As the Law Commission of Ontario has recognized, the complexity of the legal issues affecting persons with disabilities means that a principled, analytic framework is required. In this context, this paper has sought to evaluate the elements of judicial analysis in Canada that act as obstacles to the enforcement of rights to disability-related supports. It found that the major obstacles to judicial enforcement of disability-related supports are the reluctance to impose positive obligations on government; a formal approach to equality; deference to government allocation of scarce resources; difficulties with challenging ameliorative programs; and the limits to remedies that will be ordered.
At present, it is clear that Canadian courts are largely unwilling to impose positive obligations on government under the Charter and human rights statutes. While the significant obstacles to enforcing rights to supports through the Charter should not foreclose these kinds of legal challenges, the obstacles make it clear that such challenges cannot be the only pathway to the recognition of rights to supports if substantive equality is to be achieved.
Our review of Canadian jurisprudence and international sources has suggested that law reform initiatives may also be a significant pathway to achieving substantive equality. Legislation that explicitly promotes the inclusion and participation of people with disabilities but also recognizes fiscal limitations has the potential to respond to the judiciary’s reluctance to impose positive obligations on government, its deference to government’s allocation of resources, and governmental concerns on the potential cost of a right to disability-related supports. Based on the paper’s findings, the authors make the following recommendations for law reform:
The legislature should explicitly recognize the importance of substantive equality rather than formal equality in the interpretation of all Ontario statutes, particularly the Human Rights Code
The importance of rights to supports for persons with disabilities should be explicitly acknowledged in benefit-conferring legislation
Legislation that is specifically geared to persons with disabilities should use language that facilitates the inclusion and participation of persons with disabilities
If necessary, a broad recognition of a right to disability-related supports could recognize fiscal limitations to their provision
Government should consider universal design when enacting new programs and policies, and/or when reviewing existing ones
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