This Chapter will examine how persons with disabilities encounter the law, based on the processes and approaches identified in the previous chapter. As a first step, the meaning of the term “law” as it is applied in this project will be outlined. The foundational documents for the law and persons with disabilities will then be briefly identified and described. The context in which persons with disabilities encounter the law will be briefly considered. Finally, the Chapter will examine key themes in the law as it affects persons with disabilities, which must be taken into account in identifying, defining and interpreting principles for this area of the law.
A. “The Law as It Affects Persons with Disabilities” – What Do We Mean?
In understanding the relationship of persons with disabilities with the law, it is essential to first understand that every law of general application that affects the population at large will also affect persons with disabilities. Laws relating to consumer protection, family formation and dissolution, zoning, voting rights, rental housing, protection of privacy and access to information, labour relations – all of these and many others are part of the law as it affects persons with disabilities. Some of these laws of general application may affect persons with disabilities or some group(s) of persons with disabilities differently from others. In some cases, this may be because the law does not take into account the particular needs of persons with disabilities. For example, if laws relating to voting and elections do not take into account accessibility barriers, persons with disabilities may find it more difficult to exercise their democratic rights than others. Because persons with disabilities may be invisible in the development of laws of general application, they may in this way be inadvertently disadvantaged through the law.
There are also a very large number of laws that are specifically targeted to persons with disabilities or some group of persons with disabilities. These laws aim to recognize particular circumstances connected to the experience of disability, and to address them. A review by the LCO early in this project identified over 150 Ontario laws and regulations specifically referencing persons with disabilities in general, or some particular group of persons with disabilities. The LCO’s June 2009 Preliminary Consultation Paper provides an overview of these targeted laws. They range over a broad spectrum of social areas, from income support, to education, to assistive devices to decision-making. Some have disability-related needs as a core focus, while others are directed to the population at large but provide specific supports or accommodations to persons with disabilities. Some provide supports or enhance opportunities, while others restrict roles or opportunities based on specific capacities or abilities. Many of these laws have very profound effects on the opportunities and well-being of persons with disabilities, the provisions for special education under the Education Act and of the Ontario Disability Support Program Act providing two obvious examples. A number of these laws are implemented through very complex policies and practices and large bureaucracies.
In understanding the law and persons with disabilities, the central analysis often, understandably, focuses on a careful review of the wording of the statute and regulation. From the beginning of this project, however, the LCO heard that while there were concerns with the provisions of particular laws, it was also important to pay attention to the ways in which laws are implemented. Laws may be neutral or even positive on their face, but may in practice have negative effects on persons with disabilities, as a result of problematic implementation. This was one of the key motivations behind the LCO’s expansive spring 2010 community consultations: without hearing from those directly affected by the law or directly involved in its implementation, it would not have been possible to truly understand the operations and effects of the law as it affects persons with disabilities.
Connected with this are concerns related to the ability of persons with disabilities to access their rights and responsibilities under the law. One aspect of the gap between aspiration and implementation of laws is access to justice for persons with disabilities. Unless the law is actually implemented and enforced, and is a living reality, it has little meaning for those whom it is intended to benefit. One element of access to the law is access to the legal system, which includes the ability to acquire information about one’s legal rights and responsibilities, to obtain competent legal advice and representation as required, and to access existing legal dispute resolution mechanisms. However, access to the law can be ensured in many other ways: for example, through advocacy organizations such as ombuds offices, administrative complaint mechanisms, or proactive monitoring and auditing structures.
This project therefore includes, as part of the law as it affects persons with disabilities, both laws of general application and those specifically targeted to persons with disabilities. It includes law both as written on the page and as implemented in policy and practice, and considerations related to the ability of persons with disabilities to access rights or responsibilities under the law.
Given the LCO’s mandate as a provincial organization, the focus of this project has been on Ontario laws. However, the LCO has considered federal laws insofar as they interact with provincial laws, and has of course taken into account the key relevant international documents. Because of the conceptual level of this project, there is a potential for the
Framework to have applicability or influence beyond the borders of Ontario.
The following Case Example provides an illustration of how an examination of the law as it affects persons with disabilities must include not only the provisions of the statute and the regulations, but also the lived experience of the implementation of the law, in order to fully understand the effect of the law on persons with disabilities, and thereby the degree to which it advances substantive equality for this group.
CASE EXAMPLE: IMPLEMENTATION OF THE LAW
Ontario Disability Support Program Processes
The Ontario Disability Support Program (ODSP), as governed by the Ontario Disability Support Program Act, its regulations, and extensive policy guidelines, provides essential income supports to persons with disabilities, who are often excluded from or marginalized in the labour force due to a range of barriers, including negative attitudes and stereotypes, a lack of accessibility and accommodations, the cumulative effect of barriers in education, and others. The supports provided through ODSP are essential to the fundamental security of many persons with disabilities and to their ability to live in basic dignity, and the Act recognizes the shared responsibility of government, families, communities and individuals to provide these supports.
However, the program, in addressing diverse goals, includes multiple procedural requirements, which can reduce its ability to meet its purpose of providing a program that “effectively serves persons with disabilities who need assistance”. In her 2004 report on Ontario’s social assistance system (including both ODSP and Ontario Works), Deb Mathews noted that,
There are now approximately 800 rules and regulations within the [social assistance] system that must be applied before a client’s eligibility and the amount of their monthly cheque can be determined…Because there are so many rules, they are expensive to administer and often applied inconsistently from one caseworker to another, even within the same office. Further, the rules are so complicated that they are virtually impossible to communicate to clients and it takes years to train a caseworker.
The complexity of the requirements and procedures can create a significant barrier for persons with disabilities in understanding and accessing supports or programs that are intended to assist them. The government has established a Commission on the Review of Social Assistance in Ontario, a major review of social assistance which is intended to make social assistance both financially sustainable and easier to understand. The Commission has identified this as a barrier and is seeking options to simplify the system and make it easier to understand.
These procedural barriers affect many aspects of the program. For example, the process by which persons with disabilities must apply to ODSP to have eligibility determined has been criticized, not only substantively, but as a lengthy, stringent and multi-layered process, one which persons with disabilities may find to be both demeaning and discouraging.
One example of the type of procedural issues that may create implementation issues can be found in the reporting and monitoring requirements related to retention of employment earnings. ODSP permits persons with disabilities to earn employment or business income and retain some part of it, a measure which has the potential to increase participation and inclusion for persons with disabilities, recognize their ability to make contributions to the community, and enhance their economic security. The treatment of employment earnings for ODSP purposes is a source of ongoing debate and raises substantive issues beyond the scope of this Case Example to address. However, the procedural aspects of monitoring and reconciling employment earnings were identified as a source of considerable frustration for persons with disabilities during the LCO’s 2010 consultations.
ODSP recipients who regularly or occasionally have employment or business income are required to send in a report every month, so that their benefits may be adjusted accordingly. The ODSP process for monthly reporting and benefit adjustment is a problem for many ODSP recipients since it means that their income support is subject to frequent adjustments or overpayments. This prevents them from being able to rely on a stable income stream. For example, many employers pay their employees bi-weekly. This creates difficulties for ODSP recipients since their income is exaggerated in those months that contain three pay periods. The following month, their income will revert to two pay periods but this lower income will be subject to a higher ODSP deduction calculated in relation to the previous month’s income. This kind of fluctuation can create chronic budgeting difficulties. This problem is particularly acute for seasonal or temporary workers who will have income earned during their last month of employment deducted from the much lower income that they receive in their first month without employment.
If individuals do not earn income in a particular month, they may not understand that they must nonetheless send in a report. However, ODSP staff may have the expectation of receiving a report and when they do not receive one they may send a letter suspending the recipient’s benefits. Alternatively, ODSP may have received a report but misplaced it. The receipt of suspension letters, although mistaken, can be very upsetting to recipients. As one participant in the LCO’s public consultations told us,
Where people end up in real problems in ODSP is in understanding their obligations to the system. And what the system requires them to do – register for this or declare that – then that’s where people really get in trouble. It’s not so much understanding their rights to what is there – it’s understanding what their obligation to the system is…The problem is, if you don’t understand what you need to do if you’re employed, what are the things you have to do – if you’re employed you have to report your earnings – you have to do it in specific amounts of time – you have to be doing all of these different things – and because of all of the discretion in these program and services and it’s there, the system can say, “oh I’m sorry, you’re really actually late for all of this, we’re not going to accept it this month, and you’re beat.”
LCO Focus Group, Individuals with Disabilities, Owen Sound, May 31, 2010
The calculations related to employment earnings are variable enough and complicated enough that ODSP recipients may feel their income is beyond their control. One recipient remarked:
When I was working, my worker wouldn’t explain how clawbacks work. I never knew how much I was actually keeping. You don’t know the difference between how much you made and how much you get to keep. Understanding the math would make me feel like I knew what’s going on.
Persons with disabilities commented during the LCO’s consultations on the shift in roles of frontline ODSP workers from providing individual supports and assistance to a more hands-off role, so that individuals in receipt of benefits must navigate the system on their own. That is, despite the complexity of the rules and the system, there are few supports to assist individuals in navigating that system. Added to this is a perceived adversarial approach within the system, such that those in receipt of benefits may feel themselves the subject of pervasive suspicion and demeaning attitudes, undermining the principle of respect for dignity and worth.
This poses particular challenges for persons whose disabilities make it difficult for them to consistently be strong self-advocates – for example, those with mental health disabilities. These individuals may require extra supports to allow them to access the intended benefits of the program. The entire experience causes some individuals with disabilities to conclude that the barriers are too difficult for them and give up in frustation.
This provides an illustration of how laws, policies and programs with positive purposes may fail to achieve their intended outcomes through implementation problems, and of the importance of adopting a broad understanding of “the law”.
B. Foundational Documents for the Law as It Affects Persons with Disabilities
To understand the law as it affects persons with disabilities, it is important to pay attention to certain foundational documents that shape or constrain other laws or policies. The most important of the domestic statutes are the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act (AODA). These documents (particularly the Charter and to a lesser extent, the Code) have a special status in law. The most significant international document is the United Nations Convention on the Rights of Persons with Disabilities (CRPD). These are very briefly described below.
As well as foundational documents, shaping or constraining other laws, policies and practices, these are also aspirational documents, founded on principles that speak to a vision of dignity, equality and inclusion for persons with disabilities. As such, they are also key sources for principles for the Framework. For a discussion of these documents as sources of principles and values for the Framework, see Appendix B to this Final Report.
Charter of Rights and Freedoms: Ontario laws affecting persons with disabilities are subject to, and must be understood through, the prism of the Canadian Charter of Rights and Freedoms. Section 15 of the Charter, which came into force in 1985, guarantees the right to equality before and under the law, and to equal protection and benefit of the law, without discrimination based on, among other grounds, physical or mental disability (terms which the Charter does not define). Section 15(2) protects laws, programs or activities that have as their object the improvement of the condition of persons or groups that have experienced disadvantage based on a number of grounds, including mental or physical disability. The Charter’s equality rights provisions have been very important in advancing the rights of persons with disabilities, articulating the right to inclusion and participation, and advancing the principle of accommodation.
The Charter is fundamental law, applying to any body exercising statutory authority or pursuant to governmental objectives. Section 52 gives the Charter overriding effect, such that any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. To the extent that the government acts under common law or prerogative powers, the Charter also applies to such government actions. Section 24(1) provides that anyone whose Charter guaranteed rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedies as the court considers appropriate and just in the circumstances.
Ontario Human Rights Code: The Ontario Human Rights Code, has included disability (originally referred to as “handicap”) as a protected ground since 1982. Under the Code, persons with disabilities have the right to equal treatment without discrimination in the areas of employment; housing accommodation; goods, services and facilities; contracts; and unions and other professional associations. The Code provides for both proactive and reactive mechanisms for ensuring these rights. It is worth noting that in recent years, disability has been the most frequently cited ground of the Code in complaints of discrimination, cited in more than half of all complaints to the Ontario Human Rights Commission and in a similar percentage of applications to Human Rights Tribunal under the reformed system.
Section 47(2) of the Code, the “primacy clause”, states that where a provision of an Act or regulation appears to require or authorize conduct that would contravene the Code, the Code prevails unless the Act or regulation specifically states otherwise. Thus the Code enables persons with disabilities to challenge barriers to their equality and has the potential to transform laws, policies and norms related to disability.
Accessibility for Ontarians with Disabilities Act: Ontario’s law related to persons with disabilities is unique with respect to the Ontarians with Disabilities Act (ODA) and the subsequent AODA. These laws have as their central purposes the recognition of persons with disabilities as a group who has experienced disadvantage and the removal of barriers in order to achieve their full equality and participation. They require organizations to take proactive steps across a range of areas to achieve accessibility and inclusion for persons with disabilities. The ODA (which is to be repealed at a future date) applies only to the broader public sector, including transportation providers, education institutions and municipalities. It requires the development of accessibility plans, but contains no enforcement provisions. The AODA builds upon and is a significant advance over the ODA. Like the ODA, it has as its aim the systematic removal of physical, attitudinal, technological, informational or communications barriers for persons with disabilities, but is considerably broader in scope than the ODA. It aims to ensure full accessibility for persons with disabilities with respect to goods, services, facilities, accommodations, employment, buildings, structures and premises by 2025. It applies to the private as well as the public sector, and among other measures sets out a process for the development of accessibility standards for specific industries, economic sectors, or classes of persons or organizations. The standards set milestones that must be reached every fice years or less, to be regularly re-examined and reviewed to meet the long-term goal. Standards have been developed addressing several sectors, including customer service, information and communication, employment, and transportation, and a standard for the built environment is nearing completion. It contains enforcement provisions to address non-compliance.
Convention on the Rights of Persons with Disabilities: There are a number of international documents which speak directly to the experiences of persons with disabilities, but the most recent and comprehensive is the CRPD. Most significantly, the CRPD codified the commitment of the international community to recognize the rights of persons with disabilities. The CRPD was ratified by Canada on March 11, 2010. The purpose of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” The CRPD does not provide for “new” rights for persons with disabilities, since they are entitled to all the rights accruing to persons under other UN conventions, but recognizes that “without a legally binding treaty that spelled out their rights, persons with disabilities faced being legally ‘invisible’ in their societies and even in the international arena”.
Signatory states are obliged to “respect, protect and fulfil” the rights under the CRPD. Respecting rights means that the state will not interfere with the rights. Protecting rights means that the state will prevent violations of rights by third parties. Fulfilling rights means that the state “must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights”.
Article 33 of the CRPD provides for “national implementation and monitoring”, including the designation by States Parties of “one or more focal points within government” to address the implementation of the Convention and consideration of establishing a mechanism to coordinate different parts of government. Furthermore, States Parties are to develop a framework (or strengthen existing ones) “to promote, protect and monitor implementation” of the CRPD that takes into account existing human rights regimes. Monitoring the CRPD is to involve civil society organizations, especially persons with disabilities.
C. Understanding the Context in Which Persons with Disabilities Encounter the Law
To develop a framework for the law as it affects persons with disabilities, it is important to have an understanding of the context in which persons with disabilities encounter the law. How many people in Ontario identify themselves as persons with disabilities? How does the experience of disability intersect with other aspects of identity, such as gender, age, Aboriginal status or others? How are persons with disabilities situated with respect to income, employment, education, and other socio-economic factors? These all affect how persons with disabilities interact with the law, and assist us with understanding the “implementation gap”.
It is beyond the scope of this Final Report to provide a comprehensive answer to the questions highlighted above. This section will very briefly highlight some key aspects of the lives of persons with disabilities that are relevant to how they are situated with respect to the law in general. It is necessary, however, that law and policy-makers undertake the appropriate research to ensure they understand how persons with disabilities are situated with respect to the actual proposed law or policy or laws or policies that are being reviewed.
The experience of disability has a very extensive impact in Canada, and in the province of Ontario in particular. Statistics Canada’s 2006 Participation and Activity Limitation Survey indicated that in 2006, 4.4 million Canadians reported an activity limitation, resulting in a disability rate of just over 14 per cent of the population. Ontario’s disability rate was slightly higher, at 15.5 per cent. Interestingly, the disability rate is increasing, both in Canada as a whole and in Ontario. The aging of the populace is a partial, but not a complete explanation, since disability rates are increasing in all age groups.
In addition to the impact on persons with disabilities themselves, law and policy-makers must also take into account the effects on the spouses, parents, children and other loved ones of persons with disabilities. For example, parents of children with disabilities report significant effects on their financial security, as well as employment opportunities, levels of stress, and depression, particularly in the context of a lack of supports.
As this Final Report emphasizes throughout, the advancement of substantive equality for persons with disabilities is rooted in the fundamental principles of respect for human dignity and worth, as is recognized in multiple instruments, including the CRPD, the Charter, the Code, and many government policy documents. Given the extent of the impact of disability, it has been argued that the disadvantage and marginalization experienced by persons with disabilities has significant negative effects on society at large in terms of lost talent and contributions, and many have pointed to a strong business case for inclusion, accessibility and accommodation.
As is emphasized throughout this Final Report, the experience of disability is not homogenous. The severity of impairments and of the accompanying activity limitations varies considerably. As well, there are many types of disability, including sensory, communication, mobility and agility, learning, intellectual, cognitive, psychological, pain-related, among others. Persons with different types of disabilities will encounter different types of attitudinal, physical or institutional barriers, so that opportunities and experiences will vary considerably.
The experience of disability will also vary depending on how it intersects with other aspects of identity. Women, for example, are much more likely to report living with a disability than are men, and are more likely to live with severe or very severe disabilities. However, more women with disabilities are employed in Canada than are men with disabilities. As another example, Aboriginal persons are much more likely to experience disability than other Canadians, and Aboriginal persons with disabilities are much more likely to live in low-income than other Aboriginal persons, or than non-Aboriginal Canadians with a disability. It is therefore important for law and policy-makers to take into account differences within the disability community, as well as differences between persons with disabilities and those without disabilities.
Considerations of the interaction of persons with disabilities with the law often focus on the effects and the accommodation of particular impairments – for example, ensuring that informational materials are provided in formats that are accessible to persons with sensory disabilities, that institutions that administer and enforce laws are physically accessible, and that service providers are trained to provide services to those with communications disabilities. There is no doubt that these considerations are fundamental. Despite the progress that has been made over recent decades, and the protections of the Ontario Human Rights Code and the AODA, there is still a considerable distance to travel before it can be said that these aspects of the experience of disability have been fully taken into account. However, an understanding of the experience of disability that focuses solely on accessibility and accommodation is incomplete.
Despite the differences among persons with disabilities, there is a general commonality in the experience of barriers to inclusion, and the resultant disadvantage and marginalization. Income levels are markedly lower for persons with disabilities than for those without. For example, for those Canadians aged 25 to 34, while persons without a disability have an average income of $33,078, the income of those with a disability is approximately a third lower, at $23,087. As age increases, the discrepancies in income levels continue to increase; for example, for those aged 45 to 54, persons without disabilities have an average income of $38,967 as compared to an income of $20,319 for those who identify as having a disability. The extent of the differential in income will vary according to a number of factors, including Aboriginal status, gender, severity and type of disability, and others. The widespread incidence of low-income among persons with disabilities will affect every other aspect of life, from health, to housing, to personal safety. It has many implications for the relationships of persons with disabilities with the law. For example, low-income creates a range of barriers for accessing the law, including most obviously a lack of resources for obtaining legal advice and representation. It also means that persons with disabilities are disproportionately affected by laws, programs and policies that address issues related to low-income, such as income support programs and social housing, and that persons with disabilities will generally have fewer resources for coping with life’s adversities.
These lower levels of income security are obviously connected to lower levels of labour force participation for persons with disabilities. Canada’s unemployment rate in 2006 for persons with disabilities was 10.4 per cent as compared to 6.8 per cent for persons without disabilities. This rate skyrockets for persons with intellectual or mental health disabilities as well as for Aboriginal or other under-represented groups with disabilities. Persons with disabilities are also more likely to be under-employed or employed in low-paying or precarious positions. In 2006, employment earnings were the largest source of income for only 52.1 per cent of persons with disabilities. In contrast, 81.2 per cent of persons without disabilities reported employment earnings to be the largest portion of their income. Finally, persons with disabilities are much more likely to rely on social assistance as a source of income than persons without disabilities (disaggregated for sex, three times more likely for women and five times more likely for men). Because in our society employment is a key point of access for many benefits (such as health benefits, Canada Pension Plan savings and many others) as well as for social inclusion and participation, low labour force participation has implications for all areas of life.
It is well documented that, despite requirements under the Education Act and some significant investments of resources, persons with disabilities continue to experience a range of significant barriers to education. It is therefore not surprising that persons with disabilities have lower levels of education and literacy than persons without disabilities. In 2006, among working age adults (age 25 to 64), 25 per cent of persons with disabilities had no high school diploma, as compared to 13.5 per cent of Canadians without disabilities. Only eight per cent of persons with disabilities had a bachelor’s degree, as compared to 15 per cent of those without a disability. Limitations in education and literacy obviously have a significant effect on opportunities for employment and financial security. They also affect the ability of individuals to access and understand information about the law, to identify options for securing their rights, and to effectively advocate for themselves.
As is discussed in Chapter III.C.5, persons with disabilities are at greater risk of violence and abuse than others without disability. There may be many reasons for this. Some persons with disabilities may be targeted because their particular disability makes it more difficult for them to complain. Because persons with disabilities are more likely to live in low-income, they are also more likely to find themselves in less safe or secure living conditions. Disability may also reduce the options for escaping violence or abuse – for example, concerns have been raised about the lack of accessible shelters for those seeking to escape domestic violence. These are dynamics that the law must take into account, for example in designing complaint mechanisms, or considering the power dynamics between persons with disabilities and service providers.
Laws, policies and practices which do not take into account these realities (and others) for persons with disabilities are less likely to set goals which are meaningful for persons with disabilities, or where they do, to be able to implement them effectively. The Case Example below highlights some of the contexts to be taken into account in considering the transition of young persons with disabilities from the parental home to living independently, and the ways in which laws have attempted to address the barriers that they experience.
CASE EXAMPLE: UNDERSTANDING THE CONTEXT IN WHICH PERSONS WITH DISABILITIES ENCOUNTER THE LAW
Young Adults with Disabilities and the Transition to Living Independently
During young adulthood, people are expected to become increasingly independent from their parents as they make “a wide range of choices about where and with whom they live, how they pursue their studies, what type of work they are interested in and whether or not they will get married and have children”. Moving out from the parental home is seen as part of the “normal” transition into adulthood and independence. Young adults with disabilities, like other young adults, often aspire to leave the parental home and to live independently. Young adults will frequently encounter a range of challenges in making this transition; those with disabilities will face additional or exacerbated barriers.
Young adults often face discrimination in the rental housing market, reflecting stereotypes of them as “being irresponsible, having too many parties, not paying the rent or destroying the property”. Although the Ontario Human Rights Code (Code) prohibits discrimination on the basis of disability in the provision of housing accommodation, and the Residential Tenancies Act requires landlords to abide by the Code when selecting new tenants, including in the use of income information, those with disabilities continue to face additional difficulties in securing rental housing due to concerns by landlords that they may require accommodations, or stigma associated with particular disabilities. This means that young persons with disabilities that are apparent to potential landlords may face considerable discrimination in the rental housing market.
While young adults in general are more likely to have low incomes, this is exacerbated for young persons with disabilities, because of the barriers they experience in obtaining education and employment. For example, youth appears to be a particular disadvantage for persons with disabilities seeking employment. While persons with disabilities of all ages are disadvantaged in the labour market, as is outlined above, young persons with disabilities face additional difficulties. Persons with disabilities aged 15 to 24 were more likely than those in the 45 to 64 age group to report that they were refused an interview (10.4 per cent), a job (14.4 per cent) or were given less responsibility (11.2 per cent) because of their disability. The labour force participation rate for persons without disabilities between the ages of 15 and 64 is approximately 80 per cent; for those with disabilities, it is closer to 60 per cent. Similarly, the unemployment rate for persons with disabilities in this age group is considerably higher than that for those without. As a result, many young persons with disabilities live in low-income. The Ontario Disability Support Program provides basic income supports to persons with disabilities, including young persons, who meet its eligibility criteria, although the low rates mean that it may be difficult to find housing within the available budget.
There is an overall shortage of affordable housing in many parts of Ontario, something the government has recognized through the creation of a Long-Term Affordable Housing Strategy, which includes a range of programs and initiatives related to affordable housing. The combined issues of lack of affordable housing and higher risk of low income for young persons with disabilities mean that locating affordable housing that meets their needs may pose a significant challenge for this group.
Further, for some young persons with disabilities it may be difficult to locate housing that meets needs associated with their disability – for example, that is physically accessible (as is discussed in the Case Example following Section II.D.3 below), or is close to supports and services that they need. That is, young persons with disabilities may face a triple obstacle of affordability, accessibility, and attitudinal barriers in locating appropriate rental housing.
Finally, it is important to take into account the nature of the transition that young persons are making as they leave the parental home. This is a period where individuals are learning how to run a household and live independently, skills that must be gained through experience and over time. Often, young people make this transition gradually, for example, by living part of the year in college or university residences, or by finding accommodation with friends. Young persons with disabilities may have less access to this assumed informal model of transition. Some programs or resources have been established, by organizations such as CanChild, Easter Seals and March of Dimes to assist with managing this transition.
These multiple barriers may create daunting challenges for young persons with disabilities in making a transition that others may take for granted. As identified above, there are a number of valuable Ontario laws, policies and programs that recognize and attempt to address some of these barriers, but these are fragmented, and there is little in the way of coherent supports for the particular nature of this transition for young persons with disabilities
D. Key Themes in the Law as It Affects Persons with Disabilities
As defined for the purposes of this project, the law as it affects persons with disabilities is extremely broad, so that a detailed analysis is not possible within the scope of this Report. However, based on the research described in section I.C.2, and the results of the LCO’s public consultations, the LCO identified a number of key themes for this area of the law. These themes have shaped the Framework, including both the identification of the principles and their interpretation, and are briefly described below.
1. The “Visibility” of Persons with Disabilities in the Law
A recurring theme throughout the LCO’s public consultations and in the critical literature is the invisibility of persons with disabilities, both in the development of the law, and often in its content. This is an extension of the more general marginalization of persons with disabilities in the public sphere.
During the consultations, persons with disabilities repeatedly emphasized the importance of ensuring participation by individuals with disabilities in the development of laws that affect them – and their sense that currently this rarely occurs to any meaningful extent, particularly when it comes to laws of general application. Without such participation, laws may not take into account the ways in which those with disabilities may be differently circumstanced, and so may potentially disadvantage persons with disabilities, or may be ineffective in meeting their needs.
It is often assumed that the barriers experienced by persons with disabilities are entirely accessibility barriers related to their impairments. The social and economic impacts of the experience of disability, and the way in which these may situate persons with disabilities differently with respect to the law, may be poorly understood. While accessibility for persons with disabilities is foundational to their participation and inclusion, and to the achievement of substantive equality, the lack of equal attention to social and economic barriers to inclusion for persons with disabilities highlights the distance still to be travelled to the achievement of equality, and perhaps a continued tendency to focus on the functional aspects of disability rather than a broader social or human rights approach.
Moreover, the diversity of identities and experiences among persons with disabilities, such as the impact of gender, age, racialization, sexual orientation or other aspects of identity, may not be taken into account. Further, there is a natural tendency among policy and law-makers to view their initiatives in isolation, so that the overall effect of the fragmented web of laws and policies may not be fully considered in the evaluation of the potential effect of a law or policy.
It has been suggested that, given the persistent marginalization and exclusion of persons with disabilities from the public sphere, the disability rights movement might be conceived of as a “visibility project”:
To sum up, the relative or absolute invisibility of persons with disabilities has meant that the legal structures created to advance private freedom (protection against the abuse of power) and public freedom (participation in the mainstream) have either not been applied or have been applied with less rigour in the case of persons with disabilities.
This has produced a category of person who, while being dependent on the public sphere for survival, lacks access to or influence over public policy. Such persons are denied full admission to public power and full control over their individual destiny. They remain outside the mainstream of society. This lack of presence – or invisibility – serves to reinforce stereotypical assumption about persons with disabilities. It encourages a lack of respect for people with disabilities as rights holders on an equal footing with others.
That is, it is important for persons with disabilities, in all of their individuality and diversity, to be recognized as individuals whose experiences are important and whose perspectives are valued, and for them to be able to participate actively in the development of the law. Without that recognition and participation, laws that appear neutral or that are intended to benefit persons with disabilities may actually have a negative effect on their equality. The Case Example below provides an example of an initiative intended to increase the visibility and inclusion of persons with disabilities and other marginalized groups in law and in government policies and practices.
CASE EXAMPLE: VISIBILITY OF PERSONS WITH DISABILITIES IN THE LAW
The Ontario Public Service Inclusion Lens
As was highlighted in Section II.A, in addition to being affected by laws, policies and practices specifically targeted to them, persons with disabilities are, by definition, affected by laws, policies and practices of general application, and sometimes those laws, policies and practices will affect them differently or disproportionately as compared to others. Often persons who are designing laws, policies and practices of general application may not have any particular knowledge or expertise related to disability, and may not be aware of the potential impacts of their choices on persons with disabilities. The necessity of taking persons with disabilities into account in their work may not even occur to them. As a result, well-intended laws may have unanticipated negative effects on persons with disabilities. The LCO’s Framework is intended to assist in addressing this gap for a wide range of organizations and individuals involved with the law as it affects persons with disabilities, to raise awareness of issues related to substantive equality, and to create a common frame for discussion among stakeholders.
Another recent initiative that aims to assist in addressing this lack of visibility for a variety of marginalized groups is the Ontario Public Service Inclusion Lens. The Inclusion Lens was developed by the government of Ontario as a tool for supporting the adoption of a diversity and accessibility lens when developing or reviewing policies, programs and services. The Inclusion Lens aims to assist Ontario Public Service staff to
become more knowledgeable about diversity, inclusion and accessibility;
identify barriers within policy, program or service development processes; and
identify and evaluate strategies to remove or mitigate barriers.
The Inclusion Lens identifies seventeen dimensions of diversity, including disability, age, gender, creed, family status and caregiving responsibilities, race, sexual orientation and others. It includes a series of probing questions for each of these seventeen identified dimension.
The Inclusion Lens can applied across the broad range of policies, programs and services that the Ontario Public Service develops and delivers, and is built around the business cycles of policy and program development, and service delivery. An on-line and interactive tool, the Inclusion Lens includes links to resources, scenarios, and examples of barriers and suggestions for overcoming them. It also includes an Accessible Legislation Training Guide, which provides practical guidance for drafting legislation and regulations in a way that respects and promotes accessibility. The Inclusion Lens is therefore broader in some ways than the LCO’s Framework, as it applies across multiple aspects of identity, though it is also more specifically focused on accessibility in the specific context of provincial legislation and policy. As an internal document, it serves a different purpose than the LCO’s Framework, which is intended as a foundation for fostering public discussion and debate as circumstances change.
The Inclusion Lens was launched across the Ontario Public Service in January 2011, with training provided across ministries. For the years 2009-2012, the priority areas for application are procurement, human resources, and new policies, programs and legislation. For 2013, the goal is to build accessibility criteria into decision-making, project management, procurement, technology infrastructure, information technology and training. It is anticipated that by 2016, the Inclusion Lens will be applied to all policies and practices, and accessibility will be part of all OPS business.
By increasing the visibility of marginalized groups, including persons with disabilities, in the legislative, policy and service development processes, the OPS Inclusion Lens has the potential to improve awareness of the accessibility-related experiences and needs of persons with disabilities, and increase awareness of good practices for accessibility and inclusion.
2. Negative Attitudes, Stigma and the Law
Understanding Ableism: There is a long history in Canada of negative attitudes towards persons with disabilities. Manifestations of ableism include involuntary institutionalization, forced birth control and sterilization, segregation away from the mainstream of the population and denial of basic rights. As was noted earlier, while attitudes towards disability have evolved, a recent Environics Research Group Report on Canadian attitudes towards disability-related issues found that while most people like to think of themselves as being open to the participation of persons with disabilities in their day-to-day activities, many expressed significant discomfort with some aspects of relating to persons with disabilities. And of course, many of the attitudinal barriers faced by persons with disabilities may not be conscious.
There are specific stereotypes and stigmas associated with particular disabilities. For example, during the LCO’s consultations, many persons with mental health disabilities, particularly those who have been homeless, shared experiences which demonstrated that they had been subject to heavy judgment and negative assumptions when dealing with legal systems. Lack of supportive services for persons with mental health disabilities, together with stigma and fear about these disabilities may lead to increased contact with police and may contribute to the criminalization of persons with mental health disabilities, an issue of great concern to many participants. In other cases, there may be reluctance to acknowledge the validity of (and therefore to accommodate) particular disabilities, a concern raised in consultations by persons with learning, environmental, and chronic fatigue disabilities.
Ableism may also manifest in more subtle ways, such as the perception that persons with disabilities will inevitably request cumbersome and costly accommodations and the accompanying reluctance to include persons with disabilities in programs or services, or the development of creative strategies for denying requests for inclusion and accommodation.
During the LCO’s consultations, many participants talked about the suspicion and often contempt with which persons with disabilities are treated when seeking services and supports. Services which are designed to assist persons with disabilities in meeting their basic needs or improving their autonomy, independence and participation may in practice be implemented through an adversarial mindset, which assumes that those seeking services are attempting “to game” the system, or obtain benefits to which they are not entitled. This is particularly the case for persons with disabilities who are also poor.
As well, responses to disability have often been marked by paternalism, the tendency to remove decision-making from persons with disabilities “for their own good”. This has been particularly marked for persons with intellectual or mental health disabilities.
[M]any people with more significant intellectual, cognitive and psychosocial disabilities face substantial or total restrictions in making their own decisions. They often encounter others who presume they are unable to guide their own lives, are people who need to be ‘fixed’, or protected, and who limit or completely restrict the scope of their decision making. Many people are physically isolated or socially and economically excluded and therefore without meaningful choices or the opportunity to develop a vision and direction for their own lives, and to make their own decisions. Service provision in the disability and older adult sectors is often based on charity and protection models, and an assumption that because people need supports and care, others should make decisions on their behalf. Often service providers also require that they are provided decision making authority on behalf of those they are supporting so they can more efficiently manage the range of individual decisions related to care, medications, activities, etc.
These attitudes may influence the design or implementation of laws. As the Ontario Bar Association has noted,
The key change that must take place, therefore, is attitudinal or philosophical. Legislators have to act on the assumption that assistance, support and protection necessary to permit persons with disabilities to achieve equality and full participation in society are required as a right and are not offered as a privilege. The assumption has to be that society as a whole will benefit when persons with disabilities are encouraged and allowed to participate fully in society at all levels.
The brief case examples throughout this Report provide some examples of how ableism may affect the design or implementation of the law. The discussion below briefly highlights some key themes.
Ableism in the design of the law: Ableism may influence the design of laws, policies or programs that touch the lives of persons with disabilities.
With laws of general application, most commonly this involves a lack of acknowledgement of the existence of persons with disabilities, and their exclusion from “the norm”.
Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access…it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.
Persons with disabilities may find themselves excluded and disadvantaged, not because of negative attitudes per se, but because laws, systems, policies and practices have been designed without consideration for the existence of persons with disabilities. An assumption is made, often unconsciously, that only those who are “able” will attempt to access the law, system, program or policy, and design choices are made that include only those who fall within this “norm” and exclude persons with disabilities who fall outside of it. The recognition of the barriers created in this way is core to the social approach to disability, and the identification and removal of these barriers has been a central aim for disability activism.
An example of this kind of exclusion of persons with disabilities from the “norm” is provided by Eldridge v British Columbia (Attorney General). The individuals in this case were Deaf and communicated through sign language. When seeking health care services through a hospital, they found that the hospital did not provide sign language interpretation. This meant that, unlike other members of the population, they were unable to effectively and fully communicate with the health professionals attending on them. This was not a matter of negative attitudes or intent towards Deaf persons, but rather a failure to consider and respect their needs, or indeed their very existence, in the design of the delivery of hospital services. The Supreme Court of Canada ruled that this omission violated the equality rights of Deaf persons under the Charter, as without sign language interpretation, Deaf persons were not truly receiving the same health-care services as hearing persons. The Court stated that where governments provide a service, they must take steps to ensure that disadvantaged groups are equally able to benefit from those services.
It is important here to distinguish between “inclusive (or universal) design” and these types of apparently neutral laws of general application. Laws that are inclusively designed may apply to the population at large, but in their provisions the existence and specific circumstances of persons with disabilities are taken into account (whether explicitly or implicitly). Laws which do not take into account persons with disabilities may provide “formal equality” (as opposed to substantive) but cannot be characterized as inclusively designed.
With laws that are specifically targeted to persons with disabilities, there is a greater risk that they will be affected by stereotypes or negative attitudes about persons with disabilities or some group of persons with disabilities. For example, the Canadian Association for Community Living has raised concerns that capacity and guardianship laws may be influenced by negative stereotypes and attitudes regarding persons with intellectual or cognitive disabilities. The LCO will examine this and other issues related to capacity and guardianship in a project applying this Framework and the Framework for the Law as It Affects Older Adults.
The provisions of the Coroner’s Act which provide for mandatory inquests for persons who die in police custody or correctional facilities, but provide only for an investigation and discretion to hold an inquest where a person dies in a psychiatric facility, have also been challenged as placing a lower value on the lives of persons with psychiatric disabilities, and failing to appreciate the real vulnerability of those who are involuntarily detained in a psychiatric facility.
Ableism in the implementation of the law: Ableism may also affect how laws are implemented by justice system workers, service providers and others. No matter how well designed a law or program is, ableist attitudes on the part of those charged with implementing it will make it ineffective for persons with disabilities, and thus may be one of many contributing factors to the “implementation gap”. As is noted elsewhere, these attitudes may not be conscious or explicit, or may be specific to particular groups of persons with disabilities, such as persons with mental health disabilities or low-income persons with disabilities. For example, parents with disabilities have expressed concerns that negative assumptions about the parenting abilities of persons with disabilities may lead to increased scrutiny and intervention by the child welfare system.
There was this fear of the health care profession calling CAS due to misperceptions and a lack of understanding of the independent living model…I planned the birth of my daughter around this fear. Initially, I had a fear of being in hospital with the baby and them calling CAS. CAS is a real threat – the fears of parents with disabilities are real. Two months before I gave birth, at the same hospital a newborn baby was taken away right at birth from a blind mother. The perception of what a parent is creates that fear in our society.
The LCO’s review of inquests under the Coroner’s Act relating to the deaths of persons with disabilities highlighted the extreme consequences for persons with disabilities that may result from inappropriate implementation of laws and policies. Issues identified included inappropriate or excessive use of restraints, lack of appropriate supervision or safety procedures in institutional settings, and inadequate discharge planning for those individuals with mental health disabilities transitioning from institutional settings to the community.
The Case Example below demonstrates some aspects of the interaction between ableism and the law.
CASE EXAMPLE: ABLEISM AND THE LAW
Persons with Disabilities, the Hiring Decision and the Law
Statistics Canada’s 2006 Participation and Activity Limitation Survey found that persons with disabilities perceive a considerable degree of discrimination in the labour market. Over 25 per cent of unemployed persons with disabilities and nearly 13 per cent of those not in the labour force reported that in the last 5 years they had been refused a job because of their disability. Even employed persons with disabilities reported experiencing discrimination in hiring (7.6 per cent).
Discrimination in hiring was a recurring theme during the LCO’s community consultations.
There have been problems with respect to employment, when I was a teenager applying for retail jobs, waitressing jobs, those were all fine, because I can bluff, really bluff. When you’re hard of hearing it’s sort of faking it right? And because I don’t wear my hearing aid it’s not a visible disability so I pass. As I move on into the business world, the law world job market, I find it’s more difficult to bluff…So I think that employers feel that if you have a disability it’s going to be a hassle to accommodate you, it’s going to be expensive to accommodate you…No matter how people say “committed to equity”, I think that given a couple of qualified options they might not necessarily choose someone with a disability, despite the commitment that they think they have made.
LCO Focus Group, Individuals with Disabilities, Owen Sound, May 31, 2010
…sometimes I hear people in the office asking about a job who might have trouble speaking, and they’ll say, oh no, the job’s not available anymore, and then you call back, and it is available, but only to someone who seems like they might be more able to do it.
LCO Focus Group, Organizations, Ottawa, June 15, 2010
One study of Canadians with learning disabilities found that the majority of individuals interviewed for a job chose not to disclose their disability to their prospective employer. One of the study participants commented, “When they find out you have a disability of any kind, that automatically means you can’t do the job.”
The Ontario Human Rights Code (Code) requires equal treatment with respect to employment without discrimination because of disability. This extends to the hiring decision, and to the provision of disability-related accommodations in the hiring process, to the point of undue hardship. There is no discrimination where a person is incapable, even with accommodation to the point of undue hardship, of performing the essential duties of the job because of disability. The Ontario Human Rights Commission (OHRC) has developed a number of policies and guidelines related to the hiring decision, including the Policy and Guidelines on Disability and the Duty to Accommodate, and a Policy on Employment-Related Medical Information. Discrimination on the basis of disability has for many years dominated the caseloads of the OHRC (under the previous system) and now of the Human Rights Tribunal of Ontario (HRTO). In the 2009-10 fiscal year, 52 per cent of all applications to the HRTO cited disability as a ground. Since 75 per cent of all applications were in the social area of employment, it is logical to presume that a substantial majority of the applications citing disability were related to employment, but the HRTO does not make that particular statistic publicly available.
The Integrated Accessibility Standards Regulation made under the Accessibility for Ontarians with Disabilities Act (AODA) includes accessibility standards to be implemented in the workplace, and has some provisions related to hiring and other aspects of employment. Sections 22 and 23 of the Regulation require employers to notify job applicants about the availability of accommodations and to provide necessary accommodations during the recruitment process. Section 24 requires employers to notify successful applicants about its accessibility policies. Because the AODA focuses on accessibility issues, there are no provisions specifically regulating the employer’s hiring decision.
These legal protections are important and powerful public commitments to the value of equality. For those who access the enforcement provisions of the Code, these protections provide an opportunity to be heard and seek redress. However, for most persons with disabilities, there are limits on their practical utility. Hiring decisions are usually opaque to job seekers: as they are not privy to information about other applicants and the decision-making process, it may be difficult to identify whether disability has played a role in the hiring decision. As a result, it may be very difficult to prove that discrimination has taken place.
And in any case, many persons with disabilities may be unwilling to undertake the drawn-out, adversarial proceedings associated with a human rights application – particularly where they are still seeking employment. The recent reforms to Ontario’s human rights system were intended to make enforcement of human rights simpler and faster, as well as create more capacity for systemic initiatives. The system is still adapting and exploring its potential, and the government is currently undertaking a review of the human rights system reforms as mandated by the Human Rights Code Amendment Act which may lead to initiatives to further strengthen the system. Nevertheless, it remains true that under both the new and old system, persons with disabilities have raised concerns that the process for enforcing human rights is challenging to navigate and lengthy by the standards of justice seekers who may be in vulnerable circumstances. While human rights applications are important for setting precedents and promoting and enforcing system change, by their nature human rights applications can provide effective solutions for only a minority of those persons with disabilities who experience discrimination in employment.
During the LCO public consultations, individuals with disabilities grappled with how to improve the odds for persons with disabilities in the hiring process. Some suggested simplified complaint and monitoring procedures for employment barriers.
Let’s say I come in and they say, ‘this job isn’t available’. I find out they lied. There should be some recourse. There should be someone I can call and report them to. Here’s what they’ve done, they’ve lied to avoid dealing with someone like me, and this is an issue that needs to be dealt with.
LCO Focus Group, Deaf, Deafened and Hard of Hearing Individuals, Toronto, June 21, 2010
Others suggested that a second look be taken at more proactive measures, such as employment equity.
One of the things I think we’re missing most of all is some form of real employment equity in this province. We’re in a nightmare scenario as far as employment for people with disabilities. It’s not so hot for people without a disability, but people with disabilities basically have very little chance in getting in and keeping employment in this province because of the barriers that are put up, 95 per cent of which are completely artificial and don’t need to be there… So employment equity and doing things properly as far as employment – if we don’t fix that, then we’re only going to have more and more people on social assistance, and that situation is just going to get worse.
LCO Focus Group, Individuals with Disabilities, Owen Sound, May 31, 2010
Ableism, whether conscious or unconscious, may have a pervasive influence on the lives of persons with disabilities. The available information indicates that it has a significant impact on the ability of persons with disabilities to locate employment. While the law includes provisions that prohibit employers from refusing to hire individuals because of their disabilities, in practice persons with disabilities perceive that there have been constraints on the ability of the law to have a significant systemic effect on this problem.
3. Complexity, Overlap and Silos
The law as it affects persons with disabilities is frequently fragmented and enormously complicated. This complexity can itself create a challenge, both for persons with disabilities and for service providers and advocates who attempt to assist individuals in navigating the system. Laws that are well-intended may fail to achieve their purposes, because they are effectively inaccessible for persons with disabilities who do not have the supports and resources necessary to understand and make use of them. Persons with disabilities may not be able to make meaningful choices because they are not aware of the options available to them, or perceive them to be too difficult to exercise.
Regulation of the lives of persons with disabilities: One reason for the difficulty in understanding and navigating the law is the sheer extent of the law that is specifically focused on persons with disabilities. For reasons both good and bad, the lives of persons with disabilities are heavily regulated, and persons with disabilities frequently find themselves dealing with an intricate web of laws and policies in attempting to address day to day needs. For example, persons with physical disabilities who wish to live independently may need to understand a range of laws and programs, including the Building Code, tax credits for accessibility renovations, human rights laws regarding rental housing and the duty to accommodate, and home care support programs to address domestic or personal care needs, in addition to addressing the concerns that persons who do not have disabilities deal with in securing or adapting appropriate housing.
Complexity of the laws: Particular laws addressing disability-related issues are themselves often exceedingly complicated, lengthy and technical, creating substantial bureaucratic structures and extensive policy frameworks. For example, low-income persons with disabilities may receive income support through ODSP, which provides a shelter allowance and provision for basic needs. ODSP, while an essential support, is a notoriously complex program, with many regulations and policies, and a complicated bureaucratic structure. As the LCO heard repeatedly during its consultations, understanding and effectively navigating these systems requires considerable effort and expertise, so that persons with disabilities may not be able to access supports which are intended to benefit them, or may be discouraged from attempting to do so. Complexity may arise from efforts to take into account the diversity of experiences among persons with disabilities, to ensure that scarce resources are allocated where they are most needed, or to provide procedural fairness. That is, there may be good reasons for the complexity. However, it is important that this be recognized as a potential barrier to access and inclusion for persons with disabilities, and that it be addressed by simplification, or by providing navigational assistance for those accessing these systems.
Relationships between laws: As well, laws may overlap or interact in complicated ways as in the interrelationship of the Ontario Building Code, the Ontario Human Rights Code, and the AODA with its accompanying regulations. As is detailed in the Case Example following this section, all these statutes deal with accessibility for persons with disabilities in the context of housing, yet have different standards and processes.
Fragmented laws, policies and programs: The laws targeting persons with disabilities have, by and large, evolved over a period of many years to deal with specific pressing issues as they arise. While there have been some attempts to harmonize the laws, there are frequently gaps or inconsistencies, and the lived experience of persons with disabilities is often not addressed holistically. Laws, policies and programs often fail to take into account that an individual may, for example, be at one and the same time a mother, a person with a mental health disability, a person with a sensory disability and a job-seeker. Laws, programs and services will often deal with each of these attributes separately, so that although many supports may be available, the individual must cobble together a patchwork of services for themselves, none of which addresses the whole person or the particularity of the barriers she or he faces. For example, Aboriginal individuals with disabilities face particular difficulties in finding accessible housing because of compounded stigma and discrimination, confusion arising out of jurisdictional issues, the increased likelihood of low-income, and the particular challenges of finding accessible housing in remote areas or in many First Nations communities.
Transitions: Related to the previous issue of fragmentation, is the issue of how the law supports or inhibits the ability of persons with disabilities to make transitions – a major theme during the spring 2010 consultations and one of the foci for the LCO’s research for this Report. Persons with disabilities generally aspire to move along the life course in a way similar to their peers who do not identify as disabled. As described earlier, young adults with disabilities often wish to live independently of their parents, but may experience many barriers to doing so, including finding appropriate housing and supports, and sourcing adequate funds and there are few programs that recognize the particular nature of the transition that young adults make to living on their own and support it for persons with disabilities. This lack of attention to transitions reinforces the fragmentation of the law referred to earlier.
The following case example looks at one example of the challenges that may be faced in understanding and navigating the law, through an examination of the relationships between laws regulating the accessibility of rental housing.
CASE EXAMPLE: RELATIONSHIPS BETWEEN LAWS
Accessible Rental Housing and the Law
The International Covenant on Economic, Social and Cultural Rights recognizes the right to adequate housing, and under Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD), States Parties recognize the “right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing”. Article 9 of the CRPD states, “To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment”. These measures must include the identification and elimination of obstacles and barriers to accessibility and apply to housing, among other facilities.
As was discussed earlier in this Chapter, persons with disabilities may encounter a range of barriers to housing, including the lack of disability-accessible housing that meets their needs.
In Ontario, the accessibility of housing has been regulated, for the most part, by the Ontario Human Rights Code (Human Rights Code) and the Ontario Building Code (Building Code). The Accessibility for Ontarians with Disabilities Act (AODA) may have some role to play in the area as well, through the enactment of a Built Environment Standard.
The Code requires equal treatment in housing accommodation, without discrimination on the basis of disability. Following human rights caselaw, the Ontario Human Rights Commission (OHRC) has stated that “Housing providers, and other responsible parties including government, are required to make sure that the housing they supply and programs they administer are designed inclusively.” Housing providers must accommodate for disability-related needs to the point of undue hardship. This may, for example, require landlords to make accessibility-related modifications to their rental housing units, in order to meet the needs of tenants with disabilities.
The Building Code governs the construction of new buildings and the renovation, change of use or demolition of existing buildings. Most accessibility requirements are found in section 3.8 of the Building Code, which sets out barrier-free design requirements recognizing the needs of people with various disabilities. These include, for example, requirements related to barrier-free access, barrier-free path of travel, barrier-free washrooms and doorways. These standards are enforced by municipal building inspectors.
The Human Rights Code and the Building Code therefore have overlapping areas of application. This raises issues with respect to their interrelationship and the extent to which they are co-ordinated. As a quasi-constitutional law, the Human Rights Code prevails over any Ontario law or regulations, unless that enactment specifically provides otherwise. In other words, where there is a conflict between the Human Rights Code and the Building Code, the Human Rights Code will prevail. This means that an application under the Human Rights Code can challenge design elements that otherwise meet standards under the Building Code. An otherwise compliant building may need to be modified to comply with the Human Rights Code. While in theory the relationship between the two laws is clear, in practice, their interrelationship still creates a number of difficulties, and the OHRC has been raising concerns about the relationship of the two laws for a number of years.
The two statutes differ in purpose and approach. The Human Rights Code creates a general standard of “equal treatment without discrimination” to the point of undue hardship; practically speaking, the requirements to meet this standard will vary from building to building and landlord to landlord, particularly since the undue hardship standard is situation-specific. As is noted above, the right to equal treatment without discrimination includes a duty to design inclusively and to remove barriers based on disability. The Building Code creates clear, specific minimum standards which apply across classes of buildings.
Because of the greater clarity and specificity of standards under the Building Code, housing providers will, in good faith, tend to defer to these statutes over the Human Rights Code, despite the fact that these are minimum standards and the Human Rights Code may in some circumstances require something more. Indeed, the clarity and specificity of the Building Code is one of the benefits of that statute for moving forward accessibility for persons with disabilities. Difficulties will arise, however, where the Building Code’s minimum standards fall short of the requirements under the Human Rights Code, and housing providers may understandably fail to understand their obligations under both statutes. For example, concerns have been raised that current Building Code standards do not ensure full access for people using the larger mobility devices that are becoming more common. The Building Code mandates that corridors, aisles and exits be at least 1,100 mm in width; however, powered wheelchairs may be over 1,300 mm in width. Similarly, the turning radius of scooters may exceed the minimum standard in the Building Code.
The OHRC has commented that “many housing providers continue to rely on the Ontario Building Code without considering their obligations under the Human Rights Code”. This may be because housing providers are unaware of the Code and are “under the incorrect impression that by complying only with Building Code requirements, they have met all of their legal obligations”. The result of this is that to the extent that the Building Code accessibility requirements do not take Human Rights Code obligations into account, housing providers are more likely to face human rights issues, particularly where housing providers are not aware that the requirements of the Human Rights Code may differ.
There are also issues surrounding enforcement of accessibility requirements. Under the Building Code, municipal inspectors conduct inspections where Building Code permits are issued, to ensure that new construction and specified significant renovations comply with the standards under that statute. The system for enforcement of Building Code standards is therefore proactive. Under the Human Rights Code, enforcement of standards is reactive rather than proactive (although the Code does create opportunities for OHRC-initiated applications). Individuals can only make applications under the Human Rights Code where they believe housing providers have failed to meet the Human Rights Code standard, and an application under the Human Rights Code leads to a hearing by the Human Rights Tribunal of Ontario. These multiple avenues for addressing accessibility issues also contribute to the confusion around the issue, as housing providers may believe that approval by a building inspector means that they are in compliance with all accessibility requirements.
Finally, the requirements in the Building Code are predominantly prospective, applying to new buildings and some renovations. This leaves a large gap in the form of those older buildings that are not accessible. The OHRC has identified this as a significant gap in the effort to achieve a barrier-free Ontario by 2025, and may be considered problematic from a progressive realization perspective. This is of particular concern for people on low incomes because most social housing in Ontario was built between the mid-1960s and the mid-1990s. The average age of buildings with elevators owned by the Toronto Community Housing Corporation is 33 years. However, requiring all buildings to be barrier-free, regardless of their age, would be costly for building owners. There are some initiatives under Ontario’s Investment in Affordable Housing program that are intended to address this gap, including the Ontario Renovates program, which provides funding assistance for repairs and renovations to maintain the affordability and increase accessibility of units for persons living in low-income. As well, the Housing Services Act prescribes a minimum number of social housing units to be modified for persons with physical disabilities.
The AODA provides for the development, implementation and enforcement of accessibility standards with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises. The Act applies to the public and private sectors. The AODA explicitly states, “Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed by law”. Standards have been completed in a number of areas, including information and communication, employment and transportation. Work is continuing on standards that relate to the built environment, which potentially could impact on housing accessibility.
The relationship between the Human Rights Code and the Building Code, both important statutes that aim to increase inclusion and accessibility for persons with disabilities, illustrate the complexities that may arise from the relationships between laws. While in theory the Building Code and the Human Rights Code both work in different ways towards a shared goal of accessibility, in practice, a lack of clarity and harmonization between the two statutes makes it more difficult for both persons with disabilities and housing providers to understand their rights and responsibilities and to ensure effective enforcement of the requirements, thus constraining the attainment of their shared goals.
This issue also highlights the importance of progressive realization in understanding and addressing current limitations. As technology and understandings of disability-related accessibility needs evolve, standards must also evolve. The challenges are particularly acute in the context of the built environment, where decisions have long-term consequences and change may be costly. While acknowledging the challenges, it is essential that means to ensure progress towards the ultimate goal of full accessibility continue to be explored and implemented.
The AODA itself builds on and exemplifies the concept of progressive realization. As the planned Built Environment Standard under the AODA has not yet been enacted, the impact of the new standard on the harmonization of the three statutes is not yet clear.
4. Implementation and Access to Justice Issues
As is noted elsewhere, there are a number of laws whose provisions are problematic in terms of their effect on persons with disabilities, whether because they incorporate ableist attitudes, or because they fail to take into account the realities of existence for persons with disabilities. In many cases, however, the law is sound on paper, but problematic in practice. Laws, policies and programs originally intended to benefit persons with disabilities may fall short of the goal or have unintended negative consequences.
There are many reasons for this, some of which have been touched upon above. Other issues are outlined below.
Access to information: If one is not aware of one’s rights and responsibilities under the law and of the mechanisms available to access those, it is highly unlikely that one will be successful in accessing and enforcing them. Access to information is essential to access to justice. The government of Ontario has recognized this is a number of ways, including the creation of “Justice Ontario”, a website and phone line intended to be a comprehensive, one-stop resource providing simple, easy-to-understand information in accessible formats on a wide range of justice related issues.
Persons with disabilities face many barriers to accessing information, and this was a recurrent theme in the LCO’s public consultations. Some issues arise due to lack of disability-accessible information – websites that post information only in pdf, or organizations that provide information only via printed matter, for example. Other barriers arise from the complexity of laws and systems discussed in the previous section. When service providers themselves find it difficult to navigate systems, it is not surprising that individuals, particularly those who live in low-income, will have significant difficulty in locating accurate and comprehensive information about the laws as it applies to them. Barriers to accessing information may also relate to the disproportionate levels of low income among persons with disabilities, as individuals living in low-income will have less access to technology and to services (such as legal advice) that can help them in understanding their rights and responsibilities. As well, the need for information often arises when individuals are in crisis, and at such times, individuals are less likely to be able to navigate large and multi-layered bureaucracies without assistance. In this way, the autonomy of persons with disabilities may be undermined, as they are unable to make informed choices about laws, policies and programs that may affect them.
CASE EXAMPLE: ACCESS TO INFORMATION ABOUT THE LAW
Access to Information for Culturally Deaf Individuals
An understanding of the law and of the processes associated with it is essential to access to the law. Barriers to accessing information were a pervasive theme during the LCO’s 2010 public consultations. During the LCO’s focus groups with service providers and advocates, a number of individuals indicated that they themselves often had trouble locating information for their clients because of the silos and fragmentation of laws and programs, and the constantly changing nature of programs.
Many persons with disabilities told the LCO that they had considerable difficulty in locating information about their rights and responsibilities under the law, whether because they did not know where to go in order to find it, because the laws and systems involved are inherently complex and difficult to navigate for the average person without specialized supports, or because of a lack of accessible information. As one participant in the LCO’s focus groups told us,
One of the issues I think for those of us who are blind or vision impaired is the paper work. Accessing, getting the forms, getting a format I can use, if it’s online chances are it’s not going to work because my screen reading program can’t handle all of the extra pictures and icons. It’s getting a staff person willing to assist to fill out the form, because usually there’s a conflict of interest, they can’t fill it out because they are acting on your behalf, and they are supposed to represent the agency. So where am I supposed to get the print read? And fill it in, and make sure it’s done right, because I can’t proof read it because it’s in print. It goes on, and on.
LCO Focus Group, Individuals with Disabilities, Owen Sound, May 31, 2010
The Ontario Human Rights Code (Code) imposes requirements to provide services (including government services) equally and without discrimination on the basis of disability. This includes a duty to accommodate for disability-related needs in the provision of services, unless that accommodation would result in undue hardship. Service providers must therefore ensure that individuals with disabilities are able to access information about their rules, policies or services equally with those who do not have disabilities, unless to do so would cause undue hardship.
The Accessibility for Ontarians with Disabilities Act (AODA) also sets standards for provision of information to persons with disabilities, through the Integrated Accessibility Standards Regulation. For example, under section 12, obligated organizations must, upon request, provide or arrange for the provision of accessible formats and communication supports for persons with disabilities, in a timely manner that takes into account the person’s accessibility needs due to disability, at a cost that is no more than the regular cost charged to other persons. Organizations are to publicize information about the availability of accessible formats, and must consult with the person affected as to the suitability of the information or communication support. There are also requirements related to website and web content accessibility.
Individuals who are culturally Deaf and whose primary language is sign language (whether ASL or LSQ) may face significant barriers to accessing information about the law. While it is often assumed that providing written information about laws, policies and programs will meet the needs of persons who are culturally Deaf, written English or French may be a second language for these individuals, so that some may have difficulty gleaning the information that they need from complicated written documents.
You know, you look at the issue that English presents. You know, there will be a job posting and you look at it and it’s all a lot of verbiage and a lot of English description and there should be a plain language format required, that there be a straightforward use of language. You’ve got lots of new Canadians here and it would benefit them as well. But it’s an issue, you look on the Internet, laws, government, the verbiage that’s used, there’s a lot of, you know, brochures, a lot of verbiage, a lot of dense use of English. We could cut that down, do something with a plain language format, make that a requirement, that would help a lot.
LCO Focus Group, Deaf, Deafened and Hard of Hearing Individuals, Toronto, June 10, 2010
The growing trend towards providing information about laws and services primarily through written text on websites may therefore not provide sufficient means of communicating essential information about rights and responsibilities to this group.
You know they were having the G-20 and they were doing this emergency planning. For us, there is nothing visual available for us in terms of warning systems, communication systems. And some individuals have very poor English literacy and they won’t know what to do anyway. So just communication with the police. If the police see a Deaf person, and their attitude is just maybe making some assumptions and they arrest that individual, they haven’t done anything, they don’t have full information. In today’s world, right, Deaf people are still missing information because it’s not presented to us visually. I mean, think about it, the G-20 is coming and we still don’t have all the information about it. I mean, TTC, the GO train, nothing in a communication method that is accessible to us. Other people are maybe getting this information, but we are not.
LCO Focus Group, Deaf, Deafened and Hard of Hearing Individuals, Toronto, June 10, 2010
There are limited numbers of qualified sign language interpreters, and they must often be booked far in advance, so that there is little capacity to respond to emergency needs. These shortages are particularly severe outside major population centres and in Northern Ontario, where it may be very difficult to obtain sign-language interpretation or real-time captioning, even with considerable lead time. Developing technology, such as remote captioning or Video Remote Interpretation, may in time go some distance to alleviating these difficulties, but at the present, the need is acute.
As well, service providers may resist providing sign language interpretation as an accommodation, preferring to use written communication even where the individual in question has requested otherwise:
When you say, we need an interpreter, we need this, we need that and they say, oh no, we can manage without. No. Please. I’m requesting this, please provide me with this accessibility. If the request is made, they should just do it. No questions asked. I’ve made the request, I need a note taker, or I need a real time caption or I need an interpreter, whatever the request is. I shouldn’t have to get into a debate with them, well you know we can’t really afford it, we’ll just write notes back and forth, it’s good enough. No, it’s not good enough.
LCO Focus Group, Deaf, Deafened and Hard of Hearing Individuals, Toronto, June 10, 2010
As well, when dealing with formal legal settings such as courts and tribunals, there are very few interpreters who are conversant with legal terms or procedures and qualified to work in these settings. The Canadian Hearing Society has raised concerns about the lack of testing or qualifications for sign language interpreters working in legal settings. During consultations, several Deaf individuals recounted courtroom experiences where the assigned sign-language interpreter was clearly not qualified to deal with the issues at hand.
I work with a lot of clients doing case management, so I’m out of the building a fair bit and I’m in the courts a fair bit and I’m having to insist on behalf of clients that interpreters be provided for them. And we’ll attend and the interpreter will be there but they are not a qualified person. They are not qualified. They are an interpreter but they are not qualified for Court. So there we will be, and I can’t, it’s important that the client can understand, so I will ask the client if they understand what’s happening. And if they really object, of course then I will speak up on their behalf…So, I’m wanting for there to be, there has to be an understanding of the reality of where the interpretation is being provided and the level of qualification that is necessary. There’s some interpreters that are suitable for other settings, not for these other critical settings. So there needs to be a discussion of looking at qualifications and skills of interpreters for critical settings.
LCO Focus Group, Deaf, Deafened and Hard of Hearing Individuals, Toronto, June 10, 2010
In a December 2008 report on linguistic and rural access, the Law Foundation of Ontario noted that many legal service providers and some administrative tribunals simply do not provide sign language interpretation for people who are Deaf, and that some legal service providers expressed frustration with the lack of sufficient funding for sign language interpretation. Persons who are Deaf may therefore find themselves in the midst of legal proceedings which may have considerable impact on their lives, but of which they have only partial understanding.
These kinds of barriers to access to information can significantly impede the ability of persons with disabilities to understand and enforce their rights and responsibilities under the law, and can thereby contribute substantially to the implementation gap.
Failure to accommodate disability-related needs: As is touched on above, services and programs that may affect persons with disabilities, and mechanisms for accessing and enforcing rights may not take into account disability-related needs and may fail to provide appropriate accommodations. While equal access to services without discrimination (to the point of undue hardship) is the law under the Ontario Human Rights Code and standards under the Accessibility for Ontarians with Disabilities Act are expected to spur significant advances, change takes time, and many disability-related barriers, whether physical, attitudinal, systemic, communications or otherwise, currently remain.
Reliance on self-advocacy to navigate complicated systems: As the previous section described, the law as it affects persons with disabilities is often fragmented and complex, so that persons with disabilities find it difficult to navigate through the necessary systems. The nature of certain types of impairments may make navigation particularly difficult – for example, a person in crisis related to a mental health disability is not likely, at that point, to be able on their own to locate and access supports. Persons who are living in poverty may be focused on day-to-day survival, and less able to concentrate personal resources to deal with large bureaucracies. Yet, most systems now rely on persons with disabilities themselves to identify their rights and advocate for themselves, assuming that individuals have the information, support systems and personal resources to do so.
Power imbalances: As well, there is often a significant power imbalance between the individual with a disability and the person or organization administering the law or program. For example, ARCH points out that persons with intellectual disabilities may rely on developmental services and supports for many activities of daily living, such as eating, dressing, bathing, toileting, managing finances, or navigating social assistance bureaucracies, and states,
This dependence leaves people with disabilities vulnerable; they must work hard to maintain good relationships with support workers, family members and others on whom they rely in order to ensure that they continue to receive support and their basic needs are met. Making a complaint about a support worker or raising a concern about services may threaten or sever those relationships, and this can have disastrous impacts for the person with a disability.
Limited resources: In some cases, adequate human or financial resources are not provided to ensure the appropriate functioning of a law or program, so that access to rights and benefits is, in effect, rationed. As one consultee noted,
The biggest gap that I see is in funding, is in supporting the programs that are out there. I mean, we all, I suspect, in this room, would all espouse community living as something that is integral to the inclusion of people with developmental or intellectual disabilities, or for that matter, any other disability, but when you don’t have supports in place, when people can’t access the supports that they need to be able to engage with the community, then it becomes nothing more than, you know, a saying. When, you know, there isn’t money to transition from being in high school to living in the community, when there isn’t money to I don’t know, to pay support workers so that you have control over your own life and you can make choices and decisions. When there isn’t any funding for the programs, the programs themselves are worthless.
LCO Focus Group, Organizations, Toronto, May 13, 2010
Courts have been reluctant to impose positive obligations on governments to provide supports to persons with disabilities, so that supports are at the discretion of governments.
Lack of monitoring and transparency: In many cases, it is difficult to tell whether a particular law, policy or program is having its intended effect, because there is no adequate mechanism for monitoring and evaluating its effectiveness. Data on the effect of a particular program, benefit or law on the lives of persons with disabilities frequently do not exist. For example, as is described further in the Case Example below, although Individual Education Plans for students with disabilities are required to include transition plans for students approaching school-leaving stage, concerns have been raised about the effectiveness of the limited requirements for monitoring and evaluating transition plans. Clear and measurable standards can assist in enabling effective monitoring. For example, the Ministry of Education’s standards for Individual Education Plans for exceptional pupils outline in detail province-wide standards that school boards must meet when developing, implementing and monitoring these plans. One of the key benefits of the AODA is increased clarity about what employers, service providers and others must do to ensure that their activities better meet the accessibility-related needs of persons with disabilities. The Case Example below highlights the importance of monitoring the implementation of laws and programs to ensure that they are meeting the goals that are set for them.
CASE EXAMPLE: MONITORING AND TRANSPARENCY
Planning the Transition from School to Work under Individual Education Plans
Moving from school to employment is a crucial time for all young people who are entering adulthood, when they gain greater independence and begin to exercise greater control over their lives. Gaining employment is a major aspect of this development. Employment allows an individual to contribute to and feel part of a community. It fosters social engagement and boosts self-esteem. It is a key factor in self-determination and financial independence. Article 27 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) sets out “the right of persons with disabilities to work, on an equal basis with others; this includes the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.”
As is detailed elsewhere in this Chapter, unemployment rates are higher than average for young persons, and this is exacerbated for persons with disabilities. The transition from education into employment may be a difficult one for this group. A recent OECD report concluded that, although youth with disabilities were increasingly able to access and succeed in tertiary education, this additional training has had little impact on their access to employment.
Although there are many programs to support students with disabilities while they are in school and planning to enter the workforce and Ontario’s special education system has made many advances in accommodating and including students with disabilities, significant barriers remain in the education system and transition planning may not adequately prepare persons with disability for the workforce. Employment service providers have indicated that most persons with disabilities seeking employment assistance need skills upgrading in order to compete in the labour market. Employers have similarly reported that as many as 40 per cent of persons with disabilities attending job fairs require more training before entering the workforce.
Recognizing that almost all students will aspire to further education of some form, productive or supported employment or volunteer work and independent living with such supports as are necessary, Ontario’s Education Act’s requirements related to special education include provision for transition planning.
Under the Education Act, the Ministry of Education is responsible for ensuring that all “exceptional pupils” in Ontario have available to them appropriate special education programs and services without payment of fees. This includes responsibility for ensuring that school boards implement procedures for identifying student needs and set standards for identification of exceptional pupils. Regulation 306 requires school boards to provide special education programs and services to exceptional students. As part of this requirement, each school board must prepare an annually reviewed special education plan and establish Identification, Placement and Review Committees and Special Education Appeal Boards.
Individual Education Plans (IEPs) for identified students aged 14 and older must include a plan, developed in consultation with the student’s parents or guardians, for transitioning to appropriate post-secondary activities including further education, work and community living. Only those students aged 16 and older are entitled to be directly consulted in the planning process; however, students age 14 and older may have some input in other ways, such as through the development of the Annual Education Plan. Additionally, the principal is responsible for consulting with appropriate community agencies and postsecondary institutions.
According to Ministry standards, a transition plan must include the following:
goals for the transition that are specific for the student;
the actions, also specific to the student, required to achieve the goals;
the person or agency responsible for helping to complete each action; and
In different ways, a wide variety of people and organizations are involved either in the transition planning team (the student, parents, school personnel, relevant community representatives and workplace representatives) or through links developed by special education staff with the employment sector and community support organizations. The Ministry also emphasizes the importance of providing appropriate and barrier-free access to cooperative education and work placement programs, considered to be an important and successful part of transition planning for some exceptional students. Educators are required to ensure that the accommodations provided for in a student’s IEP are similarly made available at the job placement.
Despite the positive provisions in law and policy regarding transition planning, it is difficult to tell how effective these provisions are in meeting their objectives. Although decisions as to identification and placement may be appealed to the Ontario Special Education Tribunal (SET), the SET has no explicit jurisdiction to determine whether or not appropriate supports were provided under the IEP. However, the Ontario Human Rights Tribunal has recognized that the SET does consider the appropriateness of programs and services in the context of placement decisions and that issues of appropriate accommodation, including the sufficiency of the programs and services provided to applicants, will be heard by the Human Rights Tribunal of Ontario, an option about which many may be unaware.
Further, in practice the extent to which transition planning actually takes place and its effectiveness vary among different high schools and different students. School boards operate on their own business models and take different approaches to interpreting and implementing the Ministry’s Standards. The Ontario Human Rights Commission and Statistics Canada have both found that special education programs and services that exist on paper may be inadequate in their implementation, and that transition planning has not necessarily been effective, particularly as the student ages.
Finally, there currently appears to be insufficient monitoring of the effectiveness of current approaches to transition planning. Although Ministry standards also include provisions for implementing and monitoring IEPs, in a 2008 Report on Special Education, the Auditor General of Ontario noted that, although transition plans were completed for special needs students as required by regulation, there was no documentation on whether intended actions were completed and with what degree of success. In his 2010 Report, the Auditor General noted that a number of steps had been undertaken to begin to address this issue. For example, the Ministry of Education is currently in the process of drafting a Policy and Program Memorandum on Transitions in response to the Auditor General’s recommendations. This will require school boards to monitor the effectiveness of transitions as part of the IEP review process. As well, for the 2011-2012 school year, school boards have been asked to conduct a formal review of IEPs with a view to sharing best practices and promoting improvement. The Ministry of Education has also instituted an annual survey to monitor implementation of a number of areas affecting students with Autism Spectrum Disorder, including transition planning.
Therefore, it may be that the laudable purposes of these provisions are being only imperfectly achieved, and that the progress towards fulfilment of the principles could be improved. This highlights the broad issue of the “implementation gap”, which is a general challenge for law and policy-makers, as well as the value and importance of transparency and monitoring in progressive realization of the ultimate goals of the law.
When laws are designed or reviewed, these barriers must be taken into account and addressed, to ensure that the law is meaningful and effective for persons with disabilities.
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