When award-winning writer Varda Burstyn complained to the Canadian Human Rights Commission about her treatment by the Canada Revenue Agency (CRA), the last thing she expected was to be caught in the crossfire of a war between these government agencies.
Burstyn suffers from Multiple Chemical Sensitivities (MCS, also known as Environmental Sensitivities). People like her become extremely ill when they are exposed to chemicals in concentrations that do not cause obvious injury to most people. Doctors say the best way to deal with this illness is to create a safe home environment by removing and replacing building materials and mould that give off volatile organic chemicals (VOCs). That’s what Burstyn and her husband did, at a cost of over $200,000. When her husband filed an income tax return claiming a deduction for about $100,000, he was turned down even though the medical expense tax credit is given to claimants who need renovations for other medical reasons. Burstyn took the matter to the Human Rights Commission. This is when she began a voyage through the legal equivalent of Alice’s looking glass.
Burstyn argued that the Income Tax Act systematically discriminated against sufferers of MCS and others with severe respiratory ailments such as asthma. Not only did the CRA ask the Federal Court to prohibit the commission from investigating her complaint, but the CRA also made the astounding claim that it is not required to comply with the Canadian Human Rights Act. The act provides that no one may discriminate against individuals on “prohibited grounds” in the course of providing services customarily available to the general public. Prohibited grounds include race, national origin, colour, religion, age, sex, marital status and, as in Burstyn’s case, disability.
The CRA claims it is not bound by the Canadian Human Rights Act because it is not providing a “service” when it processes a claim for an income tax deduction; this despite the fact that the CRA website boasts that it provides a high quality “service” to the public.
The disconcerting effect of this reasoning is that if the CRA is interpreting the Canadian Human Rights Act correctly then its staff is free to discriminate against people because of the colour of their skin, because they are married, because they are single or on other prohibited grounds — actions that would be illegal if the CRA were a business selling airline tickets instead of a government body deciding whether to accept a claimed tax deduction.
The CRA is not the only federal agency that claims to be immune from the Canadian Human Rights Act. The Department of External Affairs has argued in Federal Court that processing visa applications is not a “service” and, therefore, the Human Rights Commission has no jurisdiction to investigate complaints that it discriminates when carrying out this function.
In a recent case, an aboriginal woman claimed that she was frequently subjected to searches at the Canadian border because of racial profiling. The Canadian Border Services Agency argued that searching her vehicle is not providing a service and, therefore, this activity is insulated from the Canadian Human Rights Act. Last year, the federal Department of Aboriginal Affairs and Northern Development claimed that it is exempt from the human rights law when providing funding to aboriginal child services organizations that is lower than the funding provided to non-native children’s aid societies.