Stakeholder consultation on eligibility criteria for the Disabled Person Parking Permit
Submission of
ARCH: A Legal Resource Centre for Persons with Disabilities
To the
Ministry of Transportation
February 27, 2004
Lana Kerzner, Barrister and Solicitor
ARCH: A Legal Resource Centre for Persons with Disabilities
425 Bloor Street East, Suite 110
Toronto, Ontario
M4W 3R5
TTY: / 416-482-1254 or 1-866-482-2728
Fax: / 416-482-2981 or 1-866-881-2723
Email: /
Web site: /
Preface
ARCH shares the concern of the Ministry of Transportation regarding the integrity of the Disabled Person Parking Permit Program and congratulates the Ministry for taking the initiative to conduct this assessment and consultation. We appreciate this opportunity to provide our comments on the program.
Our submission is divided into two sections. The first sets out our general submissions regarding eligibility for the Disabled Person Parking Permit Program. The second contains our responses to the Survey Questionnaire sent to us by the Ministry.
ARCH and this consultation
ARCH: A Legal Resource Centre for Persons with Disabilities is a community legal aid clinic which serves persons with disabilities throughout Ontario. ARCH represents persons with disabilities in test case litigation, provides summary legal advice and also engages in public legal education and law reform activities. ARCH is one of a number of community legal clinics serving low income individuals. ARCH's membership consists of more than sixty disability consumer and service organizations.
Over the past number of years ARCH has regularly heard concerns from members of the community of persons with disabilities regarding various aspects of the Disabled Person Parking Permit Program. In preparing our submission, we solicited feedback on the issues the Ministry of Transportation (Ministry) raised in its correspondence and survey questionnaire through our newsletter, ARCH Alert (January 16, 2004). We also conducted a review of the contacts that our summary advice and referral service received from members of the public regarding the program. Additionally, we have consulted with other community legal aid clinics and members of the private bar on this issue. This submission draws from our review and analysis of these sources.
ARCH's submission is intended to combine the information we have learned from the community of persons with disabilities with a disability law analysis. However, as a legal clinic, we are not in a position to fully canvass and express the diverse views of the entire community. ARCH recommends that the Ministry seek comments on the program directly and broadly from persons with disabilities.
Introduction
People who call ARCH about the potential loss of their Disabled Person Parking Permit (DPPP) are often panicked and desperate. Individuals with disabilities, at risk of being without a permit, fear isolation and inability to engage in life's most basic activities. These calls highlight how essential DPPPs are to people's lives and the importance of this issue to the community of persons with disabilities.
DPPPs are a vehicle for removing accessibility barriers for persons with disabilities. Persons who face barriers navigating streets and parking lots, and who are without close and available parking, are precluded or severely limited from engaging in many activities. This includes such important activities as attending medical appointments, going to school and work, shopping, and participating in religious observances, cultural activities and social interaction.
Our recommendations include ways to strengthen the Disabled Person Parking Permit Program so that it can better serve the requirements of persons with disabilities. Persons with disabilities, regardless of the nature or severity of the disability, should not be barred from participating in society because of restrictions in the law and administration of the Disabled Parking Permit Program. ARCH recommends that broadening the coverage of the program occur concomitantly with strong enforcement measures relating to illegal activities with respect to disabled parking by persons who do not have disabilities.
General submissions
Eligibility criteria : inconsistency between regulations and Ministry criteria
Eligibility to obtain a DPPP is governed by law through the criteria set out in the regulations to the Highway Traffic Act (Ontario Regulation 581, s.2 (1)). These provide that a DPPP shall be granted if the following two criteria are met:
- The applicant is an individual who is unable to walk unassisted for more than 200 metres without great difficulty or danger to his or her health or safety.
- The applicant submits a certificate of a medical practitioner, on a form to be provided by the Ministry, certifying that the applicant is a disabled person and setting out whether the disability is temporary or permanent and, if temporary, the length of time the disability is expected to continue, if known.
However, the eligibility criteria that the Ministry requires individuals to meet do not conform exactly to those set out in law. The Ministry criteria are reproduced in the Application for Disabled Person Parking Permit form. The medical practitioner must certify that:
"... the applicant is unable to walk 200 meters (218 yards) unassisted in 8 minutes or less without great difficulty or danger to health or safety."
The Ministry imposes further conditions on eligibility in the application that are not set out in the regulation. Firstly, the Ministry states that an individual is not eligible if the disability lasts less than 2 months. Secondly, the Ministry defines "unassisted" as "without the aid of a mobility assisting device or any person." Thirdly, the application form requires the medical practitioner to state the applicant's "walking disability".
We suggest that the added criteria create greater restrictions than contemplated in the regulations. The regulations do not require that the disability lasts longer than 2 months or that it be a "walking disability". (That is, other disabilities can lead to walking difficulties, including such conditions as blindness or anxiety.) Additionally, the regulations do not define "unassisted". The Ministry's definition of this term is limited to certain forms of assistance and to this extent it is also more restrictive.
We submit that the only legally valid restrictions on eligibility are those set out in the regulations. ("The Minister shall issue a disabled person parking permit to every person or organization that applies therefor and meets the requirements of the regulations." (s.26 (1)). To the extent that the Ministries add-on's in the application form are inconsistent with the regulations, they should not be operative so as to disqualify an applicant. (We are assuming that the form is not part of the Regulation and has not been passed by Order in Council.)
Thus, we are of the view that the starting point for an analysis of eligibility criteria should be those established in the regulations. The real issue in this consultation should be: do the eligibility criteria set out in Regulation 581 safeguard the integrity and promote the purposes of the Disabled Parking Permit Program?
Changing eligibility criteria
If the outcome of this consultation is a proposal for amendment of Regulation 581, we look forward to the announcement of the formal process to do so, so that there can be a broad public discussion of the issues.
Analysis of eligibility criteria
Section 2(1)(a) of Regulation 581
Violation of Human Rights Code and Canadian Charter of Rights and Freedoms
ARCH submits that the eligibility criteria set out in Regulation 581 should be amended. It is our view that the current criteria are discriminatory and violate Ontario's Human Rights Code and the Canadian Charter of Rights and Freedoms.
The wording of the regulation limits eligibility to individuals "...who are unable to walk unassisted for more than 200 metres without great difficulty or danger to his or her health or safety." Eligibility is thus limited to persons whose disabilities limit their ability to walk. The effect of the regulation is to exclude anyone with a disability who does not fit within the narrow and arbitrary standard established therein. Differential treatment is imposed on individuals who have disabilities which are not covered by the standard.
This sort of approach, whereby a rule or standard excludes some persons with disabilities from a benefit, has been considered by the Supreme Court of Canada and found to be discriminatory. The Court has held that such regimes must provide for individual testing and accommodation. Thus, we submit that to be non-discriminatory, the DPPP program should ensure that each applicant receives an individual assessment of his or her need for a DPPP. ARCH refers the Ministry to the Supreme Court of Canada cases of British Columbia (Superintendent of Motor Vehicles) v. British Columbia Council of Human Rights, [1999] 3 S.C.R. 868 and Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia Workers' Compensation Board) v. Laseur 2003 SCC 54.
Since the purpose of the DPPP is to remove barriers to mobility for persons with disabilities, the criteria should require that applicants are assessed individually with respect to barriers experienced in their navigation of roads and parking lots. The assessment should seek to assess whether, regardless of the type or nature of the disability, the applicant's needs fit within the purpose of the program. On this basis, a DPPP should be granted.
ARCH submits that the Ministry of Transportation should exercise it's power under section 30 (c) of the Highway Traffic Act to amend the discriminatory criteria set out in section 2(1)(a) of Regulation 581.
ARCH further submits that, for greater clarity and to ensure that all persons with disabilities are equally considered for eligibility to receive a permit, regulations are enacted which include a broad definition of disability. ARCH submits that for this purpose, a definition of disability such as that set out in s.10(1) of Ontario's Human Rights Code be incorporated in the regulation.
Section 1 and 2(1)(b) of Regulation 581
The eligibility criteria in the regulations also incorporate a definition of "medical practitioner" for those who can certify whether someone is eligible for the DPPP. It includes a "physician, chiropractor, occupational therapist, osteopath or physiotherapist." We recommend that this definition be amended as it is underinclusive and presents a barrier for many individuals who would otherwise be eligible for a DPPP.
In many rural and northern communities in Ontario there is a shortage of medical professionals and especially of certain types of professionals. It may be that one does not have access to one of the professionals specified in the regulation and thus be prevented from completing an application.
Further, the assessment of different disabilities is performed by different types of professionals. To ensure that all persons with disabilities have access to the program, the definition of health professional should reflect the spectrum of professionals that serve persons with various disabilities. We recommend that the list be at least as broad as that set out in the regulations to the Ontario Disability Support Program Act (Ontario Regulation 222/98 s.46(2)) which lists professionals who may assess an individual's impairment of activities of daily living. This includes physicians, psychologists, optometrists, occupational therapists, physiotherapists, audiologists, chiropractors and registered nurses in the extended class (RNEC). Given the ODSP approach, there is no reasonable justification for restricting the list for a DPPP application, as the determination of navigating roads and parking lots is a subset of an individual's ability to engage in an activity of daily living.
Ministry's concerns regarding integrity of Disabled Person Parking Permit Program
The Ministry has stated that the purpose of the consultation is to enhance program integrity. Then, in its letter of December 10, 2003 the Ministry reports that it has received complaints from persons with disabilities, their families and friends that DPPPs are being used by people who are not eligible for the program. There seems to be an assumption that a review and amendments of the eligibility criteria will relieve the problem.
ARCH has a different perspective. The feedback we have received does not focus on eligibility but on availability of parking spaces. Persons with disabilities who have DPPPs are frequently unable to find parking spots and designated parking spots are often occupied by individuals who do not possess a DPPP. We are sceptical that persons with disabilities believe the criteria should be more restrictive and suspect that the real issue is the search for a solution to the lack of parking available. We encourage the Ministry to inquire into the motivation for the complaints it receives.
ARCH encourages the Ministry to broaden its consultation to determine the exact motivation of dissatisfaction with the current program. It may well be that the solution is found not in the eligibility criteria, but in other aspects of the administration and laws relating to disabled parking. For example, if the problem is that persons cannot find parking spots, perhaps the solution could be the creation of a larger number of spots. This would solve the problem without limiting the availability of the DPPPs in a way that discriminates against persons with disabilities. Another solution to consider would be to more aggressively enforce the offences committed by persons who do not have disabilities and who either fraudulently create and/or use permits or who do not have permits but nonetheless park in spots designated for use by those who possess DPPPs. Some such offences are set out in the Highway Traffic Act at s. 27(1)(a) and (f).
Collaboration of Ministry with municipalities and police and consultation with persons with disabilities
ARCH recognizes that while the Ministry has authority to issue DPPPs, many other aspects relating to parking and DPPPs are governed by municipalities by virtue of municipal by-laws and enforced by police forces. As such, ARCH strongly encourages the Ministry to collaborate with municipalities, police forces and other relevant agencies in Ontario in fashioning a solution. In particular, pursuant to the Ontarians with Disabilities Act, most municipalities now have Accessibility Access Committees, composed of persons with disabilities, who would be a very useful resource on this issue.
The Disabled Person Parking Permit Program has as its purpose the removal of barriers faced by persons with disabilities in the context of parking. To ensure that the Ministry resolves the concerns of persons with disabilities and improves the integrity of the program, we recommend on-going consultation with consumers of the Program. It is essential that the disability community have the opportunity to identify problems, make suggestions for solutions and to provide feedback on Ministry proposals for change.
Responses to survey questionnaire
Question #1
In ARCH's submission, the eligibility criteria as set out in this question should not continue to apply. See our general submission, above, for our explanation.
Question #2
In ARCH's submission, the DPPP should not be restricted to persons whose disabilities are "profound and visibly identifiable", or to "persons with disabilities who require orthopaedic assisted devices such as wheel chair, walker brace, help of another person, crutches, cane, etc". Such criteria are discriminatory. As stated in our general submission, the law requires that an individual assessment be made to determine whether, as a result of a particular individual's disability, a barrier exists such that a DPPP is required. Whether this test is met is not at all related to whether the disability is profound or visibly identifiable, or the type of assistive device a person may use. The relevant consideration is whether, as a result of an individual's disability, a barrier exists with respect to parking that will be removed if a DPPP is issued.
Question #3
ARCH submits that whether an individual should be granted a DPPP should be based on an individual assessment of the barriers relating to parking and in no way depend on the type of disability. See our comments in our general submission above. As such, "visual impairment", like all of other disabilities, may qualify an individual for a DPPP.
ARCH has had the benefit of reading the submissions of the CNIB and of Chris and Marie Stark. These submissions clearly document the barriers faced by persons who have visual disabilities in the context of parking. Individuals with visual disabilities who experience the barriers described should be eligible for the permit.
Question #4
As ARCH's mandate is to represent and advance the rights of persons with disabilities, we are not in a position to represent the views of other communities, including infants and their families. Nonetheless, ARCH is not opposed to infants under the age of two being eligible for special parking privileges.
However, if such privileges are granted, that should be administered through a separate system than that relating to permits for persons with disabilities. The needs of infants are different than those of persons with disabilities and will need to be met by a different program. Most importantly, if a special parking program geared to infants is created, appropriate measures must be taken to ensure that additional accessible parking spots are created, so that there are sufficient spots for persons with disabilities.