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By Deborah Willoughby, JD/MSW [2021]

The first ever Southwestern Ontario Disability Scholars’ (SWODS) workshop took place on Thursday May 23, 2019 and was hosted by Windsor Law and the Law, Disability & Social Change Project. This workshop brought together more than a dozen brilliant scholars from universities in southwestern Ontario (with a couple from even further afield) to share their research pertaining to persons with disabilities while showcasing their unique interdisciplinary perspectives. Over the course of the day, presenters were organized into panels of three based on similar themed topics.

What I found quite interesting about the research presentations was the overall theme of erasure evident in not only history and the contemporary legal system, but also in commonplace things one may not necessarily question including films and pop culture. I was always aware of the lack of representation in these industries. However, I did not think of how the creative voices of persons with disabilities in creating content related to disability, such as memes, have been ultimately replaced by content generated by people without disabilities.

Ultimately, the workshop inspired me to continue to be a partner in advocacy with persons with disabilities to ensure their voices and experiences are heard, perhaps in a research setting similar to many of the scholars!

Here is my summary of these inspiring papers:

The start of the workshop began with the panel,“Sharing Knowledge on Disability.” Jay Dolmage, an Associate Chair from the University of Waterloo, began the day with his presentation on “Academic Eugenics.” He discussed the insidious eugenic underpinning within the culture of higher educational institutions in Canada and how disciplines have been established through the exploitation of others including persons with disabilities.

Following the theme of exploitation, Madeline Burghardt, an Assistant Professor from King’s University College at Western University, presented on “Uncovering stories of ‘difference’: Complicating popular understandings of Canadian nation-building.” Her presentation examined how government-run institutions for persons with intellectual disabilities have been used as tools for surveillance, biopower and categorizing people.

The third panelist’s research was also shaped by lived experiences. Pamela Cushing, an Associate Professor at King’s University College at Western University, presented on “Shaping a Disability Studies that Resonates with Diverse Undergraduates.” As the creator of the Disability Studies program at her university, Cushing’s reflections were  guided by her experience and by feedback from students in Disability Studies. Among other things, she discussed the importance of and meeting students where they are at, drawing on their own experiences and making spaces for disagreement and debate within the classroom.

The next panel centered around “Disability and the Person.” Ameil Joseph, an Assistant Professor in the School of Social Work at McMaster University, presented on “The subjects of oblivion: subalterity and contemporary technologies of transnational eugenics, sanism, and racial eradication.” He examined how critical disability studies is deeply connected to historical systems of dehumanization, institutionalization and issues of access and equity.

The morning concluded with Jake Pyne’s presentation titled “‘Building a Person’: Legal and Clinical Personhood for Autistic and Trans Children in Ontario.” Pyne, a postdoctoral Fellow at the College of Social and Applied Human Sciences at the University of Guelph, offered a comparative perspective on Applied Behavioural Analysis (ABA) and conversion therapy. He highlighted the similarities of both therapies which bring together ableism and transphobia.

The morning panels ignited discussions during lunch which continued into the afternoon panels beginning with the topic “Law, Legislation and Persons with Disabilities.” Beginning the panel was David Ireland, Assistant Professor at the University of Manitoba Faculty of Law, who presented on “The Canadian Jury Trial: Reimagining Jury Composition in an Inclusive Society.” Ireland’s presentation offered insight into jury representativeness where there is a lack of representation of persons with disabilities on juries. What does it mean when the voices of persons with disabilities are erased from having meaningful impacts on legal outcomes?

This theme of erasure was similarly discussed by Windsor Law’s Assistant Professor and Externship Director, Tess Sheldon, who presented on “Disability Erasure: The Enforcement of Trespass Legislation Against Persons with Disabilities from Public and Semi-Public Spaces.” Sheldon discussed various places in society where persons with disabilities are excluded such as in shopping malls and parks as well as the legal challenges associated with such exclusion.

Lastly on this panel was SWODS 2019 organizer, Laverne Jacobs, an Associate Professor and Associate Dean (Research & Graduate Studies) at the University of Windsor Faculty of Law. Jacobs’ presentation titled, “Defining the ‘Worthy Participant’: Disability, Accessibility Legislation, and Aspirations of Equality” discussed qualitative research on the experiences of people with disabilities in participating in the development of accessibility standards.

The final panel of the workshop was titled “Disability History and Societal Responses.” Jeff Preston, an Assistant Professor of Disability Studies at King’s University College at Western University, presented on the unique topic of Internet memes. His presentation titled, “Cool Story, Bro: Disability Memetic Histories, Subjectivities and Possibility,” examined how disability presents itself online.

Next,  “Managing Monstrosity: Population Construction and Control in Securitized Space” was presented by Jen Rinaldi, an Assistant Professor at Ontario Tech University, Faculty of Social Science and Humanities and Kate Rossiter, an Associate Professor at Wilfrid Laurier University, Department of Health Studies. These researchers are interested in the concept of monstrosity and its relationship to people with disabilities and institutions.

The final presentation of SWODS 2019 was by University of Windsor Professor Nicole Markotić from the Department of English who discussed “Ageing and Disability in Howl’s Moving Castle.” Markotic described the film as demonstrating mobility issues for the protagonist who is magically transformed into an old woman. However, her age is also valued throughout the film. Often in films, disability or aging characters are seen as abnormal and disabled characters have to be contained or destroyed. Often, growing old is portrayed as a disability to overcome and the effects of aging should be resisted, especially for women. However, Howl’s Moving Castle illustrates a positive or neutral view of aging and disability, which is a refreshing change from the commonly negative tropes represented in contemporary films.

Overall, the first ever SWODS event was a successful enterprise which allowed interdisciplinary scholars to network and facilitate discussions, which ignited new ideas and future research possibilities! The SWODS conference of 2020 is highly anticipated and will undoubtedly generate similar academic conversation around disability.  

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On Thursday May 23, 2019, the Law, Disability & Social Change Project and Windsor Law will be hosting the inaugural Southwestern Ontario Disability Scholars (SWODS) Workshop. This workshop will bring together scholars from universities in the region to discuss research respecting people with disabilities from interdisciplinary perspectives.
Please find below a list of the participants, their paper titles and biographies.

Thursday, May 23, 2019
8:30 AM registration and breakfast
9:00am – 4:00pm -Workshop

WHERE
Windsor Law, Farmer Conference Room (room 1111), University & Sunset Avenues

This event is by invitation only.

Paper Titles & Participant Bios

Madeline Burghardt, Assistant Professor, Disability Studies, King’s University College at Western University

“Uncovering stories of ‘difference’: Complicating popular understandings of Canadian nation-building”

Madeline Burghardt has a doctorate in Critical Disability Studies from York University. Her most recent publication is the book Broken: Institutions, Families and the Construction of Intellectual Disability published by McGill-Queen’s Press, which examines the effects of institutionalization on people labelled with intellectual disability and on members of their families. With an interest in the impact of historical and political conditions on lived experiences of impairment and representations of disability, her current research is an exploration of the lived experiences of thalidomide survivors in Canada.

Pamela Cushing, Associate Professor, King’s University College at Western University, Faculty of Disability Studies

“Shaping a Disability Studies that Resonates with Diverse Undergraduates”

Jay Dolmage, Associate Chair, Undergraduate Communication Outcome Initiative (UCOI), University of Waterloo, Faculty of English Language and Literature

“Academic Eugenics”

I am committed to disability rights in my scholarship, service, and teaching. My work brings together rhetoric, writing, disability studies, and critical pedagogy. My first book, entitled Disability Rhetoric, was published with Syracuse University Press in 2014. Academic Ableism: Disability and Higher Education was published with the University of Michigan Press in 2017 and is available in an open-access version online. Disabled Upon Arrival: Eugenics, Immigration, and the Construction of Race and Disability was published in 2018 with Ohio State University Press. I am the Founding Editor of the Canadian Journal of Disability Studies. I am currently Professor of English at the University of Waterloo where I am working to create a more accessible future for higher education.

David Ireland, Assistant Professor, University of Manitoba, Faculty of Law

“The Canadian Jury Trail: Reimagining Jury Composition in an Inclusive Society”

David Ireland graduated from the Faculty of Law, University of Manitoba in 2010 and was called to the Manitoba Bar in 2011. He has practiced criminal law as both Crown and defence counsel and maintains a practice in criminal defence and public law litigation. In 2016 David was appointed to the Faculty of Law at the University of Manitoba where he teaches and researches in the area of criminal law and procedure, evidence law, advocacy and preventing wrongful convictions. He is also the Director of the Robson Hall Innocence Clinic, a live intake clinic conducting pro bono post-conviction legal work. David is also the co-editor of the Manitoba Law Journal annual special edition in criminal law as well as co-editor of the criminal law research website, robsoncrim.com. David’s research focusses on criminal procedure and improving the delivery of criminal justice in Manitoba. David is currently a co-investigator on three SSHRC-funded projects: Understanding Justice: Jury Comprehension of Canadian Judicial Charges in the Criminal Law [PI Richard Jochelson; co-investigators David Ireland; Rod Lyndsay; Amy Desroches; Michelle Bertrand]; Jury Representativeness in Canada: Representative or Not? [PI Michelle Bertrand; co-investigators Richard Jochelson; David Ireland]; and Impervious to Change? A Mixed Methods Analysis of Criminal Sexual Assault Complaint Attrition Rates [PI Jane Ursel; Co-investigators Karen Busby; David Ireland; Marlyn Bennett]. David is also a frequent presenter in the criminal justice community, speaking at conferences for judges, lawyers and law enforcement officers.

Laverne Jacobs, Associate Professor and Associate Dean (Research & Graduate Studies), University of Windsor, Faculty of Law

“Defining the ‘Worthy Participant’: Disability, Accessibility Legislation, and Aspirations of Equality”

Laverne Jacobs is an Associate Professor and the Associate Dean (Research and Graduate Studies) at the University of Windsor, Faculty of Law (Windsor Law) in Canada. She is an administrative law scholar who focuses on social inequality, and particularly inequalities experienced by people with disabilities. Her scholarship aims to bridge the gap between public law jurisprudence and public law realities through empirical inquiry. She takes an interdisciplinary approach to her research, using qualitative empirical research methods from the social sciences. She is particularly interested in ethnography and legal anthropology, and in the intersection of law, norms and informal order. She runs a research and public advocacy project called the Law, Disability and Social Change Project at Windsor Law. Through the Project, she, her colleagues and her students conduct law and policy research, host lectures and events and organize community outreach initiatives such as the Disability and Law Learning Series, a series of law and disability information seminars delivered in Windsor Essex-County. Laverne’s full bio is available at: http://www.uwindsor.ca/law/ljacobs

Ameil Joseph, Assistant Professor, McMaster, School of Social Work

“The subjects of oblivion: subalterity and contemporary technologies of transnational eugenics, sanism, and racial eradication”

Ameil Joseph is an Assistant Professor in the School of Social Work at McMaster University (tenure and promotion to Associated Professor effective July 1, 2019).  He draws on perspectives of critical forensic mental health, postcolonial theory, critical race theory, and critical disability studies in his writing and research. One of the broad areas he has focused on is the confluence of criminal justice, mental health and immigration systems.  He comes to this work with over a decade of experience in the mental health field in areas of assertive community treatment, community-based early intervention, supportive housing, crisis respite, and governance settings.  Ameil has presented across Canada, In the US and in Europe on issues related to racism, critical mental health and social justice and has publications in top journals such as Disability & Society, Intersectionalities, Social Work in Mental Health, Critical Criminology, The Journal of Progressive Human Services, Qualitative Research, Canadian Social Work, and The British Journal of Social Work. Dr. Joseph has been instrumental in the recent establishment of Hamilton’s Anti-Racism Resource Centre.  Ameil is also the author of: Deportation and the confluence of violence within forensic mental health and immigration systems published by Palgrave-MacMillan. A historiographical post-colonial analysis of the practice of deportation in Canada for those identified as “undesirable”.

Jeff Preston, Assistant Professor, Disability Studies, King’s University College at Western University

“Cool Story, Bro: Disability Memetic Histories, Subjectivities and Possibility”

Jeff Preston, Ph.D., is an assistant professor of Disability Studies at King’s University College at Western University. Jeff’s research has been funded through an Ontario Graduate Scholarship (2006-2007 & 2008-2009), a Joseph-Armand Bombardier CGS Masters Scholarship (2007-2008) and a Social Sciences and Humanities Research Council Doctoral Fellowship (2009-2012). Jeff’s first book, “The Fantasy of Disability”, was just published internationally 2016 by Routledge. A long-time advocate and committed public intellectual, Jeff is a past member of the Accessibility Standards Advisory Committee for the Ministry of Community and Social Services and is a current board chair for Jesse’s Journey, and the vice chair – leadership table of the London For All anti-poverty initiative organized by the City of London and the United Way of Elgin & Middlesex.

Jake Pyne, Postdoctoral Fellow at the College of Social and Applied Human Sciences, University of Guelph

“‘Building a Person’: Legal and Clinical Personhood for Autistic and Trans Children in Ontario”

Jake Pyne is a Banting Postdoctoral Fellow at Re.Vision: The Centre for Art and Social Justice at the University of Guelph, where his current research (Dis/Human Others) focuses on the intersection of autistic and trans life. As an advocate in Toronto’s trans community for many years, Jake has worked on projects to improve access to health care, housing and emergency shelter, family law justice, and support for gender independent children and trans youth. Jake’s doctoral research explored thinkable futures for trans youth and brought together transgender studies, critical disability studies, critical autism studies, fat studies, and queer of colour critique.  As of July 2020, Jake will take up a position as an Assistant Professor in the School of Social Work at York University.

Jen Rinaldi, Assistant Professor, Ontario Tech University (formerly University of Ontario Institute of Technology), Faculty of Social Science and Humanities

“Managing Monstrosity: Population Construction and Control in Securitized Space”

Jen Rinaldi is an Assistant Professor in Legal Studies at the University Of Ontario Institute Of Technology. She earned a Doctoral degree in Critical Disability Studies at York University, and a Master’s degree in Philosophy at the University of Guelph. Her research takes up how non-normative bodies are read, marked, and produced in and through socio-legal discourse. Rinaldi’s interest in abject embodiment ranges from the crippled (or disabled, and especially persons deemed intellectually disabled), to the Mad (persons positioned against and within mental health regimes), to the fat (bodies framed as obese and discriminated against in the interest of public health), to the queer and trans (persons who identify as members of LGBTQ+ communities). She is most fascinated by the task of uncovering law’s affective relationship with embodied subjectivity-how embodied subjects negotiate, are impacted by, and resist bio-political axes invested in their formation.?

Kate Rossiter, Associate Professor, Wilfrid Laurier University, Department of Health Studies

“Managing Monstrosity: Population Construction and Control in Securitized Space”

Kate Rossiter is an Associate Professor in the Department of Health Studies at Wilfrid Laurier University’s Brantford campus.  For the past 5 years, Kate’s research has centred around developmental disability and experiences of institutionalization and institutional violence with particular focus on the Huronia Regional Centre.  She is interested in the structural conditions of violence engendered by and within putative care organizations.  Emerging from this work, Kate has co-authored “Punishing Conditions:  Institutional Violence and Disability” with Jen Rinaldi.   Kate’s background combines the critical social scientific study of public health and embodiment with theatre and performance studies.  Kate lives in Brantford, Ontario with her partner and two children.

Tess Sheldon, Assistant Professor and Externship Director, University of Windsor, Faculty of Law

“Disability Erasure: The Enforcement of Trespass Legislation Against Persons with Disabilities from Public and Semi-Public Spaces”

Tess Sheldon is an Assistant Professor and the Externship Director at the Faculty of Law at the University of Windsor.  She is also a lawyer and has practiced exclusively with Ontario’s legal clinic system, including at ARCH Disability Law Centre and Justice for Children and Youth.

Nicole Markotić, Professor, University of Windsor, Department of English 

“Ageing and Disability in Howl’s Moving Castle”

Nicole Markotić teaches Canadian Literature, Disability Studies, Creative Writing, and Children’s Literature at the University of Windsor. She is author of eight books, including her critical book, Disability in Film and Literature (2016) and her YA novel, Rough Patch(2017). She has edited a book of essays on Robert Kroetsch (2017), and co-edited a collection of essays on film and disability, The Problem Body: Projecting Disability on Film(2010). She is currently working on a book about representations of disability in children’s literature.

by Cynthia Brown, LLM Candidate, Windsor Law – April 9, 2019

Ms. Catalina Devandas Aguilar, the United Nations Special Rapporteur on the Rights of Persons with Disabilities, was in Canada from April 2, to April 12, 2019, for an official visit at the invitation of the federal government. On April 3, 2019, Professor Laverne Jacobs, Professor Tess Sheldon and Cynthia Brown, LLM Student from Windsor Law had the privilege of participating in a telephone meeting with Ms. Devandas Aguilar, and with representatives from several other organizations dedicated to disability issues from across the country. Representing the Law, Disability & Social Change Project at the University of Windsor, Faculty of Law, Professor Jacobs spoke on access to justice issues with respect to access to legal aid for people with disabilities and Bill C-81, the proposed federal accessibility legislation (Accessible Canada Act). She highlighted two significant legal cases that have put the concept of access to justice for people with disabilities to the test – Elizabeth Portman’s case and Judy Gayton’s case. She stated that legal aid boards and commissions are usually given the discretion to determine the areas of law in which they will provide legal aid and the process they will follow to decide if applicants are successful. They should be required to consider human rights principles and accommodate people with disabilities to the point of undue hardship in doing so.

Other represented organizations included: the Canadian Association of the Deaf, Communication Disabilities Access Canada, Canadian Association of Community Living/Community Living Toronto, Canadian Council on Rehabilitation and Work, Canadian Federation of Library Associations, British Columbia Aboriginal Network on Disability Society (BCANDS), People First of Canada and ARCH Disability Law Centre.

The meeting was very informative and resulted in a number of thoughtful questions from Ms. Devandas Aguilar.  She stated that, at the end of her 10-day visit on April 12^th, she will hold a press conference to present the highlights of her visit, along with a mission statement with preliminary findings. Her full report will be presented in March of 2020.

Update:
Read our submission to the UN Special Rapporteur on the rights of persons with disabilities:

Written Submission to the UN Special Rapporteur (Apr2019) (MSWord)

Written Submission to the UN Special Rapporteur (Apr2019)  (PDF)

Final Report of UN Special Rapporteur on Disability (Dec2019) (PDF)

Prepared by Cynthia Brown, LLM Candidate

March 1, 2019

This information is not intended to provide legal advice. The following is a list of links related to disability rights legislation in Canada and Ontario, as well as some resources for supports and self-advocacy.  This list is not exhaustive.  Sources provided relate to health care, education, employment and accessibility accommodations.

Convention on the Rights of Persons with Disabilities

https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html

Canadian Charter of Rights and Freedoms

https://laws-lois.justice.gc.ca/eng/Const/page-15.html

https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/

Canadian Human Rights Commission

https://www.chrc-ccdp.gc.ca/eng

Accessible Canada Act (pending)

Proposed Accessible Canada Act – Summary of the Bill

https://www.canada.ca/en/employment-social-development/programs/accessible-people-disabilities/act-summary.html

Ontario Human Rights Code

https://www.ontario.ca/laws/statute/90h19

Accessibility for Ontarians with Disabilities Act (AODA)

https://www.ontario.ca/laws/statute/05a11

O. Reg. 191/11: INTEGRATED ACCESSIBILITY STANDARDS

https://www.ontario.ca/laws/regulation/110191

What Ontario’s accessibility laws mean to you (e-pamphlet)

http://lephenix.ca/wp-content/uploads/2017/08/What_ON_Access_Laws_EN_2017.pdf

Alternate formats for this pamphlet can be requested at:

Publications Ontario: Toll free: 1-800-668-9938, 416-326-5300, or TTY toll free: 1-800-268-7095

Accessibility for Ontarians with Disabilities Act Alliance

https://www.aodaalliance.org/

Who can I contact if I want to report an AODA violation?

https://www.aodaalliance.org/whats-new/new2015/call-the-new-ontario-government-toll-free-line-to-report-aoda-violations-we-campaigned-over-two-years-to-win-this-toll-free-number/

If you are a person with a disability and would like to report a violation of the AODA to the Ontario Government, please call: 1-866-515-2025 or by TTY:  1-800-268-7095.

Human Rights Tribunal of Ontario

655 Bay Street, 14^thFloor, Toronto, ON M7A 2A3

Website:    http://www.sjto.gov.on.ca/hrto/

Email: hrto.registrar@ontario.ca    Phone: 416-326-1312

Toll-free: 1-866-598-0322 TTY: Call the Bell Relay Service at 1-800-855-0511

Ontario Human Rights Legal Support Centre

Website:     https://www.hrlsc.on.ca/en/welcome

Phone: 416-597-4900

Toll Free: 1-866-625-5179

TTY: 416-597-4903

TTY Toll Free: 1-866-612-8627

Your Legal Rights

https://yourlegalrights.on.ca/

Steps to Justice

https://stepstojustice.ca/

Information related to health care services:  https://stepstojustice.ca/questions/human-rights/can-doctor-or-healthcare-provider-treat-me-differently-reasons-go

ARCH Disability Law Centre

https://archdisabilitylaw.ca/

DAWN Canada (DisAbled Women’s Network Canada)

Phone: (514) 396-0009    Toll free: 1-866-396-0074

Website: https://dawncanada.net/

Women’s Legal Education and Action Fund (LEAF)

180 Dundas Street West, Suite 1420, Toronto, ON  M5G 1Z8

Email: info@leaf.ca.    Phone: 416.595.7170

Website:   https://www.leaf.ca/about-leaf/

Legal Assistance of Windsor

443 Ouellette Avenue, Suite 200, Windsor ON N9A 4J2

Phone: 519-256-7831     TTY: 519-256-5287

Website:     http://legalassistanceofwindsor.com/

Windsor Accessibility Advisory Committee (WAAC)

https://www.citywindsor.ca/cityhall/committeesofcouncil/Advisory-Committees/Windsor-Accessibility-Advisory-Committee/Pages/Windsor-Accessibility-Advisory-Committee.aspx

https://www.citywindsor.ca/cityhall/committeesofcouncil/Advisory-Committees/Windsor-Accessibility-Advisory-Committee/Pages/WAAC–Agendas.aspx

Please join us on October 22nd, 2018 from 12: 00 – 1:30 for a talk entitled “Academic Ableism: Disability and Higher Education” by Dr. Jay Dolmage, Associate Professor of English at the University of Waterloo. This event will be held at the Faculty of Law building, Farmer Conference room (Rm 1111), and will have live open captioning. To register for this event please click on this link:http://attend.com/academicableism

Talk description:

For too long, disability has been constructed as the antithesis of higher education, often positioned as a distraction, a drain, a problem to be solved. The ethic of higher education encourages students and teachers alike to accentuate ability, valorize perfection, and stigmatize anything that hints at intellectual, mental, or physical weakness, even as we gesture toward the value of diversity and innovation. Examining everything from campus accommodation processes, to architecture, to popular films about college life, this talk will argue that disability is central to higher education, and that building more inclusive schools allows better education for all.

Dr. Jay Dolmage’s bio:

I am committed to disability rights in my scholarship, service, and teaching. My work brings together rhetoric, writing, disability studies, and critical pedagogy. My first book, entitled Disability Rhetoric, was published with Syracuse University Press in 2014. Academic Ableism: Disability and Higher Education was published with Michigan University Press in 2017 and is available in an open-access version online. Disabled Upon Arrival: Eugenics, Immigration, and the Construction of Race and Disability was published in 2018 with Ohio State University Press. I am the Founding Editor of the Canadian Journal of Disability Studies.

This event is being organized by The Law Disability & Social Change Project, in collaboration with the University of Windsor’s Disability Studies Program. This event is free, open to the public and aims to be barrier-free.

We hope to see you there!

Sincerely,

Laverne Jacobs, PhD	Jijian Voronka, PhD
Associate Dean, Research & Graduate Studies	Assistant Professor
Faculty of Law, University of Windsor	School of Social Work
Founding Director, The Law, Disability & Social Change Project	University of Windsor

The University of Windsor sits on the traditional territory of the Three Fires Confederacy of First Nations, comprised of the Ojibway, the Odawa, and the Potawatomie.

The Law Disability & Social Change Project at Windsor Law will be running a seminar series called the “Disability and Law Learning Series” in October and November 2018.

We welcome you to join us!

The series is open to public and we hope that members of the disability community and their families, friends, and allies will be able to benefit from it. It’s well known that there is a legal maze that surrounds people with disabilities in everyday life. The seminars aim to provide information on a number of salient legal topics affecting people with disabilities through the lifecourse. The seminars will be delivered by law students. The sessions are not designed to provide legal advice.

The series will be held at Hôtel-Dieu Grace Healthcare in the Emara Building. They are being held in association with the Beyond Disability Rehabilitation Network.

Please find below the topics and dates, along with links for registering:

1.	Tues., October 9	Using Complaint Mechanisms Effectively for Disability-Related Issues RSVP here: http://attend.com/complaintmechanisms
2.	Tues., October 16	Workplace Accommodation (Physical Disabilities, Mental Illness & Addiction) RSVP here:http://attend.com/workplaceaccommodations
3.	Tues., October 30	Social Assistance and Benefits RSVP here: http://attend.com/socialassistanceandbenefits
4.	Tues., November 13	Disability Equality Law Focus I: Service Animals, Chemical Sensitivity and Electromagnetic Sensitivity (Electro Hypersensitivity) RSVP here: http://attend.com/disabilityequalitylawfocusone
5.	Tues., November 20	Disability Equality Law Focus II:  Migrating to Canada as a PWD & Ontario Works  RSVP here: http://attend.com/disabilityequalitylawfocustwo

Directions:

Hôtel-Dieu Grace Healthcare – Address: 1453 Prince Rd, Windsor, ON N9C 3Z4, Canada.

Emara Building. Beside Parking Lot D

 

There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC and Ontario and that were rendered during the month of July, 2018. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project

Ebony Evans (2L), Valeria Kuri (2L), Maggie Shi (3L)- Windsor Law

August 22, 2018

 

British Columbia 

J and L obo T v School District No. 63 and others (2018 BCHRT 162)

Date Issued: July 13, 2018

This decision involves a complaint made on behalf of a minor against several parties, including his school and school district (“the Respondents”), for alleged discrimination on the basis of physical and mental disabilities. The minor suffers from Electro Hypersensitivity, a condition that invokes certain severe physiological symptoms when exposed to radiation from commercial Wi-Fi transmitters and wireless devises for prolonged periods of time. The complaint sought, among other accommodations, to have 25% of the school free of Wi-Fi and to turn off some assistive technology installed for hearing impaired children and teachers. The adjudicator dismissed the complaint on the ground that there was no reasonable prospect of success at hearing. Specifically, the Tribunal found that there was no objective support for any causal connection between the symptoms and exposure to Wi-Fi radiation. The adjudicator noted in the decision that, currently, the consensus among agencies charged with monitoring this issue is that there is no reliable evidence establishing such connection. Materials and medical expert opinions tendered by the complainant to the contrary were found not sufficient to establish a connection.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt162/2018bchrt162.html?resultIndex=1

 

Hasenwinkle v BC Housing (2018 BCHRT 163)

Date Issued:  July 13, 2018

Mr. Hasenwinkle has tinnitus and was a tenant of BC Housing from 2011 to 2015. He made a human rights claim against BC Housing for not effectively accommodating his disability and ultimately terminating his tenancy. During his tenancy, Mr. Hasenwinkle made several noise and odour complaints about his neighbours to the landlord. Similarly, BC Housing had received complaints from other tenants about some of Mr. Hasenwinkle’s behaviour. Later the parties reached a mutual settlement agreement specifying the date on which he must move out. This agreement was not in writing and did not mention a release of human rights claims. Here, BC Housing applied to dismiss Mr. Hasenwinkle’s complaint on the basis that his claim had no reasonable prospect of success. Central to its argument was BC Housing’s purported investigations in response to Mr. Hasenwinkle’s complaint for odour and noise which it concluded was unfounded. It said that Mr.Hasenwinkle was evicted for just cause unrelated to his disability. The Tribunal ultimately decided not to grant the application to dismiss this complaint because there was not enough information submitted by BC Housing to meet its onus to show that the claim had no reasonable prospect of success. More is required than a manager’s affidavit stating that there had been an investigation in response to Mr. Hasenwinkle’s complaint and that it had no merits.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt163/2018bchrt163.html?resultIndex=1

 

Schwartzman v Mount Seymour Lions Housing Society and another (2018 BCHRT 166)

Date Issued: July 17, 2018

The complainant, Mr. Schwartzman, is a tenant living in a complex that provides housing to people with mobility impairments owned, leased, and managed by the respondents. He does not use a cane, wheelchair or other support to walk. He made a complaint against the respondents for their failure to accommodate and continued failure to accommodate tenants and visitors with disabilities. His allegations were the failure to accommodate the storage of his adult tricycle, the failure to adequately and quickly clear ice and snow and to prepare for future incidences, the failure to accommodate garbage bin access, and the violation of his privacy by sharing his medical information and accommodation request in an email. It must be noted that Mr. Schwartzman’s allegation mainly targeted the Landlord’s failure to accommodate tenants with disabilities other than himself. Mr. Schwartzman claims that he is acting in the public interest but has filed this as an individual complaint. He has not filed on behalf of anyone else nor does he have co-complainants with similar allegations. He could not establish a personal adverse impact. This complaint was ultimately dismissed because the Tribunal found that there was no reasonable prospect for Mr. Schwartzman to prove discrimination.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt166/2018bchrt166.html?resultIndex=1

 

Champion v Sandalwood Retirement Resort and others (2018 BCHRT 167)

Date Issued: July 17, 2018

Ms. Champion filed a complaint against her former employer for her termination which she claimed to be related to her disability. The issue before the Tribunal was whether the complainant had a disability at the material time, whether the behaviours for which she was fired were related to her disability, and whether the respondents knew or ought to have known about the connection between her disability and alleged performance issues. This decision deals with the respondent’s application to dismiss the complaint. The complainant was on medical leave from work and was admitted to the hospital because of certain medical concerns. Some period after returning to work, she showed deterioration in work performance and attitude and was terminated thereafter. Even though she had a positive recovery and prognosis, the medical evidence before the Tribunal substantiated the fact that Ms. Champion experienced a serious illness with the potential for long-term repercussions on her well-being which may link to her declined performance. The Tribunal also found that the respondent ought to have known of a possible link under these circumstances and inquired after such link prior to taking any actions that would adversely affect the employee pursuant to Gardiner v Ministry of Attorney General, 2003 BCHRT 41. The application to dismiss was denied.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt167/2018bchrt167.html?resultIndex=1

 

Edwards v Cowichan Valley Regional District (2018 BCHRT 172)

Date Issued: July 19, 2018

The complainant had been an employee for the respondent since 1997. She sustained permanent physical injury which resulted in physical limitations that restricted the work she could perform. She sought permanent accommodations from the respondent in the form of alternative positions which she alleged were refused by the respondent. She filed a complaint for discrimination against her employer on the basis of disability. The parties entered into a settlement agreement facilitated by the Tribunal which, among other terms, set out the conditions under which the complainant agreed to withdraw her complaint. Later, she was not satisfied with her awarded alternative position and chose to proceed with the complaint. Pursuant to their settlement agreement, Ms. Edwards could not pursue her complaint before the Tribunal. The Tribunal held that there are strong policy reasons that favour honouring settlement agreements. The language of finality used in the agreement evidenced the parties’ intention to fully resolve the matter with their agreement. Furthermore, because Ms. Edwards was represented by legal counsel and the negotiation of the agreement occurred with the assistance of a Tribunal mediator, reasons such as unconscionability and undue influence, that may normally allow the Tribunal to hear a dispute in the face of a binding agreement were not present.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt172/2018bchrt172.html?resultIndex=1

 

Biggings obo Walsh v Pink and others (2018 BCHRT 174)

Date Issued: July 25, 2018

The complainant, Martina Walsh, was diagnosed with Amyotrophic Lateral Sclerosis (ALS) that resulted in the gradual loss of the use of her limbs and her use of a wheelchair. The apartment building in issue is an old building and has stairs-only access. Ms. Walsh’s husband, Mr. Biggings, asked the landlords to consider building a ramp to make it accessible to Ms. Walsh. After investigative efforts, the landlords definitively believed that a ramp is not a feasible or reasonable option. Ms. Walsh, with her husband as her representative, filed this complaint against her landlords (“respondents”) for discrimination in tenancy. At the centre of the issue is whether the respondents have satisfied their obligation to accommodate by taking all reasonable and practical steps to remove a physical barrier that prevents Ms. Walsh from accessing her unit safely. The Tribunal reaffirmed a settled position that moving-out is not an accommodation even when it may be a solution. Although the Tribunal agreed that there are legitimate challenges to building a ramp that could comply with Bylaws, it found the respondent had not exhausted all reasonable steps in its inquiry. The relevant legal analysis provides that the hardship endured by landlords has to become ‘undue’ to justify retaining disability-related barrier. The complaint was justified and an order for compensation and the building of a ramp was made.

https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html?resultIndex=1

 

Ontario

Singh v. The Chartered Professional Accountants of Ontario (2018 HRTO 858)

Date Issued: July 3, 2018

The applicant filed his complaint 5 years after the last alleged incident of discrimination. The reason for delay was supported by medical evidence indicating that the applicant had suffered from significantly worsened symptoms relating to his disability in the years between the last alleged incident of discrimination in 2012 and his application in 2017. The Tribunal did not accept that the delay was made in good faith, as the medical evidence did not indicate a debilitating disability that would prevent the applicant from filing within the 2-year limitation period. At such, the application was considered untimely, and therefore dismissed by the Tribunal.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto858/2018hrto858.html

 

Church v. Ontario (Community and Social Services) (2018 HRTO 868)

Date: July 4, 2018

The applicant filed a human rights complaint against her ODSP caseworker. She alleged that the individual respondent had made discriminatory comments and invoked discriminatory stereotypes during several conversations while inquiring into her eligibility for benefits under the Ontario Disability Support Program Act. The applicant’s benefits were suspended. She appealed to the Social Benefits Tribunal (“SBT”). In this case, the respondents sought deferral of the application pending SBT’s decision. The Tribunal refused the request to defer and clarified that such legal action is restricted to matters that strictly relate to applicants’ eligibility for benefits.  However, in this application, the issue concerned alleged discriminatory comments not eligibility and therefore, was outside of the SBT’s jurisdiction. The Tribunal also refused the respondents’ request to remove the named ODSP caseworker as a personal respondent to the application. Despite an available organizational respondent who is able to respond and remedy, the Tribunal noted that in Persaud v Toronto District School Board, 2008 HRTO 31, it was held that where an applicant’s allegation centres the conduct of an individual as it was in this complaint, there exists a compelling reason to name that individual as a party to an application.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto868/2018hrto868.html

 

M.B. v. Minto Properties Inc., (2018 HRTO 897)

Date Issued: July 11, 2018

Three applicants each filed applications to the Tribunal. Two applications alleged discrimination based on disability and the other alleged discrimination on grounds of association with a person identified by a protected ground under the Ontario Human Rights Code. All three applications dealt with the absence of a lift in the lobby of the apartment where the applicants live. Both requests to amend the applications were granted.  In the amendment, the applicants added to their allegations, the respondents’ failure to keep the building emergency route and accessible parking area clear of snow and ice, the respondents’ property manager’s conduct of parking in the emergency route and accessible parking spots on seven occasions and the respondent’s failure to prevent non-disable persons from parking in accessible spots. This matter is awaiting final hearing and decision from the Tribunal.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto897/2018hrto897.html

 

Shaw v. Muslim Welfare Centre of Toronto(2018 HRTO 908)

Date Issued: July 12, 2018

The applicant filed an application following a ten-day stay at an emergency shelter operated by the respondent. The applicant submitted that she was treated rudely by staff while she was having a panic attack and alleged this to be an act of discrimination on the basis of her disability. The applicant also claimed that she was asked whether she had applied for social assistance on three occasions and by virtue of this was discriminated against based on her receipt of social assistance. The Tribunal found that the application no reasonable prospect of success under the Code. The applicant was not able to point to any link between her disability and the treatment she received even if it were assumed that she had been treated rudely by staff. The Tribunal also found that the respondents’ requests regarding the applicant’s social assistance status were not discriminatory. The Tribunal clarified that in order for these allegations to constitute a violation of the Code, the actions must deny an individual of housing opportunities due to their receipt of social assistance.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto908/2018hrto908.html

 

Matthews v. Apple Canada Inc., (2018 HRTO 916)

Date Issued: July 13, 2018

This application was a complaint for alleged discrimination with respect to goods, services and facilities because of disability. The applicant went to the respondent’s store due to an iPad malfunction and advised the respondent’s sales persons of his disability and his reliance on his iPad to access books and the internet. The applicant requested that the respondent replace his iPad due to technological malfunctions, however, the respondent refused, stating that this was not an ordinary practice. The Tribunal could not identify any facts that would indicate the respondent’s failure to provide services to the applicant on the basis of his disability. The Tribunal stated that it was plain and obvious that the applicant had not established a prima facie case of discrimination and thus, the duty to accommodate did not apply.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto916/2018hrto916.html

 

Panic v. Canadian Union of Public Employees, Local 1065 (2018 HRTO 947)

Date Issued: July 18, 2018

The applicant was an employee of a hospital. Her disability was accommodated for a year until 2014 when the employer advised that she could no longer be accommodated within the Ontario Public Service Employees Union (OPSEU) bargaining unit. The employer was willing to provide her with an alternative employment position under the umbrella of CUPE Local 1065. The issue with this alternative was that the applicant’s seniority was not transferable. The Tribunal clarified that the issue in this case was whether CUPE had an obligation to allow the applicant to transfer her seniority. The Tribunal determined that CUPE only had an obligation to provide reasonable accommodation which did not include giving the applicant enhanced seniority. The Tribunal concluded that CUPE Local 1065 did not infringe on the applicant’s rights under the Codewhen it refused to allow her to transfer seniority she had accrued with OPSEU when placed in a job in the CUPE Local as an accommodation to her disability.

https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto947/2018hrto947.html

Supreme Court of Canada (SCC)

British Columbia v. Phillip Morris International, Inc. (2018 SCC 36)

Date Issued: July 13, 2018

Although the following decision does not directly relate to disability, it does have implications for protecting the privacy and confidentiality of individuals with disabilities with health-care records. The following summary has been taken and shortened from the SCC website:

In 2000, the province of BC passed the Tobacco Damages and Health Care Costs Recovery Act, which allowed the Province to sue tobacco manufacturers for the cost of health-care benefits paid for diseases caused by tobacco exposure. In 2001, BC sued Phillip Morris International and other tobacco manufacturers on an aggregate basis, that is, on behalf of a population. To prove causation and damage, the Province intended to rely on several databases that held health-care records and documents of individual insured persons and documents relating to their health care benefits. Phillip Morris applied for access to these databases, arguing the necessity of this information to its adequate defence of the Province’s claim. The issue was whether the Province could be compelled to provide the requested information. Despite the compellability provisions (s. 2(5)(b) of the Act, the SCC ruled that the Province cannot be compelled regardless of relevance or anonymization of the information. Justice Russell Brown ruled for BC stating that even in instances where identifying information was removed, the databases still contained confidential health-care information about individuals and therefore insulated pursuant the Act when the Province sues on an aggregate basis as it is in this case.

https://www.scc-csc.ca/case-dossier/cb/37524-eng.aspx