ARCH Disability Law Centre | Test Case Litigation

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Test Case Litigation

Test Case Litigation

ARCH represents groups and individuals in test case litigation. These are cases whose outcome will affect a large number of people with disabilities or will significantly affect the law as it relates to the rights of people with disabilities in Ontario. We focus our test case litigation work in the priority areas set by our Board of Directors.

Over the years, ARCH has been involved in many leading disability-related cases, including cases at the Supreme Court of Canada. ARCH has represented persons with disabilities in significant and seminal test cases including Clark v Clark (1983), 40 O.R. (2d) 383, Roberts v Ontario (1994), 117 D.L.R. (4^th) 297, and Eaton v Brant County Board of Education [1997] 1 S.C.R. 241.

Select Active Cases

J.F.R. v. K.L.L., 2024 ONCA 520 (CanLII)

On July 2, 2024, the Court of Appeal for Ontario released a decision in the appeal of J.F.R v. K.L.L, 2024 ONCA 520. This decision is important because it states that persons with disabilities must be included in cases that directly impact them.

This case was about M, an adult with a disability and his right to be involved in making decisions about where he lived and who he lived with. During his parents’ divorce proceeding, his father asked the Superior Court to make a parenting order under the Divorce Act. The Superior Court agreed to the parenting order which said that M live with each parent split equally, and that almost all decisions would be made for him by whichever parent he was living with.

The Superior Court made this parenting order despite M not having the opportunity to be involved in the case. The decision was appealed to the Court of Appeal for Ontario.

ARCH represented the Intervener, People First of Canada, at the Court of Appeal. We told the Court that persons with disabilities have the fundamental right to choose where to live and who to live with. The Court agreed that persons with disabilities must be provided the dignity of choice. Further highlighting that persons with disabilities must be presumed capable of making decisions. The Court understood and made clear that adults should not be treated like children because of their disability, rather they must be given the same rights as all adults.

Our legal blog on this case can be found ARCH Blog – Case Summary and Analysis: J.F.R v. K.L.L, 2024 ONCA 520

Rose v. Air Canada – Case No. 18-50077

Timothy Rose is a resident of Toronto who uses a power wheelchair as a mobility device. Mr. Rose contacted Air Canada by phone to book a flight to Cleveland, Ohio in July 2016. During this conversation, Air Canada advised Mr. Rose that his mobility device would not fit through the plane’s cargo doors and deemed an oversized item.

Mr. Rose took his matter to ARCH Disability Law Centre to assist with filing an application with the Canadian Transportation Agency, a quasi-judicial tribunal.

After 5 years of litigation, several written submissions, and a 2 day oral hearing, Air Canada made a final decision on August 11, 2023 in Mr. Rose’s favor. Air Canada will now have to accommodate individuals with mobility devices that do not fit into a plane’s cargo area with an accessible flight or by switching the plane. These new measures must be implemented by December 20, 2023. Air Canada is seeking to appeal the decision.

Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233

As a person with a disability, Mr. Hejka had “unconditional eligibility” to use accessible transit under the Durham Region Transit’s paratransit system (“DRT”).

After implementing changes under the Accessibility for Ontarians with Disabilities Act (AODA) to make its conventional buses more accessible, the DRT reassessed Mr. Hejka’s eligibility category to “conditional.” This required that he use a mix of conventional and paratransit services, as well as a mandatory personal care attendant at his own expense.

The Divisional Court re-instated Mr. Hejka’s unconditional eligibility and found the DRT’s decision was unreasonable because it undermined the dignity of Mr. Hejka and amplified barriers to accessibility. The decision was unjustifiable given the clear evidence that Mr. Hejka could not safely use conventional transit.

JL by his Litigation Guardian PL v. Empower Simcoe

JL is a person with a disability who lives in a group home that is managed by the Respondent, Empower Simcoe. JL is non-verbal and communicates through touch, gestures and vocalizations. At the time of the HRTO and Divisional Court proceedings JL was a minor. As a result of the COVID-19 pandemic the respondent implemented restrictive visitation policies, that required physical distancing for all visits. Since JL communicates through touch and gestures, JL’s parents believed that a visit with physical distancing would harm JL. ARCH filed an application at the Human Rights Tribunal of Ontario, arguing that the visitation protocol, and the Respondent’s unwillingness to provide accommodations, was discriminatory.

On March 23, 2023, the HRTO released their decision. Vice Chair Scott decided that the Respondent did discriminate against JL, and that they failed to accommodate JL. The HRTO awarded a remedy of $10,000 and ordered that the Respondent must create an accommodation policy. The decision was clear that human rights still exist during a pandemic. The Respondent filed for reconsideration of the decision. On May 7, 2021, the HRTO decided to uphold their initial finding of discrimination.

Empower Simcoe proceeded to file for Judicial Review of the HRTO decisions. Empower Simcoe argued that the HRTO decisions were unreasonable, with a focus on an earlier Divisional Court case, Sprague v. Her Majesty the Queen in Right of Ontario. ARCH on behalf of JL presented arguments that the HRTO decisions were reasonable and that Vice Chair Scott effectively distinguished the facts in JL from the facts in Sprague. The Divisional Court in a decision dated September 22, 2022 found that the HRTO decisions were unreasonable and decided to not send the matter back to the HRTO. The Divisional Court through the use of a Charter analysis found that Vice Chair Scott made logical leaps to find that Empower Simcoe discriminated against JL.

ARCH on behalf of JL requested leave to appeal from the Ontario Court of Appeal, based on numerous flaws in the Divisional Court decision. These flaws included: 1) failure to conduct a proper reasonableness test, and instead the Divisional Court remade the decision based on their own reading of the evidence; 2) the Divisional Court used a Charter analysis instead of the Moore test when considering whether JL met the Prima Facie Test for discrimination; 3) gave significant weight to the pandemic, and lowered the threshold of the undue hardship test. Unfortunately, the ONCA did not grant leave to JL. ARCH then proceeded with requesting leave to the Supreme Court of Canada. The Supreme Court of Canada decided not to grant leave.

Interventions

ARCH has represented interveners, and acted as an intervener, in many test cases at all levels of court and tribunals, including the following test cases before the Supreme Court of Canada:

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27

R. v. Slatter, 2020 SCC 36

S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31

Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), [2017] 1 SCR. 591

Cuthbertson v. Rasouli, [2013] 3 S.C.R. 341, 2013 SCC 53

Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 S.C.R. 360

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, 2011 SCC 37

Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4

Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15