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 June 18 2007 INSIDE THIS ISSUE - Letter from Nominations Committee - Note from Phyllis Gordon, Executive Director - Final Customer Service Standard Released to Minister - New AccessON Website Launched - Government Action Line Expanded to those Receiving CCAC Services - CRTC Issues New Policy on Closed Captioning - Accessing Safe Assistive Devices in Canada - Ontario Human Rights Commission's Consultations on Rental Housing - Ontario Human Rights Commission Releases Family Status Report and Policy - CanWest Challenges Restriction on Direct to Consumer Ads - Mental Health Commission of Canada is Looking for Board Members - Assembly Releases its Recommendation on New Electoral System for Ontario - On-Line Library of Free or Inexpensive Adaptive Software Letter from Nominations Committee Dear ARCH Alert Readers, Re: Annual General Meeting and Board Nominations Annual General Meeting advance notice We have now started planning for the upcoming ARCH Annual General Meeting (AGM), 2007. This is scheduled to take place on Thursday, October 18, 2007. Please do not forget to mark your calendars. The gathering will start at 5:30 pm for a light supper followed by the meeting. You will receive a formal notice soon. The meeting will take place at Metro Hall in Toronto at 55 John Street, Room 308 and 309. Please remember that all are welcome to attend our AGM - members and guests alike. However, voting participants are those who are appointed by the member organizations of ARCH to attend the meeting. A member organization is entitled to send one person, or two, if at least one person is a person with a disability. Re: Nominations for ARCH Board of Directors The ARCH Nominations Committee is preparing its Nominations Report, to be presented at the AGM. We would like you to consider volunteering on the ARCH Board or suggest others who could make a valuable contribution on it. The ARCH Board is composed of thirteen directors who serve two-year terms. Our bylaw provides that a majority of the members must be persons with disabilities and another majority must be individuals who come from an ARCH member organization. Directors may be re-elected for subsequent terms. ARCH is looking for individuals who are committed to defending and advancing the equality-rights of persons with disabilities and in providing leadership and support to ARCH's staff. The Nominations Committee hopes to recommend to the membership a group of people whose combined skills and experience will provide strong oversight both with respect to policy and clinic administration. We would also like to continue our practice of having board members from around the province. This is an active volunteer board commitment. The Board is responsible for the oversight of ARCH, including the planning and monitoring of its activities and development of policies governing our operations. The Board also has the responsibility to ensure that we are meeting the requirements of our funders. Prospective board members should be ready to attend monthly board meetings, in person or by telephone, and participate on standing and ad hoc committees. Board members also attend community or Legal Aid Ontario events on behalf of the Board. Among its duties for the coming year, the ARCH Board will be leading the transition as we will be appointing a new executive director to replace Phyllis Gordon who is retiring at the end of December. Please let us know of your own interest or any suggestions of candidates you may have by August 15, 2007. Please mail, fax or e-mail a statement of interest, including a brief resume to the ARCH Nominations Committee, c/o Yangtzee Tamang, Operations Assistant, ARCH Disability Law Centre, at 425 Bloor Street East, Suite 110, Toronto, Ontario M4W 3R5; Fax: 416-482-2981 or Toll-free Fax: 1-866-881-2723 or by e-mail at tamangy@lao.on.ca . We look forward to hearing from you and to having you join us on October 18, 2007. Sincerely, ARCH Nominations Committee *** Note from Phyllis Gordon, Executive Director Dear Readers of ARCH Alert, After much reflection I have decided it is time for me to retire, or semi-retire, and so I have advised the Board and staff of ARCH that I will be leaving ARCH at the end of December. This has been a wonderful working experience for me, one that has encompassed so much more than lawyering. The nature of the work of the clinic, the value of our work and the commitment of staff are inspiring. Over these past seven years I have learned much from working with the members of the Board and the disability community and consider my time at ARCH to be the highlight of a rather long legal career. So thank you to everyone who has made a contribution to our work over this time. The Executive of the ARCH Board has set up a transition committee and together we are working to find a new executive director who will bring vision, energy and commitment to the job. Warmest regards, Phyllis Gordon *** Final Customer Service Standard Released to Minister by Laurie Letheren, Staff Lawyer The Customer Service Standard Development Committee has released the final draft of the Customer Service Standard which is the first standard created under the Accessibility for Ontarians with Disabilities Act [AODA]. The Standard is not yet law. In the fall of 2006, the committee released a proposed Customer Service Standard to the Ministry of Community and Social Services (MCSS). On October 23, 2006, MCSS posted the draft Standard on its website and invited the public to make comments on the draft Standard during a 60-day public review process. The public consultation on the Standard is now closed. Once the consultation was closed, the committee was to consider the input received through the public review and create a final version of the proposed Standard. In April 2007, the committee submitted its final version of the proposed Standard to the Minister of Community and Social Services. The Minister has 90 days from the date it is submitted to her to review the proposed Standard and recommend whether the whole or just parts of the Standard should be made into law, or whether the Standard should be changed. When the government enacts the Standard as a regulation, the Standard becomes law. The committee made some changes to the initial draft before it was submitted to the Minister. A number of the changes made, reflect the recommendations made by ARCH in our submission to the committee that was summarized in our 9 February 2007 edition of ARCH Alert. It is our understanding from talking with Ministry officials that the Ministry may be making further changes to the standard; however, the public will have no further opportunity to comment on the Standard before it becomes a regulation under the AODA. Submissions made by ARCH that were Implemented into the Final Proposed Customer Service Standard Use AODA terminology - "Exemptions" rather than "Exceptions" As we indicated in our submission, the AODA speaks about "exemptions", and the Standard used the term "exceptions", and although the two may have similar plain language usage, the practical implications in context could have been very detrimental to persons with disabilities. ARCH was pleased to see that these exceptions have been removed from the final Standard. It was not appropriate for a standard to outline its own grounds of exemptions when the AODA states that the Lieutenant Governor in Council may make regulations outlining exemptions from standards and the reasons for the exemption. It was ARCH's view that the exemption section of the Standard set up a much more generous type of defence than that which is available under the Ontario Human Rights Code (Code) in its articulation of undue hardship. It was ARCH's opinion that having defences that were more lenient than the Code could have devastating consequences. Under the Code, in order to determine whether the needs of the person with a disability have been met, one must determine whether the person has been accommodated to the point of undue hardship. This is the legal test that must be applied under the Code and the proposed Standard must not propose a lesser test of accommodation. To do so would both violate the Ontario Human Rights Code and the purpose of the AODA. The deletion of these exceptions by the Committee is an important change as there would otherwise have been a very serious and detrimental shift in the application of the AODA that would be contrary to its purpose. Terms and Definitions ARCH remains concerned about some of the terms and definitions in the Standard. Some of the language used in the definitions does not advance the purpose of the AODA and could be seen as promoting the "separate but equal" doctrine. Customer Since section 4 of the AODA states that "[t]his Act applies to every person or organization in the public and private sectors of the Province of Ontario", ARCH had recommended that the words "and non-governmental sector" be deleted from this definition. The committee accepted this recommendation. In addition, the definition of "customer" in the final Standard includes "persons who involuntarily receive goods and services imposed by an external authority. Customer Service The final Standard contains the same definition of "customer service" that was contained in the initial proposed Standard which is: Customer Service - policies, procedures, and practices that relate to an interaction between a customer and a provider of goods or services ARCH recommended that this definition needed to be made clearer especially given the fact that "service" is not defined in the AODA or the Standard. ARCH recommends that the Standard contain a definition for services such as that used in section 1 of the Ontario Human Rights Code ("Code"). ARCH also recommends that the Committee consider the Ontario Human Rights Commission's 1999 plain-language Guide to the Human Rights Code. This Guide notes that services can be private or public and also provides a list that indicates that the current understanding of the meaning of "services" under the Code is very broad. In ARCH's opinion, having such a list would make the application of the Standard clearer. Persons with disabilities need to understand what services are covered, and those with obligations under the AODA must be clearly identified. Likewise, those charged with administering the AODA need much greater guidance. If it is the intention of the AODA that the standards inform the Ministry charged with its enforcement, clarity of obligations and expectations are essential. Unfortunately, the Committee did not adopt these recommendations and the application of the regulation remains unclear. Accessible Customer Services The final Standard adopts ARCH's recommendation to remove some of the language that made a distinction between customer service for persons with disabilities and customer service for persons without disabilities rather than defining it as service that is accessible to all. However, the language emphasized in the final definition below could still possibly allow a person or organization to rely on a separate but equal defence. The definition in the final Standard is: Accessible Customer Service - customer service that provides equal opportunity for persons with disabilities to attain the same level of service as for persons without disabilities In the Supreme Court of Canada's decision in Council of Canadians with Disabilities and Via Rail Canada Inc., released in March 2007, the Court rejected Via's defence that providing "as needed" accommodations were acceptable alternatives to providing fully accessible rail cars for all its services. Via explained that it had "a policy for alternative transportation that is sensitive to passengers with disabilities and a history of satisfying those needs". When asked about this policy, "VIA explained that in the past it has sent passengers to their destinations by taxi when they could not be accommodated on its trains, and that passengers who call in advance may be offered assistance". Via was proposing services that were different and the Court found this was not appropriate. The Supreme Court stated that all those governed by human rights legislation "are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Standards, in other words, must be as inclusive as possible." Alternative Customer Services and Alternative Service The final Standard did improve the definition of "Alternative Customer Service" somewhat by following ARCH's recommendation to remove the phrase "or an equivalent service is put in place" from the end of the definition. The final Standard contains the following definition: Alternative Customer Service - a customer service generally intended to be temporary that approaches the desired result until such time as the barrier is removed; However, the change does not go far enough as a service provider could use this definition as a means of continuously failing to provide accessible customer service because the definition in the final draft Standard contains the words "generally intended to be temporary" and "approaches the desired result". For a start, the word "generally" should be removed. Relying on this definition to continue to have barriers to accessing services could be found to be contrary to the findings of the Supreme Court in the Via Rail decision (above). At paragraph 185 of the decision, the Supreme Court stated "while human rights principles include an acknowledgment that not every barrier can be eliminated, they also include a duty to prevent new ones, or at least, not knowingly to perpetuate old ones where preventable." Persons or Organizations The term "organization" is defined in the AODA, while the Standard provides a different definition of the same term. Although, the legal rules on statutory interpretation mandate that the definition in the statute will prevail, providing a different definition in the Standard will cause unnecessary confusion for those interpreting and applying it. Still Much Room for Improvement in the Standard The final Standard could still be improved significantly if it were to promote principles of universal design and if it contained prescriptive and mandatory language. The language of the Standard remains vague and unclear. ARCH's fear is that those who are to comply with the Standard will not have a clear understanding that the Standard applies to them and will not understand what accessible service means. As well, a standard that lacks prescriptive language is difficult to enforce. ARCH would still recommend that the Minister create a standard that is more prescriptive so that the Standard complies with section 6(6) of the AODA which states that "An accessibility standard shall set out measures, policies, practices or other requirements for the identification and removal of barriers ... and for the prevention of the erection of such barriers." The Minister could follow the example of more detailed standards that have been developed by the Canadian Standards Association and by other countries. Feedback on the Proposed Regulation that Provides Exemptions from the Requirement to File Accessibility Reports As indicated under the section titled "Use AODA terminology - "Exemptions" rather than "Exceptions"' above, there is a provision in the AODA that states that the Lieutenant Governor in Council may make regulations outlining exemptions from standards and the reasons for the exemption. A draft Exemption from Reporting Requirements Regulation (the Exemption Regulation) would exempt persons and organizations with at least one employee and no more than 19 employees from filing an accessibility report for the Customer Service Standard Regulation. The draft regulation is open to public comment from May 10 - June 24, 2007. The Ministry is to consider comments and may make changes to the regulation before it is passed into law. For more information on how to submit comments on the proposed Exemption Regulation see: http://www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/accesson/business/customer/standard/cs_proposed_standard_regulation.htm or call 1-888-520-5828. The wording of the draft regulation is: Exemption re: customer service standard 1. (1) Every person or organization that is a Class I employer within the meaning of Ontario Regulation .../... (Customer Service Standard) made under the Act is exempt from the requirement under section 14 of the Act of filing accessibility reports with respect to that regulation. (2) The reasons for the exemption under subsection (1) are as follows: 1. The exemption is consistent with the phased approach to implementation of the Act. 2. The exemption will allow Class I employers to focus their efforts and resources on fulfilling the requirements of Ontario Regulation .../... (Customer Service Standard) made under the Act. Commencement 2. This Regulation comes into force on January 1, 2008. The wording of the regulation may raise some confusion because all the background information refers to the exemption of persons or organizations with fewer than 20 employees which would include Class 1 and Class 2 of the final proposal Customer Service Standard while the draft Exemption Regulation itself only refers to Class1. ARCH has been advised by the Accessibility Directorate of Ontario that the Customer Service Standard now has only 3 Classes and Class 1 covers persons or organization with 0 to 19 employees in Ontario. ARCH's Comments on the Draft Exemption Regulation In our submission on the draft Customer Service Standard, ARCH indicated that the Standard may need to have different applications depending on the type of service sector that is considered. For example, the standards for service in the entertainment or hospitality sector may be quite different than the standard that would apply to health care, education and social services. The MCSS website at http://www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/questions/aodo/cs.htm indicates that the reason for exempting persons and organizations with fewer than 20 employees from the obligation to file annual accessibility reports is to "minimizes the regulatory and paper burden on businesses with fewer than 20 employees". The same website indicates that "municipalities, the Ontario government and specified agencies, as well as the Legislative Assembly of Ontario and its offices, municipalities, universities, colleges, school boards and public transit organizations must file accessibility report" even if they have fewer that 20 employees. Since the proposed Exemption Regulation does not clearly indicate that "municipalities, the Ontario government and specified agencies, as well as the Legislative Assembly of Ontario and its offices, municipalities, universities, colleges, school boards and public transit organizations" with fewer than 20 employees must file accessibility reports and the definition of "organization" under the AODA would include all these entities, ARCH recommends that the regulation clearly identify these entities as not covered by the exemption. ARCH recommends that, in addition, persons or organizations who provide professional services also be required to file accessibility reports even if they have fewer that 20 employees. According to the backgrounder (see: http://209.167.40.13/exemption_public/exemptionform_eng/) prepared by MCSS on the Exemption Regulation: Compliance with the Customer Service Standard Regulation will be assessed through a self-certified accessibility reporting process. Accessibility reports will be filed by persons and organizations that are obligated to comply with the standard, and will be certified as accurate by a designated person in authority within the organization. The filing of accessibility reports is the only means that the Ministry has of insuring compliance with the Customer Service Standard. There is no process within the AODA for an individual to complain that a person or organization is not complying with the Standard. Because of this, ARCH is concerned that there would be a number of services that are extremely important to meeting the needs of persons with disabilities and the Ministry would have no means of enforcing their compliance with the Customer Service Standard. Some examples of services that could have no compliance monitoring because they have fewer than 20 employees would be: * Doctors' offices * Optometrists' offices * Chiropractors * Nursing agencies * Home care agencies * Attendant service agencies * Private educational institutions * Lawyers offices * Community Legal Clinics * Community Health Care Centres * Social service agencies ARCH recommends that the Exemption Regulation contain a section that clearly identifies a list of prescribed professionals that are required to file accessibility reports even though they have fewer than 20 employees. In addition, the regulation should contain a definition of "employee" to ensure that all persons who have an economic relationship with a person or organization are included so that independent contractors such as real estate agents, who contract to a large realty company, are covered. In addition, the Exemption Regulation must contain a provision that would insure that large corporations who may be franchisees or whose corporate structure may include a number of smaller companies that are independently incorporated or whose head office is outside of Ontario and employ fewer than 20 employees in Ontario are required to file accessibility reports. Because the franchise store or the smaller sub corporation may have fewer than 20 employees, they would be exempt from the requirement of filing an accessibility report under the Exemption Regulation as it is currently drafted. *** New AccessON Website Launched by Laurie Letheren, Staff Lawyer The Ontario government recently launched a new public awareness campaign called AccessON: Breaking Barriers Together. In the news release on the campaign, Minister of Community and Social Services and Minister Responsible for People with Disabilities, Madeleine Meilleur indicated that the purpose of the campaign is to "challenge public attitudes and perceptions about disability." Meilleur said, "It will give people a better understanding about how barriers impact daily living for people with disabilities, and it will encourage all Ontarians to become actively involved in making our businesses, governments and communities accessible to everyone." The website has descriptive images of the everyday barriers faced by persons with disabilities in accessing services, transportation, information, buildings and employment. Once the image is clicked on, the reader has access to statistics, information about the AODA standards development process and some practical information on how the barriers can be removed. Feedback on the website can be made through the "contact us" section. The website address is http://www.accesson.ca/ado/english. *** Government Action Line Expanded to those Receiving CCAC Services by Laurie Letheren, Staff Lawyer On 1 May 2007 the provincial Health and Long-Term Care Minister, George Smitherman, announced that clients who receive home care services through their local Community Care Access Centre (CCAC) or others acting on a client's behalf can use the Long-Term Care Action Line (the Action Line) if they have a concern or complaint about the services they are receiving through the CCAC. The numbers for the Long-Term Care Action Line are 1-866-876-7658 or TTY 1-800-387-5559. In May 2005 Elinor Caplan released a report on improving home care services in Ontario. The creation of such a complaints line was one of her recommendations. The full report can be read at http://www.health.gov.on.ca/english/public/pub/ministry_reports/ccac_05/ccac_05.pdf. The Action Line had previously only been available to residents of long-term home care facilities and their family members. A caller to the Action Line may be asked for permission for the attendant to call the local CCAC to discuss the concern and then the CCAC will contact the caller to discuss. A caller will also be offered the option of discussing the concerns with an Independent Complaints Facilitator (ICF). If the caller agrees to a referral to an ICF, the ICF is to telephone the caller within 10 business days. If the caller provides consent, the ICF may also contact the CCAC to work with the caller and the CCAC to address the concerns. The Action Line and the ICF process are to provide those who receive home care through CCACs with an additional means of having complaints heard. Complaints about CCAC services may still need to be made through the existing formal CCAC complaints process. Each CCAC must have its own complaints policy that should be provided to their clients upon request. For more information on the formal process for making complaints about CCAC services, see the pamphlet prepared by Community Legal Education Ontario at http://www.cleo.on.ca/english/pub/onpub/PDF/health/homecare.pdf. *** CRTC Issues New Policy on Closed Captioning by Laurie Letheren, Staff Lawyer According to a policy released by the Canadian Radio-television and Telecommunications Commission (CRTC) on 17 May 2007, all English- and French-language broadcasters will be required to caption 100% of their programs, except advertisements, from 6:00 a.m. to 12:00 midnight daily unless there are circumstances beyond the broadcaster's control that make captioning unavailable. The policy applies equally to all broadcasters, including educational broadcasters and specialty, pay, pay-per-view (PPV) and video-on-demand (VOD) services. The policy states that the Commission expects all broadcasters to take the necessary steps to ensure the quality, accuracy and reliability of their captioning. Broadcasters are to carefully monitor the quality of the captioning "and to demonstrate even greater responsiveness in responding to complaints from viewers." The broadcasting industry is to establish working groups who will work on means of "improving the quality of captioning in Canada, including the development of universal standards in English and in French." More information on this policy is available on the CRTC website at http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-54.pdf *** Accessing Safe Assistive Devices in Canada by Tess Sheldon, Project Lawyer Assistive devices are essential to promoting the participation and inclusion of persons with disabilities in work, social, and community life. The issue of their regulation is particularly important at a time when assistive technologies are changing very quickly. Nevertheless, ARCH has received reports from persons with disabilities about problems accessing assistive devices in Ontario including: the limits of provincial funding programs, the safety of assistive devices and their tax treatment. ARCH has received funding from Industry Canada's Contributions Program for Non-Profit Consumer and Voluntary Organizations to research the regulation of assistive devices. The project aims to clarify whether and what rules govern the accessibility and safety of assistive devices in Canada. ARCH will investigate how safety standards are developed in Canada, whether they are mandatory or voluntary. ARCH will also examine the impact of international trade obligations in the context of importing products. The project hopes to identify law reform and policy approaches to ensuring the accessibility and safety of assistive devices for persons with disabilities. A report setting out this research will be available to persons with disabilities and their organizations later in the summer. The report will also be accompanied by a media release and an executive summary in plain language. Once completed, more information about this exciting research will be available on ARCH's website. *** Ontario Human Rights Commission's Consultations on Rental Housing by Laurie Letheren, Staff Lawyer The Ontario Human Rights Commission (the Commission) is currently holding a public consultation on human rights in rental housing. Many persons with disabilities face numerous barriers to accessing adequate housing and often experience discrimination in their home and by housing providers. The Ontario Human Rights Code (the Code) guarantees a right to "equal treatment with respect to the occupancy of accommodation, without discrimination because disability". In addition, the Code imposes on obligation on housing providers to accommodate the needs of persons with disabilities to the point of undue hardship. In the background paper prepared by the Commission for this consultation (See: http://www.ohrc.on.ca/en/issues/housing) the introduction states: It is difficult to overstate the importance of adequate housing to an individual's ability to fully participate in and be a part of his or her community. Adequate housing is a necessity. It is also a prime indicator of an individual's overall quality of life. Housing provides the foundation for interacting with the broader community and for general well-being and social inclusion. The Commission recognizes that despite the rights guaranteed in the Code, persons with disabilities may often be among the most vulnerable when it comes to abuse of rights to and in housing. The Commission wants to hear the public's experiences in rental housing and will report back publicly on its findings and recommendations. The Commission is seeking input in three major areas * Raising Public Awareness and Addressing Discrimination * Affordable Housing * Discrimination in Rental Housing The Commission's website (See: http://www.ohrc.on.ca/en/issues/housing) contains the following information about the ways that the public can participate in the consultation: All interested persons and organizations are invited to make written submissions. Written submissions should be provided prior to AUGUST 31, 2007. The Commission will also be holding a series of public meetings at four locations across the province: June 13: Sudbury June 14: Toronto June 25: Ottawa June 27: Kitchener-Waterloo June 28: Toronto If you are interested in participating in one of these sessions, please RSVP as soon as possible. You will be contacted to confirm your participation in the meeting and be given details of the time, location and format of the meeting. Written submissions and RSVPs may be sent by mail, fax, phone or e-mail to: "Housing Consultation" Ontario Human Rights Commission, Policy and Education Branch 180 Dundas Street West, 7th Floor Toronto, Ontario M7A 2R9 Fax: 416-314-4533 Phone: 416-979-0175 Marci Mosher-Mandel E-mail: RSVP@ohrc.on.ca (please indicate "Housing Consultation" in the subject line) Those who choose not to make a submission may complete a survey that is available on line at http://www.ohrc.on.ca/en/issues/housing/tenantsurvey or can be obtained from the Commission. The survey is another way for the public to describe their experiences with human rights and rental housing. The following are some of the questions that the Commission would like to address in this consultation. However, participants may address any issues that they believe the Commission should be addressing. * What can the Commission do to raise public awareness about human rights issues in rental housing and to more effectively combat discrimination in this area? What role do others have in this regard? * What are the ways in which persons with disabilities experience discrimination and harassment in rental housing? * What barriers do persons with disabilities face is getting adequate housing? * What can be done to promote better access to resolution of human rights issues in housing? * What are the particular issues with regard to social housing and what can the Commission do to promote the goal of providing adequate affordable housing to person with disabilities? Give examples of discrimination in social housing. * What types of inclusive design and accommodation of Code-related needs are necessary to allow all tenants to access rental housing on an equal basis? * What role can the Commission take in responding to homelessness? The Commission has indicated that following the consultation, it will develop a new policy to aid in increased protection and promotion of rights and responsibilities under the Code. The Commission's website also indicates that persons or organizations can invite the Commission to attend a public meeting to discuss issues of human rights in housing. Invitations should be received by August 31, 2007 for events to be held in the fall of 2007. *** Ontario Human Rights Commission Releases Family Status Report and Policy by Tess Sheldon, Project Lawyer Many people, including potential complainants and their advocates, are often unaware that the Ontario Human Rights Code protects against discrimination based on "family status". On May 2, 2007, the Ontario Human Rights Commission released the results of its consultation entitled The Cost of Caring: Report on the Consultation on Discrimination on the Basis of Family Status. The Commission also released the Policy and Guidelines on Discrimination Because of Family Status detailing its interpretation of the Code provisions related to family status. The Policy and Guidelines set standards for how employers, service providers and housing providers should ensure compliance with the Code. In 2005, ARCH made submissions to the Commission highlighting the importance of considering the complex ways in which the ground of family status intersects with the ground of disability. ARCH submitted that the narrow definition of "family status" should be expanded to include a broader range of relationships, such as where a family member is providing long-term care for an adult sibling with a disability. ARCH also raised the issue of accommodation and submitted that in many instances the needs of the person with a disability or the needs of family members of persons with disabilities are not accommodated. Family members have difficulty getting supports and services, such as home care and childcare that accommodates the needs of the family member with a disability. Employers must accommodate employees with care-giving responsibilities for family members with disabilities. Because of stereotypes about their abilities to provide care, parents with disabilities may find themselves under unwarranted scrutiny from child protection authorities. ARCH's submission is posted in the law reform section of our website at: http://www.archdisabilitylaw.ca/aboutARCH/lawReform. Both the Commission's Report and Policy reflect some of the content of ARCH's submissions. For instance, the Commission found that the narrow Code definition of family status excludes many important familial relationships, and has a negative impact on a number of groups protected by the Code, including persons with disabilities. The Commission's Report and Policy can be found on the Commission's website at: http://www.ohrc.on.ca/en/resources/news/famstatnews. *** CanWest Challenges Restriction on Direct to Consumer Ads by Eli Hansen, Summer Student In December of 2005, CanWest MediaWorks Inc. (CanWest) launched a Charter challenge against restrictions on Direct to Consumer Advertising (DTCA) of prescription drugs contained in Canada's Food and Drugs Act (FDA). On November 3, 2006 the Ontario Superior Court of Justice granted leave to intervene as an added party to a coalition comprised of Canadian health and consumer groups and unions. This article will briefly examine the basic history and arguments of CanWest's Charter challenge, before focusing on the decision to allow the coalition to intervene and the significance of this to the case. In its application, CanWest asserts that the FDA restrictions on advertising of prescription drugs to the general public limit freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, and cannot be demonstrably justified in a free and democratic society. CanWest's challenge puts forth two main arguments. First, that placing limits on DTCA of prescription drugs while allowing advertisements for non-prescription drugs is an arbitrary distinction as both types of drugs pose potential health risks to consumers. And second, that the restrictions on DTCA in Canada are ineffective because Canadian consumers are already regularly exposed to DTCA of prescription drugs through U.S. media outlets. As mentioned above, the Ontario Superior Court of Justice has granted leave to intervene as an added party to a coalition comprised of the Canadian Health Coalition, the Canadian Federation of Nurses Union, Women and Health Protection, the Communications, Energy and Paperworkers of Canada, the Canadian Union of Public Employees, Terence Young, the Society for Diabetic Rights, and the Medical Reform Group. Leave to intervene as an added party can be granted in situations such as this where persons who are not originally involved in a proceeding claim that they have an interest in the subject matter, or that they may be adversely affected by a judgment in the proceeding. As a result of being granted party status the coalition will now be listed as named defendants along with the Attorney General of Canada. This coalition represents the interests of consumers of pharmaceutical products, employees who are dependant on employer provided health benefit plans, health care professionals, and advocacy groups. In its decision, the court ruled that the coalition will be permitted to submit evidence only on the impact of DTCA on health benefit costs, and its impact on women. The coalition also sought permission to put forth evidence regarding the impact of DTCA on physician prescribing practices and its potential to increase the risk of adverse drug reactions, however because the Attorney General of Canada will be presenting evidence on this issue the court ruled that the intervening coalition would not be permitted to do so. With respect to the two issues mentioned above, the coalition is concerned about the impact of DTCA on the demand and price of pharmaceutical products that are covered by employee health benefit plans, and the consequential effects of rising drug costs on access to other necessary health care services for workers. Additionally the coalition is particularly concerned about the impact of DTCA on younger women who have recently become the focus of numerous pharmaceutical advertising campaigns in Canada. In presenting its evidence on these issues, the coalition will essentially argue that permitting DTCA will have an adverse effect on both the physical and financial health of Canadians. Evidence put forth by the coalition on these issues will be used by the court in its s. 1 analyses to determine whether or not the restrictions placed on freedom of expression by the FDA, can be upheld. Charter rights are not absolute, according to s. 1 of the Charter, so long as the government can demonstrate that the restriction of the right in question is justified in a free and democratic society, the restriction will be permitted. Therefore, evidence put forth by the coalition to show the effects of DTCA on pharmaceutical costs and women will be used to show that the current restrictions on DTCA are necessary in order to avoid these negative consequences. In other words, the court will ask whether or not the benefits of the current restrictions on DTCA can justify the obvious negative of violating a Charter right. As a result of the court's decision to allow this coalition to intervene, CanWest will now be forced to oppose not only the Attorney General, but the coalition as well. However, the federal government and the coalition are still faced with a stiff test in justifying the present restrictions. The main application by CanWest has yet to come before the courts; ARCH will be following the case as it moves forward. The decision on intervention discussed above can be accessed at: http://www.canlii.org/en/on/onsc/doc/2006/2006canlii37258/2006canlii37258.html *** Mental Health Commission of Canada is Looking for Board Members by Laurie Letheren, Staff Lawyer The Mental Health Commission of Canada will be accepting applications for its 11 board members until July 15, 2007. According to the Commission's website, those chosen to fill the 11 positions are to represent a "range of stakeholders of the mental health community. Directors will be chosen from among those living with mental illness, their families, caregivers, service providers, the scientific and research community, employers and others. One directorship will be chosen from among Aboriginal candidates." Persons employed by the federal government cannot be a chosen. The board of directors' positions are part-time and are held for a three year term. For more information on the board of directors and how to apply see: http://www.mentalhealthcommission.ca/boardapply.html. *** Assembly Releases its Recommendation on New Electoral System for Ontario by Laurie Letheren, Staff Lawyer The Ontario government will be holding a referendum in conjunction with the next provincial election to be held on 10 October 2007. The referendum is being held to seek the opinion of voters on whether Ontario should be changing the way it elects members to Provincial Parliament. Following a recommendation made by an all-party committee that studied Ontario's electoral system, a group of 103 Ontarians were randomly selected from the registered voters list to be on the Citizen's Assembly on Electoral Reform (the Assembly). The Assembly was established to study Ontario's current voting system and in particular, to examine how votes are turned into seats in Ontario's legislature. After studying Ontario's current voting system and comparing it to systems used in other provinces and other countries, the Assembly was to recommend whether we should keep it or adopt a different one. (See: http://www.citizensassembly.gov.on.ca/en-CA/About/faq.aspx ) On 15 May 2007, the Assembly released its report titled, "One Ballot, Two Votes" which recommends that Ontario's electoral system be changed to a system of "Mixed Member Proportional". If the Mixed Member Proportional system were adopted in Ontario, each voter's ballot would give the voter two votes. One vote would be cast for the party of the voter's choice and a second vote would be cast for the local candidate of the voter's choice. The two do not necessarily have to be for the same party. For example, you may wish to cast one vote for the party A and then vote for Ms. Doe who represents party F. The party votes determine the number of seats that the party will hold in the legislature. If for example, the legislature has 100 seats and a party receives 25% of the party votes cast, that party will fill 25 seats in the legislature. If fewer than 25 of the party's candidates won in the local vote, the party can top up its legislative membership to 25 from a list of candidates that the party would have released prior to the election. Greater details on how this will work are available on the Assembly website at http://www.citizensassembly.gov.on.ca/en/default.asp or you can obtain a copy of "One Ballot, Two Votes" at a Service Ontario/Government Information Centre. To order alternative format, contact Publications Ontario at www.publications.gov.on.ca. Phone orders can be placed at 1-800-668-9938, TTY-only toll free, and-1-800-268-7095. The "One Ballot, Two Votes" report states that the Mixed Member Proportional system "produces proportional election results that better reflect the wishes of voters". The report states that the key features of this system are: greater voter choice; fairer election results; and stronger representation. The question that will be put to voters on the 10 October 2007 election day will be whether they support the recommendation made by the Assembly to adopt the Mixed Member Proportional system for Ontario. In order for this system to be approved for Ontario, at least 60% of voters in Ontario must agree and a majority of voters in at least 60% of Ontario's electoral districts must agree. *** On-Line Library of Free or Inexpensive Adaptive Software The Adaptech Research Network, a partner in the Dis-IT Research Alliance, has recently updated its online library of free and inexpensive adaptive and adaptable software useful for post-secondary students and others with disabilities. Visit http://www.adaptech.org and select the Downloads link. See further info in the forwarded message below. This research was supported by a Public Outreach Grant from the Social Sciences and Humanities Research Council's (SSHRC) Initiative on the New Economy program. *** 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: Laurie Letheren 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, Program 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/