ARCH ALERT June 2, 2005 ARCH: A Legal Resource Centre for Persons with Disabilities 425 Bloor St. E. Ste. 110 Toronto, Ontario M4W 3R5 Tel.: 416-482-8255 Toll-free: 1-866-482-2724 Fax: 416-482-2981 Toll-free: 1-866-881-2723 TTY: 416-482-1254 Toll-free: 1-866-482-2728 www.archlegalclinic.ca INSIDE THIS ISSUE - Come and Celebrate ARCH’s 25th Anniversary - Unanimous Approval of Accessibility for Ontarians with Disabilities Act - Forum on Abuse of Persons with Disabilities - ARCH Releases Fact Sheets about Abuse of Persons with Disabilities - ARCH at the Supreme Court - Telecom Report - OHRC Inquiry on Paratransit Services Continues - Automatic Reinstatement for CPP Disability Benefits - New Cross-Disability Organization to Connect Nationally, Act Locally - Ontario Budget Provides Little Help for Persons with Disabilities - New Criminal Law, Bill C-10, Comes into Effect - Submission on Bill 158, Film Classification Act, 2005 - ODSP Update - Recent Human Rights Decisions in Employment Law - LeSage Reports on Police Complaints Review - Human Rights and Employment Equity Reports - Book Review - Library Update - New Face at ARCH Come and Celebrate ARCH’s 25th Anniversary By Phyllis Gordon, Executive Director ARCH opened its doors in 1980 and this year we are having a party to celebrate. Mark your calendars and come and join us on the evening of Thursday, 6 October 2005, for our Annual General Meeting and then, our party. We are looking forward to a wonderful evening of reminiscences, friendship, buffet supper and entertainment. This great event will be taking place at the Marriott Hotel, Bloor Yorkville, thanks to the generous support of the CIBC. More details will follow. *** Unanimous Approval of Accessibility for Ontarians with Disabilities Act By Cara Wilkie, Student at Law On 10 May 2005, to the great pleasure of the disability community, the Ontario Legislature unanimously passed Bill 118, the Accessibility for Ontarians with Disabilities Act (the "AODA"). The formality of Royal Assent (approval by the Lieutenant Governor) is the only remaining step before the AODA becomes law. Following the public hearings on Bill 118, the Standing Committee on Social Policy debated many amendments proposed by the Committee members. While not all of the amendments recommended by the ODA Committee, ARCH and others from the disability community were adopted, several were. The most important amendments include: - Terms of reference of standards development committees must be public; - The government must make proposed exemptions to standards public for comment prior to enacting them as regulations; - Members of the standards development committees can be paid and have their expenses reimbursed; - Accessibility standards may apply to the Legislature; - The government is required to appoint inspectors and a tribunal; - The Accessibility Directorate will consult with educational institutions on accessibility training and will inform organizations about preliminary measures that can be taken to ensure that they are more accessible; - Disclosure of personal information is no longer permitted for enforcement of the AODA; - The Minister must prepare an annual report on progress under the AODA; and - A comprehensive review of the effectiveness of the AODA must be undertaken within four years of it coming into force. ARCH is enthusiastic about the AODA’s potential to improve accessibility in Ontario. However, success will depend on the continued cooperation and commitment of the provincial government, the disability community, and the people, businesses and organizations to which the AODA will apply. ARCH Alert will continue to provide updates on the AODA’s progress and implementation. *** Forum on Abuse of Persons with Disabilities By Michelle Wood, Student at Law In celebration of National Access Awareness week, the Law Society of Upper Canada and ARCH partnered to hold a forum and reception about addressing abuse experienced by persons with disabilities. The event was held on 31 May 2005 and was attended by approximately 120 people. Those who attended included persons with disabilities, service providers, attendants, advocates, persons working in policy and research, lawyers and members of the media. The panel discussion was moderated by Josée Bouchard, the Equity Advisor for the Law Society. The first presenter was Fran Odette, who is a Project Co-ordinator for the Women with Disabilities and Deaf Women’s Program at Education Wife Assault. Fran described the history of institutionalization and dehumanization of persons with disabilities and the links between these two forces and abuse. Fran also discussed the difficulties faced by women with disabilities who are victims of abuse in gaining meaningful access to the criminal justice system. She highlighted certain systemic biases in the system, including a presumption that women with cognitive disabilities are not "credible" witnesses. Fran suggested that access to justice for persons with disabilities who have experienced abuse will be improved only through more and better education, additional partnerships, research and resources. Despite the difficulties, she urged persons with disabilities who have experienced abuse to continue to come forward and struggle to gain access to justice. During her presentation, Lana Kerzner, a staff lawyer at ARCH, addressed two of the most common questions that ARCH receives with respect to abuse issues. These questions are: 1) how is abuse defined in law? and 2) what is the legal remedy for abuse? There are no easy answers to these seemingly simple questions. Lana explained that there is no single definition of abuse in law and that there are many avenues that a person who has experienced abuse might pursue in order to address the abuse. Many of these avenues are unknown to persons with disabilities, service providers and lawyers. If a person with a disability has been or is being abused, their particular circumstances and needs, as well as the legal context, should dictate the most appropriate avenue. The most well known and immediate action that persons who have experienced abuse often take is to contact the police. This may result in the abuser being charged with a criminal offence. Some of the additional processes and mechanisms available are the Criminal Injuries Compensation Board, filing a human rights complaint, complaining to the College that regulates the health or service professional who committed the abuse, complaining to the appropriate governing Ministry, or starting a civil action (suing). Lana stressed that, ultimately, once all the options for redress and the particular circumstances of the individual have been canvassed, it is the person who has experienced abuse who should decide which legal avenue they want to pursue. Gwen Reid spoke about her experience as someone who has survived a sexual assault and been a witness in the criminal trial of her assailant. Gwen works as a facilitator and trainer with Education Wife Assault and Sexability, and part-time at the 519 Church Street Community Centre in the Community Living Programme with persons living with intellectual and multiple disabilities. Gwen openly shared her personal experiences with the criminal justice system. She described the physical barriers she encountered, such as not being able to enter the witness box without being transferred out of her wheelchair. She also described the biases and myths regarding persons with disabilities and sexuality that she struggled to overcome during the process. Like other presenters, Gwen promoted education as the most appropriate way to address the biases and debunk the myths faced by persons with disabilities who have experienced sexual abuse. In particular, she stressed the importance of sensitivity and accommodation training for police officers. Nevina Crisante, Counsel to the Ontario Victim Service Secretariat at the Ministry of the Attorney General, gave an informative overview of the process and procedure of the criminal justice system, from the point when a victim makes a statement to the police through to the trial and sentencing of a convicted abuser. Nevina explained that Crown counsel represent the Province of Ontario, and are not lawyers for victims. The Crown Attorney, who takes the abuser to trial, may be required to continue the prosecution, even if the person who has experienced abuse does not want to. During the Court process, victims can seek support from the Victim Witness Assistance Program ("VWAP"). VWAP provides services to victims, such as updates on the case, information on the bail conditions of the accused and the victim’s role as a witness. VWAP also may assist a victim with a disability to explain and request, as well as put into place, whatever accommodation they require. Nevina urged persons with disabilities who are involved in the criminal justice process to contact the Crown and/or VWAP and discuss their accommodation needs as early as possible. The question and answer session that followed the presentations was engaging and thoughtful. One message that can be taken away from the discussion is the urgent need for lawyers and police officers to undertake general training regarding disability and accommodation, as well as specific training regarding the accommodation of persons with disabilities who have experienced abuse and are seeking to access the justice system. The development and implementation of any such training and education programs will need to involve consumers. *** ARCH Releases Fact Sheets about Abuse of Persons with Disabilities By Michelle Wood, Student at Law Ten years ago ARCH produced a pamphlet about the abuse of persons with disabilities. Over the years ARCH has received many calls and questions from persons who have experienced abuse, and from their advocates. Given the community’s need for current information, ARCH set out to update and produce new materials addressing persons with disabilities and situations of abuse. In consultation with an Advisory Committee, members of which generously contributed their time and expertise to the project, ARCH has developed the following fact sheets about abuse of persons with disabilities and legal avenues to address such abuse: - Fact Sheet #1: What can I do if I am being abused? - Fact Sheet #2: How can I get monetary compensation? - Fact Sheet #3: What happens when abuse is reported to the police? - Fact Sheet #4: What happens when a case goes to court? - Fact Sheet #5: What happens after the trial? These fact sheets are available on our website and were distributed at the 31 May 2005 forum discussed in the previous article. ARCH would like to thank the following people, who are members of the Advisory Committee, for their knowledge, advice and insight: - Harry Beatty, disability consultant and lawyer - Sandi Bell, equity consultant, mediator and ARCH Board member - Nevina Crisante, Counsel to the Ontario Victim Services Secretariat at the Ministry of the Attorney General - Lana Frado, Executive Director at Sound Times Support Services and ARCH Board member - Jennifer Gibson, Crown Attorney - Tim Kinney, Ontario Federation for Cerebral Palsy - Fran Odette, Project Co-ordinator for the Women with Disabilities and Deaf Women’s Program at Education Wife Assault - Marianne Park, facilitator, instructor, advocate and DAWN Ontario board member - Marie Theresa Paul, board member of the Ethno-Racial People with Disabilities Coalition of Ontario - Cara Wilkie, articling student at ARCH ARCH will continue to work with the Advisory Committee to develop more fact sheets about abuse and persons with disabilities. In addition, ARCH is developing a continuing legal education article for lawyers regarding legal avenues available to persons with disabilities who have experienced abuse. *** ARCH at the Supreme Court By Dianne Wintermute, Staff Lawyer A Nova Scotia law, the Adult Protection Act, allows the Ministry of Health in that province to provide services to adults who are found to be neglected, abused or unable to care for themselves because of their physical or mental disabilities. The services that are provided are supposed to be in the best interests of the adult, and designed to improve their ability to protect or care for themselves. J.J. was found to be an adult in need of protection. She had intellectual and mental disabilities. At first the Ministry decided that she should live in her own apartment, with daily supervision. A Family Court judge approved and J.J. agreed. However, because public money was not made available to pay for this option, the government changed its care plan for J.J. The Ministry proposed that J.J. be placed in an institution that was far away from her husband and family, who provided ongoing support to her. J.J. and her lawyer went to court to challenge this new care plan. The Nova Scotia Family Court told the government that its new plan was not in J.J.’s best interests. However, the Minister of Health appealed to the Nova Scotia Court of Appeal, which disagreed. The Court of Appeals said that when the Ministry proposes a plan of care, courts could not put other conditions or terms on that plan. Unless someone was able to pay for a different plan or care, the courts could only accept or reject the Ministry’s proposed plan. If the court rejected the Ministry’s plan of care, the adult would be left in a terrible position, where no services would be offered at all. J.J. challenged the Court of Appeal decision at the Supreme Court of Canada. The issue was what a court was allowed to do when presented with a government plan of care. On 18 March 2005, the Supreme Court of Canada released its decision in J.J. v. Nova Scotia (Minister of Health). Madam Justice Rosalie Abella, writing for the unanimous Court, held that, in order to fulfill its duty to ensure that the proposed services are in the best interest of the adult, a court must have the ability to amend or change the Ministry’s proposed plan of care. A court can look at the Ministry’s plan, and look at the adult’s best interests. If the Ministry’s plan is not in the adult’s best interests, then a court can attach reasonable terms and conditions to the plan. This is because an adult who is found to be in need of protection has limits on their decision making and independence. The court’s role must be to supervise the decisions that are made on behalf of those adults to make sure that their best interests are respected and upheld. ARCH represented the Interveners, People First of Canada and the Canadian Association for Community Living, in this appeal. Although Ontario does not have a law similar to the Adult Protection Act, some government members have expressed an interest in passing such a law. This decision of the Supreme Court of Canada is therefore a very important statement about the court’s role in determining what is in the best interests of persons with disabilities. The decision can be found at http://www.canlii.org/ca/cas/scc/2005/2005scc12.html *** Telecom Report By Phyllis Gordon, Executive Director The Canadian Radio-television and Telecommunications Commission (CRTC) recently released a decision about local telephone services that are to be delivered with Voice over Internet Protocol (VoIP) technology. This decision has received a great deal of media attention in light of its impact on several very large telecommunications companies. The CRTC held that in accordance with its mandate to create regulatory conditions that allow competition to grow, it is essential for local telephone services that are delivered by the Internet to be regulated, as this is necessary to build sustainable competition. Bell Canada and Telus have indicated their intention to appeal the decision to the Federal Cabinet and perhaps the Federal Court. The cable companies, such as Rogers, are pleased with the outcome. ARCH was one of only a few public interest intervenors at the hearing. Although our submissions regarding accessibility to telecommunications for persons with disabilities have not received media comment, the CRTC did seriously consider our submissions. The CRTC did not adopt all of our submissions but it has given some positive direction with respect to accessibility issues and VoIP. ARCH argued that VoIP services must be designed, from the start, in a manner that meets the needs of persons with disabilities. We illustrated how VoIP technologies have the potential to greatly enhance the ability of persons with disabilities to use existing and new telecommunications services. We also warned that while the opportunities available with such services are significant, there are many ways in which VoIP technology could actually worsen the situation of persons with disabilities. As VoIP products and services begin to permeate our homes, businesses, educational institutions and leisure activities, they will either level the playing field or they will impose ever- increasing barriers in daily living, employment and education. We argued that Canadian law prohibits discrimination with respect to all telecommunications services, no matter what the underlying technology may be. Section 27 (2) of the Telecommunications Act prohibits unjust discrimination in the provision of telecommunications services. Further, this section must be interpreted consistently with section 5 of the Canadian Human Rights Act which requires that services, including telecommunications services, be provided in a non-discriminatory manner. Finally, we submitted that both of these statutory provisions must be interpreted and applied in a manner that complies with the Canadian Charter of Rights and Freedoms. ARCH provided the CRTC with a detailed list of telecom features that should be made immediate requirements at the outset of VoIP implementation, as well as a list of features that should be referred to the CRTC Interconnection Steering Committee (CISC) for study with timely reporting obligations. The CISC has the mandate to undertake tasks related to technological, administrative and operational issues that fall within the CRTC’s jurisdiction. In its decision, the CRTC held that the record of the proceeding was insufficient to examine the reasonableness of ARCH’s requests with respect to VoIP services. However, as it views these to be important issues which require further investigation, it referred several questions to CISC with a requirement to report in six months. The following are the key paragraphs of the decision related to disability: 270. The Commission considers that IP technology has great potential to provide innovative communication tools for disabled consumers. It considers that one of the greatest problems in accessibility for the disabled is a general lack of attention to their needs when new technologies and services are first being developed. The Commission also considers that VoIP service providers should address issues regarding accessibility for the disabled to IP services and ensure that applications and technologies are being developed. In the Commission's view it is more cost- effective to make these technologies, applications and services accessible early in the development process. 271. Accordingly, the Commission requests CISC to assess the accessibility needs of people with disabilities with respect to the development of VoIP technologies. The Commission requests that CISC ensure that VoIP service providers, experts in techno- accessibility, consumer groups such as ARCH, BCOAPO et al., and all other relevant parties have the opportunity to participate in these discussions. 272. The Commission also requests that CISC provide the Commission with a report, within six months, which: identifies the telecommunications needs of persons with disabilities; investigates solutions which meet these needs in the VoIP environment; and provides a plan for the implementation of these solutions. ARCH will be participating at CISC, and will advise others who may wish to do so on how to contact the committee. For more details about ARCH’s submissions please go to our website where the texts of our written and oral submissions have been posted. See http://www.archlegalclinic.ca/aboutARCH/litigation/cases/crtc_sep_21_04/in dex.asp and, http://www.archlegalclinic.ca/aboutARCH/litigation/cases/crtc_Jun_18_04/in dex.asp The CRTC’s decision can be found at: http://www.crtc.gc.ca/archive/ENG/Decisions/2005/dt2005-28.htm *** OHRC Inquiry on Paratransit Services Continues By Heidi Lazar-Meyn, Staff Lawyer, and Michelle Wood, Student at Law On 24 March 2005, ARCH made its submission to the Ontario Human Rights Commission (the "Commission") regarding the inquiry as to whether paratransit services in Toronto, Hamilton, Windsor and London should be designated as "special programs" under the Ontario Human Rights Code (the "Code"). If paratransit services are designated as "special programs" they will, to a large extent, be insulated from complaints of discrimination under the Code. In our submission, ARCH made preliminary comments recommending that these paratransit services be declared not to be "special programs" under the Code. ARCH also pointed out that the Commission’s process is flawed. The Commission asked only thirteen stakeholders and seven transit and paratransit providers to comment on the paper, instead of having a full public consultation. The paratransit and transit providers were allowed to review the stakeholders’ submissions before making their own submissions but the stakeholders did not get to see the paratransit or transit providers’ submissions. Furthermore, the Commission did not contact any paratransit advisory committees or municipal accessibility advisory committees, whose role it is to advise on issues such as this, and did not explain why it was looking at only four paratransit providers. Since making its submission, ARCH has received a copy of the joint submission of two transportation associations. The Canadian Urban Transit Association and the Ontario Community Transportation Association echoed some of ARCH's concerns with respect to the Commission’s process. In particular, they submitted that the Commission's choices as to the number of stakeholders that were invited to comment, and to look at only four paratransit providers, appeared to be arbitrary and underinclusive. They added that the Commission placed itself, the transit and paratransit systems and other stakeholders in adversarial positions by not having a public consultation on this issue. Paratransit advisory committees and municipal accessibility advisory committees also have been making submissions to the Commission now that they know about the inquiry. ARCH will be making further submissions on this issue. We will report on these and on the progress of the Commission’s inquiry in future issues of ARCH Alert. ARCH's submission has been posted on our website at: http://www.archlegalclinic.ca/aboutARCH/lawReform/A73_2005_003169/index.asp *** Automatic Reinstatement for CPP Disability Benefits By Deanna Groetzinger, Vice-President, Communications, Multiple Sclerosis Society of Canada An important change has just been announced for the Canada Pension Plan disability benefit (CPP-D) program. In the past, people who received CPP-D and who tried to work, but were unsuccessful because of their disability, had to go through the entire application process again. The recent change allows CPP-D recipients to have their benefits reinstated any time within two years after they returned to work if they had to stop working because their original disability returned, or because of a related disability. To get automatic reinstatement, persons who were getting CPP-D and returned to work on 31 January 2005 or later need to send a form to Social Development Canada saying that they cannot continue working. They must send this form within one year of the date when they stopped working. They also need to provide a form signed by a physician, confirming that the original disability has returned. CPP says that benefits should be reinstated within three weeks. There is no limit to the number of times that a person can request reinstatement of benefits if they meet CPP’s requirements. For more information, or to get copies of the forms, call Social Development Canada at 1.800.277.9914 (telephone) or 1.800.255.4786 (TTY) or go to their website, www.sdc.gc.ca. The direct link is: http://www.sdc.gc.ca/asp/gateway.asp?hr=en/isp/pub/factsheets/reinstateben.shtml&hs=cdp *** New Cross-Disability Organization to Connect Nationally, Act Locally By Heidi Lazar-Meyn, Staff Lawyer CWD-O (short for "Citizens With Disabilities-Ontario") is a new organization for all persons with disabilities, their families and friends, and persons and organizations interested in promoting disability rights. Jerry Ford, one of the founding members, states that CWD-O’s goal is supporting persons with disabilities in becoming full members of their communities, and "giving them the tools to do that." CWD-O will adopt the policies, activities and goals of the national cross-disability organization Council of Canadians with Disabilities. However, CWD-O will be organized into local groups because, as Mr. Ford explains, "what is important in Niagara Falls may be irrelevant in London." Local groups will cover the same areas as the Ontario Local Health Integration Networks (LHINs). CWD-O chose to use the LHINs as a framework because persons with disabilities come together as they use the health services in their geographical area. Each local group will learn how to get the information and resources that they need to be their own advocates. If you join CWD-O before 30 June 2005, membership is free. For more information, you can go to the organization’s website: http://www.cwd-o.ca/ *** Ontario Budget Provides Little Help for Persons with Disabilities By Michelle Wood, Student at Law The McGuinty government released its second budget for Ontario on 11 May 2005. The budget outlines significant and long-term investments in the areas of education, infrastructure and the economy. Regrettably, the budget fails to specifically address pressing issues in those areas that affect persons with disabilities, and is more notable for what it leaves out than for what it includes. Much fanfare surrounded the budget’s $6.2 billion cumulative investment in colleges, universities and apprenticeship programs over the next five years. This year’s investment will be $683 million. The government’s stated goals for these investments are to improve access to and quality of post- secondary education. Plans to improve access to post-secondary education will be targeted at groups who have traditionally been under-represented. Persons with disabilities are explicitly recognized as one such group. However, the budget does not offer any detail on how access will be improved for persons with disabilities. The budget does not include any increases to the province’s Bursaries for Students with Disabilities program but there is a new "Millennium-Ontario Access Grant" for low-income students. When combined with a similar federal grant, the government promises that the new grants will mean that eligible first-year students could receive grants of up to the lesser of $6,000 or 100 per cent of their tuition. The budget also includes other measures to assist low-income students, including an increase in the weekly Ontario student loan amount to $140 for single students. With respect to elementary and secondary education, the budget proposes to increase the average amount of funding per student to almost $9,200, cap class size at 20 children for students in junior kindergarten through grade 3, and improve teaching, facilities and equipment. In a pre-budget presentation to Ontario Minister of Finance Greg Sorbara, ARCH urged the government to make accessible transportation available throughout the province and across municipal boundaries. While the budget provides for significant investments in transit services such as the TTC, Go Transit, and the Ottawa O-Train, no money is earmarked to improve transit accessibility or to expand paratransit services. Also absent from the budget is an urgently needed increase to benefits under the Ontario Disability Support Program ("ODSP"). Last year’s budget included a 3 per cent increase, the first in 11 years. That increase did not address the serious situation faced by ODSP recipients, whose benefits still leave them living well below the poverty line. Some good news lies in the province’s commitment to adopt the changes to the Disability Tax Credit and the Medical Expenses Tax Credit that were proposed in the 2005 federal budget, as soon as that budget is approved. We wrote about these changes in the Mach 2005 issue of ARCH Alert: http://www.archlegalclinic.ca/publications/archAlert/2005/14_mar01/index.asp *** New Criminal Law, Bill C-10, Comes into Effect By Lesli Bisgould, Staff Lawyer In 2004, in a case known as "Demers", the Supreme Court of Canada determined that certain provisions in the Criminal Code of Canada were unconstitutional. The provisions dealt with persons who are accused of having committed a crime, but are "unfit to stand trial". The problem with the provisions as they existed then was that accused persons who were found to be unfit to stand trial either remained in the system until they were found to have become "fit", or until the government failed to establish a basic case against them. This meant that people like Mr. Demers, who had a permanent intellectual disability and would never be fit to stand trial, could be under the control of the criminal justice system for the rest of his life. There was no way to finally resolve the matter. The Supreme Court decided that this process violated Mr. Demers' constitutional rights because it failed to provide an end to the prosecution and it was too broad. The Court gave the federal government 12 months to change the law, and come up with a better way of handling the cases of persons who are not "fit" to be tried for the criminal charges that they face. Bill C-10 was introduced in October 2004, was quickly discussed in government committee, passed by the government in February 2005, and became law on 19 May 2005. The Bill amends the relevant parts of Part XX.1 of the Criminal Code. Among other provisions, the Bill permits a court to hold an inquiry and order a stay of proceedings for an accused person who is found unfit to stand trial, if the person is not likely to ever be fit to stand trial and does not pose a significant risk to the safety of the public, and if a stay is in the interests of the proper administration of justice. You can expect to read more about this new law as we see how courts interpret it. If you would like to read the Bill you can find it at: www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-10. *** Submission on Bill 158, Film Classification Act, 2005 By Heidi Lazar-Meyn, Staff Lawyer On 30 April 2004, Justice Russell Juriansz of the Ontario Superior Court of Justice decided in the case of R. v. Glad Day Bookshops, Inc., that the sections of the Theatres Act that required film distributors to submit movies and videos to the Ontario Film Review Board ("the Board") for approval before they could be distributed or shown violated the right of free expression in section 2 (b) of the Canadian Charter of Rights and Freedoms (the "Charter"). Justice Juriansz gave the province one year to fix those sections of the Theatres Act so that they did not violate the Charter. If the province did nothing, there would be no film classification system in Ontario starting 1 May 2005. The province later got a four-month extension of the deadline. Just before the original deadline, on 20 April 2004, the Standing Committee on Justice Policy (the "Committee") of the Legislative Assembly of Ontario held a public hearing on Bill 158, the proposed Film Classification Act, 2005 (the "Act"). Members of the Canadian Hearing Society and the Canadian Hard of Hearing Association made signed, oral and written submissions to the Committee. Their recommendations included that: - Films must be captioned before they can be distributed in Ontario; - A theatre can lose its licence to show films if it does not have the equipment to show captions; - The Board should include persons with disabilities; and - Theatre sound and emergency systems should be accessible to persons who are Deaf, deafened or hard of hearing. ARCH made a written submission to the Committee on 25 April 2004. Given that the Bill had a limited purpose, ARCH recommended that, at the very least, the proposed Act include as part of a film’s classification whether the film was captioned or had a descriptive narrative track. We argued that these classifications would help people with disabilities decide which films to attend, and encourage film makers and distributors to make their movies accessible to everyone. ARCH agreed that the Board should include persons with disabilities, as it is supposed to represent the community as a whole. Finally, we recommended that the proposed licensing rules for film exhibitors and distributors be coordinated with the accessibility standards of the forthcoming Accessibility for Ontarians with Disabilities Act. Some members of the Committee supported including accessibility as part of the classification scheme under the proposed Act. Unfortunately, the Committee as a whole voted not to make any changes in the proposed Bill. Bill 158 was passed on 30 June 2005, and should soon be proclaimed law. So movies will continue to be classified, but Ontario moviegoers with disabilities, and the family members and friends who go to theatres with them, still will not have the information that they need in order to decide which movies to attend. ARCH has posted the written submission on our website at: http://www.archlegalclinic.ca/aboutARCH/lawReform/A73_2005_003237/index.asp *** ODSP Update By Dianne Wintermute, Staff Lawyer Tranchemontagne v. Ontario (Ministry of Community, Family and Children's Services) Mr. Werbeski and Mr. Tranchemontagne are addicted to alcohol. Their doctors have said that their addiction affects their ability to perform activities of daily living to such an extent that they cannot work. As a result, both men applied for benefits under the Ontario Disability Support Program (ODSP). However, a section of the ODSP Act states that a person who is dependent on or addicted to alcohol or drugs, and whose only restrictions in activities of daily living are as a result of the use of alcohol or drugs (or because the person stops using those substances) is not eligible for ODSP benefits. For that reason, both Mr. Werbeski and Mr. Tranchemontagne were denied ODSP benefits. They appealed the decision to deny them benefits to the Social Benefits Tribunal (SBT). At the SBT, Mr. Werbeski and Mr. Tranchemontagne argued that the denial of benefits based on the reason for their disability is discrimination that violates the Ontario Human Rights Code (the "Code"). However, the SBT said that it cannot strike down a section of the ODSP Act, which governs it. The SBT said that even though there is evidence that Mr. Werbeski and Mr. Tranchemontagne are disabled, they cannot get benefits because of that section. The men appealed this decision to the Divisional Court, who agreed with the SBT. The men further appealed to the Ontario Court of Appeal. The Ontario Court of Appeal said that the Code is the most important law in Ontario and therefore applies to everyone. As a result, the Court stated that the SBT, which determines questions of law, also has to consider the Code. But the Court said that the SBT is not the best place to decide whether the denial of ODSP benefits to persons with addictions is justified. The Court held that the Ontario Human Rights Commission is the most appropriate place to have this question decided. Mr. Werbeski and Mr. Tranchemontagne filed an application for leave to appeal to the Supreme Court of Canada. Leave was granted on 17 March 2005. The case is scheduled to be argued before the Supreme Court on 12 December 2005. ARCH represented the Intervener the Empowerment Council, Centre for Addiction and Mental Health, at the Ontario Court of Appeal. The Empowerment Council has asked ARCH to seek leave to intervene at the Supreme Court of Canada. The Court of Appeal’s decision is at: http://www.canlii.org/on/cas/onca/2004/2004onca11334.html ARCH Alert also reported on this decision at: http://www.archlegalclinic.ca/publications/archAlert/2004/09_oct18/09_ODSP.asp Modernizing Income Security for Working Age Adults (MISWAA) St. Christopher House and the Toronto City Summit Alliance have put together a task force of stakeholders to come up with ideas and recommend practical solutions to improve the economic security of low-income working age adults. It is generally recognized that minimum wage is not enough for people to earn a decent living that covers all of the necessities of life. Furthermore, programs like Ontario Works or the Ontario Disability Support Program make it difficult for people to escape poverty, especially when those people on the programs are subject to penalties if they earn extra income. Unfortunately, it seems that there is little political will to change this situation. For example, benefits under both programs were slashed significantly by the former Harris government, while eligibility requirements for those programs were tightened. The MISWAA task force has been meeting since 22 September 2004. Members of the task force include representatives from major employers, the public sector, labour unions, student and young adult leaders, policy institutes, community service agencies and low-income working adults. The task force has set four major objectives: 1. To provide a clear assessment of the current income security programs, both federally and provincially, including what is working well, and where there are gaps or problems; 2. To develop proposals for policy and program changes for the federal, provincial and municipal governments to improve the economic security of low-income working age adults, focusing on Ontario in a national context; 3. To identify promising non-governmental initiatives that could complement recommended policy changes; and 4. To design a pan-Canadian campaign to help ensure that the proposals for governments are put into motion and lead to the legislative changes necessary to implement the proposals. Ontario’s Community Legal Clinics, including ARCH, have a keen interest in the work of the task force. Staff from ARCH, Neighbourhood Legal Services and Scarborough Community Legal Services have provided the task force with a paper on Disability Determination and Appeals to the Social Benefits Tribunal. This paper will be posted on the ARCH website soon. *** Recent Human Rights Decisions in Employment Law By Heidi Lazar-Meyn, Staff Lawyer, and Michelle Wood, Student at Law Two recent Ontario court decisions uphold the rights of employees with disabilities to be treated equally under the law. Ontario Nurses’ Association v. Mount Sinai Hospital Ms. Tilley worked as a nurse at Mount Sinai Hospital ("the employer") for 13 years. She injured her knee, and was granted long-term disability benefits because she was unable to return to work. The employer terminated her from her job 2½ years later because she was not yet able to return to work due to the injury. The former version of the Employment Standards Act was considered in this decision. It provided that severance pay must be paid in two circumstances. The first is in the context of a large layoff and the second is if the employer has a payroll of more than $2.5 million. The second situation applied in this case. However, the employer decided that it did not have to give Ms. Tilley severance pay based on subsection 58 (5) (c) of the Act, which stated that an employer did not have to give severance pay if an employee's contract of employment was frustrated due to illness or injury. The Ontario Nurses’ Association ("the union") filed a grievance on Ms. Tilley’s behalf. The union argued that this provision violates section 15 of the Canadian Charter of Rights and Freedoms (the "Charter") because it discriminates against employees on the ground of disability. A Board of Arbitration decided that subsection 58 (5) (c) did not violate the Charter. The union appealed to the Ontario Divisional Court, which agreed with the union. The employer appealed that decision to the Ontario Court of Appeal. Justice Russell Juriansz, writing for a unanimous panel of the Ontario Court of Appeal, stated that the different treatment of persons with disabilities in the Act was based on "the stereotype that people with severe and prolonged disabilities will not return to the workforce,..." Justice Juriansz noted that the employer admitted that "one...purpose...of severance pay is to compensate employees for past contributions to the employer’s business." Not giving severance pay to employees with disabilities when other employees get it "devalues their contributions and treats their years of service as less worthy than others’." The Court rejected the employer’s argument that there is a rational connection between granting severance pay to only those employees who are likely to work again and denying it to employees whose contracts were frustrated due to illness or injury. Justice Juriansz stated that this "generalization can only have the effect of perpetuating and even promoting the view that disabled individuals are less capable and less worthy of recognition and value as human beings and as members of Canadian society." Justice Juriansz further noted that persons with disabilities may have a greater need for severance pay than other terminated employees because they may need support for retraining and learning new skills. He added that subsection 58 (5) (c) of the Act does not impair an employee’s Charter rights as minimally as possible because: Employees are entitled to compensation for their past contributions to the employer’s business whether or not they are likely to work again; Even if persons with disabilities receive other government benefits, their rights to equal treatment in employment still are impaired if they are denied severance pay; and The subsection denies severance pay to all persons whose contracts have been frustrated due to disability, whether or not they try to find other work. Accordingly, the Court concluded that the Act violated section 15 of the Charter, and that this discrimination on the ground of disability cannot be excused under section 1 of the Charter as demonstrably justified in a free and democratic society. Although there now is a new version of the Act, Section 64 (1) of the Employment Standards Act, 2000, has the same rules for entitlement to severance pay as section 58 (2) of the former Act. However, section 9 (1) (2) and 9 (2) (b) of Ontario Regulation 288/01 now protects the right to severance pay of many employees with disabilities. Although an employer still does not owe severance pay to some employees whose contracts have become impossible to perform, this provision does not apply when "the impossibility or frustration is the result of an illness or injury suffered by the employee, and the [Ontario] Human Rights Code prohibits severing the employment." The Court of Appeal’s decision can be found at: http://www.canlii.org/on/cas/onca/2005/2005onca10333.html Keays v. Honda Canada Inc. Mr. Keays has chronic fatigue syndrome. He worked for Honda Canada ("the employer") for almost 14 years. Because of his disability, Mr. Keays missed a number of days of work, and spent several years on long-term disability, until his benefits were cut off. He tried to return to full-time work. He was placed in a program that was supposed to accommodate his disability-related absences, which actually kept him out of work longer than necessary because he needed to get a doctor’s note for every absence. Judge John McIsaac of the Ontario Superior Court of Justice found that when Mr. Keays asked for more reasonable accommodation, the employer threatened to move him to a physically demanding job. The employer then decided that Mr. Keays did not have a disability that required him to be absent from work, cancelled his accommodation program and ordered him to meet with its own doctor. Mr. Keays was fired for insubordination because he would not meet with the doctor. Given Mr. Keays’ past unpleasant experience in seeking accommodation, Judge McIsaac held that Mr. Keays had just cause for refusing to meet with the doctor when the employer refused to explain the purpose of the meeting. Judge McIsaac added that firing Mr. Keays was disproportionate to his alleged insubordination, when all that Mr. Keays wanted was to continue working for the employer, with appropriate accommodation for his disability. Judge McIsaac ordered the employer to pay Mr. Keays 24 months’ salary, which represented 15 months’ notice to which he was entitled since he was wrongfully dismissed, plus 9 extra months for "bad faith". What makes this case unusual is that Judge McIsaac also ordered the employer to pay $500,000 in punitive damages for discrimination against and harassment of Mr. Keays. Judge McIsaac took particular note of Mr. Keays’ vulnerability due to his disability, and of the employer’s failure to provide reasonable accommodation because of its focus on "efficiency". By awarding such a large punitive damage award, this case sends a strong message to employers that, as Judge McIsaac states, it is a "fundamental principle of human rights law that accommodation is a right, not an indulgence granted by one’s employer or, worse yet, an act of charity." The decision can be found at http://www.canlii.org/on/cas/onsc/2005/2005onsc13349.html The employer has said that it will appeal this decision. ARCH is following these cases, and will report news of interest in future issues of ARCH Alert. *** LeSage Reports on Police Complaints Review By Lesli Bisgould, Staff Lawyer Last year, former Chief Justice Patrick LeSage was asked by Attorney General Michael Bryant to review the existing process in Ontario for making a complaint about the police. ARCH met with Mr. LeSage in August 2004 and shared our views about ways in which to make the process more accessible to, and protective of, persons with disabilities. Mr. LeSage filed his report with the Attorney General and on 25 April 2005 the report was made public. The government has promised to review the many recommendations that Mr. LeSage made with a view to introducing legislation later this year. Regrettably, the report does not mention any specific concerns with respect to persons with disabilities. Most of the recommendations that we made to Mr. LeSage are not directly addressed, although some important recommendations are included. One important recommendation is that police officers should have a large name patch on their uniforms so that people are able to identify them. This simple requirement is long overdue. Mr. LeSage also recommended that an independent civilian body be established to be responsible for the province's complaints system. The new body would be responsible for educating the public about the complaints system and for ensuring that everyone has appropriate access to the system. This body also would help people to file complaints, receive and process the complaints and screen out complaints which do not appear to have merit. Mr. LeSage recommends that "third party" complaints be permitted, unlike the present system where a person has to have been "directly affected" by police conduct before being allowed to make a complaint. This means that others, such as people who witness police action, a friend or a caregiver, would also be allowed to complain. Third party complaints could be an important expansion of the process, as long as there are safeguards to ensure that persons who are the subject of police treatment are not forced into the complaint process when they would prefer not to be. Unfortunately, Mr. LeSage has not recommended an extension of the six-month time limit for making complaints. ARCH said that we thought that this was much too short a time, and proposed a more flexible approach that would acknowledge that persons are not always in a position to make a complaint within six months of an incident. The report strongly recommends relying on informal ways of resolving complaints, such as mediation, when all parties agree that this is appropriate. This preference for informal complaint resolution could be an important development but the power imbalance between the police and individual members of the public must be considered. People should feel free to choose whether to use the informal process. ARCH suggests that there need to be written safeguards to make sure that people are not pressured into an informal process where they feel intimidated or uncomfortable. When a complaint is not resolved informally, the investigation would proceed. In some cases, police would investigate. In others, the investigation would be made by investigators working for the new independent civilian body. One concern expressed to ARCH, that we told Mr. LeSage, is that some people who have made complaints feel that they have suffered reprisals as a result. Other people fear that they will suffer reprisals so they never file a complaint. Mr. LeSage has recommended that if police officers harass or intimidate someone who makes a complaint, the officer should be charged with misconduct. There is much more to Mr. LeSage's report, and much more to think about when trying to design a new and more effective complaints system. Whether one agrees with all of his recommendations or not, the important development will be the legislation that the government introduces as a result of this report. Now that the subject is on the Attorney General's agenda, there is an opportunity for people who are interested to express their views to him as new legislation is being considered. A copy of the report can be downloaded from the Attorney General's website at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/LeSage/ *** Human Rights and Employment Equity Reports By Cara Wilkie, Student at Law In March 2005 the Canadian Human Rights Commission (the "Commission") released its Annual Report for 2004 and its 2005-2006 Report on Plans and Priorities. On 22 March 2005 the Government of Canada released its annual report on the Employment Equity Act. As in previous years, the largest group of complaints to the Commission in 2004 were of discrimination on the ground of disability, 43 per cent of all inquiries received and 39 per cent of signed complaints. The Report indicates that over the last year the Commission has focused on mediation and streamlining the investigation process to deal more effectively with human rights complaints. The Commission intends to focus more resources on discrimination prevention, research, and proactive efforts to address human rights issues. In the Commission’s Report on Plans and Priorities, the Commission identified specific issues that it will be researching this year, including telephone access for Deaf persons and removing barriers for persons with disabilities. In the Employment Equity Act report, the federal government reported that in the public sector, the representation of persons with disabilities has increased from 3.9 per cent to 5.6 per cent. However, the Commission attributed the increase to more persons self-identifying as having a disability, rather than to new hires. The percentage of persons with disabilities in federally regulated private sector workplaces decreased to 2.3 per cent this year, less than half of the 5.3 per cent rate of people with disabilities in the labour market. While more persons with disabilities were hired this year, this also is the only designated group in which more people have been fired than have been hired during the past ten years. The salary gap between men with disabilities and those without disabilities narrowed in 2003 but the gap for women with disabilities was unchanged. To address these issues, the federal Ministry of Labour has set up a Workplace Integration Strategy to educate employers on the benefits of employing persons with disabilities and removing barriers to their promotion. ARCH hopes that this strategy results in better news on employment of persons with disabilities in next year’s reports. The Commission’s reports can be found at: http://www.chrc-ccdp.ca/publications/reports-en.asp. The report on the Employment Equity Act can be found at: http://www.hrsdc.gc.ca/asp/gateway.asp?hr=en/lp/lo/lswe/we/ee_tools/reports/annual/index- we.shtml&hs=wzp *** Book Review By Roberto Lattanzio, Staff Lawyer Dr. Norm Forman, a registered psychologist and founder/administrator of the organization Parent’s Advocacy in the School, is also the author of the recent book Exceptional Children - Ordinary Schools: Getting the Education You Want For Your Special Needs Child. This book is intended as a guide to assist parents with their advocacy efforts for ensuring an appropriate education for their children with disabilities. Dr. Forman provides his perspective on advocacy techniques, highlighted with practical examples from his own professional experience. Other topics are discussed from a psychological perspective, from examining one’s own motivation for advocacy, to providing information about standardized tests and assessments, with useful short descriptions of commonly-used tests including WISC III and WISC IV. Helpful tips for parents include letter writing, and suggestions on who to write to and when. For more information on this book or Parent’s Advocacy in the School, please use the link below: http://parentsadvocacy.com/ *** Library Update By Lishanthi Caldera, Reference Centre Co-ordinator In honour of the passage of the Accessibility for Ontarians with Disabilities Act, this library update features resources on accessibility and accommodation: In the workplace: MacNeill, Kevin. The Duty to Accommodate in Employment. Canada Law Book, 2003. A Place for All: A Guide to Creating an Inclusive Workplace. Canadian Human Rights Commission, 2001. On the Internet: The Web: Access and Inclusion for Disabled People. Disability Rights Commission, 2004. Hyatt, Glenda Watson. Simplified Web Accessibility Guide. Human Resources Development Canada, 2002. In general: Ostroff, Elaine and Wolfgang Preiser, eds. Universal Design Handbook. McGraw-Hill, 2001. Khedr, Rabia. "Building Inclusive Communities Tips Tool : How to Ensure that Your Organization Includes Everyone." Ethno-Racial People With Disabilities Coalition of Ontario, 2003. To use these resources or to find other resources on accessibility and accommodation, please visit the ARCH Reference Centre. Our library is open to the public from 10 a.m. to 4 p.m. weekdays. ARCH is located at the corner of Bloor Street and Sherbourne Street, 425 Bloor Street East, Suite 110, Toronto, less than 100 metres from the Sherbourne subway station. For further information, please contact Lishanthi Caldera at 416.482.8255 x227. *** New Face at ARCH By Doreen Way, Office Manager ARCH welcomes Michelle Wood who is articling at Blake, Cassels & Graydon LLP. She began her short-term placement at ARCH in April 2005. Michelle earned her law degree from the University of Toronto. During law school she worked as a caseworker at Downtown Legal Services. Prior to law school, she attended Simon Fraser University, where she received a Bachelor of Arts degree in English. *** ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01. Editor: Heidi Lazar-Meyn Reference Centre Co-ordinator: Lishanthi Caldera Production & Circulation: Theresa Sciberras We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482- 1254, e-mail: scibert@lao.on.ca Website: www.archlegalclinic.ca