XCVXCV - ARCH Disability Law Centre Alert... · Web viewThe “Services for People with Disabilities” guide can be accessed at: . ( (On-Line Resources for Providing Legal Services

I.I.425 Bloor Street East, Suite 110 (416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)Toronto, Ontario M4W 3R5 (416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)www.archdisabilitylaw.ca (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll Free)

09 February 2007

ARCH Strategic Plan 2007By Phyllis Gordon, Executive Director

The Board of ARCH Disability Law Centre is undertaking a strategic planning process to set the course for our activities over the coming few years and invites you to be a part of this process. We are seeking feedback from individuals and organizations that are familiar with our work. We have prepared a questionnaire which we invite you to complete and return to us by February 28 2007.

There are two ways to obtain the questionnaire:

1. Visit our website at www.archdisabilitylaw.ca and follow the links for the questionnaire, or

2. Phone us to request that a questionnaire be sent or emailed to you. Let us know if you need large print or alternate format.

Please return the questionnaire to us by February 28 2007:

1. By email to [email protected]

2. By ordinary mail to:

Strategic Planning Committee ARCH Disability Law Centre 110-425 Bloor Street East Toronto, ON M4W 3R5 3. Or, you can call our office and set up a

time for someone to call you back to hear your answers to these questions.

INSIDE THIS ISSUE

01 ARCH Strategic Plan 2007

02 AODA Customer Service Standard

05 Canada and the UN Convention on the Rights of People with Disabilities

07 Supreme Court of Canada Releases Decision on Duty to Accommodate

07 Social Benefits Tribunal finds that excluding Persons with Addictions from ODSP Violates Human Rights Code

09 Bill 107, An Act to Amend the Human Rights Code Receives Royal Assent

10 Reforming the Police Complaints System in Ontario

13 Police Records Checks

14 Federal Disability Report Released

15 Online Resources for Providing Legal Services to Persons with Communication Disabilities

16 New Residential Tenancies Act

18 New ODSP Rules for Earnings and Employment

18 Public Notices

1

ARCH’s Comments on Draft AODA Customer Service StandardBy Laurie Letheren and Rob Lattanzio, Staff Lawyers and Phyllis Gordon, Executive Director

Under the Accessibility for Ontarians with Disabilities Act, 2005 [AODA], accessibility standards that “set out measures, policies, practices or other requirements for the identification and removal of barriers with respect to goods, services, facilities, accommodation, employment, buildings, structures, and premises” are to be developed by committees. The first standard to be developed under the AODA was the Customer Service Standard. The draft Customer Service Standard was released for public consultation and ARCH made submissions on the Standard in December 2006.

The following is a summary of the submission prepared by ARCH. If you wish to read the full submission it can be found on the ARCH website at: http://www.archdisabilitylaw.ca/aboutARCH/lawReform/A73_2006_000000/index.asp

The submission is separated into two parts. In the first part, ARCH made general comments on the overall drafting of the Standard. In part one we also recommended that several essential components of an accessibility standard, which are absent from the proposed Customer Service Standard, needed to be added. In the second part of our submission, ARCH made comments on specific sections and language contained in the draft Standard.

Part One: Essential Components MissingPrinciples of Universal Design

It is ARCH’s opinion that the Customer Service Standard and all standards developed under the AODA must be founded upon, and advance, principles of universal and inclusive design. The principles of

universal and inclusive design are consistent with the AODA’s objectives of promoting accessibility for persons with disabilities.

Universal design refers to a philosophy that all environments (built structures, technological systems, policies etc.) be designed to be usable by a broad range of people. Universal design is rooted in the principles of equality and citizenship and seeks to promote full participation for all by maximizing accessibility. Full inclusion upfront, without after-the-fact adaptation or retrofitting, is the goal of universal design.

The Supreme Court of Canada, the Ontario Human Rights Commission and the United Nations in its recently adopted Convention on the Rights of Persons with Disabilities, among others, have recognized that the principles of universal and inclusive design are critical to achieving full participation for persons with disabilities in society.

By applying the principles of universal design when developing their customer service processes and policies, organizations will be able to adapt the delivery of services in ways that are both accessible to all customers and are best suited to their specific business or organization. The AODA’s vision of a fully accessible Ontario cannot be realized if the private and public sectors do not make accessibility for all an initial consideration.

“Customer Service” Not Adequately Defined

Since neither the AODA nor the Customer Service Standard defines “customer service” or “service”, it will be difficult for persons with disabilities to know what will or will not be covered. In addition, individuals and organizations may not be aware of whether their activities come within the ambit of the Standard and thus, misunderstand their obligation to comply with it.

It is ARCH’s position that all types of activities, not only where the service is “delivered” are covered by the Standard and

ARCH Alert www.archdisabilitylaw.ca 09 February 2007

the Standard should apply to anything that is “available” to the public, that creates an opportunity, a benefit, privilege or advantage or satisfies a need by facilitating or making available a skill, material, product, accommodation or facility available to the public.

The services covered by the Standard must be clearly identified. The Standard should include a clear and broad definition of “services” and identify examples of services that are covered. If the intention of the AODA is to be accomplished, clarity of obligations and expectations under the standards are essential.

The Proposed Standard Lacks Sufficient Prescriptive and Mandatory Language

The AODA requires that measures, policies, practices or other requirements for the identification and removal of barriers be set out in the Standard and that the persons or organizations named or described in the Standard be required to implement those measures, policies, practices or other requirements. (See AODA section 6)

It is unfortunate that the Customer Service Standard Development Committee members chose not to outline measures, policies and practices in the Standard and instead determined that “an objective-based standard would be preferred to a prescriptive approach.”

ARCH is concerned that without clear mandatory language defining customer service that is barrier free, and without providing clear examples of accessible customer service policies and practices, there will be confusion about what is covered. Effective administration of a standard requires as much guidance as possible both for the individuals and organizations with obligations under the Standard, as well as for the Director and his or her staff who will be

charged with the duty of reviewing accessibility reports and making determinations of compliance. In our view it is not clear that the following services are obviously covered under the sparse language of the Standard:

Providing billing statements in various accessible formats

Being flexible on timelines and expectations when providing services to persons with intellectual or mental health disabilities.

Having staff assist a customer in understanding product labels or instructions.

Providing full and effective services to persons whose disabilities cause them to speak or act in ways that may not be within conventional social norms.

Including expert training on disabilities as part of all staff training.

In our submission we refer to public documents that provide examples of clear, prescriptive language and suggest that the Committee incorporate them into the Standard.

Part Two: Comments on Specific Sections and Language in the Draft StandardDefinitions and Language Use

ARCH expressed concern that many of the definitions and much of the language used in the draft Standard do not advance the purpose of the AODA or the goal of full participation and inclusion of people with disabilities. In particular, many of the definitions contained in the draft Standard make a distinction between customer services for persons with disabilities and customer services for persons without disabilities.

3


In addition, many of the definitions promote the doctrine “separate but equal” that are inconsistent with Ontario human rights law and the Canadian Charter of Rights and Freedoms.

ARCH also raised the issue that some of the definitions used in the draft Standard define terms differently than the definition used for the same term in the AODA. When a definition is used in the AODA, the same definition should be used in the Standard in order to avoid confusion and to adhere to the legal rules on drafting legislation and regulations.

Exceptions

Under the AODA, the Lieutenant Governor may make regulations that exempt any person, organization, building, structure or premises from the application of any provision of the AODA or the Standards. Such a regulation must also state the reasons for providing the exemption. See sections 33(3), 33(4), 39(1)(r) and 39(3) of the AODA.

The draft Customer Service Standard does not clearly state which persons and organizations are exempted from the Standard and provide reasons for the exemption. Instead, the draft Standard introduces new exceptions to the application of the Standard.

Section 2.2 of the draft Standard states that all persons and organization must provide accessible customer services except in situations where persons or organizations can demonstrate that doing so would:

a) fundamentally alter the nature of the service; b) compromise public safety), and c) result in non-compliance with another statute.

These three exceptions do not comply with the test under the Human Rights Code of Ontario [Code] that is to be applied when determining whether the needs of a person with a disability have been accommodated. Under the Code, in order to determine whether the needs of the person with a disability have been met, one must determine whether the person has been accommodated to the point of undue hardship. As has been confirmed by the Supreme Court of Canada, this is the legal test that must be applied under the Code. It is our view that the Standard must not propose a lesser test of accommodation in outlining exceptions to the Standard. To do so would both violate the Code and defeat the purpose of the AODA. It is also inconsistent with sections 3 and 38 of the AODA which provide:

s. 3 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.

s. 38 If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.

Classes

The Standard can apply differently to different classes of persons or organizations and the AODA proposes that persons or organizations may be classed by certain characteristics such as size, type of industry or number of persons employed.

4


The draft Standard has created classes according to the number of persons employed. It is ARCH’s view that the Standard may need to have different applications depending on the type of service sector that is considered. For example, the standards for service in the entertainment or hospitality sector may be quite different than the standard that would apply to health care, education and social services.

5.2 Specific Requirements

The Standard describes specific requirements of persons or organizations when a person with a disability has a support person, service animal or an assistive device. ARCH recommends that the Standard should also prescribe the expected conduct of persons or organizations when providing services to persons who have a personal support worker, service animal or assistive device and we provide some examples regarding this.

ARCH also has concerns that the draft Standard does not sufficiently address how persons or organizations are to meet the needs of persons with disabilities in the event of a service disruption.

The draft Standard only requires those organizations with 21 or more employees to document and maintain records of training, learning opportunities and direction to employees and volunteers. ARCH recommends that all classes of organizations should be required to document and maintain records of training, learning opportunities and direction to employees and volunteers in order to assist them in demonstrating their compliance with the Standard, or, should they ever face a human rights complaint, they will have a better record which may be relevant to their defence.

ARCH also recommends that all classes of organizations be required to document their

policies and processes for recording and soliciting customer feedback. Organizations should apply the principles of inclusive design when developing processes for collecting and recording customer feedback so that the process is accessible to all customers. Why are we adopting a separate policy or process for collecting feedback for customers who are persons with disabilities? Rather, as all communication with customers must be available in accessible formats, it should be one process that is inclusive and includes questions relevant to persons with disabilities.

Canada and the UN Convention on the Rights of People with Disabilities: Government steps back from Leadership on Human Rights of People with DisabilitiesBy Steven Estey, Chair of the International Committee, Council of Canadians with Disabilities (CCD) and was the NGO representative on Canada’s Delegation to the Ad Hoc Committee at the United Nations.

(Editor’s Note: Steven Estey was a member of the Canadian Delegation to the Ad Hoc Committee on the UN Convention to Protect and Promote the Human Rights of Persons with Disabilities. Over the past 5 years he attended all 8 Ad Hoc Committee meetings, each of which was two weeks in duration. Steven has also coordinated CCD's consultation on the Convention here in Canada. Steven’s contribution to this initiative is a substantive piece of work. ARCH Disability Law Centre would like to thank Steven Estey for submitting this article as a guest writer.)

Canadians have followed with pride the excellent work done by Canada at the United Nations, where for the past five years our Delegation to the Ad Hoc Committee has consistently shown leadership in the

5


elaboration of a new Convention on the Rights of Persons with Disabilities (CRPD).

My Organization, the Council of Canadians with Disabilities (CCD), recently wrote to the Prime Minister to thank him, and to applaud Canada’s leadership role on this issue. In that letter we noted that through law reform and jurisprudence, Canada has a long history of making human rights protections meaningful to people with disabilities. We further noted that through the work of our delegation, Canada had effectively brought this experience to the UN discussions. This important new human rights convention, we said to the Prime Minister, has been the beneficiary of Canada’s thirty years of leadership and innovation on disability issues, as well as our strong record in other areas of international law.

We were indeed proud of our country!

In light of this expansive history of leadership, and our effusive letter to the Prime Minister, we are troubled by recent media reports that his government has decided to step back from its leadership role at a crucial moment in the life of the new treaty.

The first great hurdle that any new UN treaty faces is to gain sufficient signatures and ratification to enter into force. Mindful of this, the UN General Assembly provided members a period of grace between the December 13, 2006 adoption date, and the date upon which the treaty would be opened for signature, March 30, 2007. When we wrote to Prime Minister Harper on January 8 2007 we did so mindful of Canada’s historic leadership, and further mindful that Canada acted quickly to sign both the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). We had not expected less for the Convention on the

Rights of Persons with Disabilities. Clearly, like the CRPD, both the CRC and CEDAW enter into areas of shared jurisdiction and no such delay was experienced in signing those treaties.

Certainly we appreciate and support the need for ongoing consultations with Provincial and Territorial Governments, in particular with regard to ratification of the CRPD. However, we believe that through the five year Convention negotiating process sufficient consultation has been done to enable Canada to take the next step and become a signatory to the Convention. We recognize the need for further consultation in advance of ratification, and we look forward to a consultation process that will be open and transparent and inclusive of the disability community.

People with disabilities, our families, and our allies in Canada and around the world have steadfastly supported Canada’s participation in the development of the CRPD. Less than two weeks ago we wrote a thank you note to the Prime Minister.

CCD urges Prime Minster Harper to support the aspirations of Canadians with disabilities and sign the UN Convention on March 30, 2007 with a view to ratification as soon as possible.

We call upon all concerned Canadians to contact the Prime Minister and your local MP, to support Canada’s continued leadership and specifically our joining with many other UN Member States for the historic signing ceremony on March 30, 2007.

Supreme Court of Canada Releases Decision on Employer’s Duty to Accommodate

6


By Robert Lattanzio and Laurie Letheren, Staff Lawyers

On 26 January 2007, the Supreme Court of Canada released its decision in an important case about employees with disabilities and how a collective agreement impacts on the scope of an employer’s human rights duty to accommodate. The Court in Centre universitaire de santé McGill (Hôpital Général de Montréal) v. Syndicat des employés de l'Hôpital Général de Montréal, et al. decided that “the period negotiated by the [union and the employer] is a factor to consider when assessing the duty of reasonable accommodation” but the period does not definitely determine the extent of the duty to accommodate. Such “negotiated accommodations” are still subject to human rights legislation.

As was reported in our May 2006 edition of ARCH Alert, this case involved an employee of 15 years who had stopped working, and later worked part-time, because of depression. The employee would have returned to work full-time on an agreed upon date, but was injured in a car accident which made her unable to return as agreed upon. The employer terminated her employment, arguing that the applicable collective agreement stated that job status is maintained for three years only.

Writing for the majority of the Court, Justice Marie Deschamps held that "a termination of employment clause will be applicable only if it meets the requirements that apply with respect to reasonable accommodation, in particular the requirement that the measure be adapted to the individual circumstances of the specific case." The Court confirmed that "[t]he importance of the individualized nature of the accommodation process cannot be minimized”. The Court found that the deemed termination clause in the collective agreement is a factor to consider when assessing whether the duty to accommodate had been fulfilled although "[s]uch clauses do not

definitively determine the specific accommodation measure to which an employee is entitled, since each case must be evaluated on the basis of its particular circumstances."

The Court found that the employer had met its duty to accommodate in this case. The Court agreed with the arbitrator’s conclusion “that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period."

In a press release, Steve Mantis of the Ontario Network of Injured Workers Groups (ONIWG), the only intervener in this case, stated “We are disappointed that the Court did not consider that sometimes the healing and rehabilitation may take longer for some injured workers than the ‘return to work’ time limits allow”. ARCH represented ONIWG at the Supreme Court.

Social Benefits Tribunal Finds That Excluding Persons with Addictions from ODSP Benefits Violates Human Rights CodeBy Laurie Letheren, Staff Lawyer

In the June 2006 edition of ARCH Alert, we reported that the Supreme Court of Canada made an important decision in two related cases which have come to be known as Werbeski (Tranchemontagne and Werbeski v. Director of the Ontario Disability Support Program [ODSP] of the Ministry of Community, Family and Children's Services). The Supreme Court held that the Social Benefits Tribunal (“SBT”) should apply the Human Rights Code (“Code”) in cases they are hearing. At the Supreme Court the appellants were represented by the Sudbury Community Legal Clinic along with Peter Chapin, the Barrister of the Clinic Resource Office. There were several interveners including the Advocacy Centre for Tenants

7


Ontario. ARCH and East Toronto Community Legal Services represented the intervener, the Empowerment Counsel.

The Supreme Court found that the SBT had erred in refusing to apply the Code. As a result, the Supreme Court determined that the cases of Mr. Tranchemontagne and Mr. Werbeski should be sent back to the SBT. The SBT was to apply the Code in deciding whether the ODSP Director had been correct in finding that these two men were not eligible to receive ODSP income support as persons with disabilities.

Mr. Werbeski and Mr. Tranchemontagne had both applied for ODSP income support as persons with disabilities in 1999. Their applications had been denied on the basis that their disabilities could only be attributed to their addiction to alcohol. ODSPA s. 5(2) excludes from eligibility to receive income support those persons whose disability is attributable solely to their addiction to alcohol or non-prescription drugs.

On 30 November 2006, a three-member SBT panel unanimously decided that section 5(2) of the ODSPA violated their rights under the Code on the basis of their disability and therefore could not be applied when determining their eligibility. As a result, Mr. Tranchemontagne and Mr. Werbeski were found to be eligible to receive ODSP benefits as persons with disabilities.

In making this decision, the SBT did not accept the ODSP Director's argument that the exclusion of this group of persons with disabilities was not based on stereotypes or a prejudicial view about addiction, but rather was intended to assist them to recover from their addictions and increase their employability.

The SBT held that because the ODSPA made a distinction between those who were addicted to substances that had been

prescribed to them and those persons who were addicted to other substances, these men had been subject to discrimination. In the SBT's view, this additional distinction "further marginalize[d]" these men and those with similar disabilities.

The SBT held that denying these men ODSP income support meant they were receiving a lower income and fewer benefits on Ontario Works [OW] assistance and this compounded the stigma of alcoholism, their disabling condition. The SBT held that s. 5(2) was discriminatory in that it imposed restrictions because of assumed or unjustly attributed characteristics and therefore denied the essential human worth of the appellants and those like them.

The SBT also rejected the ODSP Director's argument that the intent and effect of excluding persons with non-prescribed substance addictions was to enhance their dignity because OW, particularly when combined with the Addiction Service Initiative [ASI], was a "better fit" for the needs of those whose disability was substance addiction. The SBT pointed out that if receipt of less assistance was in fact beneficial for those with addictions, it should not matter how the addictions had come about - the treatment should be the same whether the addiction stemmed from a prescribed substance or a non-prescribed substance. The SBT held that s. 5(2) could not be saved by a "positive intention" or the government's claim that its differential treatment was for the appellants' own good.

The SBT further rejected the “better fit” argument because the ASI did not even exist at the time that the section was written or when these men had been denied their income assistance. In fact, the ASI is still not available where they live nor universally available across the province.

8


The ODSP Director further argued that these men were better served by OW, given the short-term nature of their disability. The SBT rejected this noting that the ODSPA had been designed to provide assistance to those with long-term and short-term disabilities and found that substance addiction was far more likely to be long-term. The SBT held that persons with addictions would be further disadvantaged because they may not be able to meet the participation requirements to receive Ontario Works assistance because of their disability.

Finally, the SBT rejected the Director's argument that persons with addictions benefit from receiving less financial assistance through OW because more money would lead to greater substance abuse. The SBT noted that this was not supported by the evidence, and that concerns about improper use of funds would be better dealt with by the appointment of a trustee to manage a recipient's funds.

SBT decisions are not binding on future SBT decisions, so each person who has been denied ODSP benefits under section 5(2) may have to have his or her case determined at a hearing. However, this SBT decision should influence future decisions of the SBT.

Mr. Tranchemontagne and Mr. Werbeski were represented at the SBT by Terry Copes and Grace Kurke of the Sudbury Community Legal Clinic. ARCH has learned that the ODSP Director has filed a Notice of Appeal of this decision in the Divisional Court of Ontario. ARCH will be following this case closely.

Bill 107, An Act to Amend the Human Rights Code Receives Royal AssentBy Laurie Letheren, Staff Lawyer

As we reported in our August 2006 issue of ARCH Alert, the Ontario government introduced Bill 107, An Act to Amend the Human Rights Code in April 2006. This Bill, which proposed changes to the complaints process under the Human Rights Code [Code], received Royal Assent on 20 December 2006. The new Code has not yet been proclaimed into force. It is anticipated that it may come into force within the next several months.

ARCH was pleased with the amendments that were made to Bill 107 before it received Royal Assent. In the August 2006 issue of ARCH Alert, we outlined the amendments to Bill 107 that ARCH had recommended when we made our submissions to the Standing Committee on Justice Policy on 9 August 2006. Many of the changes that had been recommended by individuals who had experienced the current complaint system and by ARCH and other human rights advocates were adopted as the new provisions of the Code.

The following are highlights of the amendments that were introduced by the government and accepted at Third Reading of Bill 107:

Human Rights Legal Support CentreThe Human Rights Legal Support Centre is to be funded by the Ontario government. The Centre is to provide advice and assistance on persons’ rights under the Code. The Centre is also to provide legal services in relation to applications to the Human Rights Tribunal [Tribunal], proceedings before the Tribunal, enforcing Tribunal orders and applications for judicial review of Tribunal proceedings. The legal services are to be available throughout Ontario.

Appointments to Commission and Tribunal

9


Every person appointed to the Human Rights Commission [Commission] must have knowledge, experience or training in human rights laws and issues. The composition of the Commission is to be reflective of the diversity of Ontario’s population.

Appointments to the Tribunal will be made through a competitive process. Candidates are to be assessed on their knowledge, experience or training in human rights laws and issues, their aptitude for impartial adjudication and their aptitude for alternative dispute resolution processes.

Commission PowersThe Commission can conduct an inquiry if it believes it is in the public interest to do so. The Commission has extensive investigative powers in conducting these inquiries including the right to enter a premises and order production of documents or things that may be of relevance to the inquiry.

The Commission may make its own application to the Tribunal or may, subject to the terms determined by the Tribunal, intervene at a Tribunal proceeding.

Tribunal ProceedingsThe limitation period for making an application to the Tribunal is extended from six months to twelve months.

The Tribunal shall not dispose of an application that is within its jurisdiction until the parties have had an opportunity to make oral submissions. The Tribunal may not dispose of an application without giving written reasons. The Tribunal shall dispose of an application in a manner that offers the best opportunity for a fair, just and expeditious resolution of the merits

and the Tribunal may adopt practices and procedures that will best facilitate a fair, just and expeditious resolution.

Tribunal FeesThe section of Bill 107 that allowed the Tribunal to charge fees for expenses it incurred in connection with a proceeding has been removed from the final version of the Bill.

For the full text of the final version of Bill 107 that will now be proclaimed into law see: http://www.ontla.on.ca/documents/Bills/38_Parliament/session2/b107ra_e.htm

Reforming the Police Complaints System in OntarioBy Laurie Letheren, Staff Lawyer

In 2004, former Chief Justice Patrick LeSage reviewed the existing process for making a complaint about the police in Ontario. ARCH met with Mr. LeSage in August 2004 and shared our views about ways in which to make the process more accessible to, and protective of, persons with disabilities.

Through our summary advice and referral service and through our contact with members of disability organizations, we have heard that many persons with disabilities choose not to complain or abandon their complaint before it is resolved. Many have expressed distrust of the system. In addition, persons with disabilities are often barred from making complaints because the process for filing complaints is not accessible.

The Ontario Human Rights Commission and the Psychiatric Patient Advocate Office have stated that that those persons with disabilities who have contacted them have had similar experiences with the current police complaints system

10


The number one recommendation of the LeSage Report that was released in April 2005 was that “An independent civilian body should be created to administer the public complaints system in Ontario.”

When Bill 103, Independent Police Review Act, 2006 was introduced in the legislature in October 2006 the Attorney General stated that the bill “would entrench an independent and transparent police review system.”

It is ARCH’s opinion that despite statements made in the LeSage report and by the Attorney General, Bill 103 does not prescribe a significant new option for filing police complaints that is independent and transparent.

It is also regrettable that Bill 103 makes no mention of the obligation to provide a system that is fully accessible to persons with disabilities.

On 30 January 2007, ARCH appeared before the Standing Committee on Justice Policy to make submissions on our recommended changes to Bill 103. The focus of our submission was on the need to amend Bill 103 to ensure that the entire complaint process is accessible and fully accommodates the needs of persons with disabilities.

We also made submissions on the need for the creation of a police complaint system that is fully administered and controlled by an independent civilian body.

Need for Independent and Consistent SystemUnder Bill 103, all complaints about police conduct, policies and services are to be made to the Independent Police Review Director [Director].

If a complaint is filed about the conduct of a police officer, the Independent Police Review

Director has the discretion to refer the complaint to the officer’s chief, to the chief of another police force or to retain it for investigation by the Director’s office.

ARCH is concerned that resources, funding and outside pressure will force the Director to refer many cases to police forces for investigation and resolution. Thus, the system will remain unchanged.

In addition, having some complaints handled by a police service while others are handled by the Director will not allow for tracking of systemic issues and will create a lack of consistency in how complaints are investigated and resolved across the province.

For a person with a disability who may be making a complaint about a police force’s failure to accommodate her disability, a complaint made to a civilian body should mean that the complaint is investigated and resolved by persons who have been trained in disability issues. All complainants should have equal opportunity to have their complaints properly and fairly resolved.

There should be consistency in how complaints are handled regardless of whether the complaint is about conduct, policies or services.

ARCH endorses the position taken by the Psychiatric Patient Advocate Office, Community and Legal Aid Services Programme and other advocates who recommend that a truly independent civilian body be established to handle all police complaints in order to restore credibility to the police complaints system and to have a system that is fair, effective and transparent.

Accessible SystemIn his report, Justice Lesage makes reference to the difficulties that complainants have in navigating the current system. Many

11


complainants were surprised by the obstacles they encountered and said that their experiences with the system have left them frustrated and angry.

Needs of Persons Filing Complaints Must be Accommodated

ARCH recommends that in creating and designing the new system for handling police complaints, the principles of universal design must be applied to make all aspects of the new system starting from educating the public about the system to final resolution of complaints are usable by a broad range of people.

First, an accessible process requires that all barriers, including barriers to accessing its physical spaces, communications and information, policies and practices be identified and removed to ensure full accessibility. This would include such steps as providing documents in alternate formats, providing for the use of TTY and TDD and accommodating persons who are unable to write by either providing a device or a person who can assist in drafting complaints. The process must be flexible and must accommodate the particular needs of all persons with disabilities. The onus should be on the civilian review body to ensure that all accommodations are in place once a person’s disability has been identified. Accommodating the needs of the individual is consistent with the spirit of the Accessibility for Ontarians with Disabilities Act, 2004 and Canadian human rights jurisprudence.

ARCH recommends that the principle of accessibility will have primacy over concerns of efficiency and expeditiousness of the complaint process.

Accessible Public Education

ARCH agrees with Justice LeSage when stating that public education on the new

system will be critical to increasing the public’s trust and use of the new complaints system. The information must be available in accessible formats and must be delivered in manners that ensure that all persons with disabilities can obtain and understand the content.

Accessible Hearing Process

In the same way that the process for filing complaints must be fully accessible and must accommodate the needs of persons with disabilities, barriers to accessing its physical spaces, communications and information, policies and practices of the hearing process must be identified and removed to ensure full accessibility.

Accessible hearing procedures would include such things as: providing all documentary evidence in

accessible formats at no charge to the complainant;

providing interpreters and interveners; and

being flexible on timing of steps in the process so that those who may require more time because of their disability are accommodated.

Complaints filed by Third Parties

ARCH recommends that in addition to allowing a person to appoint someone to act on their behalf, organizations who may have encountered police or who may have a concern with a policy or service should be able to file their own complaints.

ARCH also recommends that the complaints system allow anonymous complaints.

Accessible Time Limits

ARCH recommends that the current limitation period for filing a complaint that is set out in Bill 103 be extended from six months to two

12


years. Many persons with disabilities may be unable to meet the six month deadline because of their disability.

In addition, ARCH recommends that Bill 103 include a provision similar to that contained in the Limitations Act to provide that the limitation period does not run during any time in which a person is incapable.

A dvisory Committees

ARCH endorses the recommendation made by the Psychiatric Patient Advocate Office in its August 2004 submission to Justice Lesage that an advisory committee be formed to assist with the design, implementation, monitoring and evaluation of the new police complaints system. Persons with disabilities should be on the advisory committees in order to assist the civilian body in addressing the unique needs of persons with disabilities.

ARCH’s full submission on Bill 103 can be read on our website. A copy of Bill 103 and the hansard of committee hearings can be obtained at http://www.ontla.on.ca/library/bills/382/103382.htm .

Police Records Checks: Disclosure of Non-criminal Information and its Impact on Persons with DisabilitiesBy Lana Kerzner, Staff Lawyer

Many people are surprised to learn that police records may contain information about their non-criminal contacts with the police. For example, when an individual with mental illness is taken to hospital by the police pursuant to the Mental Health Act, this event may become part of a police record even though no criminal activity has been alleged.

Employers or volunteer agencies may want applicants to complete a police records search for safety reasons, particularly when a

position involves work with children or other vulnerable persons. A police records check may result in the disclosure of non-criminal information, including information about a person’s mental health to the employer or volunteer agency. Such information can erroneously suggest that these individuals did something wrong. Further, the disclosure can negatively impact an individual’s ability to obtain employment, volunteer opportunities or student placements.

ARCH and other advocates for persons with disabilities believe that this practice is highly problematic. To make matters worse, many persons with disabilities and family members who are likely to be affected by this practice are not aware of it. Community and Legal Aid Services Programme (C.L.A.S.P.), in a deputation to the Toronto Police Services Board, stated that their clients’ “… experiences show that at the time of detention [under the Mental Health Act], the person is typically not informed that this police contact will remain on their record. Considering that generally these detentions involve no criminality, it never occurred to those who have had this experience that it would ever be disclosed to a potential employer.” (Deputation to Toronto Police Services Board, July 10, 2006, http://www.ppao.gov.on.ca/ser-adv-sys-pol.html)

Chief Commissioner of the Ontario Human Rights Commission, Barbara Hall, has recently stated in correspondence to the Peterborough-Lakefield Community Police Service that the Ontario Human Rights Commission has decided to contact the Ontario Provincial Police and municipal police services province-wide about this matter. She further stated that:

“… where a police service has records about contact with a person relating to mental illness, the person should not be automatically assumed be unfit for

13


the position or to pose a risk, nor be identified as such in any information disclosed to outside organizations. For example, without further assessment, police services should not automatically indicate that the person has or had mental illness, that there is reason for “caution” or “concern”, or that there was other, unspecified contact, leading an employer or other organization to assume that the person presents a risk.”

(Letter from Chief Commissioner Barbara Hall, January 22, 2007, http://www.ppao.gov.on.ca/ser-adv-sys-pol.html)

The Psychiatric Patient Advocate Office (PPAO) has been hosting meetings for people and organizations who share the goal of eliminating the practice of releasing non-criminal information as part of the police records search process. The meetings have resulted in an effort to organize a coalition regarding the police record check problem. Anyone who is interested in attending the meetings or becoming a member of the coalition may contact: David Simpson, Acting Director, Psychiatric Patient Advocate Office (phone: 416-327-7004 or email: [email protected]) or Nicole Zahradnik, Community Mental Health Analyst, Policy and Programs, Canadian Mental Health Association (phone: 416-977-5580 or email: [email protected]).

For more information about police record checks, you may refer to the PPAO website, at www.ppao.gov.on.ca. It contains an Infoguide about police records searches as well as copies of relevant letters, submissions and articles.

Federal Disability Report, “Advancing the Inclusion of People with Disabilities (2006)” Released

By Laurie Letheren, Staff Lawyer

On International Day of Disabled Persons, 4 December 2006, the Honourable Diane Finley, Minister of Human Resources and Social Development released the fourth Federal Disability Report titled, “Advancing the Inclusion of People with Disabilities (2006)”.

The introduction to the report states that the report provides information on over fifty federal programs, including information on their funding; results of evaluations, research or client surveys that have been conducted on programs; and an “overview of key initiatives that different federal departments and agencies have implemented or are in the course of implementing in 2005-06 and beyond.”

The topics covered in the Report’s five chapters are:

Human Rights and Culture Accessibility and Disability Supports Learning, Skills and Employment Income, Income Support and Tax

Measures Health and Well-Being

The Introduction to the Report states:

The Government of Canada’s efforts at integrating services for people with disabilities have, for a number of years, been guided by the understanding that disability is not defined merely as being the direct result of a health problem or any physical or mental limitation. Instead, it is seen as the result of complex interactions between a health problem or functional limitation and the social, political, cultural, economic, and physical environment. These, in combination with personal factors such as age, gender, and level of education, can

14


result in a disadvantage—that is, a disability. This link between a functional limitation and the disadvantage is what courts try to determine in investigating disability-based human rights complaints.

…

In this context, the Government of Canada will be seeking to develop a National Disability Act to improve accessibility and inclusion for all Canadians with disabilities.

In her 4 December 2006 press release, Minister Finley also referenced the “Services for People with Disabilities” guide. This guide is described as a “comprehensive and easy-to-use resource of information on federal programs and services for people with disabilities, their families and their caregivers”.

The full text of Advancing the Inclusion of People with Disabilities (2006) can be read at: http://www.hrsdc.gc.ca/en/hip/odi/documents/advancingInclusion06/toc.shtml .

The “Services for People with Disabilities” guide can be accessed at: http://www.pwd-online.ca/pwdcontent.jsp?&lang=en&contentid=28 .

On-Line Resources for Providing Legal Services to Persons with Communication DisabilitiesBy Lana Kerzner, Staff Lawyer

Some people may have difficulty speaking due to disabilities such as cerebral palsy or

traumatic brain injury. Augmentative and Alternative Communication (AAC) systems are used by many people who have communication disabilities. AAC refers to ways other than speech that are used to communicate. Most people who use AAC have a variety of communication systems. Depending on their needs and skills, they usually include a number of aided and unaided communication systems.

Many lawyers have never communicated with an individual who has a communication disability and uses augmentative and alternative communication (AAC) systems. They may be unaware of how to facilitate such communication.

There is now an on-line resource which provides a wealth of information and video clips that together give a “real life” picture of the variety of ways to communicate with AAC users. The written text contains information that is useful for both lawyers and non-lawyers to assist in their communication with AAC users. This information may also be useful for enhancing legal arguments. The materials may be accessed at www.accpc.ca/ej-resources.htm. For more information contact [email protected] or call Barbara Collier at 416-444-9532.

The resources are particularly important in view of a lawyer’s duty, both under Ontario’s Human Rights Code and the Rules of Professional Conduct that govern lawyers, to accommodate the needs of persons with disabilities. As well, standards regulated under the Accessibility for Ontarians with Disabilities Act, 2005 will apply to services provided by lawyers.

For more information on accommodating persons with disabilities you may wish to read ARCH’s article, “Providing Legal Services to Persons with Disabilities”, which was revised in December, 2006. It contains legal and practical information on providing legal

15


services to persons with a broad range of disabilities. It can be found on ARCH’s website.

New Residential Tenancies Act by Laurie Letheren, Staff Lawyer

The Residential Tenancies Act, 2006 (RTA) took effect January 31, 2007, replacing the Tenant Protection Act, 1997 (TPA). This article highlights some of the changes that will result from the RTA coming into effect.

Landlord and Tenant Board

The Ontario Rental Housing Tribunal became the Landlord and Tenant Board (Board) on January 31, 2007.

Most of the procedures followed in an application before the new Landlord and Tenant Board will be the same as those followed by the Ontario Rental Housing Tribunal. There are some new rules, however, that may apply to an application under the RTA. If you receive notice that your landlord has brought an application against you or if you wish to bring your own application, you may wish to contact your local community legal clinic for assistance.

Elimination of Default Evictions

Under the TPA, the Ontario Rental Housing Tribunal would automatically issue a default order evicting a tenant if the tenant had not filed a written dispute within 5 days of receiving a landlord’s application. As a result of this default eviction process, many tenants were evicted from their homes without ever having the opportunity to tell their side of the situation to a tribunal member. The new RTA has eliminated the requirement that a dispute must be filed if you want to have a hearing of your case. The Landlord and Tenant Board is to consider a tenant’s circumstances before ordering an eviction.

If Tenant Leaves Without Proper Notice

Under the TPA a tenant who vacated a unit without giving proper notice, without giving any notice or after receiving the notice to vacate from the landlord could have been ordered to pay arrears of rent far beyond the date the tenant vacated the unit.

The RTA has changed this so that those who fail to give proper notice should only be ordered to pay rent up to the date that would have been the correct termination date had valid notice of termination been given by the tenant. If the landlord gives a notice to terminate to the tenant and the tenant leaves on or before the date the landlord had specified in this notice, the tenant should only be ordered to pay rent up to the date indicated on the notice from the landlord.

Defences that Tenant can Raise if Being Evicted

Under the RTA, the member hearing the landlord’s application to evict a tenant must consider all the circumstances of the situation and consider whether the Board should refuse to grant the eviction in the case. This means that for example, if a landlord has brought an eviction application due to non-payment of rent, the tenant can ask the Board to consider the problems he or she has had in getting maintenance done on the unit at the hearing in assessing how much rent is owed to the landlord.

In addition, under the RTA the Board can order the landlord to do the repairs needed even if the tenant has not made his or her application for repairs but has raised the maintenance problems as a defence to the eviction application brought by the landlord. If the Board orders the landlord to pay money to the tenant because of the maintenance problems, the amount that the landlord is

16


ordered to pay could reduce the amount the tenant owes in arrears of rent.

Payment to Avoid Eviction

If the Board has made an order evicting a tenant for failing to pay rent in full, the tenant may be able to stay in the unit if he or she is able to pay the outstanding rent and related landlord costs to the Board before the Sheriff enforces the eviction order. This provision to stop the eviction can only be used once during a tenancy.

Payment of Rent to Board Rather than Landlord

In some situations, when a tenant has asked for repairs or maintenance to be done to a unit and the landlord has not done the work, a tenant may wish to pay rent to the Board instead of the landlord. Under the RTA, the tenant can now take this step without fear that the landlord could obtain an eviction order for arrears of rent.

Tenant’s Possessions after Eviction

Where an order is made to evict a tenant a landlord cannot legally deal with the tenant's possessions before 72 hours have elapsed since the order to vacate the unit was enforced. The landlord must also make the tenant's possessions available for the tenant from 8:00 a.m. to 8:00 p.m. during that 72 hour period. This is an increase from 48 hours under the TPA.

If the landlord has not kept the tenant’s property for the 72 hours or has neglected to make the property available to the tenant, then the former tenant can apply to the Board for an appropriate order.

Care Homes

The only evident change for persons resident in care homes is that tenants may now revoke

care services on 10 days' notice, rather than 30 days' notice as it was under the TPA.

Personal Use to Accommodate a Caregiver

A landlord can evict a tenant for personal use to accommodate a caregiver for the landlord or a family member.

Wilful Damage to a Rental Unit or Building, or Causing a Disturbance in a Landlord’s Home

In situations where the tenant and the landlord live in the same building and the building has three or fewer units and a tenant causes wilful damage to a rental unit or building or causes a disturbance, the landlord is now only required to give 10 days notice of termination of the tenancy. The notice period to the tenant has been shortened to 10 days from 20 days under the RTA. Landlords can apply to the Board for an eviction order immediately after serving the notice. The eviction order will ask the Sheriff to speed up the enforcement of the eviction.

For more information on the changes to landlord and tenant laws in Ontario, you may wish to contact your local community legal clinic.

New ODSP Rules for Earnings and Employment effective 1 November 2006(This article is adapted with permission from materials produced by the Clinic Resource Office which provides research and litigation support services to legal clinics and student legal aid societies funded by Legal Aid Ontario)

17


ODSP has new rules for earnings and employment that went into effect on 1 November 2006.

The key changes as of 1 November 2006 are:

amount exempted from monthly income calculations will now be a straight 50% of earnings;

each eligible adult with earnings or net positive income from self-employment will receive new $100 Work-Related Benefit each month;

maximum deduction for informal child care costs has been increased to $600 per child per month;

maximum deduction for disability-related work expenses has been increased to $300 per month;

Employment and Training Start-Up Benefit (ESUB) has been increased to $500 in any 12-month period and expanded to cover expenses related to starting any approved employment-related activity;

up-front child care benefit has been increased to $600 and expanded to cover expenses related to starting any approved employment-related activity;

new Employment Transition Benefit (ETB) of $500 in any 12-month period is available to recipients leaving ODSP with employment earnings;

drug, dental and vision care benefits have been extended to recipients, spouses and dependent children leaving ODSP for employment until equivalent coverage is available from employer;

In addition, the following changes to the ODSP rules were made:

12-month limitation on rapid reinstatement for grandparented FB recipients has been removed; and

ODSP-adjudicated recipients are entitled to rapid reinstatement where medical review dates passed.

If you have any questions about these changes, contact you local community legal clinic.

PUBLIC NOTICES

Accessibility News Teams Up With Citizens With Disabilities – Ontario (CWD-O)

Accessibility News and Citizens With Disabilities - Ontario are pleased to announce that Accessibility News is now the official electronic newsletter for CWD-O. This is an important step forward in our effort to improve communication within the disability community, bring people together to find shared solutions and eliminate the barriers we face each day, creating an inclusive Ontario.

They are asking for your help by sending them issues of accessibility and/or barriers that you feel need to be brought to the disability community's attention but have not had a forum to do so.

There websites are www.accessibilitynews.ca and www.cwd-o.org .

ARCH website: www.archdisabilitylaw.ca

ARCH has engaged e-Snow, specialists in accessible website design, to assist us in our website redesign. This project is currently underway and in a while we hope you will be pleasantly surprised by our new look and a more effective and usable site.

18

http://www.archdisabilitylaw.ca/


We also should warn you that one of our former website names, arch-online.org, is operating as a disability website. This is NOT the site of ARCH Disability Law Centre. We are not affiliated with it in any way and we do not endorse the accuracy of its content.

Class Action for Canadian Zyprexa Victims

According to the press release of the Vancouver law firm, Poyner Baxter, a class action lawsuit has been filed against Eli Lilly Canada Inc. and its U.S. affiliate Eli Lilly and Company. Eli Lilly researched, developed, manufactured, sold, distributed and/or marketed a drug called Zyprexa (also known as Olanzapine) in Canada.

Zyprexa is among a group of drugs called the “atypical antipsychotic drugs” prescribed for the treatment of certain disorders such as schizophrenia and bipolar disorder.

The lawsuit alleges that Zyprexa has been associated with an increased risk of developing diabetes, hyperglycemia, pancreatitis, ketoacidosis and other injuries and that Eli Lilly knew or ought to have known that there were significantly increased risks of serious adverse health complications caused by ingesting Zyprexa.

The Canadian Zyprexa class actions are currently proceeding through the courts in British Columbia, Alberta, Quebec and Ontario, and a national class is being sought. According to the press release, there is a coalition of lawyers working across the country to ensure Canadian recipients of Zyprexa are treated fairly.

The complete text of the Statement of Claim can be found at www.poynerbaxter.com

FOR MORE INFORMATION, CONTACT:Poyner Baxter,

Suite 408 - 145 Chadwick CourtNorth Vancouver, B.C. V7M 3K1 Telephone: 604.988 6321 Fax: 604.988 3632e-mail: [email protected] web site: www.poynerbaxter.com

Class Action to Challenge Deductions of CPP-D from Long Term Disability Payments

ARCH has become aware that a class action has been commenced to challenge the deduction of CPP disability benefits from Long Term Disability payments as being discriminatory and unlawful.

A class action is a court proceeding where one or more individuals (called "representative plaintiffs") go to court to raise a legal issue on behalf of a larger group of people who also face the same issue.

If you have had your CPP disability benefits deducted from your Long Term Disability benefit and if you are interested in speaking to these lawyers about the class action, then you should call the law firm of REKO (Roy Elliott Kim O'Connor) at 416-362-1989 and ask to speak to Derek McKay.

If you have a lawyer who is currently representing you in relation to your disability benefits, then you should speak to your lawyer about this and ask your lawyer to contact REKO.

Disabled Peoples' International 7th World Assembly

Disabled Peoples' International (DPI) is an International Human Rights organization focused on the full realization of the Civil, Political, Economic, Social and Cultural Rights of the world’s 650 million people with

19


disabilities. As such, DPI and its national assemblies from around the world have been centrally involved in the development and elaboration of the new United Nations Convention on the Human Rights of People with Disabilities (CRPD).

DPI's 7th World Assembly will feature as part of the proceedings a series of concurrent workshops on various aspects of the new CRPD.

The International Organizing Committee (IOC) encourages the submission of abstracts for presentations at this important international event to be held in South Korea on 5 - 8 September, 2007.

Each workshop will be 90 minutes in length, with four panel members, who will be allowed 15 minutes each for their presentation. Presentations will be followed by a question and answer period and an opportunity to make a contribution to the final Communiqué of the World Assembly, to be issued at the close of the event.

More information is available on the DPI web site at: http://v1.dpi.org/lang-en/resources/details.php?page=810

Friends of the Canadian Abilities Foundation

The Canadian Abilities Foundation is a national treasure that, since 1986, has been a key communication resource to all Canadians and, in particular, those with disabilities. Abilities Magazine, the outstanding publication produced by the Canadian Abilities Foundation, is the glue that holds the 'disability' sector together.

The Canadian Abilities Foundation and Abilities Magazine are in danger of disappearing. Due to unprecedented financial circumstances, the Canadian Abilities

Foundation and its projects, including Abilities Magazine, are endangered. To learn more about the Canadian Abilities Foundation and how you might help visit www.abilities.ca or email to [email protected].

Invitation by Minister of Finance to Pre-Budget Web Consultations

The Federal Minister of Finance has launched online consultations, giving Canadians an opportunity to participate in the development of Budget 2007. The invitation to consult was released on 7 February 2007. Consultations will end at 12 midnight EST on February 28, 2007.

The pre-budget consultation page on the Department of Finance website can be found at http://www.fin.gc.ca/activty/consult_e.html .

New ODSP Action Coalition Website Launched

The ODSP Action Coalition has a new website at http://www.odspaction.ca/~new/drupal/. We hope you enjoy it! Read "About Us" to learn a bit of the history of the Coalition and to find our Terms of Reference. Find out about the issues the Coalition is tackling under "Coalition Activities." Submenus will take you to useful documents, such as information about the new Earnings rules effective November 1, 2006, under "Earnings and Employment Supports". Your feedback is welcome as the Coalition works to make this site a useful resource.

Study on Procedural Changes at the Canadian Human Rights Commission

The Council of Canadians with Disabilities (CCD) is reviewing some of the changes recently made by the Canadian Human

20


Rights Commission in the way that it processes its complaints. The CCD will be looking at how these changes impact people with disabilities wanting to access the complaints process.

The CCD would like to speak with human rights lawyers that practice at the Federal level and have some experience with

representing persons with disabilities at the Canadian Human Rights Commission.

If you are interested in participating in this project, please email Laurie Letheren at [email protected] and she will forward your name and contact info to the CCD.

ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.

Editor: Laurie Letheren Production & Circulation: Theresa Sciberras

We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH Disability Law Centre, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-1254, e-mail: [email protected] Website: http://www.archdisabilitylaw.ca/

21

Documents

XCVXCV - ARCH Disability Law Centre Alert... · Web viewThe “Services for People with Disabilities” guide can be accessed at: . ( (On-Line Resources for Providing Legal Services