ARCH Disability Law Centre 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.archdisabilitylaw.ca ARCH Alert December 19 2005 INSIDE THIS ISSUE - Federal Election Offers Opportunities to Make Difference - AODA Accessibility Standards Advisory Council Members Appointed - Litigation Team Announcement - Bill C-2 to Help Witnesses - Bill 36 Has LHINs Taking over Local Health Services - Education Update - Changes to Disabled Persons Parking Permit Program - Health Professions Regulatory Advisory Council Holds Consultation - Human Rights Cases Argued at Supreme Court - CLEONet Website - BC Supreme Court Finds Discrimination in not Allowing Family Members to be Hired as Caregivers - Closure of Residential Institutions Challenged - ODSP Update - Actions Left Unfinished when Parliament Dissolved - Survey on Consumer Involvement in Health Policy - Large Print Version of ARCH Alert Now More Accessible - ARCH's New Website under Construction Federal Election Offers Opportunities to Make Difference By Heidi Lazar-Meyn, Staff Lawyer and Editor, ARCH Alert On Monday 23 January 2006, all adult Canadian citizens will have the opportunity to vote for the Member of Parliament who stands for the government of their choice. Voting is an important right. ARCH Alert hopes that every eligible voter will vote, whether in person at the polling station in your riding on Election Day, at one of the advance polls, or by mail. To find out how to register to vote and where to vote, you can contact Elections Canada at: Mail: 257 Slater Street Ottawa, Ontario K1A 0M6 Telephone: 1.800.463.6868 TTY: 1.800.361.8935 Fax: 1.888.524.1444 Website: http://www.elections.ca/ Another way to make a difference is to volunteer to work on a candidate's campaign. Anyone can do this, including persons under 18 and new Canadians. During election campaigns there is a lot of work to do. Everyone's abilities are needed and welcome. Volunteering on a campaign gives you the opportunity to share ideas on what the federal government should do. It also will help you if you want to become an active member of the riding association of the party that you support. The riding association helps to choose candidates and to set the party platform. The special January 2006 issue of ARCH Alert will report what the parties say about issues that are important to persons with disabilities. Another way that you can find out about these issues is by clicking the "Election 2006" link on the website of Council of Canadians with Disabilities: http://www.ccdonline.ca/ ARCH Alert will not recommend which candidate or party to vote for. That is your decision. *** AODA Accessibility Standards Advisory Council Members Appointed By Heidi Lazar-Meyn, Staff Lawyer Sandra Pupatello, Minister of Community and Social Services, Minister Responsible for Women's Issues, and Minister Responsible for Ontarians with Disabilities, has made the first appointments under the Accessibility for Ontarians with Disabilities Act ("AODA"). The Accessibility Standards Advisory Council ("ASAC") will advise her on how to develop accessibility standards, the progress made by standards development committees, accessibility reports, public education programs and other matters. David Onley, a journalist who is an advocate on disability issues, was appointed as chair of the ASAC. Tracy MacCharles, a human resources specialist and disability advocate, is the vice-chair. The other members of the ASAC are David Borthwick, Robert Bailey, Tyler Campbell, Uzma Khan, Dean P. LaBute, Richard (Ric) E. McGee, Mike Murphy, Judith Parisien, Jutta Treviranus, Jeffrey Willbond and Dr. Kathryn Woodcock. As required by the AODA, the majority of ASAC members are persons with disabilities. You can find out more about the persons who were appointed on the Ministry of Community and Social Services website: http://www.mcss.gov.on.ca/accessibility/en/ne ws/backgrounders/051213.htm ARCH is pleased that the provincial government is working towards making the AODA's promise of a fully accessible Ontario a reality. *** Litigation Team Announcement By Phyllis Gordon, Executive Director We are happy to announce that Debra McAllister recently joined ARCH's litigation team. Debra is an experienced senior counsel who has worked for many years with the federal Department of Justice. Her practice has focused on the Canadian Charter of Rights and Freedoms ("Charter") and other constitutional, human rights and public law matters before various administrative tribunals, trial and appellate courts. She has conducted many complex trials and appeals, including several well-known constitutional cases. Debra has done advisory work on constitutional and public law issues for the Aboriginal Self-Government Group and she served for many years as an expert contact for Justice colleagues on Charter issues. Debra has had some exposure to the community legal clinics when she was a student at Osgoode Hall Law School, and attended the student intern program at Parkdale Community Legal services. She has also completed a master's degree in constitutional law. In addition to her litigation practice, Debra has been actively involved in legal education throughout her career. She has written extensively on Charter and litigation issues. She is the author of numerous articles and two textbooks, including a well-known text called Taking the Charter to Court: A Practitioner's Analysis. She has also co- edited three collections of essays on constitutional law. Debra is the Managing Editor and co-founder of the National Journal of Constitutional Law. She has spoken widely on legal issues and also has developed and organized numerous legal education programs, including the Annual Charter Conferences held by the Ontario Bar Association. In addition to the vast constitutional and practical litigation experience that Debra adds to our team, she also brings a strong commitment to and keen interest in making the Charter work for all Canadians, and particularly persons with disabilities. She is looking forward to working with ARCH clients and our legal team in advancing our joint mandates and goals. *** Bill C-2 to Help Witnesses By Nevina Crisante, Counsel to the Ontario Victim Services Secretariat, Ministry of the Attorney General Special to ARCH Alert Testifying in criminal court can be very frightening. Parliament has tried to make it easier for vulnerable witnesses to take part in the criminal justice system by passing Bill C-2 ("the Bill"). The full name of the Bill is "An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act." It is expected that on 2 January 2006, the second stage of Bill C-2 ("the Bill") will be proclaimed. This article focuses on the legislative amendments that apply to persons with disabilities in the testimonial aids sections of the Criminal Code, as contained in the Bill. The Bill contains other legislative changes to the Criminal Code which have not been in included in this brief review. Testimonial aids are measures that help witnesses who are giving evidence in criminal proceedings. These measures existed before the proclamation of Bill C-2 but they applied to only a small category of offences (predominantly sexual offences), and to a small category of witnesses (generally witnesses under the age of fourteen years or persons with a mental or physical disability). The presiding justice could choose whether to make an order for a testimonial aid. Provisions of Bill C-2 Section 486 allows the Court to exclude members of the public from the courtroom while a witness is testifying. This new provision has been expanded to encompass all offences where a person under the age of 18 years must testify. Previously, the interests of persons under the age of 18 years were safeguarded only where the accused was charged with sexual offences and offences of violence. The test for the order remains the same: the order must be in the interest of public morals, maintenance of order, or the proper administration of justice, and the presiding justice must exercise his or her discretion in conformity with the Canadian Charter of Rights and Freedoms. The party applying for the order bears the burden of establishing that the rule of openness (the right of the public to observe criminal proceedings) should be displaced. An order excluding the public may properly be made, for example, where the complainant in a sexual assault offence would otherwise be too nervous to give evidence. In such circumstances the presiding justice may be satisfied that the order was necessary for the proper administration of justice. Section 486.1 allows the Court to make an order allowing a support person to be present and to be close to a witness while the witness testifies in criminal proceedings. The amendment makes three very significant changes. First, the new provision applies to any proceedings, rather than just the narrow group of criminal offences previously listed. Second, upon hearing the application, the presiding justice "shall" grant the order for a support person for a witness who is under 18 years of age, or who has a mental or physical disability, unless the order would interfere with the proper administration of justice. Third, the qualifying age for the witness has been changed from "under 14 years" to "under 18 years". Moreover, the provisions now may be applied to support applications for other adult witnesses. However, the Court retains the discretion to decide whether to allow a support person to assist other adult witnesses during the course of their testimony. The order will generally be requested by the prosecutor but may be requested directly by the witness. The support person may not be a person who will be a witness in the proceedings, unless the justice believes it necessary for the proper administration of justice. The justice may order that the support person and the witness not communicate with each other "while the witness testifies". If a witness in criminal proceedings would prefer to testify with a support person, they should bring this to the attention of the prosecutor or Victim Witness Assistance Program ("VWAP") staff member as soon as possible. Section 486.2 provides for a witness to testify from behind a screen or outside of the courtroom by closed-circuit television ("CCTV"). Most courthouses in Ontario are equipped with screens and CCTV. The screen is a panel made of shaded plexiglass, usually placed in front of the witness while they are testifying. The screen blocks the witness' view of the accused, reducing the anxiety which is often associated with having to face the accused. The witness cannot see through the shaded screen but onlookers have a clear view of the witness. CCTV operates in a similar fashion, in allowing the witness to testify without being forced to face the accused. In such cases the witness is not physically present in the courtroom with the accused, presiding justice and court staff. The witness testifies in the security of a CCTV room and their evidence is watched by the presiding judge, the accused and, in some cases, the jury on a television monitor which is located inside the courtroom. These testimonial aids previously were available only to complainants who were under the age of 18 or who had a mental or physical disability and only when the accused was charged with one of a narrow group of listed offences. The amendment expands the provision to any criminal offence and to all witnesses. The order is generally applied for by the prosecutor, but may also be brought directly by the witness. Where the witness is a child or a person with a mental or physical disability, the justice now must grant the order, unless it would interfere with the proper administration of justice. Prior to the amendment, the applicant had to satisfy the court that the order was necessary to obtain a full and candid account of the acts complained of from the complainant. Where the application pertains to other adult witnesses, the test is discretionary and the applicant has to satisfy the Court that the order is necessary "to obtain a full and candid account". Section 486.3 allows a judge to prevent the accused from personally cross-examining vulnerable witnesses, and to appoint a lawyer to conduct such cross-examinations. The amendment expands the applicability of this section to any criminal offence, rather than to the narrow group of offences previously listed. Where the witness is a child or a person with a disability, the justice now must grant the order, unless such an order would "interfere with the proper administration of justice", and the Court shall appoint a lawyer to conduct the cross-examination. For all other adult witnesses there is no presumption in favour of granting the order. Rather, the applicant must satisfy the court that the order is "necessary to obtain a full and candid account of the evidence". However, where the witness is the victim of a criminal harassment (stalking) charge there is a presumption in favour of granting the order for all witnesses. Section 486.5(1) allows a justice to ban the publication of the name of the victim or witness, or any information that could identify the victim or witness, for certain criminal offences, in addition to sexual offences referred to in section 486.4(1) and child exploitation offences referred to in section 486.4(3). An application can be made by the prosecutor or directly by the witness. The justice may make such an order where they are satisfied that it would be necessary for the proper administration of justice. Where a witness has concerns about privacy, they should bring these to the attention of the prosecutor or VWAP staff member as soon as possible before testifying. Sections 715.1 and 715.2 cover the use of video-recorded evidence by a witness in criminal proceedings. Video-recorded evidence is admissible in relation to any criminal offence if it was made within a reasonable time after the incident and the witness adopts the contents while testifying, unless the presiding justice is of the opinion that its admission would interfere with the proper administration of justice. Section 715.1 applies to witnesses who were under the age of 18 years when the alleged offence was committed. Section 715.2 applies in any proceeding where it may be difficult for the witness or victim to give evidence because of a mental or physical disability. In such cases, the video-recorded evidence of the witness will be admissible if the witness or victim adopts it. This does not mean that the video-recorded evidence is admitted in the absence of the witness. Rather, it allows the witness to adopt the contents of the video after it has been played in the courtroom, instead of having to repeat the evidence while testifying. The witness still will be subject to cross-examination on the contents of the video-recorded evidence during the criminal proceedings. Advice to Witnesses It is very important for prospective witnesses to meet with the prosecutor or VWAP staff member well in advance of the court appearance. During the meeting, prospective witnesses can talk about their needs and concerns with the criminal justice system professionals who are there to help them. A visit to the courthouse, well before the hearing date, allows witnesses to familiarize themselves with the courthouse facilities. One of the best ways to reduce the anxiety of having to testify is to conduct a "trial run" in the courtroom. Visiting the courthouse also helps witnesses find out if any accommodations will be needed. You should ask for them before the date for trial or preliminary hearing. For example, you should let the court know if you will bring a guide dog, use a wheelchair, need extra breaks, or want a support person or other testimonial aids. *** Bill 36 Has LHINs Taking over Local Health Services By Heidi Lazar-Meyn, Staff Lawyer According to the government, the purpose of Bill 36, the Local Health System Integration Act, 2005 ("the Bill"), is to set up a health system in which all parts work together to make Ontarians healthier. If enacted, the Bill will continue the 14 local health integration networks ("LHINs") that recently were set up by the Ontario government. Each LHIN covers one region. The job of a LHIN is to decide what health services people in that region need, and plan how to cover those needs. The government claims that LHINs will provide better and more efficient access to health services, and that they will get hospitals, long-term, home care, mental health and addiction, community health and rehabilitation centres, community support services, and the Community Care Access Centres ("CCACs") to work together. If the Bill passes, the LHINs will have to decide which services to fund with the money that they will be given. Another change is that, instead of having 42 CCACs as we do now, there will only be 14 - one CCAC in each LHIN. The LHINs also will have the power to make other organizations that provide health services "integrate", by closing them down or making them become part of another organization. The Bill had its first reading on 24 November 2005. On 7 December 2005 it had its second reading, and was referred to the Standing Committee on Social Policy. We will tell you more about the progress of this Bill and about serious structural changes in health services in future issues of ARCH Alert. *** Education Update By Roberto Lattanzio, Staff Lawyer OHRC Complaints on Safe Schools In July 2005, the Ontario Human Rights Commission ("Commission") started its own complaint against the Ontario Ministry of Education and the Toronto District School Board ("TDSB"). The Commission alleges that the Safe Schools Act ("Act") and related school policies are applied in a way that discriminates against students with disabilities, as well as students from racialized communities. The Commission settled with the TDSB in November 2005, and is still in negotiations with the Ministry of Education. The TDSB, in the settlement agreement, "acknowledges a widespread perception that the application of Ontario's school disciplinary legislation, regulations and policies can have a discriminatory effect on students from racialized communities and students with disabilities and further exacerbate their already disadvantaged position in society." As part of the settlement, the TDSB undertakes to collect and analyze data on suspension and expulsions from school under the Act. ARCH is concerned that no undertaking on data collection regarding exclusions from school was agreed upon. ARCH receives many calls from the community regarding children with intellectual disabilities who are unable to access the public school system. The terms of settlement can be viewed at the following link: http://www.ohrc.on.ca/english/news/e_bg_tds b-settlement-terms.shtml In October 2005, private complaints that were made to the OHRC against the Dufferin-Peel Catholic District School Board, on the discriminatory impact of safe schools policy on students with disabilities and from racialized communities, also settled. Although the terms of settlement are not available, the OHRC reports that one of the key issues raised by the complainants was that mitigating factors were not sufficiently considered before a student was suspended or expelled. Safe Schools Action Team Holds Consultations The Safe Schools Action Team, created in December 2004, held six public consultations, in group discussion format, across Ontario in late November and early December 2005. These consultations were to review the Act and its effect over the last five years. ARCH was present at the consultations. ARCH Alert will report on the recommendations to the Minister of Education that come from these consultations once they become available. Bill 52 The Ontario Government introduced Bill 52 ("the Bill") on 13 December 2005. The Bill, if enacted, would raise the age until which students must attend school from 16 to 18. It also authorizes the making of regulations which would make the issuance of driver's licences conditional on school attendance. It is important that if the compulsory age is raised, and consequences are attached to non-attendance, that appropriate and responsive programs and services are put in place that address the particular needs of pupils with disabilities in accessing education services. ARCH Alert will monitor and report on developments on this Bill. To view Bill 52, use the following link: http://www.ontla.on.ca/documents/Bills/38_Pa rliament/session2/b052_e.htm *** Changes to Disabled Person Parking Permit Program by Lana Kerzner, Staff Lawyer The program which issues parking permits for some persons with disabilities in Ontario will undergo substantial changes. As of 16 January 2005, what has been known as the "Disabled Person Parking Permit program" will be renamed the "Accessible Parking Permit program". Changes to the program include the following: - There will be a more detailed and expanded definition of persons with disabilities who are eligible for the permits; - Persons with permanent disabilities will no longer be required to obtain a regulated health practitioner's signature to renew their permit every five years; - New permit security features have been added; and - New Traveller Permits will be issued that can be left on cars parked at Ontario airports, so that travellers can take their regular permit with them to use at their destination. Some features of the new program are summarized in a 1 December 2005 statement by Minister of Transportation Harinder Takhar, and in a Ministry of Transportation press release. The Ministry's backgrounder states that "improvements to the application and production processes and updated technology have cut permit processing time in half", to one month. The Minister's statement and the press release and backgrounder are available on the Ministry's web site at: www.mto.gov.on.ca Members of the public who want more information can call the Driver and Vehicle Licensing Call Centre at 416.235.2999 or 1.800.387.3445. A further article on the new program will be in a future issue of ARCH Alert, as ARCH obtains further details. *** Health Professions Regulatory Advisory Council Holds Consultation By Tess Sheldon, Staff Lawyer The Health Professions Regulatory Advisory Council (HPRAC) provides independent policy advice to the Minister of Health and Long-Term Care about the regulation of health professions in Ontario. In September 2005, HPRAC began the public part of a consultation, which will address issues such as the effectiveness, fairness, flexibility and efficiency of the Regulated Health Professions Act ("RHPA"). The RHPA applies to members of 23 health professions, including physicians, nurses, dentists, psychologists, optometrists and physiotherapists. The RHPA includes a procedural code, which sets common rules of procedure for Colleges for each of the professions. The Colleges are not teaching institutions, but are instead the organizations that set standards for their profession and ensure compliance with the RHPA. To be licensed to practice a health profession, a person must be a member of the College that regulates that profession. In particular, HPRAC asked for recommendations about the Colleges' programs on quality assurance and patient relations, and the Colleges' procedures on complaints about, and discipline of, their members. Among other groups, ARCH Disability Law Centre made an oral and a written submission to HPRAC, after seeking input from its board and community members. ARCH's submission included eight points, each designed to protect and promote the equality, independence and inclusion of persons with disabilities: 1. Barriers experienced by persons with disabilities in relation to regulated health services must be removed, and new barriers must not be erected. 2. All types of abuse of persons with disabilities by regulated health professionals must be addressed proactively and directly. 3. The complaints process, including mediation, must be more accessible to persons with disabilities. Protection from reprisal must be clear and well-publicized. 4. Health professionals with disabilities must be accepted as full participants in their chosen profession. 5. Health care consumers, including persons with disabilities, must be represented on the HPRAC as well as on College councils, committees and panels. 6. Language must be used that does not reinforce outdated stereotypes about persons with disabilities. 7. All communications must be provided in formats that are accessible to persons with disabilities. 8. Special attention must be paid to the individual experience of persons with disabilities, including women with disabilities and persons of colour with disabilities. You can find more information about the HPRAC consultation at: http://www.hprac.org/english/pageDisplay.asp ?webDocID=5359 You can read ARCH's submission to the HPRAC at: http://www.archdisabilitylaw.ca/aboutARCH/la wReform/A73_2005_003343/index.asp *** Human Rights Cases Argued at Supreme Court By Lesli Bisgould, Staff Lawyer On 12 December 2005, the cases that have come to be known as Werbeski (Tranchemontagne v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services, and Werbeski v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services) were argued at the Supreme Court of Canada. The Empowerment Council, Centre for Addiction and Mental Health, was there as an intervener. ARCH and co-counsel East Toronto Community Legal Services represented the Empowerment Council to ensure that the Court heard its concerns and perspectives on these important cases. The cases will determine whether tribunals can decide issues under the Ontario Human Rights Code. Persons with disabilities often have their legal issues determined at tribunals, such as the Social Benefits Tribunal, the Consent and Capacity Board, and the Health Services Appeal and Review Board. The Empowerment Council argued that persons who find themselves before these tribunals and who have related human rights concerns should be able to raise them there, while they are already before the relevant tribunal. If they are not allowed to do so and must instead start a separate human rights complaint, that could lead to harmful delay and uncertainty. The arguments made by the Empowerment Council are similar to those made by the Canadian Human Rights Commission, the Ontario Human Rights Commission, the Advocacy Centre for Tenants Ontario and the African Canadian Legal Clinic, all of which intervened in the cases as well. There is more information about these cases in the June 2005 and November 2005 issues of ARCH Alert. The Court's decision is not expected for several months. When the decision is made we will write about it in ARCH Alert. *** CLEONet Website By Fiona MacCool, Project Manager, CLEONet "CLEONet - Find, share and learn about community legal education in Ontario" Do you need information about what happens when a person with a disability reports abuse to the police? Do you want to know more about the new Special Diet Allowance regulations, which affect people on Ontario Works ("OW") and the Ontario Disability Support Program ("ODSP")? Or, would you like a ready-made presentation on the extra benefits available under OW and ODSP that many people don't know about? Then check out www.cleonet.ca. On 14 November 2005, more than 100 people helped Community Legal Education Ontario (CLEO) celebrate the launch of CLEONet-an online clearinghouse for community legal education. Ontario's community organizations and legal clinics now have a central place on the Internet to find community legal education resources, news, and events. "CLEONet is about increasing access to justice for the most vulnerable communities who face barriers," says Julie Mathews, CLEO's Executive Director. "Those who work with low-income and disenfranchised people in crisis situations will have access to a huge wealth of information and education materials in one place for the first time. We're just thrilled." Unique in Canada, CLEONet is an easily searchable collection of hundreds of resources, news items, and events on a wide range of legal topics, and in a number of languages. Community legal education materials are produced by organizations and legal clinics across Ontario, such as ARCH Disability Law Centre, Education Wife Assault, and the Centre for Equality Rights in Accommodation. Through CLEONet, these and dozens of other organizations will share their materials and find out about each other's work. If you'd like more information, please contact Fiona MacCool, the CLEONet Project Manager, at cleonet@cleonet.ca or 416.408.4420. Editor's note: ARCH Disability Law Centre is proud that we are the first organization to be featured in the Community Spotlight section of CLEONet, and that our Fact Sheets on Abuse and Persons with Disabilities were featured at the launch of CLEONet. *** BC Supreme Court Finds Discrimination in not Allowing Family Members to be Hired as Caregivers By Tess Sheldon, Staff Lawyer The recent case of Her Majesty the Queen v. Hutchinson et al. is about the complaint of Ms. Hutchinson, who receives funds from Choices in Support for Independent Living ("CSIL") a British Columbia program that pays for attendant services. She wants to use those funds to hire her father as her caregiver. This case may be important for persons with disabilities in Ontario who participate in the Direct Funding program. Cheryl Hutchinson is a 35-year-old composer who has had physical impairments all her life due to cerebral palsy. She needs help with personal care, including bathing, dressing, transfers, mobility and meal preparation. Since she was 13 years old, Philip Hutchinson, her father, has been her primary caregiver. This has been his full-time job and his only source of income has been social assistance benefits. CSIL was designed by the BC Ministry of Health ("Ministry") to give choice and control to people with severe disabilities over the hiring, training, paying and management of their caregivers. Persons who are chosen to participate in CSIL must have the ability to direct their own care. CSIL pays them directly so that they can hire and pay the caregivers of their choice. Ms. Hutchinson was accepted into the program in May 1998. She hired a number of caregivers but none of them worked out for various reasons. As a result, her father continued to be her primary caregiver. However, Ministry policy did not permit persons who receive CSIL funds to use them to pay relatives. Ms. Hutchinson asked for an exemption from that policy so that she could use her funding to pay her father as her primary caregiver. The BC Minister of Health refused her request so both Ms. Hutchinson and Mr. Hutchinson complained to the BC Human Rights Tribunal ("Tribunal"). The Tribunal found that the rules that prevented Ms. Hutchinson from hiring her father violated the BC Human Rights Code. The Tribunal found that the Ministry's blanket rule preventing persons from paying CSIL funds to family members who are caregivers discriminated against Ms. Hutchinson on the grounds of family status and disability and against Mr. Hutchinson on the ground of family status. The Tribunal noted that Mr. Hutchinson was denied employment solely on the basis of his family status, and without consideration of his personal attributes and skills. The Tribunal ordered the Ministry to stop discriminating against the Hutchinsons, change its policy to allow CSIL funds to be paid to family members, and pay compensation to both Ms. Hutchinson and her father. The Ministry asked for judicial review of the Tribunal's decision. The BC Supreme Court found that the Tribunal properly ordered the Ministry to permit Mr. Hutchinson to qualify as a caregiver entitled to receive CSIL payments for the care that he provides to his daughter. The BC Supreme Court upheld the Tribunal's finding that a case of discrimination had been established against the Ministry and upheld the Tribunal's order to pay compensation to both Ms. and Mr. Hutchinson. In Ontario, the Direct Funding program is funded by the Ministry of Health and Long Term Care and is administered by the Centre for Independent Living in Toronto ("CILT"). In the Direct Funding program, like CSIL, persons who are chosen to participate must have the ability to direct their own care, and are paid directly so that they can hire and pay the caregivers of their choice. However, consumers are not permitted to hire a close family member, such as a parent, child, sibling or spouse, as an attendant. ARCH believes that people who get Direct Funding, like those who get CSIL funds in BC, should be able to hire and pay family members for attendant services. Not to allow this devalues the important social and economic contributions that are made by family members who work as caregivers to persons with disabilities. ARCH made this point in written and oral submissions to the Ontario Human Rights Commission's recent public consultation on human rights and family status. See the August 2005 edition of ARCH Alert for more information on this consultation. You can read the BC Supreme Court's decision in this case at: http://www.canlii.org/bc/cas/bcsc/2005/2005b csc1421.html *** Closure of Residential Institutions Challenged By Roberto Lattanzio, Staff Lawyer In September 2004, the Ontario government announced its plan to phase out the three remaining residential institutions for persons with intellectual disabilities: the Rideau Regional Centre in Smiths Falls, the Huronia Regional Centre in Orillia and the Southwestern Regional Centre in Blenheim. The government promised that by 31 March 2009, all residential institutions in Ontario for persons with disabilities will be closed. Families of residents in these facilities have taken legal action to stop them from closing. In September 2005, an application for an injunction stopping the government from proceeding with the closings was heard. The application was not granted. However, a stay was imposed on the transfer of residents out of these institutions, pending a judicial review hearing. The judicial review was heard on 12 and 13 December 2005 at the Divisional Court in Ottawa. At issue was whether the government has the authority to close these facilities. Community Living Ontario ("CLO") intervened in the hearing. CLO's position is that the government has the statutory authority to close these facilities, and that there is no obligation to continue their operation. CLO further argues that in getting consent for best placement options of residents when they move into the community, a supported decision-making model is the option which best enhances their dignity. Under this model, persons who are now living in these institutions will make their own decisions about where they want to live, with help and support from other people if they need it. The Divisional Court reserved judgment, but extended the stay against transfers until 30 days after the decision is released. CLO's materials about this case can be found at the following link: http://www.communitylivingontario.ca/index2. html *** ODSP Update By Heidi Lazar-Meyn, Staff Lawyer At the beginning of January 2006, the Social Benefits Tribunal ("SBT") will be making changes in the way that it handles Ontario Disability Support Program ("ODSP") and Ontario Works cases and hearings. Block Hearings One change is that, instead of each hearing being scheduled at a set time, there will be two hearings scheduled for a three-hour block starting at 9 a.m. and two more for a three- hour block starting at 1 p.m. A commissionaire will decide whose hearing goes first. On 30 September 2005, the Steering Committee on Social Assistance of the Ontario Legal Clinics ("SCSA") discussed the new block hearings with Chisanga Puta- Chekwe, Chair of the SBT, Joanne Leatch, Senior Counsel, and Mary Lee, General Manager. The SCSA pointed out that persons who have impairments due to disability may leave without having had their hearing because they cannot wait for several hours. They may also have difficulty in asking or getting the commissionaire to put their hearing first, especially if the other person waiting for a hearing has a representative and they do not. The SCSA added that SBT hearings are supposed to be private. But if several people are waiting for hearings at the same time, other people will know that they are applying for benefits. Mr. Puta-Chekwe, Ms. Leatch and Ms. Lee listened to the SCSA's concerns. They said that if a person needs to have a fixed hearing time, their caseworker can arrange it ahead of time with a client service representative. They also promised to keep track of how the block hearing system is working. Early Resolution Program Another change is the Early Resolution Program. This program will give parties a chance to try to settle some or all of the issues on appeal to the SBT and to share or exchange new information through pre- hearing telephone conferences, settlement discussions and mediation. The SBT started to test this program in November 2005, by holding telephone pre- hearing conferences. The mediator in these conferences is either the General Manager or a lawyer from the SBT. The information shared in these conferences is supposed to be confidential, so that it cannot be used at any hearing or other proceeding. This article is only a brief summary. Your community legal aid clinic can give you more information about these changes, and may be able to help you with your case. To find your local clinic, use the link at: http://www.legalaid.on.ca/en/locate/default.as p or call Legal Aid Ontario at: Telephone: 1.800.668.8258 TTY (in Toronto): 416.598.8867 TTY (outside Toronto): 1.866.641.8867 *** Actions Left Unfinished when Parliament Dissolved By Amy Wah, Student-at-Law, and Heidi Lazar-Meyn, Staff Lawyer On 29 November 2005, Governor General Micha‰lle Jean, on advice of Prime Minister Paul Martin, dissolved Canada's 38th Parliament. If the new government that will be elected on 23 January 2006 wants to consider any of the Bills that the prior government introduced, but had not passed, they will have to reintroduce it as a new Bill in the 39th Parliament. In addition, actions that the government said that it planned to take may or may not be taken by the new government. Bills and government actions that are important to persons with disabilities were left unfinished when Parliament was dissolved. Some of the most important ones are: - On 24 November 2005 Ujjal Dosanjh, the federal Health Minister, announced that the government of Canada would establish a Canadian Mental Health Commission ("CMHC"). The CMHC was to bring together representatives of all levels of government with consumers and other stakeholders to share information and knowledge that would help policy development and public awareness throughout Canada. The Standing Senate Committee on Social Affairs, Science and Technology ("the Committee") had undertaken a review of mental health, mental illness and addictions in Canada. Based on consultations with federal, provincial and territorial governments and mental health stakeholders, the Committee recently tabled an interim report proposing the establishment of the CMHC ("the Kirby Report"). Committee members identified key issues including the need for governments and mental health stakeholders to share information and work together, and the impact of stigma and discrimination on persons living with a mental illness. You can read the Kirby Report at: http://www.parl.gc.ca/38/1/parlbus/commb us/senate/com-e/soci-e/rep-e/rep16nov05- e.htm - Bill C-407 ("the Bill") was a private member's bill that would allow any person or medical practitioner to help a person to die with dignity if the person who asked for help made the choice freely and understood what it meant. The person also had to be close to death, or have physical or mental pain that could not be relieved. Before Parliament dissolved, this Bill had been through its First Reading, and was debated at Second Reading. - Bill C-256, also a private member's bill, would have helped persons who take leave from work to take care of a family member who is dying. The proposed changes to the Canada Labour Code would have allowed the caregiver to take off up to 52 weeks, instead of 26 weeks. The proposed changes to the Employment Insurance ("EI") Act would have given the caregiver EI Compassionate Care Benefits for up to 26 weeks, instead of 6 weeks. Just before the government was dissolved, Belinda Stronach, Minister of Human Resources and Skills Development and Minister Responsible for Democratic Renewal, proposed that siblings, grandparents, grandchildren, in-laws, aunts, uncles, nieces, nephews, foster parents, wards and others considered like family by a dying person, or their representative, should be eligible for EI Compassionate Care Benefits. ARCH has made submissions to the Ontario Human Rights Commission supporting the recognition of extended and chosen family members as caregivers. In addition, the Health Council of Canada recently issued a report about Compassionate Care Benefits. They suggested that the government needed to tell people about these Benefits. They also suggested changes that make more people eligible to get the benefits. You can download their report at: http://hcc- ccs.com/docs/Compassionate_Care_Bene fitsEN.pdf - On 17 November 2005, Minister of Finance Ralph Goodale tabled a Notice of Ways and Means Motion ("the Motion") to amend the Income Tax Act to implement measures proposed in Budget 2005. Some of the changes in that Motion would have affected deductions and credits that are important to persons with disabilities, such as the Disability Supports Deduction ("DSD"), the Medical Expense Tax Credit and the Disability Tax Credit. ARCH, among others, had commented on the proposed amendments. The Motion adopted one of our comments. The Motion, if passed, would have allowed persons to take the DSD for the cost of augmentative and alternative communications devices. As the amendment was originally written, only Bliss symbol boards qualified for the DSD. *** Survey on Consumer Involvement in Health Policy By Amy Wah, Student-at-Law A number of Canadian not-for-profit, health charity and consumer advocacy groups, headed by the Best Medicines Coalition and the Arthritis Society, have formed a committee to learn about the best ways for consumers of health services to be involved in making government health policy. With the help of a grant from the Office of the Voluntary Sector of the Public Health Agency of Canada, they have set up an Internet survey. They want as many stakeholders as possible to answer the survey. The survey asks questions about what kind of input consumers of health services and other stakeholders make on government policy now, and what kind of input they should be able to make. The survey also asks consumers to identify areas of health care regulation and policy that need public consultation. The survey promises that your answers will be kept confidential, and that only general information will be reported or published. The results will be published on the website in the spring of 2006. These results will be used to develop topics for regional group discussions with consumers of health services. Consumers can ask to take part in those meetings. If you want to answer the survey, go to: www.patientsandconsumers.org *** Large Print Version of ARCH Alert Now More Accessible By Theresa Sciberras, Administrative Assistant ARCH Alert is published in three formats. Most readers get their copies of ARCH Alert by e-mail, and are sent two electronic versions. One is a formatted two-column newsletter, which is set up so that it is easy to print out. The other is a text version that can be read by electronic devices. ARCH Alert also is published in a large print version without columns, to accommodate the needs of readers with visual impairments. Beginning with this issue of ARCH Alert, the headlines of articles in the large print version are in much larger type and are in a box. This makes it easier to tell where each article starts and ends. If you would like to get the new large print version, please e-mail me at scibert@lao.on.ca, or contact ARCH by telephone, fax or TTY at one of the numbers listed on the first page of this issue. *** ARCH's New Website under Construction By Lishanthi Caldera, Reference Centre Co-ordinator ARCH has a new website: www.archdisabilitylaw.ca This website should be easy to remember because its name is part of our new name, ARCH Disability Law Centre. Right now our new website looks a lot like the old one. But we are making changes so that the new website will be more helpful and easier to use. If you have suggestions or comments on how to make the website better, please email them to Lishanthi Caldera at calderl@lao.on.ca *** Season's Greetings and best wishes for you and yours. Have a safe and happy New Year. See you in 2006. From all the staff at ARCH Disability Law Centre *** ARCH ALERT is published by ARCH Disability Law Centre. 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 Disability Law Centre, 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: http://www.archdisabilitylaw.ca/