I. INTRODUCTION

A. The Meaning of Equality for People with Disabilities

 Equality for people with disabilities often requires more than formal equality or a simple guarantee that “things that are alike should be treated alike…” according to their actual rather than attributed characteristics.[2]  Formal equality, treating an individual in the same way as others who share his or her characteristics, may result in substantial inequality for people with disabilities.  For example, all individuals and all people with disabilities are treated equally, in a formalistic sense, if a building prohibits entry of animals.  However, people with service animals will be differentially impacted and effectively denied entry because of their disability resulting in inequality of access.

In contrast, substantive equality takes into account how the same treatment might affect individuals differently.  Substantive equality is particularly important for people with disabilities because it recognizes that action may be required to have their different needs accommodated.  Continuing the example above, an exception to the animal prohibition to allow the entry of service animals promotes substantive equality (or equality of outcome) rather than formalistic equality.  The elimination of disability discrimination often requires action, such as providing accommodations, and consideration of individual variation in the experience of disability;[3] “[t]he elimination of discrimination against people with disabilities is not furthered by ‘equal’ treatment that ignores their individual disabilities.”[4]

There are many different definitions of disability, most of which require action to further substantive equality, but the content of those obligations may differ depending on the model.  For example, the bio-medical approach to disability views disability as the result of impairment.  This approach aims to overcome or minimize the negative effects of an individual’s disability.  Because of its goal, the bio-medical definition of disability may entail obligations on government to provide different forms of medicine and rehabilitation.[5]  The social model of disability, which arose in response to critiques of the bio-medical model of disability, views disability as a result of socially constructed barriers.[6]  Similarly, the human rights approach to disability views it as a result of the interaction between an individual’s impairments and socially constructed barriers.[7]  The social and human rights models may entail obligations on government to remove barriers in transportation, buildings, and services that prevent people with disabilities from participating in society.[8]

Regardless of the model of disability employed and because of the unique nature of disability, establishing and enforcing rights to disability-related supports becomes paramount to achieve substantive equality.  However, Canadian courts have thus far been slow to recognize obligations on government to take action as part of rights to equality or rights to life, liberty, and security of the person under the Canadian Charter of Rights and Freedoms.[9]  The Supreme Court has explicitly acknowledged that the existence of such rights remains to be determined, but many claimants seeking recognition of such rights have failed.[10]

B. This Paper

The Law Commission of Ontario has undertaken the ambitious task of articulating principles and considerations for a coherent analytical framework that will address the law as it affects people with disabilities.  One challenge of this project, among many others, is how to address the issue of the right to disability-related supports for people with disabilities.  The question of whether and how the law can be used to establish and enforce rights to disability-related supports, such as social assistance; accommodation measures; or supports for activities of daily living, is an essential one.

In this paper, the term “supports” is used to refer to all of types of disability-related supports, whether financial supports, such as social assistance; accommodation measures, such as sign language interpretation; or supports for activities of daily living, such as personal support workers.  “Rights to supports” refers to the establishment and enforcement of rights to disability-related supports through the imposition of obligations on government. 

In this context, “positive rights” are contrasted with “negative rights”; the former are rights that necessitate action by the government, whereas the latter require only that the government abstain from curtailing rights.  For example, the right to healthcare is a positive one, entailing corresponding obligations on the government to provide medical services, whereas the right to refuse unwanted treatment requires only that the government abstain from interfering with one’s own treatment decisions. However, not all rights can be classified as strictly positive or negative; some fall along the spectrum between these two extremes.  For example, the right of deaf patients to be provided with sign language interpretation where required to access healthcare services is not strictly negative because it entails an obligation on government to provide interpretation.  On the other hand, it is not strictly positive because the right to sign language interpretation only exists where government is already providing the healthcare services in question.[11] 

This paper addresses the establishment and recognition of positive obligations on government to provide disability-related supports.  To be clear, this paper does not address the related issue of eligibility for disability-related supports once the government’s obligation to provide them has been recognized as this is the subject of another paper commissioned by the Law Commission.  Similarly, this paper does not address the issue of quality assurance once disability-related supports are provided.  While these are undoubtedly related and important issues that affect how meaningful a right to a support is, they are beyond the confines of this paper.

This case study reviews obstacles in current legal analysis to the recognition of legal rights to supports for people with disabilities with a view to identifying pathways to their establishment and recognition.  The analysis that follows is the result of research of both primary and secondary sources, including key appellate court decisions in Canada, the United States and South Africa, the Convention on the Rights of Persons with Disabilities [Convention], and literature in legal and critical disability studies regarding disability-related supports and positive obligations.[12]  While the Law Commission’s mandate is confined to Ontario, the review of Canadian caselaw extends across Canada, with a focus on the decisions of the Supreme Court of Canada.  Similarly, while the project is limited to the obstacles to the recognition of the right to disability-related supports, the review of caselaw is not restricted to reviewing cases that arise from such claims.

Informal consultations were conducted with experts in the disability-sector, which focused on identifying pathways to the recognition of rights to supports for persons with disabilities.  The findings of these consultations are incorporated within the appropriate sections of the paper.  In the sections that follow, the paper reviews the themes that emerged from this research.  

In section II, the paper reviews the current Canadian approach to disability-related supports, with a focus on the elements of judicial analysis that act as obstacles to claims for disability-related supports.  This review highlights Canadian courts’ reluctance to impose positive obligations on government under rights to equality or rights to life, liberty, and security of the person as well as the courts’ deference to government allocation of scarce resources. 

In section III, the paper considers different potential pathways to the recognition of disability-related supports.  First, it considers potential legislative pathways to the recognition of disability-related supports suggested by our review of Canadian jurisprudence.  It then considers legislative pathways suggested by our review of international sources, including American and South African legislation and jurisprudence, and the Convention.  The focus of this section is on legislative approaches that are within the Law Commission’s mandate of recommending law reform measures to make the law accessible to all Ontarians.[13]  Section IV reviews the findings of the paper and makes recommendations for law reform based on those findings.