ARCH Disability Law Centre
 
2007 – 2008
Annual Report
110-425 Bloor Street East
Toronto, Ontario
M4W 3R5

Index

1.	Mission Statement

2.	Chair’s Report

3.	Executive Director’s Report

4.	Audited financial Statements, March 31, 2008 (distributed separately)

5.	Member Organizations 2008

6.	Staff List

7.	Thanks to Our Supporters

Mission statement

ARCH Disability Law Centre is a province-wide specialty legal aid clinic dedicated to defending and advancing the equality-rights of persons with disabilities.  
In recognizing the dignity and worth of persons with a variety of disabilities, ARCH promotes the full social justice of persons with disabilities, and their realization of equal opportunities and full participation on an individual and systemic basis.  To this end, ARCH proceeds on the premise that: 

•	Persons with disabilities are confronted with unique legal challenges.
•	Persons with disabilities must have control over their own lives.
•	A cross-disability approach to advocacy issues is essential, but it is equally important to recognize and respect difference.
•	Persons with disabilities may also face disadvantage due to other reasons such as their gender, race, age, economic status and sexual orientation, compounding their experience of discrimination or exclusion.

Within available resources, ARCH undertakes (but is not limited to) the following:
•	ARCH identifies key legal disability issues and conducts test-case litigation.

•	ARCH monitors and responds to law and policy developments affecting persons with disabilities.

•	ARCH provides summary advice and referral for individual persons with disabilities.

•	ARCH provides education to the public and the legal profession on disability-related law.

•	ARCH maintains a range of publicly available publications and legal materials.

•	ARCH undertakes a variety of community development activities.

VALUES AND PRINCIPLES

ARCH is guided by the following set of core values:

•	The dignity and worth of all persons with disabilities must be respected;

•	Persons with disabilities have the right to life, self-determination, and full participation in a society free from barriers to their inclusion and integration;

•	Persons with disabilities themselves are in the best position to determine their own priorities;

•	All citizens have a common responsibility to create communities accessible to all persons with disabilities.

Additionally, ARCH is guided by the following set of core organizational principles:

•	ARCH operates in accordance with the above core values;

•	ARCH is a community-based organization, governed by a Board of Directors composed of a majority of persons with disabilities;

•	ARCH is accountable to persons with disabilities in Ontario, its member organizations and Legal Aid Ontario.

Adopted by the Board of Directors, May 13, 2002

Chair’s Report
April 1, 2007 – March 31, 2008

At this time last year we all felt that same apprehension that comes just before the roller coaster hits the top of the hill.  We knew that big changes were coming, and that we had a wild ride ahead of us.  For starters, we knew that Phyllis Gordon, ARCH’s Executive Director through several wild rides in the past, was retiring.  We were also losing several long-standing members of the board, including our Chair, Lana Frado.

I am here to report that it has been a fantastic ride.  We have an outstanding new Executive Director in Ivana Petricone.  She will describe what has gone on this past year in greater detail in her report, but she has made the job of Executive Director her own.  I won’t bore you with the details, but among her accomplishments in this past year Ivana, with help from our intrepid Office Manager Doreen Way, convinced our funder Legal Aid Ontario to rationalize the funding of our various staff positions.  The beauty of the accomplishment is that it was practically invisible, but only someone with a career’s experience in dealing with the detailed LAO funding rules could have done so.  Ivana has also developed a good working relationship with the Board, and has presented us with a variety of new things to use at our meetings.

By design, change is a given at ARCH.  Each year the term of a portion of the board expires.  This year one member of the Board is retiring.  I would like to thank Majusri Welikala for his contribution to ARCH over the years.  His experience, passion and dedication will be hard to duplicate. 

Our Treasurer will report on this in greater detail as well, but among the changes this past year has been a transition to a new accounting system.  While it was adequate in its day, our old DOS based program had outlived its usefulness, and the time for change was overdue.

On behalf of the Board, I would like to thank each and every member of ARCH’s staff.  Over the years we have built a formidable team.  In big matters and small each of them strives to help ARCH achieve its goal of making life for persons with disabilities fairer.  Whether preparing a case for the Supreme Court of Canada, participating in committees studying legislation, or answering summary advice and referral calls, each member of the ARCH team contributes to that goal.  While test cases often get press recognition, the other work is equally important.  I guarantee you will never read a headline “ARCH prevents retrograde amendments to legislation”, but working to ensure that such changes are not made is equally important to our goal, even if the task itself is not as exciting as arguing a test case. 

I am looking forward to the challenges a new year will bring; confident that ARCH has the membership and staff to meet anything we are likely to face.

Peter Wells,
President and Chair,
ARCH Disability Law Centre

Executive Director’s Report
April 1, 2007 – September, 2008

On behalf of the staff of ARCH, I am very pleased to report to our members about the work of ARCH in these past 18 months. A great deal of this work was shepherded by Phyllis Gordon, my predecessor as ED of ARCH until December 2007.  I hope you will share my pride and applaud the staff, including Phyllis, for their continued hard work, dedication and effective advocacy for people with disabilities throughout this past year. 
Litigation  
ARCH engages in test case litigation on behalf of groups and individuals. Test cases include those in which an issue is being considered by a court or tribunal for the first time. ARCH’s objective is to provide decision makers with a disability perspective, with the hope of changing existing laws in cases where the outcome would broadly affect people with disabilities. The following is a summary of some of ARCH’s litigation activities.

A. Ongoing Cases

Honda Canada Inc.  v. Keays - Supreme Court of Canada – June 27, 2008 

ARCH represented the Ontario Network of Injured Workers Groups [“ONIWG”] which was granted leave to intervene in this appeal before the Supreme Court of Canada. ONIWG was permitted to make arguments on the requirements of the duty to accommodate employees with disabilities like chronic fatigue syndrome (CFS) and the appropriate role of doctors and counsel in the accommodation process. 

Mr. Keays had CFS, and was employed by Honda for fourteen years. During the last seven months of his employment, Honda accommodated him by permitting him to be absent up to four days per month for medical reasons, provided that he produced a medical note for every absence. When his absences increased, he was disciplined through “coaching” by Honda’s physician, and was subsequently terminated after refusing to meet with Honda’s occupational medicine specialist unless the parameters of the meeting were clarified. Honda also refused to communicate with Mr. Keays’ lawyer who was retained prior to the termination.

The trial judge found that Mr. Keays was dismissed without just cause and awarded 15 months pay in lieu of notice, plus an additional 9 months of “Wallace damages” for Honda’s bad faith in the termination process. The trial judge also awarded $500,000 in punitive damages for the “independent actionable wrong” of discrimination and harassment, costs on a substantial indemnity basis and a costs premium. The Ontario Court of Appeal agreed with the decision except for the amount of punitive damages, which the majority reduced to $100,000. 

The central issue between the parties was whether punitive damages ought to have been awarded in light of the Supreme Court’s decision in Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, which precludes civil law suits for breaches of Human Rights legislation. 

The Court granted intervener status to 9 applicants (the human rights commissions of Canada, Manitoba and Ontario, the Council of Canadians with Disabilities, the National ME/FM Action Network, ONIWG, the Women’s Legal Education and Action Fund, the Human Resources Professionals Association of Ontario and the Alliance of Manufacturers & Exporters Canada). 

The decision of the Supreme Court of Canada was released on June 27, 2008.

The Supreme Court, in a decision written by Justice Bastarache on behalf of seven of the nine judges, held that Mr. Keays was entitled to 15 months pay in lieu of notice, but not the 9 months aggravated damages or punitive damages. The cost premium was set aside, and costs in both lower courts were reduced to the partial indemnity scale. Honda was awarded partial indemnity costs of the appeal in the Supreme Court.

The Court held there was no basis to interfere with the 15 month damage award for wrongful dismissal. In assessing reasonable notice courts should consider the character of the lost employment, length of service, age of the employee, and availability of similar employment given the employee’s experience, training and qualifications.  
Aggravated damages are available where the employer engages in conduct during the dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”.  The Court held that aggravated damages should not have been awarded.  The employer’s conduct in dismissing Keays did not amount to an egregious display of bad faith. 

The Court also decided that punitive damages should not have been awarded.  Justice Bastarache wrote that courts should only resort to punitive damages in exceptional cases and ruled that Honda’s conduct was not sufficiently egregious or outrageous to warrant such damages.  The Court also stated that a breach of the Ontario Human Rights Code cannot constitute an independent actionable wrong for which punitive damages can be awarded. 

The Court overruled the trial judge’s finding that Honda was at fault in the way it handled its employees disability and accommodation.  The Court found that the requirement of doctors’ notes was part of the accommodation because it permitted absences without the possibility of disciplinary action for failing to meet work requirements. Also, the court stated that the monitoring by Honda of Mr. Keays’ absences was a bona fide work requirement given the nature of the employment contract and the employer’s responsibility for the management of its workforce. 

Finally, the Court held that there is no legal obligation on the employer to deal with an employee’s counsel while he or she continues to be employed. Parties are always entitled to deal with each other directly. 

It is notable that two judges dissented with the decision of the majority. The two judges who dissented found that the award of additional damages for the manner in which Honda dismissed Mr. Keays should stand.  They found that there was sufficient foundation for the findings of bad faith and discrimination on the part of Honda.

Brown v. National Capital Commission [Court File No. T-1117-06] and Brown v. Public Works Government Services Canada [Court File No. T-1132-06] - Federal Court – June 13, 2008

ARCH was retained by the Council of Canadians with Disabilities (CCD), which was granted leave to intervene in these two judicial review applications. 

The primary issue was whether the National Capital Commission (NCC) failed to accommodate the interests of persons with disabilities by constructing the York Street Steps in Ottawa without access for persons who cannot walk, and six years later building an elevator at a different location. The second issue was whether Public Works had a duty to participate in the consultation process to investigate accommodation solutions. 

The Canadian Human Rights Tribunal adopted the principles of universal design, and concluded that the Steps were inaccessible and that the NCC discriminated against Mr. Brown by failing to accommodate his needs. The construction of the elevator at another location did not satisfy the Crown's obligation to accommodate persons who cannot climb stairs. [See Brown v. National Capital Commission, 2006 CHRT 26]

The Tribunal held that the NCC was obligated to provide accommodation to the point of undue hardship in the immediate vicinity of the steps. The NCC had an obligation to inform itself of situations that might discriminate against persons with disabilities, and to investigate, canvass solutions, and consult the affected community in a meaningful way that takes into account their legitimate concerns and views in deciding what accommodation is appropriate. The Tribunal ordered the NCC to consult with Mr. Brown, the Canadian Human Rights Commission and the disability community generally. It also ordered Public Works to participate in the consultation process with NCC.

The Federal Court allowed applications for judicial review made by the NCC and Public Works. The decisions were released on June 13, 2008. Justice Noel found that correctness was the appropriate standard of review for all issues, which permitted him to conduct his own analysis of the facts and substitute his views for those of the Tribunal. He reversed findings of fact made by the Tribunal, including findings based on credibility, and essentially rewrote the Tribunal’s decision. 

Justice Noel found that neither the jurisprudence nor the legislation establishes that the duty to accommodate includes a duty to consult. Further, any duty to consult would have to be imposed by Parliament, not the courts. 

Justice Noel concluded that it was not feasible to provide universal access at the York Street Steps because of topographical features, costs, safety and security concerns. Instead, the NCC provided universal access at the Daly building, 130 meters away. The Court found that when the general area surrounding the Steps is considered, “not unlike the network of Via Rail’s trains,” there are four points of access, three of which “are universally accessible to everyone.” 

The Court relied on Via Rail for the proposition that “in arriving at a determination of reasonable accommodation up to the point of undue hardship, the reviewing Court must consider the whole network and not limit itself to a specific area.” Justice Noel analogized the Supreme Court’s order that Via Rail modify 30 rather than 139 rail cars, to the NCC making 3 of 4 points universally accessible in the general area of the Steps. 

The Court concluded that while the Daly Building elevator violated two principles of universal design (equitable use and physical effort), it met five of the seven principles. As Justice Noel put it, “[f]ive out of seven … is something to be considered by any decision maker. …  Human rights cases do not demand nor do they expect perfection.  That is why common sense and flexibility should prevail at all times.” 

The Court found that the Tribunal erred in law by finding Public Works liable for the NCC’s action or inaction. Justice Noel firmly rejected the argument that the two government entities should be treated as one. 

Re Rochon and the Workplace Safety and Insurance Act

ARCH has been assisting the Office of the Worker Adviser and IAVGO in developing this s.15 Charter challenge to the Workplace Safety and Insurance Act. The focus of the challenge is the age 65 cut-off in s.43(1)(c) of the legislation, which limits compensation benefits for older workers like Mr. Rochon. The case addresses the result of abolishing mandatory retirement in Ontario, while failing to extend statutory benefits to workers who are over the age of 65. Research has been conducted, evidence is being gathered, and an expert witness has been consulted. The case will be heard by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) early in 2009.

Elections Litigation

ARCH has been asked to undertake constitutional litigation to challenge aspects of the electoral system that are inaccessible for persons with disabilities.  ARCH will argue on behalf of the Alliance for Equality for Blind Canadians that persons with vision related disabilities should be able to vote in the same way as other Canadians. Instead of being assisted by someone else, the individual should be able to vote in a manner that is independent, private and verifiable. This would require electronic voting systems similar to those that are currently in use in the United States.

These challenges would be commenced under s.3 (democratic rights) and s.15 (equality rights) of the Canadian Charter of Rights and Freedoms. Research is being conducted with respect to the many legal issues that will arise in the cases. The drafting of court materials will start in the fall of 2008.

Harris v. Canada (Minister of Social Development Canada), Federal Court of Appeal

Ms. Harris applied for a Canada Pension Plan - Disability Pension (“CPP-D”) after she was diagnosed with Multiple Sclerosis in 2001. In order to qualify for CPP-D, Ms. Harris needed to have made sufficient contributions to the CPP. Ms. Harris was denied because she did not have sufficient contributions to meet the criteria. Under the provision in the CPP Act called the Child Rearing Drop-Out (“CRDO”) provision, the years during which a parent stays out of the workforce to care for a child under the age of 7 are not included when calculating contributions. Ms. Harris would have sufficient contributions to qualify for CPP-D if she could extend the CRDO to include the year when she stayed home to care for her child who had a disability; however, because her son was over aged 7, the CRDO was not extended to cover that year. 

The issue raised in this case, is whether the government’s refusal to extend the CRDO provision for the one additional year during which Ms. Harris cared for her child with a disability violates s.15 of the Canadian Charter of Rights and Freedoms. Ms. Harris successfully challenged the Minister’s decision before the Review Tribunal, but the Minister of Human Resources and Social Development Canada appealed to the Pension Appeals Board. 

The Pension Appeals Board heard the appeal on October 29, 2007. Unfortunately, the Pension Appeals Board determined that the government’s refusal to extend the CRDO provision for the one additional year during which Ms. Harris cared for her child with a disability who was over age 7 did not violate s.15 of the Canadian Charter of Rights and Freedoms.

Ms. Harris has applied to the Federal Court of Appeal to ask the Court to review the decision of the Pension Appeals Board.  The hearing at the Federal Court of Appeal will be on November 13, 2008. ARCH and Dianne Wintermute of East Toronto Legal Services represented Ms. Harris at the Pension Appeals Board and will be representing her at the Federal Court of Appeal.

B. Decisions In Cases In Which Arch Participated

Colaco v. (Canada) Minister of Citizenship and Immigration – Federal Court of Appeal - [Interveners] - September 12, 2007

Section 38(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 provides that potential immigrants are not admissible to Canada if they have a medical condition which might cause excessive demands on health or social services. The Supreme Court of Canada held in Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706 [“Hilewitz”] that the government must conduct individual assessments and take into account the family's ability and willingness to absorb the cost of social services for a child who is medically inadmissible. However, Hilewitz involved two families who applied to immigrate in the investor and self-employed business classes. 

The Colaco family applied to immigrate as skilled workers. Like the families in Hilewitz, one of the Colaco children had a mild intellectual disability. Immigration officials refused to consider the parents’ ability and willingness to pay for social services the child might need. The government argued that Hilewitz only applies to business class applicants since they alone are required to make an immediate and significant contribution to the Canadian economy.
Justice Barnes of the Federal Court rejected the government’s argument and held that potential immigrants who apply as skilled workers are entitled to an individual assessment that takes into account the family’s ability and willingness to absorb the cost of Canadian social services. However, Justice Barnes permitted the government to appeal the question of whether the reasoning in Hilewitz applies to skilled workers. [See Colaco v. Canada (Minister of Citizenship and Immigration), 2006 FC 896 at para.11-12.]
The Canadian Association for Community Living (“CACL”) and the Ethno-Racial People with Disabilities Coalition of Ontario (“ERDCO”) intervened in the Federal Court of Appeal. The government’s appeal was heard in Toronto on September 12, 2007 by Justices Linden, Létourneau and Sexton. The Court rejected the government’s argument and therefore did not call upon counsel for the Colaco family or the Interveners to make oral submissions. However, Justice Linden commented on behalf of all three judges that the Interveners' material was very helpful.

Justice Létourneau gave oral reasons for the unanimous Court, dismissing the government’s appeal. He agreed with Justice Barnes’ conclusion that the reasoning in Hilewitz required an individual assessment of the need for social services and of the applicants’ ability and willingness to pay for these services. He also quoted extracts from Hilewitz which warn against using a generic “cookie-cutter” assessment that would automatically exclude everyone with a particular disability and attach “a cost assessment to the disability rather than to the individual.” [Colaco FCA at para.7, citing Hilewitz at para. 56-58.] Unfortunately, Justice Létourneau did not go so far as to say that ability and willingness to pay must be considered for all categories of immigrants. The government did not seek leave to appeal to the Supreme Court of Canada. 

The Minister of Human Resources Development Canada v. Dale Marsden - Federal Court of Appeal –[Respondent] - December 11, 2007

Dale Marsden received student loans from 1997 to 1999. He began having difficulty with his vision in 1998. In 2001 he was diagnosed with Stargardt disease which causes progressive reduction of central vision. He applied for the Permanent Disability Benefit (PDB) under which federal Student Loans may be forgiven on medical grounds. 

The definition of “permanent disability” in the legislation is “restricting” a person’s ability to work, but the definition actually applied by government officials is “permanently prevent” a person’s ability to work. Mr. Marsden’s application was denied on the basis that he was attending school and therefore was not “permanently prevented” from participating in studies. 

Mr. Marsden applied for judicial review in the Federal Court. In reasons dated October 18, 2006 Justice Kelen [2006 FC 1246] held that the Minister erred in refusing Mr. Marsden’s application and ordered that the application be reconsidered by a different medical officer. Mr. Marsden was awarded his disbursements. 

The Minister of Human Resources Development Canada appealed. ARCH represented Mr. Marsden in the Federal Court of Appeal which heard the case on December 11, 2007. The Court held that the Minister erred in interpreting the legislation, and awarded costs to Mr. Marsden. 

Consumers’ Association of Canada v. CRTC; Bell Canada v. CRTC – Federal Court of Appeal - [Respondent] - January 23-24, 2008

Large phone companies – known as incumbent local exchange carriers or “ILECs” – were required under the CRTC price cap regime to establish deferral accounts that contain millions of dollars. The CRTC conducted a proceeding to determine how these funds could be spent. In response to arguments made by ARCH, the CRTC ordered the ILECs to set aside a minimum of 5% of the funds [about $34M] to improve accessibility of telecommunications goods and services for persons with disabilities. The remaining 95% was to be used for expansion of broadband (Internet) services to rural and remote communities. [Telecom Decision CRTC 2006-9, released February 16, 2006.] 

The CRTC ordered the ILECs to propose initiatives to dispose of their deferral accounts consistently with these directions. A coalition of disability organizations, of which ARCH was a member, formed to participate in a process ordered by the CRTC to comment on these proposals.

Two consumers groups appealed the CRTC’s decision to the Federal Court of Appeal. They argued that the CRTC had no jurisdiction to make the order, and that the money in the deferral accounts could only be released to residential subscribers who paid for services under the price cap regime. Bell Canada also appealed. Bell did not challenge the 5% award for disability purposes, but argued that the CRTC had no jurisdiction to order consumer rebates.  
The two appeals were heard together on January 23-24, 2008 in Ottawa. After ARCH made oral submissions, the Consumers Associations abandoned their claim with respect to the 5% order. The Court found that the CRTC had authority to make the order and dismissed the appeal. Leave has been sought to appeal to the Supreme Court of Canada. Since there is no longer an issue with respect to the 5% order, ARCH is maintaining a “watching brief” and will take part if issues are raised that would impact on the 5% order.
George Sedra And Minister of Social Development Canada - Supreme Court of Canada
Mr. Sedrak applied for and was granted a disability pension under the Canada Pension Plan (“CPP”). Mr. Sedrak has schizophrenia. There is a provision in the CPP Act that allows for the payment of retroactive benefits if the applicant can show that he lacked the capacity to form the intention to apply for CPP benefits and that the lack of capacity was continuous to the date when the application was actually made. Mr. Sedrak made an application under this provision of the CPP Act but he was denied retroactive benefits.  Mr. Sedrak appealed this decision. In determining whether the government erred in finding that Mr. Sedrak did not lack the capacity to form the intention to apply, the Pension Appeals Board (“PAB”) considered decisions previously made by the PAB in which they considered the actions of the applicant during the time that the applicant said he or she lacked capacity to form the intention to apply.  In Mr. Sedrak’s case, the Pension Appeals Board considered such things as his ability to drive to work, the ability to make decision about medical treatment and the ability to make travel decisions rather than addressing the specific issue of whether Mr. Sedrak had the capacity to form the intention to apply for CPP benefits. 

Mr. Sedrak asked the Federal Court of Appeal (“FCA”) to review the PAB decision. In determining that the applicant did not lack capacity, the FCA stated that “the capacity to form the intention to apply is not different in kind from the capacity to form an intention with respect to other choices which present themselves to an applicant.”

When ARCH was made aware of this FCA decision we were concerned about its potentially broad negative impact.  Although this case considers whether the individual lacked the capacity to form the intention to apply for CPP benefits, the Federal Court of Appeal’s decision could be used when a person’s capacity is being challenged before many administrative bodies.  
In ARCH’s opinion, the Supreme Court of Canada has developed the law on how capacity is to be determined far beyond the reasoning of the FCA.  The Supreme Court has moved the law away from the type of reasoning of the FCA that clearly limits a person’s right to autonomy and is an insult to dignity.

The Supreme Court has stated that the values of self-determination, autonomy, liberty, dignity, citizenship and equality must be recognized and promoted in capacity determinations. The implication of these values is that decision making on capacity begins with the assumption that the individual is capable and that the inquiry about ability must be focused on the particular decision that the individual must make. The test of capacity is not determined by considering the actual decision that is made but whether the individual is able to engage in the decision making process.

Mr. Sedrak sought leave to appeal the FCA’s decision to the Supreme Court of Canada.  ARCH represented the Empowerment Council, Sound Times Support Services and the Canadian Association for Community Living in the application for leave in order to provide the Supreme Court with some background on the significance of this FCA decision to the Canadian community.

Unfortunately, the Supreme Court refused to grant leave to appeal to Mr. Sedrak with costs.

Highlights of Selected Program Initiatives 

Legal Aid Ontario Conference on Judicial Reviews and Appeals - February 4-5, 2008 – 

This year’s Legal Aid training conference focused on judicial reviews and appeals. ARCH lawyer Debra McAllister participated as a group co-instructor on factum writing, and spoke on a panel on interventions in the Supreme Court of Canada.

ARCH-LSUC Symposium on the International Convention on the Rights of Persons with Disabilities – March 3, 2008 -

ARCH and the Law Society of Upper Canada recently honoured the United Nations Convention on the Rights of Persons with Disabilities.  A panel discussion and reception was held at the Law Society on March 3, 2008 as part of the Law Society of Upper Canada and ARCH’s annual law symposium to promote the rights of people with disabilities.

Speakers at the event included experts on disability and human rights.   Speakers emphasized the important role that people with disabilities played in the development of the Convention and the important role that we must all still play in pressuring the Canadian government to ratify it.  Speakers expressed the view that the Convention is currently not binding on Canadian courts, although it is a tool that can be used and which may be helpful. 

Implementation of Human Rights Code Amendments

On June 30, 2008 significant amendments to Ontario’s Human Rights Code came into force. Individuals now have direct access to the Human Rights Tribunal of Ontario to have their discrimination cases heard, and the Human Rights Legal Support Centre is available to provide legal advice and representation to people who have filed human rights applications.

In 2006-2007 ARCH was actively involved in law reform work related to the introduction of these amendments. This year we have continued to be involved in matters related to the implementation of the amendments. ARCH made a written submission to the Human Rights Tribunal regarding the Tribunal’s proposed Rules of Procedure, which govern the new process for human rights applications filed directly at the Tribunal. Another written submission was made to the Tribunal regarding its Policy on Accessibility and Accommodation, which outlines the steps the Tribunal will take to make its services accessible to the public and explains how people can make requests for accommodations. ARCH also participated in meetings to provide input to the Tribunal and the Support Centre on the importance of designing and implementing a fully accessible human rights process. Several of our recommendations were incorporated into the Tribunal and Support Centre’s new processes. 

Over the year, we wrote several ARCH Alert articles to inform our readership about the implementation of the amendments and the new human rights process. ARCH continues to be involved in matters related to the implementation of amendments to the Human Rights Code.

Canadian Association of Statutory Human Rights Agencies’ 2008 National Forum “Defining a Rights Based Framework: Advancing Inclusion of Students with Disabilities”

ARCH partnered with CASHRA, the Canadian Association of Statutory Human Rights Agencies, to organize and host a national forum on human rights and education. The forum focused on discussing the manner in which human rights law can be used as a tool for advancing the inclusion of students with disabilities in schools. 

The forum comes at a particularly important time for ARCH and our community. The amendments to Ontario’s Human Rights Code that came into force this year provide individuals with direct access to the Human Rights Tribunal to have their discrimination cases heard. There is now greater opportunity for cases of discrimination in education to be dealt with by the Tribunal, and for the development of human rights jurisprudence in the education context. As a result, ARCH focused our participation in the forum on the importance of a rights-based approach to education.

ARCH participated in the forum’s program committee, which designed the program and overall agenda for the forum. ARCH staff spoke at the forum’s general session about the importance of a rights-based approach to the education and inclusion of students with disabilities. We also conducted an interactive workshop, where we focused on the application of inclusive design principles to the education context.  ARCH was also asked to provide comments on our thoughts for the future and strategies to ensure inclusive education.

Developmental Services – Proposed New Legislation: Bill 77, the Services for Persons with Developmental Disabilities Act, 2008 

The current legislation that specifically addresses services for people with intellectual or developmental disabilities in Ontario, the Developmental Services Act, is 35 years old.  It does not provide fundamental rights for people with intellectual/developmental disabilities and so does little to address the concerns that ARCH hears from the community.  As a result, ARCH has made submissions in the past arguing for reform of developmental services legislation and programs.

In May, 2008, Community and Social Services Minister Madeleine Meilleur introduced Bill 77, the Services for Persons with Developmental Disabilities Act, 2008. The Bill was referred to the Standing Committee on Social Policy, which held public hearings to examine it.  ARCH made an oral presentation in Ottawa and sent written submissions to the Committee.  We argued that while the creation of new developmental services legislation is essential, Bill 77 does not create a developmental services system that is based on values of full citizenship and inclusion.  The Bill treats people with intellectual/developmental disabilities as less deserving of fundamental rights that other Canadians.  These include the right to complain and appeal when problems arise, the right to be free from abuse and the right to make ones own decisions.  ARCH warned the Committee that without substantial amendments to the Bill, the lives of people with intellectual/developmental disabilities will not be improved, even with legislative reform.  In undertaking its activities to advance the rights and improve the lives of people with intellectual/developmental disabilities, ARCH has been connecting with community groups, politicians and government officials, and will continue to do so.
Ontario's Poverty Reduction Strategy

In early 2008, the Ontario government announced its plan to form a Cabinet Committee on poverty reduction. This committee has been consulting with the community in an effort to develop poverty indicators and targets and to develop a strategy to reduce poverty in Ontario during its four year mandate. Campaign 2000 and the Income Security Advocacy Centre received a two year grant from the Metcalf Foundation to work with low income individuals and key stakeholders at community organizing and capacity building on poverty reduction. Campaign 2000 and the Income Security Advocacy Centre have worked with members of various communities across the province to organize workshops.  The purpose of the workshops is to bring members of the community together to encourage discussion about what is needed to reduce poverty in the community and to identify actions that can be taken in the community.  Workshops were also held for specific members of the community that were identified as being most impacted by poverty. One of the communities identified was people with disabilities. ARCH was asked to be a partner on this project in order to organize a workshop for people with disabilities and to work with the community to identify and work on issues that are specific to people with disabilities living in poverty. 

ARCH organized a workshop which was held on September 17, 2008. Those who attended engaged in much discussion about what poverty means to them and were encouraged to keep the group's momentum going to work together over the next year. The community showed a great deal of interest in this work and ARCH hopes to engage the larger community in the work.  ARCH will be working with the people who attended the workshop and others who expressed an interest to identify some key issues that are specific to people with disabilities.  ARCH will also help the group to identify some actions on which the group can work together to address poverty in its own community. ARCH will continue to have a role in assisting this group in the activities they undertake.

Telecommunications

 Many aspects of telecommunications are not accessible for people with disabilities and the problems that people with disabilities experience are diverse.  ARCH therefore, continues to participate in proceedings of the CRTC (the federal agency that regulates our telecommunications industry) to push them to address the telecommunications barriers experienced by people with disabilities.  Our goal is to ensure that telecommunications equipment and services are fully accessible to people with disabilities.  We have been working with disability groups to achieve this end.

ARCH has been asking the CRTC to remedy this problem by conducting a proceeding dedicated to accessibility.  The CRTC recently responded by initiating a proceeding to specifically address unresolved issues related to the accessibility of telecommunications and broadcasting services to people with disabilities (Broadcasting Notice of Public Hearing CRTC 2008-8 Telecom Public Notice CRTC 2008-8).  ARCH is a party in this proceeding, has made extensive written submissions and will be presenting at the public consultation hearing, which will begin on November 17, 2008 in Gatineau, Quebec. 

During this reporting period, ARCH participated in several other CRTC proceedings which impact on people with disabilities.  One of the most significant was one in which the CRTC examined the use by major telephone companies of funds for accessibility initiatives for people with disabilities.  ARCH participated as a member of a coalition of disability organizations, to provide its views on the use of these funds.  ARCH also participated in CRTC proceedings relating to a new telecommunications consumer agency, the provision of information to customers and the priority to be attached to social (including disability) regulatory measures.

Access to Administrative Justice Project:  Mental Capacity and Administrative Tribunals

ARCH has undertaken a project to examine the barriers experienced by people who have mental capacity issues relating to their access to and participation before administrative tribunals, such as the Social Benefits Tribunal and the Landlord and Tenant Board.  Concerns about access to administrative tribunals have been raised with ARCH by people with disabilities and their advocates, who are denied equal treatment before administrative tribunals as a result of a deterioration in their mental capacity.  In an attempt to begin to address this problem, through this project, ARCH is undertaking research and consultations. A final report will be prepared which will provide information about the consumer experience and a legal analysis.  It will offer law reform and policy recommendations as well as suggestions for people with disabilities and their advocates.  ARCH is grateful to the Law Foundation of Ontario for the funding for this project.

Additional Law Reform Initiatives

ARCH staff participated in several law reform initiatives that included working with coalitions, making written and/or oral submissions, meeting with officials, or a combination of these. Some of these initiatives include:

•	Provided input on the draft regulations of Social Housing Reform Act. 

•	Completed extensive research and wrote a report on regulations of assistive devices in Canada. The report “Assistive Devices in Canada: Ensuring Inclusion and Independence” was produced and distributed extensively across Canada. 

•	Written submission to the Standing Committee on Justice Policy on Bill 165 – Provincial Advocate for Children and Youth.

•	Submission (written and oral) to the Standing Committee on General Government on Bill 212 - Education Amendment Act (Safe Schools).

•	Written submission to the Ministry of Community and Social Services on the draft Regulation outlining those organizations that are exempted from the reporting requirement under the AODA Customer Service Standard.

•	Written submission to the Human Rights Tribunal of Ontario on its draft Rules of Practice.

•	Written submission to the Ontario Human Rights Commission on its draft policy on Mental Health Discrimination and Police Record Checks.

•	Participated in a CASHRA (Canadian Association of Statutory Human Rights Agencies) conference on ways in which human rights commissions and communities can work together to develop a strong human rights culture in Canada.

•	Presented at a CASHRA (Canadian Association of Statutory Human Rights Agencies) Conference to encourage the development of policies by human rights commissions which better advance the human rights of people with disabilities. 

•	Submission (written and oral) to the Human Rights Tribunal of Ontario on its Accessibility Policy. 

•	Written submission to the Mental Health Commission of Canada in response to the Commission’s Stakeholder Consultation on the focus of its work over the next 3 years.

•	Written submission to the College of Physicians and Surgeons of Ontario on the College’s draft policies on establishing and ending physician-patient relationships.

•	Written submission to the College of Physicians and Surgeons of Ontario on the College’s draft policy on physicians and the Human Rights Code.

•	Oral submission to the Landlord and Tenant Board Capacity Committee on accommodating people with disabilities and participation by people who are mentally incapable at hearings and throughout the Board’s process.

•	Consulted with the Chief Commissioner of the Canadian Human Rights Commission regarding accessibility and relevance of the Commission for people with disabilities.

•	Submission (oral and written) to the Standing Committee on Social Policy on Bill 77 relating to developmental services.

Additional Public Legal Education Activities

ARCH staff participated in a wide range of publications and presentations. Some of these include:

•	Presented at legal clinic regional training conferences on representing clients with disabilities. 

•	Presented at an Ontario Bar Association/Law Society of Upper Canada human rights conference, “The New Ontario Human Rights System: What It Means for your Practice”, on the Human Rights Legal Support Centre. 

•	Participated on a panel hosted by the University of Toronto, primarily focussing on gender and diversity in the legal profession. 

•	Presented at community workshops for people with disabilities and their families on mental capacity, powers of attorney and living wills.

•	Presented at a community workshop for people with disabilities on the human rights code, the AODA and the building code. 

•	Presented to a telecommunications and IT Policy Think Tank on deregulation and disability. 

•	Presented at a community workshop for people with disabilities on human rights, accommodations and people with developmental disabilities. 

•	Presented at the Law Society of Upper Canada’s “Disability Mentoring Program”, aimed to provide orientation to lawyers who will be mentoring students and young lawyers with disabilities. 

•	Presented at a community workshop on the shortfalls in income support for people with disabilities. 

•	Answered a series of “Q & A” posts to a community organization’s website, on the topics of immigration, income support and legal aid services. 

•	Presented to secondary school students at a “Young Leaders Forum” on equality rights for people with disabilities.

•	Presented at a community workshop on human rights and housing. 

•	Participated at 4 “LAWS Legal and Educational Events” for secondary school students about the legal aid system in Ontario; ARCH and careers in public interest law. 

•	Published an article titled “Legal Rights and Benefits for Consumers/Survivors” in the Psychiatric Patient Advocate Office’s 25th Anniversary Special Reports. 

•	Chaired and presented at a teleseminar hosted by the Law Society of Upper Canada titled “The Client with a Disability and Your Obligations”. 

•	Presented at a workshop for clinic lawyers on how to write a factum. 

•	Presented at a workshop for clinic lawyers on interventions in the Supreme Court of Canada. 

•	Presented to the attendant services sector on abuse of people with disabilities.

•	Revised ARCH’s article “Providing Legal Services to Persons with Disabilities” for the Law Society of Upper Canada’s licensing process.

•	Presented at an online Canadian Bar Association seminar for lawyers on the law and practical recommendations when acting for clients with disabilities. 

•	Presented to staff at a social services office on ARCH’s services and activities.

•	Participated at JuneFest, a celebration of deaf-blind awareness month providing information about ARCH. 

•	Presented to staff and students at a community legal clinic training on providing legal services to clients with disabilities.

•	Presented to law students at Pro Bono Students Canada on disability law and social justice.

•	Created and disseminated 2 fact sheets for people with mental health disabilities: “Discrimination and People who use Mental Health Services and Supports” and “Understanding How Mental Health Laws Are Affecting You: Getting Interpreter Services”.

•		Created and disseminated fact sheets on interacting with people who have a disability. 

Arch Alert 

ARCH Alert is ARCH’s newsletter. It provides timely information on proposed legislation, major cases, government consultations, community initiatives, and other important disability-related initiatives and developments.  In this reporting year there were seven issues of ARCH Alert, including a special issue on the 2007 provincial election and a special issue covering education topics. ARCH Alert has a circulation of approximately 3,000 readers. People express interest in receiving the ARCH Alert after the publication of each issue and at many public legal education events. ARCH Alert is provided to people with disabilities, family members, government officials, disability organizations, the media, lawyers and legal organizations throughout the Province and beyond, ARCH’s member organizations and the community legal clinics in Ontario.  We frequently receive requests to reprint articles or post them on websites.

Summary Advice and Referral 

ARCH’s summary advice and referral service is operating successfully. ARCH lawyers and articling students provide summary advice and referrals to people with disabilities and/or their lawyers, across the province of Ontario. It is primarily a telephone service but other methods of communication, including in person meetings, are provided as a form of disability accommodation. Callers can speak with an ARCH lawyer or student within a few days of their initial inquiry, at an appointment time convenient for them. Some callers will also be given immediate referrals by our Information and Referral worker. 

In the past year, ARCH has received calls concerning a vast array of legal issues. The most calls received concern human rights matters, typically in the employment, education, transportation, or government services context. Other areas of law for which ARCH receives calls include matters relating to abuse, the Assistive Devices Program, attendant care services, and capacity and guardianship. 

As an ongoing activity, ARCH maintains a private bar lawyer referral list. We are also surveying some of the legal  and non-legal resources and services available to persons with disabilities across the province, such as pro bono initiatives and specialized community advocacy services, in order to more effectively assist callers from all parts of the Province. 

Committee Participation 

ARCH staff participate in a number of committees on an ongoing basis throughout the year.  These include committees of community groups, legal aid clinics, Legal Aid Ontario, the Law Society of Upper Canada and government. Examples of committees staff were members of during the year include: 

City of Toronto Disability Issues Committee, Clinic Human Rights Working Group, Community Legal Clinic System Outreach, Executive of the Association of Community Legal Clinics of Ontario, Legal Aid Ontario – Association of Community Legal Clinics of Ontario - Clinic Relationship Committee, Law Society of Upper Canada’s Equity Advisory Group [EAG], Legal Clinics’ Network on Workers’ Compensation, Ontario Bar Association’s Standing Committee on Equal Opportunity, Ontario Disability Support Plan Access Committee, Ontario Disability Support Plan Action Coalition, Steering Committee on Social Assistance, Toronto Executive Directors Group, and Toronto Support Staff Association.

ARCH’s Work on Interclinic Workgroups

In the past fiscal year, ARCH has been an active participant on a number of interclinic working groups. ARCH has been actively involved on both the Steering Committee on Social Assistance and the Ontario Disability Support Program Action Coalition. 

An ARCH staff member acts as co-chair of the Steering Committee on Social Assistance [SCSA] which is made up of representatives from each of the clinic regions and from specialty clinics. The mandate of the SCSA is to effect positive changes to social assistance legislation, and to effect improvements in the delivery of services by the social services offices and the Social Benefits Tribunal. Most of this work is done through consultation and lobbying.  The Committee is able to bring forth issues and concerns raised by clinic clients when meeting with the Minister of Community and Social Services and her staff and the legal staff and Chair of the Social Benefits Tribunal. 

ARCH is a member of the Ontario Disability Support Program [ODSP] Action Coalition (Action Coalition) and the Access Subcommittee of the Coalition.  The Action Coalition advocates for improvements to the income and employment supports provided by the Ontario Disability Support Program. The coalition members are advocates and recipients of ODSP. Much of the coalition’s work in 2007 to 2008 focused on raising the profile of people with disabilities and bringing their particular needs to the attention of the Ontario Government’s Committee of Poverty Reduction,, getting media attention on the rate of assistance and the inaccessibility of the program, and lobbying for improved access to the Program and in particular to the employment supports available under the Act. The activities of the coalition include creating and disseminating materials on ODSP and making representations to various levels of government.  
ARCH Funders 

Legal Aid Ontario  
The Board of ARCH wishes to acknowledge the on-going support of Legal Aid Ontario (LAO), ARCH’s primary funder.  LAO is a large organization that both delivers and funds legal services to Ontarians with low incomes.  Clinics are at the forefront of urging LAO to undertake initiatives that will enhance and broaden the reach of the delivery of legal services.

This year, LAO has provided ARCH with additional funding for an Articling Student.  LAO has also provided ARCH with funding to translate both our fact sheets and website into French.  
ARCH has been advocating for more formal recognition of the necessity of removing barriers throughout LAO. 

Other Funders

The City of Toronto has once again provided ARCH with a Community Grant that supports our education, information and referral program, for which we are appreciative. These funds assist ARCH to pay administrative staff not funded by Legal Aid Ontario. 

The City of Toronto has also provided ARCH with an Access and Equity Grant which will be used to translate our Mental Health Fact Sheets into several languages. 

ARCH is also licensed by the Ontario Lottery Corporation to participate in the Break Open Ticket program.  Receipts from this initiative support our information/referral worker, library purchases, disability accommodation, and staff training. 

We received funding from the Law Foundation’s Law and Innovation Fund to survey Ontario’s Administrative Tribunals to determine what rules are in place and what processes are used to address the issue of access to administrative justice. 

We received funds from Human Resources and Skills Development’s Summer Career Placement Program to hire a summer law student.

ARCH Staff 
ARCH has a staffing complement of thirteen positions.  As our primary funder, LAO provides our basic operating and personnel funds.  We are able to fill 9.5 positions with LAO funds: the executive director (who is also a lawyer); the office manager; five staff lawyers; and 2.5 support staff. 
ARCH raises funds through various non-guaranteed sources each year for the remaining positions: 1 articling student, ½ support staff position and a Community Legal Worker. 

Non-permanent staff include law students who work with us in the summer or on a pro bono basis throughout the year.  ARCH also contracts individuals from time to time to work on specific projects.

Contributors to ARCH’s Work:  Students, Lawyers And Volunteers

During 2007 and 2008 law students have expressed a great deal of interest in working with ARCH in various capacities. Pro bono law students, summer students and articling students have greatly enhanced our work. They bring talent, energy and commitment to the work ARCH is doing, as well as humour and fun to the office.  Additionally, ARCH is very appreciative of the support of the private bar and the pro bono assistance of lawyers and law students provided to ARCH itself, and to our clients.  ARCH is also appreciative of the support of volunteers and professionals who have provided ongoing general support or offered us specific insight and information that has advanced our work.

ARCH gratefully appreciates the contributions of the following people:

•	Adele Furrie Consulting Inc.
•	Eli Hansen, Law Student
•	Christopher Taylor, Barrister and Solicitor
•	Jim Tobias, technology and disability expert
•	Jutta Treviranus, Director, Adaptive Technology Resource Centre
•	Caitlin Dooley, Law Student
•	Viktoria Prokhorova, Law Student
•	Karin McCaig, Articling Student
•	Patricia Hania, Pro Bono Law Student
•	Emma Michael, Law student
•	Phyllis Gordon, Barrister and Solicitor
•	Linda Rothstein, Paliare Roland

On A Personal Note

As the newest staff member to join ARCH, I am struck by this prolific report and am extremely proud to be associated with the skilled and talented staff who have authored this impressive body of work. The disability analysis and perspective that they bring to the issues facing our community are second to none. They are all to be commended.

We have just recently begun a Needs Assessment for ARCH, to determine as best we can, which are the most pressing legal needs faced by people with disabilities.  We hope that the needs assessment will inform our work in the future and ensure that our work is relevant and effective for people with disabilities in Ontario.

I am also indebted to the hard work and commitment of our Board members. Without their steady leadership and without their vision on behalf of people with disabilities, our work would not be possible.  Thank you to all.

IVANA PETRICONE 
Executive Director
October 2, 2008

	Member Organizations
	AIDS Action Now!
	Alliance for Equality of Blind Canadians (AEBC)
	Amyotrophic Lateral Sclerosis Society of Ontario
	AND (Association for the Neurologically Disabled)
	Arthritis Society
	Autism Society Ontario
	BALANCE for Blind Adults
	Bob Rumball Association for the Deaf
	Canadian Cystic Fibrosis Foundation
	Canadian Diabetes Association – GTA Regional Leadership Centre
	Canadian Down Syndrome Society
	Canadian Hard of Hearing Association
	Canadian Hearing Society
	Canadian Mental Health Association Ontario Division
	Canadian Paraplegic Association Ontario
	CNIB - Ontario Division
	Community Living Ontario
	Down Syndrome Association of Toronto
	Easter Seals Canada 
	Easter Seals Society
	Employment Access
	EOH Meta Foundation
	Epilepsy Ontario
	Epilepsy Toronto
	Extend-A-Family
	Family Alliance Ontario
	Fibromyalgia Society of Ontario
	Friends and Advocates
	Frontier College
	Hemophilia Ontario
	Houselink Community Homes
	Huntington Society of Canada
	Integration Action for Inclusion
	Kidney Foundation - Greater Ontario
	Kidney Foundation - Ontario
	Learning Disabilities Association of Halton
	Low Vision Association of Ontario
	Margaret Frazer House
	Marsha Forest Centre
	Mood Disorders Association of Ontario
	Multiple Sclerosis Society of Canada

	Muscular Dystrophy Canada
	National Network for Mental Health
	NEADS (National Education Association of Disabled Students)
	Ontario Association of the Deaf
	Ontario Coalition for Inclusive Education
	Ontario Federation for Cerebral Palsy
	Ontario Federation of Community Mental Health and Addictions 
	Ontario Fibromyalgia Association
	Ontario March of Dimes
	PATH Employment Services
	People First of Ontario
	Persons United for Self Help in Northwestern Ontario (PUSH 
	Psychiatric Survivor Archives, Toronto (PSAT)
	REENA
	Rotary Cheshire Homes
	Sound Times Support Services
	Spina Bifida & Hydrocephalus Association of Ontario
	Thalidomide Victims Association of Canada
	The Independent Living Centre London and Area (ILCLA)
	Tourette Syndrome Foundation of Canada
	Transportation Action Now!

ARCH Staff List

Staff and Position
Ivana Petricone , Executive Director 
Amanda Ward , Information/Referral Worker
Debra McAllister , Staff Lawyer
Doreen Way, Office Manager
Jenny Clement, Community Legal Worker
Kathryn Culek, Articling Student 
Kerri Joffe, Staff Lawyer
Lana Kerzner, Staff Lawyer 
Laurie Letheren, Staff Lawyer
Robert Lattanzio, Staff Lawyer 
Theresa Sciberras, Program Assistant
Thomas Rajan, Articling Student
Yangtzee  Tamang, Operations Assistant

A Special Thanks to This Year's Supporters

Legal Aid Ontario

Alcohol and Gaming Commission

Human Resources and Development Canada

City of Toronto - Community Services Grants Program

City of Toronto – Access and Equity Program

Law Society of Upper Canada - Equity Department

Blake Cassels and Graydon LLP

Paliare Roland

All individual Donors  - Thank you!