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.” 1

The idea to dedicate a week to promote inclusion in Canada was originally conceived by Rick Hansen in 1987 following the completion of his Man in Motion world tour. As a person with a disability, Hansen coined the week National Access Awareness Week and sought to bring together disability communities, community partners, businesses and government to effect meaningful change for persons with disabilities.2 The introduction of National AccessAbility Week in 2017 continued showcasing community initiatives working towards achieving inclusion and accessibility for persons with disabilities. 

Principles that Inform Disability Rights Law 

As a specialty legal clinic dedicated to defending and advancing the equality rights of persons with disabilities in Ontario, ARCH has long supported and celebrated this important week for the disability community. Since 2012, ARCH has partnered with The Law Society of Ontario (formerly The Law Society of Upper Canada) to host the annual Access Awareness event focusing on relevant disability rights issues.

In all of its work, ARCH applies a disability-rights lens to issues that are important to our client community.  This lens is informed by a certain core set of principles that ground the work of disability rights advocates and lawyers. These principles, outlined in more detail below, speak to the kind of society that those within disability communities are working towards building.

In addition to a rights based approach to disability, the United Nations' Convention on the Rights of Persons with Disabilities, which Canada has ratified, comprehensively provides a framework to advance inclusion in all aspects of social life for persons with disabilities. 3

i) Advancing our Understanding of Disability 

Universal design originates from an architectural concept that strives to ensure that the greatest number of people can use, understand and access what is designed. Fundamental to understanding concepts of universal design and inclusive design is the social model theory of disability which recognizes that it is society’s failure to accommodate the needs of people with disabilities, and not some inherent condition that gives rise to the ‘disabling disadvantage’ that persons with disabilities encounter in their daily lives.4 Implementing universal design and inclusive design practices when creating environments and spaces, policies, and laws can move us closer to achieving inclusion by removing societal and structural barriers and creating more inclusive communities for all.  

In pursuing this goal of inclusion, it is important to recognize that barriers in society come in different forms and are not limited to physical barriers. Ableism and ableist barriers can be subtle, insidious and devastating to any attempts of inclusion. Attitudinal barriers can be insurmountable as any physical barriers. Ableism is based on discriminatory assumptions, preconceived notions, stereotypes and stigma related to specific disabilities. 5

“Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.” 6

The Supreme Court of Canada has encouraged a proactive approach to implementing universal design 7 – encouraging government bodies, service providers, housing providers, employers, and organizations to put in place standards that reflect the ability of all members, to the extent that it is reasonably possible.8

The aim of universal design is to reduce the need for persons with disabilities to navigate accommodation processes. It ensures that supports are in place for persons with disabilities to live autonomously and independently, without having to make requests for after-the-fact modifications. 10 

ii) Proactive Accessibility

Closely related to universal design is the concept of proactive accessibility. While each and every person will experience discrimination differently and will have different lived experiences, certain aspects of society are constructed on the basis of able-bodied norms which then leads to barriers that exclude persons with disabilities. 11  This is known as systemic discrimination. 

In an effort to eliminate systemic discrimination, it is important for employers, government bodies and institutions, and service providers to take positive steps to promote and provide accessibility by removing barriers before discrimination is experienced by a person with a disability. The Supreme Court of Canada has articulated the negative impact that can be experienced by persons with disabilities in the absence of proactive accessibility:

The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.” 12

An environment where service providers, employers and institutions are mindful of creating policies, laws and practices that do not create barriers that will lead to adverse impact on persons with disabilities is necessary for promoting a society that is accessible to all.  

The importance of accessibility legislation that crystalizes and furthers the concept of proactive accessibility cannot be understated.  For example, the introduction of the Accessibility for Ontarians with Disabilities Act (AODA) 13  establishes standards for accessibility for various areas of life, that all services providers, employers and organizations are expected to abide by.  In establishing these standards for accessibility, the AODA attempts to further the goal of making society more accessible for a greater number of the population. 

iii) Individualized Accommodation

The importance and implementation of universal design, inclusive design, and proactive accessibility does not eliminate the need for individualized accommodation.  Individualized accommodation refers to the tailoring of accommodation to a person that is specific to their disablity-related needs. For example, two persons may have the same disability but their disability-related needs will be different and the accommodation provided to each must be based not on their disability, but on what needs are specific to the person. 

The duty to accommodate has played a central role in the development of provincial 14  and federal 15 human rights jurisprudence and the understanding of discrimination based on disability. The jurisprudence makes it clear that employers and service providers have a duty to provide accommodation that is individualized to each and every person’s disability-related needs. 

In Nova Scotia (Workers Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur 16 the Supreme Court of Canada took the opportunity to recognize that accommodation is a highly individualized process that must be responsive to individual needs 

Due sensitivity to these differences is the key to achieving substantive equality for persons with disabilities. In many cases, drawing a single line between disabled persons and others is all but meaningless, as no single accommodation or adaptation can serve the needs of all. Rather, persons with disabilities encounter additional limits when confronted with systems and social situations which assume or require a different set of abilities than the ones they possess. The equal participation of persons with disabilities will require changing these situations in many different ways, depending on the abilities of the person. The question, in each case, will not be whether the state has excluded all disabled persons or failed to respond to their needs in some general sense, but rather whether it has been sufficiently responsive to the needs and circumstances of each person with a disability. 17

Roughly one decade later, the Supreme Court of Canada re-emphasized the highly individualized nature of the duty to accommodate in the matter of Moore v British Columbia. The Court stressed that accommodation must be highly individualized and "meaningful" and that once a prima facie finding of discrimination is made, the undue hardship defence imposes a very high standard - and not one of "mere efficiency" 18 visited the importance of the individualized approach to accommodating persons with disabilities in Canada.

Providing individualized accommodation, fulfills the dual purposes of accommodation : it “recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do provide the most appropriate accommodation short of undue hardship." 19 

Conclusion

As we celebrate National AccessAbility Week 2018, I invite you to join us in this week’s events and in promoting an inclusive society that is accessible to all and which promotes the full participation of all persons.  

National AccessAbility Week 2018 Schedule of Events:

May 31 

Lunch `n Learn and Live Webinar – Join Kerri Joffe, Staff Lawyer at ARCH, to learn about the expected scope of the federal accessibility legislation, the role that disability communities have played in its development, and how the legislation may be relevant for legal clinics.

12:00 to 1:00 pm

Location: 15 Floor, 55 University Ave, Toronto, or via webinar

June 3

ReelAbilities Film Festival – Defiant Lives: Stories of Disability Rights Panel – ReelAbilities is a film festival dedicated to displaying and highlighting the lives, stories and art of those with disabilities. Robert Lattanzio, Executive Director of ARCH will sit on a panel following the screening of Defiant Lives, by Director Sarah Barton

8:30 – 9:30 pm

Location: Innis Town Hall, 2 Sussex Ave, Toronto 

Find more details here.

June 5

Access Awareness Week Program - Join us and the Law Society of Ontario for a discussion about privacy rights and disability. 

4:00 – 6:00 pm – Panel 

6:00 – 7:40 pm – Reception  

Location: Osgoode Hall, 130 Queen St W, Toronto

Learn more about this event, including how to register, here

Thank you for joining us to celebrate National AccessAbility Week. We would love to hear from you.
 
Robert Lattanzio
Executive Director
ARCH Disability Law Centre
 
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