Portman v Govt of NWT – Legal Aid, Blanket Policies, Disability, and Access to Human Rights Adjudication

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This blog post celebrates the decision rendered on July 25, 2016 by the NWT Human Rights Adjudication Panel. In Portman v Government of the Northwest Territories, Elizabeth Portman was successful in having a blanket policy refusing legal aid for human rights cases overturned. Prof. Laverne Jacobs of the University of Windsor, Faculty of Law represented Ms. Portman pro bono. [1]

Since September, 2011, the NWT’s Legal Services Board has established a policy not to fund individuals seeking assistance to bring human rights complaints before the Human Rights Commission. Ms. Portman argued that the Northwest Territories Legal Services Board’s denial of legal aid for human rights matters was discriminatory.  In light of the fact that the largest percentage of cases brought before human rights tribunals in the Northwest Territories (and in Canada) deal with disability, this policy had a systemic adverse impact on people with disabilities. Other arguments, related to the reasonableness of the decision, the fettering of discretion and to Ms. Portman’s individual disability, were made as well.

The Human Rights Adjudication Panel (HRAP) held that the Legal Aid policy unfairly disadvantages persons with disabilities from access to the Human Rights Commission complaint process. It held further that it had been unreasonable for the Director to ignore the discriminatory effect of the Legal Aid Policy on Ms. Portman’s access to the human rights complaint process. Equally, HRAP found that the Director ignored relevant evidence, including evidence of the nature of Ms. Portman’s disability and its impact on her access to the human rights complaint process.

Adjudicator McFetridge eloquently stated:

“The refusal to fund Ms. Portman’s human rights complaint has different consequences to her than a similar refusal would have on a person who does not share her disability. Because of her disability, she is incapable of representing herself. Because of her disability, Ms. Portman suffers a disproportionately adverse impact as a result of being refused legal aid. Being denied legal aid means that she will not have meaningful access to the human rights complaint process. Her disability is a factor in the adverse impact.”

And directed the Government of the Northwest Territories to provide the following remedies among others:

  • To discontinue the blanket practice of refusing to fund matters arising out of human rights complaints for applicants such as Ms. Portman without fully considering the impact their disability may have on their access to the human rights complaint process, and consider possible options of accommodation for such persons to the point of undue hardship
  • reconsider her application for legal aid taking into account the appropriate factors

This case will have a significant impact on individuals in the Northwest Territories who wish to bring human rights complaints to the Human Rights Commission as they can now have their applications for legal aid considered by the Board.  If they have a disability, the Legal Services Board should consider their submissions regarding how their disability will affect their ability to represent themselves without legal aid. On a larger scale, this case may have a persuasive impact on other jurisdictions that exclude perfunctorily human rights cases from legal aid consideration.

 

The full decision is available here:

Portman v GNWT Legal Aid Decision Final – (July 25-16)

MS Word Portman v GNWT Legal Aid Decision Final – (July 25-16)

Read the CBC news story here:

http://www.cbc.ca/news/canada/north/nwt-legal-aid-refusal-help-human-rights-complaints-systematic-discrimination-1.3697954

Updates:

  • please note that the Portman decision by Adjudicator McFetridge was taken on appeal by the Government of NWT and overturned by the Superior Court in August, 2017. The NWT SC appeal decision can read at the following link:

https://www.canlii.org/en/nt/ntsc/doc/2017/2017nwtsc61/2017nwtsc61.html?resultIndex=3

  • In January, 2018, Ms. Portman indicated that as a self-represented litigant she is unfortunately unable to pursue a further appeal. The NWT Human Rights Commission has appealed the ruling against them. Read the CBC news story at the following link:

http://www.cbc.ca/news/canada/north/elizabeth-portman-disabled-legal-aid-1.4474436

 

[1]She acknowledges the valuable research assistance of Stephanie Skinner, Windsor Law JD ‘15 and Justin Reid, Windsor Law JD ‘14.