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.

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.”

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