Case Summary and Analysis: Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233
On April 12, 2022, the Divisional Court of Ontario released a seminal decision regarding the rights of persons with disabilities in accessing paratransit services. This decision is significant because it is a rare judicial pronouncement on how accessibility legislation must be interpreted and applied. The Divisional Court decision made several important findings. First, it affirmed that the Accessibility for Ontarians with Disabilities Act (AODA) is remedial legislation and should be interpreted in a fair, large and liberal way so as to achieve its purpose. Second, decisions about eligibility should promote a person’s independence and dignity, rather than undermine them. Third, the governing consideration is what best meets the needs of the person with the disability.
Background
Mr. Hejka is a person with disabilities who accessed Durham Region’s paratransit services independently for approximately eight years. He used the service to travel to and from his employment, his gym, and his local community centre. In or around 2021, Durham Region and Durham Region Transit Commission (the Region) took steps in an effort to improve the accessibility of their conventional transportation services, including making their services more compliant with the AODA. As part of this process, the Region initiated a review of paratransit users, including Mr. Hejka’s eligibility to use their services on an unconditional basis.
Based on their review, the Region decided that Mr. Hejka was no longer eligible for unconditional door to door service and changed his eligibility to conditional. Under conditional eligibility, Mr. Hejka was required to use conventional (rather than paratransit) transportation for part of his trip and to be accompanied by a personal care assistant (PCA) which, according to the Region, he had to provide at his own expense.
Following an internal appeal that did not resolve Mr. Hejka’s issue, he sought a judicial review of the Region’s decision.
The Divisional Court Decision
The Divisional Court found in favour of Mr. Hejka. In particular, it found that the Region’s decision was unreasonable and must be quashed. In reaching its conclusion, the Divisional Court made several important findings.
Finding 1: human rights legislation should be interpreted in a broad and purposive manner
Central to the decision is the way in which the AODA was interpreted by the Region. At its very core, the AODA is remedial legislation aimed at breaking down barriers for persons with disabilities. Accordingly, the Divisional Court found that decision makers must be guided by the purpose of the AODA when making decisions about eligibility. The Court affirmed that the AODA is “social justice legislation” that is meant to redress a history of discriminatory exclusions by identifying, removing and preventing barriers to participation in society (para. 38).
Hejka establishes the link between human rights legislation and accessibility laws by making reference to three cases, two from the Supreme Court of Canada and one from the Ontario Court of Appeal. First, the AODA and human rights legislation represent a greater societal appreciation of the barriers affecting persons with disabilities and a resolve to eliminate those barriers, as noted by the Court of Appeal in TTC v. Ontario (Finance). Second, the AODA and human rights legislation share the same goals: to remove barriers by promoting an interpretation of the AODA that encourages rather than fetters access and independence. This is the approach adopted by the Supreme Court of Canada to remedy discriminatory exclusions as set out in Council of Canadians with Disabilities v. Via Rail. Finally, the AODA and human rights legislation are meant to combat ableism and remediate historical disadvantage in accordance with the Eldridge decision
The Court affirmed that decision makers and Courts should interpret the AODA and the Integrated Accessibility Standard Regulation in a fair, large and liberal way so that it may achieve its purpose. This is consistent with the expansive definition of “barrier” under the AODA to encompass those that are not just physical but also non-physical such as attitudinal barriers, policies or practices.
In fact, the Court made a finding that a policy or practice that requires a person with a disability to provide a personal care attendant to use public transportation services is a barrier within the meaning of the AODA because it “limits and potentially prevents a person with a disability from fully accessing public transportation services” (para 44).
Finding 2: The Region erected a barrier instead of removing one, contrary to the purpose of the AODA
The Integrated Accessibility Standards (Regulation) is a regulation enacted pursuant to the AODA. It stipulates how the Region is to make decisions about eligibility for paratransit services. It requires the Region to have three categories of eligibility and sets out the definition for each category. Most importantly, the Regulation requires the Region to provide transportation services that best meets Mr. Hejka’s disability-related needs. The Divisional Court found the Region’s decision to be at odds with itself since it (a) recognized that Mr. Hejka has disability-related needs that make it dangerous for him to use conventional transportation services, but then (b) chose to solve the very problem by erecting rather than removing a barrier.
The Court confirmed that decisions about eligibility should promote a person’s independence and dignity, rather than undermine them in accordance with human rights principles articulated in Council of Canadians with Disabilities v. Via Rail Canada. The Court found that the Region’s decision did not promote either. “This solution does not best meet the needs of Mr. Hejka as a disabled person. It neither allows him to be as independent as possible nor does it promote his ability to easily participate in the activities he has previously participated in…” (para 48). The Court recognized that these two fundamental needs of persons with disabilities have historically been ignored in light of the history of marginalization and exclusion recognized in the Eldridge decision.
The Court identified that the accessible conventional bus service was, given Mr. Hejka’s abilities and needs, inaccessible to him, and thus operated as a barrier. The definition of barrier under the AODA is expansive and includes barriers that are “invisible” such as policies, practices and attitudes. The Court identified a further barrier in the Respondent’s practise or policy to require a person to use a PCA to make the conventional bus service accessible.
Just like there are visible and invisible disabilities, there are visible and invisible barriers. The Court was attuned to the “invisible barriers” that undermine independence and dignity. The Court affirmed that Mr. Hejka’s predicament is illustrative of the barriers the Supreme Court of Canada cautioned against in Eldridge, which recognizes that historical disadvantage of persons with disabilities is shaped and perpetuated “by the notion that disability is an abnormality or flaw.” For many persons with disabilities, including Mr. Hejka, their inclusion into “the social mainstream has been conditional upon their emulation of able-bodied norms” as a result of current attitudinal barriers (para. 45).
To access public transportation services, the Region required Mr. Hejka to assimilate into a service that was not designed for him, with no consideration of whether the service ought to be adapted to best meet his needs. The Court drew a parallel between access that is conditional on the ability to emulate able-bodied norms, as articulated in Eldridge, with access to public transportation that is conditional on the requirement that Mr. Hejka travel with a PCA. The Court confirmed that the effect of the decision is to “perpetuate the discrimination (with the marginalization and lack of dignity that involves) that Mr. Hejka has experienced as a person with disabilities to once again require that if he wishes to access transportation services he must make sure that he is accompanied by an able-bodied person who can make up for the “abnormalities” or “flaws” he possesses” [emphasis added] (para. 49).
In its reasoning, the Court exposes the implicit biases and attitudinal barriers that have historically shaped and perpetuated discriminatory exclusions that survive into the present; indeed the very mischief that the AODA was created to identify, remove and prevent.
Finding 3: The governing consideration is what best meets the needs of the person with the disability
To achieve its purpose, the governing consideration is what best meets the needs of the person with the disability, and not the needs of the service provider or all the other able-bodied passengers using the service.
In affirming that the governing consideration is not what best meets the needs of the service provider, the Court stated, “[i]t may meet the needs of the Region to cut down on the number of people who use specialised services, but that is not what the Regulation specifies should be the governing consideration” (para. 50). Nor is the governing consideration the shared nature of public transportation which, “like many public services, means the reasonable goal is good service for all, not perfect service to a few” (paras. 32 and 33). In response to this argument, the Court stated that nowhere in the Regulation does it include “the right to decide that even though one type of service might best meet the disability-related needs of a passenger, that service should not be provided because of a need to take into account the needs of all the other passengers using the service” (para. 40).
The Court recognized that to give credence to these utilitarian-type arguments would only serve to perpetuate the barriers the legislation was designed to identify, prevent and remove. The Court’s decision exposed these public policy rationales for what they rightfully are: attitudinal barriers that operate to privilege the able-bodied and perpetuate the status quo. The Court’s decision serves as a warning to service providers to pay heed to the attitudinal barrier that is current today, that characterizes accommodation of disability-related needs as an unreasonable demand for perfect services rather than a claim that derives its legitimacy as a human right.
Responsive Justification
Hejka highlights the potential of using litigation as a tool, as an accountability mechanism, when decision makers interpret and apply the AODA. Reasonableness review is concerned with not only the outcome, but the reasons that justify that outcome. The Divisional Court found the Respondents’ decision unreasonable on both fronts, taking into account the legislation’s purpose.
The Court was attuned to the lived experience of persons with disabilities, by grappling with the harsh consequences of the Respondent’s decision and the practical difficulties that this entailed. It noted that it was not easy to find a PCA, let alone one that would be available for short and irregular periods. If such a person could be found, the Court was attuned to the fact that that person would have to be paid for from Mr. Hejka’s limited financial resources, or consistently put their lives on hold “to assist Mr. Hejka in emulating the abilities of an able bodied person” (para 49).
The Court noted that the decision “neither allows Mr. Hejka to be as independent as possible nor does it promote his ability to easily participate in activities he previously participated in” and that the effect “is to perpetuate the discrimination (with the marginalization and lack of dignity that involves) that Mr. Hejka has experienced as a person with disabilities…” (para 49). The Divisional Court also noted that “the effect of the Decision is to undermine rather than promote Mr. Hejka’s independence and dignity, two fundamental needs of persons with disabilities that have historically been ignored” (para. 4).
In assessing the impact of the decision on Mr. Hejka, the Court’s analysis models the kind of grappling that is missing in the reasons provided by the Respondents. As articulated by the Supreme Court in Vavilov, the principle of responsive justification requires that when a decision has a particularly harsh consequence for an individual’s liberty, dignity or livelihood, decision makers are required to explain why the outcome best represents the intention of the legislature. In other words, where the impact of the decision on an individual’s rights and interests is severe, the reasons provided to the individual “must reflect the stakes” (para 133). Hejka makes it clear that decisions that fetter independence and access are “high stakes” and decision makers need to reflect that in their reasons.
The Respondents’ decision was unjustifiable because the reasoning process itself did not grapple with why the outcome best represents the intention of the legislature. To withstand scrutiny under judicial review, decision makers must therefore be able to justify their decisions through reasons that take into account how providing a certain transportation service best meets the person’s disability-related needs or how it does not result in the imposition of a barrier. As the Region was unable to do either of these, and adopted a decision that was “antithetical to the purpose of the statutory scheme,” (para. 53) the Court found that the reasoning used to justify the decision was unreasonable. In quashing the decision and substituting its own, the Divisional Court’s decision has the effect of restoring Mr.Hejka’s independence and dignity.
Moving Forward
Hejka affirms the manner in which human rights legislation, including the AODA, ought to be interpreted. It would benefit service providers to consider the guidance within this decision as to how they should approach interpreting and implementing accessibility standards into their services.
The decision signals a warning to service providers to pay heed to attitudinal barriers and implicit biases when creating “accessible” programming. It is of note that the Court in this case was critical of utilitarian-type arguments that advance the notion of the “public good” as the maximization of overall wellbeing within budgetary constraints because this privileges the able-bodied and perpetuates the status quo. Implicit in the Court’s reasoning is a recognition that these attitudinal barriers have historically influenced and shaped the shared nature of our public policy. In “decentering” such arguments, the Court resoundingly affirms a human rights-based approach to the interpretation of the AODA in the fulfillment of its purpose.
The application and the impact of the Court’s decision is potentially wide-ranging and significant. While this decision relates to the transportation standards set out in the Integrated Accessibility Standards, its principles would also apply to AODA standards for accessible information and communication, employment, customer service, and the design of public spaces. In addition, it would also apply to standards to be enacted in the future pertaining to education and health care.
It is a “landmark” decision in many respects including the fact that it establishes the link between human rights legislation and accessibility laws. All three independent reviews of the AODA highlighted the need for greater clarity around the interpretation and application of the AODA, specifically as it relates to defining accessibility and the relationship between accessibility legislation and the Human Rights Code. The decision makes it clear that the AODA ought to be interpreted in a manner that supports that same objectives as the Charter and the Human Rights Code.
In the last independent review of the AODA in 2019, David Onley asked “what would an accessible Ontario look like?” He answered by stating: “it is this: an Ontario that complies fully with the Human Rights Code – a place where people with disabilities are free from discrimination – where all barriers have been removed and all needs accommodated, to the point of undue hardship. This place is a long way off – but is this the destination the AODA promises, or not?” (pg. 63).
While many would agree that this place is indeed a long way off, the Divisional Court decision brings us closer to reaching it by clarifying that yes, that is the ultimate destination.
To read the full decision, follow this link: https://bit.ly/3wm8jvj