Advocating for equal opportunities

Sarah Khan, staff counsel with BC Public Interest Advocacy Centre, may be legally blind, but you would never know that unless she told you.

“I really don’t spend much time thinking about my vision,” Khan said in a recent telephone interview, an hour before flying to London to meet three of her Scottish aunts for an eightieth birthday celebration. “Technology has made it easy to enlarge the font size on documents now. At midnight last night, I was able to download and print parts of a map of the London Underground, after blowing it up to 200 per cent.”

Born in Vancouver, Khan spent six of her school years in Indonesia with her parents — her engineer father was working there on several irrigation projects — before returning to Burnaby to finish high school. “The years in Indonesia were wonderful,” she reflected. “I also saw a lot of inequality, and was interested in finding out why some people have so much and others have so little. And of course, the same questions apply in Canada.”

Khan’s own family personifies diversity: her father is Pakistani and her mother is Scottish. “In Indonesia, people often thought I was Dutch, which was not a positive association in their post-colonial society,” Khan said. “I became very conscious of the effects of colonialism and the need for equality.”

Khan’s experiences in the Burnaby school system, in Asian Studies at SFU and UBC, and at the University of Victoria law school were very positive, as she received the support and accommodation she needed.

“At UBC, Crane Library and the Disability Resource Centre gave me access to larger print exams,” recalled Khan. “At UVic law school, Professor Heather Raven made sure I had the accommodation I needed. I participated in the co-op program, through which I met some fine lawyers, including Jeff Hoskins (General Counsel and Director of Policy and Legal Services) at the Law Society, where I spent a great summer as a co-op intern.

“I articled with Ratcliff and Company — a North Vancouver firm specializing in First Nations law — where I received a solid grounding in administrative law and litigation, preparing me well for the public interest litigation and advocacy work I have been doing with BC PIAC since 2000.”

On behalf of a coalition of 15 organizations from communities across BC, Sarah Khan and BC PIAC filed a systemic complaint with the Ombudsman about unfair practices experienced by low-income people who need assistance from the Ministry of Employment and Income Assistance. The complaint resulted in many changes to the ministry’s processes for handling applications, home visits and reconsideration of benefits entitlements. Together with the Farm Workers Legal Advocacy Program and Community Legal Assistance Society, Khan assists farm workers with eligibility for employment insurance and other benefits. She also has represented many people in suits by the provincial government for overpayments of income assistance and disability benefits.

For Marla Gilsig, a sole practitioner in Vancouver, the path to and through the practice of law has been both less direct and more arduous.

Gilsig grew up in Surrey and Vancouver. During her elementary school years, she was in and out of hospital with an autoimmune disease that caused frequent infections and left her with significant bilateral hearing loss — normal hearing at lower pitches, with drastically diminished hearing in the higher frequencies.

“The doctors thought it would be too stressful for me to deal with the hearing issue as a child already struggling with severe and recurring infections, so they never told me about my hearing loss,” Gilsig said with a remarkable lack of bitterness. “So, I struggled to learn Hebrew and then French — both oral languages — during those very difficult childhood years.”

After completing an undergraduate degree at the University of Toronto, Gilsig returned to the west coast to earn a law degree at the University of Victoria, graduating in 1978 as a member of its inaugural law school class — all without hearing aids or any other accommodation for her hearing disability. “By then I knew I had trouble hearing higher pitched voices, and had been examined by a number of otolaryngologists, but I still had no idea of the cause or extent of my hearing loss,” she said.

After Gilsig had worked for two and a half years as a prosecutor for the provincial Ministry of Attorney General, one day a court reporter called her over to listen to a tape of the afternoon’s proceedings. “I was shocked to hear myself asking witnesses to repeat their answers, again and again,” Gilsig recalled. “‘I think you have serious hearing loss,’ the reporter told me.”

“Back I went for another hearing test. This time my otolaryngologist said I had a severe hearing loss and needed to wear hearing aids in both ears. Over the years my doctors had hidden my hearing loss from me by saying that I did not need hearing aids, when they should have said, ‘Marla you have severe bilateral hearing loss. But your type of hearing loss is very rare, and presently there are no hearing aids manufactured that will help you.’”

In those days, rehabilitation services were not available for people with a hearing disability; the doctors and audiologist had given Gilsig two hearing aids and sent her on her way. “When I had completed the provincial government job application form, I indicated I did not have a disability,” she said. “I thought if I told the ministry that they had hired a Crown Counsel with a severe hearing loss, they would fire me. So, I quit.”

Gilsig soon found work as a staff lawyer with the Legal Services Society. After two years there, she left law for three years to focus on her health issues.

In 1986 she returned as a sole practitioner. Over the next 15 years Gilsig developed a mixed litigation and solicitor’s practice, working on a number of precedent-setting cases that determined whether designated groups have the right to access specific types of government services and resources. She has also established and served on the legal committees of the Canadian Hard of Hearing Association, Canadian Disabilities Rights Council and Learning Disabilities Association of BC.

In 1998, Gilsig was diagnosed with fibromyalgia, also known as soft tissue rheumatism, fibrositis and non-articular rheumatism. Fibromyalgia is incurable, with symptoms that include chronic pain in joints and soft tissue, fatigue and migraine headaches.

In 2000, Marla Gilsig’s marriage of 17 years fell apart, and she became the single mother of nine-year old Sam and 13-year old Carly. The following year Gilsig closed her practice to concentrate on her health.

“I immersed myself in the study of fibromyalgia and the characteristics of my own case,” Gilsig said. “Likely another product of my autoimmune disease, fibromyalgia is incurable, but it can be managed.”

“The keys are balance and flexibility. If I manage my diet and sleep, work and exercise when I’m feeling strong, and rest when I’m feeling weak, then I’m fine.”

By 2006, Gilsig had turned her remarkable tenacity to preparing for her return to practice, successfully completing the Law Society’s requalification examinations after seven months of study. “I could not have done it without the support of the CBA’s Women Lawyers Forum, particularly the guidance of chair Debra Van Ginkel, QC and the mentoring of Brenda Edwards,” Gilsig said. “Brenda gave me great advice and encouragement, and she showed me how to get past my embarrassment about using technology to supplement my hearing.”

Gilsig believes that her personal and professional strengths have been both stretched and reinforced by her health challenges. “I had to cultivate investigative, analytical and problem-solving skills,” she said. “I found reserves of determination and resourcefulness that allowed me to turn problems into successes.”

After returning to active practice last year, Gilsig applied to more than 40 organizations, including law firms, public and private corporations, government and non-profit organizations, without success.

“It has been discouraging,” she said. “We have certainly made progress in recent years, but the barriers are still very much there — on several levels. Organizations react with fear to an older woman returning to practice after a number of years and dealing with health issues.

“They have trouble seeing the strengths being offered, like loyalty, judgment and perseverance. And, they overstate the degree of accommodation and support needed. For example, a good wide area FM audio system can be installed for less than $1,500, for the benefit of so many people!”

Perhaps discouraged but certainly undeterred, “Marla Gilsig, Barrister and Solicitor” has re-opened for business. Alongside her client and public service work, Gilsig makes time to serve as the Canadian Bar Association’s chair of general practice, solo and small firm section, for both the BC branch and national offices.

Sarah Khan also knows the barriers are still there. “I have been fortunate to have been accepted and accommodated by many institutions and many people along the way,” she said. “I know that many others with disabilities have been less fortunate, and have had to try to justify their accommodation needs again and again, often without success.”

“Some of the most serious barriers faced by people with disabilities are the perceptions and attitudes of other people. I see acceptance and accommodation for people with disabilities as basic equality rights under provincial and federal human rights legislation, and under section 15 of the Charter.”

In its 2001 report, Lawyers with Disabilities: Identifying Barriers to Equality, the Law Society’s Disability Research Working Group relied on the following statement by the Supreme Court of Canada in Eaton v. Brant County Board of Education, [1997] 1 SCR 241 as its starting point for applying s. 15(1) of the Charter to the concept of disability and the purpose of “accommodation:”

Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which the disabled will never be able to gain access. It is the failure to make reasonable accommodations, to fine-tune society so that its structures and assumptions do not prevent the disabled from participation, which results in discrimination against the disabled.

As Marla Gilsig put it, “Giving lawyers with disabilities an equal opportunity to practise law, ensures that the legal system and legal profession can properly serve people with disabilities. In turn, that helps the society to fulfill its duty under the Legal Profession Act “to protect the public interest in the administration of justice by protecting the rights and freedoms of all persons.”

Lila Quastel: Access through accessibility

lila QuastelLila Quastel is a great example of the value that volunteers bring to the Law Society. A practising occupational therapist, Quastel is a lay member of the Equity and Diversity Committee and chairs its Disability Research Working Group.

Her focus is on improving access to BC’s courthouses for people with disabilities. “Two years ago, Art Vertlieb, QC [Chair of the Equity and Diversity Committee] set up a meeting for me with Chief Judge Stansfield of the Provincial Court,” Quastel said. “Judge Stansfield was very supportive from the beginning, telling me that a number of judges had already expressed their concerns about physical barriers to justice in courthouses around the province — from wheelchair access and acoustics to lighting and sightlines.

“Chief Judge Stansfield introduced me to Assistant Deputy Minister Helen Pedneault of the Ministry of Attorney General’s court services branch, and Program Manager Larry Cade of the ministry’s facilities services division: both have been great people to work with.

“Ms. Pedneault supported the recommendations made regarding planning for future facilities and resolving existing issues to improve courthouse accessibility, and has written to the Law Society requesting they appoint a representative to work with the facilities program manager to develop next steps.”

Ms. Quastel is an Assistant Professor Emerita at the UBC Faculty of Medicine’s School of Rehabilitation Sciences, and a former chairperson of the Canadian Occupational Therapy Certification Examination Committee.