A.      Introduction

This Chapter reviews Ontario’s commitments to persons with mental disabilities beyond the statutory provisions of the SDA. Ontario’s commitments are rooted in foundational human rights documents that are important to formulating options for reform because they shape and constrain Ontario’s laws and policies. The most important of the domestic laws are the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code (Code), and the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The most significant international document is the Convention on the Rights of Persons with Disabilities (CRPD). They are very briefly described below. 

Also described below are service providers that the Government of Ontario has mandated to administer supports to persons with mental disabilities. There are many types of government assistance. This Chapter focuses on select service providers who assist adults with diminished capacity for financial management, either as a necessary consequence of supports, such as ODSP payments, or as their core business. The service providers reviewed here are the OPGT, Consent and Capacity Board, Ontario Disability Support Program and the Community and Developmental Services Branch of the Ministry of Community and Social Services (MCSS). Throughout the discussion paper, the LCO considers the potential roles that existing service providers could play as a cost-effective means to build on what has been done.

 

B.    Foundational Human Rights Documents

1.     Canadian Charter of Rights and Freedoms
 

Ontario’s laws affecting adults with mental disabilities are subject to the Charter, which guarantees rights and fundamental freedoms under the Constitution Act, 1867. Section 15 of the Charter guarantees the right to equality before and under the law, and to equal protection and benefit of the law, without discrimination based on, among other grounds, age and mental disability. Section 15(2) protects laws, programs or activities that have as their object the improvement of conditions for individuals or groups that have experienced disadvantage on the same grounds. The Charter’s equality rights provisions have been very important in advancing the rights of persons with disabilities, articulating the right to inclusion and participation, and advancing the principle of accommodation.      

The Charter applies to government activity, including legislation and policies, and requires Ontario to provide reasonable accommodations to address inequality for persons with mental disabilities up to the point of undue hardship. The provision of these reasonable accommodations must be individualized and tailored to a person’s special needs. The Supreme Court of Canada has recognized that the duty to accommodate can include positive measures to overcome barriers to the equal access to benefits. However, the government’s obligation may not always include the creation of new benefits, which is different from ensuring that benefits that have already been awarded are accessed in a non-discriminatory manner.[231] Lana Kerzner has argued that the Charter could be interpreted as guaranteeing rights to accommodations and supports for adults who have diminished capacity to make decisions. However, issues of capacity have not yet been considered in the Charter jurisprudence.[232]  

 

2.     Ontario Human Rights Code  

The Ontario Human Rights Code protects persons from discrimination in the public and private sectors. The Ontario Human Rights Commission’s (OHRC) Policy and Guidelines on Disability and the Duty to Accommodate sets standards for how the Code should be interpreted for persons with disabilities.[233] It provides guidance on the duty to accommodate to individuals, employers, service providers and policy-makers based on principles of dignity, individualized accommodation, and integration and full participation.[234]  The duty to accommodate under the Code only applies to the point of undue hardship. It clearly includes “positive steps needed to ensure equal participation for those who have experienced historical disadvantage and exclusion from society’s benefits”.[235] How the Code impacts issues of capacity and legal representation is, however, unclear. 

The OHRC is developing a policy on human rights, mental health and addictions, and has released a report of findings on its initial province-wide consultations, Minds that Matter: Report on the Consultation on Human Rights, Mental Health and Addictions.[236] Among other topics, the report addresses how income supports, such as ODSP, can create barriers for persons with psychiatric disabilities as a result of their design, policies, procedures, and decision-making processes. The types of accommodations that the OHRC suggests might be required to respond to these barriers include “facilitating or providing support for decision-making”.[237] No further direction is provided as to how this might be achieved. 

The Human Rights Tribunal of Ontario has dealt with issues of capacity and representation in the context of its proceedings. The decision in Kacan v. Ontario Public Service Employees Union,[238] affirms that a claimant may personally appoint an “applicant” to act on his or her behalf as a less intrusive alternative to a litigation guardian. The HRTO noted that the purpose of these appointments is to “promote accessibility”, and made reference to principles of self-determination, minimal interference, autonomy and dignity in discussing concepts of capacity.[239] The HRTO also made important findings about the roles and responsibilities of representatives and safeguards against abuse. With respect to safeguards, the HRTO stated that the existence of a relationship of “power-dependency” places a fiduciary duty on the representative, and that the HRTO can exercise its powers to remove him or her where there is a conflict of interest or to ensure competent representation.[240] In terms of the roles and responsibilities of a representative, it held,

Where appropriate, decisions should be made by the applicant together with the claimant and with respect for his or her wishes…However, the section provides for a general delegation of the power to conduct the application, and the person bringing the application on the claimant’s behalf takes on the obligations of the applicant under the Tribunal’s process.[241]  

 

3.     Accessibility for Ontarians with Disabilities Act

The purpose of the AODA is to direct the development, implementation and enforcement of accessibility standards in order to achieve accessibility for Ontarians with disabilities.[242] The AODA aims to systematically remove barriers for persons with disabilities with respect to goods, services, facilities, accommodations, employment, buildings, structures and premises by 2025. The AODA does not apply to federally regulated organizations, such as banks. However, it does apply to provincially regulated financial institutions.[243] The AODA applies to the Government of Ontario. 

The relationship of the AODA to issues of capacity and legal representation is not yet known. However, financial literacy supports could be important to adults with diminished capacity seeking to access the RDSP, and the Information and Communication Standards require that, upon request, organizations arrange for the provision of information in accessible formats and communication supports for persons with disabilities.[244] The Accessibility Standards for Customer Service also require service providers to use reasonable efforts to ensure that policies, practices and procedures are consistent with core principles of dignity, independence, integration and equal opportunity.[245]

 

4.     Convention on the Rights of Persons with Disabilities 

The CRPD came into force in 2008 as the first international human rights treaty to comprehensively address the rights of persons with disabilities.[246] The purpose of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.[247] This purpose guides the remainder of the CRPD, which takes a distinct approach to eliminating discrimination according to the social model of disability and human rights duty to accommodate.[248] 

Canada has ratified the CRPD and, subject to the Declaration and Reservation it has submitted, Canada is bound to “undertake…to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the [CRPD]”.[249] There was extensive collaboration between Canada’s federal, and provincial and territorial jurisdictions during the CRPD negotiations and the Declaration and Reservation may clarify how the treaty could be implemented in Ontario. In Canada, the implementation of international treaties is complicated by the division of powers between the federal and provincial or territorial governments. Whereas the federal government negotiates international agreements on behalf of the country as a whole, the provinces and territories are often charged with the task of implementing them. As noted above, the issue of capacity traditionally falls within the jurisdiction of the provinces and territories.[250] Canada’s Declaration and Reservation states that it interprets the CRPD “as accommodating the situation of federal states where the implementation of the Convention will occur at more than one level of government and through a variety of mechanisms, including existing ones”.[251] 

The General Principles of the CRPD recognize a nuanced consideration of social needs and values that respect “inherent dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons” as well as “participation and inclusion in society”, “human diversity”, and “accessibility” through the “elimination of obstacles and barriers”.[252] In implementing those principles, governments are required to use “universal design” as well as “meet the specific needs of a person with disabilities” and “ensure that reasonable accommodation is provided”.[253] The CRPD also includes positive rights to the enjoyment of liberty; “to live in the community, with equal choices to others”; and to develop “mental and physical abilities, to their fullest potential”.[254]

The term “legal capacity” is used explicitly in the CPRD. Article 12 guarantees persons with disabilities the enjoyment of “legal capacity on an equal basis with other in all aspects of life”.[255] However, legal capacity is not defined in the CRPD and the scope of its guarantee was one of the more contentious issues that was negotiated. Member States were unable to reach agreement on what the term means,[256] and their Declarations and Reservations submitted since the treaty’s adoption show that governments intend to implement Article 12 in different ways. 

The debates surrounding Article 12 merit a full review that cannot be provided here. The main point of dissent concerns whether the CRPD recognizes an inalienable and non-derogable right for persons with disabilities to be considered legally capable at all times, or whether it protects them from discriminatory determinations of incapacity based on disability status. The consequences arising from these two interpretations would be quite different for the Ontario government. In the first instance, incapacity could not be used as a trigger to protect vulnerable persons from the risk of harm and substitute decision-making would be eliminated. A person would retain the ultimate legal authority to make decisions in all circumstances and the receipt of supports would be premised on consent.[257] In the second instance, governments would be