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SOMBA K'E/YELLOWKNIFE - A Hay River woman has won a case before the NWT Human Rights Commission, successfully arguing she was discriminated against because of her marital status.

Jennifer McSwain complained to the commission in 2006 after the South Mackenzie Correctional Centre (SMCC) refused to help her under a program in which inmates shovel snow at the homes of disabled and elderly people.

Jennifer McSwain of Hay River has won a human rights case against discrimination based on her marital status. - Paul Bickford/NNSL photo

McSwain, who has multiple sclerosis and moves around in a scooter, is married to SMCC correctional officer Bill McSwain.

"I won," she said. "They discriminated against me because of whom I'm married to. It's like winning the lottery."

In a written ruling released March 16, an adjudicator found the denial of snow removal to McSwain was based on marital status, which is prohibited under the NWT Human Rights Act.

However, she wasn't always confident of success.

"I had a doubt because I was effectively against the Department of Justice, which is all lawyers," said McSwain, who had retained her own lawyer for advice, but argued the case herself before adjudicator Adrian C. Wright.

Even though she won, McSwain said she may end up with nothing but about $2,000 in legal fees repaid for her trouble.

"It might be for naught," she said, adding criteria for the snow-clearing program were established after her complaint which might be hard to change.

McSwain said she went to the Human Rights Commission as a matter of principle.

"The government changed a program to disqualify me," she said.

The adjudicator held hearings in Hay River on Sept. 11 and 12, 2008, and released his 31-page decision on March 16.

In his decision, Wright described the long-time program at SMCC in which inmates volunteer to clear snow from pathways and driveways of disabled and elderly people.

Before the fall of 2005, there were no written criteria governing the snow removal.

Tom Hamilton, the SMCC warden, testified, "The criteria has always been that we would help people that needed help who had no one to help them."

Inmates removed snow for people suggested by Home Care, a division of the Hay River Health and Social Services Authority. Home Care placed McSwain's name on a list in the fall of 2005.

According to the adjudicator's decision, Hamilton objected to McSwain's name on the list because an able-bodied person lived with her and there was a conflict of interest with Bill McSwain's role as a corrections officer.

However, the adjudicator said snow was removed at other residences where able-bodied persons lived.

"When my name got put on the list, all of a sudden criteria got made up by the warden," McSwain said in an interview with News/North.

In January of 2006, Hamilton prepared written criteria of who would be eligible for snow-clearing by inmates, among other things excluding residences where able-bodied people lived and where a conflict of interest existed.

McSwain believes there is no reason for not helping out at a residence where an able-bodied person lives with a disabled person, saying, "You have no idea what that able-bodied person is already doing in that home."

Hamilton testified there was also a security concern with inmates learning where corrections employees live.

The adjudicator rejected that argument.

"I am not satisfied the respondent believes in good faith that denying snow removal to the complainant is necessary for security reasons," he wrote.

The adjudicator also rejected the argument of conflict of interest, noting that could only arise if Bill McSwain supervised inmates removing snow from his property and SMCC could arrange for that not to happen.

Karan Shaner, the assistant deputy minister of Justice, said the department will reserve comment because an aspect of the case - a remedy hearing - is still pending.

"We're just not in a position to comment until that time," Shaner said.

No date has yet been set for a hearing on possible remedies in the case.