The Law as it Affects People with Disabilities: A Case Study Paper on Rights to Supports

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Abstract

“The Law as it Affects People with Disabilities: A Case Study Paper on Rights to Supports”

Meryl Zisman Gary, Cara Wilkie & David Baker

In this paper, the authors argue that disability-related supports, such as social assistance, appropriate accommodations, or supports for activities of daily living, are often essential for persons with disabilities to achieve substantive equality.  Through a review of Canadian cases under sections 7 and 15 of the Charter, the authors argue that courts are generally reluctant to impose positive obligations on government to provide services.  The review of the s. 15 case law reveals that claimants are most successful where they are able to frame their claims as a gap in an existing program.   However, even where claims are framed in this way, such claims may not be successful since the government may argue that the program is ameliorative or cancel the program altogether.  The authors conclude that the major obstacles to successful claims for rights to disability-related supports include the reluctance of courts to impose positive obligations on government; the courts formal, rather than substantive, approach to equality; deference to government allocation of scarce resources; the ameliorative program defence; and the limits to the remedies that may be ordered even where a violation is found.

The authors then review selected case law and legislation from the United States and South Africa, as well as principles enshrined in the United Nations Convention on the Rights of Persons with Disabilities, to identify pathways to establishing and recognizing rights to disability-related supports within Canadian law.  Drawing from these various sources, the authors advocate for the enactment of legislation that explicitly acknowledges rights to supports for persons with disabilities, which could include if necessary a recognition of fiscal limitations in the provision of such rights.  This recognition may make it easier for courts to actually recognize positive obligations on the part of government to provide services.  The authors also advocate for explicit recognition of substantive equality by legislature as well as inclusive language that promotes inclusion and participation of persons with disabilities. Finally, the authors argue that the government should use a disability lens and consider principles of universal design when enacting new programs or policies or reviewing existing ones.