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I. I. ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES 425 Bloor Street East, Suite 110 (416) 482-8255 (Main) 1(866) 482-ARCH (2724) (Toll Free) Toronto, Ontario M4W 3R5 (416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free) www.archlegalclinic.ca (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll free) Thursday, June 5, 2003 ARCH Annual General Meeting ARCH has an exciting Annual General Meeting planned. It is open to the public and you are all welcome to attend. We are thrilled that Keith Norton, Chief Commissioner of the Ontario Human Rights Commission, will be giving the keynote address: His topic is: “In this age of shifting financial priorities, what is the Commission’s role in advancing an agenda of inclusion for persons with disabilities?” I NSIDE T HIS I SSUE 1 ARCH Annual General Meeting 1 ARCH Welcomes New Staff Lawyer 2 ARCH Library Update 2 Accessibility At ODSP Offices: Request For Input 3 ARCH Fights For Equal Transit Services For Persons With Disabilities 4 Money Talks: The 2003 Federal Budget’s Impact On Persons With Disabilities 7 Changes To The Canadian Human Rights Commission Process 11 ARCH AGM Invitation Harry Beatty, former Director of Policy and Research, will be honoured for his seventeen years of dedicated service to ARCH. Harry recently left ARCH to engage in private consulting work. While at ARCH Harry worked tirelessly to advance the rights of persons with disabilities. He was a very respected colleague and friend to

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Page 1: XCVXCV - ARCH Disability Law Centre | Homearchdisabilitylaw.ca/sites/all/files/June 5, 2003 - Word For…  · Web viewThe restrictive criteria exclude persons with cognitive and

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)

Thursday, June 5, 2003

ARCH Annual General Meeting

ARCH has an exciting Annual General Meeting planned. It is open to the public and you are all welcome to attend.

We are thrilled that Keith Norton, Chief Commissioner of the Ontario Human Rights Commission, will be giving the keynote address: His topic is: “In this age of shifting financial priorities, what is the Commission’s role in advancing an agenda of inclusion for persons with disabilities?”

INSIDE THIS ISSUE

1 ARCH Annual General Meeting

1 ARCH Welcomes New Staff Lawyer

2 ARCH Library Update

2 Accessibility At ODSP Offices: Request For Input

3 ARCH Fights For Equal Transit Services For Persons WithDisabilities

4 Money Talks: The 2003 Federal Budget’s ImpactOn Persons With Disabilities

7 Changes To The Canadian Human Rights Commission Process

11 ARCH AGM Invitation

Harry Beatty, former Director of Policy and Research, will be honoured for his seventeen years of dedicated service to ARCH. Harry recently left ARCH to engage in private consulting work. While at ARCH Harry worked tirelessly to advance the rights of persons with disabilities. He was a very respected colleague and friend to the ARCH staff. Please join us in recognizing Harry’s invaluable contribution.

The AGM will be held on Tuesday, June 17 at Metro Hall, 55 John Street, Room 308. Refreshments will be served at 5:30pm and the meeting will begin at 6:00pm. For further details, see the announcement at the end of this ARCH Alert.

ARCH Welcomes New Staff Lawyer

We are thrilled to announce that Dianne Wintermute will be joining ARCH as a staff lawyer in July. Dianne is taking a leave from her current position as executive director of East Toronto Community Legal Services to join ARCH. Dianne has been working in the community legal clinic system for many years and has been the executive director at East Toronto CLS for the past twelve years. She is a member of a number of groups and coalitions who are active in poverty and disability issues. She has practised in all of the core areas of clinic law, has strong background in social assistance and has been a very active participant in inter-clinic

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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)

Thursday, June 5, 2003activities. We look forward to her contribution to ARCH and to the community.

ARCH ACTIVITIES AND UPDATES

ARCH LIBRARY

by Wayne Johnston, Director of Library and Reference

We have seen a lot of developments in ARCH's library this year in the areas of library management, web site design and accessible technology.

The library itself has been going through a major overhaul in 2003. A lot of progress has been made but a lot more work is required before the library is ready to open its doors to the public. We eagerly anticipate a grand opening some time this summer.

Our web site has been redesigned and moved to a new URL (www.archlegalclinic.ca). We are now in the process of updating and expanding the web content. We expect to launch the enhanced web site in time for our Annual General Meeting on June 17, 2003.

One new feature of the web site that is already in place is a searchable database of our library catalogue and web resources. While this database is in its infancy you may want to consult it if you have any research needs related to the legal concerns of persons with disabilities. If you find any documents that are of interest, and if they are

not available online, please contact the library and we can try to make arrangements for you to have access to the specific titles.

Finally, our library has also seen the introduction of two new accessible workstations. We have one PC that has been equipped with hardware and software for use by persons with motor disabilities and another PC for use by persons with visual disabilities.

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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)

Thursday, June 5, 2003

If you have any questions about the library please send an email to [email protected] or call Wayne Johnston at (416) 482-8255 ext. 227.

ACCESSIBILITY AT ODSP OFFICES: REQUEST FOR INPUT

by Bill Holder, Staff Lawyer

ARCH, as a member of the ODSP Action Coalition, has been invited to participate in a working group consisting of members of the Coalition and employees of the Ministry of Community, Family and Children's services.

The working group is interested in identifying barriers that exist at local ODSP offices around the province, with a view to the removal of the barriers.

In order to work as effectively as possible toward the removal of all barriers, ARCH is interested in hearing from ODSP recipients throughout the province about barriers that exist at local offices. What constitutes a barrier includes physical barriers, communication barriers, attitudinal barriers, technological barriers, and policies or practices that promote exclusion.

If you are able to alert ARCH to a barrier that exists at a local ODSP office, then please contact Bill Holder by e-mail at [email protected] or by mail to 425 Bloor Street East, Suite 110, Toronto, Ontario, M4W 3R5.

ARCH FIGHTS FOR EQUAL TRANSIT SERVICESFOR PERSONS WITH DISABILITIES

by Christian Lyons, Articling Student

Many municipalities across Ontario provide special transit service for persons with disabilities who are unable to use conventional transit. Examples of such services include Wheel-Trans in Toronto, and TransHelp in Peel. The level of special transit service provided is of great concern to the disability community, as special transit is vital to integrating persons with disabilities into

society. Without special transit, a large proportion of the disability community would be unable to access work, school, volunteer activities, medical appointments, or family and social events. Despite the great need for special transit, it is chronically underfunded, and the service provided is insufficient.

In an effort to redress this situation, ARCH and Hamilton Mountain Legal and Community

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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)

Thursday, June 5, 2003Services, are representing two clients in a human rights complaint before the Human Rights Tribunal of Ontario. The complaint is against the special transit provider in Hamilton, called the Disabled and Aged Regional Transit System (DARTS), the City of Hamilton, and the Ontario Ministry of Transportation. The complaint alleges that the level of special transit service provided in Hamilton is unequal to the level of service provided by the conventional transit system, and that this disparity in service constitutes discrimination against persons with disabilities, contrary to the Ontario Human Rights Code.

At present, DARTS’ rides must be booked three to four weeks in advance, DARTS’ users experience waits of up to three hours for return rides, and requests for rides are frequently refused. Furthermore, DARTS service is more expensive to use than conventional transit, and DARTS has a priority ride system that restricts rides for reasons other than medical, employment or

education to designated hours of the day. DARTS also has restrictive criteria for determining whether or not a person is eligible to receive special transit service. The restrictive criteria exclude persons with cognitive and visual disabilities, dialysis patients, and the ambulatory disabled. As a result of these inadequacies and restrictions, DARTS does not provide equal access to community life for persons with disabilities when compared with the access provided to non-disabled persons by the conventional service.

One of the chief reasons that DARTS service is inadequate is that the Province has failed to provide any assistance, financial or otherwise, to special transit providers since 1998. This is in stark contrast to the role the Province previously played in special transit. From 1974-1994, the Province spearheaded the development of special transit by designing infrastructure, providing substantial subsidies to municipalities, facilitating passenger travel across municipal borders, enforcing province-wide standards of service, and dictating broad eligibility criteria.

Without Provincial support and oversight, DARTS service has suffered, resulting in the unacceptable level of service presently provided. This illustrates how important Provincial support is to ensuring high quality special transit service. Furthermore, Provincial involvement is required to facilitate travel across municipal borders.

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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)

Thursday, June 5, 2003With this case, ARCH is seeking to have the Province ordered to resume funding special transit, and mandating appropriate service levels. If such an order is made, it could have a profound impact on the delivery of special transit services, not just within Hamilton, but across the Province.

Although the case has been before the Tribunal since 2001, it remains in the preliminary stages. The Respondents (DARTS, the City of Hamilton, and the Ontario Ministry of Transportation) are vigorously defending the status quo and mounting preliminary procedural objections that have significantly slowed the case’s progression. These objections have taken the form of a number of preliminary motions currently being heard by the Tribunal. Among these motions, the Respondents are seeking access to the Complainants’ medical records, which ARCH is forcefully contesting, as the Complainants’ medical histories are irrelevant

to the case, and the Complainants’ privacy rights would be violated if the Respondents were given access to the Complainants’ medical records.

The motions have been dragging on. They were only partially heard in May, and further dates have been scheduled for August, September and October. After the motions are finally heard, the Tribunal will likely make decisions on them before the end of the year. ARCH is unsure when the case will finally get to a hearing on the merits, or when it will ultimately be decided, but hopefully both will occur before the end of 2004.

MONEY TALKS: THE 2003 FEDERAL BUDGET’S IMPACTON PERSONS WITH DISABILITIES

by Darren Thorne, Staff Lawyer (Contract)

When gauging the importance of a specific issue, or that of a particular constituency, to government, it is best if one keeps in mind the old adage “Money Talks”. That is to say, if you want to know how important a certain issue is to government, it’s best to ignore the rhetoric and just look at the bottom line: how much money is the government spending on

it? By this standard, the February 18, 2003 Federal budget indicates that disability issues, while not yet a true priority, have at least started to receive some recognition at the federal level. As will be noted below, Prime Minister Chretien’s final, “Legacy” budget includes a handful of measures which are heartening to those involved or interested in disability issues, but stops short of effecting

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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)

Thursday, June 5, 2003truly meaningful change. In particular, the Budget provided for the following measures:

National Child Disability Benefit

The most significant new initiative found in the 2003 Budget is the announcement of a new benefit targeted at low and modest income families who have children with “severe” disabilities. Effectively a supplement to the

Canada Child Tax Benefit, eligibility for this measure will be based on the same eligibility criteria used for the pre-existing Disability Tax Credit (DTC). The new benefit will pay $1,600 per child to qualifying families, where they have a net income of under $33,487 in 2003. The Canada Customs and Revenue Agency will begin paying this benefit in March 2004, with retroactive effect to July 2003. Qualifying families with higher incomes will be eligible for reduced benefits. This initiative is heartening, as it recognizes the heavy financial burden such families must face in paying for the supports and services required by their children.

Beyond this new National Child Disability Benefit, persons with disabilities remain eligible for the existing Disability Tax Credit (DTC) and, where families have a child with a disability, also the secondary DTC supplement for children (of $586 per qualifying child). The creation of the new National Child Disability Benefit has significantly increased Canada’s income benefits for families with children with disabilities. In essence, the introduction of

the new National Child Disability Benefit, combined with the pre-existing DTC means that all families who have children with disabilities are now eligible for some level of government assistance. Previously, since the DTC simply had the effect of reducing the tax of those qualifying for it, families on social assistance, or whose income was so low that they did not pay tax, did not receive the

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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)

Thursday, June 5, 2003benefit. Thus, those with incomes too low to take advantage of the DTC have finally been brought into the federal income support framework by the National Child Disability Benefit.

Unfortunately however, it is currently unknown whether this new National Child Disability Benefit will be subject to a “clawback” by the Ontario government, as the CCTB benefit has been in recent years.

Technical Advisory Committee on Tax Measures for Persons with Disabilities

Unfortunately, despite persistent calls from the disability community, the Government did not announce changes to the original Disability Tax Credit which would have addressed concerns that the criterion for eligibility for this credit is too narrow. However, the budget did announce a forthcoming evaluation of the Disability Tax Credit, to determine whether it is meeting its stated policy purpose. The 2003 Budget also went on to create a “Technical Advisory Committee on Tax Measures for Persons with Disabilities”, to facilitate the review. This body, which includes representatives from disability advocacy organizations, medical practitioners and private sector tax experts, is to advise the government on a range of tax issues affecting persons with disabilities. In particular, the Committee will examine issues such as eligibility for the Disability Tax Credit (especially with respect to those who experience episodic and mental conditions),

the criteria used to determine eligibility for the credit, the identification of professionals

allowed to certify eligibility and other administrative concerns.

Subsequent to the Budget, the Federal government recently appointed the initial twelve members of the Advisory Committee. Significantly, named members include Harry Beatty (our former and valued ARCH colleague and tax expert); Michael Bach (Executive VP of the Canadian Association for Community Living); Laurie Beachell (National Coordinator of the Council of Canadians with Disabilities); Lembi Buchanan (Chair of the Coalition for Disability Tax Credit Reform) and Sherri Torjman, who has been appointed as a Co-Chair of the Advisory Committee (Vice President, Caledon Institute of Public Policy). Whether the Advisory Committee’s recommendations will be followed remains to be seen, but with these well known advocates on board, the disability community can be confident that their concerns will at least be strongly presented.

The other members of the Committee are:

Robert Brown (Co-Chair) – Former Department of Finance Economist; and former Chair, Canadian Tax FoundationBrian Arnold – Tax Lawyer, Goodmans LLP.Gary Birch – Executive Director, Neil Squire FoundationDr. Karen Cohen – Associate Executive Director, Canadian Psychological Association

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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)

Thursday, June 5, 2003Yude Henteleff – Senior Counsel to the Winnipeg Law firm Pitblado; former President, Learning Disabilities Association of Canada.Guy Lord – Tax Lawyer, Osler, Hoskin & Harcourt LLP.Dr. Claude Renaud – Associate Secretary General and Chief Medical Officer, Canadian Medical Association

Medical Expense Tax Credit (METC)

The 2003 Federal Budget also included a limited expansion of the Medical Expense Tax Credit. Under this initiative, certain medical and disability related expenses may be reduced or offset, as a result of a tax credit. The Budget announced that two additional expenses are to be added to the list of those eligible for the Medical Expense Tax Credit: the cost of real time captioning, and gluten-free food products for Canadians with Celiac disease.

Tax-Free RRSP and RRIF Rollover

Prior to the Budget announcement, financially dependent ‘infirm’ children were permitted to receive a deceased parent’s RRSP or RRIF (Registered Retirement Income Fund) tax free, as long as the child’s income was below $7,634. The 2003 Budget raises the income cut-off level from $7,634 to $13,814, which will allow for more ‘infirm’ children to benefit from their parents’ RRSP or RRIF savings. This measure is effective for the 2003 tax year.

Employability Assistance for Persons with Disabilities (EAPD)

The EAPD Agreement, originally signed in 1998-99, consists of a set of bilateral agreements under which the Federal government agreed to share with the provinces and territories 50% of the cost (up to a set maximum) of a range of employment

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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)

Thursday, June 5, 2003supports designed to help persons with disabilities prepare for, enter and remain in the paid labour market. These “supports” include such measures as employment counselling and assessment, employment planning, pre-employment training, postsecondary education, skills training, assistive aides or devices, wage subsidies and earning supplements.

.

The Federal Budget commits to renewing the federal government’s current investment in EAPD, but disappointingly, did not include an increase in funding for this program. Many disability advocacy groups are very concerned about this, as it basically amounts to no new action on the employment front. Without further federal investment, many fear that there will be little incentive for the provinces to enter into further agreements to address the labour market exclusion of persons with disabilities and that this initiative will remain stalled.

Compassionate Leave

An Employment Insurance compassionate family care leave provision will be implemented in January, 2004. Under this scheme, qualifying individuals will be entitled to a six week EI compassionate family care leave benefit to care for a gravely ill or dying child, parent or spouse. To provide flexibility in meeting the varying needs of individual families, eligible family members will be able to share the benefit. The Government has

also stated that it will propose legislative changes so that permanent employees governed by the Canada Labour Code can benefit from the new leave provision, by making sure that their jobs are protected during the leave period.

This provision is important, as it represents a first step in recognizing the costs of unpaid caregiving, and helping family members to balance work and family responsibilities. However, as it now stands, it is for a small target group and will have a limited impact on families caring for persons with disabilities, as the leave is only available where the party being cared for is gravely ill or dying. As a result, those providing similar kinds of care to a family member with a disability, but who is not gravely ill or dying, will not be able to access the compassionate leave.

In sum, while the 2003 Federal Budget contains a number of measures targeted at providing assistance to persons with disabilities, it is apparent that the overall impact of this budget on that constituency will

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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)

Thursday, June 5, 2003

be a relatively modest one. In short, if money talks, then from the perspective of persons

with disabilities, while the Canadian government may now be speaking out, it is still only whispering.

CHANGES TO THECANADIAN HUMAN RIGHTS COMMISSION PROCESS

by Phyllis Gordon, Executive Director

In the past several weeks ARCH has received anxious calls from complainants with cases at the Canadian Human Rights Commission (the “CHRC”). Each caller has been anxious because they have just been advised that if their case proceeds to the Canadian Human Rights Tribunal, the CHRC may not or will not assign one of their lawyers to the matter. Unable to afford their own lawyer, they are fearful of proceeding without Commission counsel. We were shocked to hear this news. The changes are abrupt and have a huge impact on persons whose complaints have been in the process for years. We were and remain surprised that there has been no public announcement from the CHRC setting out the details of these changes. We then sought clarification from CHRC staff who confirmed the changes as did Mr. Bob Ward, Chief Operating Officer of the CHRC, at a meeting held recently at ARCH with ARCH staff and other human rights advocates.

In its effort to attain greater efficiency and relieve its chronic backlog, the CHRC has instituted significant changes to its process

that affect how individual complaints are handled. While some have been announced officially by the CHRC in a recent press release, other changes have not been publicized. The changes are being implemented without consultation with human rights advocates and without notice to the

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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)

Thursday, June 5, 2003

public or the legal profession, whose task it is to advise the public. Thus, while we hope that the following report accurately reflects CHRC practice, we point out that it is based on brief conversations, rather than a detailed description of the changes written by the CHRC itself. Since our information gathering has been somewhat imprecise, there are likely other changes underway that have not yet come to our attention.

As is well known, the employment situation of persons with disabilities is very grave. In its 2002 Annual Report, the CHRC notes that disability-related complaints rose by 85% while the total number of complaints rose by 39% in 2002. Fully 44% of all signed complaints involved allegations of discrimination on the basis of disability. According to the Public Service-wide Employee Survey released in the fall of 2002, nearly 36% of federal employees with disabilities have been harassed in the past two years, while 37% have been subject to discrimination at least once. The Commission’s Employment Equity audits found persons with disabilities severely under-represented in the federally regulated private sector. Given these alarming statistics, it is critical that changes to the process give particular consideration to the views of persons with disabilities and the impact on them.

Motivation for the changes

At the meeting Mr. Ward explained that the primary motivation for the changes is to ensure that complaints are dealt with quickly and effectively. The Annual Report states that “the Commission’s main challenge with respect to case management is twofold: it must address its current caseload and put in place a new business model to ensure the effective and efficient processing of complaints in the future.” As the government has not granted new financial resources to the Commission to carry out its mandate, the CHRC has decided to implement significant changes so that it can handle complaints efficiently. On the other hand, advocates are concerned that the implementation of efficiency goals will result in far too many cases falling by the wayside and a gradual sidelining of human rights enforcement and adjudication.

Mediation emphasis at the early stages of the process

Overall, the changes involve a shift of resources from the adjudication stage (the back-end) of the process to the beginning of the process. In February of this year the CHRC established the Alternative Dispute Resolution Services Branch. Although this is the change that has been announced publicly, little has been said regarding how this Branch will conduct its business. In its press release of May 26, the CHRC stated that

…the branch will operate independently to ensure its

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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)

Thursday, June 5, 2003impartiality…An Advisory Council of eminent jurists and ADR specialists has been created to give advice on how to use ADR as effectively as possible in the context of human rights and the public interest. The members include: former

Supreme Court justice Gérard La Forest of Fredericton, former Supreme Court justice Claire L’Heureux-Dubé of Quebec City, former chief justice of Ontario Charles Dubin of Toronto, and former Alberta Court of Appeal judge Roger Kerans of Victoria.

We have not yet heard how this front-end mediation process is operating. We do not know whether settlements reached are reasonable and fair, or to what extent, if any, the central public interest of addressing and eliminating discrimination is being achieved. We hope that there will be public discussion about what it means to mediate human rights in an impartial environment, how the public interest will be explored and upheld, and how the public will know that indeed the public interest is being actively protected and advanced.

Changes to the end of the process: Conciliation

We have heard that the shift of resources has meant significant changes at the end of the process, both with respect to conciliation and representation. It is well known that the Commission’s investigation process most often takes far too long. ARCH often receives calls from persons with disabilities whose complaints have been stalled at the investigation stage for years. However, in the current efforts to deal with the backlog, it

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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)

Thursday, June 5, 2003appears that these are the same parties who are being most immediately impacted by the new developments.

At the conclusion of the investigation process a report is prepared which is presented to the Commissioners for final determination. Until recently, when the investigator’s report was favourable, or, on their own initiative after reviewing a complaint, the Commissioners would regularly refer a matter to conciliation.

A high percentage of cases would settle at conciliation. Those cases that did not settle were usually referred to the Tribunal for a hearing and CHRC counsel would participate fully at the hearing. Frequently the complainant would not have counsel and the case would be handled entirely by the CHRC lawyer.

So far, we know of two significant changes at this stage. First, investigators are no longer recommending that cases be referred to conciliation. Instead, positive investigation reports are now to recommend that the matter go directly to the Tribunal. While the conciliation process admittedly could take a long time, it was often quite an effective way for a complainant to obtain a suitable settlement. This was most likely so because the respondent would know, given there had been a referral to conciliation, that the CHRC was ready to spend time and resources in pursuit of a remedy in a public forum. Not surprisingly, this often proved to be a very effective spur to reasonable and fair settlements. We wonder if respondents will

be as likely to agree to such strong settlements at the front-end of the process in the absence of a Commission indication that it is ready to pursue the matter to Tribunal.

Changes to the end of the process: Representation at the Tribunal The second change involves the Tribunal. Currently, more cases are being referred to the Tribunal. This is happening, it seems, because referrals are being made directly to Tribunal instead of conciliation. The CHRC is taking on its backlog, resulting in more cases proceeding to the Tribunal. On the other hand, the CHRC is not increasing its resource allocation for counsel at hearings. Therefore, while more cases will be sent forward, many will not have Commission counsel present. Or, counsel may be “present” to the extent of making an opening statement. The CHRC has reviewed its strict legal obligation

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Thursday, June 5, 2003

regarding when it is required to be at the Tribunal itself and has determined that it can change its practice with respect to counsel representation at hearings. We have been told that the decision about when it will have counsel at a hearing will be guided by such considerations as:

Does the complainant have a competent representative?Are there public interest issues at stake in the complaint?Is there novel law or important legal issues that arise in the case that will impact on complainants generally?

The level of CHRC participation at Tribunal hearings will vary. The Commission’s participation may be restricted to the submission of a public interest statement, or to the making of representations or cross-examination of witnesses to the extent that they feel that it is in the public interest to do so. In cases without full representation, Commission counsel will not usually attend each hearing day.

In any case where the CHRC decides not to assign counsel, complainants will have to find the money to pay their own lawyers, find pro bono counsel, or be on their own without any lawyer present to lead the evidence or make submissions regarding what took place, what the current state of the law is, or what remedy should be awarded. To our knowledge, the CHRC has not attempted to obtain funding for complainant representation from the federal

government or strike deals with the various provincial legal aid plans. Given that persons with disabilities, as a group, are the poorest in the country, this change will have a very definite and disproportionate impact on persons with disabilities. As close to half of the complainants at the CHRC allege discrimination based on disability the impact will be even more significant.

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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)

Thursday, June 5, 2003On the other hand, respondents will still have counsel. In those many cases when the respondent is a crown corporation or a department of the federal government, taxpayers will be subsidizing the defence of an allegation of a human rights violation even though there may not be any public resource support for challenging the discrimination experienced. And private sector corporations that are potential respondents at the CHRC or the Tribunal include companies like Air Canada, Bell Canada, Rogers, and the banks, among others, all of whom would certainly retain counsel.

It should be noted that, in a recent case in which CHRC counsel withdrew from a case involving a complainant with a mental health disability, the Tribunal dismissed the complaint.

Impact on the mediation process

It is quite possible that this “back-end” change will have a significant impact on the nature of the settlements reached at the “front-end”. When complainants start the process they won’t know if CHRC counsel will be assigned to participate at the Tribunal, should the case go to a hearing. So when the front-end mediation occurs, one factor that will weigh heavily to encourage complainants to settle is the possibility that they may have to pay for their own lawyer at the Tribunal, a very intimidating (and likely impossible) prospect. Furthermore, if respondents suspect that CHRC counsel will not be active at the

hearing, they will have less incentive to settle fairly at mediation.

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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)

Thursday, June 5, 2003Finally, we are very concerned that the changes are taking place internally, without public consultation or input—even though there have been several reports outlining how human rights commissions should be reformed, the most recent being Promoting Equality: A New Vision, published in 2000. This task force chaired by former Supreme Court justice Gérard La Forest provided a comprehensive set of proposals for legislative and institutional reform. In particular, it called for public funding of counsel for complainants as well as direct access to the Tribunal. Members of many disadvantaged communities, including organizations representing persons with disabilities, along with human rights experts and legal advocates made submissions to Justice La Forest. On balance, most advocates were

receptive to the recommendations and balanced proposals set out in his report.

Instead of the Canadian Government proceeding with the La Forest recommendations, the CHRC is implementing changes designed that will result in a profound culture shift at the CHRC, from enforcement to mediation. As the key recommendations of direct access to the Tribunal and public funding for complainants’ counsel are apparently not on the table, there is serious concern that the enforcement of human rights, as a public responsibility, will be undermined. Will the result be, as one advocate has suggested, another avenue to de-legitimize the CHRC, so that Canadians will hesitate to seek its assistance when they experience discrimination?

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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)

Thursday, June 5, 2003

You are Invited

A Legal Resource Centre forPersons with Disabilities

ANNUAL GENERAL MEETING

Tuesday, June 17, 2003

Metro Hall55 John Street

Room 308(King and John Street)

_______________________________________________________

Keynote Address

Keith NortonChief Commissioner of the Ontario Human Rights Commission

“In this Age of Shifting Financial Priorities, What is the Commission’s Role in Advancing an Agenda of Inclusion for Persons with Disabilities?”

_______________________________________________________

Refreshments at 5:30 p.m.Meeting begins at 6:00 p.m.

_______________________________________________________

NEW LOCATION

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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)

Thursday, June 5, 2003

RSVP TO THERESA SCIBERRAS, EMAIL: [email protected]

Tel.: 416-482-8255 or 1-866-482-2724Fax: 416-482-2981 or 1-866-482-2728TTY: 416-482-1254 or 1-866-482-2723

Please Note:

Sign Language Interpreters, closed captioning and Attendant Care will be provided. If you require accommodations other than the ones listed above or have specific dietary needs, please contact Theresa Sciberras at ARCH.

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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)

Thursday, June 5, 2003

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 reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.

Editor: Lana Kerzner 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: Theresa Sciberras, Administrative Assistant, 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.archlegalclinic.ca