Emerging Issues in Disability

1. Emerging Issues in Disability DAVID BAKER, B.A., LL.B., LL.M., L.S.M., CASHRA June 2011 Calgary, Alberta

2. Advancing the Goals of Persons With Disabilities • UN Convention of Rights of Persons with Disabilities 2006 • Comprehensive disability based standards Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and proposal in Manitoba • Their relationship to human rights legislation • Clarification of goals • No undermining or derogation of rights

3. Advancing the Goals of Persons With Disabilities • Means of enforcement • Role of regulatory tribunals such as Canadian Radio-television and Telecommunications Commission (CRTC) and Canadian Transportation Agency (CTA) • Impact of Tranchemontagne v Ontario Director, ODSP) [2006] SCJ #14and the relevance of Charter jurisprudence • Increasing involvement of human rights principles in tort/LTD litigation

4. Definition of Disability • Large and liberal interpretation as in Gray v. ODSP and Villani v. Canada • Importance of Mercier v Canada decision SCC 2000 • Importance of perception based on misperception or history of disability i.e. subjective test underlying socio-political model • There may still be cases where the medical and rehabilitation [functional ] models are relevant • No need to prove actual functional limitation-deterrent on person seeking to escape stigma and overcome functional limitation • Debate about when functional limitation relevant [basis for accommodation request or for incapacity argument] and when it is the subjective perception of the respondent that matters • Means that can look at disability from a functional perspective. See McKay-Panos v. Air Canadainclusion of obesity • Categories are not closed • Impact on length of hearing/production of documents/invasion of privacy and deter complaints/invalidation of cases e.g. US

5. Importance of Inclusion as Measure of Prima Facie Discrimination • Meiorin and VIA Rail emphasizing that measure prima facie discrimination against norm of full inclusion • VIA Rail argued that taxis or lifting into on board chairs and transfer into regular seat was accommodation • Jodhan where government argued that providing material in alternate format, including providing readers meant there was no discrimination • There are still issues concerning prima facie discrimination about the relevance of the existence of alternatives that invoke the de minimus criteria as in Brown, and when the accommodating actions of others will relieve a person of the duty to accommodate • Inclusion means consideration of the goals of persons with disabilities such as independence and choice

6. Equal Benefit • 1 person, 1 fare • Simpson student loan case

7. Out of Bounds • Hydro-Quebec and • Orillia Soldier’s Hospital

8. Comparator Group • Overriding duty to accommodate Withler • Intersectionality with age as in Keith

9. Education • Education the black hole Moore, Winberg, Auton • Eaton which avoids pedagogical debate with best interests test • Approach of Human Rights Tribunal of Ontario Mark Hart and Kaye Joachim decisions

10. Systemic Access • Court Challenges Program, disappearance of Commissions and Commission resources • Mowat costs • Contingency awards

11. Corporate Veil • The disability management business, rehabilitation providers, insurer Long Term Disability • Company doctor

12. THANK YOU CONTACT: JOHN DAVID BAKER, B.A., LL.B., LL.M., L.S.M., • dbaker@bakerlaw.ca • 4711 Yonge Street, Suite 509 Toronto, ON M2N 6K8 • 416-533-0040 Ext.222 • web: www.bakerlaw.ca