[1] Law Commission of Ontario, “Legal Capacity, Decision-making and Guardianship, Project Overview”, online:
http://lco-cdo.org/en/capacity-guardianship (last accessed 22 November, 2014).
[2] Health Care Consent Act, 1996, S.O. 1996, Ch. 2, Sched. A [HCCA].
[3] Substitute Decisions Act, 1992, S.O. 1992, Ch. 30 [SDA].
[4] Mental Health Act, R.S.O. 1990, CHAPTER M.7 [MHA].
[5] Law Commission of Ontario, A Framework for the Law as it Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: Sept. 2012), online: http://www.lco-cdo.org/persons-disabilities-final-report.pdf (last accessed 22 November, 2014); Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012), online: http://www.lco-cdo.org/older-adults-final-report-framework.pdf (last accessed 22 November, 2014).
[6] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, GA Res 61/106 (entered
into force 3 May 2008, ratified by Canada 11 March 2010), art. 12 [CRPD].
[7] Law Commission of Ontario, Legal Capacity, Decision-Making and Guardianship: A Discussion Paper (Toronto: May 2014), online: http://lco-cdo.org/capacity-guardianship-discussion-paper.pdf (last accessed 15 December, 2014) [LCO, Discussion Paper].
[8] Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, “Supported Decision‐ Making: A Viable Alternative to Guardianship?” (2013) 117:4 Penn St. L. Rev. 1111 at 1114.
[9] Internal memorandum from the LCO to Sophie Nunnelley (September 9, 2014).
[10] Andrew’s Bridges, online: http://andrewsbridges.blogspot.ca/p/aroha.html (last accessed: 19 November, 2014).
[11] E.g., the lack of evidence in this regard is discussed in Kohn et al., note 8 at 1129, 1155.
[12] See for e.g., George S. Gotto et al., Accessing Social Capital Implications for Persons with Disabilities: A White Paper (Kansas City: A National Gateway to Self-Determination Project, 2010), online: http://www.aucd.org/docs/Accessing%20Social%20Capital%20Implications%20for%20Persons%20With%20Disabilities,%20Final.pdf (last accessed: 27 November, 2014); Ministry of Social Development and Social Innovation, Services to Adults with Developmental Disabilities (STADD): Support Networks – A Discussion Paper (British Columbia, 2013), online: http://www2.gov.bc.ca/assets/gov/topic/D53478E6C207D4FEEE8B245A3994CA26/ support_networks_framework/support_networks_framework.pdf (last accessed: 27 November, 2014).
[13] Tennessee Association of Microboards and Cooperatives, online: http://tnmicroboards.org/ (last accessed 26 November, 2014).
[14] Texas Microboard Collaboration, online: http://www.thearcoftexas.org/site/PageServer?pagename=partners_ microboard (last accessed: 26 November, 2014).
[15] Information from an informant interview.
[16] Alison Pedlar, A Textured Life: Empowerment and Adults with Developmental Disabilities (Waterloo, Ont: Wilfrid Laurier University Press, 1999) at 126.
[17] Elizabeth Bloomfield & Gerald Bloomfield, Creating a Home and Good Life of my Own: Formal Agreements Developed by Guelph Services for the Autistic in its role as a Housing Trust (Guelph Services for the Autistic, 2012) at 42-3.
[18] For e.g., materials published online by the Ontario Adult Autism Research and Support Network describes three tiers of formality – from (incorporated) Aroha entities, to the less formal personal support networks created by the PLAN organization, to still less formal “circles of friends”: Ontario Adult Autism Research and Support Network, “Aroha Entities for Personal Empowerment and Support”, online: http://www.ont-autism.uoguelph.ca/entities. shtml (last accessed: 26 November, 2014) [OAARSN]. See also: Vickie Cammack & Kerry Byrne, “Accelerating a Network Model of Care: Taking a Social Innovation to Scale” (2012) Jul. Tech. Innov. Mgt Rev. 26 at 28: “A personal network is a group of individuals who come together to provide intentional and purposeful support for a person(s) facing a life challenge”.
[19] Circles Network, online: http://www.circlesnetwork.org.uk/index.asp?slevel=0z114z115&parent_id=115 (last accessed: 26 November, 2014).
[20] Ministry of Community and Social Services, Person-Directed Planning and Facilitation Guide (Toronto, Nov. 2013) at 4 [MCSS, Person-Directed Planning Guide].
[21] MCSS, Person-Directed Planning Guide, note 20 at 4-5. See also, British Columbia Ministry of Social Development and Social Innovation, Services to Adults with Developmental Disabilities (STADD): Support Networks – A Discussion Paper (July 18, 2013), online: http://www2.gov.bc.ca/assets/gov/topic/D53478E6C207D4FEEE8B245A3994CA26/ support_networks_framework/support_networks_framework.pdf (last accessed December 19, 2014).
[22] PLAN, online: http://plan.ca/ (last accessed December 19, 2014).
[23] Bloomfield, note 17 at 46.
[24] Although most informants and most of the literature surveyed emphasized the importance of the members participating on a voluntary (unpaid) basis, and also having no paid role in the supported person’s life (e.g., as a service worker) one informant offered the view that it is sometimes appropriate to include the latter kind of person in personal support workers. Her view was that people in paid roles both (i) can have a great deal of insight into the supported person; and (ii) can learn from participating in the network how to better perform the service role.
[25] David Wetherow & Faye Wetherow, “Microboards and Microboard Association Design, Development and Implementation” (revised August 2004), online: http://www.communityworks.info/articles/microboard.htm (last accessed: 28 November, 2014).
[26] These two cooperatives – “Prairie Housing Cooperative” and “L’Avenir Service Cooperative” – are described in Wetherow, note 25.
[27] Wetherow, note 25.
[28] Wetherow, note 25 [emphasis in original].
[29] Wetherow, note 25.
[30] Vela, “Our Work”, online: http://www.velacanada.org/about-us/our-work-our-impact (last accessed 30 November, 2014).
[31] Vela, “Our Work”, note 30; Informant interview.
[32] Vela, “About Microboards”, online: http://www.velacanada.org/vela-microboardsn (last accessed 30 November, 2014).
[33] Two informants spoke of one or more organizations doing this. One mentioned the work of the Thompson Okanagan Community Services Co-operative (though suggesting that this might be more of a “service model”, in which the organization that assists with incorporation also provides services).
[34] OAARSN, note 18; Bloomfield, note 17 at 42.
[35] According to the network’s online materials, “aroha” is a Maori word that means “the various qualities and values that are needed in a caring circle of friends. Its meanings include affection, love, charity, compassion, empathy, concern, trust, pity, understanding and true friendship – all in active ways, not just ideas or feelings”: OAARSN, note 18.
[36] Bloomfield, note 17.
[37] Bloomfield, note 17, 43.
[38] Wetherow, note 25.
[39] Wetherow, note 25.
[40] In these situations, people can separately receive individualized funding and arrange services, either directly or through an agency. Vela, “Our Work”, note 30.
[41] Vela, “Our Work”, note 30.
[42] Vela, “Principles and Functions for Microboards”, online: http://www.velacanada.org/principles-for-microboards (last accessed 5 December, 2014).
[43] Pedlar, note 16, at 127-8.
[44] ICOF, “What is In the Company of Friends (ICOF)!”, online: http://www.innovativelifeoptions.ca/icof/abouticof. html (last accessed 1 December, 2014) [ICOF].
[45] See notes 92 and 93 and accompanying text.
[46] Vickie Cammack, “Forward”, in Nancy Rother, Reaching Out: A portrait of Social Network Facilitation in Canada (Vancouver: PLAN Institute for Citizenship and Disability, undated), online: http://institute.plan.ca/wp-content/uploads/downloads/2012/11/reaching-out__29373.pdf (last accessed November 21).
[47] PLAN, “Mission, Vision and Values”, online: http://plan.ca/about-plan/what-we-do/mission-vision-and-values/ (last accessed 3 December, 2014).
[48] PLAN includes in its concept of “a good life”: “Relationships with people who love and care for them; the opportunity to contribute; a home to call their own; supportive decision-making; and financial security: PLAN, “PLAN for a good life”, online: http://plan.ca/about-plan/what-we-do/future-planning/ (last accessed 5 January, 2015). The concept of “a good life” is further elaborated in Al Etmanski, A Good Life (2nd ed) (Vancouver: Planned Lifetime Advocacy Network, 2014).
[49] PLAN, “Relationships”, online: http://plan.ca/about-plan/what-we-do/future-planning/relationship/ (last accessed 3 December, 2014).
[50] PLAN, “Membership”, online: http://plan.ca/member/ (last accessed 5 December, 2014).
[51] PLAN, “Affiliates”, online: http://plan.ca/about-plan/plan-affiliates/ (last accessed 5 December, 2014).
[52] Cammack & Byrne, note 18 at 28.
[53] Bloomfield, note 17 at 37.
[54] For instance, see: Bloomfield, note 17 at 19: “Friends are the greatest resource for a vulnerable person, building community and inclusion by sharing parts of their lives and interests, and connecting with others who can offer friendship as well as opportunities for the person to contribute their gifts.”
[55] Pedlar, note 16 at 119, and more generally at 119-20, 128-9.
[56] Nabors: A Community of Circles, “Circles of Support”, online: http://www.nabors.ca/?q=node/8 (last accessed 5 December, 2014).
[57] Rother, note 46 at 6.
[58] Developmental Services Ontario, “Person Directed Planning”, online: http://www.dsontario.ca/person-directed-planning (last accessed 5 December, 2014).
[59] Charlotte Dingwall, Kristi Kemp & Barbara Fowke, Creating a Good Life in Community: A Guide to Person-Directed Planning (Toronto: Individualized Funding Coalition for Ontario, 2006) at 6.
[60] For a description of some commonly used planning tools – e.g., PATH (Planning Alternative Tomorrows with Hope) and MAPS (Making Action Plans) – see MCSS, Person-Directed Planning Guide note 20 at 13-4; and Rother, note 46 at 17-18.
[61] Developmental Services Ontario, Passport Program: Guidelines for Adults with a Developmental Disability and their Caregivers (Toronto: Government of Ontario, October 1, 2014), at 6, online: online: http://www.mcss.gov.on. ca/documents/en/mcss/publications/developmental/passport/passport_guidelines_en.pdf (last accessed 18 December, 2014) [DSO, Passport Guidelines].
[62] Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, s. 4(2) [Social Inclusion Act].
[63] Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, O.Reg. 276/10, s. 5. (This section, and s. 11(1) of the Act (which provides for direct funding agreements) will come into force on a day to be named by proclamation of the Lieutenant Governor.)
[64] MCSS, Person-Directed Planning Guide, note 20 at 8.
[65] MCSS, Person-Directed Planning Guide, note 20 at 16, 31.
[66] John Lord & Peggy Hutchinson, “Individualized funding in Ontario: Report of a provincial study” (2008) 14:2 J. Dev. Disabil. 44 at 47-8.
[67] Lord & Hutchinson, note 66 at 48.
[68] Social Inclusion Act, note 62, s. 4(2).
[69] MCSS, Person-Directed Planning Guide, note 20 at 13.
[70] MCSS, Person-Directed Planning Guide, note 20 at 7, 13.
[71] See also the comments of the Select Committee on Developmental Services that some aspects of the DSO’s operations are “still not fully operational”, and that the provisions pertaining to direct funding agreements are not yet in force: Select Committee on Developmental Services, Final Report – Inclusion and Opportunity: A New Path for Developmental Services in Ontario (Toronto: Legislative Assembly of Ontario, July 2014) at 6, 10, online: http://www.ontla.on.ca/committee-proceedings/committee-reports/files_pdf/SCDSFinalReportEnglish.pdf (last accessed 5 January, 2015).
[72] Rother, note 46 at 7.
[73] Although this was an inquiry into networks’ actual operations, as opposed to what works well, there are many organizations and publications that provide guidance on the factors that they see as important to network creation and maintenance. See for e.g.: Rother, note 46 (setting out seven elements that the authors perceive as necessary for “nurturing and sustaining resilient social networks” (at 51)).
[74] Andrew’s Bridges, note 10.
[75] See also Bloomfield, note 17 at 48.
[76] These comments are consistent with a survey of existing research conducted by Kohn et al., note 8 at 1134-5 (in which they state: “The existing information suggests that supported decision-making is likely to occur primarily within families and thus be subject to the attendant family dynamics—dynamics which may or may not be empowering.”)
[77] OAARSN, note 18.
[78] OAARSN, note 18; Bloomfield, note 17.
[79] PLAN, “How does PLAN Create Networks?” online: http://plan.ca/about-plan/what-we-do/networks/personal-network/how-does-plan-create-networks/ (last accessed 10 December, 2014).
[80] PLAN, “A Note about Friendship”, online: http://plan.ca/about-plan/what-we-do/networks/personal-network/a-note-about-friendship/ (last accessed 10 December, 2014).
[81] Andrew’s Bridges, note 10; informant interview.
[82] People supported by Vela may also choose alternative approaches under which the Microboard does not act as employer of record. A person can receive services through an agency, or can directly receive individualized funds and hire services with the help of an agent (who may, in turn, be assisted by a Host Agency). With these latter options, the Microboard will provide advocacy supports but will not be directly responsible for managing funding or employment. See: Vela, “Microboards and Individualized Funding”, online: http://www. velacanada.org/individualized-funding (last accessed 11 December, 2014). See also Vela, “What do Members Do?”, online: http://www.velacanada.org/what-do-members-do (last accessed 11 December, 2014).
[83] Permission to quote these excerpts was granted by the informant.
[84] Bloomfield, note 17 at Appendix 2.
[85] Bloomfield, note 17 at Appendix 1.
[86] Bloomfield, note 17 at Appendix 4.
[87] Permission to quote granted by the informant.
[88] Vela, “About Microboards”, note 32.
[89] Vela, “Principles and Functions for Microboards”, note 42.
[90] Wetherow, note 25.
[91] Vela, “About Microboards”, note 32.
[92] See, e.g., the discussion in Bloomfield, note 17 at 43.
[93] Excerpt from sample Employment Agreement provided by an informant.
[94] Representation Agreement Act, R.S.B.C. 1996, Ch. 405 [RAA].
[95] HCAA, note 2, s. 20(1).
[96] There is also very little evidence as to how widely supported decision-making mechanisms generally are being used in Canada. See e.g., the discussion by Kohn et al., note 8 at 1130-1.
[97] Representatives from Vela have reportedly advised and/or provided information to groups in Australia, England, Northern Ireland, and plan to present information to the United Nations. See Vela, “Our Work”, note 30.
[98] Corporations Act, R.S.O. 1990, Ch. C.38.
[99] Not-for-Profit Corporations Act, 2010, S.O. 2010, Ch. 15.
[100] Society Act, R.S.B.C. 1996, Ch. 433.
[101] British Columbia Ministry of Finance, Societies Act White Paper: Draft Legislation with Annotations (August 2014), online: http://www.fin.gov.bc.ca/pld/fcsp/pdfs/SocietyActWhitePaper.pdf (last accessed 21 November, 2014).
[102] In Ontario applications for incorporation must include a Newly Updated Automated Name Search (NUANS) search to ensure the name is available, and ensure that the name complies with s. 13(1) of the Corporations Act, note 98 (i.e., that name not be “the same as or similar” to another organization in a way that would be “likely to deceive”). In British Columbia, the name must be approved and reserved in accordance with s. 3(6) of the Society Act, note 100 (which adopts the requirements of Division 2 Part 2 of the Business Corporations Act, S.B.C. 2002, Ch. 57) and the instructions provided by B.C. Registry Services: http://www.bcregistryservices.gov.bc.ca/bcreg/corppg/ reg46.page? (last accessed 21 November, 2014).
[103] As currently drafted the new Not-for-profit Corporations Act no longer requires “objects”, but the “articles of incorporation” (which replace the “letters patent” under the Business Corporations Act) must state the organization’s purpose: note 99, s. 8(1).
[104] For Ontario, see the Government’s Not-for-Profit Incorporator’s Handbook, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/nfpinc/Not_for_Profit_Incorporators_Handbook_EN.pdf (last accessed 21 November, 2014). For British Columbia, see BC Registry Services: Incorporating a Society in British Columbia, online: http://www. bcregistryservices.gov. bc.ca/bcreg/corppg/reg20.page (last accessed 19 November, 2014.]; See also: Gerald C. Scott et al., Society Guide for British Columbia (Vancouver: Community Legal Assistance Society, last updated July 2012).
[105] Corporations Act, note 98, s. 283; Society Act, note 100, s. 24(3).
[106] Society Act, note 100, s. 3.1.
[107] Schedule B to British Columbia’s Society Act, note 100, includes sample by-laws that can be adopted without amendment. Vela recommends that persons adopting its Microboard model follow this approach (Process for Incorporation of a Microboard under the Non-Profit Societies Act, unpublished document obtained from Vela).
[108] Society Act, s. 56; Corporations Act, s. 293.
[109] E.g., Society Act, note 100, ss. 36, 70; Corporations Act, note 98, ss. 299-302.
[110] For e.g., a society in British Columbia must file an annual report with the Registrar within 30 days of its annual general meeting (Society Act, note 100, s.68). Ontario requires that an “Initial Return” be filed with Service Ontario within 60 days of incorporation (and that a “Notice of Change” be filed anytime that information changes), and that an Annual Return – with information required by the Corporations Information Act – be filed with the Canada Revenue Agency. (See the Corporations Information Act, R.S.O. 1990, Ch. C. 39 ss. 2, 3(1), 4.)
[111] Canada Revenue Agency, T2 Corporation – Income Tax Guide 2013, p. 7. Online: http://www.cra-arc.gc.ca/E/pub/tg/t4012/t4012-13e.pdf (last accessed 21 November, 2014). Registered charities are an exception to this rule. However, an incorporated personal support network will not generally qualify as a registered charity given its purpose to support only one individual.
[112] Government of Canada, “Canada Business Ontario” online: http://www.cbo-eco.ca/en/index.cfm/starting /getting-started/not-for-profit-guide/#Taxation (last accessed 21 November, 2014); Canada Revenue Agency, Income Tax Guide to the Non-Profit Organization (NPO) Information Return, online: http://www.cra-arc.gc.ca/E/pub/tg/t4117/t4117-e.html (Last accessed 21 November, 2014).
[113] See Ontario’s Not-for-Profit Corporations Act, note 99, s. 21: “Subject to this Act, the directors of a corporation shall manage or supervise the management of the activities and affairs of the corporation.”
[114] Jane Burke-Robertson, “Primer for Directors of Not-for-Profit Corporations, ch. 2: Duties of Directors” (Ottawa: Industry Canada, 2002), online: http://www.ic.gc.ca/eic/site/cilp-pdci.nsf/eng/cl00692.html (last accessed 13 December, 2014) [Burke-Robertson, “Primer for Directors”].
[115] Burke-Robertson, “Primer for Directors”, note 114 at 3-4.
[116] Jane Burke-Robertson, “20 Questions Directors of Not-for-Profit Organizations Should ask about Fiduciary Duty” (The Canadian Institute of Chartered Accountants, 2009) online: http://www.cica.ca/focus-on-practice-areas/governance-strategy-and-risk/not-for-profit-director-series/20-questions-series/item12325.pdf (last accessed 13 December, 2014) at 20 [Burke-Robertson, “20 Questions”].
[117] Burke-Robertson, “Primer for Directors”, note 114 at 2; See also: Vela, “Liability: How to Manage your Risk, Director’s Liability: Plain Language Information” (last updated January 2013), online: http://www.velacanada. org/ principles-for-microboards (last accessed 13 December, 2014) [“Liability: How to Manage your Risk”].
[118] Not-for-Profit Corporations Act, note 99, s. 40(1).
[119] In Ontario, see the Not-for-Profit Corporations Act, note 99, s. 46(1); See also the sample Aroha Bylaw included in Bloomfield, note 17, Appendix 2, for an example of such a clause.
[120] E.g., Vela encourages Microboards to purchase insurance. (See Vela, “Liability: How to Manage your Risk”, note 117.)
[121] Burke-Robertson, “20 Questions”, note 116 at 20.
[122] Developmental Services Ontario has published a booklet with guidance on hiring support workers: DSO, “Hiring a Support Worker: A Guide for Ontarians with a Developmental Disability” (Ontario: Government of Ontario, 2013), online: Ontario.ca/bxh1 (last accessed 13 December, 2014).
[123] LCO, Discussion Paper, note 7 at 122.
[124] LCO, Discussion Paper, note 7 at 122
[125] LCO, Discussion Paper, note 7 at 122; Leslie Salzman, “Guardianship for persons with mental illness: A legal and appropriate alternative?” (2011) 4 St. Louis U. J. Health L. & Pol’y 279 at 307. On the other hand, a report from the Office of the Public Advocate in Victoria, Australia, expressly contemplates the implications for personal support network approaches to supported decision-making for responsibility: Barbara Carter, “Supported Decision-Making: Background and Discussion Paper” (Melbourne, Victoria: Office of the Public Advocate, November 2009) at 20 [Office of the Public Advocate, Victoria]: “Responsibility for decisions made may lie with the person with a disability or with the group, depending on the areas of decision and the arrangements agreed to”.
[126] LCO Discussion Paper, note 7, at 123; see also: Coalition on Alternatives to Guardianship, “The Right to Legal Capacity and Supported Decision Making for All: A Brief to the Law Commission of Ontario” (Toronto: October, 2014), at 2, 22.
[127] Kohn et al., note 8 at 1120.
[128] Michael Bach & Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity” (Prepared for the Law Commission of Ontario, October 2010); Coalition on Alternatives to Guardianship, note 126 at 15, 22.
[129] Bach & Kerzner, note 128; Coalition on Alternatives to Guardianship, note 126 at 4.
[130] Coalition on Alternatives to Guardianship, note 126 at 22.
[131] Kohn et al., note 8, at 1120.
[132] See the discussion in LCO, Discussion Paper, note 7 at 123 (discussing but neither adopting nor rejecting this element).
[133] Salzman, note 125 at 306.
[134] Office of the Public Advocate, Victoria, note 125 at 20.
[135] Office of the Public Advocate, Victoria, note 125 at 20.
[136] Kohn et al., note 8 at 1123.
[137] Kohn et al., note 8 at 1157.
[138] See Section IV C, “Person Directed Planning and Facilitation”.
[139] Bach & Kerzner, note 128 at 79-80.
[140] Bach & Kerzner, note 128 at 80.
[141] For example, Pedlar has discussed Microboards in terms of their potential for enhancing empowerment and control for supported persons. Pedlar, note 16 at 122.
[142] Kohn et al., note 8 at 1123.
[143] Bach & Kerzner, note 128; Coalition on Alternatives to Guardianship, note 126 at 4, 15, 22.
[144] Gerald Scott, revised by David Mossop, Karen Mountifield, James Pozer, Renee Matthews, “Society Guide for British Columbia” (Community Legal Assistance Society, last revised July 2012), online: http://d3n8a8pro7vhmx. cloudfront.net/clastest/pages/79/attachments/original/1401252010/Revised_Society_Guide_%282012%29.pdf?1401252010 (last accessed 17 December, 2014).
[145] Human Rights Code, R.S.O. 1990, Ch. H.19, ss. 1-9.
[146] Human Rights Code, note 145, ss. 9, 11; see also: Human Rights Commission, “Policy and guidelines on disability and the duty to accommodate”, online: http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate/3-prima-facie-discrimination-because-disability (last accessed 17 December, 2014) [HRC “The duty to Accommodate”].
[147] Human Rights Code, note 145, s. 11; HRC, “The Duty to Accommodate”, note 146.
[148] Human Rights Code, note 145, s. 17(1).
[149] Human Rights Code, note 145, s. 17(2).
[150] The LCO discusses this point in its Discussion Paper, note 7, at 40; Bach and Kerzner are two Ontario scholars who make this kind of accommodation argument: Bach & Kerzner, note 128.
[151] LCO, Discussion Paper, note 7 at 40.
[152] Ontario Human Rights Commission, Minds that Matter: Report on the Consultation on Human Rights, Mental Health and Addictions (Toronto: 2012), 92.
[153] HRC “The Duty to Accommodate”, note 146.
[154] To clarify, the duty to accommodate is not specific to a particular program or policy option – rather, it is a continuous obligation on those offering services, employment and the other areas listed in ss. 1-9 of the Code. And, some people have made stronger arguments than the one described in this section, to the effect that the duty to accommodate requires a system of supported decision making for persons who cannot meet the “understanding and appreciation” test (or Bach and Kerzner’s “legally independent” group). Where this kind of argument to be accepted, however, it would require the implementation of new decision-making laws (such as those recommended by the Coalition on Alternatives to Guardianship, note 126). The purpose of this section is to describe more modest policy opportunities for recognizing personal support networks, which would not require an overhaul of the law. Opportunities for deeper reforms are described in the sections below.
[155] SDA, note 3, ss. 22(3), 55(2).
[156] Gray v. Ontario, [2006] O.J. No. 266; 264 D.L.R. (4th) 717 (Ont. Div. Ct.), para. 47 [Gray].
[157] Gray, note 156 at para. 47.
[158] Coalition on Alternatives to Guardianship, note 126 at 4.
[159] Coalition on Alternatives to Guardianship, note 126 at 8-9.
[160] Gray, note 156 at para. 47.
[161] Kohn et al., note 8 at 1154-5.
[162] Coalition on Alternatives to Guardianship, note 126 at 18.
[163] LCO, Discussion Paper, note 7 at 125.
[164] Office of the Public Advocate, Victoria, note 125 at 24.
[165] Ministry of Community and Social Services, “Legislation”, online: http://www.mcss.gov.on.ca/en/mcss/ programs/developmental/improving/legislation.aspx (last accessed 18 December, 2014).
[166] Social Inclusion Act, note 62, s. 13(2).
[167] Social Inclusion Act, note 62, ss. 17(1)(2).
[168] Social Inclusion Act, note 62, s. 11(2) (italics added).
[169] DSO, Passport Guidelines, note 61.
[170] Wetherow, note 25.
[171] Vela, “How we can help you”, online: http://www.velacanada.org/ (last accessed 19 December, 2014).
[172] Pedlar et al., note 16 at 124.
[173] Pedlar et al. note 16 at 127.
[174] Those who request more than $6,000 in direct funding are in fact required to appoint a representative (or “agent” for purposes of the funding) under the RAA. See: Community Living BC, “Individualized Funding Policy” (June, 2009), online: http://www.communitylivingbc.ca/wp-content/uploads/Individualized-Funding-Policy.pdf (last accessed 18 December, 2014). Two informants also talked about the BC Ministry of Health’s Supports for Independent Living (CSIL) program. This program provides self-directed funding to eligible adults with physical disabilities wishing to hire their own home care supports. The program allows those needing assistance managing the funds to either create a society (effectively, a Microboard) or appoint a representative under the RAA. Both informants thought that the RAA provides the better route. One informant thought that more people in the CSIL program are in fact choosing this latter route. (The other did not comment on rates of usage.)
[175] ICOF, note 44.
[176] Wetherow, note 25.
[177] Kohn et al., note 8 at 1137.
[178] See e.g., The Coalition on Alternatives to Guardianship, note 126; Bach & Kerzner, note 128.
[179] LCO, Discussion Paper, note 7 at 133.
[180] Andrew’s Bridges, note 10.
[181] Terry Carney, “Participation and Services Access Rights for People with Intellectual Disability: A Role for Law?” (2013) 38 J. Intell. & Devel. Disabil. 59, 62; Kohn et al., note 8 at 1127.
[182] Kohn et al., note 8 at 1155.
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