Human rights triage

Two prominent Vancouver lawyers say the BC government has quietly made the human rights complaint process even more difficult to access, especially for those who don’t have the money to pay for legal representation.

Vancouver lawyer Clea Parfitt says she was told when the Community Legal Assistance Society (CLAS) was formed 18 months ago that it would be available to represent anyone who had a complaint with enough merit to proceed before the BC Human Rights Tribunal.

“My understanding is that CLAS has now requested from the Attorney General, and received permission, to not represent people because CLAS doesn’t have sufficient resources-irrespective of whether the complaint has merit or not,” Parfitt told Xtra West Oct 4.

Vancouver lawyer barbara findlay says there are even a number of cases already before the Human Rights Tribunal from which CLAS has withdrawn existing representation, even though those cases have merit and their hearing dates are looming.

“I got a call from a woman who is in that very situation,” says findlay. “She is not able to get representation for her hearing, which begins in December, though there’s no suggestion that her case lacks merit.”

Those complainants “have been left high and dry,” says Parfitt.

Parfitt says she’s most concerned this change happened quietly with no public discussion.

“The government is essentially enjoying the reputation that they are providing free representation which they are not providing,” she says.

Findlay says queer people should be particularly worried about this development. “Research that was done by the Human Rights Commission showed that homophobia was the biggest human rights problem in BC,” she says. “In turn, what that means is that queer people need the remedies the commission offers more than many other communities do.”

Parfitt says CLAS lawyers do very good work. She says they are essentially personally subsidizing the clinic by working “insanely hard.” The demand for services has simply exceeded their ability to supply and government won’t come up with the cash to pay for all the work that’s needed.

Although she lays the blame squarely at the feet of the government, she says she wishes CLAS had the courage to make this issue public.

Parfitt says it’s a difficult decision for CLAS to be critical of government funding policy because that would be biting the hand that feeds it.

“As a public interest organization I would be much happier if [CLAS] had spoken publicly about the change in their coverage so people knew and could make a fuss if they didn’t agree,” says Parfitt.

CLAS Executive Director Jim Poser says CLAS is in full compliance with its contract with the government.

Xtra West asked Poser if there were any cases with merit that had been denied representation because of lack of resources. “That I’m not aware of,” he said. “You’d have to give me the name of a case. I’d be happy to look into that. I don’t believe there are.

“Susan O’Donnell [executive director of CLAS’s partner organization the BC Human Rights Coalition] would be the person you’d want to talk to.”

The BCHRC helps complainants get started with their complaints. They then refer complainants to CLAS which provides free legal representation from its staff of lawyers.

O’Donnell says she hasn’t turned anyone away yet because of lack of resources, but that the BCHRC has emergency money it will likely be dipping into to get it into the next year. CLAS, she says, is in a more difficult position.

“They’re working seven days a week,” O’Donnell says. “They’re getting exhausted. Certainly at the beginning of the complaint, where we are, we’re not in that kind of difficulty.”

As well, O’Donnell says CLAS has lost staff lawyer Tim Timberg who represented Murray and Peter Corren’s queer curriculum complaint against the Ministry of Education.

Although Poser says the Corren file has been assigned to another lawyer, Timberg’s departure to a new job at the federal government will likely mean CLAS’s resources will be stretched even more thinly.

When Xtra West asked Poser if he was happy and comfortable with the level of funding and support he was getting from the government, he took a very long pause and acknowledged that it was a hard question to answer.

“I think that the clinic is 18 months old,” he said. “At the beginning of the clinic, we were over-resourced. Right now I think we are full. We are settling cases, we are taking cases to hearing and we are taking the cases that are referred over to us from the BCHRC. Where we’ll be in a week, a month or six months, I can’t say.

“I do think right now our staff are very diligent, very committed, very bright, and they are working very, very hard and I’ll leave it at that,” said Poser.

Poser later phoned Xtra West to say complainants may not get representation at their hearings “if we’re double-booked and have no lawyers available. We have to double-book because there’s a 90 percent settlement rate, but on the rare occasion when two files have to go ahead in two different places with one lawyer, that is impossible. We can’t do that, so we would apply for an adjournment.

“If the adjournment is unsuccessful, the complainant may have to go ahead on their own. This is when we don’t have anyone available.”

O’Donnell, Poser, Parfitt and findlay all agree that anyone who feels they have a valid human rights complaint should file one even if they don’t have the money to hire a lawyer. People who need human rights complaint advice should continue to access the BCHRC and CLAS.