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ARCH Alert Volume 22, Issue 1

ARCH quarterly newsletter with news and information on disability law. Published on July 28, 2021



Inside This Issue


Note from the Editors

By: Amanda Ward and Robert Lattanzio

ARCH Disability Law Centre is pleased to release our first ARCH Alert issue for 2021.

As the COVID-19 pandemic endures in its impact on our lives in fundamental ways, our communities that we serve continue to be impacted disproportionately by the isolation, challenges, barriers, and discrimination that has been ongoing since the outset of this health crisis. ARCH has been involved in a significant amount of work trying to address these concerns and impacts throughout the duration of the pandemic.

In this issue, you will find COVID-19 related updates about some of our work on Ontario’s Triage Protocol, access to vaccines, education for students with disabilities, and visitation and access rights for residents of group homes. Other important updates on significant topics as they relate to disability include changes to Canada’s Medical Assistance in Dying law, as well as important information about the development of new standards pursuant to the Accessibility for Ontarians with Disabilities Act, and new regulations as part of the Accessible Canada Act.

Finally, SAVE THE DATE! ARCH will hold its Annual General Meeting virtually on Thursday, October 7, 2021 at 6pm. More information and details will be posted on ARCH’s website in the coming month, stay tuned and we look forward to seeing you there!

We hope you enjoy reading this issue. Be well, be kind, and stay safe.

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Disability Communities Concerned About Changes in Medical Assistance in Dying Law

By: Kerri Joffe and Rachel Weiner, Staff Lawyers

The Government of Canada made changes to the Medical Assistance in Dying (MAiD) law in March 2021. These changes expanded eligibility for MAiD to persons with disabilities who are not at the end of their lives. During the development of these changes to the law, disability communities expressed concerns about the serious and discriminatory impact that these changes would have on persons with disabilities. While the Government went ahead with these changes to the law anyway, disability communities have continued their advocacy efforts on this issue.

Government of Canada’s Changes to Medical Assistance in Dying

The Government of Canada’s initial MAiD law, passed in 2016, was only available to persons with serious illnesses or disabilities who were approaching death. Requiring a person to be at the end of their life before they could be eligible for MAiD was an important safeguard in the legislation. Even with this safeguard in place, advocates, scholars, and experts in human rights and disability justice have raised persistent alarms since this law was created. They were concerned that death by MAiD was becoming, for people with disabilities, an expedient ‘solution’ to pervasive problems of social neglect, material deprivation, institutionalization, and the natural despair to which these conditions give rise.

In the 2019 decision Truchon c. Procureur général du Canada, the Superior Court of Québec held that the 2016 MAiD law violated the Canadian Charter of Rights and Freedoms and Quebec’s Act Respecting End-of-Life Care. The Court found that restricting MAiD to persons whose death was reasonably foreseeable violated the right to equality and the protection against deprivations of life, liberty, and security of the person that are not consistent with the principles of fundamental justice. To access this decision, go to: Truchon Decision.

Rather than appealing this decision to a higher court, the Government of Canada expanded eligibility for MAiD to persons with disabilities who are not at the end of life. They did this in Bill C-7[1]. To access Bill C-7, go to: Bill C-7 (Royal Assent).

Bill C-7 expanded MAiD to persons who are not near the end of their natural life and who meet additional eligibility criteria. These criteria include consulting with a third independent practitioner if needed; informing the person of available medical and disability services and supports and offering consultations with service providers; ensuring that available means to relieve suffering are discussed and considered; and providing a waiting period of 90 days [2]. Notably, the changes made in March 2021 further expand eligibility for MAiD to people whose only underlying condition is a mental health disability beginning in March 2023.[3]

Despite the concerns raised by many, Bill C-7 received Royal Assent on March 17, 2021. Many disability organizations, advocacy organizations, individuals with disabilities, legal experts, and health care experts in Canada expressed serious concerns and fears about the expansion of MAiD. As well, in February 2021, a Joint Communication was issued by the UN Special Rapporteur on the Rights of Persons with Disabilities, the Independent Expert on the Enjoyment of all Human Rights by Older Persons, and the Special Rapporteur on Extreme Poverty and Human Rights, to the Canadian government. This Joint Communication made a strong case that Bill C-7 discriminates against people with disabilities, and creates more social stigma by sending a message that the lives of people with disabilities are less worthy of living. To access the Joint Communication, go to: United Nations Joint Communication. Nonetheless, the Government of Canada went ahead with changes to Canada’s MAiD law.

The Disability Community’s Continued Advocacy after the Passage of Bill C-7

Despite the passage of Bill C-7, disability communities have continued to advocate for changes to MAiD to address its discriminatory impact on persons with disabilities. Recently, the British Columbia Aboriginal Network on Disability Society, the Council of Canadians with Disabilities, the DisAbled Women’s Network Canada, Inclusion Canada, and the Vulnerable Persons Standard, jointly made a submission to the United Nations Human Rights Committee about the implications of MAiD for Canada’s compliance with the International Covenant on Civil and Political Rights (ICCPR). ARCH lawyers represented these organizations before the UN Human Rights Committee. In addition, the following organizations supported this submission: Canadian Association of the Deaf (CAD-ASC); Disability Justice Network of Ontario (DJNO); Institute for Research and Development on Inclusion and Society (IRIS); National Network for Mental Health (NNMH); Dignity Denied; Independent Living Canada; Citizens with Disabilities – Ontario (CWDO); People First of Canada; Disability Rights Coalition of Nova Scotia; Toujours Vivant-Not Dead Yet; Open Access Foundation for Arts and Culture; L’Arche Canada; Canadian Institute for Inclusion and Citizenship, University of British Columbia; and Inclusive Design Research Centre, OCAD University.

This submission requested that the Committee include questions about MAiD in the List of Issues Prior to Reporting for Canada. If the Committee asks questions about MAiD as part of its review of Canada, this will require the Government of Canada to respond and to explain what it is doing to prevent the newly expanded MAiD law from adversely impacting persons with disabilities. The submission outlined the legislative history and social context for MAiD in Canada, elaborating on these concerns through the lens of human rights and inclusion. It situated the current law in its Canadian social context, detailing its grave implications both in terms of individual human rights violations, and at the broader societal level where the ableist logic of the law’s most recent formulation both entrenches and perpetuates disability prejudice.

The submission focused on four principal themes, with questions relating to each theme. First, it described how many persons with disabilities are at grave risk of being pressured, coerced, or induced to receive MAiD – not because they want to die but because they do not have effective access to the services, supports, social conditions, and resources necessary to live dignified lives in the community. This part of the submission recognized the civil, social, and economic inequality experienced by persons with disabilities, including intersectional experiences of women with disabilities, Indigenous people with disabilities, Black people with disabilities, and LGBTQI2S people with disabilities. Second, it explained how the new MAiD law both devalues the lives of persons with disabilities, and contributes to systemic inequality. Third, it criticized the lack of adequate data collection and monitoring to understand the impact of the new MAiD law on persons with disabilities. Finally, it emphasized that Canada did not do enough to respond to the concerns of persons with disabilities in passing Bill C-7. It recommended that, going forward, persons with disabilities should have ongoing opportunities to be meaningfully involved in reviews of MAiD legislation, changes to MAiD monitoring regulations, expert studies on expanding MAiD, and other such initiatives.

More information about the changes to Canada’s MAiD law and its implications is found in this submission. To access the full submission, go to the United Nations website: ARCH Submission to United Nations Human Rights Committee.

[1] An Act to amend the Criminal Code (Medical Assistance in Dying), 2nd Sess, 43rd Parl, 2021, preamble (assented to 17 March 2021) [Bill C-7]

[2] Criminal Code, RSC 1986, c C-46, s 242.2(3.1). Note that the waiting period can be shortened if the person will imminently lose their capacity to consent to MAiD: s 242.2(3.1)(i).

[3] Ibid, s 241.2(2.1); Bill C-7, above, preamble; Government of Canada, “Canada’s New Medical Assistance in Dying (MAiD) Law” (19 March 2021), online: Canada’s new medical assistance in dying (MAID) law 

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Landmark Human Rights Decision during the COVID-19 Pandemic

By: Jessica De Marinis and Mariam Shanouda, Staff Lawyers

In March 2021, the Human Rights Tribunal of Ontario released an important decision about human rights during the time of the COVID-19 pandemic. The case is called JL v Empower Simcoe and it is a challenge to the visitation ban put in place by a group home to reduce risk of transmission of COVID-19 for residents and staff. The Tribunal considered whether the visitation ban had a discriminatory impact on JL, a child resident with disabilities in the group home.

What is the case about?

The Applicant, JL, is a 14 year old boy with multiple disabilities. JL requires support for all activities of daily living and he lives at one of Empower Simcoe’s group homes. He has a communications disability, which for him means that he does not use words to communicate. Instead, he uses touch, hugging, pulling on hands, gestures, and other physical displays of expression. Prior to the pandemic, he would spend his weekends with his parents and brother at his family home. He is very close with his family.

With the onset of the pandemic, the government released a memorandum and guidance documents for group homes about safety precautions, including limiting visitors. In response to this, Empower Simcoe implemented a rigid visitor restriction policy, which meant that JL’s parents were not permitted to visit him and he was not permitted to leave for visits at his family home.

From March to June 2020, Empower Simcoe instead offered video calls or drive-by visits with his family. From June to August 2020, Empower Simcoe allowed in-person visits as long as visitors remained 6 feet apart from residents. None of the options worked for JL because they did not accommodate his communication disability-related needs.

As a result, throughout this time period, JL was denied appropriate accommodations for meaningful contact with his family. Despite requests for accommodation, Empower Simcoe refused to investigate or implement any disability-related accommodations for JL. It did not explore any creative ways for JL to visit with his family in a way that accommodates his disability and maintains safety.

JL filed an application with the Human Rights Tribunal of Ontario alleging that the visitor restriction policy discriminated against him and that Empower Simcoe failed to accommodate him to the point of undue hardship.

What did the Tribunal decide?

The Tribunal found that that the visitation ban discriminated against JL and that Empower Simcoe failed to consider whether it was possible to accommodate his particular disability-related needs. Empower Simcoe was ordered to pay damages and to implement an accommodation policy that would apply for pandemic-related visitor restrictions.

Why is this decision important?

This decision is important because it confirms that human rights are not diminished during a pandemic. The Tribunal decided that the existence of the pandemic is not a justification for refusing or failing to appropriately accommodate persons who require disability-related accommodation.

It also makes important statements about the roles of the resident and the service provider in the accommodation process. The Tribunal found that, while the resident must cooperate in the accommodation process, the responsibility to find and implement the accommodation solution remains with the service provider.

Finally, this decision clarifies that group home service providers must apply government guidance in a manner that is consistent with Ontario’s Human Rights Code, and that the group home was required to get assistance from public health if they were unsure how to apply government safety recommendations.

What is happening now?

Since the decision, Empower Simcoe asked the Tribunal to reconsider the decision. In May of 2021, the Tribunal dismissed Empower Simcoe’s request, and upheld the original decision. Empower Simcoe has also applied to the Divisional Court to review the decision. That judicial review will likely not be decided by the Court until early to mid-2022.

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Opportunities for Input in the Development of New AODA Standards

Consultations have begun on four initial recommendations that were drafted by standard development committees for the creation of new standards under the Accessibility for Ontarians with Disabilities Act. If you would like to know more, including how to comment and provide feedback, more information and links are offered below.

Health Care Accessibility Standards

For the Health Care Standards Development Committee’s initial recommendations report, go here: initial recommendations.

For more information about the initial recommendations, how to receive the document in alternate formats, or any other questions, go here: how to participate.

Please note that the deadline to make comments and give feedback to the Health Care Standards Development Committee is August 11, 2021.

Kindergarten to Grade 12 (K-12) Education Accessibility Standards

For the Kindergarten to Grade 12 (K-12) Education Standards Development Committee’s initial recommendations report, go here: initial recommendations.

For more information about the initial recommendations, how to receive the document in alternate formats, or any other questions, go here: how to participate.

Please note that the deadline to make comments and give feedback to the K-12 Education Standards Development Committee is September 2, 2021.

For additional information, the K-12 Educations Standards Development Committee also released recommendations to government on addressing the barriers and challenges of COVID-19 as they relate to students with disabilities.

Postsecondary Education Accessibility Standards

For the Postsecondary Education Standards Committee’s initial recommendations report, go here: initial recommendations.

For more information about the initial recommendations, how to receive the document in alternate formats, or any other questions, go here: how to participate.

Please note that the deadline to make comments and give feedback to the Postsecondary Accessibility Standards Committee is September 29, 2021.

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Developing a Health Care Standard under the Accessibility for Ontarians with Disabilities Act (AODA)

By: Dianne Wintermute, Staff Lawyer

One of the newest Accessibility Standards under the AODA will be the Health Care Standard. Accessible health care is a critically important issue for persons with disabilities, because it can affect their independence, inclusion, and dignity. Accessible health care should be defined broadly and have far-reaching and measurable objectives to ensure that it meets the accessibility needs of persons with disabilities. This is especially important for the first Health Care Standard, in order to meet the goal of an accessible Ontario by 2025.

The Health Care Standards Development Committee (SDC) appointed to draft the Health Care Standard developed a report with Initial Recommendations and is seeking community feedback through consultation.

The Report touches on numerous areas and offers 22 recommendations including those connected to disability-related human rights accommodations and supports, education and training, enforcement, complaints, patient relations processes, accessible complaints processes, and accessibility during emergencies and pandemics.

The SDC’s mandate was to focus on accessibility in hospitals. ARCH’s primary concern is that limiting health care accessibility to hospital settings ignores the fact that the first point of contact for health care is usually not at hospitals. ARCH also has particular concerns about how health care is delivered in regional, rural, northern, and Indigenous communities, and to persons with disabilities who have intersecting identities.

The Report, more information about the consultation process, and information on how to submit your comments, can be found here.

All comments and feedback must be submitted to the Health Care Standards Development Committee by August 11, 2021.

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Accessible Canada Act Draft Regulations Released

By: Kerri Joffe and Rachel Weiner, Staff Lawyers

Introduction

The Accessible Canada Act (ACA) is a federal law that aims to make the Government of Canada, federal businesses and organizations more accessible for people with disabilities. The Accessible Canada Act gives the Government of Canada, the Canadian Transportation Agency, and the Canadian Radio-television and Telecommunications Commission (CRTC) the power to make regulations. These regulations will provide more details about steps that must be taken to make federal government services and programs, federal buildings, federal workplaces, federal transportation, and other areas more accessible.

In February 2021 the Government of Canada, the Canadian Transportation Agency and the CRTC each published a draft regulation under the ACA. These draft regulations addressed planning and reporting requirements, providing more detail about what regulated government offices, businesses and organizations have to do to meet their obligations under the ACA. The Government of Canada’s draft regulation also addressed penalties for violating certain provisions of the ACA and its regulations. Consultations were held about each of these regulations and the public had an opportunity to provide their input and feedback.

ARCH held online community meetings about each of these regulations to raise awareness in disability communities about these regulations, why they are important, what they say, and some of ARCH’s concerns about them. At these community meetings, we received comments from persons with disabilities which raised concerns similar to our own. ARCH provided submissions to the regulators with feedback about how to make these regulations stronger, more responsive to the concerns of disability communities, and more likely to achieve the accessibility goals of the ACA.

Summary of the Draft Regulations

Each of the draft regulations included more detailed requirements for making accessibility plans, writing progress reports, and publishing descriptions of the feedback process that are required by the ACA. For example:

  • The ACA says that federal organizations have to create accessibility plans. These plans should identify barriers and explain how the organization will remove or prevent these barriers. The draft regulations outlined more specific requirements: when federal organizations should make their first accessibility plans, how accessibility plans must be published, how often accessibility plans must be updated, headings that accessibility should include, and alternate formats that must be provided on request.
  • After making their first accessibility plans, the ACA requires federal organizations to make progress reports about how they are meeting their accessibility goals. The draft regulations outlined more specific requirements for progress reports, such as how often progress reports must be made, how these progress reports must be published, headings they must include, and alternate formats that must be provided on request.
  • The ACA also says that federal organizations have to create feedback processes. These are meant to be a way for the public to give feedback about their accessibility. The draft regulations explained when federal organizations must publish a description of their feedback process, where this description must be published, and requirements about what the feedback process should include, such as allowing for anonymous feedback

The Government of Canada’s draft regulation also addressed how long organizations have to keep their accessibility plans, progress reports, and descriptions of the feedback process. Fines can be given for organizations that do not follow the requirements under the ACA and its regulations. Fines can range from $250 for a minor, first-time violation of the Accessible Canada Act or Accessible Canada Regulations, to $250,000 for a large or public organization that is a repeat offender, and that has committed a serious violation.

The Government of Canada’s draft regulation explained how fines are calculated. It described 4 factors that are important:

  • The size of the organization;
  • Whether the organizations had other violations in the last five years;
  • Whether the violation is minor, serious, or very serious; and
  • The gravity value, which is based on a variety of factors such as the harm caused by the violation, whether the organization got any financial or competitive benefit, how much effort the organization made to fix the violation, and others.

ARCH published detailed summaries of each draft regulation on its website after holding the community meetings. These summaries explain what each draft regulation says and which federal organizations will be required to follow them once they are finalized:

ARCH’s Submissions about the Draft Regulations

ARCH made submissions to each of the regulators about the draft regulations and how they could be improved. ARCH commented on several elements of the draft regulations, including:

  • The regulations must require accessibility plans to include specific, concrete actions the regulated organization will take to remove barriers, a person at the organization who is responsible for making sure that barriers are removed, timelines for when barriers will be removed, and how the organization will measure its progress;
  • The regulations must require accessibility plans to include a section about how the plan takes into account important principles outlined in the ACA. For example, these principles say that people with disabilities have to be involved when laws and policies are made. They also say that laws and policies must take into account the different ways that people with disabilities from diverse communities experience discrimination;
  •  The draft regulations should require accessibility plans and progress reports to give specific information about consultations conducted with persons with disabilities, including the information the organization got when it consulted, how the organization used this information, reasons why the organization decided not to use any information from the consultations, and who was consulted and whether the organization tried to get input from diverse communities of people with disabilities;
  • The draft regulations should require feedback processes to include a response to the person who gave the feedback, explaining how the organization will use the feedback to increase accessibility;
  • The draft regulations should require accessibility plans, progress reports, and descriptions of the feedback process to be in plain language rather than “clear, simple and concise language”;
  • Alternate formats of planning and reporting documents provided on request should include American Sign Language (ASL) and langue des signes québécoise (LSQ); and
  • With respect to the penalties in the Government of Canada’s draft regulation, fine amounts should reflect how violations affect people with disabilities, not just the general public, in accordance with substantive equality.

More information about ARCH’s concerns with the draft accessibility regulations can be found in ARCH’s submissions. To access ARCH’s submissions, go to: ARCH’s Accessible Canada Submissions.

Final Regulations Expected this Summer

The Government of Canada, the Canadian Transportation Agency, and the CRTC are expected to publish final regulations this summer. These final regulations may be different from the draft regulations. They may reflect some of the feedback that the regulators received from persons with disabilities, federal organizations who will have to follow these regulations, and other members of the Canadian public.

These final regulations will initially be published in Part II of the Canada Gazette. To access the Canada Gazette, go to: Canada Gazette. These regulations will also eventually be published on the Government of Canada website that lists all federal regulations: Government of Canada Regulations. They will also be posted on online legal databases, such as the free legal database, CanLII: CanLII Regulations.

You may want to access these regulations to learn more about what federal organizations have to do to meet their planning and reporting requirements under the ACA. The Government of Canada’s regulation also will give important information about penalties for federal organizations that don’t follow their accessibility requirements. While the ACA provides general requirements, the new accessibility regulations will give concrete details about what federal organizations have to do to increase accessibility.

Final Update Prior to Publication

Just before publishing this edition of the ARCH Alert, the CRTC published its final accessibility regulations in the Canada Gazette. To access these final regulations, go to: Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations, SOR/2021-160. To access the CRTC’s explanation of the changes it made to the regulations after holding its consultation, go to: Telecom and Broadcasting Regulatory Policy CRTC 2021-215.

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Important Case about Privacy Interests of Workers with Disabilities

By: Mariam Shanouda, Staff Lawyer

In April 2021, the Superior Court of Justice released its decision in Commercial Spring and Tool Company v Barrie Welding, 2021 ONSC 2591 Commercial Spring and Tool Company v. Barrie Welding, 2021 ONSC 2591 (CanLII) . The case raised issues surrounding the privacy interests of workers with disabilities who were not a part of the case.
The issue arose in a legal dispute between two companies. Company A claimed that Company B was negligent in the repair of a piece of machinery. Company A claimed that a worker at Company B, who had an addictions disability, was at least partly responsible for the negligence. The worker with the disability was not a part of the case. Even so, Company A tried to get access to his employee file which may have included documents about his disability.

The case raised important issues about the privacy interests and human rights of workers with disabilities, especially for those who are not parties to a legal dispute or action.

ARCH represented the Ontario Network of Injured Workers Group (ONIWG) in their intervention in this case. ONIWG brought the perspective of workers with disabilities, who are often subject to stigma and stereotyping based on their disability in the workplace.

The judge at Superior Court appreciated ONIWG’s perspective and quoted directly from their factum. In particular, the court quoted the following:

“… workers with disabilities have the right to full participation in the workplace on an equal basis to others and should not be targeted on the basis of their disability. Being identified in litigation and targeted for the production of his employee file, on the basis of his disability and without evidence of particular incident, cannot be said to be equal basis.”

Decisions like these are important because they further advance and protect the rights of persons with disabilities, especially workers with disabilities. As the Ontario Human Rights Commission has stated, persons with disabilities often face barriers when trying to access the labour market, and face equal barriers when they secure employment. The Ontario Superior Court’s recognition of the importance of protecting the privacy interests of workers with disabilities further strengthens the rights of persons with disabilities in the workplace.

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June 22, 2021 – In May of 2020, Independent Living Canada (ILC) released its findings from a survey about COVID-19 conducted with people with disabilities, staff, and volunteers of the 24 Independent Living Centres across Canada. Overall, people with disabilities surveyed were very concerned about the health threat that COVID-19 posed and were fearful of the isolation it would bring to their lives. Over 90% of those surveyed were concerned about being infected with the virus, and 60% percent stated they were very concerned.

We promised when this survey was completed that we would conduct a follow-up survey. “So today, in partnership with ARCH Disability Law Centre, we are releasing a survey on vaccine hesitancy and barriers to getting vaccines,” said Anne MacRae, National Executive Director of Independent Living Canada. “We want to determine how people with disabilities access vaccines and gauge whether people with disabilities are hesitant to get the vaccine and, if they are hesitant, why?”

The COVID-19 pandemic continues to have significant disproportionate impacts on disability communities. From the outset of the COVID-19 vaccination rollout, we shared concerns that persons with disabilities at heightened risk would be left behind. “We know there are people with disabilities across Canada that continue to be confronted with a range of barriers preventing them from accessing first or second doses of COVID-19 vaccines,” said Robert Lattanzio, Executive Director of ARCH Disability Law Centre. “We want to learn directly from people with disabilities about their experiences to determine what barriers they have faced.” Lattanzio added, “ARCH welcomes this opportunity to work with Independent Living Canada on this important initiative, which will inform our ongoing and future advocacy efforts.”

The survey link can be found here and on the ILC website: www.ilc-vac.ca and the ARCH website: www.archdisabilitylaw.ca

If you would like a hard copy of the survey, please contact [email protected]

For more information:
Contact Anne MacRae
National Executive Director
Independent Living Canada
Toll-free: 1-877-713-3373
Email: [email protected]

Robert Lattanzio, Executive Director
ARCH Disability Law Centre
Toll-free: 1-866-482-2724 extension 2233
Email: [email protected]

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Lancement d'un sondage sur les obstacles liés aux handicaps pour l'obtention des vaccins COVID-19 à travers le Canada

Le 23 juin 2021 – En mai 2020, Vie autonome Canada (VAC) à publier les résultats d’un sondage sur la COVID-19 menée auprès des personnes handicapées, du personnel et des bénévoles des 24 centres de Vie autonome du Canada. Dans l’ensemble, les personnes handicapées interrogées étaient très préoccupées par la menace pour la santé que représentait le COVID-19 et craignaient l’isolement qu’il apporterait dans leur vie. Plus de 90 % des personnes interrogées craignaient d’être infectées par le virus, et 60 % ont déclaré être très inquiètes.

Nous avons promis, une fois ce sondage terminé, de mener un sondage de suivi. « Donc aujourd’hui, en partenariat avec ARCH Disability Law Centre, nous publions un sondage sur l’hésitation à se faire vacciner et les obstacles à l’obtention des vaccins », a déclaré Anne MacRae, directrice générale nationale de Vie autonome Canada. « Nous voulons déterminer comment les personnes handicapées ont accès aux vaccins et évaluer si elles hésitent à se faire vacciner et, si elles hésitent, pourquoi ? »

La pandémie de COVID-19 continue d’avoir un impact disproportionné sur les communautés de personnes handicapées. Dès le début du déploiement de la vaccination contre le COVID-19, nous avons partagé les inquiétudes selon lesquelles les personnes handicapées à risque élevé seraient laissées de côté. « Nous savons qu’il y a des personnes handicapées à travers le Canada qui continuent à être confrontées à une série d’obstacles les empêchant d’avoir accès à la première ou à la deuxième dose du vaccin COVID-19 », a déclaré Robert Lattanzio, directeur général du ARCH Disability Law Centre. « Nous voulons apprendre directement des personnes handicapées à propos de leurs expériences afin de déterminer les obstacles auxquels elles ont été confrontées ». M. Lattanzio a ajouté : « ARCH se réjouit de l’occasion qui lui est donnée de travailler avec Vie autonome Canada à cette importante initiative, qui éclairera nos efforts de défense des droits actuels et futurs. »

Le lien vers le sondage se trouve ici et sur le site web de VAC : www.ilc-vac.ca et sur le site web de l’ARCH : www.archdisabilitylaw.ca.

Si vous souhaitez obtenir une copie papier du sondage, veuillez contacter [email protected]
Pour plus d’informations :

Contactez Anne MacRae
Directrice générale nationale
Vie autonome Canada
Sans frais : 1-877-713-3373
Courriel : [email protected]

Robert Lattanzio, Directeur général
ARCH Disability Law Centre
Sans frais : 1-866-482-2724 poste 2233
Courriel : [email protected]

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National AccessAbility Week 2021

By: Robert Lattanzio, Executive Director, and Dianne Wintermute, Staff Lawyer

The Accessible Canada Act enshrined in law the National AccessAbility Week; an annual opportunity to celebrate achievements of disability communities and spotlight the ongoing barriers to inclusion for persons with disabilities. As most celebrations were cancelled last year due to the pandemic, this year’s National AccessAbility Week held particular significance for our communities, with this year’s theme being “Leaving No One Behind”.

As the COVID-19 pandemic continues to disproportionately impact the communities that we serve, many of the broken and ableist systems that we have all been aware of continue to be further exposed. Moreover, the policy and legal responses to contain and respond to the COVID-19 pandemic impacted our communities in so many different ways, spanning different areas of law, and raising complex and difficult policy and legal questions. The failure by policy and law makers to truly understand the complex and different circumstances of how the pandemic was impacting particular disability communities was evident from the outset, including the vulnerabilities that were being created by policy and legislative responses, the compounding impact of multiple disabilities, the heterogeneous nature of disability, poverty, and the intersection of disability with all of the other identities that people have. In many instances, our communities were, and continue to be, left behind.

During National AccessAbility Week, ARCH was involved in numerous events, and released a number of different initiatives. In particular, ARCH once again partnered with the Law Society of Ontario to co-host our annual event in recognition of National AccessAbility Week. This annual event offers an important opportunity to create space for our partners and stakeholders in the legal community, and the communities that we serve, to discuss topical matters of importance to persons with disabilities as they relate to access to justice, and advancing equity, diversity, and inclusion in the legal profession. The virtual event held on June 3, 2021 was called “Advocacy Strategies for Persons with Disabilities During the COVID-19 Pandemic”. ARCH is very grateful for our ongoing partnership with the Law Society of Ontario in holding this annual event and we sincerely thank the Law Society for its continued support for creating opportunities to have discussions on how we can work towards more inclusive and accessible practices.

The event was a success with over 900 registrants and close to 600 attendees. The presentation consisted of two panels of ARCH lawyers who each discussed their legal practice and lessons learned within the context of representing clients with disabilities during a pandemic. The first panel discussed strategies used to continue our engagement with our client communities and ensure that ARCH’s law reform and community development work is informed directly by the experiences of persons with disabilities. The second panel discussed changes to litigation practice before courts and tribunals. This panel identified some issues with the “digital first” hearing formats that have been adopted as a result of the pandemic, and that are likely to continue post-pandemic. This panel offered some best practice tips to lawyers and paralegals on disability-related considerations when preparing for virtual hearings and the possible barriers that clients may encounter.

The two sessions were well-received by the audience, whose questions produced some interesting discussions. It is clear that COVID-19 has had a big impact on how law is practiced, and that ARCH’s presentation highlighted ongoing challenges that this pandemic is causing and underscored the need to continue recognizing our human rights obligations as legal service providers.

The recorded session will soon be available on ARCH’s website.

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Non-Police-Led Mental Health Crisis Response Pilot to Launch 2022

By: Jessica De Marinis, Staff Lawyer

Following the deaths of Regis Korchinski-Paquet, D’Andre Campbell, and Ejaz Chaudhry, and as a result of the tireless work of the Reach Out Response Network, in February 2021, Toronto City Council unanimously approved a motion to launch pilot programs that involve civilian dispatch teams to respond to calls involving mental health crises, where there is no threat of violence.

As ARCH has written previously, go here for examples: ARCH Alert article on Sammy Yatim Decision, ARCH Alert article – BLAC and ARCH Demand Independent Investigation into the Death of Regis Korchinski-Paquet, and ARCH Statement on Deaths of Persons with Mental Health Disabilities by Police, persons with mental health disabilities often experience disproportionate incidents of violence and death at the hands of police. The disproportionate impact is felt acutely and particularly by persons from racialized communities, and those who experience other intersecting grounds of discrimination. This is due to lack of police training on appropriate behaviour when interacting with persons who are experiencing a mental health crisis.

Rachel Bromberg and Asante Haughton of Reach Out Response Network set out to change this narrative. They have been working towards an anti-oppressive, trauma-informed model of crisis response, as an alternative to the existing coercive, forceful, police-led intervention.

The pilot programs will create teams of crisis workers with training in de-escalation and mental health and crisis intervention. After the initial intervention, the pilot programs will work with local health care providers, such as community health centres and not-for-profit mental health and substance use services, to ensure user-centred continuity of support.

The programs will be implemented in three areas where apprehensions under the Mental Health Act and calls for people experiencing mental health crises are the highest in Toronto: Northwest Toronto, Northeast Toronto, and Downtown East. There will also be a separate pilot to serve Indigenous communities, recognizing the particular disproportionately negative outcomes from dealing with the police in these communities. This pilot will be Indigenous-led and co-developed by Indigenous communities.

The pilot programs are expected to launch in 2022.

As a related point about changes to the law, the Ontario government passed the Community Safety and Policing Act, 2019, as part of the Comprehensive Ontario Police Services Act, 2019. Once in force, this law will create regulations that will impact the Codes of Conduct for police officers, municipal police service board members, and members of the Ontario Provincial Police Governance Advisory Council. To review the 3 draft regulations, go here: Code of Conduct for Police Officers, Code of Conduct for Police Service Board Members , and Code of Conduct for OPP Governance Advisory Council.

To access the City of Toronto’s News Release about the pilots, go here: News Release. To learn more about Reach Out Response Network and to check in for updates about the pilot programs, go here: Reach Out Response Network .

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Barriers to Education during the Pandemic

By: Gabriel Reznick, and Lila Refaie, Staff Lawyers

Introduction

The COVID-19 pandemic has had a significant impact on the education of students in Ontario. We have now been through a full year of schooling during a pandemic; a year where students have had to face multiple school closures, online learning (also often referred to as virtual or remote learning), and multiple models of education. Among the groups most affected by the pandemic are students with disabilities. It is important to understand that students with disabilities have a long history of receiving inequitable education. Students with disabilities have encountered several additional barriers to education as a result of the pandemic. Although the pandemic continues to create significant difficulty for all involved in ensuring students receive meaningful and appropriate education, not enough has been done to ensure that students with disabilities are not left behind. This article will highlight some themes from this past academic year related to how the COVID-19 pandemic affected students with disabilities, from Kindergarten to Grade 12.

An almost impossible decision

Prior to the academic year beginning in September of 2020, parents and students were faced with an important decision to make: choosing between online or in-person learning. For many people this was a difficult decision, where they had to weigh the health risk of going to school, with the benefits of social aspects of in-person learning. This was an especially difficult decision for students with disabilities; they not only may be at a heightened risk of contracting the virus, they may also face increased health risks if they did contract COVID, while also considering the accommodations and disability-related supports required, and the impacts and limitations of online learning.

Accessibility concerns with Online and Hybrid Model

The Accessibility for Ontarians with Disabilities Act (AODA) K-12 Standards Development Committee outlined a number of barriers that students with disabilities are facing in accessing education through online learning. The programs used by schools often do not have effective captioning resources, may not be compatible with screen readers, and often lack sign language features. To learn more about the identified barriers, and the recommendations to address these barriers, go to: COVID-19 barriers for students with disabilities and recommendations .

In addition to the barriers identified by the committee, ARCH also learned from our clients and communities about a range of other concerns. For example, students with disabilities were unable to access certain resources which are generally available in person, such as: receiving learning assistance; quality of sound which created barriers for students with hearing disabilities; and many other barriers while receiving online learning.

Barriers have also been brought to our attention regarding a hybrid model where the teacher is located in the school, teaching the students who are attending school in person, as well as the students attending school online via webcam through live streaming. This model was chosen by school boards as it allows students to receive education safely online, but still be in class with their peers in their home school. ARCH has heard from some parents of students with disabilities who attend school using the hybrid model, who have shared their concerns with this model. One of the main concerns identified is that students online were given the same amount of time to do in-class tests and assignments as the students in person, even though they were required to both print out those assignments, and then scan them in. For some students with disabilities this was quite difficult and caused them additional stress. Another issue identified, was that students with hearing disabilities had trouble hearing the teacher due to placement of the microphone.

Implementation of Accommodations and Individual Education Plans (IEP)

While the pandemic has brought many changes to how education services are delivered, a school board’s human rights obligations under Ontario’s Human Rights Code remain unchanged. Regardless of the learning format opted for by students with disabilities, school boards have a duty to accommodate their disability-related needs. The IEP outlines the accommodations required by the student for them to have meaningful access to education. The IEP is a living document and is the accommodation plan for students with disabilities, generally reviewed at least annually and on an as-needed basis, particularly when the student’s needs have changed, or the accommodation identified is no longer appropriate.

With the significant barriers posed by the pandemic, it is crucial for school boards to ensure that students’ IEPs are properly created, implemented, and contain appropriate accommodations which meet their disability-related needs. Through their duty to accommodate, school boards have a legal responsibility to provide accommodations without delay, so as to not impact or delay a student’s education. However, multiple delays in some school boards last autumn resulted in significant delays in both creating and implementing IEPs for students with disabilities. Some of these delays exceeded several months, resulting in setbacks for students with disabilities due to the lack of support for a large portion of the school year.

Mask Exemptions in School

Over a year into the pandemic, masks are part of an everyday routine for most people in Ontario. Mask by-laws in Ontario have mandated that people in Ontario must wear a mask to go into certain places. The laws do outline that some individuals are exempt from wearing a mask. ARCH wrote an article in our previous ARCH Alert on Mandatory Mask use in Ontario, to access the article go to: Mandatory Mask use in Ontario .

The mask by-laws, as they are currently drafted, do not apply to schools. The government decided that school boards would be in charge of making their own policies on masks. In a review of a number of school board policies it became clear that these policies, although similar, have different rules on who is exempt and what a student has to prove in order to be exempt. With the option of online learning, school boards often suggest that students who cannot wear a mask receive education online, to prevent the health and safety risks to both the student and other students/staff at the school. For some students this is an option. However, a conflict may occur when a student who is exempt from wearing a mask also has challenges with accessing online learning because of their disability-related needs. As mentioned above, the duty to accommodate still applies during the pandemic. Schools must ensure that individuals who are unable to wear masks as a result of their disabilities are able to have equitable access to education, whether online or in person.

Conclusion

The pandemic has caused many barriers to persons with disabilities in accessing education. The Ministry, school boards, and schools, should reflect on the past year and remove the accessibility barriers to education. It is unclear at the date of this article how online learning will continue in September. ARCH will continue monitoring the issue.

If a student with a disability is not being appropriately accommodated in school, they may contact ARCH’s Summary Advice and Referral service for confidential and free legal information and summary legal advice.

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Update on Ontario’s Triage Protocol

By: Mariam Shanouda, Staff Lawyer

As Ontario emerges from the third wave of the COVID-19 pandemic, the concern with Ontario’s Triage Protocol being triggered is, while not as pressing, still of deep consternation to disability communities.

In early January 2021, ARCH learned that a newer version of the Triage Protocol had been distributed secretly to hospitals all over Ontario. This version was never made public by the government. Disability organizations like ARCH and the AODA Alliance managed to get a copy of this new version and made it available to the public. You can find a copy of the January Triage Protocol here: Triage Protocol (PDF) .

This Triage Protocol was very concerning as it instructed doctors to use many of the clinical tools that ARCH, along with other disability organizations and the Ontario Human Rights Commission, found to be discriminatory and would disproportionately impact persons with disabilities. It also failed to include many of the recommendations made by ARCH and other disability organizations including the lack of an appeal process and no oversight mechanisms.

In January 2021, ARCH also learned that the government was considering suspending certain provisions of the Health Care Consent Act. In particular, the government was contemplating suspending the requirement that doctors have to get a patient’s consent to withdraw life-saving treatment. This would allow doctors to withdraw patients from life-saving care without the consent of the patient or their support decision-maker. ARCH made two public statements raising concern about the suspension of HCCA provisions, ARCH Statement on Doctors Operating Outside of the HCCA Framework and ARCH Statement on the Potential Suspension of the Health Care Consent Act.

As Ontario entered the third wave of the pandemic in April, which saw numbers rise and ICUs across the province reach overwhelming capacity, ARCH repeatedly called on the government to make clear whether there was a Triage Protocol in place that would be triggered. The government continued to remain silent. In a statement directed at the government, ARCH reminded the government that it had been 12 months since ARCH first called upon the Ontario government to ensure that any Triage Protocol to guide doctors in making decisions when demand for critical care resources exceeds capacity, be equitable and non-discriminatory. However, the government had failed to carry out its duty and discharge this responsibility.

At around the same time ARCH also sent a letter to the College of Physicians and Surgeons of Ontario (CPSO) regarding an email sent by the CPSO to doctors in Ontario. In that email, the CPSO advised doctors that it supported them if they had to deviate from CPSO policies and supported them if they followed triage protocols. In its letter, ARCH expressed its concern at CPSO’s support of doctors applying and using a discriminatory triage protocol. ARCH reminded the CPSO of its obligations pursuant to Ontario’s Human Rights Code and the Canadian Charter of Rights and Freedoms which continue to apply even during the pandemic. The CPSO never clarified their message to their members.

On April 15, six members of the Bioethics Table, which was the group responsible for drafting the Triage Protocol, released an article echoing the concerns ARCH had previously raised about the lack of transparency and lack of public engagement. In particular, the Bioethics Table members emphasized that the process in developing a Triage Protocol should be informed, transparent, inclusive, reasonable, and should be revised in light of feedback. These requirements, according to the Bioethics Table members, had not been met in the drafting of the Triage Protocol. ARCH supported the Bioethics Table members’ call for clarification from the Ontario Government.

In light of the government’s secrecy and lack of direction combined with the rising pandemic numbers, ARCH lawyer Mariam Shanouda and AODA Alliance Chair, David Lepofsky, appeared on a webinar hosted by Community Living Ontario to provide legal information to persons with disabilities and their support persons about their rights. In particular, the webinar provided information about the development of the triage protocol, specific issues of concern about the clinical tools being used, the potential suspension of the HCCA, and some strategies persons with disabilities and their support persons can use should they find themselves in hospital or in the ICU during a COVID-19 wave. Along with the webinar, ARCH released a fact sheet summarizing the legal information in English, French, and in English plain language .

For the time being, because of the lower numbers of COVID-19 infections being reported, hospitals and ICUs in particular, are not under the stress that they were in April. However, as ARCH has urged for the past year, it is during this time that the government and the medical community must turn their minds to developing a triage protocol that does not rely on discriminatory clinical tools to make difficult decisions when the resources needed outweigh the resources available.

ARCH will continue to monitor this issue.

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Bill C-35 - Canadian Disability Benefit

By: Dianne Wintermute, Staff Lawyer

On June 22, 2021, a bill was introduced and passed first reading by the House of Commons of Canada called Bill C-35 – An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act (Canada Disability Act or the CDBA). The Canada Disability Act proposes to create a framework for designing and developing a federal disability benefit. The details of the benefit, such as eligibility criteria for the benefit, and the rate, are not described in the Bill but left to be developed in future regulations. Such regulations would be developed after broad consultations with low-income disability communities, organizations that support them, Indigenous communities, and others.

The Canadian Disability Benefit is part of the government’s larger Disability Inclusion Action Plan (DIAP). The goal of the DIAP is to reduce poverty, create more quality employment opportunities for persons with disabilities, and to foster a culture of inclusion across Canada. DIAP is also intended to further the purpose of the Accessible Canada Act and create a barrier free Canada by 2040.

The government has acknowledged that Canadians with disabilities are twice as likely to live in poverty than non-disabled citizens. This situation has worsened as a result of the COVID-19 pandemic. In order to address the long-standing inequality, financial hardship, and social exclusion experienced by Canadians with disabilities, the federal government says that they are delivering on their commitment to build a disability-inclusive Canada.

At this time, we know that the benefit is intended to supplement, but not replace, existing provincial, territorial, and federal disability income programs, like the Ontario Disability Support Program. The CDBA says that the benefit will be paid to people with “severe disabilities”, without defining what that means. This means that the benefit likely will not be automatically paid to all persons with disabilities. The benefit will be delivered through Service Canada and paid monthly to people, based on their individual income and circumstances. The benefit will contain earnings exemptions for both employed and self-employed persons with disabilities. There will be an appeals process. And finally, the benefit is expected to be in place for April 2022.

If there is a federal election this fall, the fate of the CDBA, and the Disability Inclusion Action Plan, are uncertain.

The government has risen for the summer, so there will be little action on the benefit until the fall. However, on June 4, 2021, the government launched an online consultation on the DIAP. The consultation is in the form of a survey, and asks what can be done to improve the lives of Canadians with disabilities. You can find the survey here:

Engagement on the Disability Inclusion Action Plan

The survey is open until August 31, 2021.

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Announcement from Communication Disabilities Access Canada (CDAC)

Communication Disabilities Access Canada (CDAC), is pleased to transfer its communication intermediary and access to justice program to a new, national, non-profit organization: Communication Access to Justice (CAJust).

CAJust will build on CDAC’s past work to train communication intermediaries (CIs) and to promote communication access to police, legal, and justice services for victims, witnesses and accused persons who have disabilities that affect speech, language and communication. This initiative aligns with CDAC’s mission to facilitate organizations to provide communication accessibility supports for people with communication disabilities. CDAC is currently supporting CAJust with start-up funding as well as providing input and access to our website for online trainings, database and resources.

“I am pleased to introduce you to Caitlin Buchel, who is the Executive Director of CAJust. I have no doubt that Caitlin and CAJust’s Board of Directors, will maintain and expand the communication intermediary program that we started in 2007 and I wish them every success”: Barbara Collier, Executive Director, CDAC.

For information, use this link. Please direct inquiries to Caitlin at [email protected].

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Survey on Accessibility of Ontario Courts

The Ontario Courts Accessibility Committee has launched a survey to identify and learn more about the disability-related barriers that people with disabilities experience when accessing and participating in the courts system. As long-standing members of this committee, ARCH encourages persons with disabilities who have had experience with the courts to complete the survey.

English version: Ontario Courts Survey in English

French version: Ontario Courts Survey in French

The survey will remain open until September 30th, 2021.

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Respecting Rights Updates

By: Sue Hutton, Respecting Rights Coordinator, and Rachel Weiner, Staff Lawyer

Respecting Rights continues to develop a strong movement of self-advocates across Ontario. Among its other projects and initiatives, Respecting Rights has led an accessible law reform campaign about changes to developmental services law. It has also continued to hold public legal education workshops online for people labelled with intellectual disabilities across the province.

Sadly, over the course of the pandemic, we lost two very important members of this self-advocates community, Stephane Boulanger and Richard Ruston. These losses have been painful for Respecting Rights – and we commit to keep on working for rights for all people labelled with an intellectual disability in memory of these incredible self-advocates.

Stephane Boulanger

Picture of Josee & Stephane

Caption: A picture of Stephane Boulanger, a man with brown hair wearing a burgundy button-down shirt. He is standing with his sister, Josée Boulanger, a woman with brown hair and glasses, wearing a blue shirt and a red scarf around her neck. Josee is holding a gift bag with polka dots and lime green tissue paper. Josée and Stephane are smiling.

Stephane Boulanger helped Respecting Rights develop a presence in Ottawa. Stephane worked closely on self-advocacy in Eastern Ontario with his sister Josée Boulanger, who directed a film, Freedom Tour, about deinstitutionalization. Josée and Stephane brought both English and Francophone self-advocates together to learn about their rights with ARCH lawyers at Respecting Rights.

Stephane died suddenly on February 21, 2021. Respecting Rights will always remember Stephane’s warm and unique style of bringing self-advocates together. Stephane was at the heart of this community – and was always there with a welcoming hug and accepting every single person exactly as they are. Josée Boulanger continues this work in Stephane’s name, and we are honoured to have her continuing with Respecting Rights. Josée has been instrumental in helping bring rights education to Francophone self-advocates, translating at our bilingual workshops.

Richard Ruston

Picture of Richard Ruston and Peter Park

Caption: A picture of two men, Richard Ruston and Peter Park, standing together and smiling. They are standing in front of a poster that says “People First of Canada”. Richard is wearing a black suit with a white shirt. Peter has glasses and is wearing a black suit, a blue shirt, and a tie.

Richard Ruston was past president of both People First of Ontario, and People First of Canada. Richard had a deep honesty that brought changes to self-advocacy. He was a firm believer in people being in charge of their own lives. Richard was instrumental in changing the term “person-centred” to “person-directed” in Ontario government language. He observed that language was important – and even if services were called “person-centred”, people were still having their rights taken away. Richard emphasized to the Ministry that people needed to direct their own services.

Richard died February 22, 2021 at age 55, from complications of Covid-19. ARCH and Respecting Rights warmly remember Richard, and are thankful to him for being instrumental in developing a partnership between People First of Ontario and Respecting Rights.

Respecting Rights Meets with Policymakers about Five Recommendations for Developmental Services Reform

In late 2020, the Ministry of Children, Community and Social Services (MCCSS) announced that it was planning to change the laws relating to developmental services. In response, self-advocates at Respecting Rights worked together with other self-advocates from across the province to share their concerns. Self-advocates discussed how to respond to MCCSS and what should be included in their plans for Developmental Services reform. They identified five priorities that they wanted to be part of the government’s proposed changes.

These five priorities are:

  • People’s voices need to be heard: The consultation for developmental services reform was not inclusive or accessible. Many people labelled with intellectual disabilities who receive these services were not able to participate. A solution the self-advocates propose is to hold regular, accessible meetings with MCCSS. In these meetings, persons labelled with intellectual disabilities would have the opportunity to share their thoughts and living experiences.
  • Same rights for everyone: Everyone who uses developmental services should have the same rights. To do this, MCCSS should create a province-wide Bill of Rights. This would ensure that rights are consistent in different developmental services agencies across Ontario.
  • An accessible complaints process: People receiving developmental services need a safe and accessible way to make complaints when there is a problem with the services they are receiving. When someone makes a complaint, the issue should be addressed, and services should be improved. People who make complaints should not be subject to reprisals from developmental services agencies. MCCSS should change the law to provide for accessible, safe, and accountable ways for people to make complaints.
  • Accessible technology: MCCSS has expressed plans to move more developmental services online. This could create barriers for people who do not have access to technology. During the pandemic, Respecting Rights has learned that many people labelled with intellectual disabilities have not had access to technology or the supports to use it. MCCSS should respond to these concerns and improve access to technology for people labelled with intellectual disabilities.
  • Better staff training: Sometimes, staff do not understand that people labelled with intellectual disabilities have the right to make their own decisions and should receive appropriate supports and accommodations for their disability-related needs. Better training would give staff the knowledge to do their jobs in ways that support the rights of the people they work with.

Respecting Rights contacted other organizations of self-advocates across the Province who signed on to a letter to MCCSS, supporting these five recommendations. The organizations who signed the letter are:

  • People First of Ontario
  • New Vision Advocates
  • Disability Advocacy Network of Eastern Ontario
  • Surrey Place Centre Self-Advocates
  • Advocates for a Better Future
  • Walkerton Action Committee
  • People 4 People Guelph
  • People 4 People Fergus

Respecting Rights also asked for a meeting with MCCSS. In May 2021, members of Respecting Rights met with high-level policymakers at MCCSS together with ARCH staff. The Respecting Rights members shared their living experiences that related to and motivated the five recommendations for changes to the law. The policymakers listened to these stories and engaged with the Respecting Rights members. Respecting Rights is hopeful that this meeting may start an ongoing conversation about how developmental services law should change.

Workshops

Respecting Rights has continued holding educational workshops online during the pandemic. In February and March 2021, Respecting Rights held a workshop series with participants from Toronto in partnership with Reena, Community Living Toronto, and the Miles Nadal Jewish Community Centre. These sessions gave participants legal information about human rights and accessibility, decision-making about health care, decision-making about money, and laws that relate to COVID-19. Participants took part in roleplays, true and false games, and other activities to learn about their rights. These sessions represent a milestone for Respecting Rights, since people were able to participate directly from the group homes where they live.

Respecting Rights thanks the staff at Reena, Community Living Toronto, and the Miles Nadal Jewish Community Centre for their support. Respecting Rights also thanks Golnaz Ghaderi, who conducted evaluations of these workshops and Josh Kolic, a Masters of Social Work student who assisted with these workshops as part of his placement with ARCH Disability Law Centre.

Staying Connected Across Ontario Workshops and Music Video

In April 2021, Respecting Rights held another workshop series for participants across the province. This workshop series was called “Staying Connected Across Ontario”. It gave participants the opportunity to talk about making decisions, accessibility and their rights, and challenges during COVID-19. ARCH thanks the Ontario Ministry of Children, Community and Social Services for funding this workshop series.

In these workshops, Respecting Rights adapted its artistic activities to virtual platforms. For example, participants came up with words and pictures that empowered them. These words and pictures will be put together into a collage. As well, participants wrote and filmed video clips for a music video. These video clips described what they wanted everyone to know about the rights of people labelled with intellectual disabilities.

What started as a small project to bring some positivity to self-advocates across Ontario during the pandemic has turned into a big and exciting adventure. Graphics and video whiz Krishan Jayatunge has worked with ARCH and Respecting Rights on several projects, and is editing this music video for Respecting Rights. The video features voices of over 20 self-advocates from across Ontario – and will serve as an educational tool that is uplifting, and comes directly from the voices of persons with disabilities. Stay tuned for a release date.

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Changes at the Human Rights Tribunal of Ontario

By: Mariam Shanouda, Staff Lawyer

In the past year, Tribunals Ontario introduced several changes to its processes, its rules, its forms, and its hearing formats. As a part of Tribunals Ontario, these changes impacted practice at the Human Rights Tribunal of Ontario (HRTO) as well.

These changes were introduced in two phases and the HRTO invited stakeholders to provide comments and feedback about the proposed changes. ARCH participated in both consultations by providing written submissions. ARCH lawyers also attended a video-conference consultation with Associate Chair Tamara Kronis to provide oral submissions.

This article will provide background on the proposed changes, will summarize the concerns raised by ARCH and the recommendations made to address those concerns.

Background

In November 2020, Tribunals Ontario circulated a draft policy called “digital-first strategy” which proposed that all, or most, of the HRTO’s proceedings would take place electronically rather than in-person. The reason the HRTO was making this shift to electronic proceedings was because it believed this new approach would provide fair, efficient, and timely access to justice.

In April 2021, the HRTO proposed changes to its forms and its rules. The reasons for these changes according to the HRTO was to provide a faster and fairer process for any person appearing before the Tribunal.

In providing its feedback, ARCH provided the perspective of persons with disabilities. ARCH often assists and represents applicants appearing before the Tribunal who have experienced discrimination on disability grounds.

ARCH was especially concerned that the HRTO had not considered how the changes it was proposing may particularly impact persons with disabilities and may create barriers to accessibility.

It was from this perspective that ARCH raised the following concerns and made the following recommendations.

Changes to the HRTO’s Hearing Format – Shifting from In-Person Proceedings to Electronic Proceedings

The HRTO’s digital-first policy was drafted on the assumption that every party appearing before the Tribunal had access to certain resources like a computer, high-speed or reliable internet, and a private space from which they can attend a hearing or a mediation over videoconference.

With this concern in mind, ARCH made numerous recommendations. The following highlight some of the recommendations made to the HRTO.

Recommendation #1: In-Person Hearings Should Continue to be Available

ARCH recommended that the HRTO ensure that in-person mediations and hearings continue to be available to applicants who needed them for disability-related reasons. ARCH advised that while electronic proceedings were more accessible to some persons with disabilities, they were also inaccessible to other persons with disabilities. ARCH recommended that in order for the HRTO to ensure as accessible a process as possible, the HRTO should be flexible and provide the hearing format that most appropriately accommodates the needs of persons with disabilities.

Recommendation #2: Consider Balancing Privacy Interests

Electronic proceedings present new and different privacy concerns than those raised by in-person hearings. ARCH was concerned that providing a webinar link to the public to allow them to attend a hearing may lead to people recording hearings and distributing them on the internet. Members of the public are not allowed to record hearings, but this rule is much easier to enforce at in-person hearings than for electronic hearings.

ARCH recommended that the HRTO consider how to ensure the protection of applicants’ privacy interests with the move towards electronic hearings and mediations. Members of the public do have the right to observe hearings – whether in person or electronically. However, ARCH recommended that if hearings were to be held electronically, it would be the HRTO’s responsibility to ensure that observers respect the HRTO’s rules and not interfere, interrupt, or record any of the proceedings.

For ARCH’s full submissions on Tribunal Ontario’s Digital-First Strategy go here: ARCH Submission

Proposed Changes to HRTO’s Rules and Forms

In April 2021, the HRTO invited different stakeholders to provide feedback on the HRTO’s proposed changes to their rules and forms. ARCH provided written submissions as well as oral submissions which informed the HRTO of ARCH’s concerns, and some recommendations to address those concerns.

Recommendation #1: The Rules Should be Developed through a Universal Design Lens

ARCH is concerned that the proposed changes will create more barriers for persons with disabilities. If the rules are not created with accessibility in mind, this would lead to persons with disabilities having to consistently and continuously ask for accommodations in order to fully participate in the HRTO’s process. This would be a burden that should not be carried by persons with disabilities.

ARCH recommended that the HRTO apply principles of universal design when creating or changing its rules and its forms.

Universal design encourages the creation of services that are as accessible and usable by as many people as possible, without the need for persons having to ask for accommodations wherever possible.

For example, one of the changes proposed was the shortening of timelines to file certain documents, including a Reply. If an applicant wanted to file a Reply, they would usually have 21 days. However, the change proposed by the HRTO was to shorten this to 10 days. This had the potential to create even more barriers for persons with disabilities. By shortening the timelines, the HRTO was placing the burden on persons with disabilities to have to seek disability-related accommodations to extend timelines.

From an accessibility lens, the preferred approach is to provide longer timelines. In this way, more people, including persons with disabilities, will be able to abide by the deadlines without having to seek out extensions. At the same time, even with these longer timelines, the HRTO will still have to provide extensions when disability-related requests for more time are made.

By adopting and applying the principles of inclusion and universal design, the Tribunal can serve to inform and ensure that access to justice barriers are not created.

Recommendation #2: Applicants Should Have a Right of Reply

The HRTO’s process starts when a person files an application telling the Tribunal about their complaint. This is called an Application. The respondent then files a response giving their side of the story about the applicant’s complaint. This is called a Response. The applicant then has one more opportunity to respond to anything the Respondent said in their response that the applicant did not have the opportunity to discuss in their Application. This is called the Reply. Every applicant has a right to file one.

However, the HRTO proposed that applicants would not be able to file a Reply any more. Rather, if the applicant wanted to file a Reply, they would first have to ask the Tribunal for permission to be allowed to do so and the applicant would have to demonstrate to the Tribunal why filing a Reply was necessary.

ARCH was concerned that this would be a barrier to accessing justice, especially for persons appearing before the HRTO without a lawyer and who may not know whether or not they should ask for permission to file a Reply.

ARCH recommended that the proposed change to the rule not be implemented. It is important for persons appearing before the HRTO to be able to tell their whole story, and taking away the opportunity to respond in this way does not allow them to do that.

ARCH also reminded the HRTO that sometimes an applicant does not have all of the information at the time of filing their application. That information is learned by the applicant when they receive the respondent’s response. An applicant should then have the opportunity to respond to that information.

ARCH acknowledged that the HRTO is not taking away the Reply completely. But ARCH explained that making it a requirement for an applicant to have to ask for permission to file a Reply was both a burden on persons with disabilities and a barrier to access to justice.

Recommendation #3: Making the Application Form as Accessible as Possible

As mentioned above, when a person wants to file a complaint at the HRTO they must do so by filling out an Application and filing it with the HRTO. Another name for the Application is ‘Form 1.’ In an attempt to make the form easier to fill out, the HRTO suggested several changes. ARCH reviewed the changes and noted that some of these changes actually create more barriers for persons with disabilities.

One change the HRTO wanted to make was to limit the number of words and the number of pages a person can use to tell their story to the Tribunal. ARCH recommended that there not be any word limits or page limits as they can be a barrier for persons with disabilities. In particular, such limits can be difficult for persons who do not have a lawyer and who may not know what information is necessary to make their case, and which information is relevant or irrelevant. This could lead to them leaving out very important parts of their case.

Another change was to restrict the font size used in the Application. Many persons with disabilities, including persons with vision disabilities, require the use of large size font. ARCH recommended that this restriction not be included, since persons with disabilities should be allowed to use large-size font without having to first request an accommodation.

In oral submissions, ARCH also recommended that the HRTO make sure that that the electronic application form be accessible. The current application form is in a PDF format, which means it is not fully accessible for persons with disabilities who use screen readers. The form is also inaccessible as it requires the person filling it out to fill it out all at one time, as the incomplete form cannot be saved to be completed at a future time. ARCH recommended that forms be made available in formats other than PDF, and that the HRTO make sure they can be saved so that persons do not have to fully complete it all in one sitting.

For ARCH’s full submissions on the Tribunal’s proposed changes to the Rules and the Form 1: Application, go here:
ARCH’s full submission

ARCH is prepared to make further submissions on any other policies or changes proposed by the HRTO. We will monitor any changes made and when they will be in effect.

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Meaningful Participation of Persons with Disabilities in Regulation Making: Final Report and Recommendations

By: Kerri Joffe and Rachel Weiner, Staff Lawyers

Regulations are a type of law. They usually provide specific details and rules about how legislation or government policy will be implemented. For example, the Accessibility for Ontarians with Disabilities Act (AODA) is accessibility legislation in Ontario. Under the AODA, there are a number of regulations which give specific details and requirements for accessibility in information and communications, employment, transportation, customer service, and the design of public spaces. Similarly, the Accessible Canada Act (ACA) is accessibility legislation that applies to federally-regulated businesses, organizations, industries and federal government programs and services. Under the Accessible Canada Act, regulations are being developed which give details and requirements for accessibility in the federal sphere.

Governments and other public authorities write regulations, and often there are opportunities for the public to participate in the process when regulations are developed. There may be opportunities to participate in a public consultation about a regulation that government wants to develop, or to send written input about a draft of a regulation before it is finalized.

Over the past two years, ARCH has worked with disability community partners and researchers at McGill University to identify barriers in federal regulation-making processes and to provide insights about how to make these processes more meaningful and inclusive for persons with disabilities. This work is particularly important since regulations under the Accessible Canada Act are currently being developed by the Government of Canada, the Canadian Transportation Agency, and the Canadian Radio-television and Telecommunications Commission (CRTC).

ARCH recently published our final report, outlining recommendations about how to address and prevent barriers to the participation of persons with disabilities in regulation making. To read ARCH’s findings and recommendations, go to the final report on ARCH’s website:

Research Methods: Legal Research, Empirical Research, and Collaboration with Disability Community Partners

In our final report, ARCH drew upon findings from multiple research methods to inform our analysis of barriers, and our recommendations.

ARCH completed extensive legal research, conducted from a substantive equality perspective. We reviewed case law relating to substantive equality and the participation of persons with disabilities in regulation and legislative development; the Convention on the Rights of Persons with Disabilities and General Comments authored by the United Nations Committee on the Rights of Persons with Disabilities; and academic scholarship relating to participation of persons with disabilities in regulation and policy making. ARCH analyzed barriers documented in the independent reviews of accessibility legislation in Ontario and Manitoba. As well, we researched existing federal processes to develop regulations used by the Government of Canada, the Canadian Transportation Agency, and the CRTC.

In partnership with researchers at McGill University, we conducted an empirical study to collect data about the experiences of persons with disabilities who participated in regulation making. The McGill research team was led by Dr. Keiko Shikako-Thomas, Canada Research Chair in Childhood Disabilities: Participation and Knowledge Translation and Associate Professor, School of Physical and Occupational Therapy, and Dr. Mehrnoosh Movahed, Research Associate, School of Physical and Occupational Therapy. The McGill research team conducted semi-structured interviews with 36 participants. 22 of these participants identified as having a disability. Interviews were about 1-2 hours in length and questions were framed around barriers that prevent meaningful participation in regulation making processes and facilitators that promote participation.

Throughout the project we worked extensively with our disability community project partners to understand their experiences with regulation development processes. These partners were: the Canadian Association of the Deaf, the Council of Canadians with Disabilities, Communication Disabilities Access Canada, the National Coalition of People Who Use Guide and Service Dogs in Canada, and People First of Canada. Our project partners provided extensive feedback, recommendations and support that informed all aspects of our research, analysis and final recommendations. We are also grateful to our academic project partner, Osgoode Hall Law School, York University, for its support of this project.

Barriers and Solutions: Research Findings and Final Recommendations for Regulators

Based on our legal research, the McGill research study, and input from our project partners, we developed recommendations for the Government of Canada, the Canadian Transportation Agency, and the CRTC. These recommendations advance concrete ideas to make regulatory development processes under the Accessible Canada Act more accessible, participatory, and meaningful for people with disabilities.

Overall, we concluded that persons with disabilities experience multiple barriers when participating in existing regulatory development processes. Existing processes are highly technical, and due to systemic ableism and intersectional discrimination, persons with disabilities often lack the necessary knowledge, skills and supports to participate effectively.

Our research findings also demonstrated that many persons with disabilities experience additional, intersectional barriers or may be excluded from existing regulatory development processes altogether. For example, Indigenous persons with disabilities who live on reserves and others who live in remote areas face additional barriers to participation. As well, our research highlighted barriers to participation faced by children, youth and their families, newcomers to Canada with disabilities, LGBTQIA2S+ persons with disabilities, and persons with disabilities who are not affiliated with larger organizations. Our recommendations were created to address the diverse barriers that disability communities experience to participating in regulation making.

Our final report includes a series of recommendations aimed at enhancing the accessibility of existing regulatory development processes and making them more meaningful for persons with disabilities. For example, most federal regulatory development processes include consultations with the public, including persons with disabilities. One recommendation in our final report is that when planning these consultations, regulators must proactively recruit underrepresented persons with disabilities, and provide accessible background information about the regulation well in advance of a consultation. Regulators should conduct regulatory consultations in multiple modes. Regulators should hire persons with disabilities as paid knowledge brokers to participate in the design and implementation of accessible consultation processes. Other recommendations highlight changes that could be made during consultations, including accessible and inclusive facilitation and consultation questions, collection of anonymous disaggregated demographic data about consultation participants, and attendance of high-level regulatory staff with decision-making power. Additional recommendations addressed steps that could be taken after consultations, including publication of submissions online and follow-up correspondence sent to participants in plain language to promote a two-way dialogue.

In addition to these, ARCH made recommendations that could be implemented alongside existing federal regulation development processes. Regulators could hold gatherings with underrepresented groups of diverse persons with disabilities in culturally appropriate ways. The funding and development of resources to support participation, including educational resources in multiple accessible formats, would help to ensure that diverse disability communities have capacity to participate in consultations when regulations are being developed.

Given the inherent complexity and entrenched structure of existing federal regulatory development processes, our report acknowledges that even if these recommendations were implemented, barriers would remain and some persons with disabilities would almost certainly continue to be excluded. Therefore, ARCH included a set of recommendations intended as a starting point for envisioning an entirely new way to conduct regulatory development, implementing the principles of substantive equality and the principles outlined in the Accessible Canada Act. Our project partners and the participants in the McGill study emphasized their preference for co-creation and collaboration when accessibility regulations are developed, as opposed to consultation. This approach would reflect a more active and continuous role for persons with disabilities that encourages ongoing, mutual exchange of information with regulators.

Conclusion

ARCH is eager to share this final report with disability communities and regulators and hopeful that it will provide opportunities for ongoing conversations and reforms of regulation making processes. ARCH will also be publishing educational resources, including videos and written materials, about the Accessible Canada Act, the federal regulation making process, and the opportunities for persons with disabilities to participate in these processes.

This final report and these educational materials would not have been possible without the contributions of ARCH’s project partners and research team. Finally, ARCH thanks the Government of Canada’s Social Development Partnerships Program – Disability Component for funding this project.

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ARCH on Social Media

ARCH is on social media. You can find us at:
twitter icon www.twitter.com/ARCHDisability
facebook icon www.facebook.com/ARCHDisabilityLawCentre
Check ARCH’s website www.archdisabilitylaw.ca for the Latest ARCH News, publications (including past issues of the ARCH Alert), submissions, fact sheets and more.

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Become a Member of ARCH

If you would like to become an individual member of ARCH, please visit our website at www.archdisabilitylaw.ca or contact our office to request an Application for Individual Membership form. Membership is free.

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Donating to ARCH

While ARCH receives core funding from Legal Aid Ontario and grant funding from other sources, we also rely on the donations from individuals. We ask you to consider being a part of our work by contributing whatever you can. If you are able to assist please donate to ARCH through www.canadahelps.org .

Or you can send your donation cheque to:

Office Manager
ARCH Disability Law Centre
55 University Avenue, 15th Floor
Toronto, ON M5J 2H7
We will promptly send you a charitable receipt. Charitable No. 118 777 994 RR 0001

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About ARCH Alert

ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail or mail to ARCH members, 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 test case 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 RTF format is distributed to ensure accessibility.

Co-Editors: Robert Lattanzio & Amanda Ward
Production & Circulation: Theresa Sciberras

We welcome your comments, questions and feedback. 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. Please address communications regarding ARCH ALERT to:

Theresa Sciberras, Operations, Program and Administrative Assistant,
ARCH Disability Law Centre,
55 University Avenue, 15th Floor
Toronto, ON M5J 2H7

Fax: 416-482-2981 or 1-866-881-2723
TTY: 416-482-1254 or 1-866-482-2728
e- mail: [email protected]
Website: www.archdisabilitylaw.ca/

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Contact ARCH Alert

If you enjoyed this issue of the ARCH Alert, please consider sharing it with others. RTF and PDF versions of our most recent and older issues of the newsletters are available on our website at https://archdisabilitylaw.ca/resources/arch-alert/

ARCH Disability Law Centre
55 University Avenue, 15th Floor
Toronto, ON M5J 2H7
www.archdisabilitylaw.ca

Voice
Telephone: 416-482-8255
Telephone Toll-free: 1-866-482-2724

TTY
TTY: 416-482-1254
TTY Toll-free: 1-866-482-2728
The TTY is not being answered as ARCH staff work remotely

Fax
Fax: 416-482-2981
Fax Toll-free: 1-866-881-2723

Email
[email protected]

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Last Updated: July 28, 2021

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