When award-winning writer Varda Burstyn complained to the Canadian Human Rights Commission about her treatment by the Canada Revenue Agency (CRA), the last thing she expected was to be caught in the crossfire of a war between these government agencies.

Burstyn suffers from Multiple Chemical Sensitivities (MCS, also known as Environmental Sensitivities). People like her become extremely ill when they are exposed to chemicals in concentrations that do not cause obvious injury to most people. Doctors say the best way to deal with this illness is to create a safe home environment by removing and replacing building materials and mould that give off volatile organic chemicals (VOCs). That’s what Burstyn and her husband did, at a cost of over $200,000. When her husband filed an income tax return claiming a deduction for about $100,000, he was turned down even though the medical expense tax credit is given to claimants who need renovations for other medical reasons. Burstyn took the matter to the Human Rights Commission. This is when she began a voyage through the legal equivalent of Alice’s looking glass.

Burstyn argued that the Income Tax Act systematically discriminated against sufferers of MCS and others with severe respiratory ailments such as asthma. Not only did the CRA ask the Federal Court to prohibit the commission from investigating her complaint, but the CRA also made the astounding claim that it is not required to comply with the Canadian Human Rights Act. The act provides that no one may discriminate against individuals on “prohibited grounds” in the course of providing services customarily available to the general public. Prohibited grounds include race, national origin, colour, religion, age, sex, marital status and, as in Burstyn’s case, disability.

The CRA claims it is not bound by the Canadian Human Rights Act because it is not providing a “service” when it processes a claim for an income tax deduction; this despite the fact that the CRA website boasts that it provides a high quality “service” to the public.

The disconcerting effect of this reasoning is that if the CRA is interpreting the Canadian Human Rights Act correctly then its staff is free to discriminate against people because of the colour of their skin, because they are married, because they are single or on other prohibited grounds — actions that would be illegal if the CRA were a business selling airline tickets instead of a government body deciding whether to accept a claimed tax deduction.

The CRA is not the only federal agency that claims to be immune from the Canadian Human Rights Act. The Department of External Affairs has argued in Federal Court that processing visa applications is not a “service” and, therefore, the Human Rights Commission has no jurisdiction to investigate complaints that it discriminates when carrying out this function.

In a recent case, an aboriginal woman claimed that she was frequently subjected to searches at the Canadian border because of racial profiling. The Canadian Border Services Agency argued that searching her vehicle is not providing a service and, therefore, this activity is insulated from the Canadian Human Rights Act. Last year, the federal Department of Aboriginal Affairs and Northern Development claimed that it is exempt from the human rights law when providing funding to aboriginal child services organizations that is lower than the funding provided to non-native children’s aid societies.

Federal government agencies are far from alone in arguing for this unusual (not to say bizarre) interpretation of human rights laws. Every province and territory of Canada has a human rights statute with a provision similar to the one in the federal human rights law. Provincial and territorial government departments and municipalities also argue that they are exempt from these human rights laws when individuals are claiming benefits such as disability pensions or workers’ compensation. Their lawyers argue that awarding research grants, issuing public proclamations, and providing education and training, are all functions that are immune from human rights protections.

According to ARCH Disability Law Centre, an Ontario legal aid clinic for the disabled, if such claims are upheld by the courts, “This will have far-reaching implications. A wide range of benefits that support persons with disabilities will be exempt from the operation of the Canadian Human Rights Act. Even if these arguments are not successful, low-income persons with disabilities (who may be unrepresented) will have to spend significant resources defending these complex legal arguments.”

Varda Burstyn eventually reached a settlement with the CRA. Her four-year ordeal is over. But government attempts to persuade courts and tribunals to exclude their activities from human rights laws continue relentlessly. Burstyn calls this a wholesale attempt to gut Canada’s human rights legacy and an attack on democracy. Civil society advocates have not been speaking out about this issue. Perhaps they are unaware of how widespread these efforts to undermine human rights laws are. It’s time they took notice.

John Swaigen is a staff lawyer at Ecojustice, a national charitable organization dedicated to protecting Canadians’ right to a healthy environment. He represented Varda Burstyn before the Canadian Human Rights Tribunal.

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