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.[85]  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.[86]  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.”[87]  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.[88]

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.[89] 

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].[90]  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.[91] 

One way claimants may do so is by using contextualized comparative analyses in their claims.[92]  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.”[93]  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.[94]  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).[95]  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 …[96]

 

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.[97]

The Court emphasized that the recognition of undue segregation as discrimination