The Law on Human Rights and Employment in Nova Scotia: Part I

I really enjoyed Andy Montgomery's presentation on Human Rights and Employment law at the recent Tools For Life Conference. Mr. Montgomery is a lawyer at Taylor MacLellan in Kentville and gave an interesting and useful presentation. Which, admittedly, taught even me a thing or two.

It also made me realize that other than noting the new limitation period in bringing claims under the Human Rights Act and an interesting human rights complaint underway in the Province, we haven't really much discussed the protection that the Human Rights Act offers individuals with disabilities in Nova Scotia.

Made me think that it was about time to remedy that. But before getting into the nuts and bolts of employment discrimination, I thought we would discuss a few ancillary, but nonetheless important, points.

A few background facts to ponder:

• As of 2001. 20% of Nova Scotians considered themselves to have a disability while only 14/5% of Canadians nationally considered themselves disabled


• In 2004, 60% of persons with disabilities (87,310) in Nova Scotia were 15-64 years old


• In 2004, the average income of Nova Scotians (aged 15-64) with disabilities was only $18,160.
  

Were you aware that in Nova Scotia, employed people with disabilities reported that

• 25% were refused employment


• 22% were dismissed from their employment and


• 17% were refused promotion

Moving on to the Human Rights Act itself, one point that Mr. Montgomery made which I thought was a particularly good one is that not all discrimination is protected under the Act.

The Act only protects against discrimination on the basis of

• age;
• race;
• colour;
• religion;
• creed;
• sex
• sexual orientation;
• physical disability or mental disability;
• an irrational fear of contracting an illness or disease;
• ethnic, national or aboriginal origin;
• family status;
• marital status;
• source of income;
• political belief, affiliation or activity;
• that individuals association with another individual or class of individuals having characteristics referred to above.

Thus, it is perfectly acceptable under the Human Rights Act to discriminate against an individual because they are a stamp collector or a fire fighter, for example. It is important to remember that in order have a valid complaint under the Act you must have been discriminated against on the basis of one of the characteristics set out above.

And again, in terms of bringing yourself within the protection of the Act, the term "physical disability or mental disability" is defined in sec. 3 of the Act as

an actual or perceived
(i) loss or abnormality of psychological, physiological or anatomical structure or function,
(ii) restriction or lack of ability to perform an activity,
(iii) physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device,
(iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(v) condition of being mentally handicapped or impaired,
(vi) mental disorder, or
(vii) previous dependency on drugs or alcohol

In the next post, we will look at an employer's "duty to accommodate" an employee or potential employee who fits within the above definition of having a "physical or mental disability" as set out in the Act.

'Getting It Right The First Time' ~ Applying For The Disability Tax Credit

We've discussed the Disability Tax Credit numerous times on this blawg and there's no doubt that it's a powerful financial benefit for the disability community. As noted previously,

It gives a nice size tax credit to an individual with a *** "profound impairment" resulting in them being "markedly restricted" in any of the basic activities of daily living. It can be used by the taxpayer (to offset their taxable income) OR transferred to another "supporting" relative, such as a spouse (or, in the case of a child under the age of 18 years, to a parent or guardian).

As it turns out, an individual must also receive, or at least be eligible for this credit in order to be eligible to set up a Registered Disability Savings Plan.

Unfortunately, as many may know, sometimes applying for this credit can be a frustrating and time-consuming experience. The good news is that Doug, at the RDSP Blog has posted a guest post by Doug Lagasse of Ken Lagasse Inc., Chartered Accountants which not only sets out some of the challenges of applying for the Disability Tax Credit but also lays out what you can do to increase your chances.

So go read it. I highly recommend it.

*** Prior to 2005, the above was the required wording in order to be eligible for the Disability Tax Credit. After 2005, the requirments were changed somewhat and can be found here.

Welcome To The Wild Blue Yonder

You might recall our discussion earlier this year when the Canadian Transportation Agency (CTA) released a landmark decision concerning the right of individuals with disabilities to travel by air without having to say for a second seat, for an attendant or other use, to accommodate their disability.

Known as the historic decision in the “One Person, One Fare” case, the agency recognized the right of these individuals to have access to a second seat when traveling by air in Canada without having to pay a second fare.

But let's never take anything for granted. Reading yesterday's newspaper, I discovered that three of Canada's major airlines (Air Canada, Air Canada Jazz and WestJet) had applied to the Supreme Court of Canada for permission to appeal that policy. Fortunately, they were unsuccessful in their appeal, with the SCC refusing to hear the case.

What that means, from a practical point of view, is that following a six year legal battle, the airlines, all of them, will finally be forced to make those additional seats available at no charge to disabled or obese passengers.

Which, while good news, is really pretty sad, don't you think?

I mean, really, should it have ever been fought in the first place? Isn't it really just an issue of basic human rights? I can only echo the question asked by legal counsel for the Council of Canadians with Disabilities, which my gut tells me had played a big role in this victory.

"Where is the federal government’s leadership on this issue?" said the council’s Pat Danforth. She argued a quicker and easier solution would have been for Transport Canada to impose industry-wide regulations on all air carriers.

Indeed.

Update: By the way, just to be clear, although the article in the Chronicle Herald speaks of a second seat for a disabled person who needs additional room for a wheelchair or stretcher, or an obese person who needs an additional seat, don't be fooled. The decision also applies to a person with a mental or developmental disability who requires an attendant to fly with them.

Hear Ye ... Hear Ye ...

~ Updated Below ~

Important news, this.

As noted in the sidebar to your right (under the heading "Places To Be"), Creating Respite Solutions for Nova Scotia Families of Children and Adult Children with Chronically High Needs will be holding two respite conferences this month;

• one in Yarmouth on Saturday, November 15, 2008 at Burridge Campus from 10am to 4:30pm, and


• one in Wolfville on Saturday, November 29, 2008 at Horton High School from 10am to 4:30pm.

And although the "need", as set out below, is is old news and no news to anyone in the disability community,

Creating Respite Solutions for Nova Scotia Families of Children and Adult Children with Chronically High Needs : The Continuing Care, Provincial Pediatric Committee of the Nova Scotia Department of Health (2005) has reported that families caring for children of all ages with chronically high needs are at a major risk for crisis. Parents struggle to meet care-giving demands and exhaust family resources. Indeed, across the province parents report clinically high levels of stress, depression, and marital discord, all of which are well-known risk factors for parent illness, family breakdown, and the subsequent need to place the child/adult child outside of the family home. These harsh realities point to the pressing need for family support.

no matter whether you are in the position of having no viable respite options, have been told that respite is available to you but just can't seem to see the need for it or 'get it together' enough to make it happen in your life or realize just how desperate the respite situation is for some families in this Province ... this is a place you need to be.

Respite has been taken up as a priority issue by a committee for community stakeholders and policy makers committed to developing support options for caregivers in Nova Scotia. It's about time, says I.

But, here's a newsflash for you, if we don't show up (yes, that's you and you and you), what do you think the chances are that the powers-that-be will take the view that respite isn't really an issue in Nova Scotia? That everything is hunky-dory and no further services or funding need to be provided?

Do we really want to go there?

So, please. Read on.

The Nova Scotia Coalition on Respite and Family Health and Wellness include representatives from families, community and health organizations, government, and researchers. The committee's main objective was to develop an innovative educational program based on their many years of personal experience, professional expertise, and on extensive community-based research. This proposal is the result of our pioneering and collaborative effort to respond to the needs of Nova Scotia families and their children with chronically high needs, regardless of age. We are offering an educational intervention specifically designed to enhance coping, empowerment, and self efficacy in parents and caregivers.

Researchers at the IWK Health Center and Dalhousie University will carefully evaluate the process and outcomes of this endeavor. Our shared goal is to better understand the support pathways by which outcomes are optimized in these parents and caregivers. This proposed program of education and research is important for all of us who struggle to help these sons, daughters, and families. It is critical to educate parents and caregivers to develop meaningful respite solutions, supported by community- based evidence.

... Information and tools will be provided to enhance coping skills, empowerment, and self-efficacy in parents so that they are better positioned to develop meaningful respite solutions for their families... The outcome is a research-based curriculum for enhancing respite in families with chronically high needs.

I am a firm believer that nothing will ever change unless we make it change. For our loved ones. For our families. For ourselves.

Now here's the really good news. Not only is there no fee for the conference or your lunch, but funding is available for respite care and travel. And as a bonus, perhaps we will actually get to meet. In person. Apparently I will be one of the speakers at both the Wolfville any Yarmouth workshops. Or at least, so I've been told.

Hey, if nothing else, it will give you a break! Come with some friends, get some time away, 'do' lunch, take a break. Find out exactly why respite is so good for the soul.

All you need to do to register and get more info, is contact the Nova Scotia Advisory Council on the Status of Women at 1-800-565-8662. And do it quickly. Time, it is a' passing.

Update: The Yarmouth conference was great. We were fed well, made new contacts, met a lot of new people (and heard many compelling stories) and heard reiterated what so many of us with children with high needs are only too aware. But there was a real sense of commitment to change and I am hopeful that something positive will come out of this.

But only if you attend the Wolfville conference, that is!

Update II: My apologies to Paula Hutchinson (of The Continuing Care, Provincial Pediatric Committee of the Nova Scotia Department of Health), the the writer of the quoted material above, for not giving credit where it was due. However, the material I was received did not include any author's name so I could neither source nor credit it.

Paula, by the way, is the keynote speaker at the various conferences. She is both the parent of a child with special needs and a professional in the field. I have always believed that advocates who can wear the hats of both parent and professional are the ones that can truly make the most difference for the disability community. Come listen to her speak and see if you don't agree.