Even where government defendants do not make out “ameliorative program” defences, the raising of the defence itself is a barrier. Persons with disabilities are required to shield themselves from the operation of the defence, raised by sophisticated government respondents. In order to protect her complaint from the operation of defence, a litigant will have to take on additional legal expenses. The operation of the defence will also delay the resolution of the complaint.
“Ameliorative program” arguments reveal an evolving and unsettled area of law. Given that there is a great deal of confusion amongst experienced lawyers on these issues, an unrepresented person with a disability is not likely to fare well defending herself against an ameliorative program defence. Persons with disabilities are not likely to afford legal representation. For instance, the appellant in Larromana v. Ontario (Director of ODSP) (Section III.D above) was self-represented. The ODSP director was represented by two lawyers from the Constitutional Law Branch. In the same way, more than one half of applicants before the Human Rights Tribunal of Ontario are unrepresented.
Section 15, like the rest of the Charter, is mainly enforced by the courts. Such litigation can be very costly. To overcome this barrier, the Court Challenges Program was expanded in 1985 to fund Section 15 test cases. In 2006, the newly elected Federal government cut all funding to the Court Challenges Program. Persons with disabilities do not have access to the Court Challenges Program to support their Section 15(1) applications.
In the last two years, Legal Aid Ontario (LAO) has undertaken to change the way that it delivers services to people who can not afford a lawyer. Much of LAO’s legal services will be delivered by phone. Advocates fear that these changes may interfere with the chance that a person with a disability – who challenges the operation of an alleged “ameliorative program” – may find a lawyer through Legal Aid Ontario. There has been a reduction in the number of civil certificates issued. The Clinic Resource Office has limited resources to support community clinics who taken on complex cases that raise the ameliorative program defence.
The Supreme Court in 2007 pulled back on the availability of advance costs in the case of Little Sisters. The bookstore sought interim costs from the government to cover their legal expenses, because they could no longer afford to continue the litigation. The majority of the Court set a high bar for the test to award interim costs. The award of interim costs was, in the majority’s words, “rare and exceptional”.
Some charge that Section 15 has become impracticable for claimants from equity seeking groups. Instead, they suggest Section 7 of the Charter as an alternative. Some claim that the human rights system is a less-cumbersome alternative to Charter claims. Indeed, an ameliorative program may be constitutional, but nevertheless breach the Code. In any case, the expansion of the Section 15(2) defence – illustrated in the following Sections – further restricts the utility of Section 15 for equity seeking claimants, including persons with disabilities.
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