ENDNOTES2017-03-03T18:35:37+00:00

[*] The authors wish to thank Mary Eberts, Martha Jackman, Kerri Joffe, Laurie Letheren, Ed Montigny, Yvonne Peters and Dianne Wintermute for consulting with us regarding potential pathways to the recognition of disability-related supports.

[2] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews] at paras. 27 and 36, quoting Aristotle, Ethica Nichomacea, trans. W. Ross, Book V3 (Gloucestershire: Clarendon Press, 1925) at 1131a-6.

[3] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [Eaton] at para. 69.

[4] Purvis v. New South Wales (Department of Education and Training), [2003] HCA 62 [Purvis] McHugh and Kirby JJ., dissenting at para. 86.

[5] Law Commission of Ontario, The Law As It Affects Persons with Disabilities, Preliminary Consultation Paper: Approaches to Defining Disability (June 2009) [LCO, Defining Disability] at 16.

[6] Raymond Lang, “The Development and Critique of the Social Model of Disability” (January 2001), University of East Anglia (unpublished), online: <http://www.ucl.ac.uk/lc-ccr/lccstaff/raymond-lang/DEVELOPMMENT_AND_CRITIQUE_OF_THE_SOCIAL_MODEL_OF_D.pdf> (last accessed: 30 April 2010) at 3.

[7] Phillip French and Rosemary Kayess, “Deadly Currents Beneath Calm Waters: Persons with Disability and the Right to Life in Australia” (2008), UNSW Law Research Paper No. 2008-34 at 8, online: Social Science Research Network, <http://ssrn.com/abstract=1397388> (last accessed: 30 April 2010).  A longer version of this article is published in L. Clements and J. Read, eds., Disabled People and the Right to Life: The Protection and Violation of Disabled People’s Most Human Rights (Oxford, UK: Routledge, 2008).  See also Jenny Morris, “Impairment and Disability: Constructing an Ethics of Care That Promotes Human Rights” (Fall 2001) 16:4 Hypatia 1 at 2.

[8] LCO, Defining Disability, note 4 at 26-27, 30.

[9] Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11 [Charter].  In contrast to the language setting out rights to equality and rights to life, liberty, and security of the person under sections 15 and 7 of the Charter respectively, the provision setting out minority language educational rights under the Charter explicitly imposes a positive obligation on government: 

23 (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

The wording of section 23 imposes an obligation on government to provide education to English or French linguistic minorities in that language. 

[10] See, for example, the Supreme Court’s statements in Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at 1003-1004 [Irwin Toy] and Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 [Gosselin] at para. 82, and the outcomes in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78 [Auton]; Sagharian v. Ontario (Education), [2008] O.J. No. 2009, 2008 ONCA 411 [Sagharian]; Wynberg v. Ontario, [2006] O.J. No. 2732 [Wynberg]; and Flora v. Ontario (Health Insurance Plan, General Manager), [2008] O.J. No. 2627, 2008 ONCA 538 [Flora]. 

[11] This was the case in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge] discussed more fully below.

[12] Convention on the Rights of Persons with Disabilities, U.N. GAOR, 61st Sess., Item 67(b), U.N. Doc. A/61/611 (2006) (entered into force 3 May 2008, ratified by Canada 11 March 2010) [Convention], online: United Nations, <http://www.unhcr.org/refworld/docid/45f973632.html> (last accessed: 15 April 2010).

[13] Law Commission of Ontario, “Learn About Us”, <http://www.lco-cdo.org/en/content/learn-about-us> (last accessed: 17 May 2010). 

[14] Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at para. 77.  This case concerned the constitutionality of legislation (i) prohibiting strikes and imposing compulsory arbitration to resolve impasses in collective bargaining and (ii) relating to the conduct of arbitration and limiting the right to arbitrate certain items, and requiring the arbitration board to consider certain factors in making an arbitration award.  The majority of the Court answered both questions in the negative, holding that the constitutional guarantee of freedom of association under section 2(d) of the Charter does not guarantee the right to strike, nor does it guarantee a specific form of dispute resolution as a substitute for the right to strike.

[15] Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94 [Dunmore] at para. 22.

[16] Dunmore, note 14; Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A [Labour Relations Act].  In this case, the majority of the Court found that Ontario’s Labour Relations Act is designed to safeguard the exercise of the freedom to associate.  As such, the Labour Relations Act recognizes that without a statutory vehicle, employee associations are, in many cases, impossible.  The majority held that in the particular context of this case, where the evidence demonstrated that agricultural workers were substantially incapable of exercising their freedom to associate without legislative protection, the provision at issue violated section 2(d) of the Charter and could not be saved under section 1.

[17] See e.g. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 [Suresh]; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7 [Burns].

[18] Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 502-503, 511-513.  In addition to the specific legal rights listed in sections 8 through 14 of the Charter, the principles of fundamental justice include: intelligible legal standards (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606); lack of arbitrariness (Chaoulli v. Québec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35 [Chaoulli]); and proportionality (Suresh, note 16; Burns, note 16).

[19] Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44.

[20] B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.

[21] New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 [G. (J.)].

[22] Chaoulli, note 17.

[23] Irwin Toy, note 9 at 1003-1004.

[24] G. (J.), note 20.

[25] G. (J.), note 20 at paras. 6, 75-80, 91, 116, 119, 120, 126.

[26] Gosselin, note 9.  The legislation at issue in Gosselin capped the base amount of welfare payments (by two-thirds of the regular amount) to welfare recipients under the age of thirty, however those under the age of thirty could increase their welfare payments, over and above the basic entitlement, to the same or nearly the same level as those in the thirty-and-over group by participating in training or work experience employment programs.  The record before the Supreme Court indicated that although there were 85 000 welfare recipients in Québec under the age of thirty, only 30 000 placements in these programs were initially made available (and those placements were also open to welfare recipients over the age of thirty).  The record before the Court also indicated that at least two-thirds of the recipients under the age of thirty at times received only $170 a month in benefits.  Louise Gosselin challenged Québec’s legislation on three grounds: (1) as age discrimination in violation of section 15; (2) as a violation of the right to security of the person under section 7; and (3) as a violation of the anti-discrimination guarantee under the Québec Charter of Human Rights and Freedoms, R.S.Q. c. C-12.  The Supreme Court split on each issue, with five members of the nine member panel dismissing the appeal on all grounds.  Of particular relevance were the following provisions of Québec’s Social Aid Act, R.S.Q., c. A-16, as amended by An Act to amend the Social Aid Act, S.Q. 1984, c. 5 (repealed by An Act respecting income security, S.Q. 1988, c. 51, s. 92) and Québec’s Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1:

Social Aid Act, R.S.Q., c. A-16

11.  The Minister may propose a recovery plan to a family or individual who is receiving or who applies for social aid.  The recovery plan may include, in particular, the participation of an individual or a member of a family in a program of work activities or a training program established by the Minister in view of developing the recipient’s qualifications for an employment.  The criteria of eligibility to a program established under the second paragraph may take the recipient’s age into account.

11.1  The Government, by regulation, shall designate to which work activities programs or training programs sections 11.2 to 11.4 apply.

11.2  In the case of an individual or a family having no dependent child, needs relating to a recipient’s participation in a designated program are special needs to the extent determined by regulation for each program. In all other cases, needs described in the first paragraph are special needs to the extent determined by the Minister for each recipient, but not in excess of the amount determined by regulation.

31. In addition to the other regulatory powers assigned to it by this act, the Gouvernement [sic], subject to the provisions of this act, may make regulations respecting:

(e) the extent to which the ordinary needs of a family or individual may be met through social aid and the methods whereby such needs must be proven and appraised; in determining what the aid shall be, account may be taken of the age or capacity for work of an individual or of the members of a family having no dependent children, having had no children who are deceased, or the fact that a family or individual is living with a relative or a child;

 

Regulation respecting social aid, R.R.Q. 1981, c. A-16, r. 1

(This is the text of the pertinent sections of the Regulation as it appeared on April 17, 1985.)

23. The ordinary needs of a household shall be determined in terms of its members, each month, according to the following scale:

Adults        Dependent children                                      Ordinary needs

1               0                                                                     357 $

1               1                                                                     488

1               2 and over                                                      526

2               0                                                                     568

2               1                                                                     615

2               2 and over                                                      651

However, the ordinary needs can be accorded only insofar as the costs a household incurs for lodging on a monthly basis within the meaning of section 27 are equal to or greater than 85 $ for a family and 65 $ for a single person.  The ordinary needs are reduced by the amount by which these costs fall short of these amounts.

29. Aid for ordinary needs shall not exceed:

(a) 121 $ per month, in the case of an individual capable of working and less than 30 years of age;

(b) twice the monthly amount prescribed in subparagraph a for a family without dependent children, where both consorts are able-bodied and under 30 years of age.

In the case of a family without children receiving uninterrupted aid following an application made before 1 July 1984, subparagraph b of the first paragraph does not apply if the said family had a child who died before 1 July 1984.

For the month in which the application was made, the amounts prescribed in the first paragraph represent the ordinary needs of the household.  The latter are apportioned in the manner indicated in section 10.

35.0.1 Sections 11.2 to 11.4 of the Act shall apply to the following programs established by the Minister under section 11 of the Act:

(a) On-the-job Training Program;

(b) Community Work Program.

Section 11.2 of the Act shall also apply to the Remedial Education Program.

35.0.2 In order to develop employability, an amount of 150 $ is granted to the single person or to the adult of a family without dependent children for a complete month during which he participates in a program subject to section 35.0.1.

In the case of a participant in the Remedial Education Program whose work load established by the school is less than 60 hours per month, an amount of 150 $ is deducted on the basis of the number of hours of work in relation to 60.

35.0.5 The amount provided in section 35.0.2 or determined by the Minister under section 35.0.3, except for child care expenses, is reduced on the basis of unauthorized hours of absence under programs subject to section 35.0.1 for the said month with respect to the required hours of participation.

In the case of the Remedial Education Program, the deduction is established according to unauthorized hours of absence from classes under this program with respect to the monthly number of class hours.

35.0.6 No reduction is made when the unauthorized hours of absence do not exceed 5 % of the hours of participation established for a participant during the month.

35.0.7 The aid shall also meet the cost required by a person attending a vocational training course that makes this person eligible for an allowance under the National Vocational Training Program Act (S.C., 1980-81-82-83, c. 109).

This cost is equal to the amount of the allowance paid, as reduced under subparagraph f of section 40.

For recipients covered by section 29, the cost is equal to the same amount less the difference between ordinary needs under section 23 and the amount prescribed in section 29.

However, it shall not exceed:

i. for a family, 40 $ plus 5 $ per dependent child, plus 50 $ in the case of a family including only one adult;

ii. for a single person, 25 $;

The maximum provided in the fourth paragraph shall not apply to the month in which courses begin if aid for ordinary needs has been granted for at least 3 consecutive months without this paragraph having been applied during the six preceding months.

Section 35.0.2 was amended, effective August 1, 1985, by O.C. 1542-85, 24 July 1985, (1985) 117 O.G. II 3690, s. 1 as follows:

35.0.2 To assist in developing aptitudes for work, an amount is granted as a special need to the single person or to a spouse in a family without dependent children, for a complete month of participation in a program subject to section 35.0.1.

This amount is equal to the amount obtained when 100 $ is subtracted from the difference between the amount paid subject to the first paragraph of section 23, taking into account section 31, to a single person under 30 years of age and the maximum amount paid under section 29, taking into account section 31, to a single person under 30 years of age.

In the case of a participant in the Remedial Education Program whose course schedule is under 60 hours per month, the amount is reduced to a prorata of the number of actual course hours with respect to 60.

 

The Regulation was amended, effective April 30, 1986, by Regulation respecting social aid (Amendment), O.C. 555-86, 23 April 1986, (1986) 118 O.G. II 605, ss. 1, 3:

23. The ordinary needs of a household shall be determined in terms of its members, each month, according to the following scale:

Adults        Dependent children                                         Ordinary needs

1               0                                                                        448

1               1                                                                        609

1               2 and more                                                        659

2               0                                                                        712

2               1                                                                        769

2               2 and more                                                        815

However, the ordinary needs of a household living with a parent ora child are reduced by 85 $.

In all other cases, the ordinary needs are reduced by the amount by which the costs incurred by the household for lodging on a monthly basis within the meaning of section 27 are less than 85 $ for a family or less than 65 $ for a single person.

29. Aid for ordinary needs shall not exceed:

(a) 163 $ per month, in the case of an individual capable of working and less than 30 years of age;

(b) twice the monthly amount prescribed in subparagraph a for a family without dependent children, where both consorts are able-bodied and under 30 years of age.

The amounts provided for in the first paragraph are increased by 8 $ per adult except:

(a) when the household lives with a parent or child;

(b) when a single person lives with a foster family;

(c) when the household lives in housing administered by a municipal housing bureau constituted under the Act respecting the Sociétéd’habitation du Québec (R.S.Q., c. S-8).

In the case of a family without children receiving uninterrupted aid following an application made before 1 July 1984, subparagraph b of the first paragraph does not apply if the said family had a child who died before 1 July 1984.

For the month in which the application was made, the amounts prescribed in the first paragraph represent the ordinary needs of the household.  The latter are apportioned in the manner indicated in section 10. 

[27] Gosselin, note 9 at para. 81.

[28] Gosselin, note 9 at para. 325.

[29] Gosselin, note 9 at paras. 369-377. 

[30] Auton, note 9; Sagharian, note 9; Wynberg, note 9.  Sagharian was a proposed class proceeding to challenge the provision of autism and education services to children with autism, initiated on behalf of all children with autism in Ontario and their parents and guardians against the province and seven named school boards.  The plaintiffs’ claims included negligence, breach of fiduciary duty, breach of sections 7 and 15 of the Charter and Charter damages.  In the result, almost every ground claimed was struck, though the Court of Appeal did give the plaintiffs leave to amend their claims in negligence and for Charter damages.  Auton is discussed more fully at pages 18-20.

[31] Wynberg, note 9 at paras. 212, 216.

[32] Wynberg, note 9 at para. 229; Education Act, R.S.O. 1990, c. E.2 [Education Act]; Wynberg v. Ontario, [2005] O.J. No. 1228, 252 D.L.R. (4th) 10 [Wynberg Trial Decision] at para. 755.

[33] Wynberg, note 9 at para. 218.

[34] Flora, note 9.  In this case, Mr. Flora challenged the validity of section 28.4(2) of Ontario Regulation 552, R.R.O. 1990, made under Ontario’s Health Insurance Act, R.S.O. 1990, c. H.6, which provides that:

28.4 (2)  Services that are part of a treatment and that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,

(a) the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person; and

(b) either,

(i) that kind of treatment that is not performed in Ontario by an identical or equivalent procedure, or

(ii) that kind of treatment is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage.

 

The Court of Appeal summarized his argument of unconstitutionality at para. 93 as follows:

Before this court, Mr. Flora renews his claim that s. 28.4(2) of the Regulation offends s. 7 of the Charter.  He argues that: (i) the denial of his OHIP Application deprived him of access to a life-saving medical treatment, thereby violating his s. 7 rights to life and security of the person; (ii) the state also deprived him of his s. 7 rights by amending, in 1992, a predecessor version of the Regulation that would have provided funding for his LRLT on the basis of medical necessity; (iii) in any event, s. 7 imposes a positive obligation on the state to provide life-saving medical treatments, thus obviating the need for a finding of state action amounting to deprivation; and (iv) finally, s. 28.4(2) does not comport with the principles of fundamental justice.  For the reasons that follow, I conclude that Mr. Flora’s Charter s. 7 claim fails.

[35] Flora, note 9 at para. 109.

[36] Flora, note 9 at paras. 24, 26, 27.

[37] Chaoulli, note 17.  The appellants challenged the validity of section 15 of the Health Insurance Act, R.S.Q., c. A-29 and section 11 of the Hospital Insurance Act, R.S.Q. c. A-28, which read as follows:

15.  No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident or a deemed resident of Québec or to another person on his behalf.

11. (1)  No one shall make or renew, or make a payment under a contract under which

(a)  a resident is to be provided with or to be reimbursed for the cost of any hospital service that is one of the insured services;

(b)  payment is conditional upon the hospitalization of a resident; or

(c)  payment is dependent upon the length of time the resident is a patient in a facility maintained by an institution contemplated in section 2.

[38] Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [Quebec Charter].

[39] Victoria (City) v. Adams, [2009] B.C.J. No. 2451, 2009 BCCA 563 [Adams].  A similar Charter challenge seeking to compel the federal and Ontario governments to provide affordable housing has recently been launched by a coalition of social welfare groups (Kirk Makin, “Charter challenge aims to force governments to create public housing”, Globe and Mail (26 May 2010), online: Globe and Mail <http://www.theglobeandmail.com/news/national/charter-challenge-aims-to-force-governments-to-create-public-housing/article1580971/> (last accessed: 2 June 2010).  At issue in Adams were the following provisions of bylaws enacted by the City of Victoria:

Parks Regulation Bylaw No. 07-059:

13(1)  A person must not do any of the following activities in a park:

(a)  cut, break, injure, remove, climb, or in any way destroy or damage

(i)  a tree, shrub, plant, turf, flower, or seed, or

(ii)  a building or structure, including a fence, sign, seat, bench, or ornament of any kind;

(b)  foul or pollute a fountain or natural body of water;

(c)  paint, smear, or otherwise deface or mutilate a rock in a park;

(d)  damage, deface or destroy a notice or sign that is lawfully posted;

(e)  transport household, yard, or commercial waste into a park for the purpose of disposal;

(f)  dispose of household, yard, or commercial waste in a park.

(2)  A person may deposit waste, debris, offensive matter, or other substances, excluding household, yard, and commercial waste, in a park only if deposited into receptacles provided for that purpose.

14(1)  A person must not do any of the following activities in a park:

(a)  behave in a disorderly or offensive manner;

(b)  molest or injure another person;

(c)  obstruct the free use and enjoyment of the park by another person;

(d)  take up a temporary abode over night;

(e)  paint advertisements;

(f)  distribute handbills for commercial purposes;

(g)  place posters;

(h)  disturb, injure, or catch a bird, animal, or fish;

(i)  throw or deposit injurious or offensive matter, or any matter that may cause a nuisance, into an enclosure used for keeping animals or birds;

(j)  consume liquor, as defined in the Liquor Control and Licensing Act, except in compliance with a licence issued under the Liquor Control and Licensing Act.

(2)  A person may do any of the following activities in a park only if that person has received prior express permission under section 5:

(a)  encumber or obstruct a footpath …

16(1)  A person may erect or construct, or cause to be erected or constructed, a tent, building or structure, including a temporary structure such as a tent, in a park only as permitted under this Bylaw, or with the express prior permission of the Council …

18 A person who contravenes a provision of this Bylaw is guilty of an offence and is liable on conviction to the penalties imposed by this Bylaw and the Offence Act.

Streets and Traffic Bylaw No. 92-84:

73(1)  Except the agents, servants or employees of the City acting in the course of their employment, no person shall excavate in, disturb the surface of, cause a nuisance in, upon, over, under, or above any street or other public place, or encumber, obstruct, injure, foul, or damage any portion of a street or other public place without a permit from the Council, who may impose the terms and conditions it deems proper.

74(1)  Without restricting the generality of the preceding section or of section 75, no person shall place, deposit or leave upon, above, or in any street, sidewalk or other public place any chattel, obstruction, or other thing which is or is likely to be a nuisance, or any chattel which constitutes a sign within the meaning of the Sign Bylaw and no person having the ownership, control or custody of a chattel, obstruction or thing shall permit or suffer it to remain upon, above or in any such street, sidewalk or other public place.

[40] Gosselin, note 9 at para. 386.

[41] Law v. Canada, (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law].  The approach to discrimination under federal and provincial human rights legislation is aimed at preventing the same general wrong as section 15(1), but also applies to private parties.  There has been some debate as to whether the analytical framework applied to section 15 also applies to human rights claims, or whether the applicable test is that set out by the Supreme Court in the earlier case of Ontario Human Rights Commission v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 [Simpsons Sears].  Under Simpsons Sears, the complainant must first establish a prima facie case of discrimination, meaning a case “…which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the [respondent].” See note 67 below for defences available to a respondent to justify prima facie discrimination.

[42] R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41 [Kapp] at paras. 16, 37.  This case was a challenge to the federal government’s Aboriginal Fisheries Strategy, which permitted fishers designated by three Aboriginal bands the exclusive right to fish for salmon in the mouth of the Fraser River for a period of 24-hours. Several commercial fishers, mainly non-aboriginal, who were excluded from the fishery during this 24-hour period, participated in a protest fishery and were charged with fishing at a prohibited time.  At trial, they argued that the communal fishing licence discriminated against them on the basis of race.  The Supreme Court unanimously found that the communal fishing licence fell within the ambit of section 15(2) of the Charter and was therefore constitutional.

[43] Charter, note 8, section 32(2).

[44] Andrews, note 1 at para. 28.  In this case, a British citizen who was a permanent resident in Canada met all the requirements for admission to the provincial bar except that of Canadian citizenship.  The majority of the Court struck down the requirement for citizenship as a violation of section 15.  The Court recognized that citizenship is typically not within the control of the individual, and held that a rule which bars an entire class of persons from certain forms of employment, solely on the ground of a lack of citizenship and without consideration of educational and professional qualifications or other individual attributes, is a violation of the right to equality.

[45] Martha Jackman and Bruce Porter have noted that,

 

The most decisive shift from a formal to a substantive approach to equality by the Supreme Court was in a sex discrimination case brought under human rights legislation: Brooks v. Canada Safeway [1989] 1 S.C.R. 1219.  In finding that an employee benefit plan that differentiated adversely against pregnant women violated sex equality guarantees under Manitoba human rights legislation, the Supreme Court reversed its earlier decision in the Bliss v. Attorney General of Canada [1979] 1 S.C.R. 83, where it had ruled that an unemployment insurance regime that provided lesser benefits to pregnant women was not discriminatory because it treated all pregnant “people” the same… (Martha Jackman and Bruce Porter, “Women’s Substantive Equality and the Protection of Social and Economic Rights Under the Canadian Human Rights Act” in Status of Women Canada, Women and the Canadian Human Rights Act: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 1999) 43 at 99 n. 55).

 

[46] Law, note 40.

[47] Law, note 40 at para. 39.

[48] Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65 [Hodge] at paras. 17, 23.

[49] Law, note 40 at paras. 59-61, 88.

[50] Law, note 40 at paras. 63-75.

[51] See especially paras. 84-88.

[52] Kapp, note 41 at para. 23.

[53] Kapp, note 41 at paras. 21-22.

[54] As of 8 June 2010, the following Supreme Court decisions cited Kapp: Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, 2009 SCC 37 [Hutterian Brethren]; A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, 2009 SCC 30 [A.C.]; and Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, 2009 SCC 9 [Ermineskin Indian Band]. 

In Hutterian Brethren, members of the Hutterian Brethren challenged the constitutional validity of legislation requiring a photograph to be taken of each driver’s licence holder, since their religion prohibits them from having their photograph willingly taken.  The focus of the judgment is on freedom of religion, with the majority of the Court finding that the violation of freedom of religion was justified under section 1.  There is little discussion of equality rights since the majority of the Court found that the legislation did not violate the right to equality and the dissenting judgments of Abella J., Fish J. and LeBel J. do not address the issue.

In A.C., a child and her parents who were all devout Jehovah’s Witnesses challenged the constitutional validity of child welfare legislation which had permitted a court to authorize a blood transfusion for the child since she had been apprehended by the government as in need of protection and she was under 16 years old.  The majority of the Court found that the legislation did not violate rights to equality, the right to life, liberty, and security of the person or freedom of religion.  The discussion around equality rights is based on the comparator of age (under 16, and 16 and over), but the analysis focuses on contextual needs rather than a formalistic application of comparator groups. 

Ermineskin Indian Band challenged the Crown’s failure to invest oil and gas royalties received on behalf of two Aboriginal bands as a breach of its fiduciary duty and as a violation of equality rights.  The Supreme Court dismissed the bands’ claims.  While the Court’s brief discussion of equality rights recognizes that the legislation at issue drew a distinction between Indians and non-Indians, the Court’s judgment focuses on the broader context of the distinction rather than a formalistic application of comparator groups.

[55] Auton, note 9.

[56] Auton, note 9 at para. 62.

[57] Auton, note 9 at para. 55; see also Hodge, note 47 and Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 [Granovsky].  For an excellent discussion of this critique, see Daphne Gilbert and Diana Majury, “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” (2006) 24 Windsor Y.B. Access Just. 111 [Gilbert and Majury].

[58] Gilbert and Majury, note 56 at 130.

[59] Gilbert and Majury, note 56 at 130.

[60] Gilbert and Majury, note 56 at 132.

[61] Gilbert and Majury, note 56 at 130-131.

[62] Gilbert and Majury, note 56 at 131.

[63] Gilbert and Majury, note 56 at 130-132.

[64] Eldridge, note 10.

[65] Auton, note 9; Sagahrian, note 9; Wynberg, note 9.

[66] See e.g. Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen’s University Press, 1996); and Mary Eberts, “The Charter and equality rights: The Vriend case” (September-October 1999) 7:4-5 Canada Watch, online: Robarts Centre for Canadian Studies, Canada Watch, <http://www.yorku.ca/robarts/projects/canada-watch/pdf/vol_7_4-5/eberts.pdf> (last accessed: 9 July 2010).

[67] Irwin Toy, note 9 at 993-994.

[68] Similarly, the defences established by legislatures in human rights statutes also incorporate cost considerations.  If a complainant is able to establish that he or she has been discriminated against, the onus shifts to the respondent to establish a bona fide justification, which a respondent may do by demonstrating that it could not accommodate the complainant short of undue hardship.  Under Ontario’s human rights legislation, there are only three considerations in assessing whether an accommodation would cause undue hardship: cost, outside sources of funding, and health and safety risks (Human Rights Code, R.S.O. 1990, c. H.19, s. 17 (2) [Code]).  Federal human rights legislation sets out health, safety and cost as relevant considerations for the undue hardship analysis (Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 15(2)).  Similarly, the Saskatchewan Human Rights Code defines undue hardship as “intolerable financial cost or disruption to business” (S.S. 1979, c. S-24.1, s. 2(1)(q)).  Thus, claimants face a similar obstacle to the recognition of rights to supports under human rights statutes as they do under the Charter, namely, that cost considerations may justify a refusal to provide disability-related supports.

[69] Auton, note 9 at paras. 35, 43.

[70] R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes] at paras. 69-71.

[71] Cameron v. Nova Scotia (Attorney General), [1999] N.S.J. No. 297 [Cameron], leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 53.

[72] Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66 [NAPE].

[73] Cameron, note 70 at para. 214, citing Eldridge, note 10 at para. 85.

[74] Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54 [Martin].  The legislation at issue excluded chronic pain from the purview of the regular workers’ compensation system and provided, in lieu of the benefits normally available to injured workers, a four-week Functional Restoration Program beyond which no further benefits were available.  Of particular relevance were the following provisions from the Nova Scotia Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as amended by S.N.S. 1999, c. 1 and the Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96:

Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as amended by S.N.S. 1999, c. 1

10A   In this Act, “chronic pain” means pain

(a) continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered or otherwise predated the pain; or

(b) disproportionate to the type of personal injury that precipitated, triggered or otherwise predated the pain,

and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome, and all other like or related conditions, but does not include pain supported by significant, objective, physical findings at the site of the injury which indicate that the injury has not healed.

10B  Notwithstanding this Act, Chapter 508 of the Revised Statutes, 1989, or any of its predecessors, the Interpretation Act or any other enactment,

(a) except for the purpose of Section 28, a personal injury by accident that occurred on or after March 23, 1990, and before February 1, 1996, is deemed never to have included chronic pain;

(b) a personal injury by accident that occurred before February 1, 1996, is deemed never to have created a vested right to receive compensation for chronic pain;

(c) no compensation is payable to a worker in connection with chronic pain, except as provided in this Section or in Section 10E or 10G or, in the case of a worker injured on or after February 1, 1996, as provided in the Functional Restoration (Multi-Faceted Pain Services) Program Regulations contained in Order in Council 96-207 made on March 26, 1996, as amended from time to time and, for greater certainty, those regulations are deemed to have been validly made pursuant to this Act and to have been in full force and effect on and after February 1, 1996.

10E  Where a worker

(a) was injured on or after March 23, 1990, and before February 1, 1996;

(b) has chronic pain that commenced following the injury referred to in clause (a); and

(c) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits; or

(d) as of November 25, 1998, had a claim under appeal

(i) for reconsideration,

(ii) to a hearing officer,

(iii) to the Appeals Tribunal, or

(iv) to the Nova Scotia Court of Appeal,

or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired,

the Board shall pay to the worker a permanent-impairment benefit based on a permanent medical impairment award of twenty-five per cent multiplied by fifty per cent, and an extended earnings replacement benefit, if payable pursuant to Sections 37 to 49, multiplied by fifty per cent and any appeal referred to in clause (d) is null and void regardless of the issue or issues on appeal.

185 (1) Subject to the rights of appeal provided in this Act, the Board has exclusive jurisdiction to inquire into, hear and determine all questions of fact and law arising pursuant to this Part, and any decision, order or ruling of the Board on the question is final and conclusive and is not subject to appeal, review or challenge in any court.

252 (1) The Appeals Tribunal may confirm, vary or reverse the decision of a hearing officer.

 

Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96

2     In these regulations … 

(b)   “chronic pain” means pain

(i)      continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered, or otherwise predated the pain, or

(ii)     disproportionate to the type of personal injury that precipitated, triggered, or otherwise predated the pain;

and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome, and all other like or related conditions, but does not include pain supported by significant, objective, physical findings at the site of the injury which indicate that the injury has not healed …

3   (1)   Chronic pain is included in the operation of Part I of the Act, subject to the terms and conditions set out in these regulations.

(2)     For greater certainty, except as provided in these regulations, chronic pain is and is deemed always to have been excluded from the operation of Part I of the Act, and no compensation is payable in connection with chronic pain except in accordance with these regulations.

4    There is hereby established a program of the Board known as the Functional Restoration (Multi-Faceted Pain Services) Program.

5    A worker may be designated by the Board as a participant in the Functional Restoration (Multi-Faceted Pain Services) Program if

(a)     the worker is suffering from chronic pain; and

(b)    the worker has, at the time of designation, a loss of earnings subsequent to a compensable injury and identifies pain and pain-related symptoms as the reason for the loss of earnings.

6   No worker may be designated as a participant in the Functional Restoration (Multi-Faceted Pain Services) Program if more than twelve months have elapsed since the worker’s date of injury.

7    (1)     Participation in the Functional Restoration (Multi-Faceted Pain Services) Program is limited to four weeks.

(2)     During a worker’s participation in the Functional Restoration  (Multi-Faceted Pain Services) Program, the worker is eligible to  receive a benefit equal to the amount of temporary earnings-replacement benefits the worker would have received if the worker were eligible for temporary earnings-replacement benefits.

8   (1)     These regulations apply to all decisions, orders or rulings made  pursuant to the Act on or after February 1, 1996. 

(2)    For greater certainty, these regulations apply to any decision, order or ruling made on or after February 1, 1996, concerning eligibility for compensation or the calculation or re-calculation of an amount of compensation.

(3)    Despite subsections (1) and (2), where a decision, order or ruling was made by the Board or the Appeal Board before February 1, 1996, finding that a worker has a permanent impairment in connection with chronic pain but not fixing the worker’s permanent-impairment rating, a rating shall be awarded pursuant to Section 34 and compensation may be paid accordingly pursuant to Sections 226, 227 or 228 of the Act, as the case may be.

(4)    Despite subsections (1) and (2), where a decision, order or ruling was made by the Board or the Appeal Board before February 1, 1996, fixing a worker’s permanent-impairment rating, the rating is deemed to be the rating to which the worker is entitled and compensation shall be paid accordingly pursuant to Sections 226, 227 or 228 of the Act, as the case may be.

 

[75] Kapp, note 41 at paras. 37-40. Section 14 of the Code protects ameliorative programs from discrimination claims.

[76] Ball v. Ontario (Community and Social Services), 2010 HRTO 360 [Ball].

[77] Ball, note 75 at paras. 110-116.

[78] Ball, note 75 at para. 123, see also paras. 110-125. 

[79] Ball, note 75 at para. 88, see also paras. 81-87.

[80] Ball, note 75 at paras. 89-109.

[81] See Ontario, Ministry of Finance “2010 Ontario Budget”, online: Ontario Ministry of Finance, <http://www.fin.gov.on.ca/en/budget/ontariobudgets/2010/> (last accessed: 14 May 2010).  The Ontario Human Rights Commission (“Commission”) has recognized this potential obstacle to enforcing rights to disability-related supports in the context of mass transit systems.  The Commission has taken a policy position that transit services for individuals with disabilities are not special programs, but an accommodation measure that allows persons with disabilities to access transportation services.  As noted by the Commission, this interpretation has the effect of ensuring that these transit services are subject to the general analysis under human rights legislation and “are not insulated from careful scrutiny on the basis of being a special program that transit providers are opting, but not required, to provide.”  (Ontario Human Rights Commission, “Human Rights Commissions and Economic and Social Rights”, A Research Paper from the Policy and Education Branch (October 2001) at 33, online: Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/discussion_consultation/EconomicSocialRights> (last accessed: 3 May 2010)).

[82] Eldridge, note 10 at paras. 95-96.

[83] G. (J.), note 20 at paras. 102-104.

[84] Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at 104, quoted with approval in G. (J.), note 20 at para. 102.

[85] As noted in the introduction to this section, the focus of this section is on potential legislative pathways to the establishment or recognition of rights to supports, given the Law Commission’s mandate of legislative reform.  However, it is worth noting that the preceding review of Canadian jurisprudence also suggested potential litigation strategies that may enhance the success of legal claims for disability-related supports.  For example, the barrier posed by courts’ formal approach to equality suggests that claimants should utilize legal strategies that will refocus judicial analysis on substantive equality.  One way claimants may do so is by using contextualized comparative analyses in their claims (Gilbert and Majury, note 56 at 140).  If the analysis for disability supports is focused on contextual needs, as the claimants attempted to do in Auton for example, substantive outcomes are more likely to be realized.  Another potential way for claimants to refocus judicial analysis on substantive equality is to emphasize the need to consider equality values when considering other rights and statutory provisions. For example, claimants might emphasize that the pre-existing disadvantage of persons with disabilities requires an expansion of the existing interpretation of the right to life, liberty, and security of the person.  Similarly, if claimants emphasize the need to consider equality values within the section 1 analysis this may enhance their success because of the difficulty the government will have in proving that a Charter violation advances equality values.  Indeed, in a number of cases different judges of the Supreme Court have indicated that equality interests should be considered in interpreting the scope and content of section 7 and in the section 1 analysis (see, for example, the concurring judgment of L’Heureux-Dubé J. in G. (J.), note 20, and the dissenting judgments of L’Heureux-Dubé J. and Arbour J. in Gosselin, note 9.  As this report focuses on law reform, pursuant to the Law Commission’s mandate, a detailed discussion of such litigation strategies is beyond its scope.

[86] Martin, note 73.  Similarly, in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, the Supreme Court found that a distinction between physical and mental disabilities in the provision of income replacement benefits under an employer’s insurance policy violated Saskatchewan’s human rights legislation.  In Saskatchewan (Department of Finance) v. Saskatchewan (Human Rights Commission), [2004] S.J. No. 637, 2004 SKCA 134, the Saskatchewan Court of Appeal held that the exclusion of chronic alcoholism from the purview of the disability benefit legislation reflected an outdated view of addiction and constituted discrimination contrary to the province’s human rights legislation.

[87] Eldridge, note 10 at para. 71.

[88] Eldridge, note 10 at paras. 95-96. See also Canadian Assn. of the Deaf v. Canada (F.C.), [2007] 2 F.C.R. 323, 2006 FC 971, where the Court found that the federal government’s guidelines for the administration of its Sign Language Interpretation Policy denied deaf and hard-of-hearing Canadians the opportunity to fully participate in government programs, because the effect of the guidelines was to deny interpretation services to members of the public where required to allow them to participate meaningfully in government programs.  At paragraph 96, the Court stated that, “Substantive equality means that all Canadians must be able to interact with government institutions when approached by them to participate in surveys and programs.  Given the special situation of deaf persons, this requires accommodation through visual interpretation services.”  This judgment was not appealed.

[89] Eldridge, note 10 and Chaoulli, note 17 provide good examples of issues that could be framed as either positive or negative claims.  The claim in Eldridge could have been framed as a right to sign-language interpreters; the claim in Chaoulli as the right to healthcare.

[90] Code, ss. 11 and 17.

[91] Gilbert and Majury, note 56 at 139.

[92] Gilbert and Majury, note 56 at 140.

[93] Andrews, note 1 at para. 26.

[94] This paper focuses on American jurisprudence considering statutes that provide for disability-related supports because our brief review indicates that, like Canadian courts, American courts are reluctant to interpret constitutional protections to include affirmative duties on States.  Thus, a comparative analysis of American constitutional law jurisprudence is unhelpful because it simply highlights obstacles to the imposition of positive obligations under constitutional law. 

[95] Olmstead v. L.C., 119 S. Ct. 2176, 527 U.S. 581 (1999) [Olmstead]; Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (2000) [ADA].

[96] ADA, note 94, § 12101(a)(2), (3), (5).

[97] Olmstead, note 94 at 22.

[98] Olmstead, note 94 at 15-16.

[99] Cedar Rapids Community School Dist. v. Garret F., 119 S. Ct. 992, 526 US 66 (1999) [Cedar Rapids]; Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. [IDEA].

[100] IDEA, note 98, § 1401, § 1412.  The IDEA is “spending clause legislation,” meaning that it only applies to States that accept federal funding under the IDEA, but all fifty U.S. states receive IDEA funding.  See Terry Jean Seligmann, “Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation” (November 6, 2009) Drexel University Earle Mack School of Law Research Paper No. 2009-A-23, online: Social Science Research Network <http://ssrn.com/abstract=1501303> (last accessed: 30 April 2010) (forthcoming: Tulane Law Review, May 2010); Richard N. Apling and Nancy Lee Jones, Congressional Research Service Report for Congress, Individuals with Disabilities Education Act (IDEA): Overview and Selected Issues, RS22590 (last updated 14 January 2009), online: Open CRS, <http://opencrs.com/document/RS22590> (last accessed: 30 April 2010) at 2 n. 5.

[101] Cedar Rapids, note 98 at 4, 6-7, 11.

[102] Regulations of the Offices of the Department of Education, 34 C.F.R. Part 300 § 300.550; IDEA § 1401(26).

[103] Cedar Rapids, note 98 at 12-13.

[104] IDEA, note 98 § 1401(26).

[105] The Convention was ratified by Canada on 11 March 2010.  Thus, there is also the possibility of relying on the Convention as a source of law in domestic constitutional challenges, as the courts often look to international law in interpreting domestic law.  However, a fulsome consideration of the possibility of using the Convention in this manner is beyond the scope of this paper.

[106] Convention, note 11, Preamble.

[107] Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” 30 (2008) Human Rights Quarterly 494 at 507.

[108] Convention, note 11, Art. 3(c).

[109] Convention, note 11, Art. 29.

[110] Convention, note 11, Art. 30.

[111] Convention, note 11, Art. 30.

[112] Mégret, note 106 at 509.

[113] Convention, note 11, Arts. 24(1), 24(2)(a),(b).

[114] Eaton, note 2 at paras. 32, 78, 79.

[115] Eaton, note 2 at para. 77.

[116] Education Act, note 31.

[117] In Ismail v. Toronto District School Board, [2006] O.J. No. 2470 (Ont. S.C.J.), the Divisional Court upheld the Special Education Tribunal’s decision confirming the Toronto District School Board’s decision to place the child in a special education classroom on the basis that he was an exceptional student.  With respect to section 17, the Court simply stated that, “When making a decision on placement, the IPRC must, before considering a placement in a special education class, consider whether placement in a regular class, with special education services, would meet the pupil’s needs and be consistent with the parents’ preferences.” (para. 13). 

Similarly, in Ms. I. v. Toronto District School Board, File 46c, 2005-11-17 (Ontario Special Education Tribunal), the Tribunal merely stated that its decision had been made in accordance with the language of section 17, without analyzing the meaning of that section (at 21-22).  In Y. v. X.X. District School Board, File No. 31, 2002-02-18 (Ontario Special Education Tribunal), the School Board argued that section 17 created a presumption in favour of placement in a regular classroom, but the Special Education Tribunal does not state whether it agrees with this interpretation (at 21).  

[118] Eaton, note 2.  Ontario Regulation 181/98, made pursuant to the Education Act, note 31.  In fact, the Supreme Court of Canada has already indicated its willingness to use inclusive legislative language to impose positive obligations on government.  In its unanimous judgment in Eldridge, the Court noted that American legislation, including the ADA, specifically imposes a requirement on health care providers to supply appropriate auxiliary aids and services, including qualified sign language interpreters, to ensure “effective communication” with deaf persons (Eldridge, note 10 at para. 80).  This arguably influenced the Court’s conclusion that section 15 requires government to provide sign language interpretation where it is necessary for “effective communication” between deaf persons and their physicians (Eldridge, note 10 at paras. 71-72). 

A current example of broad language in Canadian benefits-conferring legislation is that used in the Canada Health Act, R.S.C. 1985, c. C-6, a statute which establishes the criteria and conditions in respect of insured health services and extended health care services that each province must meet in order to be eligible for the full cash contribution of the federal government.  Section 3 of the Canada Health Act provides that:

It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.

Such expansive language may make it easier for a court to find that there is a positive obligation on government to provide certain disability-related supports.

[119] Eldridge, note 10 at para. 80.

[120] Eldridge, note 10 at paras. 71-71.

[121] Another important difference between the South African legal system and Canadian and American legal systems is that the latter are common law jurisdictions whereas South Africa’s legal system is a hybrid one, with a mix of English common law, Dutch civil law, and indigenous law (also referred to as African customary law).

[122] Government of the Republic of South Africa and Others v. Grootboom and Others, [2000] ZACC 19; 2000 (11) BCLR 1169 [Grootboom] at para. 99; Constitution of the Republic of South Africa 1996, No. 108 of 1996, s. 26 [Constitution].

[123] Minister of Health and Others v. Treatment Action Campaign and Others (No. 2), [2002] ZACC 15, 2002 (10) BCLR 1033 (CC) [T.A.C.] at para. 135.

[124] As Paul Nolette has noted, framing socio-economic rights as right “of access” delineates the outer boundaries of the judiciary’s role in enforcing these rights, as it makes clear that courts are not “free to provide ‘unlimited rights on demand’ without regard to the actual circumstances of the individual(s) seeking relief” (“Lessons Learned from the South African Constitutional Court: Towards a Third Way of Judicial Enforcement of Socio-Economic Rights” (2003-2004) 12 Mich St. J. Int’l L. 91 at 107).  In Grootboom and T.A.C. the Court emphasized that the rights of access to housing and health services are expressly limited to “reasonable … measures”, within “available resources”, towards “progressive realization” (emphasis added) (Grootboom, note 121 at paras 39-46, 54-74, 88-92; T.A.C., note 122 at paras. 23-24, 28-39, 67-73).

[125] Grootboom, note 121 at paras. 56, 57, 65, 69, 95.

[126] Grootboom, note 121 at paras. 41 and 46.  The Court found that it did not have sufficient information nor was it appropriate in this case to determine what would comprise the minimum core obligation under the constitutional right of access to adequate housing (para. 33).

[127] Grootboom, note 121 at para. 95.

[128] Grootboom, note 121 at para. 65.

[129] T.A.C., note 122 at para. 135.

[130] T.A.C., note 122 at para. 135.

[131] T.A.C., note 122 at paras. 38-39.

[132] T.A.C., note 122 at para. 128.

[133] Grootboom, note 121 at para. 43.

[134] Convention, note 11, Art. 4(1)(f).

[135] Convention, note 11, Art. 2.  In addition to the Convention’s definition of “universal design” there is also a set of seven Principles of Universal Design developed by a group of architects, product designers, engineers and environmental design researchers at the Centre for Universal Design at North Carolina State University.  These principles may be applied to evaluate existing designs, to guide the design process, and to educate designers and consumers about more usable products and environments.  The seven principles are: equitable use; flexibility in use; simple and intuitive use; perceptible information; tolerance for error; low physical effort; and size and space for approach and use: M. Story, “Maximizing Usability: The Principles of Universal Design” 10:1 Assistive Technology 4.  See also Phyllis Gordon, “A Federal Disability Act: Opportunities and Challenges”, A Paper Commissioned by the Council of Canadians with Disabilities and Canadian Association for Community Living (October 2006) at 41, online: Council of Canadians with Disabilities <http://www.ccdonline.ca/en/socialpolicy/fda/1006#Universal> (last accessed 8 June 2010), where the author discusses using universal design in a proposed Federal Disability Act.

[136] Martin, note 73.

[137] Government of British Columbia, Ministry of Employment and Income Assistance, “Disability Lens” (August 2002), online: Ministry of Employment and Income Assistance <http://www.mhr.gov.bc.ca/PUBLICAT/DB/DisabilityLens.htm> (last accessed: 7 July 2010); Manitoba Disabilities Issues Office, “Full Citizenship: A Manitoba Strategy on Disability”, online: Manitoba Disabilities Issues Office <http://www.gov.mb.ca/dio/citizenship/account.html#len> (last accessed: 7 July 2010); Government of Canada, Department of Justice, “Integrated Diversity and Equality Analysis Screen” (July 2009), online: Department of Justice <http://www.justice.gc.ca/eng/dept-min/pub/ideas-giade/> (last accessed: 7 July 2010); City of Toronto, “Equity Lens”, online: City of Toronto <http://www.toronto.ca/diversity/equity-lens-q-a.htm> (last accessed 7 July 2010).

[138] Government of British Columbia, Ministry of Employment and Income Assistance, “Disability Lens” (August 2002), online: Ministry of Employment and Income Assistance <http://www.mhr.gov.bc.ca/PUBLICAT/DB/DisabilityLens.htm> (last accessed: 7 July 2010);

[139] Ontario Public Service Diversity Office (Discussion on 7 July 2010).  Ontario’s accessibility lens will likely be renamed as the IDEA lens (Inclusive Diverse Equitable Accessible).

 

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