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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).

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 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 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” (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, to make up for perceived abnormalities or flaws that result from current attitudinal barriers.

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 is accompanied by an able-bodied person who can make up for his “abnormalities” or “flaws” he possess” [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; 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

The Court affirmed that the governing consideration is not what best meets the needs of the service provider. “It 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)

Rather, the governing consideration under the AODA and the Regulation is what best meets the needs of the individual with a disability.

Moving Forward

This decision 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 affirmed a human rights-based approach to the interpretation of the AODA in the fulfillment of its purpose.

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,” the Court found that the reasoning used to justify the decision was unreasonable.

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 design of public spaces.

To read the full decision, follow this link:

https://bit.ly/3wm8jvj



May 26, 2022