ENDNOTES2018-12-13T17:00:05+00:00

[1] Tanya D. Whitehead and Joseph B. Hughey, Exploring Self-Advocacy From A Social Power Perspective (New York: Nova Science Publishers, Inc., 2004) at 5.  Whitehead and Hughey assert that public policies and laws reflect dominant worldviews, even though the underlying values may not be known by the people designing and implementing the policies and programs.

[2] Edgar-Andre Montigny, Foisted Upon the Government? State Responsibilities, Family Obligations and the Care of the Dependent Aged in Late Nineteenth-Century Ontario (Montreal & Kingston: McGill-Queen’s University Press, 1997) at 63-65.

[3] Ivan Brown and Maire Percy, Developmental Disabilities in Ontario (Canada: Ontario Association on Developmental Disabilities, 2003) at 3.

[4] Ontario Ministry of Community and Social Services, “The Words We Used: 1850s-1940s”, online: Ontario Ministry of Community and Social Services History of Developmental Services <http://www.mcss.gov.on.ca/en/dshistory/language/1850s_1940s.aspx> (last accessed: May 26, 2010) [The Words We Used].

[5] The Words We Used, note 4.

[6] The Words We Used, note 4.

[7] Ontario Ministry of Community and Social Services, “The Constitutional Act of 1791”, online: Ontario Ministry of Community and Social Services History of Developmental Services <http://www.mcss.gov.on.ca/en/dshistory/reasons/constitutional_act.aspx> (last accessed: May 26, 2010) [The Constitutional Act of 1791].

[8] Brown and Percy, note 3 at 6.

[9] The Label Game, “Housing: Communities and Institutions”, online: The Label Game <http://www.labelgame.org/housing.html#five> (last accessed: May 25, 2010); Brown and Percy, note 3 at 2-3.

[10] Ivan Brown, “The Time is Right for Closing Institutions” (2004) 11:2 Journal on Developmental Disabilities vii at viii.

[11] Brown and Percy, note 3 at 7 and 11.

[12] Brown and Percy, note 3 at 11.

[13] One such documentary is The Freedom Tour, a brave and often chilling documentary about institutionalization by 16 members of People First Canada. The goal of the film was to portray the lives lived and lost in institutions in order to bring them to an end. People First of Canada, “The Freedom Tour”, DVD: (Canada: National Film Board’s Filmmakers Assistance Program and Human Resources and Skills Development Canada, 2008) [The Freedom Tour].

[14] The Freedom Tour, note 13.

[15] The Freedom Tour, note 13.

[16] The Freedom Tour, note 13.

[17] The Freedom Tour, note 13.

[18] The Freedom Tour, note 13.

[19] Brown, note 10 at ix.

[20] The Freedom Tour, note 13.

[21] The Freedom Tour, note 13.

[22] Brown and Percy, note 3 at 7.

[23] Brown and Percy, note 3 at 8-9.

[24] Brown and Percy, note 3 at 11.

[25] Brown and Percy, note 3 at 12.

[26] Brown and Percy, note 3 at 36-37, 45.

[27] Tess C. Sheldon, “Programs and Services for Persons with Intellectual Disabilities” (November 2003), online: ARCH Disability Law Centre <http://www.archdsabilitylaw.ca/sites/all/files/08_intellectualDisabilities.pdf> provides additional details regarding the framework of services provided for under the Developmental Services Act.

[28] Developmental Services Act, R.R.O. 1990, Reg. 272.

[29] Brown and Percy, note 3 at 33-34.

[30] Developmental Services Act, R.S.O. 1990, c. D.11, s. 2(2).

[31] Sheldon, note 27 at 2-3.

[32] Community Living Ontario, “Mission, Vision & Goals”, online: Community Living Ontario <http://www.communitylivingontario.ca/about-us/mission-vision-goals website – mission and values> (last accessed: 28 June 2010).

 

[33] People First of Ontario, “The Goals of People First of Ontario”. online: People First of Ontario <http://www.peoplefirstontario.com/> (last accessed: 28 June 2010).

[34] Lana Kerzner and Phyllis Gordon, “Discussion Paper Feedback: Transforming Services in Ontario for People who have a Developmental Disability” (December 2004) at 5, online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/sites/all/files/Developmental_Services.pdf> (last accessed: 21 May 2010).

[35] Ontario Ministry of Community and Social Services, “The Evolution of Government Policy and Legislation: 2000 and Beyond”, online: Ontario Ministry of Community and Social Services History of Developmental Services <http://www.mcss.gov.on.ca/en/dshistory/legislation/2000s_beyond.aspx> (last accessed: 26 June 2010).

[36] Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, S.O. 2008, c.14 [Social Inclusion Act].

[37] Karen R. Fisher, Sarah Parker and Christiane Purcal, “Measuring the Effectiveness of New Approaches to Housing Support Policy for Persons with Disabilities” (2009) 68:3 The Australian Journal of Public Administration 319 at 320.

[38] Ontario, Legislative Assembly, Official Reports of Debates (Hansard) 47 (May 26, 2008) at 2042–2043 (Hon. Steve Peters).

[39] Social Inclusion Act, note 36 at s. 4.

[40] Social Inclusion Act, note 36 at s. 4.

[41] Social Inclusion Act, note 36 at s. 4.

[42]Social Inclusion Act, note 36 at s. 3.

[43] Social Inclusion Act, note 36 at s. 14.

[44] Services and Supports to Promote The Social Inclusion of Persons With Developmental Disabilities Act, 2008: Quality Assurance Measures at ss. 5(1)2, 9, and 18(4)(e) [Draft Regulation on Quality Assurance].

[45] Social Inclusion Act, note 36 at s. 24.

[46] The Social Inclusion Act empowers the Ministry of Community and Social Services to make regulations regarding reviewing determinations of eligibility for services, quality assurance measures, reporting requirements to the Minister and the maintenance of financial records. The Lieutenant Governor in Council may make regulations regarding definitions in the Social Inclusion Act, funding agreements between the Minister and service agencies, direct funding, reviews of orders regarding quality assurance measures, composition and operation of service agencies, services provided by service agencies, training for staff and volunteers of service agencies, practices and procedures related to complaints received from people with disabilities, and other matters. Directors appointed by the Minister may issue policy directives regarding performance standards and measures for service agencies, procedures to be followed by application entities when determining eligibility for services and administering direct funding, and other matters. See Social Inclusion Act, note 36 at ss. 7, 37 and 38.

[47] Draft Regulation on Quality Assurance, note 44 at s. 3(1).

[48] For example, the Draft Regulation on Quality Assurance requires service providers to create a mission statement that promotes social inclusion and individualized approaches to meeting the needs of people with intellectual disabilities. This mission statement must be reviewed with people who receive services and supports and their families when they begin receiving services. See Draft Regulation on Quality Assurance, note 44 at s. 4(1).

[49] Social Inclusion Act, note 36 at s. 25.

[50] Social Inclusion Act, note 36 at ss. 27-28.

[51] Social Inclusion Act, note 36 at s. 28(6).

[52] Social Inclusion Act, note 36 at s. 30(7).

[53] Social Inclusion Act, note 36 at s. 31.

[54] Social Inclusion Act, note 36 at ss. 32-33.

[55] Whitehead and Hughey, note 1 at 20.

[56] M. Wullink, H. Widdershoven, L. van Schrojenstein, J. Metsemakers, and G.-J. Dinant, “Autonomy in relation to health among people with an intellectual disability: a literature review” (2009) 53:9 Journal of Intellectual Disability Research 816 at 816.

[57] Tim Stainton, “Can Advocacy Eliminate Abuse? Critical Components of an Effective Advocacy System” in Disability-Life-Dignity and Montreal Consortium for Human Rights Advocacy Training, McGill University, School of Social Work, Speaking Out Against Abuse in Institutions: Advocating for the Rights of People with Disabilities: Conference Proceedings, December 1, 1995 (North York, Ontario: The Roeher Institute, 1997) at 96 [Speaking Out].

[58] Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795 (CanLII) at para. 16.

[59] The Freedom Tour, note 13; Christina Doody, “Multi-element behaviour support as a model for the delivery of a human rights based approach for working with people with intellectual disabilities and behaviours that challenge” (2009) British Journal of Learning Disabilities 293 at 293.

[60] Doody, note 59 at 297.

[61] Stanley S. Herr and Germain Weber, “Prospects for Ensuring Rights, Quality Supports, and a Good Old Age” in Stanley S. Herr and Germain Weber, eds., Aging, Rights and Quality of Life: Prospects for Older People with Developmental Disabilities (Baltimore, Maryland: Paul H. Brookes Publishing Co., 1999) 343 at 346.

[62] Leanne Dowse, “‘Some people are never going to be able to do that’: Challenges for people with intellectual disability in the 21st century” (2009) 24:5 Disability and Society 571 at 572.

[63] Brown and Percy, note 3 at 52.

[64] Dorothy M. Griffiths, Frances Owen, Leanne Gosse, Karen Stoner, Christine Y. Tardif, Shelley Watson, Carol Sales and Barbara Vyrostko, “Human Rights and Persons with Intellectual Disabilities: An Action-Research Approach for Community-Based Organizational Self-Evaluation” (2003) 10:2 Journal on Developmental Disabilities 25.

[65] Donato Tarulli, Christine Y. Tardif, Dorothy Griffiths, Frances Owen, Glenys McQueen-Fuentes, Maurice A. Feldman, Carol Sales, and Karen Stoner, “Human Rights and Persons with Intellectual Disabilities: Historical, Pedagogical, and Philosophical Considerations” (Fall 2004) 5 Encounters on Education 161 at 165-166.

[66] Marcia Rioux and Anne Carbert, “Human Rights and Disability: The International Context” (2003) 10:2 Journal on Developmental Disabilities 1 at 11. 

[67] Christopher Jochnick, “Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights” (1999) 21:1 Human Rights Quarterly 56 at 59.

[68] Alicia Ely Yamin, “Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We Should Care” (2008) 10:1 Health and Human Rights 45 at 49.

[69] While not elaborated on in this paper, a significant implication of a human rights-based approach is the securing of entitlements for social and economic integration. To date disability policies have been largely reactive and focused on meeting the special needs of a distinct minority group. Human rights frameworks “normalize” disability issues, thereby moving them into wider debates about social policy and human development. This move may lead to a sustained development of equality in all areas of social life, not only with respect to disability issues. See Patricia Noonan Walsh, “Keynote Review: Human rights, development and disability” (2003) 2:1 Journal of Law and Equality 1; Jerome E. Bickenbach, “Disability and Equality” (2003) 2:1 Journal of Law and Equality 7.

[70] Thomas Pogge (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (New York: Oxford University Press and UNESCO, 2007) at 4.

[71] Lawrence O. Gostin. “Beyond Moral Claims: A Human Rights Approach in Mental Health” (2001) 10 Cambridge Quarterly of Healthcare Ethics 264 at 264.

[72] Whitehead and Hughey, note 1 at 17.

[73] Sussannah Mayhew, Megal Douthwaite and Michael Hammer, “Balancing Protection and Pragmatism: A Framework for NGO Accountability in Rights-Based Approaches” (2006) 9:2 Health and Human Rights 180 at 183.

[74] Damon A. Young and Ruth Quibell, “Why Rights are Never Enough: Rights, Intellectual Disability and Understanding” (2000) 15:5 Disability and Society 747 at 749-751.

[75] Young and Quibell, note 74 at 749-751.

[76] Terry Carney, “‘Righting’ Wrongs for the Aged: a Bill of Rights?” (2008) 16:2 Australian Journal on Ageing 73 at 76.

[77] Carney, note 76 at 76-77.

[78] Young and Quibell, note 74 at 753; Dowse, note 62 at 577-578 provides another critique of empowerment, arguing that it focuses on acquiring skills and accessing resources and is in danger of becoming just another intervention used by service providers.

[79] Such supports may include disability accommodations and/or supported-decision making.

[80] Convention on the Rights of Persons with Disabilities, UN GAOR, 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006), online: United Nations Enable <http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf> (last accessed: 25 June 2010) [CRPD]; United Nations General Assembly, News Release/Communiqué, “General Assembly Adopts Groundbreaking Convention, Optional Protocol on rights of Persons with Disabilities” (13 December 2006), online: United Nations <http://www.un.org/News/Press/docs/2006/ga10554.doc.htm> (last accessed: 21 May 2010).

[81] United Nations Enable, “Timeline of Convention Events”, online: United Nations Enable <http://www.un.org/disabilities/default.asp?navid=22&pid=153> (last accessed: 21 May 2010).

[82] Some examples of international instruments that have provided for rights for people with disabilities include the World Programme of Action Concerning Disabled Persons, the Inter-American Convention on the Elimination of All Forms of Discrimination against People with Disabilities, and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. There have also been international instruments dealing specifically with the rights of people with intellectual disabilities, such as the Montreal Declaration on Intellectual Disabilities. For a detailed history of the development of a rights-based approach to disability at international level, see Rioux and Carbert, note 66 at 1-13; see also Marcia H. Rioux, Bengt Lindqvist and Anne Carbert, “International Human Rights and Intellectual Disability” (2006) Intellectual and Developmental Disabilities: International Edition 59 at 59-67.

[83] CRPD, note 80 at art. 1.

[84] Office of the United Nations High Commissioner for Human Rights, “General Assembly Ad Hoc Committee, 8th Session: Statement by Louise Arbour, UN High Commissioner for Human Rights” (5 December 2006), online: United Nations High Commissioner for Human Rights <http://www2.ohchr.org/English/issues/disability/docs/statementhcdec06.doc> (last accessed: 21 May 2010); Tony Ward and Claire Stewart, “Putting Human Rights into Practice with People with Intellectual Disability” (2008) 20:3 Journal of Developmental and Physical Disabilities 297 at 305.

[85] Jonathan Kenneth Burns, “Mental Health and Inequity: A Human Rights Approach to Inequity, Discrimination and Mental Disability” (2009) 11:2 Critical Concepts 19 at 20.

[86] CRPD, note 80 at art. 3.

[87] CRPD, note 80 at art. 19.

[88] By General Assembly resolution 56/168, the United Nations established the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. This Committee was charged with drafting what became the CRPD. The resolution also invited states and non-governmental organizations that were not members of the Committee to make submissions on the Committee’s work. Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, GA Res. 56/168, UN GAOR, 56th Sess., UN Doc. A/56/PV.88 (2001), online: United Nations <http://www.un.org/esa/socdev/enable/disA56168e1.htm> (last accessed: 21 May 2010).

[89] Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 7th Sess., vol. 8, no. 5, Daily summary of discussion at the seventh session, UN Convention on the Human Rights of People with Disabilities (2006), online: United Nations Enable <http://www.un.org/esa/socdev/enable/rights/ahc7sum20jan.htm> (last accessed: 21 May 2010).

[90] Alicia Ely Yamin and Eric Rosenthal, “Out of the Shadows: Using Human Rights Approaches to Secure Dignity and Well-being for People with Mental Disabilities” (2005) 2:4 Public Library of Science 296 at 296-298.

[91] United Nations Treaty Collection, “Convention on the Rights of Persons with Disabilities” (13 December 2006), online: United Nations Treaty Collection <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en#EndDec> (last accessed: 21 May 2010). Canada made the following declaration and reservation upon ratification: Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law. To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada  reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal. Canada interprets Article 33 (2) 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.

[92] Armand de Mestral and Evan Fox-Decent, “Rethinking the Relationship Between International and Domestic Law” (2008) 53 McGill L.J. 573 at para. 48.

[93] Canada employs a “dualist” model, meaning that once a treaty has been signed and ratified by the federal executive it still requires incorporation into domestic law to be enforceable at the national level. Due to the nature of Canadian federalism, responsibility for implementing the CRPD falls to both the federal and provincial/territorial governments. The federal government can legislate to implement the CRPD in areas that fall within federal jurisdiction, but cannot do so in areas within provincial/territorial jurisdiction. Human rights obligations with respect to education fall squarely within provincial and territorial jurisdiction. It is, therefore, provincial and territorial governments that have the legal authority to create new laws or policies to implement the obligations relating to education as set out in the CRPD.

[94] de Mestral, note 92 at paras. 48-49; see also Canada, Parliament, “Canada’s Approach to the Treaty-Making Process” by Laura Barnett, Legal and Legislative Affairs Division, PRB 08-45E (24 November 2008).

[95] Several clues point to the conclusion that this is the approach being taken by the Canadian government to implementation of the CRPD. Between signing the CRPD in March 2007 and ratifying it two years later, the federal government sought the views of the provinces and territories on the extent to which provincial and territorial laws conform to the treaty. Upon ratifying the CRPD the federal government announced that it had done so with the full support of the provincial and territorial governments. To date, no new legislation has been enacted to implement the CRPD into Canadian domestic law. Rob Nicholson, Minister of Justice and Attorney General of Canada, stated that upon ratification, the CRPD will complement domestic laws, implying that the enactment of new legislation is unlikely. See: Foreign Affairs and International Trade Canada, News Release, No. 368, “Government of Canada Tables Convention on Rights of Persons with Disabilities” (3 December 2009), online: Foreign Affairs and International Trade Canada <http://www.international.gc.ca/media/aff/news-communiques/2009/368.aspx?lang=eng> (last accessed: 21 May 2010);  Foreign Affairs and International Trade Canada, News Release, No. 99, “Canada Ratifies UN Convention on the Rights of Persons with Disabilities” (11 March 2010), online: Foreign Affairs and International Trade Canada  <http://www.international.gc.ca/media/aff/news-communiques/2010/99.aspx?lang=eng> (last accessed: 21 May 2010).

[96] Elisabeth Eid and Hoori Hamboyan, “Implementation by Canada of its International Human Rights Treaty Obligations: Making Sense out of the Nonsensical” in Oonagh E. Fitzgerald et al. eds., The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law, 2006) at ch. 13.

[97] The fact that the provision of developmental services falls within provincial and territorial jurisdiction does not detract from this implication, since the federal government ratified the CRPD after consulting with and receiving full support from provincial and territorial governments.

[98] 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 [Charter].

 

[99] Human Rights Code, R.S.O. 1990, c. H.19, s. 1.

[100] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge] at para. 56.

[101] M. David Lepofsky, “Discussion: The Charter’s Guarantee of Equality to People with Disabilities – How Well is it Working?” (1998) 16 Windsor Year Book of Access to Justice 155 at 171-172.

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

[103] Ontario Human Rights Commission, “Policy and guidelines on disability and the duty to accommodate” (23 November 200, revised December 2009) at 4, online: Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2/pdf> (last accessed: 29 June 2010) [OHRC Policy and guidelines].

[104] OHRC Policy and guidelines, note 103.

[105] Council of Canadians with Disabiliites v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15 at para. 110.

[106] OHRC Policy and guidelines, note 103 at 10.

[107] Eaton, note 102 at paras. 66-67; Eldridge, note 100 at para. 65; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54 at paras. 89 and 93.

[108] OHRC Policy and guidelines, note 103 at 10.

[109] R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41 at para. 21.

[110] Kapp, note 109 at paras. 21-23.

[111] For a detailed discussion of the potential for s. 7 to be used to advance claims of social justice, see James R. Hendry, “Section 7 and Social Justice” (Paper presented to the Ontario Bar Association 8th Annual Charter Conference, 18 September 2009).

 

[112]  Charter, note 98 at s. 7.

[113] United Nations Office of the High Commissioner for Human Rights, Claiming the Millenium Development Goals: A Human Rights Approach (New York: United Nations, 2008) at 15, online: <http://www.ohchr.org/Documents/Publications/Claiming_MDGs_en.pdf> (last accessed: 29 June 2010).

[114] Alicia Ely Yamin, “Shades of Dignity: Exploring the Demands of Equality in Applying Human Rights Frameworks to Health” (2009) 11:2 Health and Human Rights 1 at 14.

[115] Alicia Ely Yamin, “Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health” (2008) 10:2 Health and Human Rights 1 at 1.

[116] Mayhew, Douthwaite and Hammer, note 73 at 181.

[117] Paul Hunt and Judith Mesquita, “Mental Disabilities and the Human Right to the Highest Attainable Standard of Health” (2006) 28:2 Human Rights Quarterly 332 at 350-351.

[118] Herr and Weber, note 61 at 354 and 359; Burns, note 85 at 25. Burns writes that it has been repeatedly demonstrated that “user-led” advocacy regarding legal reform, service development, and social transformation has been very effective in ending discrimination and stigmatization and achieving human rights for specific minority communities.

[119] Herr and Weber, note 61 at 360.

[120] Whitehead and Hughey, note 1 at 16-17; Peter Park, Althea Monteiro and Bruce Kappel, “People First: The History and The Dream” in Deborah Stienstra and Aileen Wight-Felske, eds., Making Equality: History of Advocacy and Persons with Disabilities in Canada (Concord: Captus Press Inc., 2003) 183 at 184.

[121] Park, Monteiro and Kappel, note 120 at 184. For a more detailed history of the People First movement see 186-187.

[122] Park, Monteiro and Kappel, note 120 at 184.

[123] Alberta Ministry of Seniors and Community Supports, “Persons with Developmental Disabilities”, online:  Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/PDD/> (last accessed: 9 April 2010).

[124] Alberta Ministry of Seniors and Community Supports, “Persons with Developmental Disabilities: Overview”, online: Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/PDD/overview.asp> (last accessed: 9 April 2010) [Alberta Persons with Developmental Disabilities Overview].

[125] Alberta Persons with Developmental Disabilities Overview, note 124.

[126] Alberta Ministry of Seniors and Community Supports, “PDD Quick Fact Sheet”, online: Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/PDD/FactSheets/QuickFacts.asp> (last accessed 9 April 2010).

[127] Persons with Developmental Disabilities Community Governance Act, R.S.A. 2000, c. P-8 [PDD Community Governance Act].

[128] PDD Community Governance Act, note 127 at preamble.  

[129] PDD Community Governance Act, note 127 at ss. 9(1)(a), (b), and (k).

[130] PDD Community Governance Act, note 127 at ss. 11(e).

[131] PDD Community Governance Act, note 127 at ss. 16(1).

[132] PDD Community Governance Act, note 127 at ss. 16(2) and (3).

[133] PDD Community Governance Act, note 127 at ss. 17(1).

[134] Alberta Council of Disability Services, online: <www.acds.ca> (last accessed: 29 June 2010).

[135] Alberta Ministry of Seniors and Community Supports, Persons with Developmental Disabilities Program: Operational Program Policy, Community Inclusion Supports Framework, (3 January 2007) at Section 06 – Page 1, online: Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/pdd/policies/CISF.pdf> (last accessed: 29 June 2010).

[136] Alberta Council of Disability Services, Creating Excellence Together: Accreditation Level 1 Standards and Accreditation Level 2 Standards (September 2008), online: Alberta Council of Disability Services <http://www.acds.ca/PDFS/CET%20Level%201%20and%202/CET_Levels_1_2_Stds_2008.pdf> (last accessed: 29 June 2010).

[137] Alberta Ministry of Seniors and Community Supports, “Guide to the Persons with Developmental Disabilities (PDD) Appeal Process”, online: Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/pdd/appeals/AppealGuide.pdf> (last accessed: 9 April 2010).

[138] Interview of Alberta PDD Program Edmonton Region Community Board (31 May 2010).

[139] Alberta Ministry of Seniors and Community Supports, “Guide to the Persons with Developmental Disabilities (PDD) Appeals Process: Persons with Developmental Disabilities Community Governance Act, Section 4(2) and 15(3)” at 20 and 24, online: Alberta Ministry of Seniors and Community Supports <http://www.seniors.alberta.ca/PDD/appeals/appealguide.pdf> (last accessed: 9 April 2010) [Alberta – PDD Regulation and Appeals Guide].

[140] Interview of Alberta PDD Program Edmonton Region Community Board (2 June 2010) [Interview of Alberta PDD Program – 2 June 2010].

[141] Persons with Developmental Disabilities Community Governance (Ministerial) Regulation, Alta. Reg. 181/2006; Alberta – PDD Regulation and Appeals Guide, note 139.

[142] Alberta – PDD Regulation and Appeals Guide, note 139.

[143] Interview of Alberta PDD Program – 2 June 2010, note 140.

[144] Supportive Living Accommodation Licensing Act, S.A., 2009, c. S-23.5 at s. 2(1) [SLALA]. This Act applies to supportive living accommodation provided by an operator where (a) the supportive living accommodation is provided to 4 or more adults who are not related to the operator, (b) the operator provides or arranges for services related safety and security for the persons referred to in clause (a) in accordance with the standards set out or adopted in the regulations, and (c) the operator provides, offers or arranges for (i) at least one meal per day, or (ii) housekeeping services, for the persons referred to in clause (a). Section 1 of the Act defines “supportive living accommodation” as building or units in buildings that are intended for permanent residential living where an operator also provides or arranges for services in order to assist residents to live as independently as possible. See also Interview of Alberta PDD Program – 2 June 2010, note 140.

[145] SLALA, note 144 at ss. 7(1)(a)-(e).

[146] SLALA, note 144 at ss. 7(1) and (2).

[147] SLALA, note 144 at s. 7(9).

[148] SLALA, note 144 at ss. 8(1)-(2).

[149] SLALA, note 144 at s. 9(1)-(2).

[150] SLALA, note 144 at s. 10(1).

[151] SLALA, note 144 at s. 10(2)(a)(i)-(ii).

[152] SLALA, note 144 at s. 10(2)(b). Subsection 10(3) states that a complaints officer may refuse to refer a complaint to an investigator if the complaint is frivolous or vexatious or the complaints officer resolves the complaint.

[153] SLALA, note 144 at ss. 10(4)-(5).

[154] SLALA, note 144 at s. 11.

[155] SLALA, note 144 at s. 12(1).

[156] SLALA, note 144 at ss. 12(2)-(3).

[157] SLALA, note 144 at ss. 12(4)(a)-(c). Pursuant to s. 12(5), the director can require an order issued under subsection 4(a) to be posted in a prominent place in the supportive living accommodation.

[158] SLALA, note 144 at s. 17(1).

[159] SLALA, note 144 at s. 22(1).

[160] Community Living Authority Act, S.B.C. 2004, c. 60 [Community Living Authority Act].

[161] Community Living British Columbia, “Who We Are: History”, online:  Community Living British Columbia <http://www.communitylivingbc.ca/who_we_are/history.htm> (last accessed: 14 May 2010).

[162] Community Living Authority Act, note 160 at ss. 11-12.

[163] Community Living British Columbia, “Senior Management – Organizational Structure”, online: Community Living British Columbia <http://www.communitylivingbc.ca/who_we_are/senior_management/organizational_structure.htm> (last accessed: 3 May 2010). Permission to reprint this figure granted pursuant to the LCO’s Formatting Guidelines.

[164] Community Living British Columbia, “Your Community: Community Councils”, online: Community Living British Columbia <http://www.communitylivingbc.ca/your_community/community_councils.htm> (last accessed: 19 April 2010).

[165] Community Living British Columbia, “Your Community:  Upper Fraser Community Council”, online: Community Living British Columbia <http://www.communitylivingbc.ca/your_community/cc/upper_fraser.htm> (last accessed: 19 April 2010).

[166] Community Living British Columbia, “Board Appointment Process and Terms”, online: Community Living British Columbia <http://www.communitylivingbc.ca/who_we_are/board/documents/CLBCBoardTermsJul2009.pdf> (last accessed: 19 April 2010).

[167] Community Living British Columbia, “Who We Are: Board – Role of the Board”,  online: Community Living British Columbia <http://www.communitylivingbc.ca/who_we_are/board/role_of_the_board.htm> (last accessed: 19 April 2010) [CLBC – Role of the Board].

[168] CLBC – Role of the Board, note 167.

[169] Community Living British Columbia, “Who We Are: Advisory Committee to the Board of Directors”, online: Community Living British Columbia <http://www.communitylivingbc.ca/who_we_are/advisory_committee.htm> (last accessed: 19 April 2010) [CLBC Advisory Committee to the Board of Directors].

[170] CLBC Advisory Committee to the Board of Directors, note 169.

[171] Community Living British Columbia, “What We Do: Safeguards”, online: Community Living British Columbia <http://www.communitylivingbc.ca/what_we_do/safeguards.htm> (last accessed: 19 April 2010) [CLBC Safeguards].

[172] CLBC Safeguards, note 171.

[173] Community Living British Columbia, “Complaints Resolution Policy”, Policy Number QA7.010 (April 2008, revised December 1, 2009) at 1, online: Community Living British Columbia <http://www.communitylivingbc.ca/policies_and_publications/documents/CLBCComplaintsResolutionpolicy. pdf> (last accessed: 14 April 2010) [CLBC Complaints Resolution Policy].

[174] CLBC Complaints Resolution Policy, note 173 at 1.

[175] Community Living British Columbia, “CLBC Fact Sheet: Making a Complaint”, online: Community Living British Columbia <www.communitylivingbc.ca/policies_and_publications/documents/ComplaintsFactSheet-Nov09.pdf> (last accessed: 19 April 2010) [CLBC Fact Sheet].

[176] CLBC Fact Sheet, note 175.

[177] CLBC Fact Sheet, note 175. 

[178] CLBC Complaints Resolution Policy, note 173 at 4.

[179] CLBC Complaints Resolution Policy, note 173 at 5.

[180] CLBC Complaints Resolution Policy, note 173 at 5.

[181] CLBC Complaints Resolution Policy, note 173 at 5.

[182] CLBC Complaints Resolution Policy, note 173 at 5.

[183] CLBC Complaints Resolution Policy, note 173 at 5.

[184] CLBC Complaints Resolution Policy, note 173 at 5.

[185] CLBC Complaints Resolution Policy, note 173 at 6.

[186] CLBC Complaints Resolution Policy, note 173 at 6.

[187] Interview of Community Living British Columbia (10 June 2010) [Interview of CLBC].

[188] CLBC Complaints Resolution Policy, note 173 at 6.

[189] CLBC Complaints Resolution Policy, note 173 at 3.

[190] CLBC Complaints Resolution Policy, note 173 at 3.

[191] CLBC Complaints Resolution Policy, note 173 at 2.

[192] Community Living British Columbia, “External Reviews Policy” (October 2008) at 1, online: Community Living British Columbia <http://www.communitylivingbc.ca/policies_and_publications/documents/ExternalReviewsPolicy.pdf> (last accessed: 19 April 2010) [CLBC External Reviews Policy].

[193] CLBC External Reviews Policy, note 192 at 2.

[194] CLBC External Reviews Policy, note 192 at 5.

[195] CLBC External Reviews Policy, note 192 at 7.

[196] CLBC External Reviews Policy, note 192 at 2.

[197] CLBC External Reviews Policy, note 192 at 2. 

[198] CLBC External Reviews Policy, note 192 at 3.

[199] CLBC External Reviews Policy, note 192 at 6.

[200] CLBC External Reviews Policy, note 192 at 6.

[201] CLBC External Reviews Policy, note 192 at 6.

[202] British Columbia Ministry of Housing and Social Development, “Advocate for Service Quality”, online:  British Columbia Ministry of Housing and Social Development <http://www.hsd.gov.bc.ca/advocate/> (last accessed: 9 April 2010) [BC Advocate for Service Quality].

[203] BC Advocate for Service Quality, note 202.

[204] British Columbia Ministry of Housing and Social Development, “Pamphlet – Advocate for Service Quality”, online: British Columbia Ministry of Housing and Social Development <http://www.hsd.gov.bc.ca/advocate/docs/brochure.pdf> (last accessed: 9 April 2010) [BC Pamphlet on Service Quality].

[205] BC Pamphlet on Service Quality, note 204.

[206] BC Pamphlet on Service Quality, note 204.

[207] Interview of CLBC, note 187.

[208] BC Advocate for Service Quality, note 202.

[209] BC Advocate for Service Quality, note 202.

[210] Commission on Accreditation of Rehabilitation Facilities (CARF) International, online: CARF International <http://www.carf.org> (last accessed: 29 June 2010).

[211] Interview of CLBC, note 187.

[212] New Brunswick Department of Social Development, Standards and Procedures for Adult Residential Facilities (September 2009) at s. 1.1, online: New Brunswick Department of Social Development <http://www.gnb.ca/0017/seniors/arfstandardsandprocedures-e.pdf> (last accessed: 9 April 2010) [NB Standards and Procedures for Adult Residential Facilities].

[213] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 1.3.

[214] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 1.3.

[215] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 2.20.

[216] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 2.21. The Standards and Procedures at section 5.4 also require operators of residential facilities to develop programs that recognize the individuality of each resident, and that assist residents in attaining and maintaining an optimal personal level of functioning, self-care and independence. Operators are also required to develop programs that enhance inclusion and autonomous decision-making for residents.

[217] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 6.1.

[218] NB Standards and Procedures for Adult Residential Facilities, note 212 at s. 6.2.

[219] NB Standards and Procedures for Adult Residential Facilities, note 212 at 6.2.

[220] See generally, Gouvernement du Québec, “Focus on the Québec Health and Social Services System” at 50-51, online: Gouvernment du Québec <http://publications.msss.gouv.qc.ca/acrobat/f/documentation/ 2009/09-731-01A.pdf> (last accessed: 18 May 2010) [Focus on Quebec Health and Social Services System].

[221] Focus on Quebec Health and Social Services System, note 220.

[222] An act respecting health and social services, R.S.Q. c. S-4.2 at s. 29 [Act respecting health and social services].

[223] West Montreal Readaptation Centre, “What to do if you are dissatisfied with a service?” online: West Montreal Readaptation Centre <http://crom-wmrc.ca/complaints-and-service-quality.html> (last accessed: 6 May 2010).

[224] Act respecting health and social services, note 222 at s. 12.

[225] Act respecting health and social services, note 222 at s. 33(3).

[226] Act respecting health and social services, note 222 at s. 33(6).

[227] Interview of Quebec Service Quality and Complaints Commissioner (3 June 2010) [Interview of Service Quality and Complaints Commissioner].

[228] Otherwise, the decision may be transmitted verbally. See Act respecting health and social services, note 222 at s. 33(6).

[229] Interview of Service Quality and Complaints Commissioner, note 227.

[230] Likewise, if the institution in question does not follow up with the recommendations of the Commissioner, a complaint lies with the Ombudsman.

[231] An act respecting the health and social services ombudsman, R.S.Q., c. P-31.1 at ss. 8-9 [Ombudsman Act].

[232] Le Protecteur du citoyen, “Mandate” online: Le Protecteur du citoyen <http://www.protecteurducitoyen. qc.ca/en/the-quebec-ombudsman/mandate/index.html> (last accessed: 17 May 2010) [Le Protecteur du citoyen – Mandate].

[233] Ombudsman Act, note 231 at s. 15.

[234] Le Protecteur du citoyen – Mandate, note 232.

[235] Act respecting health and social services, note 222 at s. 212.

[236] Interview of West Montreal Rehabilitation Centre (4 June 2010) [Interview of West Montreal Rehabilitation Centre].

[237] Disability Act 2006 (Vic.), ss. 4(d)-(f).

[238] Disability Act 2006 (Vic.), note 237 at s. 97.

[239] Disability Act 2006 (Vic.), note 237 at s. 97(6).

[240] Disability Act 2006 (Vic.), note 237 at s. 103.

[241] Disability Act 2006 (Vic.), note 237 at s. 104.

[242] Disability Act 2006 (Vic.), note 237 at s. 105.

[243] Disability Act 2006 (Vic.), note 237 at s. 16.

[244] Office of the Disability Services Commission, Good practice guide and self audit tool: Developing an effective person centred complaints management culture and system (Victoria, Australia:  2009) at 4, online: Office of the Disability Services Commission <http://www.odsc.vic.gov.au/downloads/good_practice_guide_introduction.pdf> (last accessed: 29 June 2010).

[245] Disability Act 2006 (Vic.), note 237 at s. 111(1).

[246] Disability Act 2006 (Vic.), note 237 at s. 115.

[247] Disability Act 2006 (Vic.), note 237 at ss. 118-120.

[248] Disability Act 2006 (Vic.), note 237 at s. 22.

[249] Disability Act 2006 (Vic.), note 237 at ss. 70(4)(a)-(b) and 71(1).

[250] Disability Act 2006 (Vic.), note 237 at ss. 70(1)(a)-(b).

[251] Disability Act 2006 (Vic.), note 237 at s. 82(1).

[252] Disability Act 2006 (Vic.), note 237 at ss. 82(4)(a)-(c).

[253] Care Quality Commission, “How we will monitor compliance,” online: Care Quality Commission <http://www.cqc.org.uk/guidanceforprofessionals/introductiontoregistration/howthenewregistrationsystemworks/howwewillmonitorcompliance.cfm> (last accessed: 12 May 2010).

[254] Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 reg. 10(2) [Health and Social Care Act Regulation].

[255] Health and Social Care Act Regulation, note 254 at reg. 19(1).

[256] Health and Social Care Act Regulation, note 254 at reg. 19(2).

[257] Health and Social Care Act Regulation, note 254 at reg. 19(3).

[258] Health and Social Care Act Regulation, note 254 at reg. 17(2).

[259] Care Quality Commission, “Guidance about compliance”, at 153, online: Care Quality Commission <http://www.cqc.org.uk/_db/_documents/Essential_standards_of_quality_and_safety_FINAL_081209.pdf> (last accessed: 13 May 2010).

[260] Local Government Ombudsman, “The Local Government Ombudsman,” online: Local Government Ombudsman <http://www.lgo.org.uk/> (last accessed: 21 May 2010).

[261] Local Government Ombudsman, “About us: Key facts about the Ombudsman,” online: Local Government Ombudsman <http://www.lgo.org.uk/about-us/> (last accessed 21 May 2010) [Local Government Ombudsman – Key Facts].

[262] Local Government Ombudsman – Key Facts, note 261.

[263] Local Government Ombudsman, “Submitting your complaint,” online: Local Government Ombudsman <http://www.lgo.org.uk/making-a-complaint/submitting-a-complaint/> (last accessed: 21 May 2010).

[264] Local Government Ombudsman, “How we will deal with your complaint,” online: Local Government Ombudsman <http://www.lgo.org.uk/making-a-complaint/how-we-will-deal-with-your-complaint/> (last accessed: 21 May 2010) [Local Government Ombudsman – How we deal with your complaint].

[265] Local Government Ombudsman – How we deal with your complaint, note 264.

[266] Local Government Ombudsman – How we deal with your complaint, note 264.

[267] Local Government Ombudsman, “Possible outcomes”, online: Local Government Ombudsman <http://www.lgo.org.uk/making-a-complaint/possible-outcomes/> (last accessed: 21 May 2010) [Local Government Ombudsman – Possible outcomes].

[268] Local Government Ombudsman – Possible outcomes, note 267.

[269] Local Government Ombudsman – Possible outcomes, note 267.

[270] Local Government Ombudsman – Possible outcomes, note 267.

[271] U.S., A.B. 846, Lanterman Developmental Disabilities Act, Reg. Sess., Cal., 1977 [Lanterman Act].

[272] U.S., A.B. 1762, Lanterman Developmental Disabilities Act, Reg. Sess., Cal., 2003 [Lanterman Act].

[273] Lanterman Act, note 272 at s. 4620(a) and (b).

[274] Lanterman Act, note 272 at ss. 4502 – 4502.1

[275] Lanterman Act, note 272 at ss. 4540(d)(1)(D) and 4548(f).

[276] Interview of California Area Board VII (8 June 2010).

[277] Lanterman Act, note 272 at s. 4512(b).

[278] Disability Rights California, “Advocacy Plan 2008-2012 Implementing Rights, Addressing Wrongs” (adopted September 2007), online: Disability Rights California <http://www.disabilityrightsca.org/pubs/540201.htm> (last accessed: 28 June 2010).

[279] Lanterman Act, note 272 at s. 4703.

[280] Lanterman Act, note 272 at s. 4710(a)(1).

[281] Lanterman Act, note 272 at s. 4710(b).

[282] Lanterman Act, note 272 at s. 4715.

[283] Lanterman Act, note 272 at s. 4701(n).

[284] Lanterman Act, note 272 at ss. 4710.6(a)-(c).

[285] Lanterman Act, note 272 at ss. 4710.5(b) and (c).

[286] Lanterman Act, note 272 at ss. 4710.6(a) and (b) and 4711.5(a).

[287] Lanterman Act, note 272 at s. 4712.5(a).

[288] Lanterman Act, note 272 at s. 4712.5(a).

[289] Lanterman Act, note 272 at s. 4705(a).

[290] Lanterman Act, note 272 at ss. 4705(b)-(c).

[291] Disability Rights California, “Rights under the Lanterman Act: Regional Centre Services for People with Developmental Disabilities”, at 310, online: Disability Rights California <www.disabilityrightsca.org/pubs/506301.pdf> (last accessed: 5 May 2010).

[292] Department of Assistive and Rehabilitative Services, “DRS Standards for Providers”, online:  Department of Assistive and Rehabilitative Services <http://www.dars.state.tx.us/DRS/providermanual/> (last accessed: 7 May 2009) [DRS Standards for Providers].

[293] DRS Standards for Providers, note 292 at c. 1.6.

[294] DRS Standards for Providers, note 292 at c. 1.9.

[295] Texas Department of Aging and Disability Services, “About Consumer Rights and Services”, online: Texas Department of Aging and Disability Services <http://www.dads.state.tx.us/services/crs/about.html> (last accessed: 7 May 2010) [Texas Department of Aging – About Consumer Rights and Services].

[296] Texas Department of Aging – About Consumer Rights and Services, note 295.

[297] Texas Department of Aging and Disability Services, “How do I make a complaint (general public)?”, online: Texas Department of Aging and Disability Services <http://www.dads.state.tx.us/services/crs/complaints.html> (last accessed: 7 May 2010).

[298] Texas Administrative Code, T.A.C. (1999) at ss. 357.1(11) and 357.21(a)(b) [Texas Administrative Code].

[299] Texas Administrative Code, note 298 at s. 357.21(b).

[300] This means the hearing must be scheduled and conducted and a decision must be issued. See Texas Administrative Code, note 298 at s. 357.23(a)(2).

[301] CLBC Complaints Resolution Policy, note 173 at 7.

[302] Interview of West Montreal Rehabilitation Centre, note 236; Interview of the Greater Moncton Association for Community Living (11 June 2010).

 

[303] Interview of the Community Living Welland Pelham and Brock University 3 Rs Project (17 June 2010) [Interview of 3 Rs Project].

 

[304] One service provider noted that a combination of group training, online training and games was found to be the most effective method of delivering rights education to people with intellectual disabilities in a group home setting. Interview of 3 Rs Project, note 303.

 

[305] Tarulli, Tardif, Griffiths and Owen, note 65 at 167-170.

 

[306] Interview of 3 Rs Project, note 303.

[307] Provisions of this kind can be found in many Ontario statutes, including the Long Term Care Act,1994, S.O. 1994, c.26, s. 3(1)7, the Long-Term Care Homes Act, 2007, S.O. 2007, c. 8, s. 26, and Ontario’s Human Rights Code, R.S.O. 1990, c. H. 19 at s. 8.

[308] For a more detailed analysis of procedure barriers with respect to capacity, as well as suggestions for reform, see Tess C. Sheldon, “Access to Administrative Justice for Persons with Disabilities: Addressing the Capacity of Parties Before Ontario’s Administrative Tribunals” (December 2009), online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/?q=addressing-capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-fairne>.

[309] People First of Washington and The Self-Advocacy Project Rehabilitation Research and Training Center, University of Oregon, Speaking Up and Speaking Out: An International Self-Advocacy Movement: A Report on the International Self-Advocacy Leadership Conference, July 23-29, 1984 (Washington: Professional Liltho, 1985) at 49 [Speaking Up and Speaking Out].

[310] Speaking Out, note 57 at 96-97.

[311] Speaking Up and Speaking Out, note 309 at 20.

[312] Whitehead and Hughey, note 1 at 16.

[313] Interview of West Montreal Rehabilitation Centre, note 236.

[314]  Speaking Up and Speaking Out, note 309 at 21 and 53.

[315] Community Living Ontario, “The Council”, online: Community Living Ontario  <http://www.communitylivingontario.ca/self-advocates/council> (last accessed: 30 May 2010). Community Living Toronto, “Self-Advocates”, online: Community Living Toronto <http://www.communitylivingtoronto.ca/misc/advocate/index.html;jsessionid=3214749F3B7C4A46698DB2034C012B41> (last accessed: 30 May 2010).

 

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