waddell states in the first chapter, “Community Law”, of his political memoir, “Take the Torch”, “Forty years later, Mossop wryly told the Community Legal Assistance Society’s anniversary gathering that we had arranged to win the 1972 provincial election to prevent an appeal”. Mr. Waddell also noted, “Because this case never went to appeal, it seems to have been lost in the mist of past cases, but I do believe a determined Ms. Chastain made legal history”.

The Legal Test for "Bona Fide and Reasonable Justification" is Established

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 (“Grismer”)

CLAS Lawyer Frances M. Kelly

In this landmark human rights law decision, the Supreme Court of Canada established the legal test for “bona fide and reasonable justification” by a service provider that it must meet in order to justify restrictions that appear, on the face of it, to be discriminatory, including, as part of this legal test, a duty on the service provider to reasonably accommodate to the point of undue hardship.

Mr. Grismer made a human rights complaint to the BC Human Rights Commission that he was discriminated against by the Superintendent of Motor Vehicles on the basis of his disability. Ultimately, the BC Council of Human Rights agreed. Mr. Grismer suffered from the condition homonymous hemianopia, which eliminated almost all of his left side peripheral vision in both eyes. The Superintendent’s standards required a minimum of a 120 degree field of vision. People with Mr. Grismer’s condition always had less than a 120 degree field of vision. Thus Mr. Grismer’s licence was cancelled. Despite the fact that his attempts to pass the standard driving tests were successful, he was nevertheless denied a driver’s licence on the ground that he could not meet the blanket minimum required standard of vision. The BC Council of Human Rights Member ordered that the Superintendent individually assess Grismer, as opposed to applying a blanket standard that ruled him out, and consider the possibility of restrictions on his licence, if necessary.

That decision was upheld at the BC Supreme Court but overruled by the BC Court of Appeal. The Grismer Estate then appealed to the Supreme Court of Canada. The Supreme Court of Canada overturned the BC Court of Appeal and restored the original decision of the BC Council of Human Rights. The Supreme Court of Canada observed that the distinction between direct and indirect discrimination has been eliminated.

It assessed that this new approach requires a complainant to establish that the standard used was prima facie (i.e. “on the face of it”) discriminatory. The onus then shifts to the respondent to prove a bona fide (i.e. “in good faith”) and reasonable justification.

It found that while Mr. Grismer established a prima facie case of discrimination, the Superintendent had failed to prove that the discriminatory standard had a bona fide and reasonable justification. While the goal of providing reasonable highway safety was legitimate and rationally connected to the function of issuing licences, and the standard was adopted in good faith, the standard was not reasonably necessary to accomplish the goal. The Superintendent did not show that persons with Mr. Grismer’s condition could not achieve highway safety. The Superintendent failed to show that the risks or costs associated with individually assessing those with Mr. Grismer’s condition constituted undue hardship. Thus, the Superintendent was obliged to provide Mr. Grismer an individual assessment of his driving ability.

As Chief Justice McLachlin stated in her unanimous decision, “This case deals with no more than the right to be accommodated.  It does not decide that Mr. Grismer had the right to a driver’s licence.  It merely establishes that he had a right to be assessed.  That was all the Member found and all that we assert.  The discrimination here lies not in the refusal to give Mr. Grismer a driver’s licence, but in the refusal to even permit him to attempt to demonstrate that his situation could be accommodated without jeopardizing the Superintendent’s goal of reasonable road safety  This decision stands for the proposition that those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship”.

Special Education Human Rights Complaint Leads to Establishment of Prima Facie Discrimination Test

Moore v. British Columbia (Education), [2012] 3 SCR 360 (“Moore”)

– CLAS Lawyers Frances M. Kelly and Devyn Cousineau

CLAS successfully represented a father, Frederick Moore, in his fight to have his son, Jeffrey, who suffered from severe dyslexia, receive an equal education. This leading Supreme Court of Canada case affirms every child’s right to meaningful access to education and reestablished the clear test to prove prima facie discrimination.

Jeffrey suffered from severe dyslexia for which he received specialized education at his public school. In Grade 2, a psychologist employed by the school district recommended that since Jeffrey could not get the sufficient remedial help he needed at his school, he should attend the local Diagnostic Centre to receive the necessary specialized educational assistance.  When the Diagnostic Centre was closed by the school district, Jeffrey had to transfer to a private school to get the specialized educational assistance he required.  His father filed a complaint with the BC Human Rights Tribunal on his son’s behalf against the school district and the Province on the grounds that Jeffrey had been denied a service customarily available to the public in breach of the BC Human Rights Code.

The Tribunal concluded that there had been unlawful discrimination against the son by the District and the Province and ordered a wide range of sweeping systemic remedies against both.  It also ordered that the family be reimbursed for the tuition costs of the son’s private school.  However, a reviewing judge at the BC Supreme Court set aside the Tribunal’s decision, finding that there was no discrimination.  A majority of the BC Court of Appeal agreed with the BC Supreme Court and dismissed the appeal made by the father on behalf of his son.

The Supreme Court of Canada, in turn, substantially overturned the BC Court of Appeal. This case reestablished the test to prove prima facie discrimination.

To prove discrimination, complainants are simply required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

No complicated comparator group analysis is required as the lower courts had imposed. Once a prima facie case has been established, the burden then shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes.  If it cannot be justified, discrimination will be found to have occurred.

This case significantly advanced the law for people with learning disabilities. Speaking for the court in her unanimous decision, Justice Abella stated, “Adequate special education is not a dispensable luxury.  For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.”

Advancing the Concept of “Intersectionality” in BC

Radek v. Henderson Development (Canada) Ltd. and Securiguard Services Ltd. (No. 3), 2005 BCHRT 302

– CLAS Lawyers Timothy Timberg and Judith Doulis

One of the earliest and most important decisions in advancing the concept of “intersectionality” in BC was Radek v. Henderson Development (Canada) Ltd. and Securiguard Services Ltd. (No. 3), in which Tribunal Member Lyster stated:

[464] The interrelationship between a number of intersecting grounds of discrimination is sometimes described as “intersectionality”. … an awareness of the effect of compound discrimination is necessary in order to avoid:

reliance on a single axis analysis where multiple grounds of discrimination are found, [which] tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred. (at para. 144)

[465] The same could be said in the present case with respect to race, colour, ancestry and disability. While the primary focus of Ms. Radek’s individual complaint is her race, colour and ancestry, the analysis of those grounds must not ignore her disability, and the possibility of the compound discrimination which may have occurred.

Ms. Radek was an Indigenous woman who had an artificial leg that caused her to walk with a limp. Due to her limited income and mobility problems, Ms. Radek’s shopping options were limited. There was a mall across the street from where she lived and she often used the shops and services there.

Tragically, for eight months, security guards at this mall treated her as “suspicious” based on her appearance, gait and negative stereotypes about Indigenous people. The security guards were following a policy that required them to remove “suspicious” people from the mall. Ms. Radek had suffered abuse and racism throughout her life and the security guards’ conduct against her had a significant emotional impact on her bringing up previous traumatic experiences.

The Tribunal found that Ms. Radek had been discriminated against and made a significant award for injury to her dignity, at that time, as well as groundbreaking systemic orders that the mall post orders, the security guards undergo anti-discrimination training, the mall develop a public complaints procedure, and the mall provide access to the Tribunal’s decision, among other remedies over which the Tribunal maintained oversight for several months after release of its decision.

Ms. Radek was represented by Timothy Timberg and Judith Doulis, two lawyers who helped establish the BC Human Rights Clinic at CLAS.

Addressing Systemic Discrimination Against Indo-Canadian Veterinarians

Brar and others v. B.C. Veterinary Medical Association and Osborne (No. 22), 2015 BCHRT 15

– CLAS Lawyer Aleem Bharmal, QC and private practice human rights lawyer Clea Parfitt

Brar and others v. B.C. Veterinary Medical Association and Osborne (No. 22), 2015 BCHRT 15 was a landmark decision in which the BC Human Rights Tribunal ruled, after a very lengthy hearing, that the BC Veterinary Medical Association (BCVMA) engaged in systemic discrimination against a group of Indo-Canadian veterinarians operating animal clinics in the Lower Mainland.

In her ruling, Tribunal Member Parrack collectively awarded over $300,000 in monetary damages and also made a number of substantive systemic orders, which included the mandating of an independent review of certain cited disciplinary complaint files, the posting of an anti-discrimination policy on the BCVMA website, and the provision of a one-day racial discrimination training program for staff, contractors, volunteers and various committee members.

Some of the major findings Member Parrack included:

  • the BCVMA tolerated and facilitated the discussion of wide-ranging and race-based allegations about Indo-Canadian vets
  • persons of influence in the BCVMA were recorded making comments that reflected negative race-based views of Indo-Canadians, which the BCMVA failed to properly investigate or sanction
  • race-based stereotypes played a role in the BCVMA’s dealings with the vets, leading to the poisoning of the relationship between the two groups, an outcome the BCVMA wrongly blamed entirely on the vets, accusing them of just ‘playing the race card’
  • the BCVMA erected an unreasonable barrier to practice for Indo-Canadian vets by instituting a discriminatory English Language Standard higher than that used by comparable professional associations
  • the BCVMA targeted Indo-Canadian facilities with the newly instituted practice of unscheduled inspections that were based on unsubstantiated rumours and anecdotal complaints about their practices
  • the BCVMA’s processing of disciplinary complaints gave rise to patterns of race- based adverse treatment in a number of harmful ways, as detailed in her decision
  • the timing of the implementation of a new disciplinary disclosure policy also had the effect of further targeting Indo-Canadian vets who, at the time of their complaint, comprised all but one of the vets identified on the BCVMA website as being subject to disciplinary action

The Indo-Canadian veterinarians were represented by Aleem Bharmal, QC, a human rights lawyer and, at the time, the Executive Director of CLAS, and by his co-counsel, Clea Parfitt, a human rights lawyer in private practice.

Access to Justice the Focus of CLAS’s Intervention in SCC Case on Public Interesting Standing

Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45 (DESW)

– CLAS Lawyers David Mossop, Q.C. and Diane Nielsen

This case arose out of a Charter challenge against provisions in the Criminal Code that criminalize aspects of sex work. The case was launched in 2007 by Sheryl Kiselbach, a former sex worker working as a violence prevention coordinator in the DTES, and by the Downtown Eastside Sex Workers United Against Violence Society, an organization run by, and for, street-based sex workers. The British Columbia Supreme Court dismissed the case on the basis that neither party “had private interest standing and that discretionary public interest standing should not be granted to them.” On appeal, the British Columbia Court of Appeal agreed that Ms. Kiselbach lacked private interest standing, but found no reason to deny public interest standing to both parties. The Attorney General of Canada appealed to the Supreme Court of Canada.

CLAS intervened at the SCC to advocate for a modern approach to public interest standing. The test for public interest standing had been previously been distilled to a three part test. Parts one and two – whether the case raises a serious justiciable issue and whether the party bringing the action has a real stake or a genuine interest in its outcome – were generally agreed upon by the parties.

At issue in the case was the third part of the test, or the “reasonable and effective means” test. Was this part of the test met if there was no other reasonable and effective manner in which the issue may be brought before the Court or was it time to approach this part of the test more generously?

The SCC held that the public interest standing test as a whole should be applied purposively and flexibly rather than strictly. The SCC expressed the third part of the test as whether, having regard to a number of factors, the proposed case is a reasonable and effective means to bring the case to court. This more inclusive approach favoured granting public interest standing to the respondents. The SCC upheld the BCCA decision, affirming that Ms. Kiselbach and the Downtown Eastside Sex Workers Against Violence Society have public interest standing to challenge the prostitution provisions of the criminal code.

This case assists CLAS because it allows our organization to start constitutional challenges on behalf of vulnerable people that may not be able to access the justice system effectively on their own. This results in the potential for better access to justice, particularly for marginalized groups.

Expanding the Scope of Services Customarily Available to the Public

Berg v. UBC School of Family and Nutritional Sciences, [1993] 2 S.C.R. 353 (S.C.C.)

– CLAS Lawyer David W. Mossop

In this case, the Supreme Court of Canada significantly expanded the scope of “services customarily available to the public” that are protected by human rights law. This meant that institutions like universities cannot begin to discriminate against someone after that person is accepted into a program on the basis that the service is no longer customarily available to the public.

In 1979, Janice Berg was accepted in the Master’s program of the University of British Columbia School of Family and Nutritional Sciences. As a student, she consistently performed above average. Although she experienced a recurrence of depression in 1981, she continued to attend classes and was capable of responding to the same demands and expectations as other students. During that period, on a particularly stressful day, Ms. Berg wrote “I am dead” on the mirror in the School’s washroom and, later the same day, when frightened upon seeing R.C.M.P. and security personnel in the hall, she attempted to jump through a plate glass window. When the School moved to new premises in 1982, Ms. Berg was denied a key to the building while other graduate students were provided with one. The School argued that providing a building key was not a service customarily provided to the public.

The Supreme Court of Canada held that the word “public” in s. 3 of the Human Rights Act cannot be required to include every member of a community. The distinction found in previous Court decisions between discrimination at the threshold of admission to a facility and discrimination once admitted was artificial and unacceptable. Such a distinction would allow institutions to frustrate the purpose of the legislation by admitting people without discrimination, and then denying them access to the accommodations, services and facilities they require to make their admission meaningful. This distinction leads to results the legislature cannot have intended. A liberal and purposive interpretation of s. 3 would define “public” in relational terms, not in terms of quantity. Every service has its own public, and once that “public” has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public. Therefore, when Ms. Berg was denied a key to the university building that other graduate students were provided, she was denied a service customarily available to the public and discriminated against because of her mental disability.

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