Denying legal aid to disabled human rights complainant not discrimination, N.W.T. judge rules

An N.W.T. Supreme Court judge has thrown out a decision that ruled a disabled Yellowknife woman was discriminated against when she was denied legal aid to help her argue human rights complaints.

Justice Karan Shaner's ruling is the latest development in a process that began in 2011, when Elizabeth Portman, a former territorial government employee who has multiple sclerosis, applied for and was denied legal aid from the Legal Services Board.

Portman filed another complaint against the Legal Services Board, which was dismissed by the territory's human rights commission. An Alberta-based adjudicator, William McFetridge, was then tapped by the N.W.T.'s legislative assembly to look into the case.

McFetridge ultimately ruled that the commission's decision to dismiss Portman's complaint was "unreasonable," saying that "without legal assistance, access to the human rights complaint process is significantly more difficult for [persons with certain disabilities] than for persons without those disabilities."

In his ruling, McFetridge ordered the N.W.T. government to grant Portman consideration of her legal aid application, and that the board stop refusing funding without considering whether a person's disability could hamper their access to justice. He also ordered the territory to pay Portman $10,000.

'It would be entirely illogical'

The territorial government appealed the ruling, and on Tuesday, Shaner threw out McFetridge's decision, saying that he made "fundamental errors which ultimately led to an unreasonable conclusion on the merits, and, in turn, the remedy he offered."

Shaner gave several reasons for her decision, noting that the territory's Legal Services Board, which provides legal aid, is separate and independent from the territorial government, and that in McFetridge's ruling, he "often [treated] them as the same entity." 

This meant that his order held the territory responsible for a Legal Services Board ruling, which she said "would result in the GNWT usurping the LSB's role in setting policies and deciding who will be granted legal aid for what."

Shaner also noted that McFetridge did not note that the Human Rights Act has a provision which allows that commission to arrange for assistance for a complainant. If he considered this, she said, he would not have concluded that Portman had no alternative to legal aid.

'Legally absurd' 

Shaner also took issue with the question at the heart of the ruling: that Portman was discriminated against when denied legal aid. She noted that legal aid is not provided to members of the public for complaints to the Human Rights Commission, and ruled that not offering an unavailable service to Portman does not constitute discrimination.

"The Legal Aid Commission does not provide an unlimited variety of legal services for members of the general public," she wrote in her decision. "It would be entirely illogical to require it to expand its mandate to provide additional services so that Ms. Portman and others in her position can have access to legal aid for cases falling outside that mandate.

"The result would be legally absurd. Ms. Portman and others in her position would be able to access funding from legal aid for legal services not offered or available to the public."

Shaner also took issue with McFetridge's decision to award monetary compensation to Portman, saying there was nothing on the record suggesting she incurred expenses or lost income due to being denied legal aid, and that without evidence, the decision should not have been awarded.

"It is not possible to know why he concluded this relief was justified," she wrote.