Discrimination and Disability: Recent Issues

1. Discrimination and Disability: Recent Issues M. Kate Stephenson and Kathy Laird Ontario Human Rights Legal Support Centre June 15, 2011

2. What we are seeing and doing at the HRLSC • Respond to 25,000 telephone and in-person inquiries from the public annually. • Inquiries related to disability issues in employment formed the largest single category of inquiries. • In response to about 11,000 inquiries annually, the Centre provides immediate legal assistance in respect of a possible human rights claim. • An additional 8,000 inquiries were requests for general information about rights and responsibilities under the Code. General questions about accommodation of disabilities in services comprise a significant number of inquiries. • Most of the remaining 5000 calls were unrelated to human rights.

3. What we are seeing and doing at the HRLSC • Over 1000 new individuals receive legal services from HRLSC lawyers annually, in addition to individuals in our ongoing caseload. • Disability discrimination was at issue in approximately 28%. • Retained for mediation and hearing representation in approximately 500 cases annually. • Successfully resolve approximately 75% of cases at mediation. • We also settle cases prior to filing an application and at every stage in the human rights resolution process.

4. What we are seeing and doing at the HRLSC

5. How the HRLSC provides legal services • Legal services at every stage of the human rights process from pre-application to enforcement of orders. • At each stage, staff assess what legal services are needed by the individual requesting service. • “Unbundled” legal services. • We generally accept retainers to provide services to a client one stage at a time. And then re-assess eligibility for further legal services if the case is not resolved. This allows us to re-assess merit as case proceeds. • In deciding level of service, we consider the challenges that the applicant would face in self-representing at each stage. Disability-related barriers are often a factor in deciding to provide full representation.

6. Access to rights enforcement • State of the art facilities at HRTO Toronto hearing centre • Accommodation in scheduling, location etc. • Accommodation in set up of hearing rooms • eg. HRLSC chemical sensitivities mediation • Modification of hearing process • Communication assistant allowed: Wattie v. Toronto District School Board, 2010 HRTO 2087

7. Access issues in disability rights applications • Enhanced access under Ontario Code may assist disadvantaged or vulnerable applicants: • Groups of individuals can file applications jointly, subject to Tribunal power to separate in accordance with Rules - s.34(4) • Person or organization can apply on behalf of a consenting individual - s.34(5). Applicant participates in mediation and hearing on behalf of consenting individual.

8. Access issues in disability rights applications • No longer a requirement to go to court before proceeding as a litigation guardian • Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 • Process for becoming litigation guardian still to be determined • Tribunal likely to promulgate a Rule soon • Test for “indifference” subject to ongoing litigation in Yuill case

9. Access issues in disability rights applications People with some level of capacity can participate in their own right, with support: • Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795 (CanLII) Where an applicant is brought on behalf of a consenting person with intellectual disabilities, the consenting individual needs capacity to instruct to commence and to discontinue the litigation, but does not need to be able to give detailed legal instructions. In Kacan and Yuill, the HRTO: • specifically relied on UN Convention on Rights of Persons with Disabilities • referred to the issue as being one of “access” to the Tribunal.

10. Access issues in disability rights applications Using s.34(5), the HRLSC is representing the Dream Team before the HRTO. The Dream Team is an organization comprised of people living with mental illness that advocates for more supportive housing for people with disabilities in Ontario. • The Dream Team has brought applications against 4 municipalities to challenge zoning by-laws which impose mandatory separation distances for shared supportive housing – group homes. • Consenting individuals are 8 people living with disabilities. • Each of the challenged municipalities (Toronto, Smiths Falls, Kitchener and Sarnia) has planning by-laws that place restrictions on the location of housing for people living with disabilities in shared accommodation. • Shortly after the applications were filed, the City of Sarnia amended its by-laws to remove the by-laws that restricted locations for housing for people with disabilities. Another municipality is reviewing its by-laws and considering amendments, including the removal of a by-law that allows no more then 36 "mentally handicapped" people to be housed in group homes within the entire municipality.

11. Access issues in disability rights applications • City of Toronto is actively challenging the Dream Team application. • Application is challenged as hypothetical and without factual foundation. Issues include: • Who can bring a case that challenge a policy or law that restricts access for persons with disabilities – does the person have to already experienced a personal barrier or is it enough that they are within the group that is affected by the policy or law? • Is it direct discrimination if a law or policy on its face applies restrictions to persons with disabilities? Is this an announced intention to infringe rights? Captured by s. 13?

12. Access Denied Freitagv. Penetanguishene (Municipality) (HRTO 2008 to 2011) • At least three applications challenging accessibility issues including a challenge to provision in Accessibility of Ontarians with Disabilities Act (AODA):requires advisory committee only for cities with 10,000 pop. • Applicant not a person with a disability. Applicant takes the position that he is filing in the “public interest”. • Tribunal has held that the Code does not give individuals the right to file an application in the public interest on behalf of affected members of the public. • With respect to the challenge to AODA, Tribunal found that “…. nothing in Code would give the Tribunal the power to rule on the bare question of whether legislation, in whole or in part, breaches the Code”.

13. Access Denied Shuparski v. City of Toronto, 2010 HRTO 726 (CanLII) • Challenge to Ontario Building Code against province. • Application also against condominium and municipality. Issue was failure to require power door openers. • Applicant was a person with a disability. • Condominium made the requested changes to the building. Applicant was not experiencing a personal ongoing breach. • “The Code is not designed to protect against hypothetical or even anticipated violations. It is retrospective and remedial in nature”. • Tribunal found that there was no “actual impact” on the applicant in the circumstances.

14. Systemic remedies: Beyond Training • HRLSC always asks for human rights training but we are also looking for more effective systemic remedies. Examples: • Lepofsky v. TTC, 2005 HRTO 21 (CanLII) Accessibility of public transit • Verbal announcement of all stops in a consistent audible manner • Training of all personnel on specific topics • Provision of order to all transit commissioners • Regular surveys of public, with reports to Tribunal member

15. Systemic Remedies: Example • Hughes, James Peter v. Election Canada, 2010 CHRT 4 (CanLII) Federal polling station was not accessible, despite accessibility policies. Respondent consented to systemic orders. • Commission to monitor implementation of order (although not a participant in hearing) • Creation of a plan to consult with disability community • Creation of plan to verify accessibility on election days • Review all policies and procedures • Review standard lease for all polling stations • Provide sufficient signage indicating accessibility • Training for all personnel • Create complaints procedure including public tracking of outcomes • Report back to Tribunal every 3 months • Tribunal seized until after next election

16. Systemic remedies at the HRLSC • Kacan and Yuill • Seeking an order that the two unions involved will not be allowed to picket any group home in the future • Dream Team • Seeking an order for a declaration as well as: • Remove the offending provisions of bylaws; • Cease to enforce the offending provisions of by-laws; • Take steps to address the infringement.

17. Systemic remedies at HRLSC cont’d • City contests Tribunal jurisdiction to make such orders, saying that it amounts to amending legislation • HRLSC relies on the primacy of the Code and the Tribunal’s jurisdiction to order “any party” to do “anything” that is necessary to “promote compliance”, including “anything with respect to future practices” (Code, sections 45.2(2); 47(2)) • Also relying on Druken[1989 2 FC 24 (CA), Gwinner(2004 ABCA 210), Ball (2010 HRTO 360),Hendershott(2011 HRTO 482).

18. Disability Rights in Housing DiSalvo v. Halton Condo (HRTO 2009) • Applicant required ramp to access his own condo townhouse. • Condo board refused to bear the cost notwithstanding that the area at issue was part of the condo common area. • Tribunal ordered condo to install ramp and to provide human rights training to its members. • General damages award of $12,000. • The quantum recognized the failure of the condo to meets its procedural duty – in refusing to consider alternatives and to undertake substantive discussion

19. Disability Rights in Housing Dixon v. 930187 Ontario Ltd. (HRTO 2009) • Applicant requested a transfer to a ground floor rental unit to improve his wheelchair access. • Tribunal ordered the landlord to • Allow the Applicant to rent the next available ground floor unit • Make the building wheelchair accessible • Pay the rent differential from first request • $10,000 general damages.

20. Employment issues: definition of disability • HRTO has confirmed that everyday illnesses are not covered by the Code • “emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour)… • Per Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 • eg. bronchitis; broken ankle • Anderson v. Envirotech Office Systems, 2009 HRTO 1199; Kalan v. Brick Warehouse, 2011 HRTO

21. Termination of person with a disability • Lots of callers think that they cannot be fired while they are being accommodated or on sick leave • SCC decision in Hydro Quebec confirms that this is not true • If there is no prospect of returning to work in the foreseeable future, undue hardship is met so termination is not discriminatory

22. Termination cont’d • But at what point does this kick in? • Some length of accommodation or medical leave may be a required accommodation, but eventually it will be undue hardship – will depend on particular facts • Existence of LTD a factor to be taken into account • Ford v. Peak Products Manufacturing Ltd. (2010 BCHRT 155) • BCHRT rejected employer’s argument that lack of return to work date automatically creates undue hardship • Existence of LTD taken into account – termination was prior to the policy’s waiting period

23. Impact of uncertain medical condition • De Abreo v. Humber Institute of Technology & Advanced Learning, 2010 HRTO 2404 (CanLII) • Employer offered part time position as an accommodation, instead of accommodation in regular job • This was discriminatory because medical evidence said was able to return to full time employment “in the not too distant future” • Lost wages $113K • $25K generals, described by Tribunal as “high end of the scale”

24. Procedural duty to accommodate is a separate/independent liability • A lot of problems faced by our callers involve not just whether accommodation was found, but HOW the employer has treated them • McKee v. Imperial Irrigation, 2010 HRTO 1598 • Accommodation involving less than 40 percent of regular work does not have to be continued where there is no prospect of returning to regular work in foreseeable future • Termination not discriminatory • But breach of procedural duty to accommodate because employer relied on WSIB rather than making independent inquiries about restrictions ($2000 general damages)

25. Employee duty to participate in accommodation • Employee must provide reasonable information and failure to do so may mean employer is not discriminating • Damages reduced because failure of employee to provide information • Gonneau v. Denninger, 2010 HRTO 425 • Employer should have asked for information before terminating, but employee had not been providing sufficient information along the way • No damages for loss of income and general damages reduced to $2000

26. Service animals • HRTO allows them at a hearing • HRLSC has had cases against: • Taxis • Condominium • Grocery store • Elementary school • Individuals carry letter from medical practitioner