V. The Law and Persons with Disabilities

///V. The Law and Persons with Disabilities
V. The Law and Persons with Disabilities2017-03-03T18:35:39+00:00
A. Overview

Ontario has a very wide array of laws that affect persons with disabilities. Some have disability-related issues as a central concern, while others deal with disability only tangentially. These laws touch on a broad range of issues, including transportation, education, employment accommodation, income-support and security, assistive devices and the administration of justice. It may be helpful to consider the law as it affects persons with disabilities in the following four general categories.

Laws of General Application: Many laws that do not deal explicitly with disability nevertheless have a significant and disparate impact on persons with disabilities. Laws that ignore the existence of persons of disabilities, and thereby fail to take into account the experiences and circumstances of persons with disabilities, may create barriers. For example, laws that require members of the public to provide information and complete forms to access programs and benefits and do not take into account the needs of persons with communications or intellectual disabilities may unintentionally create barriers to access.

Laws Promoting Equality and Barrier Removal: There are a number of laws that are explicitly aimed, in whole or in part, at removing barriers to equality for persons with disabilities. Section 15 of the Charter has played a central role in advancing the rights of Canadians with disabilities. Ontario’s Human Rights Code provides important anti-discrimination protections. As well, the Ontario Human Rights Commission has employed the broad powers given it under section 29 of the Code to address systemic issues affecting persons with disabilities through initiatives related to education for persons with disabilities, transit accessibility, accessibility standards for services, and police record checks, and by developing policies and guidelines.

Ontario’s newest and most innovative approach to removing barriers for persons with disabilities is the Accessibility for Ontarians with Disabilities Act (AODA).[28] The AODA applies to both the public and private sectors, while a sister statute, the Ontarians with Disabilities Act,[29] is also aimed at barrier removal, but is more limited in its scope. The AODA sets out a process for developing accessibility standards and for ensuring the removal of physical, attitudinal, informational, technological or communications barriers for persons with disabilities. The aim of the AODA is to achieve full accessibility by 2025. Standards have been developed for customer services, and will be developed in the further four areas of employment, communications and information, transportation, and the built environment.

Laws Providing Supports, Accommodations and Benefits to Persons with Disabilities: There are numerous Ontario laws that recognize the unique circumstances of persons with disabilities and provide special supports, benefits and accommodations either to all qualifying persons with disabilities, or to particular groups of persons with disabilities. These laws include those creating the Ontario Disability Support Program, the special education provisions under the Education Act and accompanying regulations, services and supports targeted to children with disabilities, and the provision for disabled parking permits under the Highway Traffic Act.

Laws Restricting the Activities and Participation of Persons with Disabilities: Laws relating to legal capacity or competency may restrict the activities of persons with psychiatric, intellectual, developmental or cognitive disabilities. The Health Care Consent Act and the Substitute Decisions Act, for example, set out procedures for decision-making related to health, property or personal care decisions where a person is determined to be lacking in legal capacity.

B. Some Key Themes and Issues

Based on the LCO’s preliminary consultations and initial research, some themes and issues have begun to emerge regarding the current framework for the law as it affects persons with disabilities.

Overlaps and Inconsistencies: Perhaps not surprisingly with such a complex web of laws and policies, at times the law as it relates to persons with disabilities is beset by overlaps and inconsistencies, which can cause confusion and inefficiency in the attainment of the policy goals of the law. Concerns have been raised for example, about the interaction of various laws and policies related to income support for persons with disabilities.[30]

A prime example of overlap and inconsistency is the relationship between the three statutes regulating accessibility for persons with disabilities: the Ontario Building Code, the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act. No formal mechanism exists for coordinating these three statutes. In practice, the approaches to accessibility under each of these legislative frameworks often differ considerably, and the Ontario Human Rights Commission has frequently highlighted concerns with both the OBC and the AODA.[31] Service providers may therefore be required to meet three separate standards on any one accessibility issue; however, individuals may seek recourse regarding a lack of accessible services only under the Ontario Human Rights Code.

Eligibility Criteria and Gatekeepers: Programs that provide services, benefits and supports to persons with disabilities generally have in place eligibility criteria to determine who is and is not entitled to receive the service, benefit or support in question. Such criteria may require an individual to demonstrate that he or she has a particular impairment, that it meets a certain threshold for severity, and/or that it has particular effects on the ability to perform specific functions.

Determination of which individuals meet eligibility criteria may require the development of complex administrative systems and considerable resources. Persons with disabilities may find such systems difficult and even demeaning to access, and persons who are in genuine need of supports or services may fail to apply or demonstrate eligibility for those services or supports.

Demonstration of eligibility for a particular benefit or service may require verification from specific health services professionals. This can give health practitioners considerable power over the lives of persons with disabilities, as their decisions become essential to meeting basic needs. This reliance on health professionals has been critiqued as placing persons with disabilities in a position of dependence, and giving professional excessive power to label, evaluate and define persons with disabilities.

For example, the current system for determining eligibility for the Ontario Disability Support Program has been the subject of considerable criticism. Delays in disability adjudication and internal reviews were critiqued by the Ontario Ombudsman’s Office in a 2006 report: at that time, the adjudication process could take months, with only limited rights to back pay of benefits where eligibility was upheld.[32] The program is complex, so that applicants may have difficulty understanding their rights and how to access them.[33] Eligibility criteria that employ, in part, a bio-medical approach prevent some individuals with disabling conditions from accessing the benefit and, as a submission to the LCO pointed out, “makes doctors the gatekeepers to the definition of disability, placing them in a position of power over the client.”[34]

Access to Supports: Persons with disabilities may require supports in order to achieve equality, whether it be assistive devices to enable a student to access course materials, personal supports to assist with homemaking or the activities of daily living, specialized rehabilitative or training services, or financial supports to defray the costs of disability-related needs. Where necessary supports are not available, persons with disabilities are denied the opportunity to develop to their potential and to contribute fully to their communities, and may be relegated to poverty and the margins of society.

Concerns have been repeatedly expressed that there are insufficient resources allocated to supports for persons with disabilities, so that programs intended to benefit persons with disabilities cannot be adequately implemented. As the OBA states:

Laws that focus on providing only what taxpayers are willing to pay for leave persons with disabilities and other unable to access all the services and benefits society has to offer, not because of their impairments, but due to a lack of personal or societal resources necessary to permit participation. The longer people are left in this situation, the greater the ultimate cost to the individual as well as society as a whole.[35]

In Auton (Guardian ad litem) v. British Columbia (Attorney General), parents of children with autism argued that the failure of the province to fund Intensive Behaviour Intervention (IBI) therapy for pre-school-aged children with autism violated equality rights guarantees under the Charter. While lower courts found a violation of section 15, the Supreme Court of Canada ruled that the government’s conduct did not infringe equality rights. The Court held that the legislative scheme under the Canada Health Act and related health care legislation was not discriminatory in providing funding for some non-core services to some groups, while not providing IBI therapy to children with autism, noting that the legislative scheme for health care “does not have as its purpose the meeting of all medical needs” and that “It is, by its very terms, a partial health plan”.[36]

Ableism in the Law: As noted above, there are concerns that the law itself may in some cases adopt and perpetuate ableist attitudes and assumptions. For example, capacity and guardianship laws have been criticized as being based on negative stereotypes and attitudes regarding persons with intellectual or cognitive disabilities:

Despite legislative developments in other jurisdictions and the UN Convention, long-standing negative stereotypes persist about the intellectual, and therefore legal capacity of people with intellectual disabilities, and similarly about older persons who experience cognitive or intellectual decline of their former capacities. In both cases, these stereotypes, along with assumptions about what intellectual capacities should characterize those who maintain legal capacity, are profoundly discriminating and devaluing. Too often, these stereotypes find their way into the administration of justice and result in individuals with intellectual disabilities, and older persons who have cognitive difficulties, losing their personhood before the law. [37]

The provisions of the Coroner’s Act which provide for mandatory inquests for persons who die in police custody or correctional facilities, but only provide for an investigation 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.[38]

Implementation and Enforcement: A commonly expressed issue is the gap between laws that on their face are positive for persons with disabilities, but that in actual implementation may be very problematic. Problems may arise in a number of ways, including underfunding of programs, negative or ableist attitudes on the part of program delivery staff, lack of training on the part of delivery staff, lack of viable enforcement mechanisms or problems inherent in the design of implementation or enforcement systems.

As an example, considerable attention has been paid in recent years to difficulties with Ontario’s special education system. The Auditor General identified special education as an area of particular concern in its 2001 Annual Report.[39] In 2003, the Ontario Human Rights Commission released The Opportunity to Succeed, based on extensive public consultation, and detailing shortfalls in Ontario’s education system for students with disabilities, together with recommendations for reform. Frequently, while the law and Ministry of Education policies were based on appropriate principles and approaches, actual practice fell short of the law and policy. The accommodation process, for example, could be exceedingly slow, so that students did not receive accommodations until the school year was well advanced. Assistive devices might be purchased but remain unused because staff did not know how to use them. Educators and administrators at times treated accommodation of students with disabilities as an imposition. No formal recourse was available where Individual Education Plans were inadequate or not implemented.[40]

These kinds of concerns point to the need for greater attention to the implementation and enforcement of laws and policies intended to benefit persons with disabilities. In some cases, access and enforcement mechanisms are not designed with the needs of persons with disabilities in mind. In many cases, it is difficult to know whether a particular program is being implemented in accordance with the original vision, as there is no system for monitoring the success of the program or policy.

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