Law, Disability & Social Change

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.