During my internship with the Council of Canadians with Disabilities (CCD), one of my tasks was to draft one sentence summaries of cases in which CCD was involved, either as an intervener or party. Trying to determine the essence of cases as they related to disability rights was challenging: often the formal legal issue was the interpretation of a word or phrase in some otherwise-minor law or regulation. But the task was very rewarding as it basically constituted a course in the legal history of disability rights in Canada.
This work also afforded some insights into human rights litigation in general. In particular, I was struck by the courage and selflessness of plaintiffs. It was not rare for a successful outcome in terms of disability rights to correspond with negative or ambivalent outcome for plaintiffs themselves.
In the Supreme Court of Canada (SCC) case of Moore v. British Columbia (Education), a school district cut funding so that a child with a severe learning disability no longer had access to sufficient supports in the public education system. The school board itself told Jeffrey Moore’s parents that he should be sent to private school and this is what they did, remortgaging their house to be able to pay for it. The facts of the complaint occurred in 1994/1995, and only in 2012 was the case finally settled by the SCC which found in favour of the Moores. This was the fourth adjudication of the matter and restored the first instance assessment of the B.C. Human Rights Tribunal. The Moores were awarded reimbursement of their son’s private school tuition and costs, but as far as Jeffrey Moore’s education went, he was almost 30 years old when the case was finally resolved.
When I imagine myself in the place of the Moores, I do not know if I would have had the strength to pursue almost two decades of litigation to ensure that principle and practice were aligned with respect to the rights of persons with disabilities. Imagine: they had already secured adequate education for their son, so the rectitude of the school board’s decision-making was a moot point for their family. And two different courts had found against the Moores, so there was a real risk that this last appeal to the SCC would be unsuccessful as well and would only add to the costs of litigation that they had already incurred. How tempting it must have been for them to cut their losses and move on with their lives and let other parents of children with disabilities fend for themselves rather than continuing to fight on their behalf.
I was recently involved in some litigation in the role of power of attorney and I could not believe how stressful it was. There was the constant calculating and recalculating the risk/benefit of continuing to fight versus settling, and the terror of the humiliation if a judge ultimately determined that the position of the side I was on was wrong or unreasonable, even if all legal advice indicated it was perfectly reasonable. Presumably, every loser in a litigation whose position is excoriated in the judge’s decision was counselled at some point that it was a reasonable position. I cannot imagine the level of personal conviction and encouragement from interveners such as CCD that enabled the Moores to pursue 18 years of litigation with any amount of equanimity.
This incredible courage and selflessness of plaintiffs struck me in other disability rights case that I summarized during my CCD internship. For example, Angela Chesters fought Canada’s prohibition against the immigration of persons with disabilities if their disability might impose an “excessive demand” (calculated simply as an above average cost) on the Canadian health system. In her case, she was married to a Canadian and they wanted to live in Canada, but she was not allowed to because she had multiple sclerosis. The Chesters refused a compromise offer of the government and eventually gave up on moving to Canada after years of fighting but still pursued litigation to try to vindicate the rights and dignity of other persons with disabilities. Chesters lost but the challenge spurred the government at least to drop the excessive demand requirement for refugees. As a law student, we read many landmark human rights cases but the personal aspect of them is rarely emphasized. I am grateful to my internship with the CCD for the opportunity spend more time with cases and better appreciate the human experience implicit in human rights litigation.