ARCH Blog

ACCESSIBLE PRACTICE: Practice tips for maintaining privilege and confidentiality for a client accompanied by a support person

November 9, 2018
 

Q: What are the obligations and best practices for lawyers and paralegals working with clients who are accompanied by a support person?

Introduction

According to the Integrated Accessibility Standards under the Accessibility for Ontarians with Disabilities Act (AODA), a support person is someone who accompanies a person with a disability in order to help with communication, mobility, personal care or medical needs, or with access to goods, services, or facilities. They may be a paid professional, a volunteer, a family member, a friend, a caseworker or a social worker. A support person is a disability-related accommodation.

Ontario’s Human Rights Code (Code), and the Law Society of Ontario’s Rules of Professional Conduct and Paralegal Rules of Conduct, each prohibit any form of discrimination on the basis of disability in the provision of legal services. Further, the Coderequires lawyers and paralegals to accommodate clients with disabilities to the point of undue hardship. 

In addition to the obligations set out in the AODA and the Code, the Rules of Professional Conduct and Paralegal Rules of Conduct mandate that lawyers and paralegals must ensure that no client receives inferior service on the basis of disability. This means that for some kinds of accommodations, the lawyer or paralegal may be required to engage in additional steps to ensure that their professional obligations are fulfilled. In particular, additional steps may be required to maintain privilege and confidentiality for a client who is accompanied by a support person.

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Human Rights Tribunal of Ontario Releases Practice Direction on New Case Processing System

October 26, 2018
 

New Case Processing System at the Human Rights Tribunal of Ontario

The Human Rights Tribunal of Ontario (“HRTO”) recently released a practice direction on a new case processing system in response to an increased caseload and in an effort to process cases more quickly. This post will outline the new system and the potential implications it may have on practice at the HRTO.
 

Overview

If you regularly appear before the Human Rights Tribunal of Ontario (“HRTO”), you may have noticed an administrative backlog in processing cases. According to the HRTO, in the past year and a half, it has experienced an unprecedented 25% increase in its caseload.

To address this increase, the HRTO has rolled out a new case processing system for all applications filed on or after March 1, 2018. The HRTO hopes that the new system will have a number of benefits such as resolving cases more efficiently and improving the HRTO’s ability to track case progress. In particular, the new system includes three main changes:
 

  1. Assignment of one Vice-chair to each application from the time of filing until the case closes (exclusive of Mediation),
  2. Most hearings will be scheduled for one day, and 
  3. Mandatory Case Management Conference Calls for each case will be scheduled approximately 30 days before the first day of the hearing.

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CASE SUMMARY AND ANALYSIS: Alford v. The Law Society of Upper Canada, 2018 ONSC 4269

October 12, 2018

n July 8, 2018, the Ontario Superior Court of Justice released its decision in a motion brought by the Law Society of Ontario (LSO) in an application brought against it by one of its licensees, Ryan Alford. While the motion itself turned on a question of jurisdiction, the substantive issue at the centre of Alford`s application is of extreme importance to the legal profession and has received quite a bit of attention from the legal community in the last year, namely, the LSO Statement of Principles.

Summary of Case

 In November 2017, Alford filed an application at the Ontario Superior Court of Justice against the LSO pursuant to Rule 14.05 of the Rules of Civil Procedure challenging the authority of the LSO to require that all licensees create and abide by a Statement of Principles that acknowledges their obligation to promote equality, diversity, and inclusion. 

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Bona Fide Academic Requirements in the New OHRC Policy

September 28, 2018

At the end of August, the Ontario Human Rights Commission (“OHRC”) released a new Policy on Accessible Education for Students with Disabilities (the ‘Policy’). The Policy represents a significant step forward as many students with disabilities continue to experience barriers in attempting to access the education system. The Policy outlines the OHRC’s interpretation of human rights as it applies to the primary, secondary and post-secondary education systems. This is particularly important because the OHRC’s interpretation of the Human Rights Code (the “Code”) has persuasive force in a proceeding before the Human Rights Tribunal of Ontario. This is encoded in section 45.5 of the Code which states that the HRTO must consider the OHRC’s policies in their decisions when it is requested by a party or intervener.

Within the pages of the Policy, the OHRC offers a fulsome explanation of the rights of students with disabilities as they pertain to education, as well as developments in the law and educational practice over the past decade. These developments include new and more nuanced understandings of human rights law as it applies to students with disabilities.

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FOCUS: Naming the Right Respondent at the HRTO

September 14, 2018

Identifying the appropriate respondent is an important step in filing an application at the Human Rights Tribunal of Ontario (HRTO). Simply put, the respondent is the person or persons legally responsible for the alleged discriminatory acts.  For the majority of cases, identifying the respondent is relatively simple. For example, the proper respondent is the employer that terminated the applicant’s employment in a  discriminatory manner or the educational institution that failed to accommodate the applicant.

However, for some cases the question of who is legally responsible requires a more complicated and thorough analysis. This complication often arises in applications alleging discrimination on the basis of disability or failure to accommodate where there may be more than one controlling individual or organization. Often these individuals or organizations may try to point to other parties as being responsible for the alleged action or omission, or that another party set standards or rules that prevented them from complying with Ontario’s Human Rights Code (the “Code”). In these fact scenarios, it is not uncommon that the applicant may find it difficult to properly identify the appropriate respondent(s) at the outset of the application.

This post will cover some of the factors to consider when deciding who to name as respondents and the legal test for adding respondents later in the proceedings. It will also review specific challenges of naming the proper respondents as it relates to education related applications.

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FOCUS: The Law of Service Animals in Ontario

July 13, 2018

The term “service animal” is often perceived to refer to one particular type of service animal for one particular disability: the service animal being a guide dog and that disability being a vision disability.  However, the scope of what a service animal is and what accommodation it provides to other disability-related needs is much wider.  

Persons with epilepsy, persons with mental health disabilities and persons with other non-evident disabilities may all require the support of a service animal. That service animal may or may not be a guide dog; in fact, miniature horses, birds or even monkeys are sometimes used as service animals by persons with disabilities.

For persons who require the support of a service animal, the handler-animal relationship is an essential tool for independent living and full participation in society. 

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FOCUS: A More Contextual Approach to the Human Rights Tribunal of Ontario’s One-Year Limitation Period

June 29, 2018

Generally, the one-year limitation period at the Ontario Human Rights Tribunal (the Tribunal) has been applied quite stringently by the Tribunal with the threshold applied being so high that most applicants who fall outside the one-year limitation period are often shut out from being able to have their applications heard. 

An analysis of a recent decision, however, demonstrates that if the Tribunal adopts a more contextual approach to the one-year limitation period then more applicants may be able to have their applications heard provided they have a reasonable explanation for their delay in filing an application within the one-year limitation period. 

The One-Year Limitation Period at the Tribunal  

Section 34 of the Ontario Human Rights Code (the Code) stipulates that an applicant seeking to have their matter heard by the Tribunal must file their application within one year from the date of the incident (or the last incident in a series of incidents). 

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ARCH Celebrates National Indigenous Peoples Day - Highlights Work of BCANDS

June 21, 2018

The Board and Staff of ARCH Disability Law Centre recognize that our work takes place on traditional Indigenous territories across Ontario, which have been home to Indigenous peoples since time immemorial. We further recognize that the land on which our office is located is a sacred gathering place of the many Indigenous peoples of Turtle Island. We are grateful to have the opportunity to meet and work on this territory. We are also mindful of broken covenants and the need to strive for justice for all persons. We heed the Truth and Reconciliation Commission of Canada’s 94 Calls to Action.

To mark National Indigenous Peoples Day, ARCH is highlighting the work of our community partner organization, British Columbia Aboriginal Network on Disability Society (BCANDS). On Monday, June 18, 2018 ARCH Staff Lawyer, Kerri Joffe, spoke with BCANDS Executive Director, Neil Belanger, about BCANDS work and the results of their recent federally funded consultation with Indigenous communities on the forthcoming federal accessibility legislation.

KJ: Tell us about BCANDS and the services you provide.

NB: The British Columbia Aboriginal Network on Disability Society or BCANDS, is an award winning, Indigenous disability, not-for-profit organization, incorporated in 1991. BCANDS is the only Indigenous organization of its type in Canada and enjoys Special Consultative Status with the United Nations’ Economic and Social Council. BCANDS provides disability related services to Indigenous (First Nation, Métis and Inuit) individuals and families residing within Indigenous communities and non-Indigenous communities. BCANDS has won a number of awards for our work. 

Our Mission is: “Advancing the unique disability and health priorities of Indigenous persons through collaboration, consultation, and the delivery of comprehensive client services.”

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Accessible Practice: The Importance of Privacy for Clients with Disabilities

June 15, 2018

There is no question that privacy is of utmost importance to all clients. However, there are privacy concerns that are specific to clients with disabilities that may not arise in matters where the litigant/applicant/complainant is not a person with a disability.  What are these privacy concerns and what can you do in your legal practice to proactively address these issues?   

Why Privacy is a Concern to Clients with Disabilities

When a client with a disability approaches a clinic or firm, it is often because they have been on the receiving end of unfair, unjust and/or discriminatory behaviour. Their experience may include facts that are hurtful and demonstrative of ableist behaviour that results in an injury to the prospective client’s dignity and self-respect. By this time, the client may be wary of divulging their information to more strangers. 

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New Federal Accessibility Legislation on the Horizon

June 8, 2018

New legislation intended to increase accessibility and remove barriers that prevent persons with disabilities from participating in society is expected to be introduced in the House of Commons this month. The legislation is likely to create new accessibility requirements for federally-regulated employers and service providers, such as banks, interprovincial transportation, telecommunications, and Government of Canada services. It is also expected to impact federal lands and First Nations reserves.

Background 

In 2016 the Government of Canada announced its intention to create federal accessibility legislation. The Honourable Carla Qualtrough, then Minister of Sport and Persons with Disabilities, stated that the new legislation was intended to create "…an inclusive society where all Canadians have an equal opportunity to succeed, and are equal participants."

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Accessible Practice: When Your Client Cannot Sign Documents

June 1, 2018

A version of this article was first published in the June 2017 ARCH Alert issue 

As lawyers, we depend a lot on the power of a signature. Our solicitor-client relationship does not begin until our client agrees to and signs a retainer. We require clients to sign everything from consent to release information forms, affidavits, and settlement agreements, to powers of attorneys and wills just to name a few. A signature is an acknowledgment by the client that he or she understands what the document is stating and is indicative of a client’s consent or a client’s instruction to their legal counsel to act in a specific manner on their behalf. 

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Letter from the Executive Director: National AccessAbility Week

May 28, 2018 

I write this post in celebration of this year’s National AccessAbility Week, a week dedicated to celebrating and promoting inclusion and accessibility in Canada. ARCH is involved in several events throughout this week that are meant to inform and encourage discussion on issues that are of importance to disability communities. 

But first … 

A (Brief) History Lesson 

In the spring of 2017, the Honourable Carla Qualtrough, then Minister of Sport and Persons with Disabilities launched the annual National AccessAbility Week, aimed at promoting inclusivity and the full participation of persons with disabilities,

“We need to change the way we think, talk and act about barriers to participation and accessibility, and we need to do it right from the start, not as an afterthought. An inclusive Canada is where all Canadians can participate and have an equal opportunity to succeed.” 

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