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.

Using Law to Advocate for Social Change for People with Disabilities

Accessibility Awareness Day, University of Windsor

March 2, 2017

Prof. Laverne Jacobs  & Shanae Soor, Disability Legal Studies Fellow, Windsor Law

presentations

Prof Laverne Jacobs and Shanae Soor present their research

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.

A Call to Address Disability Hate Crimes in Canada

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

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

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.

Update: please note that the decision by Adjudicator McFetridge was taken on appeal by GNWT.

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)

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

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

‘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:

Laverne Jacobs – Humanizing Disability Access Regs in Cda SSRN (pdf)

Laverne Jacobs – Humanizing Disability Access Regs in Cda SSRN (doc)

Here is an excerpt:

Consultation is becoming increasingly popular among the federal and provincial/territorial governments in Canada.[1] 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).[2] 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).[3] 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.[4] 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.[5]

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.[7] Moreover, persons with disabilities often represent a large proportion of society that lives below the poverty line.

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.[6] 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.[7] Moreover, persons with disabilities often represent a large proportion of society that lives below the poverty line.[8] … 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.

One question that arises with the new proactive regulatory system is how well it works – both from a perspective based on regulatory theory and from the perspectives of persons with disabilities …

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.[…]

 Notes:

[1] 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  .

[2] S.O. 2001, CHAPTER 32.

[3]  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.)
[4] See France Houle, Analyses d’impact et consultations réglementaires au Canada (Éditions Yvon Blais, 2012).
[5] 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.
[6] 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.
[7] 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.
[8] 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

 by Laverne Jacobs*, Victoria Cino** and Britney DeCosta***    (Forthcoming in the Canadian Journal of Disability Studies)

The Accessibility for Manitobans Act [1] (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.

[1] Accessibility for Manitobans Act, SM 2013 c 40, CCSM c A1.7 [AMA].

More:  Read the full article…

Overview of Accessibility for Manitobans Act (Jacobs Cino and DeCosta) (docx)

 Overview of Accessibility for Manitobans Act (Jacobs Cino and DeCosta) (pdf)

* Associate Professor, Faculty of Law, University of Windsor (ljacobs@uwindsor.ca). 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.

[1] 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[1]

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.[2] Yet, there is a dearth of sustained research on the law and society implications of transportation inequality for persons with disabilities in Canada.[3] 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.[4] 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[5].

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)[6] , Austin v. London Transit Commission [7]  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.[8] 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. [9] Similar to the paratransit service in other major Ontario cities[10], 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.[11]

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”.[12] 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”[13].

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 [….].

[1] With thanks to my RAs, Alicia Maiuri, Stephanie Skinner, Mackenzie Falk and Chandima Karunanayaka and Britney DeCosta for their excellent research assistance.

[2] See, generally, the Canadian Council on Disabilities’ ongoing work documenting various major issues of  transportation for persons with disabilities at http://www.ccdonline.ca/en/transportation .

[3] 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).

[4] This research was generously supported by grants from the Fulbright Foundation and the Social Sciences and Humanities Research Council of Canada.

[5] S.O. 2005, CHAPTER 11.

[6] 2010 HRTO 2141 [Browne].

[7] 2013 HRTO 1936 [Austin].

[8] See Chadha supra note 2.

[9] Ibid.

[10] See, for example, information on Toronto’s WheelTrans service, available online at: https://www.ttc.ca/WheelTrans/About_Wheel_Trans_Service/index.jsp

[11] See Austin at para 3.

[12] Ibid.

[13] Ibid at para. 2.

Rethinking The Ontario Disability Support Program Act

By: Anchal Bhatia, 2L Student, Windsor Law

ODSP is based on asking people with disabilities to constantly prove their struggles. It is time we rethink the ODSPA.

In May 2015, there were significant discussions surrounding the backlog of medical reviews for people on the Ontario Disability Support Program (ODSP). The Toronto Star featured an article regarding disability welfare reviews and one on the difficulty of maintaining benefits that indicate the impact of the intensive review process. Despite the focus on disability reviews and how the most vulnerable people could lose their right to benefits being received, the articles indicate that similar risks exist within the initial process of applying for disability eligibility. This is because current process is inefficient: it does not account for the possible barriers experienced by recipients, is detrimental to the wellbeing of beneficiaries, and creates and perpetuates a discriminatory environment.

The Ontario Disability Support Program Act (ODSPA) provides the raison d’être for the Ontario Disability Support Program (ODSP). The Act and its regulations describe who is eligible for ODSP, and its procedural process. The ODSPA defines a person to be one with a disability if: (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in substantial restrictions in one or more of these activities of daily living and (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications. Fifty percent (50 %) of applicants are rejected on these criteria because they are found to not have a substantial restriction. Though the limitations only have to apply to one or more daily activities, adjudicators refuse disability benefits, claiming the person can avoid specific restrictions and therefore imply an individual is not “disabled enough”. Even those who are granted benefits are assumed to be able-bodied individuals at their medical review and must prove again that they are eligible under the Act. An individual has to complete a medical review if they have been selected as one of the 600 per month the government wants to review or if their decision had a review date decided by the adjudicator. The articles illustrate how inefficient the process is for those receiving disability benefits. For instance, gathering evidence for the application may be nearly impossible because of transient relations with healthcare providers. This prevents benefit recipients from collecting adequate evidence to meet the qualifications under the Act. Similarly, these barriers may exist for those applying for ODSP for the first time.

The articles speak about how gathering evidence can impede wellbeing, and that the process is extremely detrimental for individuals who lack the information, support or guidance. Yet, it can be equally detrimental for those who have support. It can be frustrating and patronizing to have abled individuals decide what is “enough” of a disability. ARCH submits there should not be distinctions on ability to work, or severity. They argue that such distinctions create arbitrary and discriminatory assumptions; leading people who have “non-severe” disabilities but face major barriers to employment or social inclusion to fall to the wayside. However, the analysis of severity is the cornerstone of the ODSPA. Adjudicators use their discretion to determine if the individual has a substantial enough restriction. Those not determined to have a disability lose out on essential benefits that decrease barriers; not being validated has also led to emotional instability. The system places an onus on the individual to fit into society. In addition to the invalidation, applicants are penalized when they are able to find strategies to circumvent the full impact of their restrictions because they are not seen as disabled enough. This leaves a very narrow definition of who is accepted as deserving of state support.

It is time to radically revise the starting premise for disability support eligibility to put more faith in those who self-identify as persons with disabilities. From the perspective of the government it is difficult to balance their limited resources with and ever growing need for these benefits. However, if we started at the position of accepting all applicants as disabled, it would be easier to strike that balance. It would support a more social model of disability because it would be assume every individual faces barriers and so the process itself would need room for accommodation. This is more aligned with the purpose of the ODSPA that “recognizes that government, communities, families and individuals share responsibility for providing such supports”, shifts the onus on how to remove barriers and dispel beliefs about people with disabilities being lazy and manipulative. Therefore, while the process may have frustrating aspects, there would be a positive shift in how people with disabilities are viewed. It would hopefully also show that abled-individuals are not indifferent to the plight of those who face a disability

This starting point of the process would be to examine each case on an individual basis to understand what accommodations are needed, instead of providing benefits with broad strokes. By acknowledging everyone has a disability; individuals might still be denied because they do not have enough of a financial need or directed elsewhere for accommodation The key question is would it be less frustrating than being told you are not disabled and therefore do not deserve accommodations. By validating someone’s truth, it can help reduce the emotional effects that exacerbate illness and impairments and show that our society is genuinely attempting to become more inclusive. It would encourage abled-focused institutions and ODSP to accommodate to the point of undue hardship, as promised in the Human Rights Code.

That is not to say the process has to no room for reviews; however, they shouldn’t be conducted with the purpose of trying to find those who are no longer eligible for the benefit, but rather to ask how the needs of the recipient has changed. This is different than the 2011 Social Assistance Review in Ontario (Brighter Prospects: Transforming Social Assistance in Ontario) which suggests various benefits that go beyond on the realm of simply supplementing income to A system that takes the time to understand what accommodations are needed for a particular person’s case might realize that they need money temporarily but are in more need of the employment program. A screening process that allows for a more complete picture of the person’s life is required. For example, the ability to allow non-health practitioners to provide evidence regarding an individual’s restrictions because not everyone has consistent doctors who know to speak of those details.

The articles emphasize the need for an efficient process, but it is also time to remove the discriminatory viewpoint that the legislation holds. Before any reform can take place extensive consultations should occur on how the process can make individuals feel validated and supported while making hard decisions on how resources can be effectively shared. The consultations from 2011, focused greatly on improving the current system to make it more effective. While that will continue to be a feature, there needs to be a shift of perspective tobeing more accepting of peoples’ truth and finding concrete ways to ensure that is occurring. But, reforming the legislation to allow room for accepting everyone who identifies as disabled would be beneficial in reducing the agony that is present with being told you do not understand your own experiences. After all, what is being said when ODSP sends a letter stating the applicant is not disabled after engaging the applicant in such an extensive process.

An individual-focused system may seem to make the job too large and more tedious. In the beginning the process might be difficult, but with time, it would hopefully become easier and faster to employ. In addition, while examining individuals’ specific needs, creative solutions will arise that allow for the integration of other systemic programs to ensure equality and further inclusion for people with disabilities. It is also possible that accepting all applicants as disabled may not be enough to reduce frustration for a significant amount of people with disability, but I do believe that by at least starting the discussion, the door to more genuine integration will be opened.

Physician-assisted dying: the federal government’s request for extension

by Nsamba Gerald, 3L Student, Windsor Law

Legalizing assisted suicide would not increase choice and self-determination, despite the assertions of the Canadian Supreme Court ruling in Carter v. Canada (Attorney General), 2015 SCC 5 . It would in fact augment real dangers that negate genuine choice and control. The assisted suicide model is an act executed by professional medical personnel with the intention to end the life of the person who considers his or her life to be no longer worth living.

For some individuals, this medical service model brings an end to unbearable suffering. Section 241 of Criminal Code of Canada stated that anyone who counsels a person to commit suicide, or aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and may receive a term of imprisonment not exceeding fourteen years. The Canadian Supreme Court’s ruling in favour of the assisted suicide model rendered the provision inoperative.

There are benefits and disadvantages to ruling in favour of this assisted suicide model. For instance, the benefits of assisted suicide model provide the relief of extreme pain when a person’s quality of life is poor. This model frees medical funds to assist other people. It is also another case of freedom of choice. However, some of its disadvantages would be to devalue human life and this could become a means of healthcare cost containment. Thus, physicians and other medical care personnel should not be involved in directly causing deaths.

The Court stated that the model of doctor- assisted suicide is limited to consenting adults who are “suffering from grievous and irremediable medical conditions” but not necessarily terminal disease that causes “enduring and intolerable suffering”.

The assisted suicide decision suggests that patients who request the assisted suicide model must be able to communicate with the physicians. This requirement excludes people who are unable to speak, but may desire that their lives be ended through the model. Patients who are unable to communicate with physicians are disqualified or excluded.

Similarly, if someone has a chronic illness that is not  a “grievous and irremediable medical condition”, they are not eligible for assisted suicide under this ruling. Furthermore, any individual whose illness has brought about depression that affects their judgment is also ineligible.

Moreover, legalizing physician-assisted suicide would place those who are depressed, poor, disabled or elderly at risk. The Canadian Supreme Court ruling essentially tells the vulnerable that they are a burden to society. Patients who lack emotional support and psychological care could be more likely to internalize that message. When someone else is suicidal, society would get them help by sending them to a medical doctor. We would not hand him or her a loaded gun to expedite his or her death.

Legalizing assisted suicide would also affect socially and economically disadvantaged people who have less access to medical resources and who already find that the health care system discriminates against them. As Paul Longmore stated, “Poor people, people of colour, elderly people, people with chronic or progressive conditions or disabilities, and anyone who is, in fact, terminally ill will find themselves at serious risk”.

Fear, bias, and prejudice against disability could play an important role in assisted suicide. Supporters of assisted suicide argue that it would relieve untreated pain and discomfort at the end of life. However, patients who wish to request the assisted suicide model may not do so because of pain, but rather because of frustration stemming from the loss of their functional ability, autonomy, or control of their bodily functions.

In the Netherlands, many physicians stated that the main reason patients gave for seeking death was a “loss of dignity.” This loss of dignity may result from a decrease in autonomy, which could be the inability to get out of bed or use the toilet.

In the state of Oregon, one report found that 63% of cases cited the fear of being a “burden on family, friends or caregivers” as a reason for their suicide. This is very troubling as many innocent people could lose their lives due to pressure by family members who wish to eliminate unwanted burdens. Elderly individuals who do not want to be a financial burden upon their families might also request the assisted suicide model as it would eliminate their family’s obligations to them.

In this case, individuals with disabilities could be the most likely to end their lives. The experiences in the Netherlands show that legalizing assisted suicide could place strong, unwarranted pressures on individuals and families to utilize that option, which would lead very quickly to coercion and involuntary assisted suicide. A study in Oregon also found that the estimated savings of allowing people to die before their last month of life is $627 million.

In conclusion, the assisted suicide medical model needs to be about free choice and self-determination and government needs to undertake precautions whilst implementing this model. On December 15, 2015, The External Panel on Options for a Legislative Response to Carter v. Canada submitted its key findings from its consultations to the federal government, although those findings have not yet been released publicly. The federal government, for its part, has filed for more time to come up with suitable measures that would be utilized in implementing the assisted suicide procedures, and guide physicians in hospitals. This is a positive step in the search for an appropriate approach to this serious issue.