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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.arch-online.org (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll free)

Thursday, October 31, 2002

ODSP Action Coalition Formed

A group of community and legal advocates has started an ODSP Action Coalition, to work towards changes in ODSP that will make the program fairer and more effective. ARCH is fully supportive of this initiative. We hear many concerns about ODSP through our Summary Advice and Referral service.

The Coalition is planning a campaign on ODSP issues during the week of November 25th, 2002, and welcomes interest and involvement of people and groups throughout the province.

INSIDE THIS ISSUE

1 ODSP Action Coalition Formed

1 Ontario Realty Corporation Consultation

2 ARCH Submission to Ontario Human Rights Commission on Education and Disability

13 ARCH Presentation to the Education Equality Task Force

15 Invitation to observe ARCH at work!

16 Kenora Legal Clinic Wins at Social Benefits Tribunal

17 Resources and Events

For more information, please go to the website of the Income Security Advocacy Centre:http://www.incomesecurity.org/index_1.html

or contact your local community legal clinic.

Ontario Realty Corporation Consultation

Your input is needed for government guidelines on barrier-free design.

The Ontario Realty Corporation (ORC) is seeking submissions on barrier-free design guidelines for the purpose of drafting such pursuant to the ODA. Their website states the following: “In accordance with Section 4 of the Ontarians with Disabilities Act 2001, the Ontario government is seeking the opinions of stakeholders to help establish barrier-free design guidelines for government buildings, structures and premises”. The questionnaire is available at: http://www.orc.on.ca/english/barrier_free_q.htm and interested persons should complete it by November 30th, 2002.

For inquires regarding this questionnaire of to obtain an alternate format of the questionnaire you can call: Voice: toll free 1(877) 863-9672: or: TTY/TDD: toll-free 1(888) 335-6611 or in the Toronto area (416) 326-0148.

http://www.arch-online.org/

http://www.orc.on.ca/english/barrier_free_q.htm

http://www.incomesecurity.org/index_1.html



ARCH Submission to the Ontario Human Rights Commission’s Consultation on Education and Disability

ARCH: A Legal Resource Centre for Persons with Disabilities is a province-wide specialty legal aid clinic dedicated to defending and advancing the equality-rights of persons with disabilities. 1 Our membership consists of over sixty disability organizations, both consumer-directed and service providers.2

ARCH commends the OHRC for this initiative to consult broadly about Education and Disability and appreciates the opportunity to respond to the Consultation Paper. One of our core activities is to provide summary legal advice and referral to callers from around the Province of Ontario. Many of these calls concern the obstacles that families with a child with a disability encounter with the education system. We also hear from older students who have a disability and are encountering difficulties in colleges and universities. This submission is informed by these callers and by our on-going legal work in equality rights and human rights law.

In the overview part of our submission we outline some fundamental issues, then we proceed to address the questions of the Consultation Paper.

I. OVERVIEW

1. We welcome the statement in the Consultation Paper that it is not the Commission’s intent to re-evaluate or reconsider The Guidelines on Disability and the Duty to Accommodate. It is critical that the Commission review the education and disability landscape with these strong principles firmly in place. It is useful to all of us to have a common baseline that is as clear, comprehensive and purposeful as the Guidelines.

2. ARCH submits that, of necessity, this review will need to go beyond individual cases and instances of discrimination and consider directly the existing statutory framework. As well, the roles and obligations of the Government and Boards of Education to develop and fund an educational system that is consistent with the policy principles that the OHRC has articulated will require review.

1 Our Mission Statement is attached as Appendix A2 Our current Membership list is attached as Appendix B



Thursday, October 31, 20023. It is clear that Ontario’s education system is failing students with special needs. In a

number of key areas, resources are presently being taken away rather than being appropriately increased. Countless children with disabilities are not receiving adequate support for their needs and many do not even get to school at all. However, the law requires that educational services be provided free of discrimination, up to the point of undue hardship.

The Consultation Paper refers to the obligation established by the Supreme Court of Canada in Elbridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 that when governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups benefit equally from those services, subject to the undue hardship standard.

Both the Charter and the Human Rights Code require accommodation for children and adults with disabilities in all public services to be provided up to the “undue hardship” standard. The Education Act and the Regulations and policies made under it are not exempt from these fundamental laws of Canada and Ontario. Moreover, the accommodation provided must meet the needs of individual students with disabilities, not just be based on presumed group characteristics. In a recent characterization of the legal doctrine of equality, the Supreme Court of Canada stated in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (Grimser), [1999] 3 S.C.R.868:

Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. (emphasis added)

[per McLachlin, J. at paragraph 19]

As a starting point, ARCH’s view is that the current educational regime in Ontario does not follow this instruction of the Supreme Court of Canada.

4. In its recent Submission Concerning Barrier-Free Access Requirements in the Ontario

Building Code the Commission stated the following:



Thursday, October 31, 2002Consideration of the interaction between the Human Rights Code and the Building Code is important for two reasons. The first reason is that the Human Rights Code applies to the Building Code itself and inconsistencies between them may form the basis of a human rights complaint against [the Ministry of Housing] itself. The second reason is that despite the fact that the Human Rights Code applies to facilities and services that fall under the Building Code, most businesses, designers and builders are aware only of the requirements of the Building Code and not the parallel, and often higher obligations mandated by the Human Rights Code. Accordingly, if they comply only with the requirements of the Building Code, they may be vulnerable to a human rights complaint to the extent that their premises continue to fall short of the requirements of the Human Rights Code.

This analysis also pertains to the Education Act and to the bureaucrats, planners and educators who make decisions under it. Even if the Education Act is followed exactly, there may well be violations of the obligation to provide an education to each student in Ontario without discrimination and to accommodate each student to the point of undue hardship. There is a fundamental dissonance between the special education aspects of the Education Act and the requirements of the law.

5. The Commission stated in the Building Code consultation that it has been specifically entrusted with the responsibility for examining any statute or regulation, and any program or policy made by or under a statute and for making recommendations on any provision, program or policy that is, in its opinion, inconsistent with the intent of the Human Rights Code. In similar fashion, ARCH urges the Commission to undertake a detailed examination of the Education Act, its regulations, and its decision-making process and bodies.

6. What we consider to be the pivotal inconsistency between the Education Act and the Ontario Human Rights Code is referred to in the Consultation Paper, but its discriminatory impact is not explored. That is: while the Identification and Review Committee [“IPRC”] has the power to make recommendations about programs and services for the student after an exceptionality is identified, it does not have decision-making power in this respect. Nor can the programs and services established for a student be appealed. The door is closed to any review of the nature of the program and services, despite the fact that it is through the program and services that the accommodation takes place.3

3 This issue is addressed more fully in the Accommodation Process Section of the Submissions.



Thursday, October 31, 20027. For the most part, bureaucrats, planners and educators working in the education system do

not appear to understand that each student is entitled to an individual accommodation up to the point of undue hardship. Nor do they always understand that their decisions and actions are subject to review pursuant to the Ontario Human Rights Code. This belief has been bolstered by the Commission’s pattern over the years to turn away most complaints of discrimination in education that were based on programs and services pursuant to section 34 of the Code. We understand that this approach has been reviewed and is no longer the Commission’s practice.

8. The funding formula itself is problematic and inconsistent with human rights principles. This is particularly so with respect to the Intensive Support Amount [“ISA”]. The ISA established a formula which assesses students on an already pre-existing grading scheme. This formula then leads to a decision about how much funding for special needs (accommodation) will be provided to a School Board. It does not provide for a system whereby each person is assessed according to her or his own personal abilities. Nor does it necessarily lead to automatic funding of that student’s supports but becomes part of an overall fund assigned by the government to the School Board. It is ARCH’s view that this formula is fundamentally flawed and inconsistent with the direction of the Supreme Court of Canada.

9. There are significant barriers faced by students with disabilities at Ontario’s colleges and universities as well. These can occur in many different forms, some of which we discuss below. At this juncture, as with the Education Act, we urge the Commission to examine and scrutinize the operations of the Ontario Student Loans Program as it significantly contributes to the barriers students encounter.

II. Human Rights issues in Education for Persons with Disabilities

1. Access to Education

Each of the barriers that the Commission identifies in the Consultation Paper are familiar to the ARCH staff who provide summary advice and referral to callers. In addition to these, the following barriers have been brought to our attention:

The delay of the school year because of inappropriate or non-existent supports seems to be a very frequent situation. We recommend that the School Boards reorganize their calendars (including summer breaks) to plan effectively for these decisions to be made in a timely but less high-pressured and emotionally-charged environments.

With respect to private schools we note that some parents have raised concerns that disability related equipment cannot be transferred to private schools. Parents have also



Thursday, October 31, 2002raised concerns about the cost and lack of funding for private schools and some have reported concerns about the lack of awareness and sensitivity to disability accommodation issues.

Several parents report public and private schools refusing to provide services to their children because of their disabilities saying that they did not have the funding to provide for the needs of children with special needs. The lack of funding is frequently used as a rational to refuse services.

Parents also reported that schools and school boards have refused to apply for funding for children with special needs because they did not think the child was disabled, they did not think the province would see the child as eligible, or, they found the application process too cumbersome.

People with disabilities who are over 21 years old may continue to need educational instruction, which is not available to them. This is a barrier. Parents point out that sometimes the need for continued education has been created because of delays in the provision of support for their child, or the lack of sufficient supports for lengthy periods of time.

Transportation problems are barriers.

Several parents, particularly in rural settings, have raised concerns about problems with busing their children who cannot use the regular busing services.

Parents may believe that for certain children separate busing solutions are required for the children’s safety.

Busing companies often fail to accommodate the student’s needs and have rules which are barriers. For example, problems occur when there is a “no food or drink” rule on the bus although drinking is essential for the student with the disability.

Students who are children of parents with disabilities who are unable to transport or accompany their child to school are often denied transportation.

Students who live within the walking boundaries of the school but are unable to walk to school because of a mental health related disability, such as an anxiety disorder,



Thursday, October 31, 2002are denied transportation. Students whose parents have such conditions are also denied transportation.

It is significant that Provincial Schools also set up barriers to admission when there are students with more than one disability.

For example, the Admission Criteria of the Provincial Schools for the Deaf contains a “Caveats to Admission” section. If additional support and equipment is required to meet basic care of educational needs, this is an “issue [that] must be resolved prior to admission”. Such needs and services may include lifting and positioning, assistance with mobility, feeding and toileting, general maintenance exercises, low vision, and extraordinary learning challenges.

In addition, the Caveats to Admission set out a list of conditions which would preclude a child attending a Provincial School for the Deaf. These include students who are severely developmentally delayed, have a severe autism spectrum disorder, are unable to benefit from a visual language of instruction or are unable to thrive in a residence setting.

There are barriers based on preconceptions and stereotypes. For example, children who are quiet and in need of support seem to be missed even when there are mental health issues. It appears to us from the calls we receive that the more a student’s disability leads to an inconveniencing in the classroom, the more likely he or she is to receive attention. The quiet child’s issues may not be identified or, when identified, not adequately attended to.

There are barriers which arise from the conduct of other students. In particular, failure to adequately address bullying and taunting in the classroom and the schoolyard is a barrier to success for the student on the receiving end. At times it results in great anxiety and fear and the student’s non-attendance altogether.

As waiting lists for school-sponsored professional assessments grow, families line up for private psycho-educational assessments of their children. The cost of these is a barrier to a significant portion of the population, resulting in a barrier to the receipt of supports.

The Safe Schools Act is highly problematic for students with certain disabilities. Its implementation is uneven throughout the province as each School Board can establish its own policies and implementation procedure to ensure compliance. ARCH urges the



Thursday, October 31, 2002Commission to examine this legislation and its implementation with a view to determining whether it is consistent with the non-discrimination laws of the Province.

The classification of behaviour as violent or aggressive, and therefore subject to the Safe Schools Act needs to be reviewed. There are many examples where a student with a disability is determined to violate the Act when the identified conduct actually is an aspect of the student’s disability.

Private vocational schools train a significant number of adults who are entering the work force, seeking to upgrade their skills, or, change careers. These institutions often fail to appreciate their obligation to provide accommodation to students seeking admission. Licensing bodies which regulate these institutions could set requirements respecting the duty to accommodate. Providing a systemic solution to the issues would relieve individual students with disabilities from fighting this battle each time.

Economic barriers are significant for students of higher education with disabilities. As university tuition costs escalate, the hardship for all students increases. The Commission has rightly identified the barrier created by making the Bursary for Students with Disabilities available only to those who qualify for OSAP. The financial cost of disability added to the failure to receive OSAP can be a complete barrier.

College and university students who come from rural areas of the province experience greater costs due to their housing needs. The failure to receive bursaries and grants, as well as loans, makes higher education inaccessible to many, particularly those with disabilities.

The increase of tuition in professional faculties such as law and medicine will also have a systemic negative impact on potential students from families of middle, moderate or low income. The cost barrier for students with disabilities is similarly escalated.

While many colleges and universities are addressing the issues of accommodation in various ways, we still receive calls from individuals who face barriers.

Student housing is often not accessible. Students spend much time educating the housing offices, and residences about their needs, as well as advocating for accommodations in housing.



Thursday, October 31, 2002 There appear to be very few students at college and university who have the support

of a full-time person, in a 1:1 arrangement, whether this be for an attendant, intervenor, ASL interpreter or other support person.

Complaint procedures and processes at colleges and universities may take considerable time to pursue. We have received calls from students who have lost their right to pursue their disability-related discrimination complaint at the Commission due to the passage of time. This is a procedural concern that should be addressed by the Commission and the institutions, to ensure that recourse to the Commission is not denied.

There are many concerns with OSAP which need to be addressed and which pose great difficulty for students with disabilities.

The detailed rules and procedures for OSAP are not publicly available. The OSAP Policy Manual used by the Financial Aid Offices does not seem to be publicly available. Students with disabilities and their advocates spend a great deal of time merely trying to find out what the complex rules are. Apart from this over-riding concern the following OSAP problems need to be addressed.

If a student is in an overpayment position, then OSAP is apparently not renewed until the student has paid back the overpayment. This is a barrier particularly for students with disabilities and health problems who have had to reduce their academic load during the year. Their OSAP may be cut off as the student is no longer a full-time student. Where this results in an overpayment, the student cannot continue studying until it has been paid back.

Similarly, if a student needs to withdraw from their studies this can result in an overpayment and the inability to enroll again until the overpayment is returned. Persons with cyclical disabilities, including mental health disabilities, are particularly vulnerable to this OSAP practice.

2. Disability and Other Forms of Discrimination

Special education has long been a recognized need within First Nation and aboriginal communities. At its 1998 Annual General Meeting, the Assembly of First Nations passed a resolution urging a national strategy on this issue.4 The resolution referred to

4 Assembly of First Nations, 19th Annual General Meeting, Resolution No. 21/98, at: http://www.afn.ca/resolutions/1998/aga/res21.htm


http://www.afn.ca/resolutions/1998/aga/res21.htm


Thursday, October 31, 2002a high incidence of special needs among First Nations students, a lack of resources to meet those needs, and the inappropriateness of formalized and standardized assessment tools for First Nations students. The resolution also refers to the recognition of special education as a very serious problem by the Royal Commission on Aboriginal Peoples.

Professor Jackie Moore-Daigle is coordinator of the Aboriginal Teacher Education Program at the Faculty of Education, Queen’s University. In 1999, she directed a study of “Special Education in First Nations Classrooms”, which identified a major lack of resources for children with special needs. This has led to a training course in this area, but Professor Moore-Daigle has informed ARCH that funding for this course is now jeopardized by funding cuts. Another educational institution which has taken an important initiative is Nipissing University, which has introduced a program to train members of aboriginal communities as Special Education Assistants.

Although statistics are not yet available, it is the view of some racialized communities that their children are more likely to be suspended or expelled than white children and that the Safe Schools Act is applied differentially to them. In many instances, although the conduct giving rise to the reprisal is disability related, the student’s needs are not identified or supported.

There is also a grave concern that the instruments for assessment are culturally biased. In particular, they may not provide for the identification of the talents of a gifted child from a non main-stream home. As noted by the African Canadian Legal Clinic in its submission to the Education Equality Task Force:

The issue of inappropriate or the lack of psycho-educational testing of special needs students in general and African Canadian students in particular is also alarming. High numbers of African Canadians students with special needs are not being provided with timely and culturally appropriate psycho-educational assessments. These assessments would help to determine the specific learning needs of students who have difficulties, and to place them in appropriate and supportive programs. Rather, these students are labeled as troublemakers and are harshly disciplined when in fact they have real learning challenges that need to be addressed.

On a similar note, it is critical that psycho-educational assessments be free of gender bias as well. Disabilities may manifest differently in boys and girls, particularly when the disability is not visible.




There is also the historical disadvantage of poor families and children in Ontario. Similar vigilance in the assessment and provision of programs and services must ensure that these children with disabilities are not consciously or unconsciously streamed away from their personal goals.

3. Negative Attitudes and Stereotypes

In our communications with educators we frequently notice that the language they use with respect to disability repeats standard stereotypes. For example, a student is “wheelchair bound” or “suffers from a disability”. These observations support the concern expressed in the Consultation Document that teachers are not being provided adequate training and information.

We expect that the approach to special education funding focuses attention on the problems of a child, perpetuating the cycle of stereotyping. School Boards may think they will get more funding if they demonize the child and his or her problems. A true accommodation process that focused on the individual student’s abilities and needs rather than labels would assist in the removal of stereotypes.

A key to reducing stereotypes is to introduce teachers to adults with disabilities who have been successful in their efforts to pursue a career. We recommend that the hiring of teachers, teaching assistants and other professionals who have disabilities be a priority. Not only will this assist their peers to undo and relearn different perceptions about disability, it will result in a mentor and modeling program for students with disabilities, and without disabilities.

4. Labelling

While careful identification of the individual needs of special education students is essential, this should be accomplished without relying on rigid diagnostic categories. Nor should identification be based exclusively on professional assessments (especially when the process does not include people who actually know the student).

Cathy Wylie, of the New Zealand Council for Educational Research, conducted a major review of special education funding in that country, which was completed in 2000. More recently, she has written a brief article addressing the difficult challenge of ensuring that the individual needs of students are met, without allocating an inappropriate share of



Thursday, October 31, 2002resources to assessment and professional identification.5 Interestingly, based on a review of international models, Ms. Wylie considers the New Brunswick system to be one of the best.

5. Appropriate Accommodation

It is ARCH’s view that the approach to accommodation with respect to discrimination in education should be the same as for other services. It is true that there is a financial cost to the provision of a truly non-discriminatory system. While the cost factor may stimulate creative and new approaches to educational planning and provision, it cannot be used to justify the failure to apply human rights and Charter principles.

There is a fundamental human rights principle that may not be universally appreciated by college and university faculty—that the provision of education is the provision of a service. Therefore, their actions are subject to non-discrimination concepts. The misapplication of the concept of “academic freedom”, which is really a doctrine designed to protect academics from censorship, may complicate the issue further. Academic standards, while serving a legitimate function, are not protected from human rights scrutiny on the basis of academic freedom.

As is emphasized in the Guidelines, and by many callers to ARCH, integration of persons with disabilities into society is a very important component of recognition of their human rights. This is viewed by many parents as a priority in the educational system, which is the most central social institution children and young people encounter. At the same time, many other parents emphasize strongly that for some students small classes and individualized instruction, part or all of the time, is an educational necessity.

The Commission could write and distribute guides or workbooks to students with disabilities, their parents and to bureaucrats, planners and educators. ARCH believes that such guides, sector specific, could be very useful tools. In particular, we recommend that the workbooks use several different case examples and outline how the Commission would apply its Principles and Guidelines to their analysis.

6. Accommodation Process

In this section the Commission notes that:



Thursday, October 31, 2002The process for accommodation at the primary and secondary levels is largely governed by the Education Act and regulations, and is dominated by the IPRC process, and the IEP. The human rights standards outlined above apply to these processes.

While ARCH agrees with this view, we do not think it sufficiently identifies or rectifies the two core components of the Education Act, which, in our view, are inconsistent with the Code.

The first key aspect of the Education Act that we recommend be examined is the IPRC process. The IPRC process is significantly limited in that the Committee cannot decide programs or services nor can the programs or services the Board decides upon be appealed. The support to be received by the student is “the program and services” which is decided by the Board. However, this is where the accommodation of the disability takes place. This is what provides or fails to provide inclusion, integration, adequate supports, or whatever is needed in the circumstances.

If there is not a full review of the Education Act, then we propose that it be amended to provide that programs and services be decided (not just recommended) by those who identify and place the student, and, that such decisions may be appealed to the Special Education Tribunal. If this is not done then the parents of children with disabilities and students on their own accord will continue to seek the assistance of the Commission.



Thursday, October 31, 2002 We recommend that consideration be given to empowering the Special Education

Tribunal to interpret and apply the Ontario Human Rights Code in its deliberations and



Thursday, October 31, 2002that this be a joint jurisdiction with the Commission and the Board of Inquiry. 6

If this occurs then it will be essential to educate and train the Special Education Tribunal members regarding human rights and the duty to accommodate up to the point of undue hardship. Moreover, as with respect to any appointment process to adjudicative agencies, it will be essential that a wide search be conducted for the most appropriate candidates, including those with experience in human rights, special education and disability issues.

7. Roles and Responsibilities

The other key consideration—the funding of special education—is dealt with under this section because this is a governmental responsibility. From a systemic perspective, the current funding formula impedes the success of countless students with disabilities in their educational efforts. Individual School Boards are unable to adequately support the programs and services required because of inadequate funding and funding that is not based on the real need of individuals. ARCH submits that the funding of special education requires a thorough review from a systemic as well as from an individual student perspective.

8. Undue Hardship Standard

The Code provides that an exception to the duty to accommodate up to the point of undue hardship is “health and safety considerations, if any”. There are occasions when the behavior of students with disabilities is treated by educational employees as a health and safety violation, resulting in increased tension in the school environment. ARCH has received calls where it appears that the employee response has been a dogmatic assertion of a health and safety employment right, when in fact the problem results from inappropriate or insufficient supports for the student. Some students are being denied a school-based program on the basis of these allegations.

Employees need to be trained to identify and respond to a disability-related behavior appropriately. Their union representatives need to be trained about the competing tensions of human rights, access to education and health and safety. There are many accommodations that can be made to the environment that precede calling the police or grieving a health and safety violation.



Thursday, October 31, 20029. Other Issues

Strikes in Educational Sector

ARCH frequently receives calls when there is a strike in the educational sector. Parents point out that the management of strikes may have a disparate impact on students with disabilities and their families. Students may be told they must stay at home, resulting in increased cost to the families. The loss of a continual educational program may have a very significant impact on many students with disabilities, for whom continuity is especially important.

Ontarians with Disabilities Act 2001



Thursday, October 31, 2002 The Ontarians with Disabilities Act, 20017 now requires each Ministry of the Provincial

Government to “prepare an accessibility plan as part of its annual planning process”, in



Thursday, October 31, 2002consultation with the Accessibility Directorate of Ontario.8 The accessibility plan is



Thursday, October 31, 2002required to be comprehensive in nature, covering legislation, policies, programs,



Thursday, October 31, 2002practices and services.9

Accordingly, the accessibility plans of the Ministries of Education and of Training, Colleges and Universities should ensure equal access for students with disabilities at all stages of education, from junior kindergarten to graduate school.

School boards, colleges and universities also must develop accessibility plans under the ODA.



Thursday, October 31, 2002 Unfortunately, the ODA contains very few provisions requiring the type of public input

and accountability necessary to ensure that these accessibility plans are



Thursday, October 31, 2002comprehensive and implemented.10

ARCH recommends that the Commission, as part of its systemic responsibilities in the area of special education, conduct an in-depth review of the adequacy of the accessibility plans of the Ministry of Education, the Ministry of Training, Colleges and Universities, and a sample of school boards from across the Province.


ARCH Alert www.arch-online.org Thursday, October 31, 2002

Presentation to the Education Equality Task ForceWednesday, September 18, 2002

ARCH: A Legal Resource Centre for Persons with Disabilities is a province-wide specialty legal aid clinic dedicated to defending and advancing the equality-rights of persons with disabilities. Founded in 1980, ARCH currently has 62 member organizations (list attached as Appendix “A”).

As legal advocates, we have been involved in some of the leading precedent-setting cases in the field of special education over the last two decades. i Through our summary advice and referral service, we also are aware of the situations of many students and families requiring special education services throughout the Province.ii

It is clear that Ontario’s education system is failing students with special needs, and that in a number of key areas, resources are being taken away rather than being appropriately increased. ARCH urges the Education Equality Task Force to make strong recommendations to ensure that this trend is reversed immediately, so that no more lives of children with special needs will be irreversibly damaged.

In our respectful submission, the Education Act and Regulations must be strengthened to ensure that children with special needs be provided with equal access to a free public education in Ontario, as is guaranteed by the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code.

The Charter and the Human Rights Code each require accommodation for children and adults with disabilities in all public services to be provided up to the “undue hardship” standard. The Education Act and the Regulations and policies made under it must reflect the same standard, or they are not in compliance with the fundamental laws of Canada and Ontario.

And the accommodation provided must meet the needs of individual students with disabilities, not just be based on presumed group characteristics. In its most recent characterization of the legal doctrine of equality, the Supreme Court of Canada stated (in the Grismer case):

Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. [per McLachlin, J. at paragraph 19]

5Wylie, Cathy, “Meeting individual educational needs: Legal identification, or systemic support?” 13 August 2002, at: http://www.nzcer.org.nz/pdfs/wylie12aug.pdf

6 This approach was adopted in the 1995 amendments to the Labour Relations Act of Ontario which authorized arbitrators to “interpret and apply human rights…statutes”. 7 S.O. 2001, c. 328 ODA, s. 10.9 ODA, s. 10(3).10 For a comprehensive critique of the ODA, especially the lack of enforcement provisions, see: Gordon, P., Beatty, H. and Holder, B., “An Analysis of the Ontarians with Disabilities Act, 2001” (2002) 17 Journal of Law and Social Policy 1.

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http://www.nzcer.org.nz/pdfs/wylie12aug.pdf


Within the education system and in the context of the Education Act, there are clear implications of this high standard of equality. A systemic approach ensuring equal access for students with special needs must be incorporated into all of the standards governing the education system in Ontario, including and particularly the funding provisions. In addition, there is a legal duty to accommodate the individual needs of children up to the undue hardship standard.

The funding formula for special education in Ontario and its implementation fall far short of meeting the legal standard of equality. Far from receiving equal access to education, many special needs kids are receiving limited or poor education, or even no education at all. It must be a mandatory requirement that every child with special needs receives an appropriate public education in Ontario. The Education Act must be amended to ensure that this occurs.

As a starting point for discussion, ARCH proposes the following amendments:

1) that Section 8(3) of the Education Act be amended to state that the Minister shall require all school boards to implement a special education plan in accordance with provincial standards, such standards to include:

- availability of an appropriate free public education for every child within the board’s jurisdiction

- provision of appropriate individualized disability-related supports and services for every child within the board’s jurisdiction who requires them, regardless of the identification or placement of the child

- hiring of a sufficient number of qualified special education teachers, educational assistants, and other professional staff to ensure equal access to an appropriate public education for every child with special needs

- public reporting of outcomes for children identified as exceptional, and of children who may have special needs but have not been formally identified.

In our view, this type of mandated planning would create the basis for a province-wide accountability structure for children with special needs. We are not by any means suggesting an inflexible approach that would discourage innovation, integration or responsiveness to local needs. This type of local initiative can and should take place, but within an overall accountability structure created in the context of a comprehensive special education plan.

Nor are we suggesting an approach that requires or rewards school boards for emphasizing “labelling” of students or special classes. There are often difficult decisions as to the best type of placement for an individual child. In our view, these decisions should be driven by the educational and social needs of children, and not by a fiscal approach which favours an educational model regardless of the consequences. A fiscal approach should be sought which is flexible and in which funding for essential needs follows the child into new placements and settings.

Another key point is that equal access for children with special needs is not simply a special education funding issue. It also requires that these students have equal access to the generic resources of schools, including libraries, recreation, extra-curricular activities, and many other areas.

24



Of course, to meet their legal obligations in this challenging area school boards will require sufficient resources, and this brings us to our second key recommendation:

2) that the Education Act be amended to require the Minister to fund all school boards appropriately to ensure the full implementation of Section 8(3) as amended.

In this connection ARCH suggests that the Task Force consider the research being carried out in the United States by the Center for Special Education Finance, as documented on the CSEF website at: http://csef.air.org

i Two case examples are Brant County Board of Education v. Eaton (1997), 142 D.L.R. (4th) 385 (S.C.C.) and Lewis v. York Region Board of Education (No. 5) (1996), 27 C.H.R.R. D/261 (Ont. Bd. Inq.)

ii In recent years, we have become deeply concerned about the reduction of services and supports to students with disabilities in Ontario. We have heard from many parents whose children have lost their educational assistants partially or totally. We have heard of waiting lists of two years and more for essential services such as psychology, social work and speech and language pathology. In a number of cases of which we are aware, the child is not being provided with an education at all, despite the clear requirement of the Education Act that requires an appropriate public education for every child, regardless of exceptionality. (Appendix “B” is a report prepared by ARCH’s summary advice and referral staff, highlighting the major concerns of callers in this area.)

There is ample documentation from different sources to substantiate these concerns, including:

the 2002 Elementary School Tracking Report and the 2002 Secondary School Tracking Report prepared by People for Education (Appendix “C” contains the sections from these Reports dealing with special education and educational assistants.)

the 2001 Report of Ontario’s Provincial Auditor, Erik Peters, who conducted an in-depth review of special education funding and found major reasons for concern both as to accountability for special education funding and as to availability of appropriately-qualified staff. (Appendix “D” contains the overview of the Special Education section from Mr. Peters’ Report.)

Many other reports from parents’ groups, disability organizations, school boards, and educational staff unions could be cited to highlight the shortcomings of Ontario’s system of special education, if time permitted.

Invitation to observe ARCH at work!

On Monday, December 9, 2002, Ena Chadha, Director of Litigation at ARCH will be representing the Ontario Network of Injured Workers’ Group (ONIWG) at the Supreme Court of Canada as intervenor in the Martin and Laseur appeals. These cases originated

in Nova Scotia, and are challenging the arbitrary limitations on compensation for chronic pain disability to only eight weeks, despite medical evidence of the permanent nature of the condition. ONIWG plans to argue that these limits reinforce

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misconceptions about chronic pain, and further demean the human dignity of the workers with chronic pain who are then

perceived as “less disabled” or “ill in the head” or as reward-seeking malingerers. ONIWG is also going to argue that the provincial tribunal is legally authorized to determine the constitutionality of provisions of the Workers’ Compensation Act.

Anyone who is interested in coming to observe these arguments is welcome to attend at the Supreme Court of Canada in Ottawa on December 9, 2002. Call ARCH for additional information.

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Community Legal Clinic Victory at theSocial Benefits Tribunal

by Amanda Ward

Is a battery charger for a battery powered wheelchair just an accessory or is it an integral part of the daily use of a wheelchair?

This was the issue in question when Sallie Hunt, staff lawyer at the Kenora Community Legal Clinic, brought a client’s appeal to the Social Benefits Tribunal. Ms. Hunt’s client, who is a recipient of ODSP, had requested that she be reimbursed for the cost of repairs to the battery charger for her battery-powered wheelchair.

The Ministry of Community, Family and Children’s Services had decided that a battery charger was merely an accessory for a mobility device, and had refused the client’s request for reimbursement. The Ministry argued that the legislation regarding reimbursement of costs for batteries and/or repairs to mobility devices clearly states that only batteries and necessary repairs to the actual mobility device were acceptable expenses, and that the battery charger was an accessory and therefore not eligible for repair costs to be reimbursed. Since it was decided that the battery charger was a separate accessory, the repair costs were not recognized under legislation.

The legislation in question states “the cost of batteries and necessary repairs for mobility devices used by a member of the benefit unit, if the cost of batteries and repairs is not otherwise reimbursed or subject to reimbursement” will be paid if the Director is satisfied that the benefit recipient meets the criteria.

The decision by the Ministry was appealed to the Social Benefits Tribunal by Ms. Hunt, who argued that the battery charger is an essential part of the daily operation of a battery-powered wheelchair. The appellant used the wheelchair on a daily basis, and in fact needed to use it just to enter or exit her home.

She was totally dependent on using the chair for her daily life. Her chair used two twelve volt batteries, that needed to be recharged every night after use. It was noted that the wheelchair pamphlet described the battery charger as a standard feature, and in fact the chair could not be purchased without the charger, since it was integral for the operation of the chair.

The total cost to repair the charger was $133.35, while the cost for two new twelve volt batteries would have been $240.00. The cost to replace the batteries on a daily basis (as the average life of a battery was approximately one day after which recharging was necessary) would not have been cost feasible, especially when compared with the cost of repairing the battery charger.

The Social Benefits Tribunal found that the charger was indeed an intricate part of the daily operation of the wheelchair, and since it was part of the original purchase it must be considered part of the mobility device. The original decision by the Ministry of Community and Social Services was overturned, and the Tribunal ordered that the Ministry pay for the repairs to the battery charger

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RESOURCES AND EVENTS

New Disability Issues E-Group

Two sisters, Lynda and Kathleen Roy, both of whom have a physical disability, have recently set up an e-group called “Disability Issues GTA”. This e-group is community centered and consumer driven. It is for people with physical disabilities who would like to get informed, stay informed, share ideas and opinions on issues that impact the lives of residents living in and around the Toronto area. It is confidential and private. If you are interested in joining this e-group, take the following steps:

1. To subscribe, send an e-mail to mailto:[email protected] stating in the subject and text that you wish to subscribe.

2. Once you have received confirmation, follow the instructions and confirm your request by replying to the message.

3. Once you have confirmed your interest in this e-group, you will automatically receive e-mails from people who have also joined the e-group. At this point, a website address for Yahoo! Groups will be provided to you which will enable you to access information and options for the Disability Issues GTA group.

4. Once you have joined as a member of this e-group, you can post a message by sending an e-mail with your text to [email protected]

5. At any time if you would like to unsubscribe from this e-group, you can do so by sending an e-mail to [email protected]

EnableLink – Linking People with Disabilities to a World of Resources!

www.enablelink.org

This resource-rich disability website produced by the Canadian Abilities Foundation includes news, announcements, a listing of disability organizations, a library of disability books, women’s resources, employment resources, chat rooms, message boards, and back issues of ABILITIES, Canada’s Lifestyle Magazine for People with Disabilities.

“a BALANCE Affair”

November 9th, 2002 7:00 pm $30 The Ontario Club 30 Wellington St. W, 5th Floor. Finger Foods, Cash Bar, Prizes, Smart Casual Attire

Please join us at our festive fund raising event. It will be an evening of fun for all. Blind and visually impaired artists will showcase the various artistic talents found within our community, providing an evening’s entertainment of music, poetry, skits and comedy; something to please everyone.

Bulls-Aye featuring Alex Bulmer will be performing their unique Celtic rock. Finishing the evening, the country rock melodies of the Eric Lambier Band ensure a night of great entertainment.

Proceeds from the event will support ongoing service delivery and the creation of new programs allowing us to further increase our ability to serve the blind and visually impaired community in Toronto.

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mailto:[email protected]






To obtain additional information about “a BALANCE Affair” or about BALANCE, contactBALANCE4920 Dundas Street West, Suite 302 Toronto, Ontario M9A 1B7Tel: (416) 236-1796 Fax: (416) 236-4280Email: [email protected]://www.balancetoronto.org

The Canadian Association of the Deaf National Conference

“The Deaf Child and Early Childhood Development: Repercussions and

Transition”

Delta Vancouver Airport, Richmond, B.C. February 19-21, 2003

This conference addresses issues facing families with young deaf children and their service providers as well as school programs.

It will examine the current situation in the areas of early intervention and early childhood education for deaf children and their ramifications for school-age deaf children and their parents and educational programs.

It is aimed at educators, rehabilitation professionals, parents of deaf children, early childhood education professionals, training programs, government representatives, and others who have professional interest in such issues.

For more information about the conference contact:Roger Carver, DirectorDeaf Child Care in Canada II Project3677-188 StreetSurrey, B.C. V3C 7T9Voice/TTY: 604-576-0919E-mail: [email protected]

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 quality rights of people 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 people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduce in their entirety and that the appropriate credit is given. We encourage whose 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: Harry Beatty Production & Circulation: Theresa Sciberras

We welcome you 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: Harry Beatty, Director of Policy and Research, ARCH: A Legal Resource Centre for Persons with Disabilities, 425 Bloor St. E., Suite 110, Tor., ON M4W 3R5, Fax:: 416-482-2981, TTY: 416-482-1254, E-mail: [email protected] Website www.arch-online.org

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