A Nova Scotia Supreme Court judge has reserved his decision on whether the province's human rights commission should have to hear a complaint from a group of accessibility advocates.
At issue is if the way the province enforces its public health policies amounts to discrimination.
Not all restaurants have accessible bathrooms, but they cannot be sanctioned because they are grandfathered by the province's building code.
The advocates argue, however, that when those same establishments alter their locations to include accessible summer patios but still do not have accessible washrooms, it amounts to systemic discrimination because the province is not enforcing its own rules ensuring access to facilities.
Trying to launch a complaint
"The complaints were not about the individual establishments who have unwittingly been the beneficiaries of this apparently systemic discrimination, but about the systemic discrimination itself," lawyer David Fraser argues in his written submission on behalf of the advocates.
The group is in court because last summer, when it tried to bring a complaint to the commission to have it investigated, the request was dismissed.
Fraser argues that was an unreasonable decision and the commission has an obligation to examine the complaint, an obligation he wants the court to enforce.
"In the Human Rights Act, the commission has no discretion and no leeway to turn away complainants if the complaint is made in writing and it addresses subject matter within the commission's legal competence."
There must be some gatekeeping
But a lawyer for the commission disagrees.
In her written submission, Kymberly Franklin argues there is simply no way the commission could manage taking every inquiry it receives through to the complaint investigation process.
"The process would be so severely bogged down that there would not be efficiency towards a resolution," she writes.
It's for that reason, writes Franklin, the commission must have the ability to have a certain level of gatekeeping in order to carry on business.
"This includes deciding which inquiries are put forth as complaints."
Staff tried to help in other ways
Citing case law, she writes that there should be "significant deference to the decision maker," and that staff have been trained in the interpretation of the Human Rights Act.
Franklin also notes that commission staff tried to be helpful by suggesting other places to take the complaint or altered approaches, such as targeting specific businesses, that might result in a complaint being investigated.
But outside the courtroom on Wednesday, Fraser said the problem is with the system, not specific businesses.
"The nub of the issue is how it happens across the system, and [the advocates] want the system fixed."
Government should address any resource issues
Fraser told reporters the commission put forward no evidence of the demands on its services, nor information on how many inquiries are not pursued. He noted there are mechanisms in the Human Rights Act that allow for complaints to be dismissed.
But if the concern is a question of resources, he said, that's a matter for the province to address so the commission can carry out its mandate.
Justice Frank Edwards will provide a written decision on the matter at a later date.