Annual General Meeting: Save the Date!

ARCH Disability Law Centre will be hosting its Annual General Meeting (AGM) on Thursday, October 12, 2023 at 6pm.

Invitations and membership packages will be sent via email about one month before the AGM. If you are not already subscribed to receive materials from ARCH, or if you would like to become a member of ARCH, please visit ARCH’s Website.

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The Canada Disability Benefit Act becomes Law

By: Robert Lattanzio, Executive Director

The Canada Disability Benefit Act, Bill C-22 has now become law, receiving Royal Assent on June 22, 2023. The Bill was ultimately passed on June 20, 2023 when the Senate agreed to the recommended changes (amendments) made by the House of Commons.

The amendments that were ultimately made to the Canada Disability Benefit Act include a strengthening of the Preamble which now says: “[w]hereas persons with disabilities may face additional barriers because of their gender, racialized or Indigenous status or other intersecting statuses”. Other amendments require that important factors such as the additional costs of disability, intersectionality, barriers to earning an income, and international human rights obligations be considered when developing regulations concerning the amount and administration of the Canada Disability Benefit. The House strengthened the Senate’s amendment that provides for the right to appeal a decision of ineligibility or the amount of the benefit received, or any other matters as set out in regulation. The amendments also set a timeline of twelve (12) months for particular regulations to be developed once the Act comes into force, in order to ensure there is no undue delay of the benefit reaching people who need it. The House of Commons unfortunately rejected the Senate’s amendment that would ensure that private insurance companies do not claw-back the disability benefit from anyone who is eligible.

ARCH is grateful to the Senate for its thorough work to review the Bill and for the important amendments that it recommended. We appreciate the input from persons with disabilities who contacted us regarding their concerns about the Bill, as well as the members of the community who advocated for amendments to strengthen the Bill by including rights-based protections.

Much of the important detail about the benefit itself is left to the development of regulations. In an article in the Globe and Mail, June 22, 2023 (updated June 23, 2023), then-Minister Carla Qualtrough stated that payments of the Canada Disability Benefit could begin around December 2024, but qualified that statement by saying that this was a rough estimate and that it could change. It is important to note that the Act is not yet in force, and it will come into force when the Government decides to do so, within a year from receiving Royal Assent.

On July 24, 2023, the Government announced plans to begin the engagement process to develop the regulations for the Canada Disability Benefit. There will be two phases of engagement for the design of the regulations. The first phase will begin in August 2023 with an information session for disability stakeholders to “establish a common understanding of the regulatory process”. In September 2023, roundtables and bilateral meetings will begin, and in the fall/winter of 2023 an online portal will be made available for submissions from all Canadians. The second, more formal phase, will begin when the proposed regulations will be published in the Canada Gazette, and will proceed from there. For more details about this process, including proposed timelines, you can visit the Government of Canada’s website.

Given the critical need of our communities for this benefit, there is a growing call for interim funds to be allocated to persons with disabilities living in poverty to bridge the gap until the Canada Disability Benefit is ready to be distributed. An individual in Ontario has initiated a petition calling on the Government of Canada to “create and implement a disability emergency relief benefit to provide immediate support to people with disabilities while awaiting the implementation of the Canada Disability Benefit.” If you are interested in knowing more about this petition, you can access it here: Petition.

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Service de conseils juridiques sommaires et références d’ARCH

Saviez-vous que nous offrons des conseils juridiques sommaires gratuits et confidentiels dans certains domaines de droits? ARCH offre ce service directement aux personnes handicapées en Ontario. Ce service est offert en anglais et en français.

Nous offrons des conseils juridiques sommaires dans les domaines suivants :

• Lois d’accessibilité
• Services auxiliaires/services d’un préposé
• Droit de l’éducation
• Le transport
• Discrimination/Droits de la personne
  • Au travail (non syndiqués)
  • Éducation primaire et secondaire
  • Éducation post-secondaire
  • Animaux de service
• Droits de prises de decision
  • Appui pour les prises de decisions
  • Révocation de tutelle
  • Tuteur et curateur public
  • Procurations

Si vous êtes une personne handicapée en Ontario et avez besoin d’un conseil juridique dans un des domaines cités ci-haut, contactez-nous du lundi au mercredi et vendredi, entre 9h00 et 17h00 :

Téléphone : 416-482-8255 / 1-866-482-2724 ext. 0
ATS : 416-482-1254 / 1-866-482-2728
Courriel : intake@arch.clcj.ca

Ce service est offert par téléphone. Si vous avez besoin d’une mesure d’adaptation pour communiquer avec nous, s’il-vous-plait contactez-nous et nous explorerons les mesures d’adaptation appropriées pour vos besoins liés à votre handicap.

ARCH’s Summary Advice and Referral Service

Did you know that we offer free and confidential summary legal advice in some disability-related areas of law? ARCH offers this service directly to persons with disabilities in Ontario. This service is offered in English and in French.

We provide summary legal advice in the following areas of law:

• Accessibility laws
• Attendant/PSW services
• Education law
• Transportation
• Discrimination/Human rights
  • In the workplace (non-unionized)
  • Primary/secondary education
  • Post-secondary education
  • Service animals
• Decision-making rights
  • Supported decision-making
  • Removing guardianship
  • Public Guardian and Trustee
  • Powers of Attorney

If you are a person with a disability in Ontario and need legal advice in any of the above areas of law, please contact us on Monday, Tuesday, Wednesday, or Friday, between 9:00AM and 5:00PM:

Telephone: 416-482-8255 / 1-866-482-2724 ext. 0
TTY: 416-482-1254 / 1-866-482-2728
Email: intake@arch.clcj.ca

Our service is a telephone service. If you require accommodations to communicate with us, please contact us and we will explore appropriate accommodations for your disability-related needs.

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Filing Complaints at the Canadian Human Rights Commission

By: Ilinca Stefan and Hannah Lee, Staff Lawyers

ARCH has discovered some important information about changes and delays at the Canadian Human Rights Commission (“the Commission”).

The Commission can accept claims of discrimination which go against the Canadian Human Rights Act. One of the Commission’s roles is to screen discrimination complaints and decide whether to refer the complaint to Canadian Human Rights Tribunal for a full inquiry.

You have 12 months from the event you are complaining about to file a complaint with the Commission. It is important that the Commission’s process is clear and free of barriers since delays in filing a complaint and receiving confirmation means that a complaint may fall outside of the 12 month time limit.

There are four ways to file a complaint with the Commission as set out in the Complaint Rules:

1. Complete and submit the online Complaint Form,
2. Email a completed Complaint Form to plainte@chrc-ccdp.gc.ca,
3. Send a completed Complaint Form by Courier or regular mail to Canadian Human Rights Commission, 8th Floor, 344 Slater Street, Ottawa, Ontario K1A 1E1, or
4. Send a completed Complaint Form by facsimile (fax) to 613-996-9661.

What we know

ARCH has learned that some people may have received incorrect information when contacting the Commission about how to file a complaint. The following is what we know.

The Commission’s Complaint Form is available to complete and submit online on the Commission’s website at the URL provided above. At this time, filing in this way results in an automatic confirmation that the Commission has received the Complaint Form.

Filing by fax is acceptable, though we have learned that there have been intermittent issues with the fax number which the Commission is currently looking into.

You may file a complaint through email. The correct email address to use to file a Complaint Form, or to ask about a complaint is: complaint.plainte@chrc-ccdp.gc.ca. ARCH has learned that some people who have phoned the Commission have been advised not to file by email, or have been told to use an incorrect email address (complaint@chrc-ccdp.gc.ca). This is an old email address the Commission no longer uses, and which does not result in a reply, or confirmation, that the Commission has received the Complaint Form. If you have filed a complaint using the incorrect email address, save that email and contact the Commission right away at: complaint.plainte@chrc-ccdp.gc.ca.

You should receive an automatic reply or email after you submit your complaint by email, by fax, by mail, or through the online form. If you sent the complaint to complaint.plainte@chrc-ccdp.gc.ca, you should have received the following message:

Normally, if you are contacting us for the first time, you can expect a response by email or telephone within the next 30 days.

We are experiencing significant delays in handling complaints, since we are presently receiving a higher than normal number of requests. Under the current circumstances, we are responding within 2-4 months unless your request is deemed urgent.

Regardless of how you file a Complaint Form, the Commission’s Service Standard is to send a confirmation letter or email within 3 business days of receiving a complaint form. This standard is not being met. In our clients’ experiences, and those of members of communities we serve, it can take months to receive any confirmation, if at all.

The majority of complaints filed with the Commission are based on the ground of disability. Further, many people filing complaints with the Commission are unrepresented by a lawyer. ARCH has told the Commission of the barriers faced by our clients and the communities we serve and of the importance of a filing process which is accessible, efficient, and clear. The Commission is currently reviewing its Service Standards which are available on its website.

If you have trouble accessing any forms or experience barriers with filing, you can contact: modernization.modernisation@chrc-ccdp.gc.ca.

ARCH will continue to monitor these access to justice barriers. If you are a person with a disability and have questions about the process of filing a case at the Commission, you may contact ARCH’s Summary Advice and Referral service for confidential and free legal information and summary legal advice.

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Canadian Transportation Agency Issues Final Decision on Emotional Support Animals

By: Kerri Joffe, Staff Lawyer, and Jamie Tsui, Law Student – Osgoode Summer Internship

In June 2023, the Canadian Transportation Agency (Agency) issued a decision about Emotional Support Animals (ESAs) travelling on airplanes and trains. The Agency made this decision in relation to six applications which were filed by individuals with disabilities, who wanted to travel on an airplane or a train with their ESA.

ESAs are animals that do not perform tasks to assist people with disabilities, but instead provide emotional support, comfort, and protection. Many people with disabilities use ESAs. For example, people with anxiety or other mental health disabilities use ESAs to assist with emotional regulation. ESAs are a form of disability accommodation that facilitates equal access to travel for some people with disabilities.

The Agency’s decision addressed the question of whether transportation providers should be required to permit ESAs to travel on board, when a person has shown that they have a mental health disability which requires them to travel with an ESA. In its decision, the Agency recognized that ESAs make transportation more accessible for some people with disabilities. However, the Agency also recognized concerns with allowing ESAs on board trains and airplanes. Unlike service dogs, ESAs and their handlers are not specially trained and accredited, and some people are concerned about aggressive, unwanted, or uncontrolled behaviours.

In its decision, the Agency found that it would cause undue hardship for a federal transportation provider to accept an ESA other than a dog. The Agency further found that federal transportation providers are only required to accept emotional support dogs for travel if the person with a disability provides medical documentation proving that they have a mental health disability and need the dog to accommodate their disability; the person with a disability provides a certificate from a vet stating that the dog is healthy and does not exhibit inappropriate behaviour; and the dog must remain in a carrier that is kept at or under the seat for the entire trip. As a result, it is highly likely that airlines and railways will only accept ESAs that are small dogs travelling in a pet carrier at the person’s feet. No other animals will be permitted to travel on board as an ESA. The decision may also result in other federal transportation providers, like ferries and interprovincial buses, refusing to permit ESAs other than dogs travelling in pet carriers.

Before making its final decision the Agency published a preliminary decision and gave the six individuals, airlines, and railway involved in the cases an opportunity to explain why they agreed or disagreed. The Agency also allowed other individuals and groups to make submissions about its preliminary decision.

ARCH was one of the groups that made submissions about the Agency’s preliminary decision. ARCH’s submission outlined our concern that the Agency’s decision would set a new standard barring the transportation of ESAs that are not dogs. This new standard would reduce accessibility of trains, airplanes, and other federal transportation for persons with disabilities who require the use of an ESA that is not a dog. The right to request accommodation for one’s disabilities and the legal requirement for service providers to assess that request on an individualized basis are core principles of human rights law in Canada. However, by setting this new standard, the Agency’s decision would undermine the rights of persons with disabilities who use ESAs to seek individual accommodation. In its final decision, the Agency disagreed with ARCH’s submission and stated that each case will be decided on an individual basis. Despite these claims, the Agency makes it clear, in its final decision, that this decision will guide the Agency’s determination of the six individual applications, as well as future cases involving ESAs. In addition the Agency intends to use its final decision to guide people with disabilities, and transportation carriers, about the acceptance of ESAs for transport. Therefore, ARCH remains concerned that the Agency’s final decision sets a new standard for the federal transportation sector, which reduces accessibility for persons with disabilities who require the use of an ESA that is not a dog.

ARCH’s submission also conveyed our concerns that the evidence the Agency relied on to justify its decision was not robust enough to meet the established legal requirements in human rights law. As the body charged with adjudicating the accessibility of federal transportation systems, it is paramount that the Agency apply a human rights law analysis to cases before it. In its final decision, the Agency disagreed with the submissions made by ARCH and other groups that expressed concern about the negative consequences the Agency’s decision will have on accessibility of federal transportation. To review the Agency’s decision, and the submissions the Agency received, go to: CTA Decision.

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Addressing Eco-Ableism Towards a more Sustainable Future in Canada

By: Luke Magnatta – ARCH Summer Student enrolled at Trent University, Environmental Studies

Eco-ableism is a form of ableism which is inherently tied to topics such as climate change, climate change activism, and climate change policy and reform. Eco-ableism can be understood as both the impacts of climate change disproportionately affecting persons with disabilities, and the underlying discriminatory impacts of policy and legal responses in addressing the fight against climate change, having ableist consequences and creating barriers. Eco-ableism can include the environmental barriers in place that disproportionately affect persons with disabilities, as well as the failure to meaningfully engage and include the voices of diverse disability communities in policy-making on the topic of climate change.

Eco-ableism in climate change

Climate change is an issue that affects everyone on the planet, and needs to be addressed and talked about by all individuals to ensure all viewpoints are considered. The issue of climate change is not just an issue of our ecosystems and environment, but it is also a social issue that disproportionately affects minority groups. For example, environmental racism, in which communities of colour are disproportionately and negatively affected by the environment around them due to institutional practices in society, shares some of the same underlying factors as eco-ableism. Due to institutionalized behaviour and policies, persons with disabilities are disproportionately affected by climate change due to the disadvantages society imposes on them, making them more likely to live in lower income areas or experience homelessness. This is further exacerbated when we consider the intersection of identities and discrimination.  When we consider for example, the more extreme weather becoming increasingly common, temperatures on average being more extreme, and the increase of natural disasters, we can begin to critically examine how some persons with disabilities are disproportionately affected.

Eco-ableism in Canadian policy

On December 20^th, 2021, the Federal Government of Canada passed a law to ban 6 types of single use plastics¹. These plastics include checkout bags, cutlery, stir sticks, straws, ring carriers, and takeout containers containing certain problematic plastics². While this is an important step to decreasing plastic waste production in Canada, this law, while unintended, creates barriers for some persons with disabilities. Many of these tools, such as plastic straws, are an important tool for persons with disabilities in their everyday lives³. While the Government of Canada did provide an exception stating that plastic straws are available for individuals residing in health care environments, such as hospitals or long term care homes, this does not fully accommodate them nor does it remove barriers in other facets of daily living, such as going to work, restaurants, or home life⁴. Single use plastics are great as they are highly durable, flexible, cost efficient, temperature relative, and lightweight. Alternatives such as paper, metal, or silicone-based straws do not have all these unique properties which can lead to difficulties for some people with disabilities. For example, metal straws can get too hot if in a hot drink, paper straws are not very durable, silicone can be hard to clean and not very hygienic, and all cost more and are not as flexible and versatile as plastic straws. The Accessible Canada Act which was passed in 2019 seeks to remove barriers for persons with disabilities in federally regulated spaces in Canada⁵. It also stresses the need to meaningfully engage and consult with disability communities. This regulation on plastics however creates more barriers. Including the diverse perspectives of disability communities (including multiple disabilities and intersecting identities) is extremely important when reforming policy and social change.

Injustice in the climate movement and barrier free policy planning

As we strive towards a more sustainable world, it can be easy to fail to recognize that persons with disabilities often require more resources and materials than others. We need to include the opinions and voices of persons with disabilities, as both climate change, and the barriers that can arise from the effort for a sustainable future, can impact persons with disabilities on a much larger scale than people recognize. The social movement towards reaching more sustainable habits for us and our communities is flawed unless we look at the oppression affecting minority and equality seeking groups in our communities.  Systemic oppression will almost always be reflected in its relative social movement unless effort is put into unlearning or learning to do better. As Ontario progresses to become more environmentally sustainable, we need to recognize the needs of persons with disabilities living in this province.  Any city planning for example, needs to ensure that accessibility is a core factor, such as ensuring that transportation planning recognizes that persons with disabilities must be included when talking about sustainable methods of travel. Policy development must be barrier free, making sure that we are progressing towards a future that is sustainable and that includes all persons.

Endnotes

1. Government of Canada (2022) Single-use Plastics Prohibition Regulations (justice.gc.ca)
2. Environment and Climate Change Canada (Dec 21, 2021) Government of Canada moving forward with banning harmful single-use plastics – Canada.ca
3. Michelle Hewitt,Disability doesn’t have to clash with environmental responsibility (July 29 2022), Online: Disability doesn’t have to clash with environmental responsibility
4. E Cram, Martin Law, Phaedra Pezzullo, Cripping environmental communication: A review of Eco-Ableism, Eco-Normativity, and Climate Justice Futurities. (October, 2022) Online: Cripping environmental communication: A review of Eco-Ableism, Eco-Normativity, and Climate Justice Futurities. Cripping environmental communication: A review of Eco-Ableism, Eco-Normativity, and Climate Justice Futurities
5. Government of Canada (2019) Accessible Canada Act (justice.gc.ca)

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Recent Updates on Medical Assistance in Dying

By: Kerri Joffe, Staff Lawyer

Medical assistance in dying (MAiD) was first legalized throughout Canada in 2016. At that time, MAiD was limited to end of life situations; only people with disabilities, illnesses, or diseases who were suffering intolerably and whose natural death was reasonably foreseeable could be found eligible for MAiD. In 2021, the Government of Canada amended the law to remove the end of life criteria. These amendments expanded eligibility for MAiD to persons with disabilities, illnesses, or diseases who are suffering intolerably as a result of their disability, illness, or disease and who meet the other requirements in the law. In Canada, MAiD now includes both euthanasia and assisted suicide. MAiD is available for people with disabilities whose death is imminent (called Track 1), and also for people with disabilities who are not near the end of their natural lives (called Track 2).

Many people with disabilities, disabled people’s organizations, disability organizations, and disability rights advocates have advocated against MAiD, and in particular against MAiD for people whose death is not imminent (Track 2). Disability communities are desperately concerned that disabled people are requesting MAiD because they live in deep poverty, are homeless, are being forced to live in institutions, cannot get specialized medical services or cannot get the services and supports they need to live with dignity in the community, and they simply do not have any other options. In short, disability communities are witnessing systemic social and economic inequality leading people to choose MAiD. Several United Nations Special Rapporteurs have repeatedly written and spoken against MAiD for people with disabilities whose death is not imminent. They have outlined that Canada’s MAiD law discriminates against persons with disabilities and contributes to increased ableism in Canadian society, which is in violation of international human rights laws. The United Nations Committee on the Rights of Persons with Disabilities has also expressed similar concerns about Canada’s MAiD law.

Despite this persistent advocacy against MAiD, and the very serious ways in which it violates Canada’s international human rights obligations, MAiD not only continues to exist, but Parliamentary committees have recommended expanding it further.

Recent updates on MAiD in Canada include the following:

February 15 – Parliamentary Committee Releases Final Report on MAiD: The Special Joint Committee on Medical Assistance in Dying was a joint committee of the House of Commons and the Senate. Its mandate was to do a comprehensive review of Canada’s MAiD law and its implementation, and to study issues regarding the state of palliative care in Canada, MAiD for people whose only underlying condition is a mental illness, MAiD for mature minors, advance requests for MAiD, and the protection of Canadians with disabilities. On February 15, this Committee tabled its final report, which provided Parliament with 23 recommendations. Many of these recommendations involved further expanding eligibility for MAiD. For example, the Committee recommended that the Government of Canada should expand eligibility for MAiD to minors who have decision-making capacity. The Committee also recommended allowing eligible people to make advance requests, which would permit assisted dying to be performed on them when they can no longer make decisions for themselves. Further, the Committee recommended that the Government of Canada work to develop systems to collect disaggregated data about the impact of MAiD on Black, Indigenous, racialized, disabled and 2SLGBTQI+ communities; that Health Canada provide updates to Parliament on how it is engaging with First Nations, Inuit and Métis peoples on the topic of MAiD; and that the Government of Canada continue to support people with disabilities by implementing measures to reduce poverty.

March 7 – Expert Witnesses Criticize Parliamentary Committee’s MAiD Report: During its study and review of Canada’s MAiD regime, the Special Joint Committee on Medical Assistance in Dying heard from witnesses who provided expert testimony about the state of palliative care in Canada, MAiD for mature minors, advance requests for MAiD, MAiD for people who are suffering only due to a mental illness, and the protection of persons with disabilities. On March 7, a group of witnesses who appeared before the Committee released a letter stating that the Committee’s process and report ignored much of their expert testimony. These witnesses included people with disabilities, disability rights advocates, leaders of disability organizations, physicians, lawyers, and academics. These witnesses explained that they were routinely “talked over, ignored, argued with, and at times, openly disparaged by committee members in favour of amplifying the ideology of MAiD expansionists and pro-MAiD lobby groups.” They stated that the Committee’s report prioritized the opinions of those who argued in favour of expanding MAiD. They also wrote that the Committee did not pay attention to the serious concerns it heard about the ableism and discrimination inherent in Canada’s MAiD law, and the devastating impact that MAiD is having on disability communities. To review the expert witnesses’ letter go to: ARCH Disability Law Centre | Expert Witnesses Speak Out Against Parliamentary Committee’s MAiD Report.

March 9 – Mental Illness Exclusion Extended Until 2024: Under Canada’s current MAiD law, people who are suffering due only to a mental illness are not eligible for MAiD. However, this was a temporary situation, which was set to change in March 2023, when people suffering due only to a mental illness and who met the other criteria in the law were supposed to become eligible for assisted dying. On March 9, 2023 Canada’s MAiD law was changed. Now, people who are suffering due only to a mental illness are exempt from being eligible for MAiD until March 2024. Then-federal Justice Minister David Lametti stated that the Government of Canada decided to wait another year before expanding eligibility for assisted dying to people with mental health disabilities because in some provinces there were doctors, nurses and colleges that regulate them who had concerns and needed more time to prepare. Then-Minister Lametti also said that the delay was useful in order to allow more time to implement the recommendations from the Special Joint Committee on Medical Assistance in Dying.

March 22 – May 10 – Senate Committee Studying Canada Disability Benefit Receives Expert Testimony about Poverty Contributing to Requests for MAiD: From March 22 – May 10, the Standing Senate Committee on Social Affairs, Science and Technology studied Bill C-22, a new law that creates the Canada Disability Benefit, a federal income support benefit to reduce poverty among working age persons with disabilities across Canada. The Standing Committee heard testimony from many witnesses about the deep poverty that many persons with disabilities experience in Canada, and the urgent need for this benefit. Strikingly, the Standing Committee frequently heard from witnesses about the ways in which poverty contributes to persons with disabilities considering, applying for, or tragically going through with medical assistance in dying.

Summer 2023 – We anticipate that Health Canada will soon release its fourth annual report on Medical Assistance in Dying in Canada, which will report on MAiD data collected in 2022.

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Newfoundland and Labrador Human Rights Case Highlights Access to Education for Deaf Students

By: Ilinca Stefan, Staff Lawyer

On March 1, 2023, the Newfoundland and Labrador Human Rights Commission (NLHRC) released an important decision on the right to education for Deaf students. The case, Churchill v Newfoundland and Labrador English School District, is about a Deaf student’s right to Sign language interpretation at school as well as the right to be educated and evaluated in Sign language.

Carter Churchill is a Deaf student whose main form of communication is American Sign Language (ASL). In 2016, when Carter was in kindergarten, his parents identified the lack of supports put in place by his school district to accommodate his communication needs and to help him develop his ASL understanding. This lack of supports continued into his grade three year. The NLHRC found that the District’s accommodations for Carter from kindergarten to grade three were unreasonable and that Carter did not have “meaningful access to the education services customarily offered to the public by the District.”¹ Moreover, the NLHRC found that these accommodation issues were systemic.

Churchill is a significant case in many respects, one being the way that the NLHRC conducted the hearing. The nine day in-person hearing at the NLHRC was live-streamed with real-time ASL interpretation and closed captioning, allowing the Deaf community across Canada to observe in a meaningful way. Moreover, the NLHRC provided a team of ASL interpreters in the hearing room for the public in attendance.

Prior to the hearing, the NLHRC arranged for an information session from an expert on Deaf culture and terminology. The Churchill decision starts by providing important commentary on terminology, acknowledging that words matter. Notably, the NLHRC recognized that preferred terminology is often at odds with the language of “impairment” in human rights legislation.²

ASL is a language, not a preference

Persons requiring disability-related accommodation are entitled to appropriate accommodation and not necessarily their preferred accommodation. In human rights cases involving ASL interpretation, courts and tribunals often frame ASL as an accommodation that is a preferred method of communication rather than its own natural language. For example, one case found that a person whose first language was ASL was not entitled to ASL interpretation from a financial service provider because the service provider offered to communicate by writing notes back and forth.³

In contrast, Churchill specifies that accommodation means that in the classroom, Carter is supported in:

• the development of competence in ASL;
• accessing and being evaluated on the school curriculum via ASL;
• communication related to his safety and personal needs via ASL; and,
• in a way that does not isolate him from peers who are able to communicate with him

The Churchill decision affirms not only the importance of classroom instruction in ASL, but the importance of communication with peers in ASL.

Negative impact includes social isolation and language deprivation

At the hearing, expert witnesses presented evidence on the importance of Carter interacting with other children using ASL. The NLHRC accepted that the District’s inadequate support led to Carter’s exclusion, language deprivation, and social isolation.⁴ The NLHRC acknowledged the social isolation Carter experienced in a class full of hearing students, concluding: “he was physically present but in many ways, he was socially excluded.”⁵ The decision carefully considered the impact of this exclusion on Carter’s mental health, leading to an elevated monetary award.

Remedies

After finding that the District discriminated against Carter, the NLHRC ordered the District to provide reasonable accommodation for the rest of Carter’s enrollment as a student. The NLHRC awarded Carter’s parents $97,000 in compensation for the discrimination and $50,000 in legal costs. There are significant provincial differences in financial remedies for human rights discrimination. Compared with Newfoundland and Labrador, the monetary compensation awarded by the Human Rights Tribunal of Ontario tends to be much lower.

Moving forward

Deaf students continue to experience barriers to ASL education and adequate interpretation in school.  Pursuant to the Convention on the Rights of Persons with Disabilities, Canada is obligated to ensure that the education of Deaf students “is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.”⁶ While there is a long way to go, the Churchill decision is a significant step forward in the fight for meaningful access to education for Deaf students.

Endnotes

1.    2023 CanLII 16071 (NL HRC) [Churchill] at para 215.
2.    Churchill at para 16.
3.    Fretz v BDO Canada LLP, 2014 HRTO 1288.
4.    Churchill, supra note 1 at para 365.
5.     Churchill at para 360.
6.     Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3 art 24 (entered into force 3 May 2008).

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ARCH’s feedback to the 4th Independent Review of the AODA

By: Hannah Lee, ARCH Staff Lawyer

The 4^th Independent Review of the Accessibility for Ontarians with Disabilities Act is currently underway and in its final stages. The Independent Reviewer, Rich Donovan, released an Interim Report on March 9, 2023. A final report with recommendations was expected to be released at the end of June.

ARCH made submissions to the 4th Independent Review with a focus on establishing a rights-based framework for achieving accessibility on a large scale and underscoring the need to prioritize enforcement and strengthen standards.

The Interim Report frames the issues as an “over-reliance” on standards that has led to poor outcomes, and a lack of data that has contributed to this “over-reliance”.  The Interim Report proposes a move away from regulatory approaches, and towards non-regulatory solutions including data collection.  While ARCH would agree that compliance with minimum requirements in standards alone are insufficient to create a barrier-free Ontario, ARCH warns against presenting standard development, expansion, implementation, and enforcement as being at odds with an approach that incorporates lived experience into design. ARCH recommends a reframing of the 4^th Review through a rights-based lens that prioritizes proactive enforcement.

Review ARCH’s submissions.

Review 4th Independent Review’s Interim Report.

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Celebrating National AccessAbility Week

By: Robert Lattanzio, Executive Director

In celebration of National AccessAbility Week, ARCH once again partnered with the Law Society of Ontario to co-host our annual event which took place on May 31, 2023.  National AccessAbility Week is legislated in the Accessible Canada Act, and is celebrated throughout Canada, beginning on the last Sunday in May.  It is an annual opportunity to celebrate achievements of disability communities and spotlight the ongoing barriers to inclusion for persons with disabilities.

Our annual event offers an important opportunity to create space for our partners and stakeholders in the legal community, and the disability 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 within the legal profession. Our theme this year was “accessible justice for persons with multiple chemical sensitivities (MCS)”.

We explored critical themes around barriers to accessing justice for persons with MCS, and we were fortunate to be joined by esteemed speakers and experts who shared insight and knowledge regarding the disability itself, the barriers created and their impacts, and solution oriented strategies in making justice more accessible. We also described a current project called Empowering Community and Removal of Barriers (ECRoB), which ARCH is a partner of and which is led by the Environmental Health Association of Quebec. Our speakers included Dr. John Molot, Environment Health Clinic; an individual with lived experience who remained anonymous due to fear of reprisals; Leanne Goldstein, founder and senior lawyer, Leanne Goldstein Law Professional Corporation; Rohini Peris, President and CEO, Environmental Health Association of Canada & Environmental Health Association of Quebec; and Amélie Lauzon, Project Coordinator, Empowering Community and Removal of Barriers. Our panel discussion was moderated by Jason Mitschele, Chair of ARCH’s Board of Directors.

ARCH is very grateful for our ongoing partnership with the Law Society of Ontario in holding this annual event. We sincerely thank the Law Society for its continued support in creating opportunities for discussion on working towards more inclusive and accessible practices. ARCH is also grateful to our project partners, Environmental Health Association of Quebec, and Environmental Health Association of Canada, for their ongoing and tireless advocacy on behalf of communities of persons with MCS across Canada.

The recorded session is available here: AccessAbility Week Archived Webcast.

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Become a Member of ARCH

If you would like to become an individual member of ARCH, please visit our website: ARCH membership application  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 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 Canada Helps.

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. 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 volunteer Board of Directors, the majority of whom are persons with disabilities. Articles may be copied or reprinted provided that they are reproduced in their entirety and appropriate authorship and credit is given.

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

We welcome your comments, questions and feedback.

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Contact ARCH Alert

If you enjoyed this issue of the ARCH Alert, please consider sharing it with others.

Versions of our most recent and older issues of the ARCH Alert are available on our website at ARCH Alerts

ARCH Disability Law Centre
55 University Avenue, 15th Floor
Toronto, ON M5J 2H7
http://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

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

Email
general@arch.clcj.ca

Twitter: Twitter – ARCHDisability
Facebook: Facebook – ARCHDisabilityLawCentre 

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