Tag Archives: Disability Discrimination

HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JUNE 2020

The following are summaries of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 2).

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, Nova Scotia, New Brunswick, Newfoundland, PEI, Alberta, the Northwest Territories, Quebec, and the Canadian Human Rights Tribunal that were rendered during the month of July 2020. 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: Valeria Kuri (MSW/JD Candidate, 2021), Nadia Shivratan (JD Candidate, 2022), Deborah Willoughby (MSW/JD Candidate, 2021), and Samantha Rouble (JD Candidate, 2022).

ONTARIO

Lambourn v 2471506 Ontario Inc., 2020 HRTO 526
Date Issued: June 16, 2020
Access Full Decision Here

This decision involved an Application alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, RSO 1990, c H19, as amended(the “Code”). The Application named two respondents, Ms. Clemens was the applicant’s manager, and Mr. Singh, the individual who decided to terminate the applicant’s employment. The applicant, Ms. Alissa Lambourn, was an employee at Mr. Singh’s restaurant at a gas station located in Wyoming, Ontario from April to June 2018. During the course of her employment, Ms. Lambourn called in sick for several days in June 2018 due to the nature of her disability and provided a medical note to Ms. Clemens for her absences. Ms. Clemens refused to schedule her for shifts, effectively terminating Ms. Lambourn’s employment. Since the restaurant was owned by the numbered company and, therefore, employed Mr. Singh and Ms. Clemens, the Tribunal found the restaurant liable for its employee’s actions. The respondents in this case did not provide or file any documents or witness statements, while the applicant testified on her own behalf, and also called her mother, Cindy Lambourn as a witness.

The applicant testified that she had a history of mental illness and substance abuse and had been accommodated by the original manager who was subsequently replaced by Ms. Clemens in mid-June 2018. The applicant testified that in June, she had been struggling with her mental health after the loss of a friend and contacted Ms. Clemens on June 12, 2018, and the morning of June 13, 2018, indicating that she would not be able to come in for her shift on June 13. Ms. Lambourn was told to get a doctor’s note for her absence and alleges Ms. Clemens was upset with her upon receiving it. The applicant went to the emergency room at a local hospital on June 16, 2018 and provided a doctor’s note for her absence from work for June13-15, 2018 to Ms. Clemens. The applicant testified that she contacted Ms. Clemens the following day and indicated she was able to return to work but was told that the employer had hired new staff because of Ms. Lambourn’s absences. When Ms. Lambourn responded that this was unfair and that she was going to go to the Human Rights Tribunal, the respondent allegedly responded with a text message, saying “Good luck LOL”. Although no copies of the text messages were provided as evidence, her mother, Cindy Lambourn testified that she had seen the alleged text message.

Continue reading

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.

The Universality of the Human Condition: Theorizing Human Rights Claims for Transportation Inequality by Persons with Disabilities in Canada

By Laverne Jacobs, Associate Professor of Law, University of Windsor Canada[1]

Here is an excerpt from my latest paper which explores transportation equality challenges for persons with disabilities in Canada, human rights decisions, and in which I propose a new theoretical framework for analyzing issues of ability-related equality that I have termed the ‘universality of the human condition’.

The full paper can be downloaded here.

Transportation is the lifeline that connects persons with disabilities with the community, facilitating greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities.[2] Yet, there is a dearth of sustained research on the law and society implications of transportation inequality for persons with disabilities in Canada.[3] This paper aims to contribute to the research on transportation inequality by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada.[4] In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of the legal claims made. Ultimately, I argue that narrow interpretations of prevailing applicable law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities within the reactive regulatory statutory human rights context. These opportunities may be captured from insights drawn from proactive regulatory processes, such as the one established under the Accessibility for Ontarians with Disabilities Act, 2005[5].

In Part I of the article, I present a detailed description of the Canadian statutory human rights cases in which applicants have brought disability discrimination claims about transportation. The corpus of cases that I analyze in this section represents original research on the human rights tribunal decisions.  decided across Canada between 1982 and 2014. This Part of the paper shows that transportation equality claims brought by persons with disabilities within the Canadian statutory human rights context can be broken down into three types:  a) cases seeking transportation restructuring, b) cases seeking access to transportation in support of a broader family dynamic and c)  cases in which the complainant seeks to assert that their need for transportation as person with a disability does not lead to a loss of efficiencies as perceived by some members of the mainstream population.

In Part II, I briefly set out the theories of equality relating to the paradigms of economic distribution and identity recognition and relate them to the social model of disability. Neither economic maldistribution, identity misrecognition, nor a combination of both, fully captures the true nature of what is sought by the claimants seeking equality of transportation in these cases. I argue that a different conceptual framework is required to give voice to persons with disabilities seeking equality in transportation, and possibly in broader equality struggles as well. In developing this framework, I draw on the findings of an empirical project that I am conducting in Canada and the United States. In this study, persons with disabilities and organizations dedicated to disability issues (ODDIs) have been interviewed on their experience in government and multi-party stakeholder consultations regarding the development of laws affecting persons with disabilities.

In Part III, I develop more fully this additional aspect of equality theory. I term this missing aspect the universality of the human condition.

[…]

        i.            Austin v. London Transit Commission: the reasonable accommodation doctrine

 

When one reads across the collection of decisions relating to transportation equality for persons with disabilities, the challenges for persons with disabilities to have their concerns heard in a complaint-based reactive regulatory system becomes strongly apparent. Like Browne v Niagara (Regional Municipality)[6] , Austin v. London Transit Commission [7]  is a case that illuminates the problem of lost opportunities for dialogue in seeking transportation restructuring through adjudicative reactive regulation. But Austin also demonstrates how the doctrine of reasonable accommodation, which is central to equality law concerning persons with disabilities, provides a very narrow platform for receiving transportation restructuring concerns.

Mr. Austin was a paratransit user who felt that the paratransit system was an ineffective alternative to conventional transit in London, Ontario. In Ontario, the paratransit system was created in the 1970s.[8] It expanded robustly through the 1970s and 80s only to be markedly stripped of funding in the mid-1990s when the conservative party was elected to power. [9] Similar to the paratransit service in other major Ontario cities[10], the service in London was, at the time of the application, a first-come first-served, door-to-door system which required pre-booking to obtain a ride. After a few specific instances in which he found himself unable to obtain a ride even though he had called to book within the stipulated booking window, Mr. Austin made an application to the Human Rights Tribunal of Ontario about the challenges of using paratransit for persons with disabilities.  He framed part of his submission in the following words:

…it is frustrating, stressful and humiliating to have to compete with other paratransit users for limited services, and … given the 3-day advance booking requirement, the [London Transit Commission] should be able to accommodate all requests for paratransit rides.[11]

Mr. Austin further reported that he had been made to feel that it was his fault that he could not secure a ride. He was told that should have called as soon as the booking window opened at 7 AM as opposed to calling in the afternoon in order to obtain a ride since “bookings fill up quickly”.[12] Ultimately, Mr. Austin submitted that “as a person with a disability, [he was] denied equal access to an equivalent public transportation system available to other residents of London, Ontario”[13].

The adjudicator filtered the matter through the lens of a reasonable accommodation analysis.

When it comes to cases of transportation restructuring, the reasonable accommodation analysis provides little possibility for reimagining an inclusive transportation system. What is lost from the assessment of Mr. Austin’s claim for equality, for example, is any reflection about what a more inclusive transit system might look like. Such a transportation system would allow people with disabilities to organize their daily lives in a manner similar to those who use the conventional system without, for example, 7am pre-booking calls made several days in advance.[…]

Ultimately, Mr. Austin was unsuccessful on the ground of discrimination.

The Universality of the Human Condition

I argue that battles for transportation equality that take place on the ground represent more than the material distribution and identity recognition paradigms of equality theory which have been debated in the literature put forward by political and legal theorists since the 1990s. Indeed, although these two competing models of social justice are present, at least one additional critical element emerges from a review of the three categories of PWD transportation inequality cases above. I have termed this additional model of equality the universality of the human condition. The idea behind the universality of human condition is to bring attention to experiences that we may share through life as human beings  –such as raising children, the possibility of being assaulted, the need to get to medical appointments and organize one’s time in an efficient manner –and to have acknowledged within legal analysis that the law should be used as a tool to support everyone to be able to live through these experiences reasonably. It manifests itself in both an individual and collective manner.

The universality of the human condition affirms the independence and empowerment that accompanies the social model of disability. It therefore affirms life experiences that are both positive and negative, and that are often shared and seen as commonplace by a wide range of people.

I argue further that the universality of the human condition may be a valuable tool  in the statutory discrimination analysis and illustrate how it may be used [….].

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

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

[3] The socio-legal literature that exists includes: Ena Chadha, “Running on Empty: The “Not So Special Status” of Paratransit Services in Ontario” (2005) 20 W.R.L.S.I. 1[Chadha], “Transportation Barriers ” ch. 5 in Ravi Malhotra and Morgan Rowe, Exploring Disability Identity and Disability Rights through Narratives (New York: Routledge, 2014) and Lisa Vanhala, Making Rights a Reality?: Disability Rights Activists and Legal Mobilization (New York: Cambridge, 2011).

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

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

[6] 2010 HRTO 2141 [Browne].

[7] 2013 HRTO 1936 [Austin].

[8] See Chadha supra note 2.

[9] Ibid.

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

[11] See Austin at para 3.

[12] Ibid.

[13] Ibid at para. 2.