Endnotes2017-03-03T18:35:39+00:00

[1] As noted in Chapter VI, “Next Steps”, the LCO will be developing simplified materials related to the Framework, and will be applying it to a new project on the law of capacity and guardianship.

[2] Some basic demographic information related to the experience of disability in Ontario is set out in Chapter II.C of this Final Report.

[3] See Law Commission of Ontario, A Framework for the Law as It Affects Older Persons: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: Law Commission of Ontario, April 2012). Online: http://www.lco-cdo.org/en/content/older-adults [Older Adults Final Report]. All project documents can be found online in this location.

[4] Convention on the Rights of Persons with Disabilities, 13 December 2006, GA Res 61/106, UNGAOR, 61st Sess, UN Doc A/RES/61/106 (entered into force 3 May 2008, ratified by Canada 11 March 2010). Online: http://www.un.org/Docs/asp/ws.asp?m=A/RES/61/106 [CRPD].

[5] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Online: http://laws-lois.justice.gc.ca/eng/charter/ [Charter].

[6] Human Rights Code, RSO 1990, c H-19, s 1. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm [Code].

[7] Federal-Provincial-Territorial Ministers Responsible for Social Services, In Unison: A Canadian Approach to Disability Issues, Cat No: SP-113-10-98E (Hull, QC: Human Resources Development Canada, 1998). Online: http://web.archive.org/web/20090202214940/http://socialunion.gc.ca/pwd/unison/unison_e.html [In Unison (1998)]. Updated in 2000. Online: http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/income-security-reform/in-unison-2000 [In Unison (2000)].

[8] Law Commission of Ontario, Preliminary Consultation Paper: Approaches to Defining Disability (Toronto: Law Commission of Ontario, June 2009). Online: http://www.lco-cdo.org/disabilities/Disabilities%20Threshold%20Paper%20-%20July%202009.pdf [Threshold Paper].

[9] The Commissioned Research Papers can be found on the LCO website at http://www.lco-cdo.org/en/disabilities-call-for-papers.

[10] Law Commission of Ontario, The Law as It Affects Persons with Disabilities, Consultation Paper (Toronto: Law Commission of Ontario, September 2011). Online: http://www.lco-cdo.org/disabilities-consultation-paper.pdf [Disabilities Consultation Paper].

[11] Michael Bach & Lana Kerzner, A New Paradigm for Autonomy and the Right to Legal Capacity (Law Commission of Ontario: November 2010). Online: http://www.lco-cdo.org/en/disabilities-call-for-papers [Bach & Kerzner].  Margaret Hall, Developing an Anti-Ageist Approach with Law (Toronto: Law Commission of Ontario, September 2009). Online: http://www.lco-cdo.org/en/older-adults-lco-funded-papers-margaret-hall [Hall, note 11]. The LCO commenced a project on the law of capacity and guardianship in the summer of 2012.

[12] Information about the Conferences and copies of Conference Papers can be accessed online: http://www.lco-cdo.org/en/older-adults-conference.

[13] For a more detailed discussion of the relationship between aging, health and impairment, see Older Adults Final Report, note 3, Ch II.C.2.

[14] Michael Oliver, “Societal responses to long term disability” in Gale Whiteneck et al, eds, Ageing with Spinal Cord Injury (New York: Demos Publications, 1993), 253.

[15] Mark Priestley, “Disability and Old Age” in Disability: A Life Course Approach (Cambridge: Polity Press, 2003),143 [Priestley].

[16] Priestley, note 15.

[17] Priestley, note 15, 161.

[18] The Ontario Public Service (OPS) Inclusion Lens is a comprehensive analytical tool developed by the OPS Diversity Office to assist OPS staff in considering various dimensions of diversity in developing, implementing or reviewing policies, programs or services. Seventeen dimensions of diversity are identified in this tool, including (both younger and older) age, disability, gender and socio-economic status.  For a brief discussion of the Inclusion Lens see OPS Diversity Office, 2011 OPS Diversity Annual Report: Toward Inclusion (Toronto: Queen’s Printer, 2011), 14. Online: http://www.mgs.gov.on.ca/en/Diversity/STD01_081769.html [Toward Inclusion, note 18].

[19] The HEIA is intended for use across the health system. As of fall 2011, all 14 LHINs had received training on HEIA. Training has also been provided to MOHLTC staff. This tool was developed by the Ministry of Health and Long-Term Care in collaboration with Ontario’s Local Health Integration Networks as a means of supporting improved health equity and reducing avoidable health disparities between population groups. It provides a step-by-step approach to analyzing how a particular program or policy may affect population groups in different ways.  The HEIA tool consists of two parts, a template and a workbook:  Ministry of Health and Long-Term Care, Health Equity Impact Assessment Template (Toronto: Queen’s Printer, 2011). Online: http://www.health.gov.on.ca/en/pro/programs/heia/tool.aspx [HEIA Template]; Ministry of Health and Long-Term Care, Health Equity Impact Assessment Workbook (Toronto: Queen’s Printer, 2011). Online: http://www.health.gov.on.ca/en/pro/programs/heia/tool.aspx [HEIA Workbook]. [HEIA Template & Workbook,  note 19]

[20] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate, ISBN 0-7794-0687-7 (Toronto, Ontario Human Rights Commission: 2000). Online: http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate [Disability Policy].

[21] Christine Ogaranko, Beverly Froese, & Nicole Chammartin, Mental Health and Human Rights Evaluation Instrument (Winnipeg: Mental Health Commission of Canada, Public Interest Law Centre and Canadian Mental Health Association Winnipeg Region, November 30, 2011) [Mental Health Evaluation Instrument].

[22] Disability Rights Promotion International (DRPI) is a collaborative project to establish a comprehensive, sustainable international system to monitor human rights of people with disabilities. DRPI has designed a template to help monitors collect and analyze disability rights law, policy and program information. The template covers all of the rights guaranteed by the Convention on the Rights of Persons with Disabilities (CRPD, see note 4). The template helps monitors to identify gaps in legislation and policy and includes cross-references to provisions of core international human rights treaties, including the CRPD. Information about DRPI and copies of its publications can be obtained online at http://drpi.research.yorku.ca [DPRI].

[23] The LCO’s most recent strategic plan, for January 2012 to December 2016, is available on the LCO website: Law Commission of Ontario, LCO Strategic Plan: Jan 2012-Dec 2016 (Toronto: Law Commission of Ontario, 19 January 2012), online http://www.lco-cdo.org/en/strategic-plan-2012-2016 [Strategic Plan].

[24] Threshold Paper, note 8.  The OBA highlighted the limitations of using a model-based approach, including the fact that models are constantly being debated, modified and reformulated in academic circles (at p 4) and that it is difficult to come up with a model that will work across all areas and address all situations effectively; ARCH also took the position that a principles-based approach was more beneficial than a model-based approach: See Ontario Bar Association, Working Group on the Law as It Affects Persons with Disabilities, Submission to the Law Commission of Ontario: Law as it Affects Persons with Disabilities (Ontario Bar Association, 28 August 2009) (Chair: Mark Berlin). Online: http://www.oba.org/en/pdf/OBA_Law_as_it_Affects_Persons_with_Disabilities_Submission.pdf [OBA Submission]; ARCH Disability Law Centre, Submission of ARCH Disability Law Centre to the Law Commission of Ontario: Law as it Affects Persons with Disabilities (Toronto: ARCH Disability Law Centre, 30 September 2009). Online: http://www.archdisabilitylaw.ca/?q=law-it-affects-persons-disabilities [ARCH Submission].

[25] Environics Research Group, Canadian Attitudes Towards Disability Issues, A Qualitative Study: Final Report, prepared for the Government of Canada Office of Disability Issues (2004), 9, 32-34 [Canadian Attitudes].

[26] The Ontario Human Rights Commission recently expressed concern about this issue in Ontario Human Rights Commission, Right at Home: Report on the Consultation on Human Rights and Rental Housing in Ontario (Toronto: Ontario Human Rights Commission, 28 May 2008) 78-80. Online: http://www.ohrc.on.ca/en/right-home-report-consultation-human-rights-and-rental-housing-ontario [OHRC, Right at Home]. See also the discussion in Roeher Institute, Disability, Community and Society: Exploring the Links (North York, ON: Roeher Institute, 1996), 57.

[27] OBA Submission, note 24, 23.

[28] This issue was discussed at considerable length in Threshold Paper, note 8. Models of disability include the “biomedical model”, which locates the experience of disability within the impairments of individuals; the “functional model” which focuses on the functional limitations caused by impairments (and thereby includes some consideration of the impact of environment on the experience of disability); the “social model” which locates disability within society rather than the individual, focussing on social and environment barriers to inclusion; the “human rights model”, which recognizes persons with disabilities as a disadvantaged group; the “universalism model” described elsewhere in this Report and many others.

[29] Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 SCR 665. Online: http://scc.lexum.org/en/2000/2000scc27/2000scc27.html [Mercier]. 

[30] The World Health Organization’s International Classification of Functioning (ICF) includes, as part of its approach to disability, a series of “Contextual Factors” which highlight the role of the environment in the experience of disability. These include the natural environment and human-made changes to the environment, supports and relationships, attitudes, services, systems and policies, and products and technology. For an introduction to the ICF, see World Health Organization, Towards a Common Language for Functioning, Disability and Health (Geneva: World Health Organization, 2002). Online: http://www.who.int/classifications/icf/training/icfbeginnersguide.pdf [Common Language].

[31] Various terminology has been used to help identify the broader societal forces that contribute to the experience of disability. The influential decision of the Supreme Court of Canada in Mercier referenced the social element in the construction of “disability”. International documents such as the ICF refer to “environmental” barriers. See Mercier, note 29; Common Language, note 30.

[32] As is highlighted in note 28 above, there are a number of “models” of disability which may influence law, policy and practice. The Threshold Paper explores several of these models and their implications for this project (Threshold Paper, note 8). In general, an older approach that understands disability as a bio-medical issue and focuses on “fixing” persons with disabilities has been broadened by the development of a social model that focuses attention on the disabling effects of environments and on the removal of these socially constructed barriers.

[33] Human Resources Development Canada, Advancing the Inclusion of People with Disabilities: A Report of the Government of Canada, December 2002, Cat No RH37-4/1-2002E, ISBN 0-662-33225-3 (Gatineau, QC: Queen’s Printer of Canada, 2002), 5. Online: http://publications.gc.ca/collections/Collection/RH37-4-1-2002E.pdf [Advancing Inclusion (2002)].

[34] Canadian Attitudes, note 25, 9.

[35] “About Universal Design Principles,” online: The Centre for Universal Design, http://www.ncsu.edu/www/ncsu/design/sod5/cud/about_ud/about_ud.htm [Universal Design].

[36] See Irving Zola, “Disability Statistics: What We Count and What It Tells Us: A Personal and Political Analysis” (1993) 4 Journal of Disability Policy Studies 9, 24 [Zola (1993), note 36]; see also Richard Scotch & Kay Schriner, “Disability as Human Variation: Implications for Policy” (1997) 549 Annals of the American Academy of Political and Social Science 148, 154 [Scotch & Shriner]; see also Jerome Bickenbach et al, “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps” (1999) 48 Social Science and Medicine 1173, 1182 [Bickenbach]; see also Douglas Surtees, “What Can Elder Law learn From Disability Law” in Israel Doron ed, Theories on Law and Ageing (Berlin: Springer Publications, 2009) 93, 101 [Surtees].

[37] Scotch & Shriner, note 36, 154; Surtees, note 36, 99, citing Michael Stein, “Disability Human Rights” (2007) 95 Cal L Rev 75, 75, 86 [Stein].

[38] Irving Zola, “Toward the Necessary Universalizing of a Disability Policy” (1989) 67 The Milbank Quarterly 401, 410 [Zola (1989)].

[39] Scotch & Shriner, note 36, 158; Bickenbach, note 36, 1183.

[40] This is acknowledged by the Ontario Human Rights Commission (Disability Policy, note 20), which proposes a three step approach to ensuring non-discriminatory employment, housing and services: first universal design to prevent barriers; then, barrier removal to identify and remove existing barriers; and, finally, individual accommodation to address remaining needs.

[41] Priestley, note 15, 33.

[42] Threshold Paper, note 8.

[43] Ontario Disability Support Program Act, 1997, SO 1997, c 25, sch B, s 1. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_97o25b_e.htm [ODSPA].

[44] ODSPA, note 43, s 1.

[45] Deb Mathews, Review of Employment Assistance Programs in Ontario Works and Ontario Disability Support Program (Ministry of Community and Social Services, December 2004), 25. Online: http://www.mcss.gov.on.ca/documents/en/mcss/social/publications/EmploymentAssistanceProgram_Matthews_eng1.pdf.

[46] Information about the Commission for the Review of Social Assistance in Ontario may be found at the Commission’s website at http://www.socialassistancereview.ca. The Commission’s report is expected in the summer of 2012. The Commission is intended to develop an action plan to help those who can and want to work to obtain jobs, provide security for those who cannot work and ensure social assistance programs work better with other federal, provincial and municipal income security programs (online: http://www.socialassistancereview.ca/about-the-review).

[47] Commission for the Review of Social Assistance in Ontario, A Discussion Paper: Issues and Ideas (June 2011), 28-29. Online: http://www.socialassistancereview.ca (http://www.socialassistancereview.ca/commission-publications).

[48] See, for example, Income Security Advocacy Centre, Denial by Design: The Ontario Disability Support Program (2003). Online: http://www.incomesecurity.org/documents/DenialByDesignfinal.pdf [Denial by Design].

[49] The policies surrounding earnings exemptions should be understood in the context of other government initiatives and benefits intended to support ODSP recipients who are working, such as deductions for disability-related employment expenses, extending health benefits for those who leave social assistance for employment, rapid reinstatement programs and others. (Denial by Design, note 48, 10).

[50] Ontario Disability Support Program Act General Regulations, O Reg 222/8, s 38. Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980222_e.htm [ODSP Regulations].  The calculation and policy intent is explained in ODSP Income Support Directive 5.3. Online: http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/odsp_Incomesupport.aspx. The Directive notes that the policy is intended “to encourage recipients to move towards financial independence”, online: http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/directives/ODSPDirectives/income_support/5_3_ODSP_ISDirectives.aspx.

[51] ODSP Action Coalition, Dignity, Adequacy, Inclusion: Rethinking the Ontario Disability Support Program (Toronto: Income Security Advocacy Centre, 2011), 30. Online: http://sareview.ca/isac-resources/dignity-adequacy-inclusion-rethinking-the-ontario-disability-support-program/ [ODSP Action Coalition, Dignity]; John Stapleton, “Zero Dollar Linda”: A Meditation on Malcolm Gladwell’s “Million Dollar Murray,” the Linda Chamberlain Rule, and the Auditor General of Ontario, ISBN 978-0-9808981-2-5 (Toronto: Metcalf Foundation, November 2010), 21-23. Online: http://metcalffoundation.com/publications-resources/view/zero-dollar-linda-a-mediation-on-malcolm-gladwells-million-dollar-murray-the-linda-chamberlain-rule-and-the-auditor-general-of-ontario/ [Stapleton, Zero Dollar Linda].

[52] John Stapleton, Stephanie Procyk, and Lindsay Kochen, What stops us from working?:  New ways to make work pay, by fixing the treatment of earnings under the Ontario Disability Support Program (Toronto: CAMH, May 2011) 14-15. Online: http://www.camh.net/Public_policy/Public_policy_papers/ODSP%20Report%20final.pdf [What Stops Us From Working?].

[53] What Stops Us From Working?, note 52, 26.

[54] ODSP Action Coalition, A Proposal for ODSP Rule Changes: ‘Stupid Rules’ have Dire Consequences (Toronto: Scarborough Community Legal Services, January 2010), 11. Online: http://www.odspaction.ca/story/stupid-rules-create-dire-consequences [Stupid Rules].

[55] See R v. Kapp, 2008 SCC 41, [2008] 2 SCR 483. Online: http://scc.lexum.org/en/2008/2008scc41/2008scc41.html [Kapp] for the Supreme Court of Canada’s most recent restatement of the section 15(1) test, and an important decision regarding the interpretation of section 15(2), in the context of the federal government’s Aboriginal Fisheries Strategy. The Court ruled that a distinction in a government program based on an enumerated or analogous ground will not constitute discrimination if it has an ameliorative or remedial purpose (although this need not be its sole purpose), and it targets a disadvantaged group identified by enumerated or analogous grounds. The legislative goal of a program will by the paramount consideration in determining whether it falls within the ambit of section 15(2).

[56] See for example, Council of Canadians with Disabilities v. VIA Rail Canada Inc, 2007 SCC 15, [2007] 1 SCR 650. Online: http://scc.lexum.org/en/2007/2007scc15/2007scc15.html [Via Rail]; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 SCR 703. Online: http://scc.lexum.org/en/2000/2000scc28/2000scc28.html [Granovsky]; British Columbia (Superintendent of Motor Vehicles) v. BC (Council of Human Rights), [1999] 3 SCR 868. Online: http://scc.lexum.org/en/1999/1999scr3-868/1999scr3-868.html [BC Council of Human Rights]; Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624. Online: http://scc.lexum.org/en/1997/1997scr3-624/1997scr3-624.html [Eldridge]; Eaton v. Brant County Board of Education, [1997] 1 SCR 241. Online: http://scc.lexum.org/en/1997/1997scr1-241/1997scr1-241.html [Eaton]; Battleford and District Cooperative Ltd v. Gibbs, [1996] 3 SCR 566. Online: http://scc.lexum.org/en/1996/1996scr3-566/1996scr3-566.html [Battleford].

[57] Code, note 6, s 1.

[58] Section 29 of the Human Rights Code (see note 6, s 1), gives the Ontario Human Rights Commission broad powers to promote and advance human rights and to promote the elimination of discriminatory practices by, for example, developing policies and public education campaigns, undertaking enquiries, directing and encouraging research, and reviewing policies, programs and statutes. Part IV of the Code sets out the mechanism whereby applications may be brought to the Human Rights Tribunal of Ontario regarding allegations of discriminatory treatment.

[59] Statistics regarding human rights complaints from 1999-2008 can be accessed through the Annual Reports of the Ontario Human Rights Commission, available online at http://www.ohrc.on.ca/en/resources/annualreports. The Annual Report of the Human Rights Tribunal of Ontario for 2009 – 2010 can be found online at http://www.hrto.ca/hrto/?q=en/node/26, and indicates that approximately 52 per cent of all new applications that year cited disability as one of the grounds of discrimination.

[60] Ontarians with Disabilities Act, 2001, SO 2001, c 32. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_01o32_e.htm [ODA]. 

[61] Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_05a11_e.htm [AODA].

[62] The Accessibility Standards for Customer Service, O Reg 429/07. Online: http://www.e-laws.gov.on.ca/html/source/regs/english/2007/elaws_src_regs_r07429_e.htm [Customer Service Standards], came into force 1 January 2010 for designated public sector organizations and 1 January 2012 for other providers of goods or services (O Reg 429/07, s 2). The Integrated Accessibility Standards, O Reg 191/11. Online: http://www.e-laws.gov.on.ca/html/source/regs/english/2011/elaws_src_regs_r11191_e.htm [Integrated Accessibility Standards], sets standards related to employment, information and communications, and transportation, and there are various compliance deadlines for these standards. Work continues towards the development of standards for the built environment. Information about standards development under the AODA (note 61) can be found online at http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/

[63] CRPD, note 4.

[64] Canada has not signed the Optional Protocol, see online: United Nations Treaty Collection http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en.

[65] CRPD, note 4, art 1.

[66] Secretariat of the Convention on the Rights of Persons with Disabilities, Backgrounder: Disability Treaty Closes a Gap in Protecting Human Rights (United Nations Department of Public Information, May 2008). Online: United Nations Enable http://www.un.org/disabilities/default.asp?id=476 [Secretariat].

[67] Secretariat, note 66, ch 2. Online: United Nations Enable http://www.un.org/disabilities/default.asp?id=225.

[68] Canadian Human Rights Commission, Background Paper on the Convention on the Rights of Persons with Disabilities Article 33. Online: CHRC, http://www.chrc-ccdp.ca/unconvention_conventionnu/page1-eng.aspx [CHRC, Article 33].

[69] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Analytical Report, cat no 89-628-XIE, ISSN 1915-0466, ISBN 978-0-662-47181-3 (Ottawa: Software and Computer Services Division, 2007), 9. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-628-XIE2007002 [PALS 2006 Analytical Report].

[70] PALS 2006 Analytical Report, note 69, 16.

[71] PALS 2006 Analytical Report, note 69, 13.

[72] Approximately 21 per cent of Ontario families with a child with a disability report financial disabilities related to their child’s disability. Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Tables (Ottawa: Statistics Canada, 2008), 7. Online: http://www.statcan.gc.ca/pub/89-628-x/89-628-x2007003-eng.pdf [PALS 2006 Tables].

[73] In terms of employment, 28 per cent report that because of the effects of their child’s disability, they did not take a job, while 22 per cent quit working altogether, 40 per cent reduced their work hours, and another 20 per cent turned down a promotion: PALS 2006 Tables, note 72, 12).

[74] Sixty per cent of Ontario parents caring for a child with a disability report stress related to their child, and 68 per cent indicated that they felt they should be doing more for their child (PALS 2006 Tables, note 72, 7-8).

[75] Ninety-two per cent reported that the child’s disability caused stress or depression (PALS 2006 Tables, note 72, 10).

[76] Less than a quarter of Ontario families with a child with a disability receive financial assistance or subsidies for child care expenses: PALS 2006 Tables, note 72, 14. Just over a quarter of these families report full support from a professional or the community is available for their child, and almost 30 per cent report that no support is available at all: PALS 2006 Tables, note 72, 9. Almost half (46.5 per cent) desire additional help to care for their child: PALS 2006 Tables, note 72, 7.

[77] See, for example, Bill Wilkerson, The Business Case for Accessibility (Toronto: Queen’s Printer, 2001); Martin Institute for Competitiveness and Prosperity, Releasing Constraints: Projecting the Economic Impacts of Increased Accessibility (June 2010); MaRS Best Practices, Beyond Compliance to Innovation, the Business Case for Accessibility (April 2011), online: http://www.slideshare.net/webgoddesscathy/beyond-compliance-to-innovation-the-business-case-for-accessibilty-mars-best-practices.

[78] The complexity of attempts to define “disability” and place parameters around who is and is not “disabled” is discussed in the Threshold Paper (note 8). It is not the intent here to limit the term, but to highlight the diversity of experiences that may fall within this broad category.

[79] PALS 2006 Analytical Report, note 69, 10.

[80] PALS 2006 Tables, note 72, 70.

[81] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Labour Force Experience of People with Disabilities in Canada, cat no 89-628-XIE2008007, ISSN 1915-0466, ISBN 978-1-100-10258-0 (Ottawa: Statistics Canada, 2008), 14. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-628-XIE2008007 [PALS 2006 Labour Force Experience].  It is possible that this relates to differences in the types of disabilities that men and women face.

[82] First Nations adults are 1.6 times more likely to live with a disability than are other Canadians: RHS National Team, First Nations Regional Longitudinal Health Survey 2002/3: Results for Adults, Youth and Children Living in First Nations Communities (Ottawa: Assembly of First Nations, 2007), 52. Online: First Nations Information Governance Centre http://www.rhs-ers.ca/node/11 [RHS].

[83] Of Aboriginal persons with a disability, 49.5 per cent have an income of less than $15,000 per annum, as compared to 39.7 per cent of Aboriginal individuals without a disability, 29.4 per cent of Canadians with a disability and 19.4 per cent of Canadians without a disability (RHS, note 82, 64).

[84] Note, however, that discrepancy decreases (but does not disappear) in older age, so that by age 75, the difference in income is reduced to approximately $1500 per year. Note also that the extent of the discrepancy will vary according to a range of other factors, including gender, Aboriginal status, reported severity of disability, and type of disability.  Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Tables Part V, cat no 89-628-XIE2008010, ISSN 1915-0466, ISBN 978-1-100-10495-9 (Ottawa: Statistics Canada, 2008), 8-10. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-628-XIE2008011 [PALS 2006 Tables (Part V)].

[85] PALS 2006 Labour Force Experience, note 81, 12.

[86] Canadian Association for Community Living, Achieving social and economic inclusion: from segregation to ’employment first’, ISBN 0-919070-15-9 (Toronto: Canadian Association for Community Living, 2011), 3. Online: http://www.cacl.ca/publications-resources/achieving-social-and-economic-inclusion-segregation-employment-first [Achieving Inclusion]; Cameron Crawford, The Employment of People with Intellectual Disabilities in Canada: A Statistical Profile, ISBN 978-1-897292-05-1 (Toronto: Institute for Research and Development on Inclusion and Society (IRIS), 2011). Online: http://irisinstitute.files.wordpress.com/2012/01/intellectual-disability-and-employment_iris_cr.pdf [Crawford]; Terry Krupa, Bonnie Kirsh, Rebecca Gewurtz, and Lynn Cockburn, “Improving the Employment Prospects of People with Serious Mental Illness: Five Challenges for a National Mental Health Strategy” (2005) 31:s1 Canadian Public Policy 59 [Krupa et al]; WCG International Consultants, Employment of Persons with Disabilities in the Province of Ontario: A Research Report (June 2006) 28 [Employment of Persons with Disabilities].

[87] Michael Mendelson, Ken Battle, Sherri Torjman and Ernie Lightman, A Basic Income Plan for Canadians with Severe Disabilities, ISBN 1-55382-488-1 (Ottawa: Caledon Institute of Social Policy, 2010), 7. Online: http://www.caledoninst.org/Publications/Detail/?ID=906 [Mendelson et al].

[88] Advancing Inclusion (2002), note 33, 49.

[89] See, for example, Ontario Human Rights Commission, The Opportunity to Succeed: Achieving barrier-free education for students with disabilities (Toronto: Ontario Human Rights Commission, 2003). Online: http://www.ohrc.on.ca/en/opportunity-succeed-achieving-barrier-free-education-students-disabilities [OHRC, Opportunity to Succeed]; Mona Paré, La Participation des personnes handicapées dans les decisions qui les concernent: L’exemple de l’éducation, (Toronto: Law Commission of Ontario: 15 July 2010). Online: http://www.lco-cdo.org/en/disabilities-call-for-papers-pare [Paré]; Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: A Profile of Education for Children with Disabilities in Canada (Ottawa: Ministry of Industry, 2008). Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-628-XIE2008004 [PALS 2006 Profile of Education]; Human Resources and Skills Development Canada, “Chapter 2: Education and Training,” Advancing the Inclusion of People with Disabilities 2009, Cat No RH37-4/1-2002E, ISBN 0-662-33225-3 (Gatineau QC: Human Resources and Skills Development Canada, 2009). Online: http://www.hrsdc.gc.ca/eng/disability_issues/reports/fdr/2009/page00.shtml [Advancing Inclusion (2009)]; Office of the Auditor General of Ontario, “Chapter 2: Public Accounts of the Province,” Annual Report of the Auditor General of Ontario  2008 (Toronto: Office of the Auditor General of Ontario, 2008). Online: http://www.auditor.on.ca/en/reports_2008_en.htm [Auditor General, 2008].

[90] Advancing Inclusion (2009), note 89, 27.

[91] Warren Clark, “Delayed Transitions of Young Adults” (2007) 84 Canadian Social Trends 13, 13.

[92] OHRC, Right at Home, note 26, 17.

[93] Code, note 6, s 2.

[94] Residential Tenancies Act, 2006, SO 2006, c 17, s 10. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06r17_e.htm [Residential Tenancies Act].

[95] OHRC, Right at Home, note 26, 18-21.

[96] PALS 2006 Labour Force Experience, note 81, 21.

[97] PALS 2006 Labour Force Experience, note 81, chart 2.

[98] PALS 2006 Labour Force Experience, note 81, chart 5.

[99] Ministry of Municipal Affairs and Housing, Housing Policy Branch, Building Foundations: Building Futures, ISBN 978-1-4435-5117-5 (Toronto: Queen’s Printer, 2010). Online: http://Ontario.ca/HousingStrategy [Housing Strategy].

[100] Wellesley Institute, Precarious Housing in Canada (Toronto: Wellesley Institute, 2010), 33. Online: http://www.wellesleyinstitute.com/publication/new-report-precarious-housing-in-canada-2010/ [Precarious Housing].

[101] The Ontario Renovates program provides funding assistance for repairs and renovations to maintain the affordability and improve the accessibility of eligible rental housing units. Ontario Renovates is one element of the Government of Ontario’s broader Investment in Affordable Housing program.   Ministry of Municipal Affairs and Housing, Investment in Affordable Housing Ontario Program Guidelines (Toronto: Queen’s Printer, August 2011), 33. Online: http://www.mah.gov.on.ca/AssetFactory.aspx?did=9288 [Housing Program Guidelines]. The Housing Services Act prescribes minimum numbers of units modified for persons with physical disabilities; Housing Services Act, 2011, SO 2011, c 6, sch 1, ss 41, 77. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_11h06_e.htm [Housing Services Act]; Housing Services Act General Regulations, O Reg 367/11, s 22, sch 4. Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_110367_e.htm [Housing Services Regulations].

[102] Debra Stewart et al, “Best Journey to Adulthood” for Youth with Disabilities: An Evidence-based Model and Best Practice Guidelines for the Transition to Adulthood for Youth with Disabilities (Hamilton, ON: CanChild, McMaster University, 2009). Online: http://transitions.canchild.ca/en/OurResearch/resources/BJAmodelandbestpracticeguidelinespdf2009.pdf; “Life Stage Transitions Services” (10 August 2009). Online: http://www.abilities.ca/organizations/2009/08/10/omd_easterseals_forum79/.  See also “Growing Up,” online: Holland Bloorview, Kids Rehabilitation Hospital http://www.hollandbloorview.ca/resourcecentre/growing_up/real_world_coaching.php; “Door to Adulthood,” online: Holland Bloorview, Kids Rehabilitation Hospital http://www.hollandbloorview.ca/door2adulthood/default.htm; “On Campus Housing for Students with Disabilities,” online: York University http://www.yorku.ca/stuhouse/Students_with_Disabilities.htm; and “Accessibility Services,” online: University of Toronto http://www.housing.utoronto.ca/Resources/Accessibility.htm.

[103] Gerard Quinn & Theresia Degener, “The Moral Authority for Change: Human Rights Values and the Worldwide Process of Disability Reform” in Gerrard Quinn & Theresia Degener, eds, Human Rights and Disability: The Current Use and Future Potential of United National Human Rights Instruments in the Context of Disability (New York: United Nations Publication, 2002) 9, 17 [Quinn & Degener].

[104] Shamira Mudhany, “Inclusion Lens: An Innovative View into Inclusive Policies, Programs and Services”, Canadian Government Executive (11 February 2011). Online: http://cgeit.itincanada.ca/index.php?cid=311&id=13934&np=1.

[105] Ministry of Government Services, Ontario Public Service Multi-year Accessibility Plan: Leading the Way Forward (Toronto: Queen’s Printer, 1 January 2012), 14. Online: http://www.ontario.ca/en/general/accessibilityplan/index.htm.

[106] For a brief history of the treatment of persons with intellectual disabilities in Ontario, see Kerri Joffe (ARCH Disability Law Centre), Enforcing the Rights of Persons with Disabilities in Ontario’s Development Services System (Toronto: Law Commission of Ontario: 30 June 2010), 12-20. Online: http://www.lco-cdo.org/en/disabilities-call-for-papers [Joffe].

[107] Canadian Attitudes, note 25, 9, 32-34. For a brief history of the treatment of persons with intellectual disabilities in Ontario, see Joffe, note 106.

[108] Interestingly, the LCO heard during the sister project on the law as it affects older persons that this is a significant issue for older persons because of the perceived link between aging and disability. See for example Charmaine Spencer, Ageism and the Law: Emerging Concepts and Practices in Housing and Health (Toronto: Law Commission of Ontario, 2009), 73. Online: http://www.lco-cdo.org/en/older-adults-lco-funded-papers-charmaine-spencer [Spencer] [Spencer, Ageism]. The Ontario Human Rights Code explicitly includes perceived disabilities in its definition of disability, providing some protection against this form of discrimination: see Code, note 6, s 10(3). The Supreme Court of Canada decision in Mercier addressed a set of cases where individuals with mild impairments that created no functional limitations were excluded from employment based on the perception that functional limitations and therefore accommodation needs might arise at a future point in time: Mercier, note 29.

[109] This point is made in the research paper prepared by the Income Security Advocacy Centre, Denial by Design, note 48.

[110] Bach & Kerzner, note 11, 6. Also see Joffe, note 106, 28.

[111] OBA Submission, note 24, 23.

[112] Eaton, note 56, para 67.

[113] Eldridge, note 56.

[114] Canadian Association for Community Living, Response to the Law Commission of Ontario’s Consultation Paper on the Law as It Affects Older Adults (July 2008), 4 [CACL Submission].

[115]  These provisions were the subject of a human rights complaint, which was upheld at the Human Rights Tribunal of Ontario. HRTO Adjudicator Peter Cory noted in his decision that inquests are important to the families of the deceased because “It is the one opportunity for the families to hear the truth pertaining to the death of their family member and an ability to confront those who testify. Most importantly, it provides an opportunity for a family to participate in the framing of recommendations that may often be of tremendous benefit in future” (para 20). This decision was subsequently overturned by the Divisional Court. See Braithwaite v. Ontario (Chief Coroner), 2006 HRTO 15, 56 CHRR D/171. Online: http://canlii.ca/t/1r78g; and Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481, 88 OR (3d) 455, 288 DLR (4th) 138, 165 CRR (2d) 228, 62 CHRR 315, 232 OAC 102 (ON SCDC). Online: http://canlii.ca/t/1v9bd.

[116] Courtney Evans & Daniel Bassili, Review of Coroners Inquests Involving Persons with Disabilities: 1989 – 2010 (April 2011) [unpublished, archived at the Law Commission of Ontario] [Evans & Bassili].

[117] PALS 2006 Labour Force Experience, note 81, 21.

[118] Gerber et al, “Beyond Transition: A Comparison of the Employment Experiences of American and Canadian Adults with LD” (August 2004) 37:4 Journal of Learning Disabilities 283, 287.

[119] Code, note 6, s 7.

[120] Code, note 6, s 17.

[121] The Human Rights Code Amendment Act, 2006 (SO 2006, c 30. Online: http://www.ontla.on.ca/bills/bills-files/38_Parliament/Session2/b107ra.pdf) came into effect June 30, 2008.

[122] Human Rights Tribunal of Ontario, Annual Report 2009-10 (Toronto, 2010) 3. Online: http://www.hrto.ca/hrto/?q=en/node/26. Recent Annual related to employment made up approximately 75 per cent of complaints citing the ground of disability during the fiscal years 2006-07 and 2007-08.

[123] Integrated Accessibility Standards, O Reg 191/11. Online: http://www.e-laws.gov.on.ca/html/source/regs/english/2011/elaws_src_regs_r11191_e.htm [Integrated Accessibility Standards, O Reg 191/11].

[124] Diane Pothier, “Tackling Disability Discrimination at work: Toward a Systemic Approach” (2010) 4 McGill J L & Health 17.

[125] Roeher Institute, Improving the Odds: Employment, Disability and Public Programs in Canada, (Toronto: Roeher Institute, 2004), 78 [Roeher, Improving the Odds].

[126] Hon. Michael Byrant in Ontario, Legislative Assembly, Official Report of Debates (Hansard), 38th Parl, 2nd Sess, No 72A (8 May 2006), 3647-3652. Online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2006-05-08&Parl=38&Sess=2&locale=en#P599_140181 [Hansard].

[127] Information on the mandate, timelines and activities of the Human Rights Review may be found at http://www.ontariohumanrightsreview.org/human-rights.

[128] For an extended discussion of these issues, see Julia Rendell, Transitions into Housing (26 August 2011) [unpublished, archived at the Law Commission of Ontario] [Rendell].

[129] This complexity, and the barriers it forms for users and potential users of ODSP, has been acknowledged by the Commission for the Review of Social Assistance in Ontario: Law Commission of Ontario, “Submission of the Law Commission of Ontario to the Commission for the Review of Social Assistance in Ontario” (29 August 2011), 8-9. Online: http://www.lco-cdo.org/en/law-commission-submission-crsao [LCO, “CRSAO Submission”].

[130] See Rendell, note 128, “Aboriginal People,” 20-21.

[131] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 11, Can TS 1976 No 46.

[132] Code, note 6, s 2.

[133] OHRC, Right at Home, note 26, 54. The most important case on the role of inclusive design in human rights is decision of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3. Online: http://scc.lexum.org/en/1999/1999scr3-3/1999scr3-3.html [Meiorin]. The Court stated, in the context of employment rules, that “Employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible” [at 38].

[134] A comprehensive discussion of the duty to accommodate in the context of rental housing may be found in Ontario Human Rights Commission, “Social and economic status,” Policy on Human Rights and Rental Housing, ISBN 978-1-4435-1097-4 (Toronto: Ontario Human Rights Commission, 21 July 2009), 29-37. Online: http://www.ohrc.on.ca/en/policy-human-rights-and-rental-housing [OHRC, Rental Housing Policy].

[135] Building Code, O Reg 350/06, s 3.8. Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_060350_e.htm [Building Code]. As well as the Barrier-Free requirements set out in section 3.8, there are other accessibility requirements throughout the Building Code, such as requirements for visual fire alarms (ss 3.2.4.18, 3.2.4.18, 3.2.4.20); a requirement that there cannot be obstructions larger than 100 mm from the walls of public corridors “in a manner that would create a hazard for a person with a visual disability traveling adjacent to the wall” (ss 3.3.1.9(3), 9.9.5.3(1)); and a requirement that corridors (ss 3.3.1.1.9(1), 3.3.3.3(4)(b)), aisles (s. 3.3.2.4), exits (s 3.4.3.2), pool/spa ramps (ss 3.11.5.1, 3.12.3(2)), and secondary rapid transit exits (s 3.13.4.5(5)) be at least 1 100 mm in order to accommodate wheelchair access [Building Code].

[136] Code, note 6, s 47(2).

[137] Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission Concerning Barrier-Free Access Requirements in the Ontario Building Code (Toronto: Ontario Human Rights Commission, 1 March 2002), 4. Online: http://www.ohrc.on.ca/en/submission-ontario-human-rights-commission-concerning-barrier-free-access-requirements-ontario [OHRC, Barrier-Free Access Submission]. Reliance on relevant buildings codes has been rejected as a defence to a claim of discrimination under the Code: Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474. 

[138] OHRC, Barrier-Free Access Submission, note 137, 4; Ontario Human Rights Commission, Moving towards barrier-free services: Final report on the restaurant accessibility initiative (Toronto: Ontario Human Rights Commission, July 2002), 5-6. Online: http://www.ohrc.on.ca/en/moving-towards-barrier-free-services-final-report-restaurant-accessibility-initiative [OHRC, Restaurant Accessibility]; Ontario Human Rights Commission, The Cost of Caring: Report on the consultation on discrimination on the basis of family status, ISBN: 978-1-4249-4281-7 (Toronto: Ontario Human Rights Commission, 29 November 2006), 62. Online: http://www.ohrc.on.ca/en/cost-caring-report-consultation-discrimination-basis-family-status [OHCR, Cost of Caring]; and OHRC, Right at Home, note 26, 55.

[139] See Disability Policy, note 20, section 4.1, as well as note 133 above.

[140]  OHRC, Right at Home, note 26, 55. The OHRC notes that during its consultations, “Concerns were raised about the failure of the existing Building Code to set standards for inclusive design…Many of the Commission’s concerns, noted in its 2002 submission on the Building Code  have not yet been addressed. Tenant advocates noted that the Building Code still does not ensure access for many people with disabilities, including people with large mobility devices and persons with environmental sensitivities.”

[141] Building Code, note 135. The provisions regarding aisles, corridors and exits are found in ss 3.3.1.1.9(1), 3.3.3.3(4)(b)), corridors, (s. 3.3.2.4) aisles, (s 3.4.3.2) exits. A helpful resource on this issue is C. D’Souza, E. Steinfeld, V. Paquet and J. White, DR #15: Clear Floor Area for Wheeled Mobility: Redefining the ‘common wheelchair’ (Buffalo: Centre for Inclusive Design and Environmental Access, January 4, 2011). 

[142] OHRC, Rental Housing Policy, note 134, 75.

[143] OHRC, Barrier-Free Access Submission, note 137, 4.

[144] OHRC, Barrier-Free Access Submission, note 137, 5.

[145] See Ontario Human Rights Commission, Ontario Human Rights Commission Submission to the Accessible Built Environment Standards Development Committee Regarding The Initial Proposed Accessible Built Environment Standard (Toronto: Ontario Human Rights Commission, 16 October 2009), 8. Online: http://www.ohrc.on.ca/en/ontario-human-rights-commission-submission-accessible-built-environment-standards-development [OHRC, Initial Accessible Built Environment Standard Submission].

[146] Office of the Auditor General of Ontario, Annual Report of the Auditor General of Ontario  2009 (Toronto: Office of the Auditor General of Ontario, 2009), 277. Online: http://www.auditor.on.ca/en/reports_2009_en.htm [Auditor General, 2009].

[147] Toronto Community Housing, “Frequently Asked Questions”. Online:  http://www.torontohousing.ca/media_centre/faq.

[148] Ministry of Municipal Affairs and Housing, Investment in Affordable Housing Ontario Program Guidelines (August 2011), 33 and following. Online: http://www.mah.gov.on.ca/AssetFactory.aspx?did=9288.  Ontario Renovates is one element of the Government of Ontario’s broader Investment in Affordable Housing program.

[149] Housing Services Act, note 101, ss 41, 77.

[150] AODA, note 61, s 1.

[151] AODA, note 61, s 4.

[152] AODA, note 61, s 3.

[153] Integrated Accessibility Standards, O Reg 191/11, note 123.

[154] See Ministry of Community and Social Services, “Accessibility Standard for the Built Environment” online: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/built_environment/index.aspx. A proposed Built Environment Standard was released in the summer of 2012, with consultations closing October 1, 2012. The proposed standard does not contain any provisions that directly relate to housing accessibility.

[155] Justice Ontario can be accessed at http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/ or by telephone at 1-866-252-0104. Information is provided in multiple languages.

[156] Note that the CRPD (see note 4), requires states parties to take appropriate measures to ensure that persons with disabilities have access on an equal basis with others to information and communication, and to information and communication technology (Art 9); and to “Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost” (Art 21).

[157] In a very recent decision, the Federal Court of Appeal found that the section 15 Charter rights (see note 5)of Jodhan, a person with a visual disability, had been violated, because she was not able to apply for jobs and access government information using her screen reading technology. The Court found that it was not sufficient for the information to be available by telephone or by fax, in that requiring Jodhan to rely on sighted assistance was demeaning and unequal: Jodhan v. Canada (Attorney General), 2012 FCA 161 (30 May 2012). Online: http://decisions.fca-caf.gc.ca/en/2012/2012fca161/2012fca161.html.

[158] Code, note 6, s 1.

[159] Code, note 6, s 17.

[160] Integrated Accessibility Standards, O Reg 191/11, note 123.

[161] Integrated Accessibility Standards, O Reg 191/11, note 123.

[162] For a discussion of these issues see Karen Cohl & George Thompson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services (Toronto: Law Foundation of Ontario, December 2008), 19. Online: http://www.lawfoundation.on.ca/linguistic_rural_access.php [Cohl & Thompson].

[163] Cohl & Thompson, note 162, 20.

[164] Joffe, note 106, 31. The author notes that stakeholders have described situations where persons with disabilities who made complaints were reprimanded or harmed by their support worker, or were the subject of threats, for instance to cut off ODSP benefits.

[165] For a thorough discussion of the legal issues surrounding rights to supports for  persons with disabilities see Bakerlaw, The Law As It Affects Persons with Disabilities: A Case Study Paper on Rights to Supports, by Meryl Zisman Gary, Cara Wilkie, & David Baker,  (Law Commission of Ontario: July 2010). Online: www.lco-cdo.org/en/disabilities-call-for-papers [Bakerlaw].

[166] The Exceptional Pupils Regulation, under the Education Act requires IPRC review committees to consider, with permission, the progress of the student under his or her IEP, which includes the transition plan (s 23(2)), see:

Identification and Placement of Exceptional Pupils, O Reg 181/98. Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980181_e.htm [Exceptional Pupils Regulation, O Reg 181/98]; Education Act, RSO 1990, c E-2, s 8(3). Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90e02_e.htm [Education Act].This provides an opportunity for review, as does the requirement for schools, under their guidance and career education programs, to provide exist programs for students who leave school upon or before graduation, a requirement that includes a review of the information in the transition plan for exceptional students. The Auditor General, in his 2008 Report, raised concerns about the effectiveness of the systems in place at that time: Auditor General, 2008, note 89, 381. Also see the update on this issue in Office of the Auditor General of Ontario, Annual Report of the Auditor General of Ontario 2010 (Toronto: Office of the Auditor General of Ontario, 2010), 392. Online: http://www.auditor.on.ca/en/reports_2010_en.htm [Auditor General, 2010].

[167] Ministry of Education, Individual Education Plans: Standards for Development, Program Planning and Implementation (Toronto: Queen’s Printer, 2000). Online: http://www.edu.gov.on.ca/eng/general/elemsec/speced/iep/iep.html.

[168] CRPD, note 4, art 27.

[169] OECD, Inclusion of students with disabilities in tertiary education and employment, ISBN 9789264097650 (Paris: OECD Publishing, 2011), 106. Online: http://dx.doi.org/10.1787/9789264097650-en [OECD, Education Report].

OCDE, L’inclusion des étudiants handicapés dans l’enseignement tertiaire et dans l’emploi, Politiques d’éducation et de formation, Paris, Éditions OCDE, 2011, à la p 106, en ligne : http://dx.doi.org/10.1787/9789264111714-fr.

[170] The Ministry of Education has been active in developing policies promoting equity and inclusive education: Ontario Ministry of Education, Equity and Inclusive Education in Ontario Schools: Guidelines for Policy Development and Implementation, 2009, ISBN 978-1-4435-0443-0 (Toronto: Queen’s Printer, 2009). Online:  http://www.edu.gov.on.ca/eng/policyfunding/inclusiveguide.pdf.  Under the ODA the Ministry and school boards are each responsible for developing accessibility plans: ODA, note 60, ss 10, 15.

[171] Roeher, Improving the Odds, note 125, 46.

[172] Ontario Ministry of Education, Transition Planning: A Resource Guide, 2002 (Toronto: Queen’s Printer, 2002), 20. Online: http://www.edu.gov.on.ca/eng/general/elemsec/speced/transiti/transition.html [Ontario, Transition Planning].

[173] Education Act, note 166, s 8(3). Subsection 1(1) of the Education Act defines “exceptional pupil” as “a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee”. Regulation 181/98 sets out a process for the identification and placement of exceptional students: Exceptional Pupils Regulation, O Reg 181/98, note 166.

[174] Education Act, note 166, s 8(3).

[175] Special Education Programs and Services, RRO 1990, Reg 306, ss 2(2) – 2(3). Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900306_e.htm.

[176] Exceptional Pupils Regulation, O Reg 181/98, note 166, ss 10, 26.

[177] Exceptional Pupils Regulation, O Reg 181/98, note 166, s 6(4).

[178] This restriction disadvantages students between the ages of 14 and 16 who may wish to have a say in planning for their future: Paré, note 89, 13.

[179] From Grade 7 onwards, students complete an Annual Education Plan (AEP), with support from their teacher-advisor, that sets out the student’s goals and plans for achieving those goals.  Ministry Guidelines recommend that the Annual Education Plan be integrated with transition planning, and that students take on as much responsibility as possible for planning their own future: Ontario, Transition Planning, note 172, 30.

[180] Exceptional Pupils Regulation, O Reg 181/98, note 166, s 6(7).

[181] Ontario Ministry of Education, Individual Education Plans, Standards for Development Program Planning and Implementation (Toronto: Queen’s Printer, 2000). Online:  http://www.edu.gov.on.ca/eng/general/elemsec/speced/iep/iep.html. More detailed guidelines are available in Ontario, Transition Planning, note 172.

[182] Ontario, Transition Planning, note 172, 7.

[183] Ontario, Transition Planning, note 172, 14. On the success of the co-operative program: Interview with Diane Wagner, Senior Manager, Public Policy & Education, Learning Disabilities Association of Ontario (22 July 2011) [Interview with Diane Wagner].

[184] Ontario Ministry of Education, Cooperative Education and Other Forms of Experiential Learning: Policies and Procedures for Ontario Secondary Schools, 2000 (Toronto: Queen’s Printer, 2000), 34. Online: http://www.edu.gov.on.ca/eng/document/curricul/secondary/coop/cooped.pdf [Ontario, Cooperative Education]; Ontario, Transition Planning, note 172, 30. Other programs include school-work transition programs, specialized programs directed at students intending to enter the workforce directly after graduating from high school: Ontario, Cooperative Education, 11. Other programs developed as part of the Ministry’s 2005 Student Success strategy to reduce high school drop-out rates are not specifically directed at students with disabilities, but are increasingly seen as doing so: Interview with Diane Wagner, note 183.  Ontario, Ministry of Education, Backgrounder, “Ontario Launches Third Phase of Student Success Strategy” (8 December 2005). Online:  http://www.edu.gov.on.ca/eng/document/nr/05.12/bg1208a.pdf.

[185] Ontario, Cooperative Education, note 184, 24, 34-35. Also see Ontario, Ministry of Education, Factsheet, “Students with Special Education Needs,” online: http://www.edu.gov.on.ca/eng/teachers/studentsuccess/coopSpecialNeeds.pdf. The new Integrated Accessibility Standards (O Reg 191/11, note 123) include accessibility standards to be implemented in the workplace under which employers are to notify job applicants about the availability of accommodations, to provide necessary accommodations during the recruitment process and to notify successful applicants about its accessibility policies.

[186] Schafer v. Toronto District School Board, 2009 HRTO 785, paras 34-36. Online: http://canlii.ca/t/23v5b; Sigrist and Carson v. London District Catholic School Board, 2010 HRTO 1062. Online: http://canlii.ca/t/29qpt.

[187] See OHRC, Opportunity to Succeed, note 89, 14: “In many cases, stakeholders report that special education practices and procedures in school settings at the local level are not consistent with the Ministry of Education’s own directives, and that this inconsistency is resulting in human rights violations.” The Report goes on to emphasize that “education providers,” in both the publicly-funded system and in private schools, have a legal duty “to accommodate students with disabilities up to the point of undue hardship” (6-7).  See also PALS 2006 Profile of Education, note 89, 13-17.

[188] Roeher Institute, Scoping Inclusive Education for Canadian Students with Intellectual and Other Disabilities, (Toronto: Roeher Institute, 2005).

[189] Auditor General, 2008, note 89, 381.  Also see the update on this issue in Auditor General, 2010, note 166, 392.

[190] Auditor General, 2010, note 166, 392.

[191] Ontario, Ministry of Education, Special Education Update (February 2011). Online: http://www.edu.gov.on.ca/eng/general/elemsec/speced/SpecialEd_Update2011.pdf.

[192] This discussion of the merits and limitations of a principles-based approach is indebted to the thoughtful submissions to the LCO’s 2009 Preliminary Consultation from the Ontario Bar Association (OBA Submission, note 24) and ARCH Disability Law Centre (ARCH Submission, note 24).

[193] An overview and classification of the types of laws affecting persons with disabilities may be found in Threshold Paper, note 8.

[194] Withler v. Canada (Attorney General), 2011 SCC 12 para 39, [2011] 1 SCR 396. Online: http://scc.lexum.org/en/2011/2011scc12/2011scc12.html.

[195] ODSPA, note 43, s 5(2).

[196] In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 SCR 513. Online: http://scc.lexum.org/en/2006/2006scc14/2006scc14.html, the Supreme Court of Canada ruled that the Social Benefits Tribunal had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, and remitted to the Social Benefits Tribunal for a ruling on the applicability of s 5(2) of the ODSPA. In Ontario Disability Support Program v. Tranchemontagne, 2009 CanLII 18295, 95 OR (3d) 327, 250 OAC 23 (ON SCDC). Online: http://canlii.ca/t/2377z, the Court upheld the finding of the Social Benefits Tribunal that the exclusion of persons disabled solely by addiction from the Ontario Disability Support Program was inconsistent with the Ontario Human Rights Code (Code, note 6, s 1).

[197] Kapp, note 55, para 55.

[198] This issue arose during the LCO’s public consultations, as highlighted in section II.D.2 of this Report (on page 49).

[199] Some of the dynamics and statistics around this issue are briefly highlighted in Disabilities Consultation Paper, note 10.

[200] World Health Organization: WHO Technical Report No. 572: Education and Treatment in Human Sexuality: The Training of Health Professionals (Geneva: World Health Organization, 1975), as cited in Joan M Gilmour & Roxanne Mykitiuk, “The Legal Regulation and Construction of the Gendered Body and of Disability in Canadian Health Law and Policy” (Working Paper, 2 March 2011), 104. Online: SSRN http://ssrn.com/abstract=1775204 [Gilmour & Mykitiuk].

[201] Vancouver Coastal Health Authority, Supporting Sexual Health and Intimacy in Care Facilities: Guidelines for Supporting Adults Living in Long-Term Care Facilities and Group Homes in British Columbia (15 July 15 2009), 13. Online: http://www.vch.ca/media/FacilitiesLicensing_SupportingSexualHealthandIntimacyinCareFacilities2.pdf [VCHA, Sexual Health].

[202] Gina Di Giulio, “Sexuality and People Living with Physical or Developmental Disabilities: A Review of Key Issues” (2003) 12 Canadian Journal of Human Sexuality 53, 53 [Giulio].

[203] Gilmour & Mykitiuk, note 200, 99.

[204] Springtide Resources, Sexuality and Access Project: Survey Summary, by Cory Silverberg & Fran Odette (Toronto: Springtide Resources, 2011), 20. Online: http://www.crncc.ca/knowledge/related_reports/pdf/Sexuality%20and%20Access%20Survey%20Summary.pdf [Silverberg & Odette].

[205] Silverberg & Odette, note 204, 32-33.

[206] Law Commission of Ontario: Final Report: A Framework for the Law as It Affects Older Adults (Toronto: Law Commission of Ontario, April 2012), Ch. IV.F. Online: http://www.lco-cdo.org [LCO, Older Adults].

[207] William Burr, “Sexuality of the Disabled Often Overlooked” (22 March 2011) 183:5 Canadian Medical Association Journal E259 doi: 10.1503/cmaj.109-3813. Online: http://www.cmaj.ca/content/183/5/E259.

[208] Megan McChesney, “Sex for Disabled Moves Forward”, Toronto Star (29 September 2006). Online: http://www.thestar.com/living/article/96524–sex-for-disabled-moves-forward. This article noted that Participation House in Waterloo/Wellington has developed a policy on sexual facilitation by attendants. The policy covers “providing sexuality training, assistance in masturbation, access to legal sexually explicit materials, intimacy aids and assistance in partner inclusion.”

[209] Silverberg & Odette, note 204, 24-25. Silverberg & Odette note that, given the communication dynamics and concerns about perceptions, it is not clear that explicitly addressing sexual support in these documents would necessarily facilitate greater access to sexual support services.

[210]Augmentative and Alternative Communication refers to the communication methods used to supplement or replace speech or writing for those with impairments in the production or comprehension of spoken or written language. Communications disabilities may arise from sensory, motor, intellectual or cognitive or language-based impairments. AAC may include a wide range of strategies, including speech generation devices, communications assistants, communication software, and may others. Information on these issues may be found on the website of Augmentative Communications Community Partnerships Canada (ACCPD) at http://www.accpc.ca.

[211] Speak Up, Barriers Which May Be Experienced by AAC Users in Accessing Community Resources, Information and Services Relating to Sexual Health and Abuse (October 2003). Online: http://www.accpc.ca/Speak_Up/resources-barriers_aac_u.htm [Speak Up].

[212] See Silverberg & Odette, note 204, 5.

[213] Sarah Earle, “Facilitated Sex and the Concept of Sexual Need: Disabled Students and Their Personal Assistants” (1999) 14 Disability & Society 309. Online: http://www.tandfonline.com/doi/pdf/10.1080/09687599926163. This small study of students with disabilities and their attendants found significant divergence between the two groups in the attitudes towards facilitated sexual activity, with some attendants expressing surprise that the students were interested in engaging in sexual activity, reluctance to assist with sexual activity that differed from their own norms (such as activities between same-sex partners) and concern about their moral responsibilities. Interestingly, attendants tended to refer to sexual “wants” as opposed to the users of attendant services, who referenced sexual “needs.”

[214] Speak Up, note 211.

[215] Silverberg & Odette, note 204, 36.

[216] Silverberg & Odette, note 204, 32.

[217] Linda R Mona, “Sexual Options for People with Disabilities: Using Personal Assistance Services for Sexual Expression” (2003) 26 Women & Therapy 211, 220.

[218] Silverberg & Odette, note 204, 31-32.

[219] Silverberg & Odette, note 204, 29.

[220] Joffe, note 106, 39.

[221] The CRPD, recognizing the potential of technology to advance inclusion for persons with disabilities, specifically commits States Parties “To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost”: CRPD, note 4, art 4(1)(g).  The potentially transformative effect of technology is recognized throughout the CRPD, as well as the barriers that may be created when technology is not designed or implemented inclusive. For example, Art 20 requires states parties to facilitate access to technologies that may promote personal mobility, including by making them available at reasonable cost; Art. 21 regarding access to information requires states parties to provide information intended for the general public to persons with disabilities in accessible formats and technologies at no cost; Art 10 requires states parties to promote access for persons with disabilities to new information and communication technologies. 

[222] Alanna Mitchell, “The Gift of Dyslexia”, The Globe and Mail (26 July 2003), F7.

[223] Advancing Inclusion (2009), note 89, 5.

[224] Ernie Lightman et al, “‘Not Disabled Enough’: Episodic Disabilities And The Ontario Disability Support Program” (2009) 29:3 Disabilities SQ 7 ¶45. Online: http://dsq-sds.org/; Denial by Design, note 48, 17-22.

[225] During the LCO’s consultations, much was said about the difficulties of accessing services, supports and accommodations outside of major urban centers. For example, it was the LCO’s experience that arranging for real-time captioning and American Sign Language interpretation in northern Ontario was extremely challenging, even with considerable lead time.

[226] Persons with disabilities are disproportionately likely to live in poverty. For example, within the age cohort 25 to 34, a Canadian without a disability can expect to earn an income on average of $33,078, while a Canadian with a disability within the same age cohort can expect an income of a third less, $23,087. And while Canadians without disabilities can expect to increase their incomes until the age of 55, the incomes of persons with disabilities actually decrease on average after the age of 35. Canadians living without a disability in the age cohort 35 to 44, report an average income of $36,553, while Canadians living with a disability in the same age cohort have an average income of $22,447, almost a $15,000 discrepancy in reported income:  PALS 2006 Tables (Part V), note 84, 8-10.

[227] According to 2001 data collected by Statistics Canada, 36.5% of Ontarians with disabilities between the ages of 15 and 64 had less than a high school education, while 11.5% of that group had completed university. By comparison, only 23.7% of Ontarians without disabilities between the ages of 15 and 64 had less than a high school education, and 22.2% had completed university – a striking differential with lifelong implications for employment, income and well-being.  These are overall figures; breaking them down on the basis of certain factors (such as Aboriginal status) would show lower average levels for some groups than for others: Statistics Canada, “Education, Employment and Income of Individuals With and Without Disabilities – Tables”, Participation and Activity Limitation Survey 2001, cat no 89-587-XIE, ISBN 0-662-34921-0  (Ottawa: Ministry of Industry, September 2003), 19, 35. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-587-X.

[228] Information from Statistics Canada’s General Social Survey confirms that persons with disabilities are at greater risk for violence and victimization. Persons with activity limitations are victims of both physical assault and sexual assault about twice as often as persons without limitations. Those who are most at risk are persons with disabilities who are living in an institutional setting, have severe disabilities, or have mental disorders: Statistics Canada, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems by Samuel Perreault, Cat no 85F0033MIE2009021, ISSN 1496-4562, ISBN 978-1-100-12686-9 (Ottawa, Canadian Centre for Justice Statistics: 2009), 8. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=85F0033MIE2009021 [Perreault].

[229] See PALS 2006 Tables (Part V), note 84, 11.

[230] PALS 2006 Labour Force Experience, note 81, 9-10. 

[231] For an overview of some of these issues, see Gilmour & Mykitiuk, note 200, 104.

[232] Scotch & Shriner, note 36; Surtees, note 36; Zola (1993), note 36, 14, citing M Stein, “Disability Human Rights” (2007) 95 Cal L Rev 75, 75, 86.

[233] Scotch & Shriner, note 36, 158; Bickenbach, note 36, 1183.

[234] CRPD, note 4, art 1(f).  Article 2 states that “’Universal design’ means 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”; however,  universal design “shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.”

[235] See Disability Policy, note 20.

[236] Disability Policy, note 20, s 4.1.

[237] Disability Policy, note 20, s 4.1.3.

[238] In Unison (1998), note 7.

[239] “Visible minorities” is the term used by Statistics Canada for Census purposes. The definition used is that of the Employment Equity Act, which defines visible minorities as “persons, other than Aboriginal peoples, who are non-Caucasian in race or non-white in colour” (Employment Equity Act, SC 1995, c 44, s 3. Online: http://laws-lois.justice.gc.ca/eng/acts/E-5.401/index.html). Under this definition, regulations specify the following groups as visible minorities: Chinese, South Asians, Blacks, Arabs, West Asians, Filipinos, Southeast Asians, Latin Americans, Japanese, Koreans and other visible minority groups, such as Pacific Islanders.

[240] Ontario, Ministry of Finance, Factsheet, “Census Highlights Fact Sheet 11: Ethnic Origin and Visible Minorities,” online: http://www.fin.gov.on.ca/en/economy/demographics/census/cenhi06-11.html.

[241] Toronto Central Local Health Integration Network, Annual Report 2009/10: Delivering High-Value Local Health Care Through Collaborative Action, ISSN 1911-365X  (Toronto: Toronto Central Local Health Integration Network, 2010), 5. Online: http://www.torontocentrallhin.on.ca/annualreports.aspx [TCLHIN, Annual Report 2009/10].

[242] Kwame McKenzie et al, Improving mental health services for immigrant, refugee, ethno-cultural and racialized groups: issues and options for service improvement (Ottawa: Mental Health Commission of Canada, 2009). Online: http://www.mentalhealthcommission.ca/SiteCollectionDocuments/News/en/IO.pdf. Also see June Ying Yee et al, Striving for Best Practices and Equitable Mental Health Care Access for Racialized Communities in Toronto (Toronto: School of Social Work, Ryerson University, 2006), 6-7. Online: http://accessalliance.ca/sites/accessalliance/files/documents/EquitableMentalHealthCareAccessResearchReport.pdf; US Department of Health and Human Services, Mental Health: Culture, Race, and Ethnicity—A Supplement to Mental Health: A Report of the Surgeon General (Rockville, MD: U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, 2001), 30-31. Online: http://www.ncbi.nlm.nih.gov/books/NBK44243/ [Surgeon General]; Ruby Dhand, Challenging Exclusion: A Critique of the Legal Barriers Faced By Ethno-Racial Psychiatric Consumer/Survivors in Ontario (LLM Thesis, Faculty of Law, University of Toronto, 2010), 5. Online: http://hdl.handle.net/1807/18275 [Dhand], citing Canadian Task Force on Mental Health Issues Affecting Immigrants and Refugees, After the door has been opened: mental health issues affecting immigrants and refugees in Canada, cat no Ci96-38/1988E, ISBN 0-662-16394-X (Ottawa: Health and Welfare Canada/ Multiculturalism and Citizenship Canada, 1988).

[243] Mental Health Commission of Canada, Toward Recovery & Well-Being: A Framework for a Mental Health Strategy for Canada, ISBN 978-0-9913795-0-0 (Calgary: Mental Health Commission of Canada, November 2009), 49. Online: http://www.mentalhealthcommission.ca/English/Pages/Reports.aspx [MHCC, Toward Recovery].

[244] Dhand, note 242, 54.

[245] TCLHIN, Annual Report 2009/10, note 241, 7; Kwasi Kafele, Racial Discrimination and Mental Health: Racialized and Aboriginal Communities (December 2004). Online: http://www.ohrc.on.ca/en/racial-discrimination-and-mental-health-racialized-and-aboriginal-communities [Kafele].

[246] Canadian Mental Health Association Ontario, Backgrounder: Rural and Northern Community Issues in Mental Health (27 August 2009). Online: http://www.ontario.cmha.ca/backgrounders.asp?cID=289773. Also see the LCO’s project on Vulnerable Workers. Online: http://www.lco-cdo.org/en/content/vulnerable-workers.

[247] Dhand, note 242, 73.

[248] This evidence was heard at the 1999 Coroner’s Inquest into the death of Mr. Edmond Yu, a man of Chinese Canadian heritage suffering from paranoid schizophrenia. See Evans & Bassili, note 116.

[249] MHCC, Toward Recovery, note 243, 50.

[250] MHCC, Toward Recovery, note 243, 50.

[251] Dhand, note 242, 39.

[252] Raymond Chung, Executive Director, Hong Fook Mental Health Association, in Canada, Senate, Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, 38th Parl, 1st Sess, No 7 (17 February 2005), 29. Online: http://www.parl.gc.ca/Content/SEN/Committee/381/soci/07ev-e.htm [Social Affairs Proceedings 2005].

[253] Raymond Chung, Executive Director, Hong Fook Mental Health Association, in Social Affairs Proceedings 2005, note 252, 7-9, 29.

[254] Branka Agic, “Health Promotion Programs on Mental Health/Illness and Addiction Issues in Ethno-Racial/Cultural Communities: A Literature Review,” (23 June 2003). Online: Centre for Addiction and Mental Health, http://www.camh.net/education/ethnocult_healthpromores02.pdf.

[255] Surgeon General, note 242, 14; Kafele, note 245.

[256] Sarah Bowen, “Language Barriers in Access to Health Care”, in Certain Circumstances: Issues in Equity and Responsiveness, a collection of papers and reports prepared for Health Canada, cat No H39-618/2002E, ISBN 0-662-32047-6 (Ottawa: Public Works and Government Services Canada, 2001). Online: http://www.hc-sc.gc.ca/hcs-sss/pubs/acces/2001-certain-equit-acces/index-eng.php; Marie Kwok, “Access to Culturally Competent Services for People with Mental Illness” in Psychiatric Patient Advocate Office, ed, Honouring the Past, Shaping the Future, 25 Years of Progress in Mental Health Advocacy and Rights Protection (Toronto: Queen’s Printer, May 2008), 141. Online: http://www.sse.gov.on.ca/mohltc/PPAO/en/Documents/pub-ann-25.pdf.

[257] See Cohl & Thompson, note 162, 20, for a comprehensive discussion of issues related to linguistic and rural access to justice in Ontario.

[258] Magnus Mfoafo-M’Carthy, “Experience is the Best Teacher”: Community Treatment Orders (CTOs) among Ethno-Racial Minority Communities in Toronto: A Phenomenological Study (PhD Thesis, Department of Social Work, University of Toronto, 2011), 156. Online: http://hdl.handle.net/1807/26490 [Mfoafo-M’Carthy].

[259] MHCC, Toward Recovery, note 243, 49.

[260] MHCC, Toward Recovery, note 243, 53.

[261] Mfoafo-M’Carthy, note 258, 41.

[262] Martha Ocampo, Co-director, Across Boundaries, Ethnoracial Mental Health Centre, in Social Affairs Proceedings 2005, note 252, 7-9, 29.

[263] Government of Ontario, “Submission to the Law Commission of Ontario” (10 July 2012), 7 [unpublished, archived at the Law Commission of Ontario] [Ontario, “Submission”].

[264] HEIA Template & Workbook,  note 19.

[265] Paternalism has been defined as follows: “When [rules, policies and actions] are justified solely on the grounds that the person affected would be better off, or would be less harmed as a result of the rule, policy etc., and the person in question would prefer not to be treated this way, we have an instance of paternalism.”  Gerald Dworkin, “Paternalism” in Edward Zalta, ed, The Stanford Encyclopedia of Philosophy (Summer 2009). Online: http://plato.stanford.edu/archives/sum2009/entries/paternalism.

[266] Bach & Kerzner, note 11, 6. Also see Joffe, note 106, 28.

[267] Via Rail, note 56, para 162.

[268] OHRC, Right at Home, note 26, 18-21 and 54-55.

[269] The Integrated Accessibility Standards (O Reg 191/11, note 123.), deal extensively with removal of barriers to accessible public transportation, an issue which has been of concern for some time: see for example, Ontario Human Rights Commission, Consultation Report: Human Rights and Public Transit in Ontario (Toronto: Ontario Human Rights Commission, 27 March 2002). Online: http://www.ohrc.on.ca/en/consultation-report-human-rights-and-public-transit-services-ontario

[270] For a fuller discussion of self-advocacy and the principle of independence, see Joffe, note 106, 58.

[271] World Health Organization, A glossary of terms for community health care and services for older persons, Technical Report Vol 5 WHO Centre for Health Development Ageing and Health, WHO/WKC/Tech.Ser./04.2 (Kobe, Japan: World Health Organization, 2004), 10. Online: http://whqlibdoc.who.int/wkc/2004/WHO_WKC_Tech.Ser._04.2.pdf.

[272] R v. Morgentaler, [1988] 1 SCR 30. Online: http://scc.lexum.org/en/1988/1988scr1-30/1988scr1-30.html.

[273] Paula Pinto et al, National Law and Policy Monitoring Template: Extended Version (Toronto: Disability Rights Promotion International, 2008), 4. Online: http://drpi.research.yorku.ca/resources/LawPolicyTemplate.

[274] Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts, and Possibilities” (1989) 1:7 Yale J Intl L 7, 12 [Nedelsky (1989)].

[275] Jennifer Nedelsky, “Reconceiving Rights as Relationship” (1993) 1 Rev Const Stud 1, 8 [Nedelsky (1993)].

[276] World Health Organization, “Active Ageing: A Policy Framework”, A Contribution of the World Health Organization to the Second United Nations World Assembly on Ageing (April 2002) 12, 34. Online: http://www.who.int/ageing/publications/active/en/index.html.

[277] In Unison (1998), note 7.

[278] Auditor General, 2008, note 89, 178.

[279] Auditor General, 2008, note 89, 180.

[280] Auditor General, 2008, note 89, referring to Christopher Koegl, J Durbin & P Goering, Mental Health Services in Ontario: How Well is the Province Meeting the Needs of Persons with Serious Mental Illness? (Toronto: Health Systems Research & Consulting Unit, Centre for Addiction and Mental Health, 2004).

[281] In 2004, 22 per cent of people with mental-health issues discharged in Ontario were either readmitted to hospital or seen in an emergency department within 30 days of discharge. 26 per cent of Ontarians hospitalized for mental illness had multiple admissions during one year: Auditor General, 2008, note 89, 179.

[282] Auditor General, 2008, note 89, 179. These conclusions by the Auditor General were echoed by the Legislative Assembly of Ontario, Standing Committee on Public Accounts which held its own review in response to the Auditor General’s report: Ontario, Legislative Assembly, “Community Mental Health” in Hansard, note 126, No 37A (31 May 2010), 1773. Online: http://www.ontla.on.ca/web/house-proceedings/house_current.do. The Committee heard evidence that “the Ontario health care system tends to perform poorly when faced with transitions from one provider to another”. For example, persons with mental health disabilities being released from shelters or group homes often become the responsibility of emergency workers such as police officers and emergency room departments.

[283] Ontario, Legislative Assembly, Standing Committee on Public Accounts, “Consideration of section 3.06, Community Mental Health” in Hansard, note 126, No P-13 (18 February 2009), P-215. Online: http://www.ontla.on.ca/committee-proceedings/transcripts/files_html/18-FEB-2009_P013.htm.

[284] Teams are made up of 9-12 professionals including a psychiatrist, registered nurses, a program assistant, a team coordinator, a social worker, peer specialist, occupational therapist, substance abuse specialist, vocational specialist and others. ACTs tend to have a roster of 80 to 100 clients and members of the team are mobile, able to assist their clients within the community. As of 2008, there were 79 ACT teams in Ontario. See Auditor General, 2008, note 89, 191.

[285] Ontario Ministry of Health and Long-Term Care, Ontario Program Standards for Assertive Community Treatment (ACT) Teams, 2nd ed, (January 2005), 31. Online: http://www.health.gov.on.ca/english/public/pub/ministry_reports/mentalhealth/act_standards.pdf [Ministry of Health, ACT Program Standards]. In particular, they must provide competent services in the client’s preferred language at no cost to each client with limited English proficiency: Ministry of Health, ACT Program Standards, 32.

[286] Ontario Ministry of Health and Long-Term Care, Intensive Case Management Service Standards for Mental Health Services and Supports (May 2005), 2, 6. Online: http://www.health.gov.on.ca/english/public/pub/ministry_reports/mentalhealth/intens_cm.pdf [Ministry of Health, Management Service Standards].

[287] Human Services and Justice Coordinating Committee Ontario (HSJCC), Police & Mental Health: A Critical Review of Joint Police/Mental Health Collaborations in Ontario (January 2011), 7. Online: http://www.hsjcc.on.ca/Uploads/PHSJCC_Police-MH_Final_Report_January_31_2011.pdf

 [HSJCC, Police & Mental Health].

[288] Ontario Ministry of Health and Long-Term Care, Crisis Response Service Standards for Mental Health Services and Supports (May 2005), 6-11. Online: http://www.health.gov.on.ca/english/public/pub/ministry_reports/mentalhealth/cris_resp.pdf [Ministry of Health, Crisis Response Service Standards].

[289] Mental Health Act, RSO 1990, c M-7, ss 33.1-33.8. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m07_e.htm [MHA].

[290] MHA, note 289, s 39.1(1).

[291] Letter from Vahe Kehyayan, Psychiatric Patient’s Advocate Office, to Anne Bowlby, Manager, Mental Health and Addictions, Ministry of Health and Long-Term Care (22 February 2011). The PPAO raised concerns that Community Treatment Plans may include terms which are “based on stigmatizing notions of mental illness. Examples are conditions such as ‘you must maintain [specific] hygiene practices’, ‘you may not have visitors without prior landlord approval’, ‘you may not take public transit or go to the shopping mall’ etc.”

[292] CTO restrictions are especially invidious since community living is typically more independent than being in hospital. In this sense, CTOs have been described as “therapeutic stalking”: N Snow & W J Austin, “Community treatment orders: the ethical balancing act in community mental health” (February 2009) 16:2 Journal of Psychiatric and Mental Health Nursing 177, 181. Online: http://onlinelibrary.wiley.com/doi/10.1111/j.1365-2850.2008.01363.x/pdf [Snow & Austin].

[293] Mfoafo-M’Carthy, note 258.

[294] Mfoafo-M’Carthy, note 258, 97-103.

[295] Mfoafo-M’Carthy, note 258, 104-110.

[296] Mfoafo-M’Carthy, note 258, 111-114.

[297] Dreezer & Dreezer Inc, Report on the Legislated Review on Community Treatment Orders, Required Under Section 33.9 of the Mental Health Act (Ministry of Health and Long-Term Care, December 2005). Online: http://www.health.gov.on.ca/en/common/ministry/publications/reports/dreezer/dreezer.pdf.

[298] RA Malatest & Associates Ltd, The Legislated Review of Community Treatment Orders: Final Report (Ministry of Health and Long-Term Care, 23 May 23 2012). Online: http://www.health.gov.on.ca/en/public/programs/hepatitis/docs/cto_review_report.pdf.

[299] Paré, note 89, 61.

[300] In Unison (2000), note 7, 10.

[301] F Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” (2008) 30 Human Rights Quarterly 494, 509.

[302] See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3. Online: http://scc.lexum.org/en/1999/1999scr3-3/1999scr3-3.html [Meiorin]; and BC Council of Human Rights, note 56.

[303] AODA, note 61.

[304] AODA, note 61, s 2.

[305] Gary Malkowski, Audism Workshop, Canadian Hearing Society and Toronto Association of the Deaf (3 June 2010).

[306] In Eaton, note 56, the Council of Canadians with Disabilities (CCD), the Canadian Association for Community Living (CACL), People First, and the Confédération des Organismes de Personnes Handicapées du Québec (COPHAN) advocated for a presumption towards integration in the educational setting for students with disabilities: see Sarah Armstrong, “Disability Advocacy in the Charter Era” (2003) 2 J L & Equality 33 para 53 [Armstrong].

[307] Perreault, note 228, 8.

[308] Perreault, note 228, 8-9.

[309] Perreault, note 228, 11.

[310] DAWN – RAFH Canada, Response to the Law as It Affects Older Adults Consultation Paper (Toronto: Law Commission of Ontario: 7 July 2008), 1 [DAWN Submission].

[311] Perreault, note 228, 10.

[312] See Ontario Ministry of the Attorney General, 2011-2012 ODA Accessibility Plan, ISSN # 1708-558, pub no CL23372 (2011). Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/ [MAG, 2011 ODA Accessibility Plan].

[313] Carys Mills, “Ontario to Review How Police Respond to the Mentally Ill” The Globe and Mail (2 May 2 2012). Online: The Globe and Mail http://www.theglobeandmail.com/news/toronto/ontario-to-review-how-police-respond-to-the-mentally-ill/article2420940/ [Mills].

[314] Evans & Bassili, note 116.

[315] Joffe, note 106, 31. The author notes that stakeholders have described situations where persons with disabilities who made complaints were reprimanded or harmed by their support worker, or were the subject of threats, for instance to cut off ODSP benefits.

[316] Perreault, note 228, 13.

[317] CRPD, note 4, arts 14, 15, 16, 25, 28.

[318] CRPD, note 4, preamble: “Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”.

[319] Perreault, note 228, 8.

[320] Perreault, note 228, 11. Also see DAWN Submission, note 310, 1.

[321] CRPD, note 4, preamble.

[322] In Unison (1998), note 7.

[323] The term “Aboriginal” is used here to refer to First Nations, Metis and Inuit people, while the term “First Nations” is used to refer to those who are considered Status or Non-Status Indians as provided for under the Indian Act. A helpful guide to terminology is provided by Aboriginal Affairs and Northern Development Canada, Words First: An Evolving Terminology Relating to Aboriginal Peoples in Canada (October 2002). Online: http://www.aadnc-aandc.gc.ca/eng/1100100014642, online: http://www.collectionscanada.gc.ca/webarchives/20071124233110/http://www.ainc-inac.gc.ca/pr/pub/wf/wofi_e.pdf.  Some of the studies and research relied on for this Case Example deal specifically with First Nations people, while others look at Aboriginal people more generally.

[324] Statistics Canada, Aboriginal Peoples in Canada in 2006: Inuit, Métis and First Nations, 2006 Census, cat no 97-558-XIE (Ottawa: Minister of Industry, 2008), 14. Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-558/index-eng.cfm [Aboriginal Peoples in Canada in 2006]. It is important to highlight that the numbers in the Aboriginal Peoples Census 2006 may not include all people identifying as Aboriginal within urban areas.  For First Nations people with status under the Indian Act, for example, the Census may significantly undercount status Indians for several reasons, including: many First Nations refuse to participate in the Census; status Indians outside of Canada are not included; and those with status who are homeless or living in institutions may not be counted.   Therefore, the numbers of Aboriginal people, both within Ontario and throughout Canada, are likely to far exceed the figures set out in the Aboriginal Peoples Census 2006.

[325] Statistics Canada, Projections of the Aboriginal populations, Canada, provinces and territories 2001 to 2017, cat no 91-547-XIE (Ottawa: Minister of Industry, 2005), 9. Online: http://www5.statcan.gc.ca/access_acces/archive.action?loc=/pub/91-547-x/91-547-x2005001-eng.pdf.

[326] Susan Judith Ship & Reaghan Tarbell, “Our Nations Elders Speak, Ageing and Cultural Diversity: A Cross-Cultural Approach” (1997), 7:4 In Touch 1. Online: http://www.niichro.com/2004/pdf/INtouch/in-touch-vol-07-(04).pdf [Ship & Tarbell].

[327] RHS, note 82, 54.

[328] RHS, note 82, 56.

[329] Claudette Dumont-Smith, “Aboriginal Elder Abuse in Canada” (2002), 6. Online: Aboriginal Healing Foundation http://www.ahf.ca/downloads/ahfresearchelderabuse_eng.pdf [Dumont-Smith].

[330] Health Canada, An Assessment of Continuing Care Requirements, cat no H34-172/1-2007E, ISBN 978-0-662-45736-7 (Ottawa: Health Canada, 2008), 18. Online: http://www.hc-sc.gc.ca/fniah-spnia/pubs/services/_home-domicile/2008_assess-eval-exam/index-eng.php [Health Canada, Continuing Care], citing E E Chapleski, J Sobeck, & C Fisher, “Long-term care preferences and attitudes among Great Lakes American Indian families: Cultural context matters” (2003) 4:2 Case Management Journals 94 [Chapleski et al].

[331] Health Canada, Continuing Care, note 330, 18, citing Chapleski et al, note 330.

[332] Nova Scotia Aboriginal Home Care Steering Committee, Aboriginal Long Term Care in Nova Scotia (Halifax: Nova Scotia Department of Health, 2010). Online: http://www.gov.ns.ca/health/ccs/aboriginal/documents/Aboriginal-Long-Term-Care-in-Nova-Scotia.pdf.  The Report identified the following barriers: linguistic and cultural issues; fear of institutional care (reflecting the experience in residential schools and also fear that people would not visit them); lack of transportation; and economic considerations (the loss of the senior’s pension as a contributor to the family’s income, loss of the house or economic loss to the community at large).

[333] For some discussion of these issues, see Charlotte Loppie Reading & Fred Wien, Health Inequalities and Social Determinants of Aboriginal People’s Health (Prince George, BC: National Collaborating Centre for Aboriginal Health, 2009), 8. Online: http://www.nccah-ccnsa.ca/docs/social%20determinates/NCCAH-loppie-Wien_report.pdf [Loppie Reading & Wien]; Martin Turcotte & Grant Schellenberg, A Portrait of Seniors in Canada, 2006, cat no 89-519-XPE, ISBN 978-0-662-45049-8 (Ottawa : Statistics Canada, Social and Aboriginal Statistics Division, 2007), 225. Online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf [Turcotte & Schellenberg]; Heidi J Kuran, “Coming Full Circle: Towards Assisting the Frail and Elderly in Aboriginal Communities” (2002) 25 In Touch 9. Online: http://www.niichro.com/2004/pdf/INtouch/in-touch-vol-25.pdf [Kuran]; Assembly of First Nations, Sustaining the Caregiving Cycle: A Report from the Assembly of First Nations to the Special Senate Committee on Aging (May 2007), 12. Online: http://64.26.129.156/misc/SCC.pdf [AFN, Caregiving Cycle]; Jeff Reading & Brenda Elias, An Examination of Residential Schools and Elder Health (Ottawa: First Nations and Inuit Regional Health Survey National Steering Committee, 1999), 37. Online: http://uregina.ca/library/holdings/FN_regional_survey_ch2.pdf [Reading & Elias].

[334] Kuran, note 333, 9.

[335] AFN, Caregiving Cycle, note 333, 12.  One third of First Nations adults in 2003 also reported living in a house with mould or mildew problems.

[336] Kuran, note 333, 9.

[337] Ship & Tarbell, note 326, 20.

[338] Personal communication with Lorraine Land, Government of Nunavut Legal Counsel on 11 September 2009. In Loppie Reading & Wien, note 333, 15, citing Statistics Canada, The Health of the Off-reserve Aboriginal Population by Michael Tjepkema,  cat no 82-003 (Ottawa: Statistics Canada, 2002), 10. Online: http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=82-003-S20020016323.  Loppie Reading & Wien, note 333, indicate that in 2000-01 Aboriginal peoples had statistically significant lower access to physicians and dentists and higher access to nurses than non-aboriginal people.  Further, they found that Aboriginal peoples had significantly higher unmet health care needs than non-aboriginal people.

[339] Health Canada, Continuing Care, note 330, 17, citing L. Lemchuk-Favel & R Jock, “Aboriginal Health Systems in Canada: Nine Case Studies” (2004) 1 J Aboriginal Health 28.

[340] Health Canada, Continuing Care, note 330, 17.

[341] Health Canada, Continuing Care, note 330, 18, citing Inuit Tapiriit Kanatami, Backgrounder on Inuit Health: For Discussion at Health Sectoral Meeting (Ottawa: Inuit Tapiriit Kanatami, 20 October 2004). Online: http://web.archive.org/web/20061110075506/http://www.itk.ca/roundtable/sectoral-health-backgrounder.php [Inuit Tapiriit Kanatami].

[342] Kuran, note 333, 23.

[343] RHS National Team, First Nations Regional Longitudinal Health Survey 2002/3: Report on First Nations Homecare (Ottawa: Assembly of First Nations, 2006), 2. Online: First Nations Information Governance Centre http://www.rhs-ers.ca/sites/default/files/ENpdf/RHS_2002/rhs2002-03-report_on_first_nations_homecare.pdf.

[344] For a description of this Committee see Health Canada, Health Services Integration Fund (HSIF) Q & A (January 2012), 2. Online: http://www.gct3.net/wp-content/uploads/2012/01/FNIHB-OR-HSIF-Fact-sheet-Jan12-final.pdf.

[345] Constitution Act, 1867, s 91(24). Online: http://laws-lois.justice.gc.ca/eng/Const/.

[346] Ontario, “Submission”, note 346, 8.

[347] Aboriginal Affairs and Northern Development Canada, Assisted Living Program (15 September 2010). Online: http://www.aadnc-aandc.gc.ca/eng/1100100035250; AFN, Caregiving Cycle, note 333, 15; Natalie N. Desimini, Facility-Based Long-term Care in Canada: Examining the Potential for a Federal Role in  Improving Quality and Consistency of Access (Victoria, BC: School of Public Administration, University of Victoria),  8. Online: http://dspace.library.uvic.ca:8080/handle/1828/3195?show=full [Desimini].

[348] For more information see the Aboriginal Healing and Wellness Strategy website: http://www.ahwsontario.ca/programs/prog_top.html.

[349] AFN, Caregiving Cycle, note 333, 3.  The AFN reports that only 0.5 per cent of First Nations communities have long-term care facilities.

[350] Desimini, note 347, 16.

[351] Canadian Healthcare Association, New Directions for Facility Based Long Term Care, ISBN 978-1-896151-35-9 (Ottawa: Canadian Healthcare Association 2009). Online: http://www.cha.ca/documents/CHA_LTC_9-22-09_eng.pdf.

[352] Health Quality Ontario, Quality Monitor: 2011 Report on Ontario’s Health System, ISBN 978-1-4435-5556-2 (Toronto: Queen’s Printer, 2011), 16 [Health Quality Ontario]. For individuals living in the community, this wait time was over 5 months and for individuals in hospital, it was just under 2 months. In 2010, it is estimated that there were over 25,000 individuals on the waiting list for a long-term care home.

[353] Health Quality Ontario, note 352, 16.

[354] It seems to be necessary to check each program to see in which languages information is available. Neither on the Ministry of Health nor the Ministry of Aboriginal Affairs is there a list of programs available in one or more Aboriginal languages.

[355] Loppie Reading & Wien, note 333, 15.

[356] Ship & Tarbell, note 326, 17.

[357] RHS, note 82, 134. It is important to note that each Aboriginal student who attended residential school experienced it differently and some survivors do not view the residential school experience as a decidedly negative experience.

[358] Vrtar-Huot suggests that Aboriginal older adults’ minds and bodies are battered with the pain and stress of the past and the unresolved issues they have faced as a result of the residential school experience: Arlene Vrtar-Huot, “Residential Schools and their Historical Effects on the Elders of Today” (2004) 27 In Touch 1, 7. Online: http://www.niichro.com/inspired/ibe_3.html. Ontario’s Aboriginal Healing and Wellness Strategy (AHWS) Joint Management Committee has recommended grief counseling services for Aboriginal older adults who are residential school survivors:  Joint Management Committee, Aboriginal Healing and Wellness Strategy: Phase III Longitudinal Study Final Report (Toronto: AHWS, 2009) 106. Online: http://www.ahwsontario.ca/publications/AHWS_Longitudinal_Study2009.pdf [Aboriginal Healing and Wellness Strategy].

[359] Reading & Elias, note 333, 31.

[360] Kathy Bent, Literature Review: Aboriginal Senior Abuse in Canada, A Document Prepared for the Native Women’s Association of Canada (Ottawa: NWAC, 2009) 31 [Bent]; Ship & Tarbell, note 326, 4.

[361] Ship & Tarbell, note 326, 4.

[362] Ship & Tarbell, note 326, 20.

[363] Loppie Reading & Wien, note 333, 19, citing Aboriginal Peoples in Canada in 2006, note 324, Table 23.

[364] Reading & Elias, note 333, 37, citing Barbara W Yee, “Gender and family issues in minority groups” (1990) 14:3 Generations 39; Dumont-Smith, note 329, 10.

[365] Métis Centre, National Aboriginal Health Organization (NAHO), In the Words of Our Ancestors: Métis Health and Healing (Ottawa: NAHO, 2008), 20. Online: http://www.naho.ca/documents/metiscentre/english/TK_IntheWordsofOurAncestorsMetisHealthandHealing.pdf; Health Canada, Reaching Out: A Guide to Communicating with Aboriginal Seniors (Ottawa: Minister of Public Works and Government Services, 1998) 32. Online: http://www.phac-aspc.gc.ca/seniors-aines/alt-formats/pdf/publications/public/various-variee/communicating_aboriginal/reachingout_e.pdf.

[366] The Honourable Justice Frank Iacobucci, “’Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) SCLR (2d) 137, 158 [Iacobucci]; see also Nedelsky (1989), note 274, 10; and see also BJ Wray, “Balancing Conflicting Rights: Towards an Analytical Framework” (Toronto: Ontario Human Rights Commission, 2005), 17. Online: http://www.ohrc.on.ca/en/balancing-conflicting-rights-towards-analytical-framework [Wray].

[367] See Iacobucci, note 366, 158.   The Honourable Justice Frank Iacobucci argues that the first and potentially most important aspect of reconciling tensions between principles is sensitivity to context.  See also Nedelsky (1993), note 275, 10; and see also Wray, note 366.

[368] Ontario Human Rights Commission, Policy on Competing Human Rights (Toronto: Ontario Human Rights Commission, January 2012), 18-19. Online: http://www.ohrc.on.ca/en/policy-competing-human-rights [OHCR, Competing Rights].

[369] For a variety of perspectives on these issues, see the compendium, Association for Canadian Studies (Summer 2010) 8 Canadian Diversity: Balancing Competing Human Rights 3.

[370] Iacobucci, note 366, 167.

[371] Patricia Hughes, Legal Frameworks: The Reconciliation Model, Balancing Competing Human Rights (Ottawa: Ontario Human Rights Commission, 2010). 

[372] OHCR, Competing Rights, note 368, 27-28, citing Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 para 31, [2001] 1 SCR 772. Online: http://scc.lexum.org/en/2001/2001scc31/2001scc31.html; Dagenais v. Canadian Broadcasting Corp, [1994] 3 SCR 835, 877. Online: http://scc.lexum.org/en/1994/1994scr3-835/1994scr3-835.html; and R v. NS, 2010 ONCA 670 para 84. Online: http://canlii.ca/t/2cx09.

[373] It has been noted that “Human rights discourse in the absence of a clear focus and understanding of differential access to power and resources loses sight of the principle of equality of citizenship. In other words, the policy framework must have integrated within it a component of access to justice”: L Foster & L Jacobs, “Shared Citizenship as the Context for Competing Human Rights Claims” (Summer 2010), 8 Canadian Diversity: Balancing Competing Rights Claims 3, 13.

[374] M Green, “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement” (2001) 23 Human Rights Quarterly 1062, 1062-1097.

[375] See Law Commission of Ontario, Final Report: The Law as It Affects Older Adults, Ch. VI “Applying the Framework: The Law and Access to Home Care”. Online: http://www.lco-cdo.org/en/content/older-adults.  As is discussed later in this Chapter, older adults mostly use “home care” rather than attendant services, home care being agency-provided and directed services.

[376] There may also be differences in service preferences and access between older persons who age with disabilities and those who age into disabilities. It is possible that those who age with disabilities may have preferences and service needs more like those of younger adults with disabilities, or that they have needs different from either younger adults with disabilities or those who have aged into disability. Very little information has been gathered about this group, which has generally been neglected in public policy. Due to the lack of information, the LCO has not provided an analysis for this group, but recognizes that it would be important in any comprehensive examination of these issues to conduct research on and carry out consultations with this group. 

[377]An interesting article by Phillip G. Clark explores the differences between the “narrative frames” of the aging and disability perspectives on home care, but also suggests some potential areas of convergence, such as models of consumer empowerment, a focus on an ethic of interdependence, and an emerging interest in an “ethic of care” approach: Phillip G Clark, “Understanding Aging and Disability Perspectives on Home Care: Uncovering Facts and Values in Public-Policy Narratives and Discourse” (2007) 26:supp1 Canadian Journal on Aging 47.

[378] Home Care and Community Services Act, 1994, SO 1994, c 26. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_94l26_e.htm [HCCSA].

[379] Ministry of Community and Social Services Act, RSO 1990, c M-20. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m20_e.htm [MCSSA].

[380] Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, SO 2008, c 14. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_08s14_e.htm, Part v. “Access to Services and Supports and Funding” [Social Inclusion Act]; Quality Assurance Measures, O Reg 299/10. Online: http://www.e-laws.gov.on.ca/html/source/regs/english/2010/elaws_src_regs_r10299_e.htm [O Reg 299/10].

[381] Malcolm Anderson et al, Analyses of Interfaces Along the Continuum of Care, Technical Report 3: Adults with Physical Disabilities (Ottawa: Health Canada, Health Policy and Communications Branch, February 2002), 10 [emphasis in original]. Online: http://www.teamgrant.ca/M-THAC%20Greatest%20Hits/Bonus%20Tracks/Third%20Way/continuum-tech-3.pdf [Continuum: Physical Disabilities].

[382] Auditor General, 2010, note 166.

[383] Ontario Community Support Association, Attendant Services Advisory Committee, Unleashing Attendant Services: Enhancing People’s Potential, Reducing Wait Times in Acute and Long-Term Health Care (Toronto: Ontario Community Support Association: July 2008), 7. Online: http://www.ocsa.on.ca/userfiles/OCSA%20Attendant%20Services%20Report%20Aug%2011-08.pdf

 [Unleashing Attendant Services].

[384] For a fuller discussion of the community care needs of older persons who are frail or have disabilities, see the LCO’s Final Report: The Law as it Affects Older Persons, Ch. VI, which provides an in-depth discussion of those issues. See online: http://www.lco-cdo.org/en/content/older-adults.

[385] Health Charities Coalition of Canada, Position Statement on Access to Home Care (Revised for approval 22 September 2011), 7. Online: http://www.healthcharities.ca/resources/position-statements.aspx.

[386] This term is used by Hollander in Marcus J Hollander, Analysis of Interfaces Along the Continuum of Care, Technical Report 1: Literature Review (Health Canada, Health Policy and Communications Branch: February 2002), 38. Online: http://www.teamgrant.ca/M-THAC%20Greatest%20Hits/Bonus%20Tracks/Third%20Way/continuum-tech-1.pdf. [Continuum: Literature Review]

[387] Continuum: Literature Review, note 386, 38.

[388]  Unleashing Attendant Services, note 383, 9.

[389] “Attendant Services FAQs” Project Information Centre Application for Attendant Services in Toronto (March 2012). Online: Centre for Independent Living http://www.cilt.ca/pic_questions.aspx [PIC FAQS].

[390]An analysis of the results of the PALS 2001 data was provided by Canadian Council on Social Development, Disability Information Sheet No 17 – Supports and Services for Persons with Disabilities in Canada: Requirements and Gaps (Ottawa: Canadian Council on Social Development, 2005). Online: http://www.ccsd.ca/drip/research/index.html.

[391] Unleashing Attendant Services, note 383, 4-5.

[392] Unleashing Attendant Services, note 383, 10-11.

[393] Grants for Persons with Disabilities, O Reg 367/94, online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_940367_e.htm [O Reg 367/94].

[394] O Reg 367/94, note 393.

[395] Social Inclusion Act, note 380, Part V, “Access to Services and Supports and Funding”; O Reg 299/10, note 380.

[396] Canadian Home Care Association, Portraits of Home Care in Canada (Toronto: The Canadian Home Care Association, March 2008), 89 [Portraits (2008)].

[397] Portraits (2008), note 396, 90.

[398] HCCSA, note 378, s 1.

[399] HCCSA, note 378, ss 1(3) – 1(7).

[400] For a description of these services, see the Ministry of Health website at: http://www.health.gov.on.ca/en/public/programs/ltc/13_housing.aspx.

[401] Unleashing Attendant Services, note 383, 6.

[402] HCCSA, note 378, s 3.

[403] HCCSA, note 378, s 4.

[404] HCCSA, note 378, ss 5-6.

[405] Local Health System Integration Act, 2006, SO 2006, c 4. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06l04_e.htm.

[406] Originally 42 in number, in 2006 the CCACs were consolidated into 14 organizations in order to align them with the LHINs. Community Care Access Corporations Act, 2001, SO 2001, c 33. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_01c33_e.htm [CCACA]; Community Care Access Corporations, O Reg 554/06. Online: http://www.e-laws.gov.on.ca/html/source/regs/english/2006/elaws_src_regs_r06554_e.htm [emphasis in original].

[407] For a discussion of the reform, its rationale and some of its effects, see Margaret Denton et al, “Managed Care, Its Impact on Job Satisfaction and Propensity to Leave in Home Care” (2007) 33:supp Canadian Public Policy S81 [Denton].

[408] Auditor General, 2010, note 166, 114.

[409] Auditor General, 2010, note 166, 119.

[410] Auditor General, 2010, note 166, 115. Competitive procurement processes, while intended to ensure that the best value is obtained from providers in terms of both services and costs, tend to disrupt continuity of care, and so is a major concern for users of services provided through the CCACs. The Auditor General recommended that a formal evaluation be undertaken of the expected cost savings from reinstating a competitive procurement process, keeping in mind the potential effects on those receiving services.

[411] ARCH Disability Law Centre has provided a description of the processes for Attendant Services: ARCH Disability Law Centre, Attendant Services Fact Sheets (13 October 2011). Online: http://www.archdisabilitylaw.ca/?q=attendant-services-fact-sheets [Attendant Services Fact Sheets].

[412] For information on PIC and the application process, see online: Centre for Independent Living Toronto http://www.cilt.ca/overview.aspx.

[413] HCCSA, note 378, s 2.

[414] HCCSA, note 378, s 23.

[415] HCCSA, note 378, s 31.

[416] HCCSA, note 378, s 25.

[417] HCCSA, note 378, ss 26-27

[418] HCCSA, note 378, ss 33-36.

[419] HCCSA, note 378, s 5(1)(ii).

[420] HCCSA, note 378, s 27.

[421] HCCSA, note 378, s s 68(26).

[422] HCCSA, note 378, s s 23(1).

[423] Ontario Association of Community Care Access Centres, Submission to the Standing Committee on Finance and Economic Affairs (1 February 2011), 3. Online: http://www.ccac-ont.ca/Upload/on/General/OACCAC%20Pre-budget%20Submission%20%20February%202011.pdf.

[424] Auditor General, 2010, note 166, 124.

[425] Auditor General, 2010, note 166, 124.

[426] HCCSA, note 378, ss 61-62.

[427] HCCSA, note 378, ss 50-52.

[428] HCCSA, note 378, s 53.

[429] CCACA, note 406, s 3.

[430] CCACA, note 406, s 11.

[431] CCACA, note 406, s 14.

[432] Ontario Ministry of Health and Long Term Care, News Release, 2008/nr-120, “Ontario Strengthens Home Care Services” (15 December 2008). Online: http://www.health.gov.on.ca/en/news/release/2008/dec/nr_20081215_2.aspx.

[433] Auditor General, 2010, note 166, 125.

[434] HCCSA, note 378, s 3(8).

[435] “About Us: Complaints, Appeals & Feedback,” online: Community Care Access Centre – Toronto Central http://www.ccac-ont.ca/Content.aspx?EnterpriseID=7&LanguageID=1&MenuID=8 [CCAC-TC, “Feedback”].

[436] HCCSA, note 378, s 3(3).

[437] Spencer [Spencer, Ageism], note 108.

[438] HCCSA, note 378, s 39.

[439] CCAC-TC, “Feedback”, note 435.

[440] CCAC-TC, “Feedback”, note 435.

[441] HCCSA, note 378, ss 40-48.

[442] MCSSA, note 379, s 11.

[443] Centre for Independent Living in Toronto, Final Evaluation Report: Self-Managed Attendant Services in Ontario, Direct Funding Pilot Project (Centre for Independent Living in Toronto: March 1997), i-ii [CILT, Attendant Services Final Evaluation Report].

[444] Centre for Independent Living Toronto, Direct Funding Application Guide, 5th ed (Toronto: Centre for Independent Living Toronto: August 2001). Online: http://cilt.operitel.net/Documents%20of%20the%20CILT%20Website/direct_funding_guide.pdf [Direct Funding Application Guide].

[445] Klemm v. Centre for Independent Living in Toronto, 2005 LTC 7211 (HSARB), aff’d (2007) 228 OAC 98 (Div Crt).  See also Attendant Services Fact Sheets, note 411, 6: “The jurisdiction of HSARB to hear these appeals is unclear. An HSARB decision of 2005 … found that HSARB had jurisdiction to hear such appeals, however, HSARB is currently deciding on a case by case basis whether they have jurisdiction to hear appeals related to Direct Funding.”

[446] Social Inclusion Act, note 380.

[447] Joffe, note 106, 5.

[448] Social Inclusion Act, note 380, s 4.

[449] Social Inclusion Act, note 380, s 9.

[450] Social Inclusion Act, note 380, s 13(2).

[451] Social Inclusion Act, note 380, ss 18-21.

[452] Social Inclusion Act, note 380, s 23.

[453] O Reg 299/10, note 380.  The Regulation sets out specific standards for various types of services, such as behavioral intervention strategies, residential services and supports and application entities. It also includes several general requirements; for example, every service agency shall address quality assurance measures for the promotion of social inclusion, individual choice, independence and rights, abuse prevention and reporting, safety and security and others (s 3).

[454] Social Inclusion Act, note 380, s 30.

[455] Social Inclusion Act, note 380, s 31.

[456] See Joffe, note 106.

[457] Recent reports emphasize the strains under which many informal caregivers live: see, for example, OHCR, Cost of Caring, note 138; The Change Foundation, Because This Is the Rainy Day: A Discussion Paper on Home Care And Informal Caregiving for Seniors with Chronic Health (Toronto: The Change Foundation, February 2011). Online: http://www.changefoundation.ca/library/because-this-is-the-rainy-day/. This was also a key preoccupation of the Focus Group that the LCO held with informal caregivers in 2011.

[458] Continuum: Physical Disabilities, note 381, 32.

[459] CILT, Attendant Services Final Evaluation Report, note 443, 36-48.

[460] Auditor General, 2010, note 166, 115.

[461] Unleashing Attendant Services, note 383, 7.

[462] Denton, note 407; see also Continuum: Physical Disabilities, note 381, 32.

[463] Joffe, note 106. The key features of a human rights-based approach are found in section III.C of that paper, and a detailed description of the proposed elements of an effective enforcement system in Part V.

[464] Jane Aronson, “Silenced Complaints, Suppressed Expectations: The Cumulative Impacts of Home Care Rationing” (2006) 36 International Journal of Health Services 535 [Aronson].

[465] Aronson, note 464, 546.

[466] Aronson, note 464, 545.

[467] CILT, Attendant Services Final Evaluation Report, note 443, 36.

 

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