ARCH ALERT Monday, December 13, 2004 ARCH: A Legal Resource Centre for Persons with Disabilities 425 Bloor St. E. Ste. 110 Toronto, Ontario M4W 3R5 Tel.: 416-482-8255 Toll-free: 1-866-482-2724 Fax: 416-482-2981 Toll-free: 1-866-881-2723 TTY: 416-482-1254 Toll-free: 1-866-482-2728 www.archlegalclinic.ca INSIDE THIS ISSUE - Auton Decision - Charter Doesn't Guarantee Pay Equity: Supreme Court of Canada - Privacy Legislation in Canada and Ontario's New Personal Health Information Protection Act, 2004 - DARTS Settlement - Verdict in Trial of Toronto Police Accused of Assaulting Peter Owusu-Ansah: Thoughts from the Public Gallery - Ontario Human Rights Commission Accessible Education Guidelines - Ministry Ordered to Help Pay for Needs of Woman with Disabilities - Human Rights Cases Update - ARCH at the Supreme Court - Canadian Human Rights Commission Consultation - Postsecondary Education Review Submission - ODSP Update - Guides Addressing Accessibility - Federal/Provincial/Territorial Meeting on Universal Child Care - New Policy on Secondary School Literacy Graduation Requirements - Library Update: Adaptive Technology Auton Decision By Dianne Wintermute, Staff Lawyer On Friday 19 November 2004, the Supreme Court of Canada (the Court) released its unanimous decision in the Auton case. Connor Auton and three other children have been diagnosed with autism. Their families brought an action against the province of British Columbia on their behalf, alleging that the government’s failure to fund Lovaas treatment, a form of Intensive Behavioural Intervention, violated their rights under the Canadian Charter of Rights and Freedoms. Both of the lower courts that heard this case found that the failure to fund "medically necessary" health services violated the children’s’ equality rights. However, the Court held that the plaintiffs’ Charter rights were not infringed. The Court considered the provisions of the Canada Health Act (CHA) and the B.C. Medicare Protection Act (MPA) and concluded that the CHA and MPA do not require funding for all medically required treatment. These laws require funding for "core" medical services that are delivered by medical practitioners. Funding for "non-core" medical services, delivered by other health care practitioners, is left to the discretion of each province. The MPA did not list behavioural therapy providers as health care practitioners whose services could be partially funded under the Medicare plan. Therefore, since the benefit claimed by the plaintiffs was not provided by law, the Court held that there was no discrimination. ARCH, along with Elizabeth Shilton and Fay Faraday of Cavalluzzo, Hayes, Shilton, McIntyre & Cornish, represented the Canadian Association for Community Living (CACL) and the Council of Canadians with Disabilities (CCD), who intervened in this case. The purpose of that intervention was to draw the Court’s attention to the fact that disability-related supports and services are important tools to assist and encourage the participation and citizenship of persons with disabilities in society. CACL and the CCD took no position on the specific treatment sought by the plaintiffs in this case. However, CACL and the CCD support individual and family choice of disability-related supports and services that are geared to the individual needs of persons with disabilities. The Court’s legal analysis of the equality issues raised in this case is disquieting. ARCH will be conducting a more in-depth examination of the Supreme Court’s recent decisions in Auton, Newfoundland Pay Equity and Hodge, and their implications for persons with disabilities in the near future. The text of the decision, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, can be found at http://www.canlii.org/ca/cas/scc/2004/2004scc 78.html *** Charter Doesn't Guarantee Pay Equity: Supreme Court of Canada By Lesli Bisgould, Staff Lawyer On 28 October 2004, the Supreme Court of Canada released its decision in Newfoundland (Treasury Board) v. N.A.P.E. (Newfoundland and Labrador Association of Public and Private Employees), dismissing the challenge to the Canadian Charter of Rights and Freedoms (the Charter) which was the subject of the case. ARCH acted for the Council of Canadians with Disabilities (CCD), the Canadian Hearing Society (CHS) and the Canadian Association of Community Living (CACL) who intervened in the case. In 1988, the government of Newfoundland (the provincial government) negotiated with public sector unions and came to an agreement about pay equity. It agreed to pay money to hospital employees in job classes in which most workers are women. The money was owing from past unequal treatment (arrears), and also was designed to pay the workers a higher salary to bring about pay equity. In 1991, the provincial government passed a law which delayed the start date of the agreement in the public sector, and which also said it did not have to pay any arrears. The union went to court, claiming that the provincial government had violated the equality rights of its members, which are protected by s. 15(1) of the Charter. The Supreme Court unanimously held that the provincial government violated the s. 15(1) rights of underpaid health-care workers who are women. However, the judges were also unanimous that the provincial government was justified in breaking its pay equity promise due to budgetary problems. While the court concluded that the discriminatory effect on women hospital workers was "serious and deeply regrettable", the steps to save money taken by the provincial government did "more good than harm". This decision has been widely criticized by labour organizations and by defenders of equality rights in general. One of the reasons that the CCD, CHS and CACL intervened in the case was that the decision of the Court of Appeal for Newfoundland and Labrador, which was the decision under appeal in the Supreme Court, called for changes to the way in which courts are required to balance government action against claims of a violation of someone's rights. There is a test in place which the government must pass when legislation violates somebody's Constitutional rights. The Court of Appeal wanted to add a step which would have made that test much weaker than it is now, and which might have diminished the victories achieved by the disability community in cases such as Eldridge. On the one hand, the Supreme Court did decline to add the proposed new step to the test. On the other hand, unfortunately, the Court did weaken the existing test when it allowed alleged budgetary restraints to justify a violation of equality rights. The text of this decision can be found at: http://www.canlii.org/ca/cas/scc/2004/2004scc 66.html *** Privacy Legislation in Canada and Ontario's New Personal Health Information Protection Act, 2004 By Lesli Bisgould, Staff Lawyer There are new privacy laws all around the country. They are supposed to protect personal information about individual people that comes into somebody else's hands, such as a doctor, an insurance company, an employer, a case worker, an agency or a service provider. This article first gives a short introduction to Canadian privacy laws, then highlights Ontario's new health privacy law. Privacy Laws in Canada On 1 January 2004, the new federal privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA) became effective for all private sector (other than government) organizations across Canada which are involved in commercial activities. PIPEDA regulates the "collection, use and disclosure" of "personal information". These words are in quotation marks because their meaning in this law is very important and specific. There are new provincial privacy laws in British Columbia and Alberta. Québec passed its privacy law more than ten years ago. These privacy laws, like PIPEDA, apply broadly to the privacy of consumers and other persons dealing with organizations across the country. In addition to these four general privacy laws, Ontario has passed its own provincial law which applies specifically to the health sector, called the Personal Health Information Protection Act (PHIPA). Provinces that pass privacy laws of their own can apply to the federal government for a designation that their legislation is "substantially similar" to PIPEDA. If the provincial law gets the designation then the province generally can apply its own privacy law, rather than PIPEDA. The Ontario government expects that the federal government will decide that PHIPA is "substantially similar" to PIPEDA, so that Ontario's health sector will not be subject to PIPEDA. Whether or not that turns out to be the case, PIPEDA will continue to apply to commercial activities relating to personal health information in inter-provincial and international transfers of information. The Personal Health Information Protection Act, 2004 The PHIPA was introduced in the Legislature on 17 December 2003, and received Royal Assent in just five months, on 20 May 2004. It was passed together with another law called the Quality of Care Information Protection Act, 2004 (QCIPA). These two laws came into effect on 1 November 2004. The QCIPA is a very specific and short law which gives hospitals and other medical facilities the ability to investigate when something goes wrong, including the right to collect personal information that must be kept confidential. The PHIPA will have broad impact on all people who use the health care system. The law applies to "health information custodians" where they "collect, use or disclose" "personal health information". Health information custodians include doctors, other health care practitioners, hospitals, and long- term care facilities, as well as health care clinics, laboratories, pharmacies, the Ministry of Health and Long-Term Care and other health-related organizations. The legislation applies, in a more limited way, to individuals and organizations outside the health system that receive personal health information from the health care system, such as insurance companies, employers and schools. Overall, the legislation has some good parts and some that can be expected to have a harmful effect on health care consumers. ARCH is preparing a written analysis of the new law which will be posted on our website soon. In the meantime, you can find general information about the new law on the website of the Ministry of Health and Long-Term Care: www.health.gov.on.ca/english/providers/proje ct/priv_legislation/priv_legislation.html You also can download reports and other information about the new law from the website of the Information and Privacy Commissioner: http://www.ipc.on.ca/scripts/index_.asp?actio n=31&P_ID=14971&N_ID=1&PT_ID=31&U_I D=0 *** DARTS Settlement By Dianne Wintermute, Staff Lawyer ARCH and Hamilton Mountain Legal and Community Services represented two people with disabilities in their complaint to the Ontario Human Rights Commission. The complaint alleged that the Ministry of Transportation, the City of Hamilton (the City), and the Disabled and Aged Regional Transit System (DARTS) discriminated against them by not providing services that were comparable to those provided to users of conventional public transit. This complaint has now been settled. As part of the settlement, the City agreed to stop charging a $15.00 registration fee to DARTS users. As well, the City agreed to introduce a confirmation and cancellation booking policy that allows persons to book a trip up to seven days in advance and until 11 am on the business day before the requested trip. The City will continue to offer same-day trips if space is available. The City also agreed to establish goals to minimize the number of trip requests that cannot be met and late arrivals when picking up passengers. Finally, the City agreed to develop a complaints policy for persons with disabilities who wish to comment on transportation issues. The complainants themselves received a small amount of money as part of the settlement, in recognition of their efforts in bringing this important public interest issue forward. *** Verdict in Trial of Toronto Police Accused of Assaulting Peter Owusu-Ansah: Thoughts from the Public Gallery By Lesli Bisgould, Staff Lawyer Judge Robertson read his verdict on 13 October 2004, in a Scarborough courtroom full of interested members of the public. This was the large courtroom that we had to move to when the first courtroom became too crowded. That alone was cause for celebration-perhaps the only celebration of the day-so many people of so many different backgrounds and appearances, talking, signing, paying attention. Readers of ARCH Alert will recall that Mr. Owusu-Ansah and his friends, who are Deaf and black, were playing night basketball at the Bob Rumball Centre for the Deaf. The police arrived (they said in court that they were investigating a robbery in the area) and began to ask questions of the group. Mr. Owusu-Ansah tried to help in the communications as he can lip-read. Having been stopped by the police 17 times in the previous two years, he also asked the police what the reason was for their questions. Mr. Owusu-Ansah was separated from the group, first on the premises, and then put into a police car and driven to the parking lot of Northern Secondary School. He claimed that he was assaulted by the police at both places. The police then dropped him off at a nearby bus stop. It took well over an hour for the judge to read his decision, in which both officers were found not guilty. Before reading his decision, the judge said "I will refer to Officer Moosvi as ‘Moosvi’, I will refer to Officer Taylor as ‘Taylor’, I will refer to the complainant as ‘Peter’". The judge, and others, did the same during the trial. Why was it all right to call this adult by his first name but not the others? Judge Robertson said that he did not believe Officer Moosvi's explanation about why he and Officer Taylor took Mr. Owusu-Ansah to the parking lot of Northern Secondary School at 1:00 a.m. The judge noted that, had they just wanted to talk to Mr. Owusu-Ansah somewhere away from the commotion, their own police car was bright and the police station, where they were headed anyway, was just minutes away. But the judge went on to say that he had some concerns about believing Mr. Owusu-Ansah because he had brought a civil suit against the police for the assault. If the police had been found guilty of assault in the criminal trial, Mr. Owusu-Ansah would have won his civil law suit and gotten financial compensation for the assault. Countless people start civil law suits in this country every day. They all have a financial stake in the outcome of their case, which corresponds with the financial stake of the people they are suing. Mr. Owusu-Ansah could not wait for the end of the criminal trial because there is a short time limit to file a civil suit against the police. Why, then, was there no mention of the financial interest which the police had in the outcome of the trial, which would have affected their jobs and reputations if they had lost it? Perhaps the most important point of all was one that the judge did not mention in his decision. What role did (mis)communications play in this entire situation? The judge gave no indication that he even considered this to be a factor. Yet Mr. Owusu-Ansah used a sign-language interpreter in court and his first language is neither English nor ASL. As a Deaf person, Mr. Owusu-Ansah faced serious barriers interacting with the police, who have little or no training with respect to persons with disabilities. In this case, Officer Moosvi claimed that he didn't even know that he was a Deaf person until he was in the police car. Did the police mistake their difficulty in communicating with Mr. Owusu- Ansah for his unwillingness to comply with their demands? Could the police even make demands effectively and enforce the law in accordance with constitutional and human rights, when interacting with a group of persons with whom they were not prepared to communicate effectively? Standing outside the courthouse as the media conducted their interviews after the verdict, I heard several members of the public react, saying that they were not surprised and nothing ever changes. I also saw others, many of them students, who discovered that justice does not always appear in real life as it does in their textbooks. They learned a lesson in court that day and all who followed this trial will take many lessons from the experience. We will continue to fight for the rights of persons not to be subject to discrimination because of disability or race. *** Ontario Human Rights Commission Accessible Education Guidelines By Kathie Brooks, Chairperson and President, ARCH Board of Directors On 30 November 2004, the Ontario Human Rights Commission (Commission) released a policy document entitled Guidelines on Accessible Education (Guidelines). This document was introduced as a companion piece to their 2003 report, The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities, and is the final product of a province-wide consultation process that began in the summer of 2002. Guidelines addresses issues of placement, services and accommodation, funding, training, attitudes, unfair systems and the harm that the Safe Schools Act has caused to students. The Commission already had developed a very strong policy on disability, named Policy and Guidelines on Disability and the Duty to Accommodate, that applies to the service sector of education. However, because this document was written mostly within an employment context, there were no specific guidelines on how to apply its principles to education. Those in attendance at the release of Guidelines were advised that throughout the consultation process, the Commission has advised the Ministry of Education of their obligations and responsibilities under the Ontario Human Rights Code. However, it remains apparent on review of the Ministry’s recently published The Individual Education Plan (IEP): A Resource Guide 2004 that the application of concepts such as appropriate accommodation and undue hardship still has not made its way into education policy. It looks as though students and their families will have to lead the charge and bring the new Guidelines to their local school councils and SEACs in their individual and systemic advocacy efforts. No student or family should be without a copy of this resource, as its content has the potential to prevent the pain and anguish of litigation. As for those who find themselves in the unfortunate position of having to file a human rights complaint, perhaps the arrival of Guidelines will result in the Commission’s taking issues forward to the Ontario Human Rights Tribunal. *** Here are links to the reports and policy documents mentioned in this article: Guidelines can be downloaded at: http://www.ohrc.on.ca/english/publications/ac cessible-education-guide.pdf The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities: http://www.ohrc.on.ca/english/consultations/e d-consultation-report.pdf Policy and Guidelines on Disability and the Duty to Accommodate: http://www.ohrc.on.ca/english/publications/dis ability-policy.pdf The Individual Education Plan (IEP): A Resource Guide 2004 : http://www.edu.gov.on.ca/eng/general/elemse c/speced/guide/resource/iepresguid.pdf You also can get copies of any of the above- referenced resources by calling the Commission at (416) 326-9511 (in Toronto), 1-800-387-9080 (toll-free), 1-800-308-5561 (TTY toll-free) or (416) 314-6526 (TTY local). *** Ministry Ordered to Help Pay for Needs of Woman with Disabilities By Cara Wilkie, Student at Law A judge of the Ontario Superior Court of Justice ordered the Ministry of Community and Social Services to pay a woman with disabilities enough money to meet her needs. The case, King v. Sutherland, arose as a dispute over support obligations between the parents of a woman with disabilities. She receives ODSP but they are not sufficient to pay for all of her needs. The woman's father argued that he should not have to make support payments because she is an adult. He stated that the Ministry had an obligation to pay her enough money to meet her needs. The judge disagreed, and ordered her father to make monthly support payments. However, the judge further ordered the Ministry to make up the shortfall between the support payments, her ODSP and her actual monthly needs. The judge's decision was based in part on the government’s failure to meet its promises to find the woman an appropriate community living placement. The judge added that government ministries should be expected "to be responsible, at least in part, for providing [persons with disabilities] a lifestyle and experience in keeping with the general lifestyle enjoyed by the rest of the community." The decision is being appealed to the Court of Appeal by both the Ministry and the woman's father. The Superior Court decision can be found at: http://www.canlii.org/on/cas/onsc/2004/2004o nsc12087.html *** Human Rights Cases Update By Heidi Lazar-Meyn, Staff Lawyer R. v. Hussein On November 10, 2004, Ontario Superior Court Justice Robert Desmarais ruled that holding persons in jail while they are waiting for a psychiatric assessment of their fitness to stand trial violates their rights under the Canadian Charter of Rights and Freedoms (the Charter). Mr. Hussein and Mr. Dwornik were accused of committing crimes. In each case, the court ordered a psychiatric assessment, which is used to decide if persons have a mental impairment that keeps them from knowing that what they did was wrong, or how serious it was. The Criminal Code generally requires that the assessment be done within five days, unless the accused person and the prosecutor agree to a longer period of time. But no secure hospital bed was available so they each had to stay in jail for about a month while waiting for the assessment. Justice Desmarais held that keeping the men in jail while waiting for a hospital bed violated their Charter rights to liberty and not to be kept in jail arbitrarily. He noted that "[i]n some cases, accused persons who are presumed to be innocent may be detained for longer periods of time than any potential penalty they would have received after a finding of guilt." His decision gave the province six months to make sure that there were enough hospital beds available so that no one has to stay in jail for longer than a few days while awaiting a psychiatric assessment. This decision can be found at: http://www.canlii.org/on/cas/onsc/2004/2004o nsc12522.html Browning Mr. Browning worked for the government of Saskatchewan (the government). He became unable to work, and was paid benefits under the government’s disability income plan (the plan). The government then stopped paying benefits because the plan does not pay benefits to a person with a disability that is caused or contributed to by addiction to alcohol or drugs, unless the person is being treated for the addiction under a doctor’s supervision and with the employer’s approval. The government admitted that alcoholism is a disability within the meaning of the Saskatchewan Human Rights Code. The Saskatchewan Court of Appeal then found that the plan treated Mr. Browning differently solely because of his disability. People who have disabilities that are not related to an addiction get benefits under the plan as long as they have a medical examination and cooperate with prescribed treatment. The Court found that the plan puts an extra burden on persons whose disability is related to an addiction because they must realize that they have an addiction and seek treatment for it before they can receive benefits. The Court noted that this differential treatment was based on a stereotype that addiction is a person’s choice or a character weakness, rather than an illness that needs to be treated. Accordingly, the Court concluded that denying Mr. Browning disability benefits under the plan was discrimination. The Court ordered that his benefits continue. The decision in this case, Saskatchewan (Department of Finance) v. Saskatchewan (Human Rights Commission), can be found at: http://www.canlii.org/sk/cas/skca/2004/2004sk ca134.html Weller Mr. Weller is an adult who receives a social allowance under the Alberta Social Development Act (SDA). However, he was not paid the shelter allowance portion of the benefit payment because he lived with a close family member, even though he had to pay rent. The Alberta Human Rights Panel (the Panel) noted that a parent is not required to support an adult child. If Mr. Weller had paid rent to live in a house belonging to a person to whom he was not related, he would have been given the shelter allowance portion of his social allowance. Therefore, the Panel concluded that the SDA discriminated against Mr. Weller, based on his family status. This is a prohibited ground under the Alberta Human Rights, Citizenship and Multiculturalism Act. Accordingly, the Panel ordered that the Government of Alberta and Administrators of the Human Resources and Employment Programs pay the shelter allowance to Mr. Weller and all other adults who receive the social allowance and live with "blood relatives" to whom they pay rent. Weller v. Alberta Human Resources and Employment, Complaint #N2002/06/0065 (30 July 2004) This case is of special interest to ARCH because people who receive ODSP now do not get the full ODSP payment if they share a house and cooking duties with other people. ARCH agrees with the reasoning in Weller. Persons with a disability who pay rent should get the shelter portion of the ODSP payment, whoever they choose to live or cook with. *** ARCH at the Supreme Court by Roberto Lattanzio, Staff Lawyer On 4 November 2004, the Supreme Court of Canada heard the appeal of J.J. v. Nova Scotia (Minister of Health), regarding the statutory interpretation of Nova Scotia's Adult Protection Act (APA). ARCH made oral argument before the Court, representing two interveners in the case: the Canadian Association for Community Living and People First of Canada. The Court reserved its decision, meaning that it will decide the outcome and write reasons for decision in the next few months. At the heart of this appeal are issues of natural justice and fundamental rights and freedoms of persons with disabilities. The decision of the Nova Scotia Court of Appeal allows an interpretation of the statute which would take away the right of a person with a disability to due process, if the person is deemed to be "in need of protection" under the APA and is found to be incompetent. Courts would be denied the power to review, assess, and choose a plan that meets the best interests of that person. Ontario does not have a statute similar to the APA, but there have been two failed attempts to introduce similar legislation. An interesting aspect of this case is that counsel for the appellant, as well as counsel for the interveners, were all legal clinics. In addition to ARCH’s participation, the appellant was represented by Dalhousie Legal Aid Services in Nova Scotia and Advocacy Centre for the Elderly (ACE) intervened on its own behalf. This is indicative of the role that legal clinics play in providing access to justice for individuals when they are vulnerable. For further details on the issues and facts involved in this appeal, please see ARCH Alert June 18, 2004, "Fundamental Rights at Stake". http://www.archlegalclinic.ca/publications/arch Alert/2004/11_june18/02_jjUpdate.asp *** Canadian Human Rights Commission Consultation By Heidi Lazar-Meyn, Staff Lawyer On 24 November 2004, Nicole Chénier- Cullen, Director-General of the Employment Equity Branch of the Canadian Human Rights Commission (the Commission), and three of her colleagues met with Phyllis Gordon, Executive Director of ARCH, and myself to ask for ARCH’s comments regarding changes that the Commission has already made, and changes that it is planning to make. Murielle Brazeau, the Commission’s Deputy Secretary General for Operations, presented the suggested changes. Maureen Armstrong, Acting Director, Transition, Legal Services Branch, and Mervin Witter, Director of the Ontario Region, also participated in the discussion. This article gives general comments about the consultation. We provided feedback on specific issues but ARCH has not taken a position on, or endorsed, any of the changes at this time. One change that has been made is that people who want to file a complaint about discrimination now must write out the complaint themselves. The Commission says that this makes the process faster. The Commission agreed to consider how to provide appropriate accommodations to persons who are drafting complaints. ARCH also asked the Commission to ensure that people be able to change their complaints if they forgot something or didn’t get it right the first time. The Commission has organized new, topic- specialized teams of investigators, policy officers and lawyers. This means that, if you file a complaint that you were discriminated against because of disability, your complaint will be investigated by people who specialize in handling disability complaints. The Commission now wants to encourage people to settle their complaints through mediation even before filing a complaint. The Commission stated that mediation always is voluntary. The parties could decide that this settlement would be the final decision, and that it could not be appealed. ARCH requested the Commission to keep statistics as to the nature of settlements both at mediation and at conciliation (after an investigation), including how much money is involved in the settlements. The Commission is planning to spend more of its time studying, reporting on and teaching people and organizations the best ways of preventing discrimination. It also plans to represent fewer complainants at the Canadian Human Rights Tribunal so most people whose complaints go to the Tribunal will have to find their own lawyer or to represent themselves. This lack of representation is a serious problem that ARCH has commented on in the past. See "Changes to the Canadian Human Rights Commission process", ARCH Alert issue of 5 June 2003, at: http://www.archlegalclinic.ca/publications/arch Alert/2003/14_jun05/07_chrc.asp The Commission reported that they no longer have a backlog of complaints, and that the changes that they have made have had a positive impact on staff morale. ARCH recommended that the Commission examine all of its processes through an accommodation lens to ensure that barriers are not created as the Commission undertakes their reorganization. ARCH had tested the Commission’s website and the "phone tree" of recorded messages that people get when they telephone the Commission, and made suggestions to the visitors as to how they can be made easier to use. *** Postsecondary Education Review Submission By Roberto Lattanzio, Staff Lawyer The Postsecondary Education Review, headed by Bob Rae, the former Premier of Ontario, and supported by a seven-member advisory panel, has the task of reviewing and providing recommendations on the design and funding of Ontario's postsecondary education system to Premier McGuinty and the Minister of Training, Colleges and Universities. ARCH has made a written submission to the Postsecondary Education Review. Our submission is intended to provide the panel with an understanding of some of the barriers facing students with disabilities at the postsecondary level. In particular, we review the legal obligations that postsecondary institutions have towards students with disabilities, as well as provide an understanding as to some of the barriers that persist and difficulties in acquiring appropriate accommodations. We also express concerns about student funding that are specific to students with disabilities. To see a copy of ARCH’s submission, please use the following link: http://www.archlegalclinic.ca/aboutARCH/law Reform/A73_2004_003102/index.asp or you can print a copy from http://www.archlegalclinic.ca/aboutARCH/law Reform/A73_2004_003102/A73_2004_00310 2.pdf ARCH would like to express its gratitude and appreciation for the assistance that Carol Krause, a first year law student at Osgoode Hall Law School, provided in researching and drafting this submission. *** ODSP Update By Dianne Wintermute, Staff Lawyer Barriers to ODSP for Persons with Mental Health Disabilities ARCH, along with some representatives from Toronto’s community legal clinics, agency staff and other stakeholders, has been an active participant in an ODSP Round Table discussion about specific barriers to ODSP for persons with mental health disabilities. A small representative group met with a senior policy advisor in Minister Pupatello’s office in October 2004 to discuss service enhancements and accessibility concerns. The group tabled a report at that meeting. We were asked to provide additional information on some of the issues raised. A second paper now has been written, addressing the issues around the medical review and reassessment process for persons with mental health disabilities. In particular, the second report questions whether the current reassessment process, which in essence requires that an ODSP recipient re-apply for benefits, discriminates against persons with disabilities. Issues such as cost, both human and financial, the lack of community assistance and supports, and other barriers to maintaining eligibility for ODSP benefits are also identified. The first report, called "Proposals to Enhance Service & Accessibility for ODSP Applicants with Mental Health Disabilities," can be found on ARCH’s website under Law Reform. To see a copy of ARCH’s submission, please use the following link: http://www.archlegalclinic.ca/aboutARCH/law Reform/O00.353_2004_003103/index.asp or you can print a copy from http://www.archlegalclinic.ca/aboutARCH/law Reform/O00.353_2004_003103/O00.353_20 04_003103.pdf The second report also will be posted on our website, once it has been presented to the Minister of Community and Social Services. ODSP Action Coalition The ODSP Action Coalition (Coalition) is a group that includes people who receive ODSP benefits, community activists, community legal clinic workers and agency staff. They meet regularly to discuss issues that affect people who are applying for ODSP or who are trying to stay on ODSP benefits. One of the important issues that the group has been discussing is the rules around employment and earnings. The main concerns that the group has include: the low basic earnings exemption; the lack of interest in earning more than the flat rate exemption because of confusion and problems with the variable rate; the effect of earnings on rent that rises with income; the difficulty and delay in having benefits start again after an unsuccessful attempt to work; problems with the monthly income reporting process; fear of losing the drug card; lack of information about the Employment Supports Program, and lack of integration between the Employment Supports and Income Supports Programs. On 20 November 2004, a group of Coalition members met with Ministry representatives to discuss their concerns and make recommendations about earnings and employment. The group felt that their comments were well-received and that their concerns were heard. The Coalition also is addressing concerns about the ODSP application process and the Disability Adjudication Unit, and hopes to meet with government representatives early in 2005 to discuss these issues. The Coalition hopes to have a website up and running in the near future, where its recommendations to government, notices and minutes of meetings and other materials of interest to ODSP recipients will be posted. ARCH will provide more information about the Coalition in future issues of ARCH Alert. Deb Matthews Report Deb Matthews is an M.P.P. from London, Ontario. She also is the Parliamentary Assistant to Sandra Pupatello, Minister of Community and Social Services. In the summer and fall of 2004 Ms. Matthews traveled around Ontario, listening to the concerns of hundreds of low-income persons, community and grass-roots organizations, front-line workers and other advocates. Her goal was to look at how the Ontario Works and Ontario Disability Support Programs might be improved. The report, entitled "Review of Employment Assistance Programs in Ontario Works and Ontario Disability Support Program" was released on 1 December 2004. This report is an encouraging one, and presents some heartening recommendations for improving social assistance in Ontario. Most strikingly, this report recognizes the impact that the low social assistance rates have an impact on employability. The report acknowledges that people who are trying to manage their lives and provide for their families on low social assistance rates have little time or energy to make any changes that might be necessary to help them find work. Other recommendations include: - Accepting and understanding that people want to work and be economically independent, but there are many barriers that may prevent them from doing so; - Moving away from the punitive rules, tone and message that have come to stigmatize low-income persons; - Recognizing and respecting the diversity of recipients’ needs, and taking a more individualized, client-centred approach that addresses the real needs of people moving from assistance to employment; - Realizing and addressing the realities faced by persons who experience multiple barriers to employment, and understanding that for these individuals, social assistance may not be temporary and that they may need additional supports appropriate to their circumstances, especially if they are not eligible for ODSP benefits; - Allowing people to supplement their income by paying them to participate in programs that improve employability as well as employment income; - Streamlining of the ODSP application process; - Stopping the suspension of benefits for persons who have quit or have been fired from employment; - Getting rid of rules that punish or discourage family support; - Considering various options to loss of a drug card if someone becomes successfully employed; - Setting higher asset levels and limits; and - Changing the earnings exemptions policies to encourage entry into the workforce. The Report also recognizes the cycle of poverty that has been inflicted on children in low-income families, in part because of the National Child Benefit Supplement claw-back from families on social assistance by the province. Ms. Matthews recommends that the child benefit should "stay with the child, regardless of the source of income of the parents". ARCH commends Ms. Matthews for her far- reaching recommendations that, if adopted, would significantly improve the lives of Ontario’s most vulnerable people. We look forward to the speedy implementation of this report. You can find the report at http://www.mcss.gov.on.ca/NR/MCFCS/OW/ Report/EmploymentAssistanceProgram.pdf Overpayments Update The ODSP has hired a number of new staff to conduct reviews of client files (Consolidated Verification Process or CVP). These reviews sometimes will show that clients have not been receiving all of the benefits to which they may be entitled (for example, special diet or transportation benefits). However, the opposite result sometimes happens, and it may be found that people have received benefits to which they were not entitled. This can result in an overpayment being declared, and money taken from recipients’ cheques to repay their "debt". If an overpayment is declared, the person who received the benefits has the right to know the details of how that overpayment has been calculated. There may be errors in the calculation, or information missing from the file. It may be that the additional information can clear up the problem. Recipients who have been paying down debts that they agree are owing to ODSP should be able to get a repayment schedule that will show how much has been paid, and how much of the debt remains to be paid. There may also be problems with "portability". Not only does the overpayment follow people if they move, but now an overpayment that is owed to Ontario Works will continue to be collected even if the recipient transfers to Ontario Disability Support Program (and vice versa). Since the rules for the two programs are different, much confusion can result. It appears that the Ministry of Community and Social Services will also be taking an aggressive approach in collecting overpayments from former recipients. Starting in early 2005, a federal overpayment recovery unit will use people’s income tax refunds to pay back OW and ODSP overpayments if the person does not agree to make voluntary payments. If a person does not agree that there was an overpayment and complains to CRA, the complaint will be referred back to the local social assistance office to make sure that there is really a debt owing. In all cases where an overpayment has been assessed, we urge people to contact their local community legal clinic for advice or assistance. New Policies Effective 1 November 2004, routine eye examinations are no longer covered under OHIP for adults between 20 and 64 years of age. But there is some good news for OW and ODSP recipients. A new policy states that social assistance recipients will continue to be eligible for eye examinations once every 24 months, as a mandatory benefit under both programs. Social assistance recipients must show their health and drug cards in order to get coverage for eye examinations. In addition, a new policy states that heating costs should be treated as a health-related discretionary benefit. If someone owes money on heating bills and there is a threat that their heating may be cut off, both ODSP and OW workers may issue discretionary benefits to ensure that hydro and/or heating stay on. These discretionary benefits may also be given to pay reconnection charges or deposits. There are other sources of money to help people deal with heating problems. A new $2 million Energy Assistance Fund may help on an emergency basis, while people with short- term back payment problems may be able to get funds from the new Provincial Rent Bank. Payments from either of these sources are not considered income for the purposes of OW or ODSP. Finally, the Ministry of Community and Social Services may be considering a change to the way that Registered Educational Savings Plans are treated under OW and ODSP. On 7 October 2004, the Toronto Star reported that Minister Pupatello said that forcing people to cash in RESPs in order to qualify for social assistance benefits is a "dumb rule" that is contrary to the purpose of the social assistance system. She also stated that the rule would "likely" be eliminated by the end of the year. This would be a very positive step that would help children in low-income families move beyond the cycle of poverty. *** Guides Addressing Accessibility By Heidi Lazar-Meyn, Staff Lawyer New Services/Resources Guide The Accessibility Directorate of Ontario, Ministry of Citizenship and Immigration, recently released the third edition of its ‘Guide to Government of Ontario Programs and Services for People with Disabilities’. The Guide provides an extensive listing of programs and services offered or paid for by the government of Ontario for persons with disabilities who are Ontario residents. These include education and training programs; services for children, youth, women and seniors; employment and income supports; health and community services; rights and justice; tax benefits; accessibility initiatives; transportation, sports and recreation and tourism, as well as more general information. To get a printable copy, visit: http://www.equalopportunity.on.ca/eng_g/doc uments/servicesguide.doc CTA Checklist In response to a recent case in which a traveller with a developmental disability was left alone in an airport overnight when his flight was cancelled, the Canadian Transportation Agency (CTA) has issued a "Reservation Checklist" to help travel agents identify the specific needs of travellers with disabilities. The checklist has 22 sections which cover such areas as the format in which to provide information to the traveller, seating, carriage of an attendant, oxygen, mobility aids, and service animals and types of assistance to be provided by the carrier’s staff both while travelling and while in the terminal or airport. Perhaps most important is Item 22, a request for written confirmation of all of the services to be provided by the carrier. We hope that this information also will be provided in alternative format on request. The checklist can be downloaded at: http://www.cta- otc.gc.ca/access/reservation/checklist_e.pdf CTA Pamphlet The CTA also has issued a pamphlet called "Air Travel Accessibility Regulations - Summary". This pamphlet lists the services and information that Canadian air carriers with airplanes that hold more than 30 people are required to provide to travellers with disabilities on flights within Canada. The traveller should notify the carrier at least 48 hours in advance of the flight. But even if the traveller notifies the carrier less than 48 hours before the flight, the airline must make a reasonable effort to provide the necessary services. These include accepting the traveller’s judgement as to the services necessary, telling travellers which seats are the most accessible, providing assistance in the terminal and on the airplane and allowing travellers to use their own manually-operated wheelchairs at least as far as the boarding gate. The pamphlet also addresses carrying properly-trained service animals and many technical and mobility aids at no charge. If a technical or mobility aid is taken apart the carrier must reassemble it promptly. If it is damaged or lost the carrier must immediately provide a temporary replacement and fix or replace the aid promptly. This pamphlet can be downloaded at: http://www.cta-otc.gc.ca/access/regs/air- regs_e.pdf and is available in alternative formats on request from the CTA. The CTA can be reached by telephone at 1-888-222-2592, by TTY at 1-800-669-5575 and by fax at (819) 953-8353. *** Federal/Provincial/Territorial Meeting on Universal Child Care by Roberto Lattanzio, Staff Lawyer The federal, provincial, and territorial Ministers responsible for Social Services met in Ottawa during the first week of November 2004 to discuss the development of a new national system of early learning and child care. The Ministers agreed that the new system should be based on quality, universal inclusion, accessibility, and a developmental focus. They also agreed on the need for government flexibility, strong accountability, and measurable goals. This new system is to be put in place throughout Canada, except for Québec, which already has a provincial child care system. It is not clear what these principles encompass, and how they relate to children with disabilities. A meeting will be held in January 2005 to continue discussions in more detail. Inclusion of children with disabilities, and the provision of supports, must be explicitly recognized in any national child-care strategy to be adopted. The meeting also resulted in a reaffirmation of the federal, provincial and territorial commitment to full inclusion for persons with disabilities, and the principles set out in the In Unison agreements. This meeting followed the release of a report by the Organization for Economic Co- operation and Development (OECD), stating that Canada lags behind other industrialized nations in providing regulated child-care services. The report states that child-care services in Canada are "fragmented" and recommends that funding be provided at average OECD levels. The Québec public child-care system is an exception to some of the criticisms, and was viewed as a possible model for the rest of the country. On a somewhat more positive note, the OECD reports that the "trend in recent years in child- care has been inclusion of children with special needs in regular programs; all provinces/territories have provisions for extra supports for inclusion (although these may not always be available for eligible children)". The OECD report, titled OECD Thematic Review of Early Childhood Education and Care, Canadian Background Report, is available online at: http://www.oecd.org/dataoecd/41/36/3385219 2.pdf For more on child-care in Canada, visit the Child Care Advocacy Association of Canada website at : http://www.childcareadvocacy.ca/; and the Child Care Research and Resource Unit website at : http://www.childcarecanada.org/index.shtml See also a policy document released by the Child Care Advocacy Association of Canada titled From Patchwork to Framework: A Childcare Strategy For Canada, September 2004, online at : http://www.childcareadvocacy.ca/resources/p df/framework_cc.pdf *** New Policy on Secondary School Literacy Graduation Requirements By Roberto Lattanzio, Staff Lawyer On 13 October 2004, the Ministry of Education released Policy/Program Memorandum No. 127, replacing its 2001 predecessor. This policy document sets out the three methods of meeting the secondary school literacy graduation requirement. The first is the Ontario Secondary School Literacy Test (OSSLT). The second is the Ontario Secondary School Literacy Course (OSSLC). Principals now have the discretion to allow students to enrol in OSSLC before having taken the OSSLT a second time. The third is the Adjudication Process, introduced in June 2004. The policy also addresses the provision of accommodations for meeting these requirements, as well as the processes for obtaining exemptions and deferrals. Accommodations for OSSLT The Guide for Accommodations , Special Provisions, Deferrals and Exemptions (Guide) released by the Education Quality and Accountability Office (EQAO) provides detail on the permitted accommodations for writing the OSSLT. Generally, in order for an accommodation to be granted, it must be specified in the student’s Individual Education Plan (IEP), and must be in accordance with Memorandum No. 127 and the EQAO Guide. However, the two do not always agree, as noted below. According to the policy memorandum, requests for accommodations that are not in a student’s IEP, or for a student who does not have an IEP due to a recent transfer from another jurisdiction, can be made by an adult student, a parent or the principal to a supervisory officer. However, an inconsistency arises between the policy memorandum and the EQAO Guide. In the case of the transfer student, according to the EQAO Guide, a request can be made by an adult student or a parent to the principal, rather than to the supervisory officer. The policy memorandum and the EQAO Guide agree that, if the accommodation is needed due to a temporary condition or circumstance, the request can be made to the principal. If the principal does not approve the request it can be appealed to the supervisory officer. In all cases, the decision of the supervisory officer is final. If a student requires more than double the time allowed to complete the test, or if the accommodations required are not listed in the EQAO Guide but are in the student’s IEP, a request can be made to the Chief Assessment Officer of the EQAO. The decision of the Chief Assessment Officer is final. Accommodations that modify the content of the test or performance criteria are not permitted. For a copy of Memorandum No. 127, visit the Ministry of Education website at: http://www.edu.gov.on.ca/extra/eng/ppm/127. html A copy of the Guide for Accommodations? Special Provisions? Deferrals? and Exemptions can be downloaded at: http://www.eqao.com/pdf_e/04/04p018e.pdf *** Library Update: Adaptive Technology By Lishanthi Caldera, Reference Centre Co- ordinator APHont: A Font that Is Easy to Read APHont is a font developed to increase reading speed, comprehension and comfort for persons who prefer to read large print. Some of its differences from other fonts are that APHont provides more even spacing between letters; its letters are wider, heavier and more open, and punctuation marks are larger. The font comes in regular, bold, italic and bold italic styles. APHont was developed by the American Printing House for the Blind (APH), and can be downloaded free at http://www.aph.org/products/aphont.html. Before downloading APHont you must certify that the font is going to be used for or by a person with a visual impairment. Resources on Adaptive Technology We have many books on adaptive technology in our library. Here are a few examples: You're on the Move! : Vehicle Choices and Adaptive Driving Equipment for Passengers and Drivers with Disabilities Transportation Action Now (2000) The Use of Information and Communication Technology (ICT) to Support Independent Living for Older and Disabled People Curry, Trejo Tinoco and Wardle (2002) Access-Ability: Making Technology More Useable by People with Disabilities John Gill (2004) Go for It : A Guide to Choosing and Using Assistive Devices/Canada Minister of Public Works and Government Services Canada (2002) The library and resource centre are open from 10 a.m. to 4 p.m. on weekdays. We encourage you to come in and look at our books and other resources. You can search our database at http://www.archlegalclinic.ca/search/index.asp for the complete list of the library collection. How to get to ARCH ARCH is located at 425 Bloor Street East, Suite 110, Toronto. We are in the building at the southeast corner of Sherbourne Street and Bloor Street. We are less than 100 meters from the Sherbourne TTC station. To find us, go out the Sherbourne Street door and turn right. ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01. Editor: Heidi Lazar-Meyn Reference Centre Co-ordinator: Lishanthi Caldera Production & Circulation: Theresa Sciberras We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482- 1254, e-mail: scibert@lao.on.ca Website: www.archlegalclinic.ca