There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC and Ontario and that were rendered during the month of June, 2018. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.
Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (2L), Valeria Kuri (2L), Maggie Shi (3L)- Windsor Law
July 6, 2018
Customer v Restaurant and Manager (2018 BCHRT 138)
Date Issued: Jun 7, 2018
The complainant has concurrent mental illnesses. He alleged that he was denied service at a restaurant because of his therapy dog that provides necessary assistance to him at all times. This incident formed the basis of his allegation of discrimination. The complaint was ultimately dismissed. The adjudicator held that it was possible that the incident that the Customer and his friend described may have occurred one morning when they went to a restaurant to have breakfast but found that on a balance of probabilities, the evidence did not support their allegations that the incident described occurred at that Restaurant. However, the Tribunal commented extensively on stigma and marginalization, making the observation that testimony submitted in this case affirms inaccurate yet persistent misapprehensions of the mentally ill in broader community. An excerpt of the complainant’s testimony of his lived experience of abuse, exclusion and fear was reproduced to promote awareness and educate the public.
Okanagan Valley Association of the Deaf obo others v St. John Society and another (2018 BCHRT 150)
Date Issued: Jun 22, 2018
Okanagan Valley Association (“Association”) of the Deaf filed a complaint against St. John Ambulance (“SJA”) on behalf of the class of individuals who are D/deaf or hard of hearing for having experienced adverse impact because of SJA’s ongoing practice or policy of refusing to fund Sign language interpretation for its courses to accommodate students. The Tribunal decided that the Association’s late-filed complaint should proceed and accepted it on the basis that SJA’s alleged discriminatory actions constitute a continuing contravention and that it was in the public’s interest to accept it. To arrive at this decision, the Tribunal distinguished a body cases for the proposition that “a mere repetition of a previous request, which elicits the same denial, does not constitute a continuing contravention” and relied on case law that makes an allegation of continuing contravention possible where there is ongoing state of discriminatory condition.
Worker v Employer and Manager (2018 BCHRT 140)
Date Issued: Jun 12, 2018
The complainant, who has several mental disabilities, filed a complaint against his employer concerning his termination for alleged discrimination. His late-filed complaint was ultimately not accepted by the Tribunal. This decision was primarily based on evidence that he was sufficiently functional to pursue other forms of redress and therefore, his disabling condition, which he claimed to be the main reason for his delay, did not prevent him from filing a human rights complaint to attract public interest.
Weekes v Boudreau (2018 HRTO 741)
Date Issued: June 4, 2018
The applicant, Ms. Weekes filed an application under the Human Rights Code, R.S.O. 1990, c. H.19, alleging discrimination with respect to accommodation in housing because of race, colour, ancestry, place of origin, citizenship, ethnic origin, family status, marital status, disability, age, association with a person identified by a Code ground, and reprisal. The applicant claimed that the respondents, her neighbours, were spreading rumours that she has a mental health disability. The applicant claimed that the neighbours had called her “crazy” and this term was mentioned to describe her in a number of police reports.
The primary issue in this case was whether the relationship between the applicant and the respondent fell under the social area of “accommodation”, set out in the Code. Subsection 2(2) of the Code lays out specific relationships where the Code can apply to ensure freedom from harassment in accommodations.
The Tribunal found that applicant was an occupant of housing; however, the respondents who are her neighbours were not in the categories of persons named under subsection 2(2) of the Code as they are not categorized as landlords, landlord agent or an occupant of the same building. The application was therefore, dismissed.
Kalkat v The Merchant (2018 HRTO 759)
Date Issued: June 7, 2018
This case concerns an application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that his laptop had been damaged after it was left at the respondent’s establishment.
The Tribunal stated that in order to fall within the Tribunal’s jurisdiction, an application must contain allegations that connect a respondent’s conduct to one or more prohibited grounds of discrimination. The Tribunal held that the applicant’s submissions deal with allegations of property damage but failed to point to any connection between this treatment and a ground for discrimination mentioned in the Code. The Tribunal concluded that the application was not within the Tribunal’s jurisdiction.
Sprague v Maple Leaf Sports and Entertainment (2018 HRTO 764)
Date Issued: June 8, 2018
The applicant alleged that he is a person with a disability and required accommodation for seating at a facility operated by the respondent. The applicant alleged that the respondent charged him more for his accessible seat than other “non-accessible” seats nearby. The respondent denied the allegations and provided an explanation for what was said to have occurred.
The applicant sought an interim remedy to order the respondent to stop charging more for certain accessible seating. In order for an interim remedy to be granted, it is necessary to have: (1) a detailed description of the order (2) one or more signed declarations by people with firsthand knowledge of the issue and (3) a balance between the harm and convenience of granting an interim remedy that would be just and appropriate in the circumstance.
The Tribunal held that an interim remedy would not be granted. First, it was not clear that the application had merit. Second, the balance of harms and convenience did not favour granting the interim remedy request. Finally, it would not be not fair and just to do so. This case will continue on with the Tribunal.
Guillemette v Bell Technical Solutions (2018 HRTO 766)
Date Issued: June 8, 2018
The applicant in this case alleges discrimination with respect to employment because of disability. The Tribunal sent the applicant a Notice to Dismiss, inviting the applicant to make submissions on the issue of whether the respondent is covered by the jurisdiction.
The Tribunal found that the work performed by the employees, including the applicant, remains an integral part of Bell’s core federal undertakings in telecommunications. The respondent is a federal agency and falls outside of the Tribunal’s jurisdiction.
Moodie v Workplace Safety and Insurance Board (2018 HRTO 775)
Date Issued: June 12, 2018
The applicant in this case alleges discrimination with respect to employment because of disability. The applicant had identified WSIB as the respondent, alleging that WSIB allowed for her continued torture in the workplace. The applicant was asked to clarify who they considered to be the respondent to their application.
The Tribunal concluded that this application would be outside the jurisdiction of this Tribunal. In its reasoning, the Tribunal emphasizes that the doctrine of judicial immunity prohibits legal proceedings against judicial actors based on their role as adjudicators or decisionmakers. The Tribunal found that WSIAT is protected by the doctrine because it is considered to be a neutral third party that determines disputes between parties. For these reasons the application was dismissed.
Hall v Ontario (Community Safety and Correctional Services) (2018 HRTO 778)
Date Issued: June 13, 2018
The applicant in this case alleges that the respondent discriminated against him on the basis of disability. He asserts that he was ill, experiencing “severe opiate withdrawal” when he was admitted to a correctional facility of the respondent. The primary complaint is that the doctor who was to administer the medication the applicant was receiving at the time was rarely available and that he sometimes had to wait over 24 hours between doses.
The Tribunal found that the treatment and decisions from the respondent’s health professionals were not based on the applicant’s disabilities in any arbitrary sense, or anything other than their sincere medical opinions about what he required. The simple fact that the applicant felt as though the respondent’s doctors were treating him differently did not constitute a violation of the Code. Accordingly, the application was dismissed as having no reasonable prospect of success.
Supreme Court of Canada (SCC)
Canada (Canadian Human Rights Commission) v Canada (Attorney General) (2018-SCC 31-2018-06-14)
Although it does not deal directly with disability, the following decision has implications for those who use human rights tribunals, a population that includes many people with disabilities. The result of this case is that it requires challenges to the legislation of the federal Human Rights Act and likely other human rights legislation in the country to be taken through the route of a Charter challenge, which is generally more costly. The following summary has been taken from the SCC website :
“This appeal concerns the dismissal of complaints under the Canadian Human Rights Act. R.S.C. 1985, c. H-6 (“CHRA”), that were dismissed by the Canadian Human Rights Tribunal in two decisions. Said complaints alleged that the “legislative entitlements to registration under the Indian Act, R.S.C. 1985, c.I-5, were discriminatory practices prohibited by the CHRA. Two issues arose; whether defence is owed to a human rights tribunal interpreting its home statute; and whether the Tribunal’s decision dismissing the complaints as “direct attacks on legislation” was reasonable. All complaints arose from the effects of “enfranchisement” enshrined in the Indian Act prior to 1985 (stripped individuals of status and prevented their children from registering as status “Indians”). Although parliament has ended enfranchisement and enacted remedial provisions, the complainants challenge the sufficiency of these measures, claiming their children continue to face discrimination. Complaints were heard by the Tribunal separately, and in both decisions, the Tribunal decided that the complaints were “a direct attack on the Indian Act”. The Tribunal decided that in order to legitimize these claims (in order for the Tribunal to respond), the complainants needed to demonstrate that the legislative provisions “fell within the statutory meaning of a service”. After thorough review, the adjudicators in both decisions conclude that the legislation was not a service under the CHRA and dismissed the complaints. The Federal Court and Federal Court of Appeal found the Tribunal decisions to be reasonable and were upheld. The Supreme Court of Canada dismissed the appeal.”
The Interplay Between Human Rights and Accessibility Laws: Lessons Learned and Considerations for the Planned Federal Accessibility Legislation
In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia.
The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions, d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to further and strengthen disability access laws on the ground.
Based on the research findings, several recommendations are also made regarding the complete set of governance functions examined. These recommendations include: incorporating a mechanism for public enforcement within the enforcement of accessibility standards, incorporating human rights supports and technical expertise within the development of standards, strengthening the statutory language to ensure an inclusive equality approach, avoiding confusion between reactive and proactive approaches to accessibility legislation by keeping the two systems distinct, and, establishing a Commissioner to take leadership in promoting awareness and systemic culture change, in encouraging compliance and in public education both across the federal government and with the general public. (A Summary of Recommendations, which provides a list of all recommendations, is available in the report).
Finally, throughout this report, the author argues that all administrative governance functions in the proposed federal accessibility legislation should be guided by and promote an inclusive equality approach. Inclusive equality is a theoretical framework put forward by the UN that focuses on recognizing the intersectionality of individuals with disabilities in their experiences of disability discrimination. Power relations and the socio-historical context surrounding legal efforts to realize equality by people with disabilities within a reactive regulatory (complaints-based and adjudicative) system should also be considered through this lens.
LLM Student Position in Law & Disability: Access to Healthcare for people with disabilities in the community
The Law, Disability & Social Change Project at Windsor Law is looking for an LLM student with research interests in access to healthcare for persons with disabilities to work on a research project on access to medical services in the Windsor Essex region.
The ideal candidate for this position will have a demonstrated interest in access to justice, disability rights, law and health and/or community health, as well as an interest in theoretical frameworks. They must meet the criteria for admission to the Windsor Law LLM program and be offered admission to that program for September, 2018 (The Windsor Law LLM program application deadline is March 15, 2018; the application is available at this website: http://www.uwindsor.ca/graduate-llm . Please indicate in your application that you are interested in this opportunity.). Funding of $16,000/year will be provided.
The successful applicant will conduct qualitative research as part of their LLM thesis. They will also contribute to a larger team project on access to healthcare for persons with disabilities. This project is run by The Law, Disability & Social Change Project at Windsor Law in affiliation with the Beyond Disability Rehabilitation Network of Windsor Essex. The ideal student should be able to work both independently and as a member of an interdisciplinary team. Students will be supervised by Professor Laverne Jacobs (Windsor Law) and Dr Nathania Liem (HDGH).
Students admitted to either the one-year LLM or the two-year LLM with Certificate in University Teaching & Learning are eligible although students in the two-year program are preferred.
Additional questions may be directed to Professor Laverne Jacobs: firstname.lastname@example.org
Visit by the Australian Disability Discrimination Commissioner – Lecture & Panel Discussion – Jan 15/18
The Law, Disability & Social Change Project @Windsor Law is pleased to announce two public events on disability rights in honour of a visit to Windsor Law by the Australian Disability Discrimination Commissioner, Alastair McEwin.
On January 15, 2018 at 12-1:30pm in the Farmer Conference Room at the University of Windsor Law Faculty, Commissioner McEwin will deliver a lecture titled, “Disability Rights in Australia: Progress over the last 25 years?”
Then, from 5 PM to 7 PM on January 15 in the CAW Upper floor Boardroom, there will be a panel event called, Global Struggles: Working towards Realizing Disability Rights in Canada, Australia and the US, featuring the following speakers:
Alastair McEwin, Australian Disability Discrimination Commissioner
Dr Laverne Jacobs, Associate Professor and Founding Director of the Law, Disability & Social Change Project, Windsor Law
Mark Cody, Legal Director, Michigan Protection & Advocacy Service
Arlene Dodge, Staff Lawyer at LAW and Member of Walpole Island First Nation (Bkejwanong)
Both events aim to be barrier-free and inclusive, and are free and open to the public. Light refreshments will be served. RSVPs are required by January 11 and can be made by clicking here.
We welcome you to join us!
Sponsored by: The Law, Disability & Social Change Project , Windsor Law Disability Club, University of Windsor, Faculty of Law, and the Social Sciences and Humanities Research Council of Canada
The Law building is located at 401 Sunset Ave, Windsor, ON N9B 3P4. In the University of Windsor map it is building number 43, circled in the image below. The CAW centre is building number 34 on the University of Windsor map.
Recovering Lost Discourse?: Equality Rights, Social Change, and the Development of Disability Access Legislation in Canada
Speaker: Dr. Laverne Jacobs, Associate Professor, University of Windsor, Faculty of Law
Date: Thursday, June 22, 2017
Location: Kemmy Business School, University of Limerick
The School of Law at the University of Limerick welcomes guest speaker Professor Laverne Jacobs on Thursday June, 22nd. Professor Jacobs, a Fulbright Scholar and a renowned researcher in the field of disability rights, will deliver a paper entitled “Recovering Lost Discourse?: Equality Rights, Social Change, and the Development of Disability Access Legislation in Canada”.
More information about this event can be found here.
Accessibility Awareness Day, University of Windsor
March 2, 2017
Prof. Laverne Jacobs & Shanae Soor, Disability Legal Studies Fellow, Windsor Law
How can law be used to achieve equality, access to justice (A2J) and full citizenship for persons with disabilities? Issues experienced in the disability community range from basic needs such as transportation to eliminating the violence to children with disabilities caused by bullying. Legal tools such as human rights codes, the AODA and the Charter of Rights and Freedoms have assisted people with disabilities to a certain point. Yet, advocates need to be aware of their shortcomings. This presentation discusses a strategic tool for advocacy for people with disabilities, termed the universality of the human condition, which can be useful in accessing justice and bringing about social change for people with disabilities.
Slides for the presentation may be downloaded here.
More information on the event can be found here.
Canada’s Proposed Disability Act: Improved Access to Justice, Air Transportation & A Federal Commissioner–Let’s do it!
The issues relating to accessibility laws are ones that I have been studying for a number of years. They are also quite important to me as a person with a disability. As a law professor, one of my primary research areas is administrative law which deals with regulation by government of various socioeconomic issues. I have also spent considerable time researching and writing about accessibility legislation and disability rights over the past few years. I don’t believe in doing disability research without engaging with other people with disabilities because lived experience is important. My research therefore always includes interviews, attending public consultations and getting out into the disability community.
Last Wednesday, February 8, 2017, in Toronto, marked the end of the federal government’s public consultations designed to gather input for the new federal disabilities act. The consultations have been organized by Minister Carla Qualtrough, the Minister responsible Sport and Persons with Disabilities. Everyone was provided three minutes to speak. I attended and offered comments based on my research and lived experience.
I respect the government’s initiative to create an Act to promote and protect accessibility at the federal level. I also applaud the government’s attempts to encourage the disability community to participate by sharing their experiences at the consultations. Above all, I appreciated hearing the rich and often deeply detailed comments provided by the large number of people who attended the public consultation last Thursday. (More people attended than was anticipated by about a roomful). I think the open mutual respect and support among those who attended was one of the most energizing features of the evening. There was a vibrant energy in the room that I think everyone felt.
With that background, and drawing in part from my research, here are my reflections on the proposed new federal disabilities act shared at the consultations in Toronto on Feb. 8, 2017.
First, although it is a statute that is being developed under federal constitutional jurisdiction, there are areas where the federal government may be able to help out the provinces through a variety of means including transfer payments. My hope is that the government will think about these areas -such as healthcare which might include attendant care- in developing its legislation. On this front, there were some very interesting ideas at the Toronto consultations , such as having a model standard that provinces could opt into. It would be detrimental to the disability community for the federal government to be myopic in this regard.
Second, my research has shown areas where accessibility legislation that already exists elsewhere in the country could be improved. Analysis of these laws show that they do not reflect the intersectional lived experience of people with disabilities on the ground. For example, disability is often intimately bound up with poverty and gender. Women with disabilities, individuals with disabilities who are transgendered, racial minorities, and other marginalized individuals often face a myriad of barriers in accessing work and other fundamental aspects of an independent life. More needs to be done to explore how legislation can best assist with these issues. I hope that the legislation provides room for such research and improvement to take place.
Third, access to justice for people with disabilities is a topic that has largely been overlooked by accessibility legislation. Accessibility legislation is not meant to be a panacea to solve all problems of disability discrimination. Disability discrimination claims will still arise. Indeed, disability discrimination forms the largest percentage of matters brought before human rights tribunals in Canada. Yet, there is no legal aid for such matters. Moreover, in other types of matters, where individuals with disabilities have difficulty representing themselves for disability-related reasons, legal support and understanding of disability issues by authorities is similarly sparse. The federal disabilities act could assist by providing for legal aid for cases of disability discrimination brought before the federal human rights commission and tribunal, and by setting a standard for legal aid to be adopted by the provinces and territories.
Fourth, transportation for people with disabilities, and especially air travel, requires serious scrutiny. Between 2006-2013, there were over 130 reported cases concerning disability access to transportation before the Canadian Transportation Agency. One hundred and twenty (120) of those cases dealt with air transportation in Canada. This is astonishing. There are also numerous cases that do not make it to the agency because individuals may choose not to bring a complaint or be unable to do so. When it comes to air travel, it is not uncommon for airlines to change aircrafts for reasons of efficiency despite knowing that mobility devices may no longer be able to fit within their cargo doors. This experience has been documented in the media as recently as last summer. It is also an experience that I have encountered personally. The result is a disregard for the time of the person with the disability who is forced to miss appointments, work, and other engagements despite having complied with the airline’s conditions. More importantly it is difficult to reconcile with the guarantee of ‘service free of discrimination’ promised by quasi-constitutional human rights legislation in Canada. Certainly, there is a place for federal accessibility legislation to address air travel which falls within the federal government’s jurisdiction under the constitutional division of powers.
Fifth, and finally, I think there’s much to be supported in the idea of a federal oversight Commissioner. This appointee could be responsible for accessibility and for advocating for the rights of persons with disabilities. Canada has models for specialized commissioners at the federal level (such as the federal Privacy Commissioner and the federal Access to Information Commissioner). Commissioners can take the role of a specialized ombudsperson appointed by Parliament, but there is room for additional creative ideas about how the office of a Disability Commissioner might be designed. At the very least, I would hope for input from the disability community in choosing suitable candidates. As a form of governance, commissioners in other Canadian federal domains have shown success in doing three things: i) promoting rights and educating the public; ii) resolving complaints, often through negotiation or other alternative dispute resolution means that parties can buy into; and iii) keeping a check on government. It will be important to ensure that the Commissioner has expertise in disability and human rights in order to be effective. Enforcement has been one of the downfalls of accessibility legislation previously enacted elsewhere in Canada. Ensuring compliance and culture change will be the true measures of success for any accessibility legislation. Designing an appropriate federal commissioner’s office could go a long way in attaining those goals.
It was energizing to participate in the consultations for building disability access legislation. Every step is a step closer to a more inclusive society. I look forward to the final stages.
Canada needs to be more proactive in preventing hate crimes against children with disabilities.
Over the past year, there have been at least two media-reported incidents of violent attacks on young people with disabilities. One, which took place in Winnipeg in January, involved a 13-year-old boy with intellectual disabilities being thrown into a dumpster and left there by two men as a “prank”. Another took place earlier this week in Windsor when a teenage girl with autism was bullied verbally and physically by classmates. These savage incidents are extremely disturbing, both because of the level of disrespect shown to fellow members of society and because of the lack of a systematic official response on the part of government.
Law and policy addressing disability hate crimes in Canada are weak at best. In 2014, the provision dealing with hate speech was removed from the Canadian Human Rights Act. A similar lacuna is found under the Criminal Code which allows for a judge, in sentencing, to take into account whether a crime was motivated by prejudice based on physical and mental disability among other potential biases but was not designed to extensively address the complex issue of disability hate crimes.
In other jurisdictions, this socio-legal problem is being taken up directly. In the UK, for example, debate took place this month in the House of Commons exploring potential avenues for improving disability hate crime reporting and prosecution. As reported in the Hansard, research in the UK by the Equality and Human Rights Commission has found that 22% of youth with a disability (ie between the ages of 10-15) had been the victim of crime in the past year as compared to only 12% of nondisabled youth of the same age group. They also found that 35% of those surveyed who had social or behavioral impairments such as autism had been victims of crime. Finally, they found a widespread avoidance of reporting hate crimes out of fear and lack of confidence in the justice system.
Canada needs a disability hate crime strategy. The federal and provincial governments, in consultation with persons with disabilities, need to seriously explore the causes of disability hate crimes and the strategies that may work to prevent them. We also need to support the victims so that they have viable and accessible means of reporting incidents and the confidence to know that they will be taken seriously.
Only once we cease permitting violence to occur to children with disabilities can we consider ourselves starting on a path towards a fully inclusive society.
By Laverne Jacobs, Associate Professor, University of Windsor, Faculty of Law
Posted: November 13, 2016
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. 
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:
Read the CBC news story here:
- 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:
- 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:
She acknowledges the valuable research assistance of Stephanie Skinner, Windsor Law JD ‘15 and Justin Reid, Windsor Law JD ‘14.
‘Humanizing’ Disability Law: Citizen Participation in the Development of Accessibility Regulations in Canada
by Laverne Jacobs, Associate Professor, Windsor Law.
Read my latest article, published in Revue Internationale des Gouvernements Ouverts, (2016), p. 79-106. Presented in Paris, France at L’Institut de Recherche Juridique de la Sorbonne, Université Paris 1 Panthéon Sorbonne, March 8, 2016.
Full text available here:
Here is an excerpt:
Consultation is becoming increasingly popular among the federal and provincial/territorial governments in Canada. This paper examines one of the most recent and most widespread cases of consultation to occur in the development of lawmaking in Canada: citizen participation in the enactment of accessibility standards for persons with disabilities. The first attempt at legislation designed to enable this form of participatory governance came about in Ontario with the Ontarians with Disabilities Act, 2001 (ODA). Systematic discontent and a grassroots movement by the disability community eventually pushed for the development of legislation with more enforcement potential –namely, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Both statutes, but especially the AODA, show a radical shift in the process of developing laws in terms of incorporating citizen participation. Under the AODA, regulations are created by the responsible Minister, after the content of those regulations have been agreed upon and put forward by committees comprised of persons with disabilities, industry, government and other affected stakeholders. The legislation therefore adds a new dynamic to the creation of regulations in Canada. The degree of citizen participation is much more extensive, more formal, and lengthier than what is typically used for the development of regulations. More importantly, the new form of consultation process seeks to bring together opposing views in a deliberative democratic battleground with the reality of regulations built on consensus or compromise. In addition to the two Ontario statutes mentioned above, the ODA and the AODA, accessible standards legislation has now also been enacted in the province of Manitoba.
The move to this consultation model was prompted by dissatisfaction in the existing approach to remedying disability discrimination…. Prior to the enactment of the ODA and the AODA, persons who suffered disability discrimination had, as their only source of redress, the option of filing a complaint before an administrative body or the court. With respect to administrative bodies, a collection of human rights commissions and tribunals exists in every province and territory and at the federal level. The aim of these statutory administrative bodies is to achieve remedial and transformative change in society by remedying disputes in which discrimination has been alleged. Statutory human rights bodies fit within a swath of administrative actors in Canada and elsewhere that can be described as reactive regulatory bodies. I use the term reactive regulation to represent the idea that regulation by these administrative actors is triggered only in response to a complaint by an aggrieved party. These bodies are not inquisitorial or investigative. They do not rely on the initiative of the administrative actor to initiate a search for wrongs and to remedy them. More importantly, they are also not forward-looking beyond the parties in the dispute. …
In addition to the limited scope of the remedy, members of the disability community were also concerned about the costs of bringing forward complaints over disability discrimination within the reactive regulatory human rights system. In many instances, human rights statutes may not allow for the complainants to be awarded the costs of their litigation. Moreover, persons with disabilities often represent a large proportion of society that lives below the poverty line. … Persons with disabilities therefore sought a new method through which the eradication of disability discrimination and the concomitant goal of social transformation could be achieved. In contrast to the complaint-triggered human rights system, regulations setting standards of accessibility were seen as a desirable complementary tool to assist in lowering instances of disability discrimination and developing a society more inclusive of persons with disabilities. I use the term proactive regulation to describe this approach as it aims to break down discriminatory barriers before it becomes necessary for individuals to suffer discrimination. In this way, the proactive regulatory system should skirt the need for at least a portion of disability discrimination claims to be brought to human rights agencies and the courts.
In Part II of the paper, I present a detailed and comparative description of the statutes in Canada providing for citizen participation in the development of disability access standards. In Part III, I set out Sunstein’s framework of analysis for humanizing the regulatory state. I then apply the analysis to demonstrate that the Canadian regulatory legislation and consultative processes succeed, to varying degrees, in: i) capturing qualitatively diverse goods and promoting sensible trade-offs among them, ii) taking account of values that are difficult or impossible to quantify, and iii) attempting to benefit from the dispersed information of a wide variety of human beings. …
Lastly, using empirical examples primarily drawn from Manitoba’s consultations during the development of its Customer Service Standard, I argue that any unclear aspects of the legislation can and should be clarified through further consultative dialogue rather than analysis based on monetary valuation.[…]
 Canada’s 2007 Cabinet Directive on Streamlining Regulation (available online at: http://publications.gc.ca/collections/Collection/BT22-110-2007E.pdf), specifies that federal regulations will be made in an inclusive and transparent manner and that all departments and agencies are responsible for ensuring that there are “open, meaningful, and balanced consultations at all stages of the regulatory process”. The federal government currently runs a consultation website where the public can view which consultations are taking place: http://www1.canada.ca/consultingcanadians/. Some provinces run similar websites. See, for example, the province of Ontario’s Consultations Directory website: https://www.ontario.ca/page/consultations-directory .
 S.O. 2001, CHAPTER 32.
 Though there are indications that an earlier and much less widespread instance of using consultation to develop standards existed several decades earlier in Toronto municipal government. (Interview with person with disability and former official of Toronto municipal government, notes on file with author.)
 See France Houle, Analyses d’impact et consultations réglementaires au Canada (Éditions Yvon Blais, 2012).
 The first standard (customer service) came into effect on November 1, 2015. The Employment Standard Committee met between October 2015 to March 2016 to prepare the draft of the second standard under the AMA.
 The constitutional and statutory legal tools protecting human rights and freedoms in Canada, including equality rights for persons with disabilities include the Canadian Charter of Rights and Freedoms and statutory human rights codes. The UN Convention on the Rights of Persons with Disabilities has also been signed and ratified by Canada and is said to be reflected in many of the laws already existing. A concise overview of these laws as they relate to persons with disabilities may be found in Second Legislative Review of the Accessibility for Ontarians with Disabilities Act, 2005 (Mayo Moran, Reviewer) (Queen’s Printer for Ontario: 2014) [Moran Review] at 4-8.
 See Canada (Canadian Human Rights Commission) v Canada (Attorney General) 2011 SCC 53 (Mowat) which held that very strict interpretation of the legislative wording allowing for the awarding of costs should be followed by human rights tribunals in Canada.
 See Council of Canadians with Disabilities, “As a Matter of Fact: Poverty and Disability in Canada”, online at: http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/demographic-profile/poverty-disability-canada
The Accessibility for Manitobans Act: Ambitions and Achievements in Antidiscrimination and Citizen Participation
The Accessibility for Manitobans Act  (AMA) came into force in December 2013. Manitoba is the second Canadian province to enact accessibility standards legislation. The first province was Ontario which enacted the Ontarians with Disabilities Act (ODA) in 2001, and later the more fortified and enforceable Accessibility for Ontarians with Disabilities Act, 2005 (AODA). In this article, we provide an overview of the Accessibility for Manitobans Act, highlighting its purpose, philosophical and social goals; the process for developing the standards; and enforcement and compliance. Throughout, we provide commentary on the statute from the perspective of its effectiveness as a means for protecting persons with disabilities from discrimination, and the statute’s efficacy as a consultation tool for citizen participation. We argue that the AMA’s structure illustrates some of the fault lines in the theoretical literature regarding the social model of disability. Increased attention to the experience of impairment coupled with a more robust understanding of disability discrimination would assist the legislation to achieve its overall goal of removing accessibility barriers. These findings may be useful for the implementation of he AMA and for the design of future accessibility legislation in Canada or elsewhere.
 Accessibility for Manitobans Act, SM 2013 c 40, CCSM c A1.7 [AMA].
More: Read the full article…
* Associate Professor, Faculty of Law, University of Windsor (email@example.com). The authors thank Chandima Karunanayaka for her invaluable research assistance.
** Victoria Cino (JD ’16), 2015-16 Disability Legal Studies Fellow at Windsor Law.
*** Britney De Costa (JD/MSW ’16), 2015-16 Disability Legal Studies Fellow at Windsor Law.
 CCSM c A1.7.
The Universality of the Human Condition: Theorizing Human Rights Claims for Transportation Inequality by Persons with Disabilities in Canada
By Laverne Jacobs, Associate Professor of Law, University of Windsor Canada
Here is an excerpt from my latest paper which explores transportation equality challenges for persons with disabilities in Canada, human rights decisions, and in which I propose a new theoretical framework for analyzing issues of ability-related equality that I have termed the ‘universality of the human condition’.
The full paper can be downloaded here.
Transportation is the lifeline that connects persons with disabilities with the community, facilitating greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities. Yet, there is a dearth of sustained research on the law and society implications of transportation inequality for persons with disabilities in Canada. This paper aims to contribute to the research on transportation inequality by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of the legal claims made. Ultimately, I argue that narrow interpretations of prevailing applicable law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities within the reactive regulatory statutory human rights context. These opportunities may be captured from insights drawn from proactive regulatory processes, such as the one established under the Accessibility for Ontarians with Disabilities Act, 2005.
In Part I of the article, I present a detailed description of the Canadian statutory human rights cases in which applicants have brought disability discrimination claims about transportation. The corpus of cases that I analyze in this section represents original research on the human rights tribunal decisions. decided across Canada between 1982 and 2014. This Part of the paper shows that transportation equality claims brought by persons with disabilities within the Canadian statutory human rights context can be broken down into three types: a) cases seeking transportation restructuring, b) cases seeking access to transportation in support of a broader family dynamic and c) cases in which the complainant seeks to assert that their need for transportation as person with a disability does not lead to a loss of efficiencies as perceived by some members of the mainstream population.
In Part II, I briefly set out the theories of equality relating to the paradigms of economic distribution and identity recognition and relate them to the social model of disability. Neither economic maldistribution, identity misrecognition, nor a combination of both, fully captures the true nature of what is sought by the claimants seeking equality of transportation in these cases. I argue that a different conceptual framework is required to give voice to persons with disabilities seeking equality in transportation, and possibly in broader equality struggles as well. In developing this framework, I draw on the findings of an empirical project that I am conducting in Canada and the United States. In this study, persons with disabilities and organizations dedicated to disability issues (ODDIs) have been interviewed on their experience in government and multi-party stakeholder consultations regarding the development of laws affecting persons with disabilities.
In Part III, I develop more fully this additional aspect of equality theory. I term this missing aspect the universality of the human condition.
i. Austin v. London Transit Commission: the reasonable accommodation doctrine
When one reads across the collection of decisions relating to transportation equality for persons with disabilities, the challenges for persons with disabilities to have their concerns heard in a complaint-based reactive regulatory system becomes strongly apparent. Like Browne v Niagara (Regional Municipality) , Austin v. London Transit Commission  is a case that illuminates the problem of lost opportunities for dialogue in seeking transportation restructuring through adjudicative reactive regulation. But Austin also demonstrates how the doctrine of reasonable accommodation, which is central to equality law concerning persons with disabilities, provides a very narrow platform for receiving transportation restructuring concerns.
Mr. Austin was a paratransit user who felt that the paratransit system was an ineffective alternative to conventional transit in London, Ontario. In Ontario, the paratransit system was created in the 1970s. It expanded robustly through the 1970s and 80s only to be markedly stripped of funding in the mid-1990s when the conservative party was elected to power.  Similar to the paratransit service in other major Ontario cities, the service in London was, at the time of the application, a first-come first-served, door-to-door system which required pre-booking to obtain a ride. After a few specific instances in which he found himself unable to obtain a ride even though he had called to book within the stipulated booking window, Mr. Austin made an application to the Human Rights Tribunal of Ontario about the challenges of using paratransit for persons with disabilities. He framed part of his submission in the following words:
…it is frustrating, stressful and humiliating to have to compete with other paratransit users for limited services, and … given the 3-day advance booking requirement, the [London Transit Commission] should be able to accommodate all requests for paratransit rides.
Mr. Austin further reported that he had been made to feel that it was his fault that he could not secure a ride. He was told that should have called as soon as the booking window opened at 7 AM as opposed to calling in the afternoon in order to obtain a ride since “bookings fill up quickly”. Ultimately, Mr. Austin submitted that “as a person with a disability, [he was] denied equal access to an equivalent public transportation system available to other residents of London, Ontario”.
The adjudicator filtered the matter through the lens of a reasonable accommodation analysis.
When it comes to cases of transportation restructuring, the reasonable accommodation analysis provides little possibility for reimagining an inclusive transportation system. What is lost from the assessment of Mr. Austin’s claim for equality, for example, is any reflection about what a more inclusive transit system might look like. Such a transportation system would allow people with disabilities to organize their daily lives in a manner similar to those who use the conventional system without, for example, 7am pre-booking calls made several days in advance.[…]
Ultimately, Mr. Austin was unsuccessful on the ground of discrimination.
The Universality of the Human Condition
I argue that battles for transportation equality that take place on the ground represent more than the material distribution and identity recognition paradigms of equality theory which have been debated in the literature put forward by political and legal theorists since the 1990s. Indeed, although these two competing models of social justice are present, at least one additional critical element emerges from a review of the three categories of PWD transportation inequality cases above. I have termed this additional model of equality the universality of the human condition. The idea behind the universality of human condition is to bring attention to experiences that we may share through life as human beings –such as raising children, the possibility of being assaulted, the need to get to medical appointments and organize one’s time in an efficient manner –and to have acknowledged within legal analysis that the law should be used as a tool to support everyone to be able to live through these experiences reasonably. It manifests itself in both an individual and collective manner.
The universality of the human condition affirms the independence and empowerment that accompanies the social model of disability. It therefore affirms life experiences that are both positive and negative, and that are often shared and seen as commonplace by a wide range of people.
I argue further that the universality of the human condition may be a valuable tool in the statutory discrimination analysis and illustrate how it may be used [….].
 With thanks to my RAs, Alicia Maiuri, Stephanie Skinner, Mackenzie Falk and Chandima Karunanayaka and Britney DeCosta for their excellent research assistance.
 The socio-legal literature that exists includes: Ena Chadha, “Running on Empty: The “Not So Special Status” of Paratransit Services in Ontario” (2005) 20 W.R.L.S.I. 1[Chadha], “Transportation Barriers ” ch. 5 in Ravi Malhotra and Morgan Rowe, Exploring Disability Identity and Disability Rights through Narratives (New York: Routledge, 2014) and Lisa Vanhala, Making Rights a Reality?: Disability Rights Activists and Legal Mobilization (New York: Cambridge, 2011).
 This research was generously supported by grants from the Fulbright Foundation and the Social Sciences and Humanities Research Council of Canada.
 S.O. 2005, CHAPTER 11.
 2010 HRTO 2141 [Browne].
 2013 HRTO 1936 [Austin].
 See Chadha supra note 2.
 See, for example, information on Toronto’s WheelTrans service, available online at: https://www.ttc.ca/WheelTrans/About_Wheel_Trans_Service/index.jsp
 See Austin at para 3.
 Ibid at para. 2.