Ecojustice Blog – Healthy communities Posted on March 22, 2013 (updated: December 21, 2015)

A victory for victims of environmental sensitivities or multiple chemical sensitivities

Ecojustice lawyer John SwaigenJohn SwaigenLawyer

Some of our legal victories for Canadians and their environment attract major news coverage. Others, like our work with Varda Burstyn, make less of a splash but are equally as important. Varda Burstyn is an award-winning Canadian author who suffers from Environmental Sensitivities or Multiple Chemical Sensitivities (ES/MCS). People with this condition are affected by chemicals most of us don’t notice on a on a moment to moment basis, but which are responsible for major health harms expressed in chronic illnesses and reproductive and neurological disorders.

Mold toxins, along with the various chemicals found in our homes and workplaces, threaten Varda’s health. They make her sick. Medical experts say the best treatment for this condition is to remove materials and products that contain certain chemicals from the home. But these renovations can be expensive. Varda and her husband spent more than $200,000 to make their home a safe environment.

Varda’s Claims Are Denied
After renovating, Varda and her husband applied for tax credits offered to people who need to retrofit their homes for medical reasons. For example: a person in a wheelchair who has wheelchair ramp built to access to his or her home is eligible to receive the credit. But the Canada Revenue Agency rejected Varda’s claims and said the kinds of home alterations needed by people with her disability didn’t qualify for the credit. She told the Canadian Human Rights Commission that this action violated her right under the Canadian Human Rights Act to be free from discrimination on the basis of disability.

On April 24, 2012, Varda won her three-year battle to have a hearing before the Canadian Human Rights Tribunal. We at Ecojustice were proud to have helped Varda persuade the Canadian Human Rights Commission that the Canada Revenue Agency’s denial of her claims showed evidence of discrimination against her and others with her condition.

The Settlement
Last December, we represented Varda at a Canadian Human Rights Tribunal mediation. Partnering with ARCH Disability Law Centre, we negotiated a confidential settlement that improves Varda’s life and may prevent future discrimination against sufferers of Environmental Sensitivities.

Why We Got Involved
We supported Varda because we believe that access to a safe environment is a human rights issue. We also believe that reducing our exposure to toxic chemicals, especially those found in the home, will protect Canadians. And we are proud that our legal work allowed Varda to claim her victory.

We asked Varda if she could share her feelings with you and she agreed:

More than a million Canadians have been diagnosed with Environmental Sensitivities. Chances are you don’t know that people with this condition become extremely sick with even slight exposures to the everyday chemicals like fabric softeners and flame retardants and pesticides.

Chances are you don’t know that MCS isolates it victims and makes accessing the usual medical or health supports difficult. And chances are you don’t know that most people with ES/MCS became sick because exposures to ubiquitous toxic chemicals have overwhelmed our ability to detoxify, an ability that varies from individual to individual. I’m talking about pesticides, my personal downfall, or chemicals in new building materials. I’m talking about industrial chemicals, but also the everyday chemicals that surround you, and that you can read about in Slow Death by Rubber Duck, by Rick Smith, former executive director of Environmental Defence, and Bruce Lourie, or, more technically, in Early Exposures to Hazardous Chemicals/Pollution and Associations with Chronic Disease: A Scoping Review, a report from the Canadian Environmental Law Association, the Ontario College of Family Physicians and the Environmental Health Institute of Canada.

So my battle was about a disability, right? But it was also an environmental battle about the need for institutional recognition of the rights of people disabled by exposure to the many chemicals that manufacturers, such as the members of the American Chemistry Council lobby want us to believe are safe.

One of the reasons you probably don’t know these things is that many Environmental Sensitivities sufferers – of which I am one – are hidden away. We have to create chemical-free homes so we can survive, so you don’t often see us. A U.S. study pegged the average cost to make a home safe for someone like me at US$57,000 – a massive financial hit at the very moment that people lose most or all of their earning ability due to the onset of severe Environmental Sensitivities. Being confined to our homes makes it very hard for us to fight to change perceptions about these issues and to reduce our exposure to toxic chemicals, while a well-funded chemical industry lobby maintains a campaign to paint people with chemical sensitivities as emotionally troubled, not physically injured.

When Ecojustice decided to support me, it demonstrated real enlightenment. A chemically safe house is considered the most important medical treatment for those with Environmental Sensitivities, but the Canada Revenue Agency prevented me from claiming those tax credits. Ecojustice understood what was at stake: it’s unjust if our major institutions are allowed to refuse official acknowledgment of the consequences of toxic injury and deny financial support that can improve the lives of Canadians.

My battle lasted almost four years. Ecojustice intervened in the last year and a half, when the Canada Revenue Agency attempted to stop the Canadian Human Rights Commission from completing its own investigation of my complaint. Back then, I wanted to quit. But Ecojustice helped me beat back this barrage, and assisted me all the way through to the Canadian Human Rights Tribunal. ARCH, the disability rights legal assistance organization, worked with Ecojustice staff lawyers John Swaigen and Robert Peterson. Together, we have fought for systemic recognition and procedures that will make it more possible for people with Environmental Sensitivities to apply for the same tax credits open to people with other disabilities and impairments.

Prior to my hearing at the Canadian Human Rights Tribunal, we had an opportunity to discuss a possible settlement. Mediation is the final step before a full hearing, which can be expensive and time-consuming. On Tuesday, Dec. 18, we met with the Canada Revenue Agency. The result of these hearings is almost always bound by confidentiality agreements, and this was the case here.

But Ecojustice supporters should know this: the outcome was significant and positive relative to our objectives, a real step forward, and a truly amazing one. I believe that educating senior government officials at the Canada Revenue Agency about my disability, as well as a deeper understanding of Environmental Sensitivities at the Canadian Human Rights Commission should result in positive consequences.

My husband and I want to thank Ecojustice from the bottom of our hearts. Our victory would not have happened without their support. And thanks to you and everyone who supports Ecojustice. This whole process was not just about me, or the other Canadians suffering from Environmental Sensitivities. It was about all of us.
– Varda Burstyn

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