Dear Mr. Bernd Walter,
Re: The Tribunal’s Misuse of Power
As the Chair of the BC Human Rights Tribunal and one who was directly involved in Case 12930, I am sending this open letter after experiencing your and your staff’s use of power to directly undermine guide dog users’ access rights. The Human Rights Tribunal appears unable or unwilling to act ethically when guide dog owners reach out for protection from prejudice.
The Tribunal’s retreat from its duty to address systemic discrimination has permitted anyone to act illegally, putting blind customers at the service provider’s mercy. You have deviated from the official main purpose of the Tribunal, sending a huge red flag to the disabled. “Balancing rights” is an oxymoron, as a right is paramount and not a ratio to be calibrated. There is no evidence that guide dogs cause problems in public places or conveyances. Many unproven barriers have been used to permit discrimination and this is unscrupulous and fraudulent.
The BC Guide Animal Act and the updated Guide Dog and Service Dog Act were introduced to protect access rights of blind guide dog users and included specific clauses stating that the blind person was to be treated as if the guide dog was not present and that no one shall interfere with this legislation. The law clarifies pure entitlement being a protected right and as guide dog users we have been seeking equal access, not the BCHRT’s incorrect interpretation of accommodation which permits discrimination. The inability of the Tribunal to interpret the true meaning of “accommodation” where guide dogs are involved is unprofessional and wanton prejudice.
Guide dogs for blind people have been part of mankind’s cultural fabric for thousands of years, illustrated through excavated frescoes near Pompeii. It is incumbent upon Human Rights Tribunals and Courts to protect this established right.
If an employee is unable to fulfil their responsibilities, the duty to accommodate falls solely to their employer, not the blind customer. Under the taxi licensing Act clear rules state that drivers must respond to all flagged or hailed calls without exception. The Passenger Transportation Act states: 12.1 (1) In this section, “taxi driver” means the driver of a passenger directed vehicle that is operated under a licence that expressly authorizes the driver to convey passengers who hail or flag the passenger directed vehicle from the street, or who cause the passenger directed vehicle to be hailed or flagged from the street.
This licence requirement applies to all customers and does not allow the taxi companies to selectively exclude visible minorities.
The prejudice emanating from the BCHRT is enabling unjustified access barriers across the country to continually confront guide dog users. This practice completely conflicts with the Tribunal’s five stated purposes of the human rights code.
When I was out with friends in July 2014 and one of them called a taxi on his phone, we were all refused the ride because of my guide dog. Victoria Taxi freely disclosed that they had an unbelievable 14 other cabs out of their fleet of 43 on the road who were on file to not take “animals” and extended this to include guide dogs. Despite this obvious and serious illegal policy, the Tribunal chose to permit discrimination.
To fulfil its mandate, the Tribunal’s professional representatives ought to have found these taxi policies outrageous. Initially I was reluctant to proceed with a claim because, like many others, the victim bears the burden of proof. But when I decided to pursue justifiable redress, the Tribunal’s punitive and subsequent betrayal indicated how blind citizens with their guide dogs are perceived.
Throughout the protracted procedure, the BC Human Rights staff, including yourself, repeatedly spoke to me as if the discrimination was my fault, not the driver’s. The discrimination I suffered and my documented proof of disability both met your stringent rules to establish prima facie. However, that is when your stringent rules were abandoned. Having made the decision to take my case to a public hearing rather than mediate, as the Chairman of the Tribunal, you inexplicably got directly involved in my case. You appeared more concerned with finding a way to dismiss my case than with justice and the law. During the telephone conference prior to the hearing with the two parties involved to try and engage Mr. Convy, the Victoria Taxi manager, you spoke as if you were his legal adviser, when you kept pushing him to procure a lawyer and also granted him a further two week extension. This despite already having several other extensions, so he could try and come up with more documentation, as you specifically told him “at present it was not good enough and you must try and come up with something better.” The respondent failed to do so, but unbelievably, completely opposite to your judgment, Ms. Jacqueline Beltgens, your chosen Tribunal Member who presided over my public hearing, gave unfounded credibility to what you had deemed “not good enough.” When you scolded both parties for not mediating, I did explain that your practice of pressuring victims to accept mediation is quite disingenuous, particularly with repeated infractions, as it serves only to “manage discrimination”, and exonerate the perpetrators rather than foster prevention. Furthermore, concealing mediation cases from the public eye is another example of how the Tribunal guards its questionable conduct. Under the BCHR code, once discrimination is proven, as in my case, the burden of proof passes to the respondent, Victoria Taxi. Shockingly, manager of Victoria Taxi even admitted that five of their taxi cab owners simply deny service to anyone with an animal including guide dogs for no reason what so ever. Even hired taxi drivers operating these five cabs were not permitted to serve blind persons accompanied by a guide dog. Mr. Bruce MacGregor, the driver who refused us, could well have been the driver of one of those five taxis.
Your presiding member Ms. Beltgens’ decision treated unsubstantiated comments as if it were evidence and accepted discriminatory restricted access rules, contrary to the conditions of the provincial taxi licence. The driver, Bruce MacGregor, never bothered to attend to speak to his alleged allergies.
As a citizen of British Columbia who accepted the Tribunal’s public servants’ stated claim of impartiality, I have particular scorn for Ms. Beltgens’ practice of placing blame on the victim and creating the impression that these access barriers are warranted. Despite no pre-existing documented driver record of allergies to dogs, or even the word “allergy” being officially medically documented anywhere, throughout her official decision Ms. Beltgens wrote as if this were an established fact and I was portrayed as an unreasonable taxi customer. In all of the human rights public hearings that I know of where taxi drivers have tried to claim allergies to guide dogs, including my own, no factual evidence of allergies has emerged.
Furthermore, some Tribunal staff, and in particular Mediator Ms. Cathy McCreary’s practice of reducing these cases to an “inconvenience” is preposterous. Discrimination should never be minimized as an “inconvenience”. To do so is a deliberate form of oppression. The idea that the discriminator justifies his actions dependent on the impact on the victim is absurd. This tribunal practice directly encourages discrimination as it helps to condone bad behaviour rather than condemn it. Section d) of the BCHR code states: to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this code.
For the BCHRT to identify patterns of inequality associated with discrimination, statistics are required. A written response directly from the BCHRT in September 2016, disclosed that the BCHRT does not keep statistics. How therefore, without compiling statistics, is it possible to identify and eliminate any patterns of inequality associated with discrimination?
If the injustice of this ruling is allowed to stand, in the future literally any unsubstantiated denial of service to a blind person accompanied by a guide dog will suffice. It is important that blind people express disgust at this decision as a challenge in the courts. The decision that was handed down in my taxi discrimination case is a travesty that misinterprets the term “accommodation” and does not respect the law, which will result in huge negative consequences for all blind people with guide dogs. An “independent” investigation into the B.C. Human Rights Tribunal’s conduct in guide dog discrimination cases is necessary to resolve this political prejudice.