ARCH Alert, Volume 21, Issue 2, October 5, 2020
ARCH Alert 
		ARCH’s Newsletter on Disability
	and Law in Ontario
Inside This Issue 

ARCH’s AGM – Save the Date!
Isolation and Visitation Bans Persist for People with Disabilities
Connecting in a time of Distancing
Commemorating the anniversary of Gary Malkowski’s election to Ontario Provincial Parliament
Family of ARCH’s past client taking on a 42km marathon fundraiser
Strange September: Back to School during COVID-19
BLAC and ARCH Demand Independent Investigation into the Death of Regis Korchinski-Paquet
Update on Ontario’s Clinical Triage Protocol for Major Surge in COVID Pandemic
Connecting People to Home and Community Care Act
Do the Rights Thing: A Legal Rights Workshop for Deaf women, women with a disability, LGTBQ+ Deaf Women, or LGTBQ+ women with a disability
Do the Rights Thing: A Legal Rights Workshop for Employers and Service Providers
Solitary Confinement: Ontario Not Complying with Jahn Terms in Provincial Prisons
Canadian Transportation Agency delays the Enforcement of Several Provisions of the Accessible Transportation for Persons with Disabilities Regulations
Changes Made to the Class Proceedings Act, 1992
British Columbia Court Must Reconsider Granting CCD Public Interest Standing to Challenge BC Mental Health Law
ARCH on Social Media

ARCH’s AGM – Save the Date!
ARCH Disability Law Centre will be hosting its Annual General Meeting (AGM) on Thursday, November 5, 2020 at 6pm.  This year, our AGM will be held virtually via Zoom.
This year’s presentation “Moving Forward Together: Building on 40 Years of Advocacy” will showcase several new and exciting initiatives ARCH will be undertaking.    
Invitations and membership packages will be sent via email about one month before the AGM. If you have not already subscribed to receive materials from ARCH, or if you would like to become a member of ARCH, please visit our website:  https://archdisabilitylaw.ca/ 
  
Isolation and Visitation Bans Persist for People with Disabilities 
By: Kerri Joffe, Staff Lawyer 
The COVID-19 pandemic, and the response of some governments and service providers, has negatively impacted people with disabilities in many ways. In Ontario, one stark impact has been felt by people with disabilities who live in group homes and congregate care settings, and people with disabilities who are in hospital. To control the spread of COVID-19, the Government of Ontario has required group homes, congregate care settings, and hospitals to restrict or limit the number of “visitors” who are allowed in, and in some cases, to prevent people with disabilities from leaving the home or facility. 
Each agency, group home, and hospital has its own policy limiting visitors – some are more restrictive than others. ARCH continues to receive reports from people with disabilities, their families, and their supporters about how policies that restrict or ban visitors undermine the rights of persons with disabilities. The negative impacts of these policies have ranged from people with disabilities being denied equal access to health care, to people living in group homes becoming isolated, lonely, and developing serious mental health problems, to people losing the critical supports they need to make day-to-day decisions. 
Generally, guidance from the Government and policies implemented by group homes, agencies, and congregate care settings have become less restrictive as Ontario reopened after its initial COVID-19 lockdown. However, as the number of COVID-19 cases in Ontario begins to rise, many people with disabilities, their families, and supporters fear that they will once again be banned from being with their loved ones.
Restrictive Visitation Policies in Group Homes and Congregate Care 
In Ontario, many people labelled with intellectual and/or developmental disabilities live in developmental services group homes and other congregate care settings. The Ministry of Children, Community and Social Services has released a number of guidance documents requiring developmental services agencies, group homes, and care settings to severely limit visitors. 
On April 23, 2020 the Ministry released its COVID-19 Action Plan for Vulnerable People.  It required agencies to limit all non-essential visitors. Only essential visitors were allowed. The Ministry defined essential visitors as “…a person (including a contractor) who performs essential services to support the ongoing operation of a service agency or is a person considered necessary by a service agency to maintain the health, wellness and safety, or any applicable legal rights, of a resident.” 
On May 4, ARCH released a bulletin explaining that as a result of the Ministry’s April 23rd guidance, many developmental services agencies created visitation ban policies. These visitation bans prevented family and friends from visiting or entering group homes and other developmental services settings. In addition to visitation bans, some agencies did not allow people labelled with intellectual or developmental disabilities to leave their group home or congregate care residence.
On May 28, 2020 and June 12, 2020 the Ministry released guidance which allowed non-essential visits in outdoor spaces only. This was followed by new guidance on July 22, 2020 which allowed for outdoor and indoor visits by one to two non-essential visitors, with preference for outdoor visits. Visits were allowed only if they have been scheduled in advance, there was adequate staff to accommodate the visit, physical distancing could be maintained, and visitors passed a COVID-19 screening test. 
In response, many developmental services agencies began permitting family and friends to visit people living in group homes and other congregate care settings. However, these visits are often very restrictive and do not meet the disability-related needs of residents. For example, some agencies allow only one visitor to visit once a week, outdoors. Visits may be restricted to sitting in a designated area, at least 6 feet away, with everyone wearing masks. At some agencies, staff stand nearby to ensure that no rules are broken. No physical contact with family is allowed, and if the person with a disability tries to initiate contact, the visit may be ended immediately. For many people with disabilities and their families, visits under these kinds of restrictive conditions do not allow for meaningful communication and interaction. There is no privacy, which means that people cannot discuss matters such as concerns about private health matters, neglect, or abuse. 
On August 28, 2020 the Ministry announced that people living in developmental services group homes and other congregate care settings were allowed to go on short-term outings. These can include outings with friends or family, shopping, errands, and appointments. “Essential overnight absences” are also allowed. The Ministry defines this as visits “considered necessary to maintain the health, wellness and safety, or any applicable legal rights of a resident.” 
Impact of Restricting Visitors: People Living in Group Homes and Congregate Care are Isolated, Experience Serious Mental Health Impacts, and Don’t Have the Supports they Need
People labelled with intellectual or developmental disabilities and their families have reported to ARCH that they continue to be concerned about policies that ban, limit, or severely restrict visitors. Not being able to visit with family and friends is difficult for us all. But for some people with disabilities, visitation restrictions have a much more serious impact.
People labelled with intellectual or developmental disabilities who have high support needs may rely on family or friends to provide supports like assisting with dental hygiene, nail care, changing bed linens, tending to bed sores, or other basic needs. In some group homes and hospitals there are not enough staff to attend to these basic needs in a timely way.
People who don’t speak but use sounds and gestures to communicate may need a family member who knows them well to interpret their communication. In some group homes, staff cannot provide this communication support because they may be too busy, or a high rate of staff turn-over may mean that staff do not have enough time to learn the person’s unique form of communication.
Without in-person support from loved ones, some people labelled with intellectual or developmental disabilities living in group homes are left with little or no communication. They have no way of letting staff, family and friends know whether their basic care needs are being met, no way of making day-to-day decisions, and no way of reporting abuse or neglect.
People with disabilities have reported feeling lonely, isolated, disconnected and worried about their mental health. Family members have reported that their loved ones seem disengaged or cannot meaningfully interact with them due to the restrictive nature of visitation rules. 
Online visits and video calls are not the answer
The Ministry has consistently urged hospitals, group homes, and agencies to encourage people with disabilities to stay in touch with family and friends through technology like video calling. However, using video technologies is not a solution for many people. For many persons with disabilities, using technologies like video calling, telephone or other means of remotely connecting with essential supports is not possible. For example, having a physical, cognitive, intellectual and/or developmental disability, or a speech, language and communication disability may prevent people from using these technologies. For people with communication disabilities, some forms of communication can only be interpreted effectively in person. Some people labelled with intellectual or developmental disabilities cannot use video technology unless they have a support person to assist them. Some people don’t have access to a computer or mobile device. Many people cannot afford to pay for internet services.
Advocacy and Legal Responses
Since the beginning of the COVID-19 pandemic, ARCH and many other disability advocacy groups have written and advocated to government, hospitals, developmental services agencies, and other congregate care settings urging them not to create visitation ban policies that undermine the rights of persons with disabilities. To review some of ARCH’s advocacy go to: https://archdisabilitylaw.ca/covid/ 
Persons with disabilities are legally entitled to equal access to services, including health care and public services. Visitation bans that prevent persons with disabilities from getting the in-person supports they need to communicate with others, make day-to-day decisions, or access services and health care run the risk of discriminating against them. This is unacceptable, especially during a pandemic when many people with disabilities have heightened needs for day-to-day supports and health care services. It is essential to take steps to limit the spread of COVID-19, but these steps must be balanced with the legal rights of persons with disabilities to equal access to services. 
On September 16, 2020 NDP MP Lisa Gretzky introduced Bill 203 at the Ontario legislature. The Bill is called More than a Visitor Act (Caregiving in Congregate Care Settings). The Bill has passed second reading and will be studied by the Standing Committee on Social Policy. If it becomes law, it will allow people living in congregate care settings to designate a caregiver and will require the government to develop a strategy to integrate designated caregivers into congregate settings, despite COVID-19 visitation ban policies. To learn more about this bill go to: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-203 
As the number of COVID-19 cases in Ontario begin to rise at an alarming rate, many people with disabilities, their families, and supporters fear that they will once again be banned from interacting with one another. Unduly restrictive visitation bans or limits undermine the rights and needs of persons with disabilities. As the Ontario Government, developmental service providers, congregate care providers, and hospitals, plan how to continue addressing the pandemic, it is imperative that they take into account the rights and needs of persons with disabilities. 
  
Connecting in a time of Distancing 
By: Sue Hutton, Respecting Rights Coordinator 
Grassroots Response: Respecting Rights’ Get Connected Campaign
Respecting Rights is a project at ARCH led by people labelled with intellectual disabilities. Respecting Rights provides public legal education to people with disabilities, and advocates for changes to laws and policies to give people receiving developmental services meaningful legal rights. 
Early on during the COVID-19 pandemic, Respecting Rights identified the important need to find ways to enable people with disabilities to connect with family, friends, and other advocates.
ARCH and Respecting Rights partnered with the Centre for Addiction and Mental Health and People First Ontario to host weekly online meetings for people labelled with intellectual disabilities in Ontario. These meetings, called What’s Up Wednesdays, provided a place for people labelled with intellectual and/or developmental disabilities to connect with others and to get plain language, accessible information about COVID-19. 
Recently, Respecting Rights launched a campaign called “Get Connected”. The campaign calls on service providers and those who support people with disabilities to provide the assistance that people with disabilities need in order to use technology to stay socially connected during COVID-19.

More information about Respecting Rights’ Get Connected campaign is available at: https://archdisabilitylaw.ca/initiatives/respecting-rights/get-connected/ 
  
Commemorating the anniversary of Gary Malkowski’s election to Ontario Provincial Parliament
By: Richard Medugno
Twenty-five years ago, I started writing Deaf Politician — The Gary Malkowski Story. When I began this project of writing Canadian politician Gary Malkowski’s biography, I had a contract with an American book publisher that specialized in creating and selling American Sign Language and the Deaf community materials. I had such high hopes of seeing my first book in print within a year or two.
After countless hours of research and interviewing Gary and the major people in his political and personal life — including Bob Rae, the former premier of Ontario and now Canadian’s ambassador to the United Nations — and following Gary around on the 1995 “campaign trail,” and numerous rewrites, I delivered a manuscript to the publisher.
Unfortunately, Gary did not get re-elected to the Ontario Provincial Parliament and the publisher decided against publishing and promoting the book, as he thought there wouldn’t be a big enough market for it.
Bitter but not beaten, I continued to work on “Gary’s story” for the next few years. At one point, I had individuals at an academic press considering the work, but their interest evaporated in a short while. (By the way, I never could get a Canadian publisher interested.) I gave up hope that the story of Gary’s great achievement would make its way into book form — at least with my name on the cover.
However, recently, I dusted off the manuscript and for the past several weeks I have been reviewing it, rewriting it, editing it, updating it, and publishing it. The book is now available on Amazon as a paperback or an ebook. 
Publishing Deaf Politician — The Gary Malkowski Story now seems a fitting way to honour both the 30th anniversary of the ADA (Americans with Disabilities Act) being signed into law, as well as the 30th anniversary of Gary’s election to the Ontario Provincial Parliament.
I’m proud to share my work with the world at last, but it’s really all about Gary. His story needs to be known. Gary’s accomplishments will inspire not only the Deaf community, disability rights advocates, Ontario political junkies, and Canadians, but everyone who is an underdog — or roots for one.
Ready to dive into Chapter One? Get your copy of Deaf Politician — The Gary Malkowski Story.
Editor’s Note:
ARCH is thrilled that Gary Malkowski and his many accomplishments are being rightly honoured by Richard Medugno’s new book - Deaf Politician — The Gary Malkowski Story. Gary continues to be a remarkable and extraordinary leader; with a contagious passion and dedication to advancing disability rights across Ontario and Canada.  Gary has achieved many significant and outstanding accomplishments such as being Canada's first Deaf parliamentarian, but for ARCH, Gary will always be first and foremost a dedicated former President of our Board, a long-time serving Director of our Board, and one of our founding members. 
In celebration of the launch of this book, Citizens with Disabilities Ontario will be hosting a webinar featuring Gary Malkowski and Richard Medugno on Friday, October 9, 2020 at 3:00 p.m. EDT via Zoom. To register, please visit the following link: https://www.cwdo.org/

Family of ARCH’s past client taking on a 42km marathon fundraiser
ARCH Disability Law Centre represented Emily Eaton and her family in a fight for inclusive education for children with disabilities, in a case that went all the way to the Supreme Court of Canada. This case was a major milestone in the fight for the right of children with disabilities to inclusive education, a fight that is unfortunately still on-going. 
Now many years later, Emily’s brother Peter, is taking on running a marathon-length distance in a fund-raising and awareness-raising effort. Peter has decided he will run 42km on his 42nd birthday, and has generously decided to make his run a fund-raising effort, with all donations to be given to ARCH Disability Law Centre. ARCH is incredibly grateful for this opportunity to let our community know about his upcoming run and his efforts to raise awareness about the need for inclusive education for all students with disabilities, and every child’s right to inclusive education. This will be Peter’s first time running a marathon-length distance, and we wish him the best of luck in his endeavour. We will be cheering him on from the (virtual) sidelines! 
For more information about his run, and his story, you can go to:
https://www.canadahelps.org/en/pages/arch-support-running/ 
Instagram:  https://www.instagram.com/archsupportrunning/ 
Facebook:  https://www.facebook.com/peter.eaton.7393/ 
Strava: https://www.strava.com/athletes/54738460 
ARCH wishes to thank Peter for his extraordinarily generous decision to undertake this fund-raising effort. What an incredible way to spend your 42nd birthday Peter! 

Strange September: Back to School during COVID-19
By: Emma Vleming, ARCH Summer Law Student, and Hina Ghaus, ARCH Staff Lawyer 
Background
Canadians are now over half a year into the COVID-19 pandemic. In March 2020, businesses and schools closed across Ontario to try and limit the spread of COVID-19. Many thought these emergency measures would be temporary; in fact, schools were initially closed for only two weeks after March Break. However, these closures continued for the remainder of the 2019-2020 school year, with students shifting to online learning formats. We are now at the start of a new school year, which will be substantially different from any we have experienced in the recent past.
Before this pandemic, ARCH was heavily involved in inclusive education initiatives. ARCH continues to monitor and develop resources for the community regarding education. During this time, ARCH has been preparing COVID-19 related material, with an emphasis on addressing barriers to accessible education. It is essential to recognize that for many students with disabilities, COVID-19 has further exacerbated barriers to education. ARCH and other disability rights organizations continue to engage with the Government on back to school plans, particularly emphasizing the importance of addressing barriers for students with disabilities. 
This article provides information regarding COVID-19 education developments in Ontario. It begins with a timeline of key events to familiarize readers with the situation. It then provides information about learning formats available for students returning to schools. Next, it discusses Bill-197, COVID-19 Economic Recovery Act, 2020, in the context of changes to the Education Act. Then, this article outlines some of the barriers students are facing during the COVID-19 crisis. Lastly, this article provides advocacy tools that students can use when facing barriers to accessing education. 
This article covers developments in K – 12 public education services across Ontario. For more information regarding other provinces, People for Education has created a useful tracking chart outlining each provincial plan for reopening. 
Timeline of events 
March 12, 2020 - Ontario schools closed for two weeks to try and limit the spread of COVID-19. This closure was extended multiple times.
May 19, 2020 - Ministry of Education announced schools would switch to online learning formats for the remainder of the 2019/2020 school year.
June 19, 2020 – Ministry of Education released the Approach to Reopening Schools for the 2020-2021 School Year.
July 21, 2020 – Bill 197, “An Act to amend various statutes in response to COVID-19 and to enact, amend and repeal various statutes” received Royal Assent (became law). This bill includes amendments to the Education Act, including new restrictions on suspensions for students in Kindergarten – Grade 3.
July 29, 2020 – Hospital for Sick Children, in partnership with various organizations, released an updated document titled “COVID-19: Guidance for School Reopening”.
July 30, 2020 – Ministry of Education released new return to school plans. Last updated August 28, 2020.
August 13, 2020 – Ministry of Education announced school boards will be allowed to tap into reserve funds to assist with developing social distancing protocols. The Ministry of Education also issued a new Policy/Program Memorandum No. 164 on requirements for remote learning.
August 18, 2020 – Ontario school boards may adopt a staggered start to the first week of school, allowing different grades to return on different dates.
August 26, 2020 – Ontario unveils its plan to manage COVID-19 outbreaks in schools.
August 31, 2020 – Ontario’s four major teachers’ unions announce intention to file a labour board complaint against Ontario’s plan to reopening schools.
September 8, 2020 – Ontario schools begin reopening pending any board-specific changes.
September 11, 2020 – Ministry of Education launches a website to report COVID-19 cases in schools and child care centres.
Options for students returning to school in Ontario
As outlined in the Ministry of Education Guide to reopening schools, in-person attendance at both the elementary level and secondary level is voluntary for the 2020-2021 school year. This means that students can choose to participate in full-time remote online learning or homeschooling instead of in-person classes. All school boards have been directed to provide online learning resources for students that choose the remote online learning option. However, an increasing number of students are opting for online learning as the number of COVID-19 cases creep up as of mid-September, requiring school boards to pivot accordingly.

i)	Elementary
If elementary students choose to return to school in person, they will attend school five days per week, and be in cohorts with a smaller group of students to limit contact with people in the school. Much of the details are left up to individual school boards on what back to school will actually resemble. For instance, certain schools that have the space and resources are holding outdoor classrooms as long as the weather permits.
ii)	Secondary
Secondary schools in non-designated school boards are allowed to open with regular full-time delivery. Designated secondary schools will conduct classes in-person at least 50% of instructional days, with the remainder of the time dedicated to remote online learning. There are currently 24 school boards with designated status. The full list, which can be found in Ontario’s Guide to reopening schools, can be accessed here: https://www.ontario.ca/page/guide-reopening-ontarios-schools#list.  
Secondary schools are encouraged to develop timetables that limit contact between students and cohort students whenever possible. The difficulties in the timetabling process and staffing led to the Toronto District School Board pushing forward the start date for most high schools to September 17, 2020.
The Ministry has said that some students with special education needs may require daily in-person instruction. If this is the case, the Ministry will work with designated school boards to open smaller schools or programs with full-time attendance. 
1)	Bill-197 
On July 21, 2020, Bill-197, COVID-19 Economic Recovery Act, 2020 received Royal Assent. This bill was introduced in response to the COVID-19 pandemic and included changes to twenty provincial statutes. The changes made to the Education Act  do not appear directly related to COVID-19, but they do affect the general landscape of schools. 
This bill has made three important changes to the Education Act, which are as follows: 
1)	Directors of Education are no longer required to be qualified teachers;
2)	The Lieutenant Governor in Council may make regulations preventing suspensions between Kindergarten and Grade 3, except in prescribed circumstances; and
3)	The Minister may operate demonstration schools in either residential or non-residential settings for the 2020-2021 school year.
i)	Directors of Education
The first significant change Bill-197 made is that Directors of Education are no longer required to be qualified teachers in order to meet appointment requirements.  Education Minister Stephen Lecce said this change was made to allow for more diversity hiring in the director role. Perhaps these amendments came about due to a report released on February 28, 2020 about racism in the Peel District School Board. However, the words “diversity” and “visible minority” do not appear in the legislative amendments. Instead, this amendment has been criticized as a subtle shift towards privatization of education in Ontario because Directors no longer need to have experience teaching and instead can be hired due to financial motivations. 
This amendment received significant media attention; despite this, the Government has not addressed the criticism further. It remains to be seen how this amendment will impact schools in the long-term.
ii)	Suspensions
Similar to the amendments about directors’ qualifications, the amendments made regarding suspensions appear unrelated to COVID-19. These amendments allow the Lieutenant Governor in Council to make regulations preventing the suspension of students between Kindergarten and Grade 3, except in prescribed circumstances. Minister Lecce has said the purpose of these amendments is to address the prevalence of racialized students being suspended at higher rates. 
Importantly, as news outlets reported, this change appears as though students between Kindergarten and Grade 3 cannot be suspended. However, the wording of the amendment does not explicitly say this; instead, it says “suspensions may occur only in the prescribed circumstances”. It appears this wording will still allow principals to exercise discretion when deciding whether or not to suspend a student. ARCH will continue to monitor the impact of this amendment to better understand the effects it may have on suspensions.
iii)	Demonstration Schools
Demonstration schools provide education for students who are Deaf or hard of hearing, blind or have low vision, deafblind, and/or who have severe learning disabilities. 
Under the Education Act, the Minister of Education requires the approval of the Lieutenant Governor in Council to establish and maintain a demonstration school (or to enter into an agreement with a university to do the same) for students with disabilities who require a residential setting. 
With the amendments made by Bill-197, the Minister of Education may operate demonstration schools in either a residential or non-residential setting for the 2020-2021 school year. 
Accessibility barriers
On July 3, 2020, ARCH submitted a letter to the Ministry of Education titled, “Access to Education for Students with Disabilities during the COVID-19 Crisis”. This letter was an endorsement of 19 recommendations the AODA Alliance sent to the Ministry on June 18, 2020, addressing the needs of students with disabilities in Ontario.
Both the AODA Alliance recommendations and the letter from ARCH outline accessibility barriers students with disabilities are facing during COVID-19. Many of these barriers have not yet been addressed by the Ministry. The most pressing accessibility barriers are outlined below; however, further details about these barriers can be found in the AODA Alliance brief.   
i)	Exclusions/suspensions 
As mentioned above, suspensions are a powerful tool schools continue to misuse in a way that limits access to education for students with disabilities. ARCH, in partnership with other organizations, conducted an extensive study about suspensions and exclusions titled, “If Inclusion Means Everyone, Why Not Me?”. This report outlined the impact that suspensions and exclusions (both formal and informal) have on students with intellectual disabilities. Particularly, this report highlighted the lack of tracking and data that is available regarding the use of exclusions in schools. 
More recently, the AODA Alliance released a report revealing that “refusals to admit” are a widespread issue across Ontario schools. Significantly, the report emphasized the lack of overarching policy directives from the Ministry of Education to guide school boards on this issue.
This issue is particularly significant during COVID-19 because students with disabilities may experience further exclusions due to COVID-19 procedures being implemented by schools. For example, some school boards are limiting in-person class sizes. This may result in the school asking students with disabilities to stay home instead of providing necessary resources for students with disabilities to participate in-person and in a timely manner.
Each student has a choice about what format their education will take this year. However, this “choice” is not necessarily a choice for some students who require a particular mode of instruction. In challenging times such as these, it is especially important to remember that all students must have meaningful access to education, whether in-person or online. 
ii)	Online learning barriers/access to technology
A second barrier to education is the inconsistent access to technology students are experiencing across Ontario. Some students will choose to continue their education online this year. This means that these students must have access to reliable devices and high-speed internet in order to stay connected with teachers and peers. This has presented a problem for marginalized youth, particularly in low income, and Indigenous communities. 
School boards are working on this issue, and many have provided students with access to laptops and tablets. Nevertheless, in many isolated locations, such as in rural and northern communities, high-speed internet access remains unavailable, making it challenging for students to access online resources. To ensure that students with disabilities that are low-income and/or in remote communities are properly accommodated, schools must ensure their students have reliable access to technology. 
Even with reliable devices, students with disabilities are still experiencing barriers due to the use of inaccessible teaching platforms. The AODA Alliance has provided many updates on this issue, with one of the key concerns being the lack of accessibility with TVO (an educational TV network) programming. This is especially concerning as school boards may focus most of their time on in-person resources, and continue to overlook the accessibility of online platforms. The Ministry needs to put in more work in this area to ensure students who choose to study online are not inequitably limited by the use of inaccessible online learning tools. 
As of the date of this article, many elementary students do not yet have a teacher and classroom assigned for virtual learning which is highly concerning. Moreover, it is unclear how and if teachers of virtual classrooms will be accessing and relying on current student IEPs.   
iii)	Disruptions to schedules 
It goes without saying that COVID-19 has caused significant disruptions to daily life and that many of these disruptions will have a longstanding impact into and beyond the 2020-2021 school year. Although disruptions impact all students, routine and consistency are particularly important to some students with disabilities. Students, parents, and teaching staff must remember that disruptions to schedules can cause significant setbacks for students with disabilities, and this must be considered when school boards are planning for the future. 
Advocacy Tools 
This section outlines advocacy tools that students and parents can use during the COVID-19 pandemic regarding barriers to education. Along with these advocacy tools, ARCH advocates for direct communication between students, parents and educators when trying to navigate issues regarding access to education. 
i)	ARCH Advocacy Toolkits
In the past, ARCH has developed advocacy resources tailored to accessible education. These toolkits still apply during the COVID-19 pandemic. Specifically, there are three guides that may be useful to students: 
•	“Human Rights and Education in Ontario: A general guide for students”
•	“Service Animals in Schools in Ontario”
•	“Your Right to not be Excluded from School in Ontario”
These guides provide more information regarding the rights of students in schools, including information about what to do if you believe your rights as a student have been violated.
Students and parents may also be interested in the “Factsheet – The Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol”. This factsheet provides information on the international agreement Canada signed, promoting and protecting the human rights of people with disabilities, including the right to inclusive education.  
i)	IEP/IPRC
Even though we are going through a pandemic, schools must still accommodate students and maintain up-to-date Individual Education Plans (IEPs). Justice for Children and Youth, an Ontario based Legal Aid Clinic, has extensive resources regarding the rights of students with disabilities. These resources reiterate that students and parents have a right to request an Identification, Placement and Review Committee (IPRC) meeting, and if it is determined necessary, the school must create an IEP for the student.
Schools must continue to update and develop students’ IEPs, even during the COVID-19 pandemic. 
ii)	Contacting a lawyer or Legal Aid Clinic
Lastly, community legal clinics and lawyers can be a useful resource at all stages of advocating for your rights. ARCH has created a guide called, “Using Legal Services: A Guide for Persons with Disabilities in Ontario”, which outlines how to request accommodations during the process of communicating with a lawyer or paralegal. 
If you require free summary legal advice regarding access to education and appropriate accommodations in school or virtual learning, you can call ARCH for a free confidential telephone appointment. For more information about ARCH and the areas of law ARCH covers, please go to archdisabilitylaw.ca/
Conclusion
This article highlighted the substantial barriers students with disabilities are facing in education due to the COVID-19 pandemic. School boards have been provided with a great deal of discretion in this situation, and what works and what does not remains to be seen as the school year progresses. What remains constant are the human rights obligations of educators to provide students with access to meaningful education. This has not changed, so schools must continue to ensure that students with disabilities are properly accommodated and considered when developing their COVID protocols.  
This article is up to date as of September 25, 2020. The situation is developing constantly, so please note that some information in this article may no longer be current. ARCH continues to monitor and report changes occurring in education due to COVID-19.
BLAC and ARCH Demand Independent Investigation into the Death of Regis Korchinski-Paquet
By: Mariam Shanouda, Staff Lawyer
On May 27, 2020, Regist Korchinski-Paquet died after police officers responded to a mental distress call at her residence. Unfortunately, Regis’ death is not the first, nor will it be the last, to happen in such a familiar set of circumstances. As ARCH has written previously, persons with mental health disabilities often experience violence in their interactions with police. This is because, as ARCH has again previously stated, the police are not trained to act appropriately in situations where they are called to a scene and confronted with a person who may have a mental health disability.
Similar to many other persons of colour with mental health disabilities, Regis’ death was unjust and it was preventable. It should not have happened. However, and sadly, it is representative of a systemic problem that persons with mental health disabilities, persons from the Black community, and persons from other racialized communities have been advocating against for years. And yet, it is clear that we are no closer to a solution. 
A month before Regis’ death, D’Andre Campbell, a young Black man with a mental health disability, was also killed when police were called to his place of residence to respond to a mental distress call. Approximately a month after Regis’s death, Ejaz Chaudhry, a 62-year old person of colour with schizophrenia, was killed when police arrived at his house. In all three situations, the families of the persons with mental health disabilities had called the non-emergency line for assistance. The assistance arrived in the form of armed police officers and resulted in the deaths of Regis, D’Andre, and Ejaz.
In response to these deaths, ARCH endorsed BLAC’s statement and also released its own statement expressing our sadness and decrying the role of police in the deaths of persons with mental health disabilities. We emphasized that all persons with mental health disabilities have the right to appropriate accommodations and de-escalation when experiencing a mental health crisis, including an opportunity to interact with mental health workers instead of police officers.
On August 10, BLAC and ARCH sent a joint letter to the Ministry of the Solicitor General demanding an independent investigation into the death of Regis.  Currently the Special Investigation’s Unit (SIU) is responsible for investigating the death. However, there are concerns relating to the fairness, transparency, and effectiveness of the SIU process, especially when considering the systemic racism and ableism inherent within Ontario policing. The recommendations in the letter included establishing a full, transparent, and independent investigation into the circumstances of Regis’ death, and for the Government of Ontario to implement recommendations found in the Honourable Justice Tulloch’s report, and the Loku Recommendations. On August 26, the SIU released a statement that it found no reasonable grounds to criminally charge any of the police officers on scene in connection with Regis’ death. 
As of the date of this article, neither BLAC nor ARCH have received a response from the Ministry of the Solicitor General to their letter.
Also on August 10, the Ontario Human Rights Commission released a report called A Disparate Impact confirming that Black people are disproportionately arrested, charged, and subjected to use of force by Toronto police. While this report does not specifically consider the interaction of Black persons with mental health disabilities with police, what it does demonstrate is that race is a significant predictor as to whether or not a police officer would use force. 
What this means is that while all persons with mental health disabilities are more than likely to experience violence when interacting with police officers, especially if they are experiencing a mental health crisis, a Black person experiencing a mental health crisis will be even more disproportionately impacted. When considering the experience of a Black person with a mental health disability, we are referring to intersectionality. Intersectionality means that a person may experience discrimination based on several protected human rights grounds, rather than just one. So, for example, a Black woman with a mental health disability may experience discrimination based on her race, her gender, and her disability. It is of utmost importance to understand that discrimination does not happen one-dimensionally and that persons experience discrimination based on their disability in different ways. One of those ways is whether or not that discrimination is exacerbated by experiencing discrimination based on other protected areas.
The ongoing violence experienced by Black people is particular and it is systemic. It is further exacerbated when a Black person is a person with a mental health disability who finds themselves in an interaction with law enforcement. What happened to Regis, what happened to D’Andre, what happened to Andrew Loku, and to so many countless others should not have happened, but it will continue to happen until the systemic changes that so many organizations have been demanding for decades actually happen. 
ARCH will continue to monitor the investigation into Regis’ death. ARCH will also continue to monitor what changes, if any, are made in response to these calls against the injustice experienced by Black persons and experienced by Black persons with mental health disabilities.

Update on Ontario’s Clinical Triage Protocol for Major Surge in COVID Pandemic
By: Mariam Shanouda and Jessica De Marinis, ARCH Staff Lawyers 
Background on the Clinical Triage Protocol
On March 28, 2020, Ontario Health, an agency connected to the Ontario Ministry of Health, released a document called the Clinical Triage Protocol for Major Surge in COVID pandemic (the Triage Protocol). This document is meant to help doctors make difficult decisions about who will receive critical health care during the COVID-19 pandemic if there are not enough medical resources for all the people who need them. Doctors will have to make hard decisions if there are too many people in hospitals and not enough beds, ventilators, or other life-saving equipment.
At this time, the Triage Protocol is still a draft and is not being followed by doctors in Ontario. It must still be finalized and approved by the Ontario Ministry of Health. 
ARCH’s Advocacy  
Since March 28, 2020, this document has never officially been made available to the public. ARCH Disability Law Centre, along with several other disability organizations, academics, and the media, were able to get a copy in early April 2020. After reading the document ARCH had several concerns including the fact that the Triage Protocol does not follow human rights law, and discriminates against persons with disabilities. 
On April 8, 2020 ARCH delivered an open letter to the Ontario government, signed by over 200 disability rights organizations and over 4800 individuals, making several recommendations and urging Ontario Health to consult with persons from disability communities. The Ontario Human Rights Commission also wrote a letter to the Minister of Health making their concerns clear about how the Ontario Government had not appropriately consulted with persons who are more than likely to be adversely impacted by the Triage Protocol.
On May 13, ARCH sent another letter to the Government of Ontario making clear all of the human rights laws that the Government would be breaking if it did not make some changes to the Triage Protocol. The letter focused on the Canadian Charter of Rights and Freedoms which gives all Canadians certain rights that should not be broken by the Government. ARCH also recommended, again, that the Government speak with persons with disabilities to hear their concerns about the Triage Protocol and how it would affect them.

ARCH Participated in Consultations
In July, the authors of the Triage Protocol arranged a meeting along with the Ontario Human Rights Commission, in order to speak with representatives of disability communities and learn about their concerns with the Triage Protocol. ARCH, along with other members from disability communities, was also invited to attend this meeting, which took place on July 20, 2020. 
At this meeting, ARCH again told the authors of the Triage Protocol about some of the problems with the Triage Protocol. These problems include the fact that there still has not been broad and wide consultations with more members of the disability community, or consultations with Black persons, Indigenous persons, or persons from other marginalized communities. This is very concerning because these are the communities who are most impacted by COVID and will likely be most impacted by any Triage Protocol. 
At this meeting, ARCH also expressed concern about using the Clinical Frailty Scale (CFS). The CFS is a scale in the Triage Protocol that doctors would use to help them make a decision about who gets to receive critical care if the hospital has too many people and not enough medical equipment. It is important to remember that hospitals in Ontario currently have enough medical equipment to care for all patients. The consultations on the Triage Protocol are to prepare in case the pandemic gets worse.
The CFS was originally designed to help doctors provide better care for persons who are elderly (aged 65 years or older). However, the Triage Protocol proposes using it in a pandemic situation. The CFS discriminates against persons with disabilities because it uses information like whether someone needs assistance with activities of daily living – like eating or toileting – to determine whether a person is too frail to benefit from treatment.   ARCH has told the authors that this is a discriminatory measurement because it targets persons with disabilities. This is one example of how the CFS is being used in a way that will more likely than not adversely impact persons with disabilities. 
Following the July meeting, ARCH provided more submissions highlighting all of the concerns that it raised at the meeting, and how the authors still had not made some necessary changes to the Triage Protocol.
Throughout August, ARCH, along with other representatives from disability communities met numerous times with the Bioethics Table to share their ongoing concerns about the Triage Protocol. After those meetings, ARCH sent more written submissions to the Bioethics Table that again ask that the authors remove the CFS from the Triage Protocol and make it not discriminatory to ensure that persons with disabilities are provided equitable access to healthcare during the pandemic.
This issue continues to be developing. ARCH will provide further updates about the Triage Protocol on its website, through ARCH bulletins, and in the next issue of the ARCH Alert.
Connecting People to Home and Community Care Act
By: Dianne Wintermute, Staff Lawyer
The Connecting People to Home and Community Care Act (formerly known as Bill 175) had a swift passage through the legislative process.  It was introduced on February 25, 2020.  The purpose of the law was to modernize the delivery of home and community based attendant services.  However, it became apparent that persons with disabilities were not the sole focus of the new law: it applied to anyone leaving hospitals for rehabilitation services, or who needed services to stay in their home after discharge from hospital.  The law applied to “patients” and not consumers of home and community attendant services.
On June 15, 2020, ARCH made oral and written submissions to the Standing Committee on the Legislative Assembly, making our concerns about the new law known to the government.  Our written submissions can be found at:
www.archdisabilitylaw.ca/resource/submissions-on-bill-175
Despite our submissions, and those of many other members of disability communities, the legislation was passed on July 8, 2020, with no meaningful changes.  The concerns of persons with disabilities, raised throughout the process, were not acknowledged.
One of the major concerns with this law is that many of the issues that are important to people with disabilities, such as: eligibility for services; scope of services; and complaints mechanisms are now in regulation.  In addition, the Consumer Bill of Rights, which was a key feature of the Home Care and Community Services Act is now in a regulation and not in the law itself. Regulations are meant to fill in details of the law. Regulations are developed and passed without a vote in the legislature.  
ARCH has been told that the regulations, including the Bill of Rights, will be posted for consultation this fall. Although ARCH has requested details of the dates and timelines for public consultations, none have been provided to date.
ARCH is committed to a full and fair public consultation process. We are working on a plan to make sure your concerns are brought to the attention of the government.  We will announce details on our What’s New at ARCH page on our website:
www.archdisabilitylaw.ca 
If you have any questions regarding attendant services and other community services that you are receiving, you can call ARCH and make an appointment to consult with an ARCH lawyer. 

Do the Rights Thing: A Legal Rights Workshop for Deaf women, women with a disability, LGTBQ+ Deaf Women, or LGTBQ+ women with a disability
Barriers at work?
ARCH Disability Law Centre in partnership with 
DAWN Canada presents
Do the Rights Thing: A Legal Rights Workshop
Date: Thursday, October 15, 2020
Time: 6:00 – 8:00 PM

Do you identify as a Deaf woman, woman with a disability, LGTBQ+ Deaf woman, or LGTBQ+ woman with a disability? Are you experiencing barriers surrounding employment?  Do you wish you had more tools when self-advocating for your rights and disability-related accommodations?

Then this safe, free, inclusive virtual workshop is for you and your allies.

Join us in an engaging discussion about your rights when experiencing ableism and other forms of discrimination related to employment accommodations and ways to empower yourselves.

What you will take away?
•	Engaging conversation
•	Practical tools and resources
•	A solid understanding on disability rights in the workplace
•	Best practices to common scenarios involving disability accommodation in employment

To RSVP: http://www.surveygizmo.com/s3/5814518/Do-the-Rights-Thing-Survey

For more information, contact ARCH
Email: archspecialproject@gmail.com
Phone: 1-866-482-2724

Do the Rights Thing: A Legal Rights Workshop for Employers and Service Providers
Calling all employers!
ARCH Disability Law Centre in partnership with
DAWN Canada presents
Do the Rights Thing: A Legal Rights Workshop
Date: Thursday, October 22, 2020
Time: 3:00 – 5:00 PM

Would you like to expand and improve your hiring practices? Do you wish you had more knowledge and a better understanding of your obligations when employing Deaf people and people with disabilities? Would you like to learn more about appropriately accommodating your employees with disabilities?
Then this free collaborative, inclusive virtual workshop is for you.
Join us for an engaging discussion about your rights and obligations when hiring Deaf people and people with disabilities and learn how to prevent discrimination from happening in your place of work.
What you will take away?
•	Engaging conversation
•	Practical tools and resources
•	A solid understanding on disability rights in the workplace
•	Practices applying human rights principles to common scenarios involving disability in employment
To RSVP: 
http://www.surveygizmo.com/s3/5814518/Do-the-Rights-Thing-Survey

For more information, contact ARCH
Email: archspecialproject@gmail.com
Phone: 1-866-482-2724
Solitary Confinement: Ontario Not Complying with Jahn Terms in Provincial Prisons
By: Lila Refaie, Bilingual Intake Lawyer and Student Programs Lead
ARCH wrote about administrative segregation (commonly known as solitary confinement) in provincial prisons in its April 2018 ARCH Alert edition. For ease of reference, below is a brief summary of the segregation use in provincial prisons in Ontario. 
These prisons are governed by the Ministry of Correctional Services Act (“Ontario Act”) and its regulation. Each prison is managed by a superintendent. Under provincial law, there are two types of segregation: disciplinary segregation and administrative segregation. Disciplinary segregation may occur when a prisoner commits a serious misconduct within the prison. It is served as a form of punishment, and the placement is limited to a maximum of thirty days. Administrative segregation is a more flexible placement for prisoners in certain circumstances. A prisoner may be placed in administrative segregation if the superintendent believes it is needed for the safety or security of either the prisoner in question or other prisoners in the prison. A prisoner can also request to be placed in segregation. Although the Superintendent must review the prisoner’s placement in segregation every five days, there are no limits to the length of stay in administrative segregation.  
Ontario Government Agreed to put Parameters on Administrative Segregation
In 2012, Christina Jahn filed a human rights application against the Minister of Community Safety and Correctional Services, representing the Ontario Government, at the Human Rights Tribunal of Ontario (“HRTO”). While incarcerated in a provincial prison, Jahn was placed in segregation for approximately 210 days throughout the period of incarceration. During placement in segregation, Jahn experienced brutal and humiliating treatment, due to mental health disabilities and gender. The Ontario Human Rights Commission (“OHRC”) intervened in the application and requested systemic remedies. The OHRC argued that administrative segregation was overly used in provincial prisons, and that the treatment of prisoners with mental health disabilities within the Ontario correctional system contravened their rights under the Human Rights Code.
In September 2013, the parties reached an agreement and settled the application. The Ontario Government agreed to implement certain public interest remedies (“Jahn settlement”) including:  completing  a report and implementing its recommendations to better serve female prisoners with “major” mental health disabilities;  screening all prisoners for mental health issues upon their arrival to a prison and ensuring a physician will conduct an assessment and follow-ups, as needed; physicians will develop appropriate treatment plans for prisoners with mental health disabilities; and the Ontario Government will  train its frontline staff and managers on mental health and their obligations under the Human Rights Code,  the impact of punitive measures on mental health, and vulnerable prisoners’ needs. The terms of settlement also included a review and distribution of the “Inmate Handbook”, which informs prisoners of their rights and responsibilities. Finally, the Ontario Government will amend the procedure used to determine whether a prisoner should be placed in disciplinary segregation under the “Inmate Management Policy on Discipline and Misconduct” and other related policies, including taking into consideration whether the prisoner has a mental health disability, and strictly limiting the use of this type of segregation as a last resort option.
With regards to administrative segregation, the Ontario Government recognized the potential adverse impact that segregation may have on prisoners with mental health disabilities. As a result, it agreed to review and amend its policies and procedures related to administrative segregation. In doing so, the Ontario Government agreed to restrict its use if the prisoner has a mental health disability, unless all other possible alternatives would result in undue hardship, such as security and/or health and safety concerns. If a prisoner is placed in segregation, a review of their placement shall be conducted at least once every five days and again after 30 continuous days. In the case of a prisoner with a mental health disability, a physician must conduct an assessment, with the prisoner’s consent, before each review. In 2015, the parties further agreed that prisoners shall be given information handouts regarding their rights while placed in segregation. 
Following the Jahn settlement, the OHRC became concerned about the lack of its implementation by the Ontario Government. In September 2017, the OHRC filed a contravention of settlement application against the government, alleging that the Province failed to comply with the terms of settlement related to public interest remedies.   
On January 16, 2018, the OHRC secured another agreement with the Ontario Government to effectively end indefinite segregation in provincial prisons. This agreement was reflected in a consent order filed with the HRTO. In addition to the terms listed above, the parties further agreed to conduct a system-wide review of the province’s use of segregation in relation to prisoners with mental health disabilities, including whether the prisons are following the Jahn settlement. The Ontario Government also agreed to conduct a system-wide review in relation to the treatment of prisoners with mental health disabilities in the various prisons’ general populations, which was to be published in summer 2018. The parties agreed to hire an Independent Expert on human rights and corrections and an Independent Reviewer to assist in the implementation of the terms of this agreement. Prisons will establish and begin tracking segregation placements, and will identify prisoners with mental health disabilities. The Ontario Government will ensure proper use of mental health alerts within the prisons, which will serve as indicators to restrict the use of segregation for these prisoners. 
In early 2020, the Independent Reviewer on the Ontario Ministry of the Solicitor General released a final report on the Government’s progress in the implementation of the agreed terms from the Jahn settlement and subsequent consent order. Through this report, it became clear that the Ontario Government was not complying with the terms of the Jahn settlement or the HRTO order described above. The Independent Reviewer made several recommendations to the Ontario Government in an effort to bring the government in compliance with its commitments through the settlement and HRTO order. Following this report, the OHRC brought the matter back to the HRTO. 
OHRC Files Motion due to Continued Non-Compliance from the Government
On August 25, 2020, the OHRC filed a motion at the HRTO against the Ontario Government. In their motion, the OHRC alleges that the government failed to comply with the terms of the Jahn settlement by not implementing a suitable system that would ensure limited use of segregation for prisoners with mental health disabilities as a last resort. For instance, the OHRC alleges that the Ontario Government did not put in place a system to review placements of prisoners with mental health disabilities in segregation. By failing to do so, the Government failed to ensure that this type of placement is not an appropriate option unless any other alternative would cause undue hardship. Further, the Government has not implemented an adequate mental health screening for its prisoners and individualized care plans for prisoners with mental health disabilities. 
The OHRC is asking the HRTO to order the Ontario Government to comply with the Jahn settlement and HRTO orders, as well as prohibiting segregation placements for prisoners with mental health disabilities. The OHRC is also asking for an order that:
-	All segregation placements are strictly limited to 15 consecutive days or 60 cumulative days over the last year. Any additional time should be prohibited.
-	The Ontario Government will work with an independent expert to implement the terms of the Jahn settlement and HRTO orders. 
-	The Ontario Government must appoint an “Independent Monitor of Correctional Services”, who will ensure that the government continuously complies with the Jahn settlement and HRTO orders.
You can review the motion in full by going to: http://www3.ohrc.on.ca/sites/default/files/Jahn%20-%20OHRC%20Motion%20re%20Non-Compliance%20Accessible.pdf 
At the time of writing this article, the Ontario government has not responded to the OHRC’s motion. ARCH will continue to monitor this issue. 
  
Canadian Transportation Agency delays the Enforcement of Several Provisions of the Accessible Transportation for Persons with Disabilities Regulations
By: Mariam Shanouda, Staff Lawyer
On June 25, 2020 the Accessible Transportation for Persons with Disabilities Regulations (the Regulations) came into effect. These Regulations apply to all modes of transportation and require large federal transportation providers such as airlines, railways and interprovincial buses, to take steps to make transportation more accessible for persons with disabilities. To review these regulations in full, you can go to: http://www.gazette.gc.ca/rp-pr/p2/2019/2019-07-10/html/sor-dors244-eng.html 
There are over 200 sections in the Regulations and although all of the provisions were scheduled to come into effect on the same date – June 25, 2020 – the Canadian Transportation Agency (the Agency) decided to delay the enactment of several provisions until December 31, 2020. This means that many of the 200 sections became law on June 25, but some sections (which are part of an Exemption Order) will not be law until December 31, 2020. 
On June 1, 2020, the Agency released an Exemption Order that states that transportation providers will be provided more time before they have to comply with several of the provisions in the Regulations. This Order was released as a response to the burdens many transportation providers have recently had to deal with because of COVID-19. To review the Exemption Order in full, you can go to: http://canadagazette.gc.ca/rp-pr/p2/2020/2020-06-10/html/sor-dors125-eng.html
The provisions in the Exemption Order are primarily concerned with training of personnel or making technology more accessible. More specifically, terminal operators, air carriers, marine carriers, and bus carriers have until December 31, 2020 to take certain steps to make their websites more accessible, provide information in alternative formats, and develop new training programs in consultation with the community of persons with disabilities. Air carriers have until December 31, 2020 to make available personal electronic devices with accessible content if they have onboard entertainment systems that are not accessible.
In addition, air terminal operators are exempt until December 31, 2020 from implementing provisions requiring them to assist persons with disabilities between the curb and check-in for arriving passengers, and between the general public area and curb for departing passengers. They are also exempt from creating relief areas for service dogs until December 31, 2020. 
Lastly, air carriers are also exempt until December 31, 2020 from the provisions requiring them to give written confirmation of requested services to passengers, and retain passengers’ confidential health information. 
It is important to remember, however, that these exemptions are temporary. The exemptions give large federal transportation providers more time before they are required to take the steps described above to make transportation more accessible.
Moreover, it is important to keep in mind that even though transportation service providers are temporarily exempt from some of the requirements in the Regulations, at no time are they exempt from having to fulfill their duty to accommodate.  
This means that should a person with a disability experience a barrier when trying to access transportation services and they make a request for disability-related accommodations, the transportation provider must provide that accommodation unless doing so would cause undue hardship. 
This is very important because it means transportation providers cannot use the COVID-19 pandemic or the Exemption Order as a reason for denying an accommodation without first investigating whether that accommodation can be provided and, if it cannot, demonstrating that providing the requested accommodation would cause undue hardship. 
ARCH will continue to report on any further updates regarding the Accessible Transportation for Persons with Disabilities Regulations. If you are a person with a disability living in Ontario, and have encountered barriers when travelling, you are welcome to contact ARCH directly for free confidential summary legal advice. 
  
Changes Made to the Class Proceedings Act, 1992
By: Mariam Shanouda, Staff Lawyer
In July 2020, Bill 161, a document that proposed changes to several pieces of legislation included the Class Proceedings Act, 1992 (“CPA”), became law. There are several changes proposed by Bill 161 that will now be made to the CPA. All of these changes, however, will only apply to class actions that start after the changes were enacted and do not apply to any existing class actions currently before the courts. 
ARCH has previously written about the importance of ensuring that class actions are accessible to all persons, including persons with disabilities, who may find themselves as part of a class action. In the same article, we outlined the specific barriers to accessibility in class actions. 
In July 2020, however, significant changes were made to the CPA. In this article, I will first provide a refresher on certification. I will then highlight some of the more significant changes that have been made to the CPA. Lastly, I will provide a brief discussion as to whether or not these changes make the class action process more accessible.
What is Certification?
Certification is the process by which a person who wants to file a class action gets permission from the court to proceed with a class action rather than filing as an individual. 
When deciding whether or not to certify a case, the court must consider whether a class action is the most preferable route and whether it will advance three objectives:  access to justice, judicial economy, and behaviour modification. For a detailed discussion on these three objectives, you can access ARCH’s previous article on class actions by going to: https://archdisabilitylaw.ca/arch_alert/arch-alert-volume-20-issue-2/#advocating-for-accessible-class-actions
What Recent Changes Have Been Made to the Class Proceedings Act, 1992?
One of the major changes introduced by Bill 161 affects the test for certification. Any person asking permission from the court to proceed with a class action will now have to demonstrate that not only is the class action preferable to any other process, but that it is superior to all other available means of getting a legal remedy. The person seeking certification will also have to demonstrate that the questions of fact or law that affect the class as a whole is more important than questions of fact or law affecting only individuals in the class. 
This is, arguably, a more difficult test to meet by any person trying to ask permission from the Court to proceed with a class action. Currently, a lot of cases on certification demonstrate that a person only need to show the court that a few common issues exist between class members. The new requirements mean that you will have to show (a) that class action is the best way to proceed, not just the preferable way, and (b) that the issues between the class members far outweigh any claims class members may have individually. 
Among the other changes made to the CPA, two are of importance as they relate to settlement. A settlement is an agreement between the class members and the defendant(s) that outlines what remedies the defendant(s) has agreed to give to the class members. If the class members agree to the settlement, then the lawsuit will end and the defendant(s) will implement the remedies that they agreed to provide to the class members. Most of the time, a settlement agreement in a class action will include a monetary remedy. This means the defendant agrees to give a specific amount of money to each class member. It is important to note here that for class action settlements, the parties must get the court’s approval on the settlement before it can be finalized.
One of the changes made to the CPA now requires parties to file evidence when seeking the approval of the court on settlement. Before this change, parties seeking approval of a settlement had to demonstrate that the settlement was fair, reasonable, and in the best interests of the class. When deciding whether to approve a settlement, the court does not consider whether the class members would have won or lost the case. Instead, the court examines the fairness and reasonableness of a proposed settlement and whether it is in the best interests of all of the class members. The court weighs the positive and negative aspects of the settlement in making its decision as to whether or not to approve it. 
As a result of the recent changes to the CPA, the court must also now consider evidence that parties are expected to put before it that demonstrates why the settlement is fair and reasonable, if there are any risks if litigation were to continue, and how many members there are in the class.
Relatedly, one of the other changes to the CPA that affects settlement now requires the organization responsible for distributing the settlement funds to file a report with the court detailing how the settlement money was distributed. There is specific information that must be set out in this report. These reports may be able to provide more information as to, for example, how many class members were able to file claims and receive settlement funds.
Do the Changes to the CPA make Class Actions More Accessible?
We must keep in mind that these changes are very recent and they only apply to class actions that start after these changes to the CPA have been made. This means that there is still no case law to demonstrate how the court will interpret and apply these changes. As such, it is difficult at this time to really know what effect, if any, these changes will have on making a class action process more or less accessible. 
One of ARCH’s overarching concerns with class actions is ensuring that class members have access to legal assistance and other supports so that they may be able to file compensation claims in order to access settlement funds. Technically speaking, the new requirement that parties must provide evidence to the court as to the reasonableness of the settlement may open the door to argue that requests for settlement approvals should also include how class members will be able to access the settlement funds and to ensure that legal assistance and other supports are available. 
ARCH will monitor the impact of these changes to new class actions in order to assess whether they raise any further access to justice barriers in class actions for persons with disabilities.
  
British Columbia Court Must Reconsider Granting CCD Public Interest Standing to Challenge BC Mental Health Law
By: Kerri Joffe, Staff Lawyer 
On August 26, 2020 the British Columbia Court of Appeal released its decision in Council of Canadians with Disabilities v. British Columbia (Attorney General), 2020 BCCA 241. The BC Court of Appeal made some helpful statements clarifying the approach to be taken when deciding whether a public interest litigant should be granted standing to bring forward a particular legal case. To access the full decision go to https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca241/2020bcca241.html?resultIndex=1 
This case was started by the Council of Canadians with Disabilities (CCD) and two individuals. The CCD and these two individuals brought a claim to challenge BC’s mental health laws related to the provision of non-consensual psychiatric health care treatment. Psychiatric treatment can include electroconvulsive therapy, psychotropic medications, or both. The crux of their claim was that section 31(1) of BC’s Mental Health Act and other related provisions deprive people who are involuntarily detained in psychiatric facilities of the right to consent to psychiatric treatment, regardless of whether the person can actually consent. They also claimed that the law prevents substitute and supported decision makers from giving or refusing consent to psychiatric treatment for involuntarily detained people who cannot consent independently. 
CCD and the two individuals claimed that these BC laws violated sections 7 and 15 of the Charter. They alleged that BC law deprives involuntarily detained people from security of the person because it removes their right to decide what is done to their bodies, it allows non-consensual touching to administer psychiatric treatment, and the psychiatric treatment can cause harm. They alleged that BC law discriminates against people based on “mental disability” under section 15 of the Charter, because it deprives them of the right to give, refuse, or revoke consent to treatment if they are capable, or the right for their substitute or supported decision maker to give, refuse, or revoke consent to treatment.
During the early stages of the lawsuit, the two individuals withdrew from the case, leaving CCD as the only plaintiff. CCD argued that it should be permitted to continue the case as a public interest litigant. However the British Columbia Supreme Court decided that the CCD lacked public interest standing and could not pursue the case on its own. The CCD appealed this decision to the BC Court of Appeal. 
Public Interest Standing
Public interest standing is a legal tool that allows public interest advocacy organizations to bring forward legal challenges that are broad, systemic, and of general interest and importance. It is a mechanism that allows courts to fulfill their function of reviewing government action and legislation to ensure that it is legal and complies with the Charter.
For persons with disabilities and other equity-seeking communities, public interest standing is an important access to justice tool. It provides a way for organizations to bring forward cases that individuals could not bring on their own due to the cost, time, and complexity of litigation and because of the many economic and social barriers that people with disabilities experience.
Granting an organization public interest standing to proceed with a case is a matter of judicial discretion. The Supreme Court of Canada has stated that judges must exercise their discretion in a liberal and generous way, while also ensuring that courts are not overburdened with redundant claims and that courts benefit from the views of people who are most directly affected by a particular issue. A judge must exercise their discretion to grant public interest standing by considering three factors set out in Canada (Minister of Justice) v. Borowski, [1981] 2 SCR 575: (1) whether there is a serious issue that can be decided by a court of law; (2) whether the plaintiff is directly affected by the case or has a genuine interest in its outcome; and (3) whether the case is a reasonable and effective means of bringing the issue to court. 
The British Columbia Court of Appeal overturned the decision of the Supreme Court. The Court of Appeal found that the Supreme Court erred when it decided that the CCD needed a particular factual context of an individual’s case or an individual plaintiff in order to meet the first factor and proceed with the case. To the contrary, the Court of Appeal decided that the CCD’s claim was a comprehensive and systemic Charter challenge to specific legislation that directly affected all members of a defined and identifiable group, namely persons with mental health disabilities who are involuntarily detained. The Court of Appeal found that CCD could establish its claim by bringing forward evidence from experts and directly affected people, without those people having to be plaintiffs in the case. The Court reaffirmed that broad, systemic Charter challenges are a unique form of litigation. A public interest litigant must ground its case in material facts, but an individual plaintiff and plaintiff-specific material facts are not always necessary in order to raise a serious issue that can be decided by a court of law. 
The British Columbia Court of Appeal also commented that it is not always preferable for an individual to bring forward a case and for a public interest organization to play the role of assisting that individual. Rather, the Court of Appeal affirmed that courts must evaluate each public interest standing case individually and decide whether it is practical for an individual to bring forward their own case.
Next Steps in the Case
The BC Court of Appeal sent CCD’s request back to the BC Supreme Court. The BC Supreme Court will decide whether CCD is permitted to proceed with the case as a public interest litigant. In making its decision, the BC Supreme Court will need to consider new facts that arose after the case was argued at the BC Court of Appeal. One such fact is that a class action was started challenging the same provisions of BC’s Mental Health Act as violating the Charter. ARCH will continue to monitor this important case. 
  
ARCH on Social Media
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Check ARCH’s website www.archdisabilitylaw.ca for the latest ARCH news, publications (including past issues of the ARCH Alert), submissions, fact sheets and more. 

Become a Member of ARCH
If you would like to become an individual member of ARCH, please visit our website at www.archdisabilitylaw.ca or contact our office to request an Application for Individual Membership form. Membership is free.

Donating to ARCH 
While ARCH receives core funding from Legal Aid Ontario and grant funding from other sources, we also rely on the donations from individuals.  We ask you to consider being a part of our work by contributing whatever you can.  If you are able to assist please donate to ARCH through www.canadahelps.org.
Or you can send your donation cheque to:
Office Manager
ARCH Disability Law Centre
55 University Avenue, 15th Floor 
Toronto, ON M5J 2H7
We will promptly send you a charitable receipt.  Charitable No. 118 777 994 RR 0001

ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail or mail to ARCH members, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through test case litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility.
Co-Editors: Robert Lattanzio & Amanda Ward
Production & Circulation: Theresa Sciberras
We welcome your comments, questions and feedback. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Operations, Program and Administrative Assistant, ARCH Disability Law Centre, 55 University Avenue, 15th Floor Toronto, ON M5J 2H7, Fax: 416-482-2981 or 1-866-881-2723, TTY: 416-482-1254 or 1-866-482-2728, e-mail: scibert@lao.on.ca   Website: http://www.archdisabilitylaw.ca/

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ARCH Disability Law Centre
55 University Avenue, 15th Floor 
Toronto, ON M5J 2H7
www.archdisabilitylaw.ca

Voice
Telephone: 416-482-8255 
Telephone Toll-free: 1-866-482-2724
TTY
TTY: 416-482-1254 
TTY Toll-free: 1-866-482-2728
The TTY is not being answered as ARCH staff work remotely
Fax
Fax: 416-482-2981 
Fax Toll-free: 1-866-881-2723
Email
archgen@lao.on.ca 

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