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I.I. ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES425 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.archlegalclinic.ca (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll Free)

January 16, 2004

ODSP Update:Lifetime Ban Repealed!by Dianne Wintermute, Staff Lawyer

Dalton McGuinty’s Liberal Government has honoured one of its campaign promises – the repeal of the lifetime ban.

The Harris Conservative Government introduced a law that initially prohibited people convicted of social assistance fraud from receiving social assistance for three months after a first conviction and six months for any subsequent conviction. This law was later changed to say that beginning in April of 2000, a person convicted of social assistance fraud could never receive social assistance again.

Many of you will remember that the ban was first challenged by Kimberly Rogers. Unfortunately, the courts were not able to determine the constitutional validity of the law, because Kimberly died (while eight months pregnant) serving a sentence of house arrest for her conviction. Four other people who were banned from collecting social assistance also challenged the lifetime ban. Their case (called Broomer v. Attorney General of Ontario) was scheduled to be heard in October of 2003. However, because the Liberal government had just been elected, they asked for, and the Court granted, an adjournment of the case.

Effective 24 December 2003, the Liberal Government has revoked the regulation that prohibited people convicted of social assistance fraud from collecting social assistance. This means that the lifetime ban and the three- and six-month bans will no longer apply to social assistance recipients convicted of fraud. Unfortunately, at this stage, we do not know what will happen to

INSIDE THIS ISSUE

1 ODSP Update: Lifetime Ban Repealed!

2 ARCH Delivers a Disability Law Primer

3 ODA Update: Message from the Minister

4 A Wrongful Path: “Wrongful Birth” and “Wrongful Life” Torts Emerge in Canada

5 Ministry Consultation RegardingDisabled Person Parking Permits

6 Hearing to Consider Home Care Cutbacks

8 Ministry Policy PreventingAccess to ODSP Benefits

9 Tax Update

9 Health Privacy Legislation Introduced

10 Litigation Update

11 Human Rights Update

13 New in our Library

14 A New Report on Canadians with Disabilities

15 Legal Notice: Law Firm ConsideringChallenge to Cost of Prescription Drugs

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January 16, 2004the people approximately 200 who were convicted of fraud and therefore became subject to the lifetime ban before the regulation was revoked.

At the same time that many people were applauding the repeal of the ban, the Government changed some of the rules regarding when referrals to the police get made. This may, unfortunately, cause an increase in the number of people who become the subject of fraud investigations.

On 12 January, Minister of Community and Social Services Sandra Pupatello stated that “social assistance administrators have been directed to refer all suspected cases of fraud to police for investigation.” A review of the Ontario Works (OW) and Ontario Disability Support Program (ODSP) Policy Directives has confirmed this: cases where there is a reason to suspect intent to commit fraud must be referred to the police. The OW Policy now reads: “Where sufficient evidence exists to suspect intent to commit fraud, the case must be referred to police for possible criminal prosecution.” The ODSP Directive states that if “there are reasonable grounds to suspect fraud, the matter must be referred to the police for possible criminal investigation.” Under the old Policy Directives, referral to the police was more clearly discretionary.

The issue of making referrals to the police was considered at an Inquest into the death of Kimberly Rogers. One of the Jury recommendations was that the Ontario

Municipal Social Services Association (OMSSA) create a Task Force to develop a model to be used throughout Ontario to help assess whether cases involving fraud allegations should be referred to the police. The Jury further recommended that this model include an evaluation of the social assistance recipient’s life circumstances and the consequences of a conviction for the recipient and/or their dependants.

As a member of the Steering Committee on Social Assistance, ARCH and members of the Income Security Advocacy Centre and the Ontario Social Safety Network participated in the OMSSA Task Force. Recently, the Task Force released a report that discusses “guiding principles” for those involved in the eligibility review process and/or fraud investigations. It lists factors to be considered when a referral to the police is being considered and it also discusses a number of possible alternatives to prosecution.

ARCH believes that the Task Force report is still a very valuable tool in assessing whether a case should be referred to police for investigation or prosecution. Someone’s life circumstances are very relevant in the assessment of whether there might be “intent” to commit fraud or “reasonable grounds to suspect” fraud. If the Task Force report is used, it will prevent needless referrals to the police.

The revocation of the lifetime ban and the three or six month bans from receiving social

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January 16, 2004assistance only applies to cases where someone is convicted of fraud. It must be pointed out that people may still receive three or six month administrative suspensions of their benefits if they break certain other social assistance rules, such as quitting or being fired from a job without just cause or not meeting their OW participation requirements.

ARCH will continue to work with other community groups and activists to ensure that the Government lives up to some of its other promises to low-income Ontarians, including raising the social assistance rates.

ARCH Delivers a Disability Law Primerby Kit Stone, Litigation Assistant

In partnership with Pro Bono Law Ontario and the Law Society of Upper Canada, ARCH presented a continuing legal education program on 27 November 2003. The program, titled “A Disability Law Primer,” was offered free-of-charge to lawyers in exchange for their agreement to accept at least one pro bono case referred to them by ARCH. The event was a great success, with over 90 participants!

Speakers at the program were Harry Beatty (lawyer, tax consultant, and former ARCH staff), and Phyllis Gordon, Bill Holder, Lana Kerzner, and Dianne Wintermute of ARCH. Several important topics were covered, including the following:

capacityrepresenting persons with disabilitiesthe duty to accommodateincome taxestate planningincome support programs such as ODSP and

CPP(D)supports programs funded by Ontario

ministries

The materials that were produced and distributed at the program are in the process of being mounted on the ARCH web site; several documents have already been posted. The materials will be updated on an ongoing basis to incorporate changes to the law in these areas and new sources of information. Similar programs will be offered throughout the Province in coming months which we hope will be similarly successful.

ODA Update

The McGuinty Government campaigned on a promise to pass, within one year of forming government, a “strong and effective” Ontarians with Disabilities Act. As indicated in what follows, the Minister responsible for the ODA will be consulting with respect to how the ODA may be strengthened, and she looks forward to hearing from ARCH Alert readers.

Message from the MinisterTo ARCH Alert Readersby Dr. Marie Bountrogianni,Minister of Children’s Services

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January 16, 2004Minister of Citizenship and Immigration

As Minister of Children's Services and Minister of Citizenship and Immigration, it is my great honour and privilege to have responsibility for accessibility issues in Ontario.

The McGuinty government is committed to creating a province where there is increased opportunity for everyone. We want Ontario to be a place where people of all abilities have a chance to participate fully and achieve their potential.

The McGuinty government is committed to moving forward on improving accessibility. Through accessibility planning over the last 18 months, we have seen the beginning of positive change towards accessibility and inclusion.

We will listen to ideas and input from interested individuals and groups across the province. Stakeholder input will play an important role in helping our government develop viable measures to make the ODA more effective. I have already met with key provincial disability organizations to begin to obtain input. Our strategy also includes meeting with students with disabilities, private sector leaders, municipal advisory committees, ethno-cultural organizations, and other interested stakeholders.

The government recognizes and applauds the work of ARCH to further disability rights. In

December, I had the pleasure of meeting with Phyllis Gordon, Executive Director of ARCH, and I look forward to working together in the future to better address the needs of people with disabilities in Ontario.

Input from the members of ARCH will help us gain a deeper understanding of the barriers that directly and indirectly impact the daily lives of people with disabilities and their families. Full accessibility benefits all of us.

A Wrongful Path:“Wrongful Birth” and “Wrongful Life”Torts Emerge in Canadaby Lesli Bisgould, Staff Lawyer

New torts and a disturbing trend are emerging in Canada. “Tort” is the word used in the legal context to describe an actionable wrong harm done by one party to another, for which the harmed party can sue. Negligence is a common tort: if a person slips and falls on her own living room floor it is an accident, but if a person slips on another person’s floor, and the floor was in a poor state of repair, that could be a tort.

The two new torts to watch are “wrongful birth” and “wrongful life.”

Wrongful birth is a tort asserted by parents of a child born with a disability, disease, or ‘birth defect,’ who claim damages against health practitioners for the failure to conduct genetic

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January 16, 2004testing, to warn of the risks of medication or pre-existing illness, or to successfully perform an abortion. The parents claim that, had they been aware of the true state of affairs, they would not have had the child in question and, as a result, they have suffered damages and been burdened with the child and associated costs.

Wrongful life is a similar tort but it is asserted by the child, through his or her parents acting as litigation guardians, rather than by the parents.

Damages in wrongful birth cases tend to be limited and are assessed only until the child becomes an adult, at which point the parents are at least in theory no longer responsible. (When someone reaches adulthood and requires monetary assistance it is assumed to be the obligation of the state, rather than of the parents, to provide help.) Damages in wrongful life cases allow for damages to be recovered beyond a child's age of majority since the damages for a ‘wrongful’ life presumably accumulate until life ends.

Wrongful birth was initially rejected in Canada but it has now been accepted, as it is in the United States and the United Kingdom. Wrongful life is not yet accepted in Canadian law; Manitoba's Court of Appeal has rejected it but three Ontario cases have been permitted to go to trial for the issue to be considered here. It has been accepted in California and Washington, while rejected in

many other States, and Minnesota has passed a law prohibiting it altogether. As one might imagine, beyond the disability implications of these torts there are also abortion issues with their own political dynamic.

An interesting aspect of the development of this area of law to date is how these cases do not generally seek or award general damages but only special damages. General damages are intended to compensate for harms that are hard to quantify, such as pain and suffering, while special damages compensate specific and quantifiable losses, such as out-of-pocket expenses and loss of future earnings. There seems to be a public policy concern that awarding general damages in these cases would be tantamount to saying that having a life with a disability is worse than having no life at all. It is assumed that the same message is not being conveyed if the damages awarded are for disability-related expenses.

The distinction, however, makes no sense. Regardless of the kind of damages being awarded, the devaluing of certain kinds of people is inherent in the claim itself. The basis of the claim is that a health practitioner negligently failed to provide the opportunity to prevent or abort the pregnancy of an ‘undesirable’ person. The policy concern is the same no matter what kind of compensation is sought.

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January 16, 2004It may be that courts have tried to rationalize the constrained development of these torts in a sympathetic effort to help families with compelling financial challenges. Yet no matter how well-intentioned the motivation, and no matter how financially important these cases may be to individual parties, their broader implications the ideas they are entrenching in Canadian society are cause for serious concern. ARCH will continue to monitor the development of these new torts.

Ministry Consultation RegardingDisabled Person Parking Permitsby Lana Kerzner, Staff Lawyer

A person with a disability may obtain a “disabled person parking permit” to which certain parking privileges are attached. The goal of the permit is to minimize accessibility barriers in the context of parking. To obtain such a permit, an individual must submit an application to the Ontario Ministry of Transportation (Ministry). Permits are only granted to individuals who meet certain eligibility criteria.

The Ministry is currently undertaking a stakeholder consultation on the issue of eligibility criteria for disabled person parking permits. ARCH will be submitting a response and we would like your feedback.

Elements of Eligibility Criteria

The eligibility criteria are legal requirements and are set out in the regulations to the Highway Traffic Act (Ontario Regulation 581, s. 2(1)). The law requires that the disabled person parking permit be issued if two criteria are satisfied, as follows:

the applicant “is unable to walk unassisted for more than 200 metres without great difficulty or danger to his or her health or safety” and

the applicant submits a certificate of a medical practitioner “certifying that the applicant is a disabled person and setting out whether the disability is temporary or permanent and, if temporary, the anticipated length of time the disability is expected to continue, if known.” For this purpose, a “medical practitioner” can be a physician, chiropractor, occupational therapist, osteopath, or physiotherapist who is legally qualified to practice in Canada.

However, the eligibility criteria that the Ministry requires individuals to meet do not conform exactly to those set out in law. Their criteria are reproduced in the application form, and are stated as follows: “the applicant is unable to walk 200 meters (218 yards) unassisted in 8 minutes or less without great difficulty or danger to health or safety.”

The Ministry imposes further conditions on eligibility which are also not contained in the law, but which are set out in the application. Firstly, the Ministry states that an individual is

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January 16, 2004not eligible if the disability lasts less than two months. Secondly, the Ministry defines “unassisted” as “without the aid of a mobility assisting device or any person.”

General information about disabled person parking permits is available on the Ministry web site (www.mto.gov.on.ca).

Ministry Consultation

The Ministry sent out letters to a number of organizations seeking feedback on eligibility criteria. The letter states that they have “received several complaints from persons with disabilities, their families and friends that disabled person parking permits are being used by people who are not eligible for the program.” The Ministry states that the most frequent feedback they receive is that permits are too easy to obtain. There is an impression that people who do not truly need permits are nevertheless able to obtain them, which causes parking spaces designated for persons with disabilities to be difficult to get. The Ministry is considering whether the current eligibility criteria are contributing to this perceived situation. It is in this context that they have initiated their consultation.

If the Ministry has not contacted your organization and you wish to make submissions, you may contact Godwin Ekere, Program Contact, by telephone (416-235-4896), fax (416-235-4646), or e-mail ([email protected]). The Ministry is interested in feedback on eligibility criteria

as well as other aspects of disabled person parking permits. Submissions are due by 29 January 2004.

ARCH Wants Your Opinion

ARCH has been asked to participate in the Ministry’s consultation and to respond to a questionnaire which they sent with their consultation request. We would like to provide a response as reflective of persons with disabilities as possible and, as such, are soliciting your input.

Please provide your opinions to us on the following issues. The issues set out below are taken directly from the Ministry’s questionnaire.

should the Ministry criteria, as set out above, continue to apply?

should the permit “be restricted to persons whose disabilities are profound and visibly identifiable? (Particularly, restricting DPPP to persons with disabilities who require orthopaedic assisted devices such as wheel chair, walker brace, help of another person, crutches, cane, etc?)”

should visual impairment qualify an individual for the permit?

should infants under the age of two be eligible for a permit?

are there other medical conditions that should qualify for a permit?

are there any medical conditions that are severe enough and permanent that should

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January 16, 2004not require a medical re-certification to renew the permit?

We encourage you to provide us with general comments on any other aspect of the disabled person parking permit program. We would appreciate your feedback by 26 January 2004. Please e-mail your comments to Lana Kerzner, Staff Lawyer, at [email protected].

Hearing to ConsiderHome Care Cutbacksby Lana Kerzner, Staff Lawyer

In Ontario, Community Care Access Centres (CCACs) provide free home care services. These services include nursing, social work, help with daily activities, and homemaking. CCACs are funded by the Ministry of Health and Long-Term Care.

For well over a year, CCACs have been cutting back or discontinuing homemaking services. Homemaking services include house cleaning, laundry, and preparing meals. A number of CCACs throughout the province have created their own internal policies to remove these services. They are doing so not because their clients are not in need of homemaking services, but because the CCACs do not have enough money to provide those services.

The cutbacks are now the subject of a case that is soon to be heard before the Health

Services Appeal and Review Board. The case involves an individual, Ian Black, who is in receipt of services from the Ottawa-Carleton CCAC. Mr. Black’s homemaking services were terminated as a result of a policy that was implemented by his CCAC to eliminate all homemaking services to its clients. The CCAC subsequently changed its policy to allow for some limited homemaking services, but this level is alleged to be insufficient to meet Mr. Black’s needs. The CCAC justifies its policy on the basis of scarce resources. One of the major issues in this case is whether the CCAC has the power to initiate such a policy.

Any member of the public can attend the hearing. It will be held on 18-19 February in the Diplomat Room of the Embassy Hotel & Suites, 25 Cartier Street, Ottawa and on 20 February at the Health Services Appeal and Review Board, 151 Bloor Street West, Toronto. Mr. Black is being represented by lawyers named Ernest Tannis and Perry Brodkin. For more information about the case, you may contact Mr. Brodkin by telephone at 416-482-3482.

ARCH encourages as many people in the community as possible to attend the hearing to show your support. If you plan to attend be sure to contact the Health Services Appeal and Review Board the day before the hearing to confirm that the hearing is still taking place and details of the location. The Board may be contacted by telephone (416-327-8512 or 1-

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January 16, 2004866-282-2179), fax (416-327-8524), or e-mail ([email protected]).

It is important to follow the progress of the case of Mr. Black. You may obtain a copy of the Board’s final decision in the case by requesting it from the Board. If Mr. Black wins his case, then you may wish to use that decision to assist you if you are involved in a similar case.

If Your Home Care is Cut

If you receive home care services from a CCAC and are told that your services will be cut or terminated, you have a right to complain to the CCAC directly. The law says that every CCAC must have a complaint process. Contact your CCAC case manager and ask for a copy of the complaint procedures as well as a written explanation of the reasons for the CCAC’s decision. Follow the complaint process to get a final decision. The law says that the CCAC must make a decision and give it to you in writing within 60 days from the date that you made your complaint. If you are unhappy with the final decision then you can appeal to the Health Services Appeal and Review Board.

For more information about home care complaints and appeals, you may refer to a pamphlet, “Home Care Complaints and Appeals,” which was written jointly by ARCH and the Advocacy Centre for the Elderly (ACE), and was edited and produced by Community Legal Education Ontario (CLEO).

It can be ordered through CLEO’s web site (www.cleo.on.ca) or by calling CLEO at 416-408-4420. For general information about how to begin an appeal to the Health Services Appeal and Review Board, you can contact the Board directly (see contact information above).

Besides being a legal issue, this is also a political issue because it is the government of Ontario that decides how much money each CCAC gets. You may want to contact your Member of Provincial Parliament (MPP) for help.

You do not need a lawyer for any stage of the complaint and appeal process. But you do have the right to hire a lawyer if you want one. In particular, if you want to appeal to the Board, it is a good idea to have a lawyer because it is a formal legal process. For telephone advice or a referral to a lawyer regarding home care, you may access ARCH’s Summary Advice and Referral Service by calling ARCH. Additionally, for legal advice and/or representation, you are advised to contact your local community legal clinic or a lawyer. However, not all community legal clinics and lawyers can help with home care issues. You can usually find the community legal clinic nearest you by looking under “Legal Aid” in the white or yellow pages of your phone book. You can also call Legal Aid Ontario at 1-800-668-8258 (or, in Toronto, 416-979-1446), or go to their web site (www.legalaid.on.ca.) For referral to a private bar lawyer, you may wish to access the

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January 16, 2004Lawyer Referral Service by calling 1-900-565-4577. Through this service you will receive a 30-minute free consultation, but a $6.00 charge will be added to your phone bill.

Ministry Policy PreventingAccess to ODSP Benefitsby Bill Holder, Staff Lawyer

Persons who are in receipt of benefits under the Ontario Disability Support Program Act (ODSPA) are having a difficult time accessing certain benefits because of a policy of the Ministry of Community and Social Services (Ministry).

In a regulation under the ODSPA, recipients are entitled to “the cost of transportation that is reasonably required in any month for medical treatment.”

The Court of Appeal for Ontario, in Gray v. Ontario (Director, Disability Support Program), stated that the ODSPA must be interpreted broadly: “As remedial legislation, the ODSPA should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities.“

One would expect, in consideration of the clear direction from the highest court in Ontario, that the Ministry would interpret broadly the legal entitlement that ODSP recipients have to transportation costs for medical treatment. Unfortunately, the Ministry

is employing a narrow interpretation with respect to the entitlement.

In a Policy Directive titled “Mandatory Medical Necessities,” the Ministry takes the position that in order for a recipient to be reimbursed, the medical treatment must be provided by a professional designated under the Regulated Health Professionals Act (RHPA). As a consequence of the policy, the Ministry routinely refuses to reimburse costs incurred with respect to transportation to and from treatments conducted by professionals not regulated under the RHPA including therapy conducted by social workers, water therapy conducted by fitness instructors, and counselling conducted by sexual assault counsellors. The Ministry refuses to provide reimbursement even where a professional regulated under the RHPA has prescribed the treatment being provided by the professional who is not regulated under the RHPA.

In case after case, individual recipients are forced to appeal Ministry refusals to reimburse their transportation costs to the Social Benefits Tribunal. In case after case, the Tribunal has stated that it will not follow the narrow policy of the Ministry and has ordered the Ministry to reimburse the recipient. The Ministry, despite many of these losses at the Tribunal, nevertheless refuses for now to amend the policy that is clearly fettering the discretion of its ODSP staff.

The ODSP Action Coalition, of which ARCH is a member, is presently turning its attention to

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January 16, 2004this issue. The Action Coalition plans to speak soon to Ministry officials to determine whether it will amend its policy, in light of the many Tribunal decisions that have, effectively, found it to be inconsistent with the ODSP regulation.

Tax Updateby Bill Holder, Staff Lawyer

New DTC Certificate Available

The new application form for the Disability Tax Credit (DTC) is ready! After consulting with many disability organizations, including ARCH, the Canada Customs and Revenue Agency (CCRA) has completed its revisions and made the form available to the public.

The form bears the number T2201 and is called the DTC Certificate. The form must be filled out jointly by a claimant and a health professional.

The form has been subjected to a great deal of criticism over the past decade for being confusing and for narrowing the eligibility criteria for the DTC without legislative authority.

Not all of the problems with the form have been addressed by the CCRA in the revised DTC Certificate, but it represents a significant improvement upon the form that was otherwise in use. For instance, the form now lists functional considerations with respect to

determining eligibility for persons under the “perceiving, thinking, and remembering” criteria. It is recommended that persons who have had difficulty accessing the DTC in the past, due to problems related to the DTC Certificate, consider reapplying with the new Certificate.

The new DTC Certificate is available from tax offices and on the website of the CCRA (www.ccra-adrc.gc.ca).

TAC’s Interim Report

The 2003 federal budget provided for the creation of a Technical Advisory Committee on Tax Measures for Persons with Disabilities (TAC). The 18-month mandate of the TAC is to make recommendations to the Ministers of Finance and National Revenue regarding measures that will render the tax system more fair to persons with disabilities.

On 22 December 2003, the TAC provided an interim report to the aforementioned Ministers advising that, after seeking input, it received 39 submissions (including one from ARCH). The TAC supports the extension of tax relief to persons with mood disorders, learning disabilities, and episodic disabilities, who currently have great difficulty accessing the DTC. The TAC is concerned about the present situation in which grants provided solely for disability supports are being taxed, and about barriers experienced by persons with disabilities when trying to move from income supports to employment. The TAC is

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January 16, 2004exploring ways in which relief may be provided to persons with disabilities with respect to personal expenditures on accommodation measures, ways to improve the administration of the DTC by the CCRA, and ways to improve public awareness of the DTC and the Medical Expense Tax Credit.

The final report of the TAC will not be completed until the fall of 2004. The interim report is available on the TAC website (www.disabilitytax.ca).

Health Privacy Legislation Introducedby Lana Kerzner, Staff Lawyer

The McGuinty Government introduced the Health Information Protection Act, 2003 (Bill 31) on 17 December 2003. The stated goal of the legislation is to protect the privacy of individuals, and the confidentiality and security of personal health information in the health sector in a way that facilitates the effective provision of health care. The legislation will only apply to the health sector. The Act contains rules for collecting, using, and disclosing personal health information. It also contains provisions governing an individual’s access to and correction of such information.

Currently in Ontario health information is covered by a number of different statutes, including the Mental Health Act and the Long-Term Care Act. However, to date, there has not been a single piece of legislation in

Ontario that forms a comprehensive treatment of health information. A number of attempts to introduce such health privacy legislation have been made in the past, but have all failed.

Health and Long-Term Care Minister George Smitherman has been quoted as saying that the “McGuinty government is committed to listening to the public and our health partners to ensure the right privacy act is developed through the public hearing process in the new year.”

After the first reading of Bill 31, which took place on 17 December, it was referred to the Standing Committee on General Government. The Standing Committee will hold public hearings on the Bill. Hearings will be held in Toronto on 26, 27, and 28 January; in Sault Ste. Marie on 3 February; in Kingston on 4 February; and in London on 5 February.

If you wish to make an oral presentation at a public hearing in Toronto, you should contact the Committee Clerk by 5:00 p.m. on 20 January. If you wish to make an oral presentation at a public hearing in Sault Ste. Marie, Kingston, or London, you should contact the Committee Clerk by 5:00 p.m. on 27 January. If you do not wish to make an oral presentation, you may comment on the Bill by sending written submissions to the Committee Clerk by 5:00 p.m. on 6 February.

The Committee Clerk is Tonia Grannum, whose contact information is as follows:

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January 16, 2004phone (416-325-3519), fax (416-325-3505), TTY (416-325-3538), regular mail (Room 1405, Whitney Block, Queen’s Park, Toronto, M7A 1A2), and e-mail (tonia_grannum @ontla.ola.org). You may access a copy of the Bill on-line on the web site of the legislative assembly (www.ontla.on.ca). For further information on the Bill, and health privacy generally, you may wish to access the following web sites: Ministry of Health and Long-Term Care (www.health.gov.on.ca), Ontario Information and Privacy Commissioner (www.ipc.on.ca) and the Privacy Commissioner of Canada (www.privcom.gc.ca).

Litigation Updateby Bill Holder, Staff Lawyer

ARCH engages in test case litigation on behalf of groups and individuals, primarily in higher courts. Test cases include those in which an issue is being considered by a court or tribunal for the first time and in which an appellate court is deciding an issue that will affect a large number of people. ARCH's object in test case litigation is to provide a client’s disability perspective to the decision-maker when a case is being decided that will affect the lives of persons with disabilities.

The current caseload of ARCH includes the following.

Education: ARCH is co-counselling with Legal Assistance of Windsor with respect to a human rights complaint against a school board, brought by a student who lives with autism and who has been out of school for 3½ years. The case is currently before the Ontario Human Rights Commission.

Supports: ARCH is co-counselling with the Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes) and the law firm Weir Foulds in a case challenging the adequacy of supports and services provided to two children living with autism and their sole-support parents. This judicial review case is scheduled to be heard by the Divisional Court on 10 and 11 February.

Supports: ARCH is co-counselling with the law firm Cavaluzzo Hayes Shilton McIntyre & Cornish with respect to a proposed intervention on behalf of clients in a Supreme Court of Canada case called Auton v. British Columbia (Attorney General). The case regards the obligation of provincial governments to provide therapy to children living with autism.

Supports: ARCH represents two individuals with respect to human rights complaints against the Ministry of Health and West Park Healthcare Centre, challenging age-based eligibility criteria pertaining to an incontinence supplies program. The cases are currently before both the Ontario Human Rights Commission and the Divisional Court.

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January 16, 2004Social Assistance: ARCH is co-counselling with John Judge and Manizeh Fancy of the law firm Stikeman, Elliott with respect to a proposed intervention on behalf of a client in a Supreme Court of Canada case called Falkiner v. Ontario (Director, Income Maintenance Branch). The case will decide whether “receipt of social assistance” constitutes a ground of discrimination pursuant to the Canadian Charter of Rights and Freedoms.

Social Assistance: ARCH is representing a client with respect to a proposed intervention before the Court of Appeal for Ontario in a case called Werbeski v. Ontario (Director, Disability Support Program). The case will examine whether the anti-discrimination provisions of the Human Rights Code operate to prevent the Social Benefits Tribunal from applying an allegedly discriminatory provision within the Ontario Disability Support Program Act (the provision that bars persons, whose disability is addiction, from receiving benefits).

Public Transportation: ARCH is co-counselling with Hamilton Mountain Legal & Community Services with respect to the representation of two individuals with human rights complaints against the City of Hamilton. The case challenges the adequacy of the City’s ‘para-transit’ service as an accommodation measure, provided in lieu of a fully-accessible ‘conventional’ public transportation system. The case is before the Human Rights Tribunal of Ontario.

Accommodation: ARCH is representing clients with respect to a proposed intervention at the Supreme Court of Canada, called Newfoundland and Labrador Association of Public and Private Employees v. Her Majesty the Queen in Right of Newfoundland as represented by the Treasury Board and the Minister of Justice. The case has the potential to affect the “undue hardship” test that must be met by governments with respect to disability accommodations made pursuant to the Canadian Charter of Rights and Freedoms.

Accessibility: ARCH is a party to an application to the Canadian Radio-television and Telecommunications Commission (CRTC) relating to the possible regulation of all telephone products in Canada with respect to accessibility. The case is currently suspended, pending a consultant’s report, ordered by the CRTC.

Human Rights Updateby Bill Holder, Staff Lawyer

Changes Coming to theOntario Tribunal?

In December of 2003, the Human Rights Tribunal of Ontario (HRTO) drafted an amended version of its Rules of Practice (Rules) that, if approved, will govern human rights proceedings before the HRTO. Changes to the Rules include the following:

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January 16, 2004a requirement that the Ontario Human Rights

Commission bring a motion to the HRTO if it desires to withdraw from proceedings

a requirement that parties draft and disclose lists of privileged documents

a requirement that parties draft motions in a prescribed format

a power granted to the HRTO to order “all or part” of one party’s costs to be paid by another party

Administrative tribunals, like the HRTO, are intended to be informal and inexpensive. The draft Rules will make the process before the HRTO more formal and, potentially, more expensive. The new power to award costs against parties, including complainants, is especially of concern. The draft Rules provide that costs can be awarded against a party, up to $2000 per request and up to $7000 in total for a proceeding. Making a cost award will be contingent upon a finding that the party’s conduct was “unreasonable, frivolous or vexatious,” or that the party “acted in bad faith.” The $7000 cost amount is almost 25 times the level of costs that may be awarded by the Small Claims Court. Although a $7000 cost award will seem like nothing to a corporate respondent, it may be greater than the net worth of all of the assets owned by a complainant.

ARCH is concerned that the introduction of cost consequences into the human rights adjudication process may deter complainants, including persons with disabilities, from making human rights complaints because it

will make the process look potentially more expensive.

The HRTO is interested in receiving submissions regarding the proposed changes to the Rules. To make a submission, contact Acting Registrar Patricia Grenier by telephone at 416-314-8419. The HRTO has asked for submissions to be received by 19 January but Ms Grenier will grant extensions to 31 January to those who contact her and make such a request. Ms Grenier may also be able to make arrangements for the delivery of oral submissions to the HRTO.

Federal Tribunal Rejects Commission’sNew Participation Plan

ARCH has been monitoring the policy, adopted in 2003, of the Canadian Human Rights Commission (Commission) to withdraw from proceedings before the Canadian Human Rights Tribunal (Tribunal) in cases where the Commission deems the proceedings to fall short of raising significant public interest issues. The plan of the Commission had been to send a lawyer to make opening statements, regarding the public interest and the law, in Tribunal proceedings prior to withdrawing.

In a case decided on 21 November 2003, the Commission’s ability to make an opening statement before withdrawing was challenged by a respondent. In Mowat v. Canadian Armed Forces, the Commission proposed to “deliver an opening statement consisting

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January 16, 2004primarily of a general overview of the applicable law, and then withdraw from the proceeding.” The Tribunal reviewed case law pertaining to the purpose of opening statements. The Tribunal found that such statements are intended to put an adjudicator on notice of facts that are intended to be proven, and are not to be used for making legal arguments. Since the Commission did not intend to prove any facts and wanted to make legal submissions, the Tribunal denied permission to the Commission to make an opening statement in the manner that it wished.

The Tribunal furthermore noted that the Commission would violate the Tribunal’s Rules of Procedure if it were to show up on the first day of hearing and make a statement regarding the public interest, if it did not first provide disclosure to the other parties.

The Tribunal’s decision will undoubtedly affect the ability of the Commission to carry out its intention to make opening statements in Tribunal cases before withdrawing. ARCH will continue to monitor this situation.

Damage Awards Increasing

For as long as human rights legislation has existed, purporting to provide access to “make-whole” remedies for experiences of discrimination, critics have properly complained that actual awards made pursuant to such legislation have been inadequate. Damage awards have been, for

many years, minimal, and have not come close to providing complete compensation or making complainants “whole” after experiencing discrimination.

In Ontario, there is no cap on the level of damages that may be awarded to make a complainant whole after experiencing discrimination. While there is a $10,000 cap on damage awards compensating for mental anguish, there is no cap on damage awards compensating for other aspects of an experience of discrimination (humiliation, injury to dignity, and so on) which may be characterized as “loss[es] arising out of the infringement.”

More than ever before, there is reason to believe that human rights adjudicators are moving beyond minimal “make-whole” remedies. In 2002, in a case involving disability discrimination (Ketola v. Value Propane), the HRTO awarded $40,000 in general damages, plus interest. In a case rendered on 22 December 2003 (August v. Richland Marketing), a case involving sexual harassment, the HRTO awarded the complainant a total of $68,000 in general damages, plus interest. In ten cases with significant “make-whole” remedies decided within the past ten years, the average general damage award was $33,400. These awards were inclusive of compensation for mental anguish.

While the majority of human rights decisions still result in relatively low damage awards,

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January 16, 2004which arguably do not make complainants whole, there have been an increasing number of cases in which larger damage amounts have been awarded. The growing willingness of the HRTO to award higher “make-whole” remedies is good news for individuals weighing the pros and cons associated with making a human rights complaint.

New in our library

Disability and human rights in the workplace: a CLV special reportAdelyn L. BowlandToronto: Thomson (Carswell), 2004 (184 p.)Review by Wayne Johnston,Director of Library and Reference

This new publication offers a concise analysis of employment issues for persons with disabilities within the context of human rights law. While the focus is on the responsibilities of employers and how they can protect themselves from complaints and grievances, this is also a valuable resource for employees who are seeking to understand their rights in the workplace.

The book covers the employer's duty to accommodate and how the concept of undue hardship is applied to set limits on the employer's obligations. Over half the book is devoted to the policies of federal and provincial human rights commissions related to disabilities in the workplace.

Bowland is well-qualified to write this book as she is a human rights mediator with more than 20 years experience working in human rights. She is also the author of one of the most heavily used legal texts at ARCH, Carswell's Annotated Ontario Human Rights Code.

One of the points that Bowland stresses is that the employer's obligations to employees with disabilities apply to all aspects of the employment cycle, from hiring practices through on-the-job accommodations to termination of employment. She stresses that well-drafted job descriptions are critical as they form the basis for determining if a person with a disability can perform the job. She also points out important considerations for the job posting, the application form, and the employment interview.

Another area that receives attention is psychiatric disabilities including stress and substance addiction. Bowland points out that drug and alcohol addictions are considered disabilities under human rights law and the employer's duty to accommodate applies even if the employee does not acknowledge their own disability.

One of the more difficult concepts related to accommodations is that of "undue hardship." What constitutes undue hardship depends on many factors and the way it is interpreted varies from province to province.

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January 16, 2004Either the Canadian Human Rights Act or the Ontario Human Rights Code will apply to all workplaces in the province. It is critical for anyone with concerns about potential discrimination in the workplace to understand these pieces of legislation for, as Bowland states, they are quasi-constitutional and therefore take precedence over any other employment legislation.

A New Report onCanadians with Disabilitiesby Roberto Lattanzio, Student-at-Law

On 3 December 2003, in recognition of the United Nations International Day of Disabled Persons, the Office for Disability Issues (Human Resources Development Canada) released a report titled Disability in Canada: A 2001 Profile.

This report is an accessible tool, intended to provide a summary of some key findings from the results of the Participation and Activity Limitation Survey (PALS) conducted in 2001. PALS gathered information on Canadians with disabilities, with a survey sample of 35,000 adults and 8,000 children with disabilities.

More specifically, the report addresses the findings released in the four sets of PALS data reports released to date:

A Profile of Disability in Canada, 2001Disability Supports in Canada, 2001

Children with Disabilities and their FamiliesEducation, Employment and Income of Adults

with and Without Disabilities

The report also includes some highlights from further PALS data collected, some of which became available to the public on 3 December 2003.

The PALS information used in this report serves to examine key issues and challenges in areas such as education, employment, and income that affect Canadians with disabilities at various stages in their lives. Hence, the report is primarily organized by age, and divided into categories of five age groups: children (aged 0 to 14); youths (aged 15 to 24); core working-age adults (aged 25 to 54); older working-age adults (aged 55 to 64); and seniors (aged 65 and over).

The following are some highlights from the report.

It is estimated that 1.6% of children aged 0-4 have a disability. Of these children, 20% have been refused daycare or babysitting services due to their disability.

Children aged 5-14 with disabilities make up 4% of their age group. Of this group of school-age children, 96.3% attend school: 65.1% attend regular school; 26.1% attend special education classes within a regular school; 6.4% attend segregated schools; and 2.3% attend other type of schooling.

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January 16, 2004PALS data estimates that 3.9% of persons aged 15-24 years have disabilities; 48% of persons within this category are fulltime students, and 51% have less than a high school education. The data also show that persons in this age category with disabilities have greater difficulty entering the work force, with more than a 10% difference between those employed with disabilities and those without.

With regard to persons aged 25-54 years, referred to as core working-age adults, 9.2% are estimated as having disabilities. The survey shows that core working-age adults earn, on average, significantly less than those without disabilities a difference of $20,116. When considering disability supports, 61.1% of persons within this age group with disabilities stated that they have all they need, 30.8% receive some but require more assistance, and 8.1% although in need, receive no assistance.

With respect to older working-age adults, aged 55-64, 21.8% have disabilities. The employment rate for persons with disabilities in this age group is 27.3%, compared to 56.2% of older working-age adults without disabilities.

Among persons aged 65-74, 31.2% have disabilities. With respect to persons aged 75 and over, 53.2% have disabilities. Of seniors in need of assistance, 34.3% of persons aged 65-74, and 31.8% of persons aged 75 and

over, are in need of more help with everyday activities.

Disability in Canada: A 2001 Profile and other publications are available from the website of the Office for Disability Issues, which can be accessed through Human Resources Development Canada (www.hrdc-drhc.gc.ca). PALS releases are available at the website of Statistics Canada (www.statcan.ca).

Legal Notice

Law Firm Considering ChallengeTo Cost of Prescription Drugsby Carolyn Chandy, Barrister & Solicitor

Are you affected by the high cost of prescription drugs in Canada? The law firm of Raven, Allen, Cameron and Ballantyne in Ottawa is currently exploring a potential legal challenge, based upon the Canadian Charter of Rights and Freedoms, to the current method of pricing prescription drugs in Canada.

In order to develop this potential legal case we are looking to find individuals who are in a similar situation to our client. If your income is limited and you are unable to afford your prescription, and government programs for prescription drugs do not solve your problem, then this case may be of assistance to you.

If you are unable to afford a needed prescription and would be interested in finding

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January 16, 2004out more about this potential legal case, then please contact us.

We are currently researching the chances of success of this potential legal challenge and all information sent to us will be strictly confidential and seen only by lawyers at our firm. We are seeking this information in order to find out whether there are other people who might be interested in being involved in this legal case as co-plaintiffs with our client. There is no cost to you for expressing an interest in this case.

If this notice applies to you, then please send us a letter providing us with basic information about your situation. Please note that by asking for this information we are not agreeing to take your case. We will only contact individuals who are in situations that we determine would be helpful in advancing this case.

Please send your letter, or any questions about this announcement, to lawyer Carolyn Chandy by email at: [email protected], or by mail at:

Raven, Allen, Cameron and Ballantyne220 Laurier Avenue West, Suite 1600Ottawa, Ontario, K1P 5Z9

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January 16, 2004

ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. 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.

Editors: Bill Holder & Wayne Johnston 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: A Legal Resource Centre for Persons with Disabilities, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-1254, e-mail: [email protected] Website www.archlegalclinic.ca

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