[*] The authors wish to acknowledge a number of individuals and associations who provided background and assistance in the development of this project:  Mary Marrone (Income Security Advocacy Centre and the ODSP Action Coalition, Joan Gilmour, Marcia Rioux, Ryan Peck (HIV and AIDS Legal Clinic Ontario) and theround table participants from Community Living York South and the Centre for Independent Living Toronto.

 

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[1] Human Resources Development Canada (HRDC), Defining Disability: A Complex Issue (Ottawa: Office of Disability Issues, 2003) at 2 notes that it may be neither possible nor desirable to develop a uniform definition of disability as various programs serve a different purpose and restrict eligibility accordingly. See also Social Development Canada, Advancing the Inclusion of Persons with Disabilities, 2004 (Ottawa: Social Development Canada, 2004) at 12.

 

[2] See Law Commission of Ontario, The Law as it Affects Persons with Disabilities: Background Paper (Toronto: Law Commission of Ontario, 2010) at 7 in which the following six principles are adopted, on preliminary basis:  1. Respect for the dignity and worth of persons with disabilities; 2. Autonomy and independence; 3. Inclusion and participation; 4. Equality and non-discrimination; 5. Recognition that humans vary infinitely along a spectrum of abilities and that society must accommodate these variances into its mainstream; and 6. Respect for the diversity among persons with disabilities in the experience of disability. (hereinafter “the principles”). [Law Commission of Ontario (2010)]

[3] The Ontario Disability Support Plan is established and governed by the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Schedule B [ODSPA]

[4] Law Commission of Ontario (2010), note 2.

[5] An extensive review of this shift in conceptualization and its impact on legal definitions of disability is found in Law Commission of Ontario, The Law as it Affects Persons with Disabilities: Preliminary Consultation Paper: Approaches to Defining Disability (Toronto: Law Commission of Ontario, 2009) [Law Commission of Ontario (2009)].

[6] See generally Mike Oliver, Understanding Disability: From Theory to Practice (London:  Macmillan, 1996); Marcia Rioux, “On Second Thought: Constructing Knowledge, Law, Disability and Inequality” in S.Herr, L. Gostin and H. Koh,eds., The Human Rights of Persons with Intellectual Disabilities:  Different but Equal (Oxford:  Oxford University Press, 2003) 287 [Rioux (2003)]; Colin Barnes and  Geoffrey Mercer, “Disability, Work and Welfare: Challenging the Social Exclusion of Disabled People” (2005) 19 Work Employment and Society 527 [Barnes and Mercer]; Colin Barnes, Geof Mercer & Tom Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge, UK: Polity Press, 1999). 

[7] Rioux (2003), note 6 at 290. 

[8] Michael J. Prince Absent Citizens: Disability Politics and Policy in Canada (Toronto: University of Toronto Press, 2009)at 16 [Prince (2009)].

[9] Barnes and Mercer, note 6; Rioux (2003), note 6.

[10] Rioux (2003), note 6; Law Commission of Ontario (2009), note 5 divides the social model into the ‘social approach’ and the ‘human rights approach’. 

[11]  Catherine Frazee, Joan Gilmour and Roxanne Mykitiuk “Now you See Her, Now you Don’t: How Law Shapes Disabled Women’s Experience of the Exposure, Surveillance and Assessment in the Clinical Encounter” in Dianne Pothier and Richard Devlin, eds., Critical Disability Theory: Essays in Philosophy, Politics and Law (Vancouver:  University of British Columbia Press, 2006) 129 [Frazee, Gilmour and  Mykitiuk]; Sally French, “Disability Impairment or Something in Between?” in John Swain, Vic Finkelstein, Sally French and Mike Oliver, Disabling Barriers – Enabling Environments (London, Sage, 1993) 17; Carol Thomas, “How is Disability Understood? An Examination of Sociological Approaches” (2004) 19 Disability and Society 225.

[12] Joan Gilmour, “Retrenchment not Reform Using Law and Policy to Restrict the Entitlement of Women with Disabilities to Social Assistance” in S. Gavigan and D. Chunn,eds., The Legal Tender of Gender: Historical and Contemporary Perspectives on Welfare Law, State Policies and the Regulation of Women’s Poverty (Oxford: Hart Publishing, in press) [Gilmour in press];  Frazee, Gilmour and  Mykitiuk, note 11.

[13] Convention on the Rights of Persons with Disabilities, 30 March 2007, U.N. Doc. A/61/611, (entered into force 3 May, 2008) [ CRPD]

[14] CPRD, note 13 at Preamble.

[15] Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

[16] Human Rights Code. R.S.O.1990, c. H.19 [Human Rights Code]

[17] CRPD, note 13 at Preamble.

[18] Federal/Provincial/Territorial Ministers Responsible for Social Services, Canada, In Unison: A Canadian Approach to Disability Issues, (Hull, Quebec: Human Resources Development Canada, 2000) [In Unison].

[19] In Unison, note 18. 

[20] CRPD, note 13 at Article 3.

[21] Law Commission of Ontario (2010), note 2 at 4. Note that in its report released in June, 2010, ,  “Recommendations for an Ontario Income Security Review”, the Social Assistance Review Advisory Council  identified a number of similar principles  that it recommends serve as the  outcomes for the measurement of  performance of the province’s income system:
            1. Autonomy, responsibility and dignity of recipients
            2. Income for all Ontarians that at least meets a liveable income standard
             3. Human capacity development and its optimal employment to contribute to the economic
                 prosperity of Ontarians
             4. Public and fiscal sustainability
             5. Fairness, equity and transparency
             6. Empowerment of recipients to improve their economic circumstances.
See Social Assistance Review Advisory Council, “Recommendations for an Ontario Income Security Review: Report of the Ontario Social Assistance Review Advisory Council” (May 2010), online: Ministry of Community and Social Services,<http://www.mcss.gov.on.ca/documents/en/mcss/publications/social/sarac%20report/SARAC%20Report%20-%20FINAL.pdf> at 18 [Social Assistance Review Advisory Council].

[22] R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483at para. 21, McLachlin C.J. and Abella, J. [Kapp]

[23] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 54, La Forest J. [Eldridge].

[24] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 171, McIntyre J. [Andrews]. Note that McIntyre J. dissented, in part, but not on this issue.

[25] Michael Prince, “A National Strategy for Disability Supports: Where is the Government of Canada in this Social Project?”, Presentation for the Seminar Series School of Rehabilitation Therapy, Faculty of Health Sciences L.D. Acton Building, Queen’s University (March 10, 2005), online:  University of Victoria, <http://web.uvic.ca/spp/documents/nationalstratdisa.pdf> at 4 [Prince (2005)].

[26] Prince (2005), note 25 at 4.

27 Shier et al., “Barriers to Employment as Experienced by Disabled People: a qualitative analysis in Calgary and Regina, Canada” (2006) 21 Disability & Society 2 [Shier et al.]; Lyn Jongbloed, “Disability Policy in Canada: an Overview” (2003) 13 Journal of Disability Policy Studies 203 [Jongbloed (2003)]; V.A. Crooks & V. Chouinard, “Because they have all the power and I have none: state restructuring of income and employment supports and disabled women’s lives in Ontario, Canada” (2005) 20 Disability & Society 19 [Crooks & Chouinard (2005)].

[28] Jongbloed (2003), note 27 at 204; see also Gilmour (in press), note 12 and Shier et al., note 27.

[29] Prince (2009), note 8 at 16.

[30] Gilmour (in press), note 12; Crooks & Chouinard (2005), note 27, at 20 argue that governments have engaged in an “actively deliberate political retreat from prior commitments to developing more socially and spatially just societies; societies which protect everyone’s rights and well-being at least at some minimally collectively acceptable level.” 

 

[31] Falkiner v. Director, Income Maintenance Branch, Ministry of Community and Social Services & Attorney General of Ontario [2002], 50 O.R. (3d) 481 (C.A.), leave to appeal to S.C.C. granted, [2004] SCCB 130, the Attorney General of Ontario withdrew its appeal. Case cited in Gilmour (in press), note 12.

[32] Prince (2005), note 25 at 3.

 

[33] Prince (2005), note 25 at 3.

 

[34] Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241, Lamer C.J.C at para. 67. 

 

[35] Gilmour (in press), note 12 at 201, speaking about In Unison, note 18.

[36] Rick August, Paved with Good Intentions: The Failure of Passive Disability Policy in Canada
(April 2009), online: Caledon Institute <http://www.caledoninst.org/Publications/PDF/763ENG.pdf>, who argues that passive cash transfers reinforce unemployability [August].  See also Shier et al., note