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1 Hum. Rts. Dig. 1 (2000)

handle is hein.journals/hurtsdg1 and id is 1 raw text is: VOLUME 1 NUMBER 1 Hu111an Rights Digest January 2000 Decisions Noted Individual Assessment Ordered ...... 1 Jurisdiction of Labour Arbitrator ..... 3 Medical Liscensing Discriminatory . . . 4 Employer Must Initiate Accommodation ..............5 Damages for Rumours Landlord to Pay Damages.......... 7 Charter Issue Remitted to Tribunal . . . 8 Right to Witness Statements ....... 9 Delay in Filing Complaint .......... 9 Tribunal's Jurisdiction to Consider its Own Jurisdiction .......... .10 Respondent's Counsel Barred from Interview ................... 10 Inside Page ................. 2 Briefly Noted ...............11 Legislative Notes ............12 Ordering.....................12 DISABILITY -services denied on the ba- sis of visual impairment (homonymous hemianopsia) - PUBLIC SERVICES AND FACILITIES - driver's licence de- nied - individual assessment as alterna- tive to setting discriminatory standard - EVIDENCE - sufficient evidence to es- tablish defence - BURDEN OF PROOF - onus on respondent DISCRIMINATION -Meiorin test-ad- verse effect discrimination - bona fide justification and cost of individual testing as reasonable cause -reliance on medical advice - safety risk - sufficient risk - definition of discrimination - REASON- ABLE ACCOMMODATION - reason- able accommodation principle - duty to accommodate where bona fide qualifica- tion exists - duty to accommodate short of undue hardship - individual testing The Supreme Court of Canada ruled that the B.C. Superintendent of Motor Vehicles discriminated against Terry Grismer by re- fusing him a driver's licence because he had homonymous hemianopia (H. H.) which eliminated most of his left side peripheral vision in both eyes. Terry Grismer had a stroke in 1984 at age 40. As a result of the stroke, he suf- fered H.H. Persons with H.H. always have less than 120 degrees of peripheral vision and no person with H.H. is issued a driver's licence in B.C. The Motor Vehicles Branch cancelled Grismer's licence. Grismer claimed that through the use of glasses with prisms, extra mirrors on his truck, and regular movement of his head, he could compensate for his disability and drive safely. He alleged that he was discrim- inated because he was not given an indi- vidual assessment. Instead, the simple fact that he had H.H. barred from having a driver's licence. Applying the new unified test that was fashioned in British Columbia (Public Ser- vice Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.) (Meiorin), McLachlin J., writing for a unanimous Court, ruled that the Su- perintendent of Motor Vehicles was re- quired to show that the impugned standard was adopted for a purpose rationally con- nected to the regulation of driving; that the standard was adopted in good faith; and that the standard was reasonably necessary because the Superintendent could not ac- commodate persons such as Mr. Grismer without undue hardship, whether that hardship took the form of impossibility, se- rious risk or excessive cost. The Superintendent's goal was to main- tain reasonable highway safety. The evi- dence showed that the Superintendent had not set a goal of absolute safety since he li- cenced many people with various forms of disability. Such a goal would not be feasible in any case, since no one is a perfect driver. The central issue was whether the no H.H. standard was necessary to meet the goal of reasonable highway safety. There were two ways that the Superintendent could show that a standard like this one, that permits no accommodation, is reason- ably necessary. First, he could show that no one with H.H. could ever meet the desired objective of reasonable highway safety. Al- ternatively, he could show that accommo- dation is unreasonable because testing in- dividuals to determine whether they can drive safely despite their disabilities is im- possible short of undue hardship. The Court found that the Superinten- dent had not demonstrated that no person with H.H. could drive safely. In fact, there was evidence to show that some people with H.H. may be able to drive safely and that Terry Grismer may have been among them. The Superintendent also failed to continued on page 3 5

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