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April 30, 2017

Melancholy Illustrations





We may smile at these matters, but they are melancholy illustrations. - Howe

In 1974 someone built a thirteen story building and named it after Joseph Howe, whose 1834 libel trial took place in the Red Room right next door in the House of Assembly.  He was speaking out against government corruption.

The building is listed as being in "International Style". I visited it once to go to the Human Rights Commission and remember the ramp at the entrance as being an afterthought.

The Province had been leasing the building since 1984, with an option to buy, and as soon as it assumed ownership in 2012 it decided to sell the building and lease it back rather than spend $30+ million to rehabilitate it.

The building is now the Halifax home of the Justice Department.

In 2017, in the midst of efforts to rewrite the Accessibility Act, representatives of a community coalition met with Justice Department officials in their new digs. On a hunch, they looked for an accessible washroom but were unable to locate one.

In a CBC article, Jean LaRoche later reported

Nova Scotia's Department of Justice is rewriting the bill to enshrine the accessibility rights of people with disabilities, but couldn't hold a meeting recently at its own offices to discuss changes because the building it leases doesn't have an accessible washroom.
The provincial government sold the Joseph Howe Building on Hollis Street to Universal Realty six years ago for $14.9 million. At the time an internal engineering report estimated the structure needed $36 million worth of renovations and upgrades. Government employees had complained for years about leaks and poor air quality.
Universal Realty gutted, then upgraded the 13-story structure after signing a 10-year lease with the province to make it the new home for the Department of Justice.

Here is a 107 page document which is an example of the standard lease tender of the Department of Transport and Infrastructure Renewal. This particular tender is not for the Howe building, but is boilerplate containing multiple references to accessibility. Notably:

4.8.1. The lands, building, Premises, facilities (including washrooms and elevators) and services provided by the Landlord pursuant to the Agreement must be accessible to and safely usable by persons with disabilities and must comply with the current edition of the National Building Code of Canada and the Nova Scotia Building Code Regulations.”
4.9.1. Separate washrooms for men and women must be provided in accordance with the National Building Code and the Nova Scotia Building Code.
4.9.3.7. Universal Barrier Free Toilet Room - Where constraints of existing conditions and available space warrant it, a standalone universal toilet room can be substituted. One toilet and one lavatory must be provided in a standalone room and there must be unobstructed turning circle of 59.06” x no dimension x 66.93” (1500mm x no dimension the Nova Scotia Building Code.

In these older high-rise buildings, washrooms are reliably located between the elevator shaft and stair wells. They are cramped and hard to modify. Thus the Universal Barrier Free Toilet Room provides a very good alternative.


This state of affairs is a guarantee that there are no employees of the Justice Department who require accessible washrooms. The lone wheelchair-using student at Dalhousie Law School could not attend an interview. This is discriminatory, illegal and might be the subject of a Human Rights Complaint. It certainly explains why the department has such a tin ear on disability issues - people like me are invisible and inaudible.

One excuse in circulation is that the Province thought the washrooms were accessible, but simply didn't know. How could they, since their policies discriminate against having any employees who need accessible washrooms and would notice the lack?

Coming at the time when the Accessibility Act is being proclaimed bears a special irony. The Act is meant to create standards. The TIR lease is a standard, yet it is conveniently ignored. How are we to believe that the standards made under the Accessibility Act will be observed?

This is not an isolated example. I can name a dozen examples where government promises accessibility, then fails to deliver. From transportation to public health and uneven enforcement of minimum wage legislation, government routinely treats people with disabilities as an inconvenience and ignores its own rules.

And of course, taxpayers pay the price. They pay for universities and a Law School way behind in educating people with disabilities. They support people with disabilities who can't find work. They forego their contribution to society. James McGregor Stewart would have to think twice about visiting the Justice Minister.

I like Justice Minister Whalen. I haven't met her, but she seems sincere. But she doesn't run just any old department. If you can't get justice from Justice, where do you turn?

This is the Province's Diversity Policy:

The Government of Nova Scotia is committed to being a workforce that is inclusive, culturally competent, free of discrimination, values diversity and is representative, at all levels, of the population it serves. To realize this commitment, government strives to promote diversity and foster respect and inclusion in its workplaces; identify and remove systemic barriers to employment facing members of under-represented groups and achieve a workforce, that, at all levels, represents the diversity of Nova Scotians.

This is a lie. There might as well be a sign on the Howe Building saying "Diversity given lip service only".

Here are the questions for Minister Whalen:

  • How did this happen? 
  • Who's responsible? 
  • How are you going to make it better? 

And how the responses should be framed:

  • A public accounting, providing statistics, naming names, identifying miscalculations and opportunities for improvement 
  • Discipline for those found to have willfully aided this injustice 
  • Accessibility Policy 
    • Affirmative Action for Justice Department Employees including 
      • School outreach 
      • Aggressive targets 
      • Explicit guidelines 
      • Reporting regime
And don't wait for the Accessibility Act.  Be the leader, be the change.

Gus Reed

April 28, 2017

Again, The Building Code

If you can't see a table or chart, click the title above to go directly to the website.
*********
On St. Patrick's day there was an article in Haligonia announcing the April 1 update of the building code.

The article says, in part:
"The province is also updating its own accessibility regulations to improve barrier-free provisions in washrooms, requirements for power door operators and barrier-free paths of travel. 
“Nova Scotia’s accessibility requirements are stricter than the ones in the National Building Code,” said Mr. Churchill. “I want to thank the disability community for their feedback on the building code changes, which will improve barrier-free design in our province.”
The changes will come into effect on April 1. 
The province consulted on building code changes with representatives of persons with disabilities, the construction industry, building officials, and other industry groups. It was a complementary process to the ongoing Accessibility Act consultations. 

I’d like to know the identities of “representatives of persons with disabilities” consulted by the province “on building code changes”. A search of the Department of Municipal Affairs press releases for all of 2016 and 2017 yields no announcement of consultations. Nor the Disabled Persons Commission. As a frequent complainer about the department’s underreach and lax enforcement, I would have a lot to say.

Now I notice that the latest version of the Nova Scotia Building Code Regulations, effective April 1, does not contain all the proposed changes to barrier free requirements listed in the referenced document.  In particular section 3.8.4. Adaptable Housing Requirements is missing entirely. This latter issue is of high interest to those drafting the Accessibility Act, which was passed this week.

I wrote to Joe Rogers, P.Eng. Building Code Coordinator.  He kindly sent me a marked up copy  of the new regulations, so I could identify the changes.  The eighteen changes in Schedules C & D are on these subjects:
  • 3.8.1.1. Scope
  • 3.8.2.6. Controls
  • 3.8.2.8. Plumbing Facilities
  • 3.8.3.1. Design Standards
  • 3.8.3.5. Ramps
  • 3.8.3.6. Doorways and Doors
  • 3.8.3.8. Controls
  • 3.8.3.10. Drinking Fountains
  • 3.8.3.11. Water Closet Stalls
  • 3.8.3.12. Universal Washrooms
  • 3.8.3.13. Water Closets
  • 3.8.3.14. Urinals
  • 3.8.3.15. Lavatories and Mirrors
  • 3.8.3.16. Showers
  • 3.8.3.17. Bathtubs
  • 3.8.3.19. Counters
  • 3.8.3.22. Sleeping Units in Roofed Accommodation
  • Schedule “D” Alternate Compliance Methods for Existing Buildings #15 

I believe these changes are largely technical in nature.  For example, I think there are no new situations when and where a power door must be available, only that it must operate in a certain time interval and with a certain force.  Cars have had seatbelts for years, so to claim that the use of a new fabric is an important safety development is a reach.

These seem like routine updates to me, and to characterize them as "regulations to improve barrier-free provisions" is disingenuous.  Because of numbering changes, it's difficult to itemize the exact changes - 3.8.3.10 used to be urinals, now its drinking fountains.  Be careful........

Taking urinals as an example:

Old VersionNew Version
3.8.3.10. Urinals
(1) If urinals are provided in a barrier-free washroom, at least one urinal shall be
(a) wall mounted, with the rim located between 488 mm and 512 mm above the floor, or
(b) floor mounted, with the rim level with the finished floor.
(See Appendix Note A-3.8.3.10. NSBCR)
(2) The urinal described in Sentence (1) shall have
(a) a clear width of approach of 800 mm centred on the urinal,
(b) no step in front, and
(c) installed on each side a vertically mounted grab bar that is not less than 300 mm long, with its
centreline 1000 mm above the floor, and located not more than 380 mm from the centreline of
the urinal.
3.8.3.14. Urinals
(1) Urinals described in Sentence 3.8.2.8.(6) shall
(a) be wall-mounted, with the opening of the basin located not more than 430 mm above the floor,
(b) be adjacent to an accessible route,
(c) have a clear width of approach of 800 mm centred on the urinal and unobstructed by privacy screens,
(d) have no step in front of it,
(e) have a flush control that
i) is automatic, or
ii) complies with Clause 3.8.3.8.(1)(b) and is located 900 mm to 1100 mm above the floor, and
(f) have a vertically mounted grab bar installed on each side that
i) complies with Article 3.7.2.8.,
ii) is not less than 600 mm long, with its centre line 1 000 mm above the floor, and
iii) is located not more than 380 mm from the centre line of the urinal. (See Appendix A-3.8.3.14., NSBCR)


So urinals are 58 mm lower, have longer grab bars and maybe flush themselves.  A great advance!  People with disabilities are beside themselves with excitement!

The missing section 3.8.4. has to do with adaptable housing and would apply to private dwellings and rentals in respect of:
  • One entrance 900mm wide
  • With a low threshold
  • Interior doors and corridors on the entrance level 900mm wide
  • Lever faucets
  • Reinforced bathroom walls allowing future grab bars
  • One handed controls and switches 400 to 1200 mm high
These ideas are borrowed wholesale from the concept of lifetime homes and are modest concessions to the notion of aging, which comes as a surprise to us all.

Personally, I think this is a no-brainer.  For one's own sake and for resale value.  A young family would easily recoup the expense of these desirable features.  Any semi-conscious builder would see this as a marketing opportunity.   The province has a stake in this too, as people have the option of aging in place rather than in a rest home.

When I pressed Mr. Rogers on why this section was omitted, he said:
With respect to proposed Subsection 3.8.4. here is what transpired.  During the consultation process, the disabled persons’ community, professionals, and organizations brought forward suggestions and concerns with the proposed changes relating to adaptability. For this reason, government opted not to include that piece at this time. This will allow time for further study and consultation to ensure the changes are comprehensive as possible and fully align the Building Code and other legislation. The Building Advisory Committee is committed to bringing changes forward once this research and discussion takes place. 

Make of that what you will.  Find it in the library under the Dewey 823 classification.

As to my original request for the identities of and submissions made by “representatives of persons with disabilities”, Mr. Rogers is thinking:

I will have to look into your request for access to the submissions made by the public with respect to the Freedom of Information and Protection of Privacy Act.  Once the status of those submissions has been determined I will advise.  

I hope those submissions aren't related to National Security.  I'll keep you posted 

April 20, 2017

Rights or just suggestions?

******If you can't see tables and graphs, click the title to go directly to the website*******

In December 2015 I was honored to receive the Dr. Burnley Allan "Rocky" Jones award from the Human Rights Commission.  I had been an unsuccessful complainant in 2004, but only had vague doubts about the correctness of that decision.

Now I have been through the complaint process a second time with five other wheelchair users, ending up with a judicial appeal.  We won that appeal, but it has led me to question the effectiveness of the Human Rights Commission, and the several methods of resolving disputes it employs.

I''m an outsider, but I have an interest.  The HRC needs fixing, not defending.  Here are some observations and questions.

Workflow


Faithful reader Elizabeth Portman suggested I look at the Human Rights Commission annual reports to get an idea of the workflow.  Good idea!  So I checked and found only one annual report posted to the HRC website.  I wrote to ask for more (they're required by the Act) but did not get a reply.  Here are the numbers from 2014-2015:

Inquiries2461
Complaints117
Percent4.8%

So 2,461 Nova Scotians phoned, emailed, or sent a pigeon to complain that their human rights were violated.  When asked for details (on the road to becoming a complaint rather than an inquiry), more than 95% were determined not to fall under the compass of the Human Rights Act.  Not belonging to a protected class (sorry, Hell's Angels), exception (insurance companies are allow to have rates based on age) - probably a ton of reasons.  It would be obvious to have some record of the disposition of inquiries, but this is not a part of the HRC's transparency.

117 complaints were added to the workload in 2014.

Looking further, I found a few similar numbers in other jurisdictions - not a lot.

Nova Scotia 2015Ontario 2005Canada 2013
Number%Number%Number%
Intake
Inquiries2461445201236
Complaints1175%23995%66153%
Processed
Dismissed/Withdrawn7356%77537%80272%
Settlement4333%120957%23421%
BOI Decision/Referral1511%1336%726%
Total131100%2117100%1108100%

Ontario had a similar rate of converting Inquiries to Complaints - 5%.  The Feds are in a different league.  I tried to make some sense of the disposition of cases. but the lack of uniform reporting makes it difficult.  For example, the Feds have a category "decided not to deal with 226 complaintsthat is unreasonably arbitrary. The take-away seems to be that only some inquiries become complaints and most are subsequently settled. A very few are referred to tribunals.

There are 15 years of Accountability Reports to report outcomes against the Commission’s Statement of Mandate for the fiscal year just ended, mostly devoid of numbers (except for budgets) and full of platitudinous prose like "The Commission is at the cutting edge of best practices for human rights."

Complaints


In Nova Scotia, the process of filing a complaint requires the cooperation and assistance of a Human Rights Officer:
If your complaint falls under the protection of the Nova Scotia Human Rights Act, the human rights officer who drafts your complaint will begin by defining the problem with you in writing. This is called filing a complaint. Please note that the complaint form must be filled out together - by phone or in person - by Commission staff. Complaint forms prepared by someone other than Commission staff will not be accepted.
The form is nowhere to be found.   This hand holding seems unnecessary and condescending and clearly it adds time and inconvenience to the complaint process.  A good form design would guide complainants through a complex process, maybe even leading to self-withdrawal.  After all, 17 year-olds apply to university, we fill out tax forms, we fill out Russian visa applications.  We ain't stupid.

Unlike virtually every other encounter with government, there is no fee.  A small and liberally waived fee ($5?) like a FOIPOP request could indicate seriousness of purpose.

Human Rights Officers are given the role of gatekeepers rather than advocates.  Are they rewarded for crafting compelling complaints, or creative dismissals?  The idea of a single reviewer inevitably creates ambiguity.  A Human Rights Officer could and should have the role of advocate, annotating and commenting on complaints.  To have confidence in the process, the evaluation should always be done by a committee.

Let's see, 2400 inquiries is 12 per workday.  Say 12 professional staff means one new inquiry a day each.  They could meet weekly as a group and consider 60 cases.  This kind of decision-making inspires a certain confidence in the process that is currently lacking.

The right form, along with a little artificial intelligence, would be very helpful in evaluating complaints.  Such an adaptive computerized instrument, where a selection of items is presented on the computer, and based on the answers on those items, the computer selects following items is well-known science.  The Commission's Preferred Legal Positions are almost a roadmap for this kind of algorithm.

It could hardly do worse than the current system, which Justice Edwards called "neither justifiable, transparent or (in some respects) intelligible".  Why the Commission would defend such an opaque and flawed process is a mystery.  They should look for a 2017 solution.....

Examples


On the Commission's website are 14 summaries of illustrative settlements.  They each fall into an area:
  • Accommodation (1)
  • Employment (10) 
  • Access to Services (3)
and a characteristic
  • Disability (5)
  • Aboriginal origin (1)
  • Gender, sexual orientation (4)
  • Family status (1) 
  • Retaliation/ harassment (2)
  • Race (1)
These are all two-party disputes and share certain outcomes
  • Apology (6)
  • Compensation (7)
  • Public Education (11)
It's noteworthy that settlements are specifically not precedent setting, thus none apply beyond the immediate dispute.  There don't appear to be penalties levied, as permitted under the Act, nor are there any examples of remedies that address systemic problems, like the underrepresentation of minorities in government employ.

Notice that although the HRC isn't a party to the dispute, it often manages to get education included in the settlement.

Here is how an example settlement agreement looks.  I've rewritten it after a well-known case:

Nova Scotia Human Rights Commission 
Settlement Agreement  
___________________________________________
About Settlement Agreements 
Many human rights complaints are settled (closed through an agreement between the parties). When cases settle, there is no decision on whether discrimination happened because only a Board of Inquiry (i.e., public hearing) can do that. Cases settle for many reasons (speed, control over the process, confidentiality, etc.), and each agreement is unique. Settlements do not create “precedent”, meaning they do not influence future Board of Inquiry decisions. 
This is an example of a matter that was settled by the parties. The agreement is confidential and therefore any identifying information has been removed or altered. 
____________________________________________
Area: Access to Services or Facilities 
Characteristic: Race
In 1946 the Complainant bought a ticket to a movie, asking for a seat on the main floor. As she took a seat on the main floor, she was told by the manager that she did not have the ticket for that seat. She returned to the ticket booth, where she was informed that it was against their policy to give a main floor seat ticket to a black person.  She returned to the main floor and refused to sit in the balcony designated exclusively for blacks in the segregated theatre. She was forcibly removed from the theatre and arrested, causing injury to her hip. Complainant was charged with tax evasion over failing to pay the one-cent difference in tax between the cheaper balcony and the slightly more expensive main floor tickets. She was fined C$20 (equivalent to $270 in 2016) and court costs of $6. She paid the fine and returned to Halifax.
She contacted the Nova Scotia Human Rights Commission. With the support of the Commission, the parties reached an agreement to resolve the concerns. This agreement includes the following terms: 
Individual Terms 

  • Letter of regret
  • Common understanding of ticket sales process for future reference 
  • Charges of tax evasion suspended
Public Interest Terms

  • Policy changes to reflect the Human Rights Act

In an instant, Viola Desmond is transformed from the icon of Nova Scotia civil rights to a footnote in a bureaucratic transaction.  Her personal courage, her example is trivialized.  Her tormentor suffers no penalty.  We are all diminished by a process without real consequence for offenders.

Boards of Inquiry


"If the parties have been unable to resolve the complaint through a resolution conference, a recommendation may be made by the human rights officer to the Commissioners to refer the matter to a Board of Inquiry. "

Last time I wrote about the 128 Boards of Inquiry held since 1979.  The reports are lengthy (often fifty pages), the hearings are expensive, usually accompanied by lawyers.  2015 saw 15 and 2016 saw 10 - the numbers are declining.  Whether this means more successful settlements cannot be known without the missing annual reports.

A 2013 document, Handout on Damages, lists seven employment-related cases where damages were awarded in the amounts of $5000 and below, and six cases from $5000 to $15000.  For some respondents, these may have been significant penalties, for others, not so much.

The lengthy decisions read like Supreme Court of Canada material, run like trials, full of citations and legalisms.  They cry out for a plain-language summary.  I don't presume to know why courts are the model here, but in the interest of lowering expense and increasing speed, something simpler seems called for.  Some smart lawyer ought to be able to draw up a set of rules and procedures that provide access to justice without all the trappings of a trial.


Education


This seems to be where it's at for the HRC.  Most of the example settlements contain a requirement for education.  In addition to touting success in restorative justice "we will continue to work on initiatives such as the Community Conversations and Consumer Equity programs. Both initiatives represent responses to priority issues of systemic discrimination that warranted deliberate engagement."

There is no indication that the HRC ever takes the initiative to rectify cases of discrimination.  It should be investigating circumstances like this building leased by government where some people with disabilities are effectively excluded and prevented from employment.


Conclusion


Which finally brings me to my point.  Of all the things government does, perhaps the most meaningful, almost sacred duty is to protect individual rights.  To make sure you're treated the same as me, to make sure no one messes with what you are promised in the Charter.

To paraphrase Dr. King, we must honor seekers of human rights "for their sublime courage, their willingness to suffer, and their amazing discipline in the midst of the most inhuman provocation; their majestic sense of purpose.....and the agonizing loneliness that characterizes the life of the pioneer."

As practiced by the Human Rights Commission, Restorative Justice doesn't honor seekers of justice, it hides them.  It also shields the perpetrators of Human Rights offenses from public view.  Since there is no precedent set, the HRC permits, no encourages further offenses.  By not penalizing offenders, it turns an offense to society into a mere inconvenience.

Gus Reed