As stated in the introduction, the purpose of this paper includes identifying pathways to the establishment or recognition of a right to disability-related supports. For the purpose of this paper, the term “pathways” refers to different legislative approaches that would work towards establishing secure access to necessary disability-related supports. This section of the paper assumes that any legislative approach must operate within the fiscal constraints of government and that government is unlikely to enact legislation granting a right to disability-related supports without any limit for its fiscal reality. If a statutory right to disability-related supports does include such a limit, the courts would likely interpret the right to include such considerations, as they have under the Charter.
The preceding section emphasized the obstacles to enforcing and establishing rights to supports under the Charter and human rights legislation. In contrast, this section draws on those obstacles to identify potential legislative pathways to the recognition of rights to supports. In addition to the potential pathways suggested by Canadian jurisprudence and legislation, an examination of jurisprudence from other countries as well as international instruments is useful in finding potential pathways to the recognition of supports. As such, this section considers pathways to the recognition of supports suggested by Canadian, American, and South African jurisprudence and by the Convention.
A. Framing Claims to Supports as a Gap in an Existing Program or Accommodation in an Existing Service
Claimants have achieved some success where they are able to frame their claims as a gap in an existing program or service rather than the creation of a new program. In two seminal cases before the Supreme Court of Canada, claimants successfully established that existing legislation that provided benefits to people with disabilities discriminated against them based on their type of disability. In Martin, the Court found that provisions of Nova Scotia’s workers’ compensation legislation which entirely excluded chronic pain from the purview of the regular workers’ compensation system violated section 15 by imposing differential treatment upon injured workers suffering from chronic pain on the basis of the nature of their physical disability. In that case, the Court emphasized that the provisions at issue did not further the ameliorative purpose of the legislation, as the provisions deprived injured workers of an opportunity to establish the validity of their individual claims for compensation on a fair basis. The legislation at issue provided for the benefit sought by the claimants generally (workers’ compensation), thus they were able to frame their claim as a gap in an existing program.
Similarly, in Eldridge, claimants were able to enforce rights to disability-related supports (sign language interpretation) by framing their claim as an accommodation required to access an existing government program (medical services). In that case, the Supreme Court held that where sign language interpretation is necessary for deaf patients to communicate effectively with their doctors, sign language interpretation is an integral part of the medical services provided. It is “the means by which deaf persons may receive the same quality of medical care as the hearing population.” While the judgment in Eldridge provides that deaf persons must be able to communicate with their physicians, which may require the provision of sign language interpretation in some cases, it does not impose a freestanding obligation on government to provide deaf persons with sign language interpretation.
In Martin and Eldridge, it is central to the claimant’s success that the disability-related support that is being sought can be framed as a gap in an existing program or an accommodation required to access an existing program. While the claims in these cases cannot be classified as strictly negative, they fall closer to the negative rights end of the spectrum because a finding of discrimination does not mean that the government is under a constitutional obligation to provide the benefit sought. Instead, once the government has provided a benefit, it is under a constitutional obligation to do so in a non-discriminatory manner. In other words, had the government not already chosen to provide the program or benefit at issue in each case, the claims would have failed.
The ability to frame a claim to supports as a gap in an existing program does not guarantee the success of that claim, as evidenced by Gosselin, where the claim was framed as a gap in the government’s provision of welfare benefits but failed nonetheless. However, as seen in Auton and Wynberg, a freestanding claim to disability-related supports is less likely to be successful because courts are largely unwilling to impose freestanding constitutional obligations on government. Thus, where possible, claimants should attempt to frame their claims to supports as a gap in an existing program or service because this may enhance their success in achieving access to disability-related supports. Admittedly, not all claims for supports can be framed as gaps in existing programs and therefore many necessary disability-supports may be excluded, but it is one option for enforcing rights to supports.
However, this not only suggests litigation strategy, but also a legislative approach to establishing a right to supports. In fact, to the extent that a person is seeking an accommodation in an existing program, the government has already implemented this legislative pathway by imposing a duty on public and private entities to accommodate persons with disabilities under Ontario’s Human Rights Code [Code]. While the Code does place a legal obligation on government to accommodate persons with disabilities in existing programs, that duty does not address government obligations where the program or service at issue is not already being provided.
On one hand, limiting the duty to accommodate to existing programs may allow the legislature to define the limits of the right and to allay some of the courts’ fears regarding the expenditure of public resources. On the other hand, as one expert we spoke with suggested, the definition of the duty to accommodate under the Code could be expanded by the legislature to include circumstances where the support sought is not already one provided by government. Redefining the parameters of the duty to accommodate is beyond the scope of this paper, however it is a possibility that deserves both scholarly and legislative attention.
B. Statutory Language that Promotes Substantive Equality
As discussed above, where the framework used to adjudicate claims for supports is based on a formal approach to equality, even if only implicitly, such claims are likely to fail. Thus, Canadian jurisprudence suggests that any right to supports must be based in substantive equality.
One way claimants may do so is by using contextualized comparative analyses in their claims. In Andrews, McIntyre J. emphasized that equality is “a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises.” 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. Indeed, a contextual approach may be particularly relevant for those seeking disability-related supports as the need of people with disabilities for certain supports may be heightened by their membership in other disadvantaged groups, such as older adults or women. In assessing the social context of an impugned distinction, it should be relevant to courts that, for example, the sub-group of older persons with disabilities has been historically marginalized in our society.
While the Law Commission cannot direct the courts’ interpretation of equality principles, the legislature could provide greater clarification to ensure that all disability-related rights are interpreted so as to encourage substantive rather than formal equality. In the sections that follow, the paper reviews American and international examples of how such an approach might be included in Ontario statutes
1. Olmstead and Cedar Rapids: American Recognition of Rights to Supports
This section focuses on American cases that relate to statutes that establish specific and substantive rights to supports for persons with disabilities. An examination of two significant American cases regarding disability-related supports shows the potential for language in benefit-conferring statutes to promote substantive, equitable outcomes.
In Olmstead v. L.C. [Olmstead], the United States Supreme Court considered the government’s obligation to place persons with mental disabilities in community settings rather than institutions in the context of anti-discrimination legislation, the Americans with Disabilities Act (ADA). The opening provisions of the ADA set out the findings of Congress, which are applicable to all parts of the statute. These include:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as … institutionalization …; …
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, … failure to make modifications to existing facilities and practices, … [and] segregation …
The majority of the Court in Olmstead found that the prohibition of discrimination, requires the State to provide,
…community-based treatment for persons with mental disabilities [rather than institution-based treatment] when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restricted setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
The Court emphasized that the recognition of undue segregation as discrimination reflects two legislative judgments: undue institutionalization perpetuates stereotypes that the isolated persons are incapable of participating in community life, and that institutionalization severely diminishes an individual’s ability to participate in community life. Because the legislation in issue specifically recognized that substantive equality requires, where possible, the inclusion of persons with disabilities, the statutory language buttressed the majority’s conclusion that the government had a positive obligation to provide community-based treatment to qualified persons with disabilities.
In Cedar Rapids Community School Dist. v. Garret F. [Cedar Rapids], the United States Supreme Court considered the State’s obligation to provide one-on-one nursing services for students with disabilities in the context of the Individuals with Disabilities Education Act (IDEA), federal legislation designed to ensure free appropriate public education for children with disabilities. The IDEA authorizes federal financial assistance to States that provide children with disabilities with special education and “related services”. In finding that the State has an obligation to provide a student dependent on a ventilator with nursing services during school hours, the majority emphasized the wording and purposes of the IDEA. It highlighted the fact that the IDEA expressly requires that children with disabilities be educated with children who do not have disabilities to the maximum extent appropriate and defines “related services” to encompass supportive services that “may be required to assist a child with a disability to benefit from education.” The majority explained that the purposes of the IDEA required the State to fund the services sought in order to ensure that children with disabilities are integrated into public schools.
In both Olmstead and Cedar Rapids, the majority’s consideration of the language used in the legislation at issue is critical to the finding that the State is obliged to provide the respective supports sought by claimants. The explicit indication in the ADA that undue institutionalization is discrimination supports the finding that the State has a positive obligation to provide treatment to qualified persons with disabilities in community-based settings. Similarly, the wide definition of “related services” in the IDEA, coupled with its emphasis on integrated education, promotes the view that States are required to provide students with the nursing services they require to remain in public schools. These cases suggest that statutory language that promotes substantive equality may be relied upon in establishing and enforcing rights to disability-related supports. Where broad definitions of services are used, and the purposes of the legislation are explicitly set out, people with disabilities may be able to rely on the statutes to impose a positive obligation on government to provide disability-related supports.
2. The Convention on the Rights of Persons with Disabilities: International Recognition of Rights to Supports
Similar to the language used in the ADA and IDEA, the use of participatory, inclusive language that promotes substantive equality is also evident in the Convention. Unlike the Charter and human rights statutes in Canada, the Convention goes further than prohibiting discrimination by explicitly requiring States to take positive action to remove barriers faced by people with disabilities to their “participation as equal members of society”. The use of inclusive, participatory language throughout the Convention is significant, because it focuses “on the societal dimension of the rights experience, thereby departing from human rights’ traditional emphasis on the relationship of the individual to the state.”
The right to “full and effective participation and inclusion in society” is one of the Convention’s “General Principles”. The Convention explicitly recognizes the right to participate “in public and political life” and the right to participate in “cultural life, recreation, leisure and sport,” both of which are supplemented by a number of provisions that elucidate their scope. As Frédéric Mégret has explained,
The vision of a “right to participation,” however, goes further than these two rights taken together. Lack of participation in society and in the community are seen both as an inherent part of the very definition of disability, a cause of persons with disabilities’ dismal rights experience, and what the Convention seeks to combat primarily. The whole Convention is infused by this notion of “participation” being something akin to a right more generally. That right goes beyond participation as the ability to stand and vote for public office, for example, or participate specifically in “cultural life, recreation, leisure and sport.” Rather, it is a broader demand, made not only to the state but also to society, to allow persons with disabilities to fully become members of society and the various communities of which they are part.
For example, the right to education ensures that people with disabilities can access an inclusive, quality, and free primary and secondary education on an equal basis with others in the communities in which they live, and are not excluded from the general education system because of their disability. The express provision for inclusive education is similar to the approach of the American IDEA. As seen in Cedar Rapids, this express provision may provide courts with legislative direction regarding educational supports.
3. Application to the Ontario Context
The potential for inclusive, statutory language (such as that used in the ADA, IDEA and the Convention) to promote judicial recognition of rights to supports may be elucidated by an example in the Canadian context. In Eaton v. Brant County Board of Education [Eaton], the Supreme Court had an opportunity to consider whether the placement of Emily Eaton, a student with a disability, in a segregated classroom amounted to discrimination under section 15 of the Charter. The Ontario Court of Appeal had found that the Charter and Ontario’s Human Rights Code require a presumption in favour of the integration of students with disabilities; however, the Supreme Court unanimously rejected that contention. Instead, the Court found that in determining whether a child with a disability should be taught in an integrated setting, “the decision-making body must determine whether the integrated setting can be adapted to meet the special needs of an exceptional child.” In the result, the Court upheld the initial determination that Emily Eaton should be placed in a segregated special education class.
While Eaton was an Ontario case, the Court did not apply Ontario’s current legislation relating to education, presumably because the applicable provision is contained in a regulation that came into effect after the facts under review in that case. Under Ontario’s current legislation relating to education, the process to be used by the committee tasked with determining what placement would be most appropriate for an “exceptional pupil” is set out as follows:
17. (1) When making a placement decision … the committee shall, before considering the option of placement in a special education class, consider whether placement in a regular class, with appropriate special education services,
(a) would meet the pupil’s needs; and
(b) is consistent with parental preferences.
(2) If, after considering all of the information obtained by it or submitted to it … that it considers relevant, the committee is satisfied that placement in a regular class would meet the pupil’s needs and is consistent with parental preferences, the committee shall decide in favour of placement in a regular class.
At present, there is little jurisprudence considering the effect of section 17, which means that it is unclear whether the provision merely requires that regular placement be considered first, or creates a presumption in favour of integration. However, if the Education Act contained a clear presumption in favour of integration at the time Emily Eaton’s placement decision was made, the Supreme Court may have found that she should have been placed in an integrated classroom, with the corresponding need for the government to adapt the integrated setting to meet Emily’s needs.
Indeed, it is still possible for section 17 to have this effect if courts were to interpret it as mandating a presumption of inclusion. The point is simply that explicit statutory language that promotes inclusion may enhance claims to disability-related supports. If an explicit obligation on government to integrate students with disabilities in “regular classrooms” was included in Ontario legislation, such as the Education Act or its Regulations, this might influence courts’ interpretation of government obligations to provide disability-related supports. In the context of education, such language might buttress the conclusion that the government is required to provide disability-related supports that a student requires in order to remain in class with students without disabilities, as the United States Supreme Court found in Cedar Rapids.
Similarly, the use of inclusive statutory language in other sectors, such as transportation, might influence the courts’ interpretation of government obligations to provide disability-related supports. If the legislature introduced inclusive language in transportation legislation, such as a requirement that mass transit be accessible to persons with disabilities, it is much more likely that a court would find that the government is obliged to provide the auxiliary aids necessary to ensure that persons with disabilities can access mass transit. In fact, the Supreme Court of Canada has already indicated its willingness to use inclusive legislative language to impose positive obligations on government in the context of healthcare. 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. 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.
It is worth noting that if the legislature was prepared to use inclusive statutory language to expand the scope of disability-related supports there might be fewer legal claims in court, as presumably the supports would be more inclusive from development and there would be less need to engage in litigation to enforce those rights.
C. Statutory Language that Recognizes Fiscal Constraints
As noted above, a significant obstacle to the recognition of rights to supports in Canadian jurisprudence is the courts’ deference to government allocation of scarce resources. While it is certainly true that government funding is limited, persons with disabilities cannot achieve substantive equality if fiscal constraints are used to negate their rights to disability-related supports entirely. With these realities in mind, this section seeks to identify potential legislative pathways to the recognition of rights to supports that might address courts’ concerns regarding limited government resources but at the same time affirm the right to disability-related supports.
1. South African Socio-Economic Rights
Unlike Canada and the United States, South Africa’s constitution explicitly provides for socio-economic rights. Because of this notable difference, it is useful to look to South African jurisprudence as it helps to show how legislatures can craft laws that provide for the rights to supports and how the judiciary can enforce such rights, while taking into account the limited resources of government. In two landmark decisions, the Constitutional Court elucidated its interpretation of the scope of socio-economic rights under South Africa’s constitution.
In Government of the Republic of South Africa and Others v. Grootboom and Others [Grootboom], the claimant sought to enforce a constitutional right of access to adequate housing. In Minister of Health and Others v. Treatment Action Campaign and Others (No. 2) [T.A.C.], the claimant sought to enforce a constitutional right of access to health care services. Central to the Court’s interpretation in each case is the language setting out socio-economic rights in South Africa’s constitution, which has two components. First, that “everyone has the right of access” to the specified rights, and second that “the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of” the right(s).
In Grootboom, the Court found that the state housing program in question fell short of the State’s constitutional obligation to provide a right of access to adequate housing because the program failed to provide any form of relief to those desperately in need of access to housing in face of the acute housing shortage in the area at issue. In reaching this conclusion, the Court paid careful attention to the express qualifications placed on socio-economic rights guaranteed in South Africa’s constitution. The Court emphasized that the precise content of the State’s obligation to provide adequate housing is primarily a matter for the legislative and executive branches of government, and that the content is governed by the availability of resources. The Court’s concern for the limited resources of government is evident, for example, in the remedy it ordered. While the lower court had ordered that the State was required to provide shelter and housing immediately upon demand, the Constitutional Court found that the constitutional right to adequate housing did not impose this obligation on the State, but instead obliged it to provide a coherent program to meet its obligations. In addition to the availability of resources, the Court focused on the context surrounding the claim. One of the reasons the Court found that the lack of short-term housing measures was unreasonable was that the nationwide housing program could not provide affordable houses for most people within a reasonably short time because of the scale of the nationwide housing crisis.
In T.A.C., where the claimant sought to enforce a constitutional right of access to health care services, the Court reaffirmed the balanced approach taken to enforcing socio-economic rights set out in Grootboom. In T.A.C., the Court found that the government failed to meet its constitutional obligation to provide access to health care services by refusing to make available a drug which reduces the risk of mother-to-child transmission of HIV even where it was medically indicated. It also breached its obligations by failing to make provision for training all counselors at hospitals and clinics on the use of this drug as a means of reducing mother-to-child transmission of HIV.
The Court affirmed that the right of access to health services is not a free-standing right with reference to the express qualifications on that right, including that the measures adopted are “within [the State’s] available resources.” This qualification buttressed the conclusion that courts are not suited to “rearranging budgets.” The remedy ordered by the Court expressly recognized that it was open to government to adapt its policy in a manner consistent with the Constitution if equally appropriate or better methods became available to it for the prevention of mother-to-child transmission of HIV. Further, the Court declined to impose a timeframe on government for developing a national program to prevent mother-to-child transmission of HIV. While the relief ordered by the Court in T.A.C. certainly went further into the content of the government’s obligation than in Grootboom, the Court nevertheless recognized both the need to balance government obligations with limited resources and the scope of the judiciary’s role.
In both cases, the Court focused on the actual circumstances of the claimants in determining whether the State had met its constitutional obligations, including looking at the issues in each case “in their social, economic and historical context.” The courts’ determinations of whether the program provided by the government met its constitutional obligations involved a contextual analysis of the remedial purpose of the program and the actual circumstances of the claimants. Further, the Court respected the limited resources available to government and the primary role of the legislative branch of government in defining the scope of its obligations.
2. Application to the Ontario Context
The cases of Grootboom and T.A.C. demonstrate that it is possible for the judiciary to enforce rights to supports while recognizing the limited funding of government and the scope of the judiciary’s role. While rights to socio-economic supports are not constitutionally guaranteed in Canada, a new statutorily recognized right to disability-related supports could expressly recognize that the right is limited by available resources, as the South African constitution does. Narrowing or restricting statutory rights to supports by expressly recognizing fiscal constraints may help respond to the concerns of Canadian courts and the legislature regarding the government’s allocation of scarce resources. Instead of allowing fiscal considerations to justify the infringement of a Charter right under section 1, courts might instead consider fiscal considerations as restricting the ambit of the support sought under section 7 and/or section 15.
There is a risk that such restrictions on statutory rights to supports may make it more difficult for claimants to enforce those rights, depending on where the burden fell to demonstrate the possibility of providing supports within available resources. Further, if the burden was placed on claimants to demonstrate the possibility of providing supports within available resources, it is likely that there would be fewer cases litigated in courts regarding the provision of disability-related supports due to this increased burden on claimants. Nonetheless, restricting rights to supports, either by recognizing fiscal constraints or in another manner, is an important potential pathway to the recognition of rights to supports. This type of restriction responds to judicial concerns that the allocation of scarce resources is a matter for the legislative branch of government. A fiscal restriction in the provision of supports also respects the fact that government resources are limited. Such a restriction is particularly useful where the supports do not exist and cannot be characterized as an accommodation within an existing program.
D. Incorporating Universal Design
As discussed above, claimants have achieved greater success in legal claims for disability-related supports where they are able to frame their claims as a gap in an existing program or service rather than the creation of a new program. This suggests that an important legislative pathway to the recognition of rights to supports is to broaden the scope of existing and new programs to include the widest possible segment of persons with disabilities. An examination of the Convention provides some direction on how legislation might be used in this manner.
1. The Convention’s Principles of Universal Design
One of the general obligations of States under the Convention is to “undertake or promote research and development of universally designed goods, services, equipment and facilities … and to promote universal design in the development of standards and guidelines.” The Convention defines “universal design” as the “design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”, but notes that “’universal design’ [should] not exclude assistive devices for particular groups of persons with disabilities where this is needed. Encouraging or requiring government to consider universal design in the determination of what supports it will provide may lead to the provision of supports that are accessible to a wider range of persons with disabilities.
Martin, discussed above, provides an example of how universal design might influence the provision of supports. If the Nova Scotia government had considered universal design in crafting the province’s workers’ compensation scheme it may have guided the government to include workers suffering from chronic pain in the regular scheme (instead of its decision to exclude them), since that would make the scheme usable by more persons. 
2. Application to the Ontario Context
At present, the federal government and several provinces and municipalities are either considering or already using the principles of universal design in creating and evaluating government policies and programs by adopting a “disability lens” or “accessibility lens”. A “disability lens” is a tool for government policy and program developers to identify, consider and address the impacts of any initiative (policy, program or decision) on persons with disabilities. The lens is essentially a checklist of questions that is posed about government initiatives to ensure that they include and respect persons with disabilities and do not have unintended adverse effects. In Ontario, the Ontario Public Service Diversity Office has developed an accessibility lens that is currently in draft form and is expected to be launched in September 2010. However, it is still unclear whether the accessibility lens will be published or whether it will remain an internal document. Thus, the Law Commission could encourage government to make the accessibility lens available publicly and to carry out public consultations with disability organizations with respect to the content of the accessibility lens. It could also recommend a legislative requirement that the government consider universal design and/or the accessibility lens when enacting new programs and policies, and/or when reviewing existing ones.
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