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.
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.
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.
Autism-inclusive employment resources in Newfoundland fail to compensate for poor government intervention
By Jade Standaloft, 2015 L.L.B., University of Tasmania.
Another positive step in autism promotion has been taken recently with the introduction of a new jobseekers’ database, aimed at connecting those on the autism spectrum with employers. The database, developed by Ready, Willing and Able and the Autism Society of Newfoundland and Labrador, works to provide those not already engaged with a formal employment service with the opportunity to find diagnosis-appropriate employment – something currently unavailable to the 1 in 4 unemployed adults with intellectual disabilities or an Autism Spectrum Disorder diagnosis.
Autism operates within the broader category of Autism Spectrum Disorders, and is characterised by qualitative impairment in social interaction and communication. As a result, those with autism may be ill-suited to an unaccommodating workplace and therefore may struggle to find steady employment and gain self-sufficiency and independence within society. Such initiatives indicate a hopeful movement away from the medical model of disability, which by its nature discourages the necessary workplace accommodations.
Joseph Straus has defined the medical model as identifying disability as a pathological deficit, where the disability of the individual is indicative of a deviation from the norm and is therefore in need of remedying, in order for the individual to assimilate into society. By contrast, the social model has been defined by Anita Silvers as treating disability as a social construct, identifying the need for change as lying with the broader society, rather than the individual themselves. While these models are neither exclusive nor comprehensive of broader disability discourse, they do represent the most common characterisations of disability. The introduction of measures such as jobseekers’ database created by Ready, Willing and Able indicates a promotion of this latter model in the broader community. However, small progresses should not be misconstrued as a broader societal shift, particularly as the website was established by an autism society, and not by a broader government initiative to promote autism inclusion. Such initiatives still remain an exception to the norm, are frequently privately established, and signify that significantly more needs to be done on a government level for an autism-inclusive society to be prevalent in Canada.
For example, severe issues still exist in autistic therapy funding, particularly in relation to early childhood support. As reported by the Parliament of Canada, in British Columbia, families are only authorised to claim up to $20,000 a year per child under six years old for ABA/IBI programs; this amount drops to $6,000 when the child is over six. Manitoba also restricts support to $6000 per year per child for pre-school and school-aged services, while Prince Edward Island offers approximately $10,000 per child, per year for preschool children. Nunavut has no autism specific programs at all. Newfoundland and Labrador, , allocates $40,000 per year for two years during infancy, and a further $10,000 for one year for children over six years old. While these may seem like significant amounts of money, the average cost for these services run upwards of $60,000 annually, a number which does not consider other expenses that may be incurred while raising a special needs child. Therefore, the financial pressure for families is still extraordinarily high, and may restrict the provision of support for children in need.
By Anne Olszewski, J.D. 2016, University of Windsor Faculty of Law
Should governments ban isolation rooms in Canadian schools?
A Toronto mother of an autistic child certainly thinks so. Karen Thorndyke and her family are suing their district school board for $16 million claiming their autistic son was repeatedly kept in an “isolation room” as punishment for his outbursts and misbehavior in the classroom. The allegations have not been proven in court.
It is likely that Canadians are, for the most part, unaware of how common isolation rooms are. They come in variety of names including “seclusion rooms” “scream rooms” and the public relations friendly “alternative learning rooms”. Often times, they are small windowless rooms where children are sent when they misbehave in the classroom. The rooms are locked and the amount of time the child spends in isolation varies.
The report contends that brief physical intervention used to stop an immediate and serious danger to the child or others may be appropriate in the case of an emergency. However, the ongoing use of restraint as punishment or in the guise of treatment for a child’s disability or behavior indicates a need for program revision.
Article 24 of the (CRPD) states,
- “Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; […]
- In realizing this right, States Parties shall ensure that:
[…](e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Choosing to administer isolation rooms as a way of behaviour control may systemically discriminate against children with disabilities depriving them of an inclusive education. While the rooms are not specifically for the use of children with special needs, the behaviour, ticks, and outbursts that the rooms are meant to calm are typically associated with disabilities such as autism or downs syndrome. It follows, that children with disabilities are often sent to isolation rooms at a higher frequency than children who do not present these behaviours. For those children, the rooms cause more harm than good, with survey respondents reporting children feeling traumatized, fear and anxiety while in the rooms and afterwards.
According to Article 23 of the (CRC), “children who have a disability have the right to special care and support, so that they can live full and independent lives.” Further, Article 28 provides that, “the child has the right to education; the State has a duty to make primary education compulsory and free to all; to take measures to develop different forms of secondary education and to make this accessible to all children. School discipline should be administered in a manner consistent with the child’s human dignity and developing respect for the natural environment.”
Canada has committed to the protection of these rights and yet the reality is that many school boards continue to deprive children of their right to inclusive education. In the 2011 Ontario Special Education Tribunal decision of M. S. v. Ottawa Catholic District School Board, a student identified with autism had been suspended from school for extended periods of time, missing 32 out of 51 days in 2009. Since April 2009, the student had not attended school in spite of being of compulsory school age. This was yet another example of the school board’s inability or unwillingness to accommodate the needs of children with disabilities.
The school board’s actions indicated a worrisome message that is mirrored in the use of isolation rooms. It is easier for the school to remove a child with disabilities from the classroom than to provide integration and accommodation.
The Tribunal found in favour of the child and ordered the parties to facilitate the student’s return to school with special education services provided. While this case demonstrated the Tribunal’s commitment to the best interests of the student, the fact remains that the order was a reactive remedy for the school board’s inability to provide education in accordance to the CRC and the CRPD.
Additionally, proponents of the medical/individual model of disability theorize that the “problem” of disability lies with the individual, and it is up to society to provide medical assistance from professionals to correct said problem. However, even if one supports the medical model which is controversial, the idea of isolation room as a solution fails yet again as there is no evidence that isolation rooms actually benefit the child. In fact, some would argue that they do more harm than good, increasing anxiety and feelings of isolation, which can lead to further disruptive and harmful behaviour.
Largely due to children’s rights advocacy groups, lawmakers have been considering the legality of isolation rooms. A 2015 report analyzing state seclusion and restraint laws in the United States provided that some jurisdictions have passed meaningful laws regulating the use of isolation rooms. One such jurisdiction is Alaska where section 14.33.125 of the Alaska Administrative Code regulates student restraint and seclusion. These provisions demand annual reviews of the program, describe when a child may be secluded, and importantly, order that parents are provided a report documenting the incident.
Canada does not yet have equivalent regulations in this regard. Isolation rooms deprive children of their protected human right to education; they systematically discriminate against children with disabilities and further aggravate issues these children live with every day including stigmatization, isolation and anxiety. It is time for Canadian lawmakers, school boards, teachers and administrators to make a change towards a proactive and inclusive classroom, doing away with the use of isolation rooms for the benefit of all children.
By Krysten Bortolotti, J.D. 2016, University of Windsor Faculty of Law
The Moore v British Columbia decision in 2012 was seen as a huge victory when the Supreme Court of Canada unanimously found that all school districts must take a proactive approach to budgeting and programming to ensure the rights of students with disabilities and their accommodation are taken into account. With that ruling many people thought that the disability rights of children in education would improve drastically.
A recent 2014/2015 parental survey report by the BC Parents of Special Needs Children confirms that the current fiscal funding in British Columbia’s public education services for children with disabilities is inadequate. The report shows many parents (51%) have removed their child from public education and others have even been forced out (31%). Areas that parents identified as providing inadequate support to their children with a disability included the lack of educational assistants and access to specialized services that had been prescribed for their child (such as occupational/physical therapy and speech/language therapy). Finally, the report sheds light on the fact that the school boards in British Columbia aren’t following the policies and procedures created by the Ministry of Education. For example, many parents indicated that the Individual Education Plans (IEPs) prescribed for their children were not being followed by some school boards. The failure of the school boards to implement these plans goes directly against the British Columbia Ministry of Education’s policy under the Individual Education Plan Order, which explicitly states:
(5) Where a board is required to provide an IEP for a student under this order, the Board must offer each student learning activities in accordance with the IEP designed for that student.
The same can also be said for Ontario, which recently announced changes to the formula for special education funding for school boards, forcing boards to cut back on support services for students with disabilities. In March of this year, the Toronto Star reported that 38 boards across Ontario will receive less special education funding than they did in their previous year despite the fact that demand for funding of these programs has continued to increase over the years. Previously, the Ministry of Education allocated funding on a “per pupil basis”, but the changes to the formula were the result of an effort by the government to address the inequity of funding among the boards as well as declining enrolment. These changes to the funding formula occurred in March 2014, when the Ministry announced a four-year transition to a new “high needs amount allocation” formula for special education. Instead of adding more funding to those boards receiving less funding, the Ministry decided to “redistribute” the funding. For the boards receiving more funding per pupil under the old formula, they have had to cut crucial special education tools that they had implemented and built up over years of funding.
These cuts have a drastic impact on the education received by children with disabilities. According to the organization, People for Education, more than 331,000 students receive special education support. Sadly, 57% of elementary and 53% of secondary school principals report restrictions on waiting lists for Special Ed assessments and an estimated 44,000 students are currently on wait lists for assessments with identification, placement and review committees or for services.
The Moore decision stands for many propositions, among them being that human rights law requires service providers to make their services accessible to persons with disabilities. Essentially where a barrier is identified, the service provider must provide accommodation to overcome that barrier unless doing so would cause undue hardship. At first glance, this seems like a win for advancing disability rights. However, the concept of “undue hardship” rests upon considerations involving: (1) cost, (2) outside sources of funding, if any, and (3) any health and safety requirements. One quickly begins to see that reasonable accommodation in the context of education for children with disabilities can certainly be skirted because of the costs associated with special education programming.
But perhaps we need to look at the issue using an appropriate critical disability theory perspective. If we approach this disability issue critically, we can see that ensuring that special programs exist will help address the economic roots of disability by supporting students with disabilities so that they may realize their fullest potential to become active, contributing individuals in society.
Too often, however, the government makes funding decisions to special education with shortsighted views on economic efficiency. The immediate cost of implementing these programs is seen to be reason enough to cut funding or under-fund. What this narrow application of costs does not take into account are the larger implications of insufficiently funding these programs. For example, it was reported recently that the failure to adequately address learning disabilities of children because of education costs destines those children to underperform throughout school. Further, people with learning disabilities are highly over-represented in the criminal justice system, representing 5-10% of the general population, but 25 per cent of the prison population. This outcome is perhaps avoidable by properly educating individuals with disabilities so that wherever possible they may become contributing members of society.
Walking away from a narrow application of economic efficiency and looking at costs through a broader theoretical perspective might help maximize everyone’s potential. Doing so can bring about a more efficient wealth-driven society by properly educating and developing all children — with or without disability.