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 8, 2009 INSIDE THIS ISSUE - ARCH SUMMER HOURS - Draft AODA Employment Standard Released - Eddy Morten v. Air Canada - Air Canada's Blanket Policy for Deaf-Blind Passengers Discriminatory - Ableism in Ontario's Education System - Important Deadline - Human Rights Matters JUNE 30 2009 - ONTARIO BUDGET 2009 - BILL 152, "Poverty Reduction Act" - Tranchemontagne/Werbeski - The Saga Continues - Study on Barriers to Access to Legal Services - COMMUNITY ANNOUNCEMENTS ARCH SUMMER HOURS Please note that during the months of July and August 2009, ARCH will be closing at 2:30 every Friday afternoon. - - Draft AODA Employment Standard Released By Charles Layton, Articling Student [Charles worked at ARCH for two months as part of his articling rotation at Blake, Cassels & Graydon LLP. We would like to thank Charles for writing this article and for his contributions to ARCH work over the past two months. ARCH would also like to thank Blakes for continuing to include ARCH as a rotation placement for its articling students. We benefit from the significant contributions that the Blakes' students make while at ARCH. We also hope that the placement fosters a desire in these students to promote the interests of people with disabilities in their own practice.] In 2005 the Ontario government passed, the Accessibility for Ontarians with Disabilities Act which is commonly known as the "AODA". The AODA seeks in various ways to remove barriers for people with disabilities with the goal of making the province fully accessible by 2025. In order to achieve this, businesses and organizations that provide goods and services to people in Ontario will be required to fulfill the obligations that are outlined in the accessibility standards. The Ministry of Community and Social Services has drafted the following standards: - customer service - transportation, - information and communications, - employment Only the Customer Services Standard has come into effect. Public consultations on the transportation and the information and communications standards have been completed. The built environment standard has not yet been released for public consultation. The Ministry of Community and Social Services recently released a proposed standard with respect to employment. Public input on the "Initial Proposed Employment Accessibility Standard" was invited until May 22, 2009. There is a clear rationale for improving workplace accessibility in the Province of Ontario. According to the Ministry of Community and Social Services in 2006, 49.5 percent of people with disabilities between the ages of 15 and 64 were unemployed. In order for people with disabilities to participate fully in society, accessible employment is a fundamental necessity. Employment that is accessible provides persons with disabilities not merely with an income, but also represents an essential source of their personal dignity and self-worth. In the same way that accessible employment opportunities can remove barriers for persons with disabilities, inaccessible employment can contribute to the isolation of an individual. Thus, from the perspective of employees, the justification for making workplaces more accessible is clear. However, in addition to being an area of concern for employees, inaccessible workplaces are also counterproductive for employers. Approximately 1.85 million people in Ontario have a disability. Consequently, improving workplace accessibility would give businesses and organizations access to this valuable workforce that is currently unknown to employers. The Proposed Employment Accessibility Standard, which seeks to tackle barriers in the workplace, outlines ways that employers can make workplaces more inclusive by: - developing accessible employment policies - providing information about a job, such as applications, in accessible formats - giving disability awareness training to all employees - preparing accommodation plans to help employees perform their job ARCH Disability Law Centre has passed comment on the Proposed Standard through feedback to the Ministry. Although ARCH fully supports the aim of the legislation and the accompanying standards, it takes issue with certain aspects of the Standard that in ARCH's opinion do not promote the goal of making workplaces fully accessible for persons with disabilities. ARCH's primary suggested revisions to the Initial Proposed Employment Accessibility Standard are as follows: - Certain clauses contained in the Standard establish a lesser obligation and a lower standard than presently exist under Ontario's human rights law. This may lead employers to assume that they are only obligated to comply with the Standard and not the Ontario Human Rights Code, which would mean that employers may not fulfill their legal obligations to accommodate their employees in the workplace. The Standard should declare the primacy of the Ontario Human Rights Code and should clearly warn that compliance with the Standard does not guarantee compliance with law. - The Standard as proposed applies to "organizations providing paid employment". If applicable only to "organizations", many employer-employee relationships would be excluded, such as, those employed by families as domestic workers or employment by individuals such as professionals or academics. Because the Standard only applies to "organizations" many workplaces where people with disabilities are employed may not comply. Therefore, in order to remove as many barriers as possible for people with disabilities, the Standard should be broader in scope. All employment should be covered by the Standard, not only employment provided by "organizations". - The Standard currently divides organizations into six classes based on their size. The categorization of an organization into a class is then used to determine the amount of time available to an organization before it must comply with the various requirements of the Standard. ARCH contends that many of the timelines and exemptions contained in the Standard serve to hinder rather than promote the fulfillment of the underlying goals of the legislation. If the purpose of the Standard is to make workplaces more accessible to persons with disabilities, it is unclear why accessibility and the protections afforded by the Standard should be contingent on the size of the organization as measured by its number of employees. There is clearly a fundamental need for accessible workplaces in Ontario and this need is not contingent on the size of the workplaces. Workplaces of all types, varieties and sizes must become accessible in order for people with disabilities to become, truly equal and participating members of society. ARCH will be watching closely over the coming months to see whether the Ministry incorporates these suggested revisions. The final Employment Accessibility Standard is not expected to come into force until late 2009 or 2010 at the earliest. ARCH's full submission can be read on the ARCH website at www.archdisability.on.ca. More information on the AODA can be found at: http://www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/ - - Eddy Morten v. Air Canada - Air Canada's Blanket Policy for Deaf-Blind Passengers Discriminatory By Laurie Letheren, Staff Lawyer In its January 26 2009 decision, the Canadian Human Rights Tribunal [The Tribunal] found that Air Canada's decision that Mr. Eddy Morten who is deaf-blind was required to travel with an attendant and that he cover the costs of having the attendant fly with him. The Tribunal found that this blanket decision did not allow for individual assessments of disabled travelers and it had a discriminatory impact on Mr. Morten as a person with a disability. At the Tribunal hearing Mr. Morten described many examples of how he travels independently around the city where he lives. He is accompanied by his guide dog when he travels. He spoke of the methods that he uses to communicate when travelling. For quick communication such as asking for directions, Mr. Morten will ask a person to spell the words in block letters on his palm. He indicated that people have no trouble understanding very quickly how to communicate with him. Mr. Morten also explained that he travels with a backpack which has a large button indicating that he is deaf-blind. He gave an example of travelling on public transit. If a transit employee approached him to ask if he needed help, the transit employee would tap him on the shoulder and put Mr. Morten's hand on a badge on the employee's shirt. By this he could identify the person as a transit employee. He would let the person know that he is not lost by writing O K on a hand. If he takes a taxi, his guide dog accompanies him. Mr. Morten writes out the address where he wishes to go and the driver tells him the amount of the fare by drawing the number on his palm. When Mr. Morten made a reservation with Air Canada he indicated that he was deaf-blind. Once Air Canada had this information about Mr. Morten's disability, the reservations attendant decided he needed an attendant to fly with him and he would be required to pay the cost of the attendant. The Air Canada Meda desk confirmed the reservation attendant's decision. The Meda desk is part of Air Canada's reservations department. The practice that is to be followed when a person making a reservation indicates that they are a person with a disability who may require some accommodations while flying is that the Meda desk is to receive information from the passenger and from his or her medical provider relating to the accommodations they may need while flying. The persons who work on the Meda desk are not medically trained. The medical information is to be passed to Air Canada's Occupational Health Services department who review the medical information and determine whether the passenger can fly on Air Canada with or without conditions. The Occupational Health Services is staffed by licensed physicians, occupational health nurses and medical officer assistants. The Occupational Health Services is to consider whether a person would be self-reliant in air travel. This involves considerations of passenger's ability to understand emergency announcements, the ability to make his or her need for assistance known and the ability of the passenger to move from his or her seat should that be necessary in an emergency. An Air Canada witness stated that when determining whether a person with a disability is self-reliant the tests applied are to determine whether an individual would be able to act on emergency instructions. The Air Canada witness said that if the individual was not able to see or hear the cabin crew to receive information about safety procedures in an emergency situation, that individual would be considered non self-reliant for airline travel. At the Tribunal, Air Canada agreed that the proper procedure was not followed when Mr. Morten made his reservation. It was not for the reservations department or the Meda desk to decide that Mr. Morten required an attendant to fly on Air Canada. The appropriate procedure was to the questionnaire used to determine fitness to fly sent to Mr. Morten and his doctors and then reviewed by the Occupation Health Services department of Air Canada. Mr. Morten's physician was not asked to complete the fitness to fly form until after Mr. Morten objected to the decision that he had to fly with an attendant and the form was not received by Mr. Morten's doctor until a couple of weeks before he was to travel. The completed form was not received by the Occupation Health Services office before the date that Mr. Morten was to fly. The Tribunal concluded that the evidence is clear that Air Canada imposed on Mr. Morten, as a condition of flying that was not imposed on other passengers. Placing this condition of flying on Mr. Morten was directly related to his disability and the Tribunal found that this condition imposed by Air Canada was discriminatory. Requiring Mr. Morten to fly with an attendant affected his freedom to travel and increased his cost of travelling. Once the Tribunal found that the requirement to fly with an attendant discriminated against Mr. Morten they had to consider whether the discrimination could be justified. In deciding whether Air Canada was justified in imposing the attendant requirement the Tribunal had to consider if the purpose of this restriction was rationally connected flying; whether the requirement was adopted in the good faith belief that it was necessary for passenger safety and whether allowing Mr. Morten to travel alone would have imposed undue hardship on Air Canada, considering health, safety and cost. Air Canada acknowledges that an individual assessment of each passenger's needs is not impossible especially since individual assessment is the procedure that Air Canada's medical staff uses to determine fitness to fly. The Tribunal concluded that Air Canada could not justify the discriminatory policy that had been applied when Mr. Morten made his reservation. Air Canada had not taken any steps to assess Mr. Morten's individual needs and capabilities and because of this failure it could not justify the discrimination. The Tribunal stated "Decisions not to accommodate the needs of disabled persons must be founded on their actual capacities and the real risks posed thereby, rather than on discriminatory assumptions based on stereotypes of disability." The Tribunal ordered: Air Canada needs to work with the [Canadian Human Rights Commission] and Mr. Morten to develop an attendant policy that takes into account the communication strategies utilized by people like Mr. Morten, the inherent risk posed by passengers with comprised mobility who are currently allowed to fly unaccompanied, and the fact that in emergency situations, many able-bodied passengers are unable to receive, process and act on safety-related emergency instructions. It is only after doing this that Air Canada can truly and fully redress the discriminatory practice it visited upon Mr. Morten and prevent its recurrence. The Tribunal also made the following order to address the personal suffering that Mr. Morten had experiences as a result of Air Canada's decision: Given the impact that this discriminatory practice has had on Mr. Morten's sense of accomplishment, his efforts to develop his independence over the years and the effects on his physical well-being, we consider that an award of $10,000 is an appropriate amount for pain and suffering. The full decision of the Tribunal can be read at http://www.canlii.org/en/ca/chrt/doc/2009/2009chrt3/2009chrt3.html - - Ableism in Ontario's Publicly-Funded Education System By Gary Malkowski, Special Advisor to President, Public Affairs, The Canadian Hearing Society, Former Parliamentary Assistant to Minister of Education and Training The Ministry of Education for Ontario recently released, Realizing the Promise of Diversity: Ontario's Equity and Inclusive Education Strategy, 2009. The Minister's Message in this paper says: Students in Ontario's publicly-funded education system, regardless of background or personal circumstances, must be given every opportunity to build self-esteem, pride in their heritage and understanding of other cultures. Research shows that when students feel welcomed and accepted in their school, they are more likely to succeed academically. Unfortunately, it is the current reality that students with disabilities often do not feel "welcome and accepted in their school". Educators often have the attitude that students with disabilities, including Deaf students and students with hearing loss, cannot achieve academic success. These attitudes often prevent students from demonstrating their true abilities in school. These attitudes are a form of discrimination called "ableism". When people who are culturally Deaf, oral deaf, deafened, or hard of hearing experience this type of discrimination it is called "audism". Audism can negatively impact an individual's life in many ways. According to The Canadian Hearing Society's position paper on discrimination and audism, discrimination often occurs when others convey beliefs that a hearing person or a deaf person who behaves in a manner that is similar to a hearing person is more intelligent, qualified, well-developed, and successful than another individual who may be more culturally deaf or who uses sign language or another form of communication that is different from that used by hearing people. Research shows that Canadians with hearing loss are under-educated, under-employed or unemployed as a result of the very low expectations of educators and employers regarding their capabilities. When parents learn that their child is a person with a disability or is hard of hearing, the ableist attitudes of the people working with the family often prevent the family from receiving all the information they need on the options and opportunities for their child. As a result, families are not aware of the realities, possibilities and successes that people with disabilities enjoy in their lives. The language we use can also be a form of ableism or audism. As an organization which serves these communities and educates the public, the Canadian Hearing Society avoids using terms such as "hearing impaired" or "normal or abnormal" or phrases such as "falling on deaf ears." The Ontario Human Rights Commission recently produced its brochure on Disability and The Duty to Accommodate: Your Rights & Responsibilities http://www.ohrc.on.ca/en/issues/disability that recognizes the need to prevent ableism. The brochure states: Keep in mind that barriers aren't just physical. Taking steps to prevent ableism" --attitudes in society that devalue and limit the potential of persons with disabilities-will help promote respect, dignity and the full participation of persons with disabilities in the life of the community." Thomas Hehir, a leading scholar and disability advocate, whose book New Directions in Special Education: Eliminating Ableism in Policy and Practice examines the ways that cultural attitudes about disability systematically negatively affect the education of children with disabilities. Drawing on the personal success stories of adults with disabilities. Hehir calls for an increase in research and scholarly inquiry into the effects of ableist assumptions on students with disabilities, Hehir offers some suggestions to help remove ableist practices such as: - Include disability as part of schools' overall diversity efforts. - Encourage disabled students to develop and use the skills and modes of expression that work best for them. - Train teachers on how to accommodate the needs of students with disabilities so that they can access the school curriculum fully. - The disability community should unite to push for full inclusion of all students in schools. - Teachers should begin with the expectation that all students can meet the standard expectations and they should be properly trained in accommodating the needs of students so they can achieve the expectations - Design educational programs from the beginning that allow for access and success for all students. Ontario's Ministry of Education has stated that it is working towards the removal of ableism in the policies and practices of schools. The Ministry is in the process of issuing a Policy and Program Memorandum (PPM) to provide direction to schools on the development and monitoring of equity and inclusive education policies. The Ministry released a report called Shared Solutions: A Guide to Preventing and Resolving Conflicts Regarding Programs and Services for Students with Special Education Needs, 2007 which is described as: This resource guide is intended to help parents, educators, and students with special education needs work together to prevent conflicts, resolve them quickly, and allow students to develop their full potential and succeed in school. As well, the Ministry recently released Realizing the Promise of Diversity: Ontario's Equity and Inclusive Education Strategy, 2009 which outline's Ontario's strategy for reaching its "goal of making Ontario's education system the most inclusive in the world". The experiences of students with disabilities show that Ontario is far from being the most inclusive education system in the world. Advocates should be encouraged to use these Ministry documents to push for the rights of all students to be given the opportunity to achieve the goals that reflect their true abilities. - - Important Deadline - Human Rights Matters JUNE 30 2009 By Edgar-Andre Montigny, Staff Lawyer All transitional applications under s. 53(3) of the Human Rights Code (Code) must be received by the Tribunal no later than June 30, 2009. This deadline applies to you if you: a) filed a complaint with the Ontario Human Rights Commission before June 30, 2008 b) were a respondent to such a complaint c) were an affected person in respect of such a complaint and the complaint was not a) referred to the Human Rights Tribunal as of December 31, 2008; or b) settled, withdrawn or dealt with finally on the merits. Background In 2008 the process for hearing human rights complaints in Ontario was revised. Under the old system complaints were filed with the Human Rights Commission (Commission). The Commission then decided which cases would proceed to the Human Rights Tribunal (Tribunal). Under the new system the Commission no longer has the authority to investigate or resolve human rights complaints. Complaints (or applications) must now be filed directly with the Tribunal. A Human Rights Legal Support Centre was created to assist people with these new applications - see their website http://www.hrlsc.on.ca The new process allowed for a transitional period during which complaints filed with the Commission before June 30, 2008 could be transferred to the Tribunal under the new system. These are referred to as "transitional applications". There were two deadlines for people wishing to transfer their complaint from the Commission to the Tribunal. 1) Between June 30 2008 and December 31, 2008 any person who had filed a complaint with the Commission which had not been resolved or withdrawn was able to abandon that complaint and file a new application with the Tribunal under s. 53(3) of the Code. These complaints would then be resolved using an expedited process. People who filed a new application under s. 53(3) of the Code, must continue under the expedited process. If you missed the December 31, 2008 deadline you may still file a complaint with the Tribunal (see below). However, the expedited process available to persons who filed an application before December 31, 2008, is no longer available. 2) The current June 30, 2009 deadline applies to any person who filed a complaint with the Commission prior to June 30 2008 but did not file a new application with the Tribunal under s. 53(3) "the expedited process" by December 31, 2008. These people must now file a new application to the Tribunal under s. 53(5) of the Code. There are special simplified forms available to assist with the new application process. These new applications will be dealt with according to a process that mirrors the more formal hearing process used for new applications where no prior complaint had been made to the Commission. Failure to make an application under s. 53(5) by June 30, 2009 will mean that you may not be permitted to raise the subject matter of your complaint before the Human Rights Tribunal. The Tribunal will schedule mediation sessions for all claims transferred from the Commission to the Tribunal. The goal of mediation will be to achieve a settlement that meets the needs of both sides involved in the complaint. For more information visit the Ontario Human Rights Tribunal website - http://www.hrto.ca/New/application - where you will find Rules of Procedure for Transitional Complaints, Forms, and Information Sheets for Transitional Cases. You can also contact the Human Rights Tribunal directly: Telephone: (416) 326-1312 or 1-866-598-0322 TTY 1-800-424-1168 Further information is available from the Human Rights Legal Support Centre website http://www.hrlsc.on.ca, however, the Support Centre cannot represent or assist people with the filing of 'transitional' applications. There is also information at Ontario Human Rights Commission at: http://www.hrto.ca/NEW/word/guide%20to%20section%2053(5)%20applications.doc. - - ONTARIO BUDGET 2009 By Laurie Letheren, Staff Lawyer On March 26, 2009, the Ontario Government delivered its budget plan for the next year. Although, there is little in the budget that might be expected to significantly improve the lives of people with disabilities in Ontario, a few of the budget announcements could provide some benefit: - The government is providing $400 million more in children's benefits over the next three years, providing some families with up to $1,100 annually per child in Ontario Child Benefit payments starting July 2009. - The government is providing $1.2 billion to renovate 50,000 social housing units and build 4,500 new affordable housing units for low-income seniors and people with disabilities. - The government will increase the adult basic allowance and maximum shelter allowance by 2 per cent in November 2009 for Ontario Disability Support Plan recipients and in December 2009 for Ontario Works recipients. - The government announced that the minimum wage would rise to $10.25 per hour by 2010. On March 31, 2009, the minimum wage increased by 75 cents per hour to $9.50. - The government is proposing to provide more than $5 million annually beginning to ensure stable funding for municipal rent banks across Ontario. There was mixed reaction to the budget from organizations that work with people who have low incomes and people with disabilities. The 25 in 5 Network for Poverty Reduction stated, Today's budget took crucial steps to bring Ontario closer to the goal of reducing poverty by 25% by 2013. But the budget needed to go further to help low-income individuals and families get by in current tough economic times Michael Shapcott of the Wellesley Institute said, Matching federal infrastructure dollars to build more affordable housing and repair existing social housing units is smart economic stimulus and an investment to keep tens of thousands of Ontarians out of the cold in this recession and beyond. In reaction to the budget, the Advocacy Centre for Tenants Ontario made the following statements, The province's $624 million for new affordable housing and repair of existing units in today's budget is a good start on building a long-term affordable housing strategy, but it's only half of what's needed... We applaud the annualizing of the Rent Bank fund for short-term financial crises. A press release issued by the Income Security Advocacy Office at the time the budget contained the following statements: The McGuinty government is moving in the right direction on poverty reduction in Ontario. This budget shows that government is beginning to take the needs of people on social assistance seriously - which is vital, since the welfare rolls in this province are only going to grow. Allowing the increases to the sales tax credit to flow through to Ontario Works and the Ontario Disability Support Program, and accelerating the Ontario Child Benefit will put urgently-needed money into the pockets of people on assistance. The next step for the McGuinty government is to begin the Social Assistance Review that was promised in the Poverty Reduction Strategy. They have acknowledged that the social assistance system is broken. It doesn't provide enough money to let people eat and pay the rent, it doesn't provide meaningful assistance to find and keep a job, nor does it address the many other barriers that people face. Now the government needs to do the work to make social assistance consistent with their goals of poverty reduction and the provision of opportunity. It is up to the citizens of Ontario to insure that the provincial government keeps the promises that were outlined in the budget. - - BILL 152, "Poverty Reduction Act" Passed Into Law by Unanimous Vote May 6, 2009 By Edgar-Andre Montigny, Staff Lawyer Recognizing that the government can and should play an active and leading role in reducing poverty, the Ontario Government has committed itself to an on-going long-term plan for poverty reduction. "An Act Respecting a Long-Term strategy to Reduce Poverty in Ontario, 2009, S.O. 2009, c. 10 - Bill 152," states that the government will maintain the poverty reduction strategy set out in "Breaking the Cycle - Ontario's Poverty Reduction Strategy" [Breaking the Cycle], published on December 4, 2008 or "another poverty reduction strategy that reflects Ontario's aspiration to be a leading jurisdiction in reducing poverty" and that is "guided by the vision of a province where every person has the opportunity to achieve his or her full potential and contribute to and participate in a prosperous and healthy Ontario." The Act recognizes that the implementation and success of the strategy will require the sustained commitment of all levels of government, all sectors of Ontario society and a growing economy. It was clear when it was first released, that Breaking the Cycle, would form the basis of government's poverty reduction program. The concern for persons with disabilities was that Breaking the Cycle made it clear that the principle goal of the province's Poverty reduction plan was to effect a 25% reduction in child poverty within 5 years. Given that a large number of low-income people with disabilities are adults who do not live within a family setting and often have no children, many noted that there was a clear risk that a child and family centred poverty reduction strategy could leave behind a large portion of the low-income population of people with disabilities. While the document acknowledged that persons with disabilities face a higher risk of living in poverty, there was little offered in the way of obvious or direct action to eliminate poverty among persons with disabilities. Since the release of Breaking the Cycle a number of groups worked to ensure that the final version of Bill 152 dealt with the omissions and weaknesses contained in the document. Both the Income Security Advocacy Centre http://www.incomesecurity.org and the "25in5 Network for Poverty Reduction" http://25in5.ca offer detailed accounts of these efforts. These groups were assisted by members of the Legislature who, during the debates on Bill 152, urged the government to add a more specific and concrete commitment to low-income persons with a disability to Bill 152. Michael Prue who is the Disabilities Critic for the New Democratic Party, suggested that a poverty strategy should start with a focus on people with disabilities, noting the extremely low rates of ODSP benefits and voicing his fear that a child centred Bill 152 would simply leave thousands of people with disabilities to continue living in poverty. Meanwhile, Frank Klees, of the Progressive Conservative Party, argued that "surely this government can do better", when it came to addresses the poverty of many people with mental health disabilities. While not every proposed amendment was accepted, many recommendations were incorporated into the amended act, making it a much stronger piece of legislation. As outlined by 25in5 Network for Poverty Reduction, foremost among these changes and additions were: - a recognition of and stronger commitment to the reduction of poverty among adults as well as among children and families - an acknowledgement that 'not all groups of people share the same risk of poverty", coupled with stronger language regarding the significance of discrimination on various grounds, including disability and the need to pay particular attention to the barriers faced by vulnerable groups - stronger language to support the involvement of Ontarians, especially people living in poverty, in the design and implementation of poverty reduction strategies. In particular, Bill 152 states that the minister shall consult with representatives of people at heightened risk of poverty, such as women, immigrants, single mothers, aboriginal peoples, racialized groups and people with disabilities. - stronger language regarding the indicators to be used to measure poverty specifying that determinants of poverty include but are not limited to income, education, health, housing and standard of living. Recommendations that were not implemented: - a statement to the effect that "strengthening Ontario's human rights laws and the enforcement system is essential to the reduction of poverty" - a statement that Ontario's laws, policies and practices will be consistent with the principles outlined in the Act. - The creation of an independent body to review and assess progress on poverty reduction. There is still little detail of the steps the government will take to reduce poverty for persons with disabilities. Aside from general principles that recognize the increased vulnerability of certain populations, such as people with disabilities, to poverty, and a strengthened commitment to assisting adults living in poverty as well as children and families, the Act does not make any clear statements addressing persons with disabilities. Although some persons with disabilities may benefit from policies intended to alleviate poverty in general, there is no indication in Bill 152 that any policies will directly target the particular barriers faced by people with disabilities. Adult persons with disabilities who face barriers that cannot be addressed by general poverty reduction strategies may find that Bill 152 is of limited immediate assistance. However, in the sense that Bill 152 hails a new era where the government is committed to poverty reduction in general and the public is able to hold the government accountable to produce real results, people with disabilities living in poverty should benefit. The fact that the government must consult with representatives of people from groups vulnerable to poverty also carries a grain of hope that persons with disabilities may yet be able to ensure that the specific needs of low income persons will be addressed more directly in the future. So despite some omissions and flaws, groups such as ISAC and 25in5 feel that Bill 152 is nevertheless an important legislative milestone and should become a useful tool to allow various poverty activists and advocacy groups to hold the government accountable to live up to its promises regarding poverty reduction. For more information please see the ISAC (Income Security Advocacy Centre) website at http://www.income security.org and the 25in5 Network for Poverty Reduction website at http://25in5.ca - in particular see 25in5 Network for Poverty Reduction, "Real Gains Made as Poverty Reduction becomes law" (April 29, 2009). - - Tranchemontagne/Werbeski - The Saga Continues By Edgar-Andre Montigny, Staff Lawyer On April 20 2009 the Divisional Court released its decision in Ontario Disability Support Program v. Tranchemontagne and Werbeski (hereafter referred to as Tranchemontagne). The decision confirmed the earlier finding of the Social Benefits Tribunal (SBT) that s. 5 (2)(a) of the Ontario Disability Support Program Act, (ODSPA), is discriminatory and inconsistent with the Human Rights Code, (hereafter Code) and therefore, invalid. Section 5(2) of the ODSPA is the section that says that if the only condition that causes an impairment of the person's activities of daily living is an addiction to drugs or alcohol, that person is not eligible to receive benefits under the ODSPA. While this decision has been long awaited - it is not the end of the saga. The Director of the Ontario Disability Support Program (hereafter "the Director") has already filed a Notice that she intends to seek leave to appeal the decision to the Ontario Court of Appeal. A case that has already been to the Supreme Court of Canada (on a related but separate issue, see below), could once again be headed to the nation's highest court, mainly because the Director feels it is actually in the best interests of people disabled by addiction to be denied ODSP benefits and forced to survive on the much less money and more punitive Ontario Works (OW) system. Background Tranchemontagne and the challenge to s. 5(2) of the ODSPA has been in progress for a decade now. The saga began in 1999 when first Robert Tranchemontagne and then Norman Werbeski were denied ODSP benefits by the Director on the basis that they were not "a person with a disability' because their impairments were caused solely by their addictions. They appealed that decision to the SBT. In 2001, the SBT, in separate hearings, found that the men were indeed persons 'with a disability'. However, as their sole impairment was addiction, s. 5(2) made them ineligible to receive income support through ODSP. Both men argued at their hearings that s. 5(2) discriminated against them on the basis of their disability and was therefore contrary to the Code. They urged the SBT to find section 5(2) of the ODSPA discriminatory and therefore that section of the ODSPA should not be applied when the SBT is deciding if they should receive ODSP benefits as people with disabilities. The SBT argued that it had no power to apply the Code when making a decision and the that a determination about any alleged violation of the Code had to be decided by the Ontario Human Rights Commission. This aspect of the SBT decision was appealed and made its way from the Divisional Court to the Court of Appeal for Ontario to the Supreme Court of Canada, where it was finally decided in 2006 that the SBT not only had the power to decide whether s. 5(2) of the ODSPA violated the Code, but that they had an obligation to do so. The Supreme Court returned the case to the SBT for the SBT to decide whether s. 5(2) violated s. 1 of the Code. For more details on this early part of this case see the article "Supreme Court Decides Human Rights Cases" in the June 2006 edition of ARCH Alert. After the Supreme Court sent this case back to the SBT, the SBT determined that s. 5(2) was in violation of the Code and therefore not applicable and that these men were eligible to receive ODSP benefits as people with disabilities. The Director appealed this decision to the Divisional Court and as noted above, the Divisional Court agreed with the SBT. The Director has now asked the Ontario Court of Appeal to agree to hear an appeal of the Divisional Court's decision. The Director argues that the Divisional Court was wrong to say that s. 5(2) of the ODSPA violates the Code. The Director argues that section 5(2) is a form of "ameliorative program" or a program intended to benefit persons whose sole disability relates to an addiction and that the Code says that such programs cannot be found to violate the Code. The Director claims that denying people with addictions ODSP benefits directs them to the OW program which, the Director argues, is more appropriate and beneficial for people with addictions than ODSP. The Director's arguments are based upon the evidence of the Director's medical expert who argued that all persons with addictions are capable of recovery, the work-related activities required under OW assist in the addiction recovery process by promoting responsibility and self-esteem, and the lower benefits offered under OW assist in the recovery process by limiting the funds available to spend on drugs or alcohol. The SBT and the Divisional Court have both rejected the claim that s. 5(2) was ameliorative on the basis that the evidence put forward by the Director did not convince the Court that the denial of ODSP benefits to people with addictions did anything to promote their equality interests or improve their social or economic situation. Instead the Divisional Court found that the Director's arguments concerning the ability of all people with addictions to work created stereotypical attitudes toward people with addictions, namely that people with addictions who do not also suffered from an additional medical disorder are not genuinely disabled or at least not as disabled as persons with other disabilities. The Court also rejected the argument that OW was more suited to promoting the interests of people with addictions since there is nothing in the ODSP act to prevent ODSP recipients from re-entering the workforce. There is no need to force people with addictions onto OW to ensure they are encouraged to pursue employment when able. The Court also rejected the argument that maintaining people with addictions on OW benefited them by offering them less money to spend on their addictions. The Court found that there was no reason to believe that people with addictions were more likely to spend the extra money ODSP might offer them on drugs or alcohol than on food or rent. The Court also pointed out that people with addictions and other disabilities can receive the higher ODSP amount without any concern for how they might spend the money. The court accepted that the s. 5(2) rather than ameliorating the conditions of people with addictions imposed additional and unacceptable burdens upon them. In making these findings the Court followed earlier cases which outlined that when determining whether an ameliorative program was immune from claims of discrimination, the actual impact of the program upon those it was intended to benefit was a factor to consider. An ameliorative or special program is supposed to prevent, reduce or eliminate disadvantages, by improving the opportunities of disadvantaged persons to promote equality and protect disadvantage groups from discrimination. The recently Supreme Court of Canada decision in R. v. Kapp appears to raise the question of whether a court needs to consider the impact of the program or whether a court can simply accept the government's position that a program in question is an "ameliorative program". Even if the mere claim that a program is ameliorative is sufficient to protect it from claims of discrimination by those who are not part of the targeted group, it is far from certain whether the same could be said in cases where the claim of discrimination comes from a member of the very group the program is to benefit. It would seem in such cases there would be a greater need to examine the actual impact of the program rather that just accept a claim that the program was intended to benefit a disadvantaged group. If the Court of Appeal for Ontario agrees to hear the Director's appeal, it will be up to the Court answer these questions and determine whether s. 5(2) of the ODSPA is discriminatory and therefore invalid or whether it can be properly characterized as an ameliorative program and therefore protected from claims of discrimination. Because of the important questions that this case raises we may very well see this second part of the Tranchemontagne case reach the Supreme Court of Canada. The saga continues.... - - Study on Barriers to Access to Legal Information and Legal Services By Laurie Letheren, Staff Lawyer The Law Foundation of Ontario funded a study of the barriers that people in Ontario face in attempting to access legal information or legal services because English is not their first language or because they live in remote areas of Ontario. The study focused on low-income and people who are otherwise vulnerable. Those conducting the study looked at the problems that people had in getting the legal information they needed in order to better understand their legal problem and in getting assistance to take steps to resolving the problem. The study also examined the difficulties that people with disabilities face in getting legal information and services. Some of the key findings In early 2009, the Law Foundation of Ontario released the report, "Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services". Some of the key findings that are outlined in the report are: - Both those who do not speak English as a first language and those who live in rural and remote areas face a shortage of lawyers to help them. - Both groups often have less access to and comfort with technology. - There is limited availability of clear and accurate multilingual legal information and interpretation services. - Those who face language barriers, isolation, poverty, or other difficulties that often accompany a legal problem, need to receive direct services rather than to rely on self-help. - There is a large gap between the services required and the resources available. - There is a need for a better link between community service organizations and organizations that deliver legal information and services. Summary of recommendations The Law Foundation recommended that it fund and support six initiatives to assist in addressing the current barriers in linguistic and rural access to justice: - Building the capacity of non-legal community organizations to provide basic legal information and referral to their clients. - Select one or more geographic areas and develop, test, and evaluate a coordinated approach for improving access to legal information and services in that region. - Assist in the creation of a network to develop strategies to improve language and sign language interpretation in legal settings. - Conduct pilot projects to increase access to legal information and services through videoconferencing. - Create new articling student placements in organizations that provide legal services to clients in rural or remote areas. Other articling positions would be created for students who can deliver services to non-English speaking clients. - Establish an online resource for information related to access to legal assistance for those people living in remote areas and for those people who do not speak English. The Law Foundation's report also makes several proposals for work that the Foundation could do in co-operation with the federal and provincial governments and legal organizations such as Legal Aid Ontario, the Law Society of Upper Canada, and Pro Bono Law Ontario. The full report is available on the Foundation's website at www.lawfoundation.on.ca. - - COMMUNITY ANNOUNCEMENTS Citizens with Disabilities Ontario Webinars Citizens with Disabilities Ontario is presenting a series of information seminars on the web. The seminars allow you to access information and to ask questions of the presenters. Planned Webinars Wheel-Trans Tips and Tricks: Consumer advice for making the system work for you When: 7:30 pm, Thursday, June 18, 2009 Presenter: Tracy Odell Whether you are new to Toronto's Wheel-Trans or have been using the service for years, there will be a tip for you. This consumer-led presentation will help you get the most out of the service with less aggravation. To register go to: http://www.cwd-o.org/webinars_main_page.htm Cell Phone Applications When: 7:30 pm, Thursday, June 26, 2009 Presenter: Jeffrey D. Stark What is a "smart phone" and can I use it? What applications of a cell phone best suit my needs? If my service provider does not have the phone I need, can I purchase it and use it anyway? Do cell phones work with my disability? Can I use "video relay" with any cell phone and any service provider? Presenter Jeff Stark will answer these questions, and many more. For more details, go to the Technology Resource Committee website, update on activities. Click on the link to register http://fd8.formdesk.com/odell/Cell_Phone_Apps_Register More - Coming soon! July - the United Nations Convention on the Rights of People with Disabilities Presenters: Dr. Marcia Rioux and colleagues from York University's Critical Disability Studies Master's and Doctoral programs. A webinar about the United Nations Convention on the Rights of Persons with Disabilities. What is good, bad and unfortunate about the UN Convention? Will it make a difference in my life? Why is it important to ratify the Convention? August - Disability Rights Promotion International (DRPI) Presenters: Dr. Marcia Rioux and colleagues from York University's Critical Disability Studies Master's and Doctoral programs. Disability Rights Promotion International (DRPI) is a collaborative project working to establish a monitoring system to address disability discrimination globally. D.R.P.I. has adopted a holistic approach to disability rights monitoring, with three focus areas: individual experiences monitoring, systemic monitoring and media monitoring. Find out more about this work and how you can get involved. August - What First Time Students with Disabilities going to University or College Should Know. Presenter: Melissa Graham, CWDO Board Member and Advocate. What First Time Students with Disabilities going to University or College Should Know: The do's. The don'ts. The tricks discovered and developed by students with disabilities currently attending Ontario universities. Learn how to make the best of university from students who have been there and done that. September - Re-Framing Service Issues as Human Rights Issues Presenters: Dr. Marcia Rioux and colleagues from York University's Critical Disability Studies Master's and Doctoral programs. This webinar will explain the importance of using human rights as a framework for promoting change. All too often, our concerns get treated as mere "service" issues, vulnerable to being dismissed. A human rights perspective can strengthen arguments for action and lead to sweeping, systemic change. New Consumer Directed Support Service for Youth With Disabilities What is it: In partnership with the Easter Seal Society, Ontario March of Dimes is launching Life Stage Transitions project. This is a new consumer directed support service for youth with disabilities to help them learn about services that are available services to help you the with physical disabilities move into adulthood. in the areas of: Independent Living, Employment, Education and Recreation. This service also offers the option of a Peer Advisor. This relationship will provide youth with an arena to voice their concerns and queries both safely and confidentially with someone who has lived experience transitioning to adulthood. Who is it for: If you are a youth with a physical disability between the ages of 16-29 and would like to get involved or hear more about this service contact Antonia Hammer at 416 425-3463 ext. 7209 or ahammer@marchofdimes.ca TTC Public Information Forum on Accessible Transit Where: Queen Elizabeth Exhibition Hall, Exhibition Place, 180 Princes' Boulevard When: Tuesday, June 23, 2009 - 7:00 pm to 9:00 pm Let the TTC know how it can make the conventional and door-to-door (Wheel-Trans) public transit services in Toronto better for our customers with disabilities. TTC will be providing Accessible Shuttle Service from Bathurst Subway Station to the Public Forum leaving Accessible Bathurst Subway Station starting at 6:00 p.m. and leaving the Queen Elizabeth Building starting at 9:00 p.m. You can also take the 29 Dufferin Accessible Bus right to the event For assistance in planning your trip using the TTC Accessible Transit Network, call TTC Customer Information at 416-393-INFO (4636). Starting on Saturday, June 20, you may book your Wheel-Trans trips to the Public Information Forum. Please Note: at the time you make your booking, you will receive only your pick-up time to the event. The return trips will be coordinated at the location. Participants with Vision Loss Needed for Study on Video Description A researcher at Ryerson University in Toronto is currently conducting an online study concerning video description and she is looking for some participants with vision loss to give their opinions. The study can be completed online with the help of a screen reader or sighted friend. The survey takes about 30 minutes in total to complete. The survey can be completed at: http://www.livedescribe.com/research/Web_Survey/ If you have any questions you can contact: Carmen Branje, BSc. MMSc. Ryerson University Center for Learning Technology 416-979-5000 ex2526 http://www.ryerson.ca/clt/ Safe Engaged Environments - Disability (SEED) Safety Discussion Focus Groups for People with Disabilities - What does safety mean to you? - What are your top 3 safety concerns?: In your home? & In your community? - What are some of the things that can be done to stop these issues? You are invited to attend one of two focus group discussions to be held for people with disabilities and their family members/supporters who wish to contribute to developing ideas and actions in respect to safety matters in order to improve the lives of people with disabilities. Please join us on: Date: Tuesday, June 16, 2009 Time: 1:00 p.m. to 3:30 p.m. Place: Birchmount Bluffs Community Centre, 93 Birchmount Rd. (at Kingston Rd) Or Date: Thursday, June 18, 2009 Time: 6:00 p.m. to 8:30 p.m. Place: Centre for Independent Living in Toronto, 365 Bloor Street East, Suite 902, (at Sherbourne) Pizza, light refreshments & transportation reimbursement (TTC tokens) will be provided. This event is wheelchair accessible and scent-free. Please advise us of your accessibility accommodations related to attendant services, diet, and/or other needs. Registration is limited to 2-3 people per organization as space is limited. Please RSVP to John Mossa by Friday, June 12, 2009 at 416-599-2458 ext. 238 or ilskills@cilt.ca Time for a Bold Review: Making Social Assistance Meet the Poverty Reduction Test The current social assistance system in Ontario "stomps people into the ground," says Premier McGuinty. The question is: What is going to be done about it? Our four insightful and powerful panelists will discuss why we need a bold Social Assistance Review, and how this kind of significant change can take place. Panelists: Crystal Chin Crystal is currently a recipient of ODSP and an active advocate on the Barrier Free Council at Ann Johnston Health Station. Crystal has recently become involved with the ODSP Action Coalition and is a long-time volunteer at Bloorview Kids Rehab. Marion Overholt Marion is Staff Lawyer at Legal Assistance of Windsor and a long time poverty law activist and social justice advocate. She is the Social Justice Representative on the Windsor and District Labour Council and chairs the Ford/CAW Local 200 Workplace Adjustment Committee. Angela Robertson Angela is the Executive Director of Sistering - A Woman's Place, and a dedicated community advocate with a commitment to anti-racism, feminism, community-based research, and social justice. Angela is the 2009 YWCA award recipient for social change. Judy Rebick Judy is a well-known social justice activist, educator, writer and speaker, and holds the Sam Gindin chair in Social Justice and Democracy at Ryerson University. She is also the founder of rabble.ca, Canada's most popular independent online news and discussion site. Date: June 23, 2009 Time: 9:00 am - 12:00 pm Location: Multi-Faith Centre Auditorium Koffler Institute Building University of Toronto 569 Spadina Avenue Toronto, Ontario For more information about this event: email isac@lao.on.ca or call 416-597-5820 Ottawa Poverty Reduction Network Poverty Reduction: Are you part of the solution? Panel Presentation and Discussion on Current Poverty Solutions What's Working? What's Missing? Date: June 22, 2009 Time: 11:00a.m. -2:00p.m. Location: 171 George St. PLEASE REGISTER BY JUNE 15, 2009 LUNCH PROVIDED! The space is physically accessible and welcoming! Please pre-register so we can plan for plenty of food as well as bus tickets and reimbursements for mileage costs and childcare. To Register Please Jenn at 613-737-7600 ext. 3477 or email: ochai@magma.ca Recruitment and Community Outreach Section of Toronto Fire Services The Fire Chief's Council on Access, Equity and Diversity is looking for members of the disabled community to participate on the Council. Criteria for representation includes: - The extent to which a person is representative of a particular community; - The extent to which a person will be able to be effective in their ability to represent the relevant issues of their respective community; - The extent to which a person will be able to contribute specifically to issues relevant to Toronto Fire Services; To suggest one or more people as participants, contact: Dan Haden TORONTO FIRE SERVICES Tel: 416-338-9518 Cell: 416-937-8352 dhaden@toronto.ca Canadian Lyme Disease Foundation seeks Volunteer Board Member The Canadian Lyme Disease Foundation is a not-for-profit charitable organization dedicated to increasing awareness of Lyme disease in Canada. The Foundation is currently seeking a volunteer Board member from Ontario with experience in health policy and government lobbying. If you are interested, please contact Jim Wilson, President, at jimwilson@telus.net before June 15th, 2009. You can learn more about the Canadian Lyme Disease Foundation and all their work at www.canlyme.com. ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail 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/