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BARRISTER AND SOLICITORS - Legal aid - Right to legal aid

Thursday, July 05, 2018 @ 8:47 AM  


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Appeal by P and the Human Rights Commission from a decision setting aside a decision of the Commission that the Legal Aid Commission’s policy of not funding legal counsel for human rights complaints discriminated against disabled complainants. P suffered from episodic multiple sclerosis that compromised her ability to maintain her employment. She filed a human rights complaint against the disability insurer for providing a long-term disability plan that discriminated against persons with episodic pre-existing disabilities and her employer for failure to accommodate, harassment, and systemic discrimination. Because of her disability, P did not feel that she was able to advance these claims without assistance. The Legal Services Board had previously adopted a policy that it would not fund human rights complaints. P brought a human rights claim alleging discrimination. The Director concluded that this was, in effect, a claim for an entrenched right to legal aid funding which was inconsistent with the binding case law. The Director therefore dismissed the complaint as being unsustainable. The Adjudication Panel disagreed with the Director’s analysis of the Human Rights Act and found that the denial of P’s application for funding, based on the application of the Legal Aid funding policy, amounted to discrimination under the Act. The Supreme Court judge found that the Adjudication Panel had erred in finding that the policy of not providing legal services for human rights complaints was discriminatory because the service that P claimed she was denied did not exist for anyone. He also found the Panel erred in failing to recognize that the Human Rights Commission had the ability to provide P with assistance in pursuing her complaint.

HELD: Appeals dismissed. P applied for legal aid representation to advance her human rights cases. This, however, was not a service customarily made available to the public by the Legal Aid Commission. The policy in question was thus not caught by the Human Rights Act. The Human Rights Act was aimed at discrimination or denial of access. The Human Rights Commission could not unilaterally determine which government agencies’ services should and should not customarily be offered to the public. In the Northwest Territories universal legal services were not offered to the public. The exact extent of the legal services that would be made available to the public was left up to the Legal Aid Commission. The Legal Aid Commission had been given the mandate to decide the scope of services customarily available to the public. Other services it might potentially offer, but did not offer, were therefore not captured by the Human Rights Act. It was not objectionable for the Legal Aid Commission to draw those lines, knowing that its decisions might have different impacts on different citizens. The Adjudication Panel also erred in assuming that the Legal Aid Commission was the only potential source of assistance for P.

Northwest Territories v. Portma, [2018] N.W.T.J. No. 32, Northwest Territories Court of Appeal, R.L. Berger, F.F. Slatter and T.W. Wakeling JJ.A., May 29, 2018. Digest No. TLD-July22018009