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Wheelchair users ask court to force human rights commission to hear their complaint

WATCH ABOVE: Six Halifax residents who use wheelchairs have taken the Nova Scotia Human Rights Commission to court over its decision not to hear their case. Marieke Walsh explains why.

Six Halifax residents who use wheelchairs have taken the Nova Scotia Human Rights Commission to court over its decision not to hear their case.

READ MORE: Accessibility advocates give blistering critique of Nova Scotia legislation

The commission twice rejected a complaint filed by the group last summer.

David Fraser, a lawyer with the firm McInnes Cooper, took on their case pro bono and argued in court Wednesday that the commission acted “unlawfully” by refusing to hear their complaint.

The group is accusing the Nova Scotia government of systemic discrimination for what they say is a failure to properly enforce accessibility regulations for some restaurants in Halifax. The government refused to comment on the issue while the matter is before the courts.

The court case is not about the merits of their complaint, but rather how the commission vets cases and decides which ones should be more thoroughly investigated. The complaint was filed by Warren Reed on behalf of the group.

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Fraser argues that the commission is obliged to accept the complaint and then review it based on a process set out in legislation.

“The problem is they’re not letting these (complaints) in the door to be examined,” Fraser told reporters.

But the lawyer speaking for the Nova Scotia Human Rights Commission argued in court that the process outlined in the legislation is only followed once the commission has decided that a complaint has merit. Kymberly Franklin said until then, the commission calls issues brought to its attention “inquiries,” which are not subject to the legislated process.

Arguing before Justice Frank Edwards, she said that if the commission followed the formally legislated process for all inquiries then it would be “spinning its wheels.” The commission told Global News it receives approximately 1,800 inquiries every year.

Franklin said the commission determined there was no basis for the complaint under the act.

How the commission makes its decisions is not clearly explained or transparent, according to Fraser. For example, he said a form that would make a complaint official isn’t publicly available. In court he characterized the commission’s actions as “kafkaesque” and “opaque.”

Speaking to reporters afterwards, Fraser said neither he nor his clients were ever given a clear explanation for why their case was refused.

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“It seems clear to me if you allege a violation of the Human Rights Act and you provide some evidence of it, the commission should in fact follow through, and open a file and investigate.”

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‘Frozen out of participating’: Human rights complainant

Gerry Post, one of the complainants in the case, has been working to make Halifax more accessible for years. He says the commission’s refusal to fully investigate their complaint is personally upsetting.

“It’s really unfortunate that we have to be here for the court to hopefully order them to hear our case,” he said.

Many Halifax restaurants are in buildings that are exempt from accessibility rules because they are grandfathered into the system. But Post says the rules stipulate that when a restaurant expands, it can no longer be exempt from accessibility rules.

WATCH: Accessibility advocate Gerry Post speaks about the issues that led to the case.

Nova Scotia accessibility advocate discusses issues surrounding court case
Nova Scotia accessibility advocate discusses issues surrounding court case

The group argues that this applies to restaurants that install sidewalk patios in the summer, and they accuse the province of failing to enforce its own health and safety codes.

“We’re being frozen out of participating in those activities,” Post said. “We don’t want undue hardship to be caused… all we’re trying to do is break down barriers so we can spend money in their establishments.”

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He said restaurants will often tell him they are accessible, but when he arrives, it turns out that the patio is accessible but the washrooms are not.

Gerry Post, Warren Reed, Ben Marson, Jeremy MacDonald, Kelly McKenna, and Paul Vienneau are the six people who lodged the complaint. Justice Edwards reserved a decision on the case, saying he would provide a written ruling soon.