ARCH Disability Law Centre
425 Bloor St. E.
Ste. 110
Toronto, Ontario
M4W 3R4
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www.archdisabilitylaw.ca
September 8, 2015
Honourable Kathleen Wynne
Premier of Ontario
Legislative Building
Queen's Park
Toronto ON M7A 1A1
Dear Premier Kathleen Wynne:
Re: Achieving Barrier Free Legislation
On September 14, 2007, in a letter to the Accessibility for Ontarians with Disabilities Act Alliance, then Premier McGuinty pledged that all Ontario laws would be reviewed for accessibility barriers. On 3 June 2015, (End note 1) the Ontario Government launched an Accessibility Action Plan. As Brad Duguid, Minister of Economic Development, Employment and Infrastructure stated,
“Ontario’s leadership in accessibility is something we can all take great pride in, but we know there is more work to do. The action plan gives us a map to continue working together to build a fairer and more diverse province where everyone can live, work and actively participate in their communities.”
As part of the Accessibility Action Plan the Government stated, once again, that it would review high-impact legislation for accessibility related barriers, as the first step in this review of all Ontario laws. According to the announcement, the Government has reviewed 51 pieces of high-impact legislation related to health, education, seniors and social services to identify barriers to accessibility. The announcement also stated that strategies were identified to address the existing barriers such as those found in appeals processes, timelines and forms.
The barriers that were found as a result of this review and the strategies that were identified to address these barriers have not been made public. As far as ARCH can determine the Government sought no input from the public when attempting to identify barriers to inclusion found in legislation. ARCH reviewed the 2014 Accessibility Plans of the various ministries and found that information regarding the results of the legislative review, including the barriers identified or the strategies developed to address such barriers, are not made available in the Accessibility Plans.
ARCH has conducted a preliminary review of some high-impact legislation identifying barriers to accessibility that we believe have a significant impact on people with disabilities. These barriers have to be addressed through legislative reform.
This is a preliminary review and is not representative of all the barriers to accessibility found in legislation. The legislatively mandated barriers outlined here are not presented in any particular order or priority. Depending upon the particular circumstances of specific individuals, each of the barriers described can have a significant negative impact on vulnerable persons. Upon request, ARCH is willing to make a further submission with a detailed review of select high-impact legislation.
About ARCH (End note 2)
ARCH Disability Law Centre (ARCH) is a specialty legal clinic dedicated to advancing the equality rights of persons with disabilities. ARCH provides legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides free and confidential legal advice and information to people with disabilities in Ontario. Through our Provincial mandate, we work with Ontarians with disabilities and disability communities providing direct legal representation, we conduct law reform activities, and policy and community development work. We also provide public legal education to persons with disabilities and continuing legal education to the legal community. ARCH maintains a website at www.archdisabilitylaw.ca.
The purpose of this preliminary submission is to identify the variety, breadth and complexity of barriers that exist in high impact legislation and to identify some legislative barriers that require legislative correction. This is not intended to be a comprehensive review but is intended to draw attention to the issue by identifying a few examples of barriers to accessibility found in select high impact legislation that significantly affect people with disabilities in Ontario. In each case we provide a brief description of how the legislation may have a negative impact on persons with disabilities, identify the specific barriers involved and make recommendations as to how the legislation needs to change to remove the barrier(s).
In all instances we remind the Government of the decision in Eldridge v. British Columbia (A.G) (End note 3) in which the Supreme Court of Canada (SCC) held that once a government undertakes to provide a benefit to the general population, it is required by s. 15(1) of the Canadian Charter of Rights and Freedoms (Charter) to ensure that the disadvantaged members of society listed in s. 15(1) have the resources to take full advantage of that benefit. The obligation of the Government to eliminate all barriers to accessibility and equality are further outlined in the Human Rights Code (Code) and the Accessibility for Ontarians with Disabilities Act (AODA).
Below we list examples of legislation in Ontario that create barriers to persons with disabilities thus preventing them from taking full advantage of the benefits offered. In particular, we report on the following legislation:
1) Compensation for Victims of Crime Act, RSO 1990, c. 24
2) Education Act, RSO 1990, c. E2
3) Home Care and Community Services Act, 1994, SO 1994, c. 26
4) Mental Health Act, RSO 1990, c. M7
5) Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, SO 2008, c. 14.
6) Substitute Decisions Act, 1992 S.O. 1992, c. 30
1. Compensation for Victims of Crime Act
The Compensation for Victims of Crime Act (End note 4) (CVCA) compensates people who have been subjected to horrific acts of violence; however, due to legislatively mandated barriers, this compensation is sometimes inaccessible to persons with disabilities who have gone through violent and traumatic experiences.
Once an application has been granted by the Criminal Injuries Compensation Board (CICB), the CVCA allows the CICB to alter administration of the award based on a finding of incapacity in regard to the person entitled to the award.
The CICB can determine incapacity in two ways. First, the person may be found incapable under the Substitute Decisions Act (SDA). Alternatively, the CICB may find that the person is incapable of managing his or her finances if “in the opinion of the Board [the person] is incapable of managing his or her own affairs.” (End note 5) If such a determination is made, the CICB then has the option to pay the victim’s award to another person on behalf of the victim.
The recipient and administrator of the payment will be the guardian of property or attorney for property, if one has been appointed under the SDA. If no guardian of property or attorney for property exists, the CICB has the power to make the payment to the Office of the Public Guardian and Trustee (OPGT) or to “any other person” if the CICB considers payment to that person in the best interest of the incapable person. (End note 6) It is important to note that the OPGT charges fees to the ‘incapable’ (End note 7) person for the administration of such funds.
Barrier:
a) Arbitrary findings of incapacity
As it currently stands, the CVCA and CICB risk contravening the Code and the Charter. Section 17(2) of the Code states that no person shall be found incapable, unless the tribunal or court is satisfied that
“the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs.” (End note 8)
Section 21(4) of the CVCA is problematic, because the process for determining incapacity is not transparent. The provision does not define the term “incapable” or any derivative of it. As a result, this provision allows the CICB the freedom to determine incapacity outside of the definitional boundaries of the SDA and risks contravening the Code by not requiring accommodation up to the point of undue hardship.
The SDA obligates the court to attempt to find an alternative course of action that is the least restrictive of the person’s decision making rights. The SDA also restricts the court from appointing the OPGT as guardian where there is a more suitable person available. The CVCA, however, gives the CICB the option of appointing the OPGT as the administrator of the funds even if a more appropriate person is available.
Furthermore, the CVCA does not require the CICB to undertake a formal capacity assessment by persons trained in capacity-related matters in order to find a person incapable; the CICB members can conduct their own capacity assessment. It is important to note that the members of the CICB are not required to be qualified capacity assessors pursuant to the requirements of the Capacity Assessment Office. (End note 9)
The Code obligates the CICB not to find a person incapable unless accommodation cannot be provided without undue hardship. Currently, however, the CVCA allows for arbitrary determinations of incapacity by untrained assessors, in contravention to the SDA and Code, which adversely impact the dignity of people with disabilities.
The decision of the CICB is final except “that an appeal lies to the Divisional Court from any decision of the Board on any question of law.” (End note 10) As a result, people with disabilities who have survived violent and traumatic experiences and who have been awarded compensation for these experiences are then prevented from receiving their award based on an arbitrary decision by the CICB.
Recommendations:
To deal with this barrier we recommend the following options:
1) Amend section 21(4) of the CVCA and remove the CICB’s discretion to find an individual incapable;
2) Amend section 21(4) of the CVCA so that findings of incapacity must comply with the SDA; and
3) Require mandatory training in capacity law and autonomy rights, with special reference to the Convention on the Rights of Persons with Disabilities, Article 12, for members of the CICB.
In light of these issues, ARCH urges the Government to reform legislation and address the barriers people with disabilities face under the CVCA.
2. Education Act
The Education Act (End note 11) is an antiquated legislative framework which fails to meet the needs of students who require special education services and does not effectively uphold the standards of the Code. The barriers discussed below are only a few examples of failures in the current legislative scheme and are not representative of all of the existing barriers in Ontario’s education system.
Barriers:
a) Accessibility barriers due to school closures
The Education Act provides for the development of guidelines and policies for school closure reviews, but fails to articulate a presumption or underscore the importance of considering the level of accessibility of each school when assessing school closures. Our school system is made more inaccessible as a whole when accessible schools are closed and inaccessible schools remain open.
b) Section 265.1m (Principal’s Powers to exclude students with disabilities)
The Education Act is interpreted by school boards to give school principals the power and discretion to exclude a student “whose presence…would in the principal’s judgment be detrimental to the physical and mental well-being of the pupils.” (End note 12) Often, parents are not provided reasons for the exclusion, or the legal authority for the exclusion. When reasons are provided they have little effective recourse to challenge the exclusion. The Education Act does not provide any procedural safeguards for exclusion, unlike Part XIII of the Act relating to suspensions and expulsions. Even if the parents are successful at a s. 265(1)(m) appeal, the underlying issues may not be dealt with. If the remedy is to merely quash the decision and allow the student to access the school, the underlying problems, such as failure to accommodate and attitudinal barriers, persist.
c) No meaningful enforcement or appeal process
Pursuant to the Code, school boards have a duty to accommodate students with disabilities; however, this duty is not effectively enforced. The Education Act does not provide a formal process or appeal mechanism to address disputes related directly to programming, services, accommodations and supports. While parents may make an application to the Human Rights Tribunal of Ontario (HRTO), the hearing is limited to matters of discrimination. As well people face problems related to limited access to representation, the adversarial nature of the process and the fact that it can take more than a year to obtain a final decision. When a child requires accommodation to appropriately access education, delays of months or more can have a serious negative impact on their learning. Currently the Education Act fails to substantively ensure the students’ rights to accommodation and denies them access to justice.
d) Education Act is inefficient and fails to uphold rights of students
In 2010, the Auditor General found that “[n]one of the school boards we audited in 2008 had established procedures to assess the quality of the special education services and supports at their schools.” (End not 13) The current legislative framework places an undue burden on students and their families to ensure that their disability-related accommodation needs are being fulfilled, and provides insufficient statutory protection for resolution. The existing framework is inefficient, ineffective, and it fails to uphold and advocate for children’s education rights.
Recommendations
The well-being and success of students in the classroom is detrimentally affected by the failure to implement a more holistic, rights-based approach to education services, and a failure to address inconsistencies across schools and school boards, and to provide meaningful and timely recourse when pupils’ disability related accommodation needs are not being met.
ARCH recommends that the Education Act be amended to ensure that rights guaranteed under the Charter and Code are upheld and protected. It is important to note that the shortcomings discussed here are not representative of all of the barriers students with disabilities face under the Education Act. It is evident that legislative reform is required.
3. Home Care and Community Services Act
The purpose of the Home Care and Community Services Act (End note 14) (HCCSA) is to promote equal access to community services and the health and well-being of community service consumers. Due to glaring omissions in the HCCSA’s accountability scheme, consumers are left vulnerable to abuse and unprotected by the Ontario Government.