Lack of Access to Legal Aid Is Discriminatory, Despite Court Ruling

The decision of the Supreme Court of the Northwest Territories in Northwest Territories v. Portman (No. 2) (2017 NWTSC 61, CHRR Doc. 17-3077) is dismaying. It does not fit the times, or the serious problems that there are in Canada with access to justice.

Lack of legal aid funding to support access to justice, particularly for poor and vulnerable individuals, is a notorious problem, commented on repeatedly by Canada's Chief Justice, the Honourable Beverley McLachlin. The lack of legal representation for human rights complainants is also a notorious problem, not just in the Northwest Territories, but in many jurisdictions in Canada. In British Columbia, the B.C. Human Rights Tribunal, in its annual report, recently highlighted the fact that complainants appearing before the Tribunal with legal counsel are markedly more successful than complainants who represent themselves, skewing the fairness of the system.

Human rights matters are complex and complainants need experienced counsel.  Elizabeth Portman presented compelling evidence that, as a woman with multiple sclerosis, her ability to represent herself in a human rights complaint is seriously compromised. Ms. Portman's multiple sclerosis causes fatigue, pain, and diminished cognitive functioning and ability to communicate. These symptoms are exacerbated by stress. She testified that she could not participate in a hearing for more than four hours per week, and when her condition worsens, she would be incapable of participating in a hearing at all.

How dismal it is, then, to find the Supreme Court of the NWT resorting to the hackneyed argument that Ms. Portman was not discriminated against when she was denied legal aid for her human rights complaint because the Legal Services Board does not provide legal aid for human rights complainants. The Court says the service she claims she was denied does not exist; consequently, there was no discrimination.

According to the Court, the Legal Services Board only provides legal assistance to eligible persons for specific types of legal problems. Ms. Portman cannot require the Legal Services Board to expand its mandate to provide her with legal aid for human rights complaints.

For people with disabilities, this is a familiar argument: The service you need is not provided, so you are not being discriminated against. This reasoning fails to engage with the practical realities that people with disabilities face. People with disabilities consistently have to argue that omissions, failures to provide services that will give them meaningful access, are discriminatory.

The Court denied that Ms. Portman's complaint was like Jeffery Moore's (Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369). Jeffrey Moore complained that he was discriminated against by the North Vancouver School District when it failed to provide the special services he needed because of his severe dyslexia. In that case, the Supreme Court of Canada ruled that Jeffrey Moore was discriminated against because he needed special assistance in order to access the general education that the District provides to all children.

Similarly, Ms. Portman needs legal aid in order to make the human rights process useable for her. And, as a person with a disability, access to the human rights process, so that she can be heard when she is discriminated against, is fundamental for Ms. Portman.

The Court's attempt to distinguish Moore is not persuasive. After so many years of litigation on disability issues, people with disabilities expect courts to have moved on from the simple assertion that the non-existence of a service is a complete answer to a complaint of disability discrimination.

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