Canada Ratifies the UN Convention on the Rights of Persons with Disabilities

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ARCH Alert June 23, 2010

Canada Ratifies the UN In a news wire released by the Canadian Convention on the Rights of Association for Community Living Persons with Disabilities (CACL), By Kerri Joffe, Staff Lawyer Executive Vice-President Michael Bach, stated: “The Convention was influenced Canada ratified the UN Convention on by a Canadian perspective and is a the Rights of Persons with Disabilities on document that all Canadians should be March 11, 2010. The Convention sets out proud of. Canadian concepts about legal obligations on States to promote inclusive education, living in the and protect the rights of people with community and supported decision- disabilities, including access to justice; making infuse the Convention. The living independently in the community; Convention also recognizes the valuable access to information and role that families play in making rights a communication; access to education and reality for their family members with health; participation in political, social disabilities. The Convention is also and cultural life; access to work; and an unique for the way it was developed. It is adequate standard of living. These legal the first time in UN history that people obligations are based on the principles affected by a treaty were actively set out in the Convention, which include engaged in the development of its text. It respect for dignity, individual autonomy, is a Convention that is informed by the freedom to make one’s own choices and lived experience of people with independence; non-discrimination; full disabilities and their families.” and effective participation in society; equality of opportunity; and accessibility. I N S I D E T H I S I S S U E 01 Canada Ratifies the UN Convention By ratifying the Convention Canada on the Rights of Persons with bound itself to this important international Disabilities treaty and signalled that it is able and Independent Reviewer of AODA willing to fulfill its obligations under the 02 Releases Report Convention. Before ratifying the Convention, Canada had signed it. 05 Government “Surreptitiously” Signing showed that Canada agreed in Changes Rights under Mental Health principle with the terms of the Convention Act and meant that Canada could not do 07 ARCH Provides Disability anything that would defeat the purpose of Perspective at Chile-Canada Human the Convention. However, Canada was Rights Conference not officially bound by the Convention 07 Legal Action Launched on until March 11, when it was ratified. Discriminatory Zoning By-laws ARCH Alert www.archdisabilitylaw.ca June 23, 2010 08 An Update on Service Animal Law in Ontario While Canada has ratified the 12 25 in 5 Network for Poverty Convention, it has not signed or ratified Reduction - Leadership Forum the Optional Protocol to the Convention. If a country signs the Optional Protocol, 12 Harmonized Sales Tax in Ontario then citizens of that country can request 15 COMMUNITY ANNOUNCEMENTS that the UN Committee on the Rights of Persons with Disabilities consider a claim The Convention could be a useful tool that their country is not complying with and holds promise for people with the rights and obligations in the disabilities. “The fact that not everything Convention. This may become an is accessible and inclusive to everyone is important way to ensure that the rights not the fault of one person, or of provided for in the Convention are not disability, or of language, or of any other violated. However until Canada ratifies thing. It’s the fault of society – of all of the Optional Protocol, this international us”, said Richard Ruston, President of avenue will not be open to Canadians. People First of Canada. “The guiding principles of this Convention speak to For more information and to read the some of the biggest issues for people Convention and/or the Optional Protocol, with disabilities – those of attitudes and see http://www.un.org/disabilities barriers. With the ratification of the Convention, Canada has made a   commitment to its citizens with disabilities – that they will not be left out Independent Reviewer of AODA of society,” Ruston said. Releases Report by Laurie Letheren, Staff Lawyer Canada’s ratification of the Convention was a significant step in confirming Under the Accessibility for Ontarians with Canada’s commitment to the principles Disabilities Act [AODA], the Ontario and obligations set out in the treaty, government must appoint a person to including the obligation to promote, undertake a comprehensive review of the protect and ensure the full enjoyment of effectiveness of this Act and the human rights by people with disabilities. regulations and report on his or her However, it remains to be seen whether findings to the Minister. In June 2009, ratification will translate into measurable Charles Beer was appointed to conduct improvements in accessibility and the first review since the AODA came inclusion for Canadians with disabilities. into effect in 2005. He was asked to This will depend on the steps that focus the review on four areas: Canada takes to implement the 1. The standards development Convention. One of the things Canada committee process must do is designate a national institution 2. The functions of the Accessibility or body to coordinate and monitor the Directorate of Ontario, including implementation of the Convention. This public education will involve working with various levels of 3. Recommendations for a repeal federal, provincial and territorial strategy for the Ontarians with governments and doing outreach to the Disabilities Act, 2001 disability community, academic 4. The role of the municipal accessibility institutions, private sector and other advisory committees. stakeholders.

2 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 Charles Beer conducted his review Let me make an observation through consultation with the community. concerning the availability and He held 90 meetings with people who importance of American Sign had first-hand exposure or specialized Language (ALS) interpreters and knowledge of the AODA. In addition, four Langue des signes québécoise (LSQ) separate roundtable sessions were held interpreters, real time captioners and with the private sector, accessibility attendant care workers. In my own groups, the transportation sector, and the consultations we experienced broader public sector (municipalities, challenges in scheduling sessions as universities and colleges, schools and a result of the limited supply of these hospitals). necessary services across the province. It became clear to me that it All members of standards development is critical for these resources to be committees were invited to complete an available in order to make it possible on-line questionnaire seeking their views for people with various disabilities to on what worked, what didn’t and how the fully participate in public forums, process could be improved. Close to 100 especially where the issues being responses were received from committee discussed relate directly to members. accessibility. As we move to 2025, strategies to increase the supply of The review made use of current these critical human resources need technology to reach people with be considered. disabilities who otherwise would not have What was heard been able to participate. Citizens with Disabilities Ontario (CWDO) organized a Participants addressed common issues webinar where more than 100 people that the report groups into four engaged in an online discussion. In categories: addition, in co-operation with CWDO, La  Leadership table provinciale francophone pour la  Implementation challenges personne handicapée held a webinar including harmonization and costs with over 40 individuals from the  Integration of the AODA with other francophone community. This approach legislation and initiatives allowed individuals across the province  The standards development to participate from home. process Videoconferences were arranged for five northern communities: Sudbury, Thunder Leadership Bay, Sault Ste. Marie, Kenora and Marathon. Many groups and individuals who were consulted felt that the More than 58 written submissions — in government has lost momentum in addition to hundreds of emails — were promoting and pursuing the objectives received from both organizations and of the AODA. Many believed that the individuals providing input for the review. fact that only one of the five standards has been passed demonstrates that Charles Beer made an important the government is way behind in its observation about the lack of services implementation of the requirements. needed to assist people with disabilities to participate fully in society stating: Others voiced their concern that the government’s failure to lead by 3 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 example to ensure that its own Interaction of AODA and Ontario programs are accessible and its failure Human Rights Code to make accessibility compliance a requirement for government funding of Many people expressed concern projects demonstrates that about the confusion and accessibility is being overlooked by misunderstanding that has arisen government in its day to day activities. around the differences between the There was an expressed need for the AODA and the Ontario Human Rights government to make a substantial Code (Code). Many participants felt investment in public education and that there needed to be greater awareness to create a culture and harmonization between these two environment to support change. laws because compliance with AODA does not necessarily mean Implementation challenges compliance with the Code. It was including harmonization and costs suggested that the AODA should have clarified the relationship between the Many presenters raised concerns that two laws. because each of the five standards is developed in isolation, they contain Standards Development Process inconsistencies and overlaps and many gaps in coverage remain. The The Report contains a fair bit of lack of alignment of the standards is discussion about the composition, role expected to increase compliance and workings of the Standards costs and make those costs hard to Development Committees. Many felt estimate. Many participants also felt that those with “invisible disabilities” that the way the standards are being such as mental health and intellectual drafted is causing confusion and disabilities were not represented on misunderstanding. committees and that process for choosing members of the committees There was much concern expressed needed to be more transparent and about the cost of implementing the consistent. Those who had been part AODA requirements and suggestions of the Committees felt they needed a were made for various government clearer understanding of their role and incentives to help offset costs. more time and assistance to understand some of the very technical Calls were heard on all sides for a items that they had to consider before massive effort to educate those voting. covered by the AODA on their compliance requirements. Conclusion and Recommendations

Members of the disability community Charles Beer concluded his report emphasized the need for a with the following statement and compliance and enforcement recommendations: mechanism. Many participants raised concerns that the government would I believe that the findings from my not be able to properly ensure that the review provide a solid basis for obligations under the standards are building on what has been met. accomplished to date in implementing the AODA. 4 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 Continued progress towards I will also be making achieving the 2025 vision will recommendations on the repeal of require action by the Ontario the Ontarians with Disabilities Act, government to: 2001 and on the role of Municipal  Harmonize the accessibility Accessibility Advisory Committees. standards before they are Together, I believe these changes finalized in regulation will address many of the key  Renew its commitment and issues raised by both the disability strengthen its leadership on community and the obligated accessibility sectors during the review.  Build awareness and educate the public about accessibility The full report prepared by Charles and the AODA and Beer can be read at  Introduce a streamlined http://www.mcss.gov.on.ca/en/mcss/p standards development ublications/accessibility/charles_beer/t process. ableOfContents.aspx To address these objectives and move forward, I am proposing that   the Government of Ontario implement the following changes: Government “Surreptitiously” 1. Harmonize the accessibility Changes Rights under Mental standards prior to releasing the Health Act remaining proposed standards By Lucy Costa, Empowerment Council as regulations Systemic Advocate and ARCH Board 2. Renew leadership for Member implementation of the AODA by: (ARCH would like to thank Lucy for her a. formally designating the contribution to this edition of ARCH Alert) Minister of Community and Social Services as the Minister On May 18th 2010, the provincial Responsible for Accessibility government held third reading and b. strengthening the Accessibility granted Royal Assent to Bill 16 which Directorate of Ontario by: was a very large government bill introduced as the budget amendment act (i) elevating the role of the but made changes to a large number of assistant deputy minister to Ontario’s laws. The bill proposed a deputy minister, and number of amendments to the Ontario (ii) focusing on renewed priorities Mental Health Act (MHA). The proposed including a public awareness changes to the MHA in this bill entitled, and education campaign to "Creating the Foundation for Jobs and support the AODA Growth Act, 2010", was first introduced 3. Amend the AODA to establish somewhat surreptitiously by Minister an arm’s-length advisory body Dwight Duncan on March 25, 2010. By — the Ontario Accessibility including proposed amendments within Standards Board — to review the budget report, the government left and develop accessibility little to no time for important consultation standards — replacing the with the psychiatric survivor/consumer standards development community for their opinion and committee process. response. This critique brought forward 5 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 by some stakeholders and mental health CTO without even locating the person organizations in last minute submissions who is going to be subject to the CTO as to the provincial government did nothing long as , “best efforts” were made by the to further an opportunity for rights advisor to locate a person. So a communication and advice before this bill person can be made the subject of a became law. CTO, or be in breach of a CTO, and potentially have no idea what a CTO is, Bill 16 essentially targeted three areas of or even that one has been issued in the MHA. The first pertained to changes her/his case. to Community Treatment Orders (CTOs) under subsection 33.1(5) and the Section 33.3(1) of the MHA provision relating to rights advice. The second change was made to section This section has been amended to make 33.3 (1) relating to Form 47 (order for it clear that when a Form 47, an order for examination) usually issued when examination, is issued, it does not someone is deemed non compliant with terminate the CTO. Form 47s are used if their CTO. Third, the bill also introduced a psychiatrist believes that a person on a a new section, 39.2 to the MHA which CTO is failing to comply with their speaks to the issue of patient transfers treatment order. This usually means that from one hospital to another. a person has not taken their medication (it’s unlikely a Form 47 would be used if a Section 33.1(5) of the MHA person failed to show up for special programming). An "Order for A Community Treatment Order is a Examination" (Form 47), gives the police proposed plan of psychiatric treatment the authority for up to 30 days to locate (predominantly medications) and the person, take him/her into custody, supervision for a person with a and return him/her to the issuing doctor. psychiatric disability in the community. At that time, the doctor will decide CTOs have historically been a whether to release the person on the contentious issue. Some argue on one same CTO, issue a new CTO, or admit side for example, that CTOs are less the person to hospital. restrictive than being detained in a psychiatric facility, while others assert While this may be advantageous in that CTOs are a sophisticated “leash law” preventing more bureaucracy and incarcerating people chemically within paperwork for hospital staff, it poses their own homes or community. more challenges for persons with psychiatric disabilities who want to The prior version of section 33.1(5) contest the value of CTOs. required that a person subject to a CTO be offered rights advice (whether such Section 39.2 of MHA offer was accepted by the person or not) as a condition necessary for the issuing Finally, section 39.2 is added to the Act. of a CTO. Now, with the passing of this It allows an involuntary patient, a person bill a psychiatrist is able to issue a CTO on their behalf, or the officer in charge of even if the person who uses psychiatric the psychiatric facility where the patient services or their substitute decision- is currently detained to apply to the maker has not spoken with a rights Consent and Capacity Board (CCB) for adviser to get informed about their rights. an order to transfer the patient to another The psychiatrist can issue or renew a psychiatric facility. Upon receiving a 6 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 transfer application, the CCB is required ARCH Provides Disability to give prompt notice of this application Perspective at Chile-Canada to the Minister of Health and to the officer Human Rights Conference in charge of the psychiatric facility named By Ed Montigny, Staff Lawyer in the application (The parties that can be on the application include the patient, ARCH staff lawyer Ed Montigny was any person who has applied on the invited to present a paper on the patient’s behalf and the officers of both promotion of the rights of persons with the current and proposed psychiatric disabilities at an international conference institutions). The Minister of Long Term entitled, “Human Rights: New Challenges Health is entitled to be heard at the for a Democratic Society, Experiences hearing and to be made a party upon the from Canada and Chile” in Santiago, Minister’s application. A transfer Chile on March 29, 2010. application may be made after the completion of the fourth certificate of The Conference, which focused on renewal of an order committing a person migrant workers, aboriginal issues and to the psychiatric facility and after the persons with disabilities, was organized completion of every subsequent fourth by the Centre for International Studies at certificate of renewal, provided that a the Pontifical Institute of the Catholic transfer application cannot be made University of Chile with support from the within 12 months of the disposition of the Government of Canada. last transfer application. In her address to the Conference, the Subsection 39.2(10) sets out criteria for Canadian Ambassador to Chile, Sarah determining whether a transfer Fountain-Smith, explained that a key application should be granted. These goal of the event was to outline the include the patient’s best interests, the situation of rights seeking groups in Chile ability of the recipient facility to provide and to outline relevant practices, policies the care and manage any risk posed by and legislation in Canada that might offer the patient, whether the transfer is likely guidance as to how to meet the to improve the patient’s condition or challenges currently faced in Chile. foster the patient’s reintegration into the community and whether or not an The status of persons with disabilities in attempt had been made to transfer the Chile was discussed by Maria Soledad patient under section 29 (hospital Cisternas, a member of the United transfers section). Nations Committee on the Rights of Persons with Disabilities. Ed Montigny While it is potentially more empowering outlined the key principles and legal tools for persons with psychiatric disabilities to employed in Ontario to defend the rights apply for a hospital transfer for a location of persons with disabilities and overcome of their choosing, it does not necessarily barriers to full citizenship and equality. mean that their request won’t be thwarted by an appeal.   The Director of the Centre for International Studies noted that while aboriginal issues have been discussed for some time in Chile and the rights of migrant workers have recently become a major topic of discussion, the rights of persons with disabilities is a fairly new 7 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 issue for public discussion in Chile. against labelled people that can still be Conference participants were particularly found in these anachronistic by-laws.” struck by the relatively high rates of Linda Chamberlain, another applicant, school attendance among Canadian referred to her long struggle with children with intellectual disabilities as schizophrenia and homelessness and well as the various legal protections in the relief of finding a supportive place to place to defend the decision making call home. capacity of persons with intellectual or mental health disabilities and people who Kathy Laird, Executive Director of the use augmentative and alternative Human Rights Legal Support Centre and communication forms. lead counsel for the applicants said “we hope these legal actions will persuade The conference papers will be published municipalities to focus on creating in a journal of the Centre for International opportunities for supportive housing Studies and circulated among instead of creating barriers.” international organizations, national and international think tanks as well as both Shortly after the applications were filed, private and public agencies dealing with Smiths Falls and Sarnia announced that human rights. they would be reviewing their by-laws. Smiths Falls’ town staff have   recommended that the city remove the by-law section that requires that group Legal Action Launched on homes be buffered from other residences Discriminatory Zoning By-laws by shrubs and the section that limits the By Laurie Letheren, Staff Lawyer total number of individuals permitted to live in these types of group homes in On February 23, 2010 eight people with Smiths Falls. In Sarnia, Mayor Mike disabilities filed applications at the Bradley announced that Sarnia has Human Rights Tribunal of Ontario removed portions of their by-laws that against four municipalities (Toronto, placed arbitrary restrictions on group Sarnia, Smiths Falls and Kitchener) that homes stating that “those restrictions had use planning laws to restrict the number nothing to do with planning and of people with disabilities who can live in everything to do with negative their city or limit the where people with stereotypes about disabled people.” disabilities can live within the city. The applicants are claiming that the by-laws The cities named in this application have that do not permit group homes to be not yet filed their responses so it is not located closer than 300 meters apart or clear what the position the other that limit the number of people in the city municipalities will take on this challenge. who can live in group homes, violate the The City of Toronto is in the process of rights of people with disabilities by having adopting its “City-Wide Zoning by-Law” a discriminatory impact on those who which contains restrictions on distancing chose to live in group homes because of between group homes. their disability. The 8 applicants are represented by the Human Rights Legal ARCH Disability Law Centre will be Support Centre. representing People First Ontario a self advocacy group of people with One of the applicants, Peter Lye, said “I intellectual disabilities who will be have become outraged at the bias seeking to intervene in this case. For 8 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 People First Ontario this case represents disability-related needs are protected by the importance of all people being able to the Code. As a result, individuals and live in their community of choice. organizations have a legal obligation under the Code not to refuse a person   entry or access to a building, premise, good or service on the basis that the person uses a service animal. If a person is accompanied by a service animal for disability-related reasons, denying entry or access to the person and his or her service animal would consequently be An Update on Service Animal discrimination on the ground of disability. Law in Ontario By Amy Spady, Articling Student Health Protection and Promotion Act In the August 2008 issue of ARCH Alert, there was an article about the legal rights Under the Food Premises Regulation to of people who use service animals for the Health Protection and Promotion Act their disability-related needs. There have (“HPPA”), live birds and animals are not been new developments in the law permitted in rooms where food is around service animals in Ontario since manufactured, prepared, processed, the publication of that article. This article handled, served, displayed, stored, sold provides a recap of the applicable or offered for sale. The Regulation to the legislation, and an update on the legal HPPA makes an exception for service rights of service animal users in Ontario dogs specifically, stating that the in light of these new developments. Regulation does not apply to “a service dog serving as a guide for a blind person What laws protect people who use or for a person with another medical service animals? disability who requires the use of a service dog, if the service dog is in an There are several pieces of legislation area of the food premise where food is that specifically address rights and served, sold or offered for sale.” restrictions for people who use service animals. These include the Ontario Accessibility Standards for Customer Human Rights Code, the Health Service Protection and Promotion Act, the Accessibility Standards for Customer The Accessibility Standards for Service under the Accessibility for Customer Service (“Standards”) came Ontarians with Disabilities Act, and the into effect on January 1, 2010. These Blind Persons’ Rights Act. Standards were made pursuant to the Accessibility for Ontarians with Human Rights Code Disabilities Act (“AODA”). These Standards are like detailed rules that The Human Rights Code (“Code”) businesses and organizations in Ontario definition of disability includes “physical will have to follow in order to identify, reliance on a guide dog or other animal.” remove and prevent barriers to This means that people who rely on a accessibility in their business or service animal to assist them with their organization. The Standards only apply 9 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 to the public sector at this point in time. They require organizations to make their What is a “service animal”? premises that are open to the public accessible to people with disabilities who When you hear the term “service animal,” are accompanied by a guide dog or the first image that may come to mind is service animal. These Standards will a guide dog used by a person with a come into effect for the private sector, visual disability. However, there is a including private businesses, non-profit broad range of animals that can be used organizations, or other service providers to accommodate the needs of people as of January 1, 2012. with a wide variety of different kinds of disabilities. For example, miniature Blind Persons’ Rights Act horses are sometimes also used as service animals for people with visual The Blind Persons’ Rights Act (BPRA) disabilities. Some people with anxiety or applies only to people who have a visual stress-related disabilities may rely on a disability and who use a guide dog. This companion animal for assistance in Act therefore provides no protection for social situations. people with other types of disabilities who rely on service animals, or for There is no definition of “guide dog” or people with a visual disability who use a “service animal” under the Human Rights service animal other than a guide dog. Code. Yet the Code protects the entire The BPRA defines a guide dog as a dog ground of “disability.” This means that the trained as a guide for a blind person and rights of people with different kinds of having the qualifications set out in disabilities to use a service animal are regulations made under the Act. This protected. The Code does not specifically suggests that in order for the protections address the scope of this protection. of the BPRA to apply, the guide dog must However, cases adjudicated by the be trained at one of the facilities set out Human Rights Tribunal of Ontario have in the Guide Dogs Regulation made interpreted the Code to give broad under the BPRA. protections to service animal users who have a variety of disabilities, including There have been proposals by different invisible, intermittent and chronic Members of Provincial Parliament to disabilities. extend the rights contained in the BPRA to people with other kinds of disabilities, According to the Food Premises rather than only those who have a visual Regulation under the Health Protection disability. One bill proposed in May 2008 and Promotion Act, a dog is a service sought to rename the existing BPRA the dog if it is readily apparent to an average Persons with Disabilities Rights Act, and person that the dog functions as a extend the protections to people with service dog for a person with a medical other disabilities who require a service disability, or if the person can provide on dog. In November 2009, a similar bill was request a letter from a physician or nurse proposed by a different MPP to establish confirming that the person requires a a new Act called the Disabled Persons’ service dog. This definition also Service Dogs Act. Neither of these encompasses service dogs for people proposed bills has yet become with invisible, intermittent, and/or chronic legislation, and it is unclear whether they disabilities. will be picked up in future sessions of the Legislative Assembly. 10 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 The definition of “service animal” under the Accessibility Standards for Customer Can service animals be lawfully Service is almost the same as the excluded from certain places? definition under the HPPA. The Standards state that an animal is a The only restriction specifically set out in service animal if it is readily apparent that provincial legislation is in the Food the animal is used by the person for Premises Regulation to the HPPA. The reasons relating to his or her disability, or HPPA makes an exception to the if the person provides a letter from a prohibition on animals in certain places in physician or nurse confirming that the order to permit service dogs, but not person requires the animal for reasons other service animals in areas where relating to the disability. Again, this food is served, sold, or offered for sale. definition encompasses service animals By omission the Regulation is saying that used by people with invisible, intermittent service dogs are not permitted in areas and/or chronic disabilities. where food is manufactured or prepared for public consumption. However, the Does an animal need to have HPPA does not say that the Human certification in order to be classified Rights Code does not apply to the HPPA as a service animal? as a whole, or certain provisions of the HPPA. This means that a person could The existing provincial legislation and still make a human rights complaint case law from the Human Rights Tribunal under the Code if not permitted to bring of Ontario does not suggest that service his or her service dog into a place where animals for disabilities other than visual food is manufactured or prepared. The disabilities are required to be certified as person denying access would have to service animals. In the Robdrup v. J. justify his or her decision by showing that Werner Property Management case, the permitting the service dog in the space Tribunal accepted that a dog that had not would cause undue hardship. yet received formal training as a service dog was nonetheless a personal support Under the Accessibility Standards for animal because it was clear that the dog Customer Service, if the service animal is supported the applicant with respect to excluded from the premises by another some of his disability-related needs. law, the organization must ensure that alternate means are available to enable It is very important to be able to prove the service animal user to access the that the service animal accommodates a goods and services. It should be kept in disability-related need, such as by mind that this is still subject to the providing a letter from a doctor which requirements of the Human Rights Code, states that a service animal is required since the Code prevails over provincial and the reasons why. Even though legislation including the Accessibility certification is not required by law, it may Standards for Customer Service. still be a good idea for people who use a service animal to carry certification at all What questions can legally be asked times as proof that the animal is trained of people who use service animals? and certified as a service animal. Having this certification can make it easier for It is not clear what can and cannot legally people who use service animals to assert be asked of a service animal team their rights when accessing public entering a public place. There is no spaces and services. legislation which makes clear the 11 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 obligations of either the owner of the Allarie v. Rouble that the letter would premises or the person using the service have to state what those disability-related animal. Generally, a person with a needs are. This suggests that the disability has no obligation to answer the disability does not need to be stated in question: “What is your disability?” with the letter, nor provided in response to respect to the use of a service animal or specific questions about the nature of the otherwise. disability.

However, case law from the Human In the Robdrup v. J. Werner Property Rights Tribunal of Ontario has found that Management case, the Tribunal found it is not unreasonable for a service that when a service provider is notified by provider to ask for identification and the person that he or she has disability- medical documentation to show that the related needs, the service provider has a animal functions as a service animal for duty to make meaningful inquiries about the person’s disability-related needs. In those needs to determine whether or not the case of Allarie v. Rouble, the Tribunal a duty to accommodate exists. This duty found that since the dog was not marked of the service provider means that they and not behaving in a manner that would are required to ask certain questions to make it obvious that it was a service dog, determine the extent to which it was reasonable for the service provider accommodation is required. However, to ask for identification or medical the question “What is your disability?” documentation showing that the dog was would arguably not be essential or a service animal. However, the Tribunal appropriate for the service provider to also held that a simple doctor’s note is ask in the course of making this sufficient to establish that the dog being determination. The service provider could relied upon is a service dog. In making determine whether a duty to this finding, the Tribunal noted that accommodate exists by asking less people with less visible disabilities, such intrusive questions, such as “What are as mental health disabilities, could be your accommodation needs?” subjected to more onerous standards than other people with disabilities if If you have questions about service service providers were allowed to look animal law in Ontario, a lawyer at ARCH behind medical evidence and decide for may be able to provide you with advice themselves whether the dog is a service through our Summary Advice and animal. Referral service.

As a means of balancing these   obligations, the Tribunal held that it would be appropriate for a service provider to request medical evidence where it is not immediately obvious that 25 in 5 Network for Poverty the animal is supporting a disability- Reduction - Leadership Forum related need. Based on this case, it is a By Laurie Letheren, Staff Lawyer good idea for people who use a service animal to get a letter from a healthcare Many activists from community provider stating that the service animal is organizations across Ontario came required to accommodate the person’s together in Toronto on May 18, 2010 for disability-related needs. There is no the 25 in 5 Network for Poverty indication in the Tribunal decision in Reduction [Network] Leadership Forum 12 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 to learn more about the Network’s latest submitted their report to the government activities, to share poverty reduction that outlines their list of strategies that have been undertaken in recommendations and terms of reference various communities and to discuss the for the provincial government’s promised possible next steps for the and priority review of social assistance programs. issues for the Network in preparation for The report is to be publicly released the next provincial budget and election. soon. For more information on this review see The Minster of Children and Youth http://www.mcss.gov.on.ca/en/mcss/saco Services, Laurel Broten, provided the uncil/index.aspx. opening remarks. She stated that the Liberals are fully committed to reducing To learn more about the 25 in 5 Network poverty and pointed to the increase in for Poverty Reduction and keep informed health care spending, increase in social on their work visit: www.25in5.ca assistance rates and the preservation of childcare spaces in Ontario as examples   of this commitment. Harmonized Sales Tax in Ontario NDP Poverty Critic Michael Prue (this article is reproduced from the emphasized the need to raise the OW Income Security Advocacy Center’s and ODSP rates to levels that covered website at the true cost of living. Conservative http://www.incomesecurity.org/index.html Environment Critic, Toby Barret, spoke ) about his party’s plans to reduce poverty through job creation and incentives for Beginning July 1, 2010, the two sales employers to hire people with disabilities. taxes Ontarians pay (GST & PST) will be combined into one tax: the Harmonized Before this meeting, the Network had Sales Tax (HST). What will this mean for identified themes and priority issues to people on OW and ODSP in Ontario? be the focus of discussion. These themes were: sustaining employment What is the HST? (good jobs, living wage, training Currently Ontarians pay two taxes when opportunities, better enforcement of we buy goods and services: the GST (a employment standards), livable incomes federal tax of 5%) and the PST (a (increase in social assistance rates, provincial tax of 8%). The HST will housing benefits, food allowance), and combine the GST and PST into one 13% building strong and supportive sales tax. This means that we will pay communities (affordable housing, child the same total amount of tax for many care, education, and transit). Groups things we buy as we did when we paid suggested ways in which work in these the GST and PST separately. issues could move forward both in work to engage government and within What’s different is that we will have to individual communities. The Network will pay the HST on some goods and be using the ideas and suggestions that services that we didn’t have to pay PST come out of these discussions as the on before. Some examples are home basis for their ongoing work. heating fuels and certain kinds of services. We also learned that the Social Assistance Review Advisory Council has 13 ARCH Alert www.archdisabilitylaw.ca June 23, 2010

Doesn’t this just mean I’ll have less money? Everyone in Ontario will pay tax on some items and services they weren’t paying What are the tax changes that will tax on in the past, so some things will help with the HST? cost more. 1) New sales and property tax credits • Instead of one sales and property tax The government is making other credit, as is now the case, there will be changes to the tax system – higher tax two credits: a sales tax credit and a credits and lower tax rates – that they property tax credit. say will help people deal with this extra expense. These changes are outlined • The sales tax credit will be up to $260 below. per adult and child in low- and middle- income families, reduced by 4% of There is one important thing to adjusted family net income over $20,000 remember about the changes to the tax (for single people) and $25,000 (for system – you have to file an income families). tax return every year to get the benefits . This credit will be paid four times a of these changes. year, starting in July 2010 – this is similar to the GST credit that many What about people who don’t file tax people on OW or ODSP receive returns? now. The tax credits and reductions in . People getting OW or ODSP personal income tax outlined on page 2 benefits will get either the maximum are meant to help make up for the new credit or a credit very close to the sales tax people will be paying. maximum, because of the low amount of income that is provided For those people who don’t file taxes, by OW and ODSP. the cost of the HST will be high. They will have no tax credits or income tax • The property tax credit will be based on reductions to balance the additional sales either the amount of property tax you pay tax on goods or services. or 20% of your rent, up to $250 for non- seniors or $625 for seniors and 10% of Those people on social assistance who occupancy cost. The credit will be don’t file tax returns will have to start adjusted by 2% of family net income over doing so in order to get these benefits. $20,000 (for single people) and $25,000 See “How do I file my taxes?” below for (for families). help with tax returns.: . This credit will reduce the amount of Tax (HST income tax you have to pay. This Why is the government “harmonizing” credit starts beginning with the 2010 sales taxes? tax return (that is, next year’s tax The government says that harmonizing return). sales taxes will reduce the taxes of companies that manufacture things. They 2) New personal income tax say that those companies will then reductions reduce their prices or have money to hire • The tax rate will be reduced by 1% for more employees, which will benefit the lowest income bracket (earnings of Ontarians. 14 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 up to $36,848 a year), from 6.05% to For more information on which items are 5.05% as of January 1, 2010. exempt, call Service Ontario at 1-800- 267-8097, TTY toll-free at 1-800-268- • There is also a new Ontario Tax 7095, or in Toronto at (416) 326-1234. Reduction of up to $205 per person (the Or, check this website: person who files the tax return) plus $379 http://www.rev.gov.on.ca/en/taxchange/c per child, disabled or infirm dependent. onsumers.html.

3) Transitional benefit Overall, what does this mean for me? • The provincial government will give The Canadian Centre for Policy people a short-term “transitional benefit” Alternatives (CCPA) released a report in to December 2009 that looks at the impact reduce the impact of the HST while of the HST and the tax changes intended manufacturers sort out the prices of their to help make the HST more affordable. goods. They found that overall Ontarians will not be much better or worse off as a • The maximum benefit will be $300 for a result of the HST: single or $1000 for single parents or • Individuals or families with incomes couples. between $10,000 from $20,000 will be better off by an average of $90. • The transitional benefit will be paid in three installments, beginning in August • Individuals or families with incomes 2010 and ending in June 2011. In other between $20,000 and $30,000 will gain words, this is not a permanent benefit. the For people on OW or ODSP, the two most, with an average of $136 more per changes that will help the most are the year once credits and income tax refundable sales tax credit and the changes are calculated. transitional financial assistance benefit. Neither of these credits will be taken off Not every group in society is affected in people’s OW or ODSP cheque – they are the same way by the HST or the credits “exempt income”. and income tax changes. However, since most people on OW or ODSP have Which items are exempt from the incomes between $7,000 and $25,000, HST? most people receiving social assistance Books, diapers, children’s clothing and will benefit from the tax changes. footwear, children’s car seats and car booster seats, fast food (costing $4 or But remember – in order to benefit from less), newspapers, and feminine hygiene these tax changes, you have to file a tax products will be exempt from the return. provincial portion (8%) of the HST, so we won’t have to pay that amount on Other impacts of the HST: these items. There are many things we don’t know about how much this change in sales tax Other items, such as basic groceries, will affect people. For example, we don’t prescription drugs, and child care, will know how the economy will be over the continue to be fully exempt – we won’t next few years or how many jobs will be have to pay the 13% HST on these lost or created. items.

15 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 We don’t know whether businesses will assistance and other low income people reduce prices on goods and services due get help in filing their taxes. to the money they will save from the ► General Income Tax and Benefit HST, like the government says they will. forms can be found at: http://www.craarc. And we don’t know yet how much gc.ca/E/pbg/tf/5006-r/README.html families will save at the cash register ► Some places in Ontario hold free because of exemptions. income tax preparation clinics for people with low incomes. To find a place near However, it is important to remember that you call 1-800-959-8281, or check these taxes help us as communities to pay for websites: the things we all need: health care, . If your income is under $25,000 (or police, education, social services, and so under $30,000 for a family with one on. child): http://www.craarc.gc.ca/tx/ndvdls/vlntr/clncs/on- There is a debate going on about eng.html whether it is fair to increase “consumption taxes” (taxes that people How do I get more information about pay on things that they buy) instead of the HST? making changes to “income taxes” (taxes ► To read the entire report “Not a Tax that people pay on the money they earn). Grab After All: A Second Look at This is because low-income people end Ontario’s HST”, go to up paying more of their income when http://www.policyalternatives.ca/publicati they buy things than higher-income ons/reports/hst people do when everyone pays the same ► See the Ontario government’s 13% taxes. explanation of how the tax changes will ISAC will continue to monitor the affect you, at implementation of the HST to see what http://www.rev.gov.on.ca/en/taxchange/fa impact the tax changes will have for milies.html people on OW and ODSP.   And ISAC is working with the 25 in 5 Network for Poverty Reduction, other COMMUNITY ANNOUNCEMENTS partners, and officials in the Ministry of Revenue to make sure that the Human rights commission e-learning government takes action to help people (ON) file their taxes, and to reduce other barriers to tax filing. The Ontario Human Rights Commission has launched Human Rights 101, the first How do I file my taxes? in a series of eLearning modules on Filing your taxes is the best way you can human rights. Human Rights 101 users make sure to receive the credits and will be able to learn about human rights income tax reductions you are entitled to information from anywhere they have under this new tax system. internet access. Created to be accessible to a wide range of users, students, office ISAC and the 25in5 Network for Poverty or factory workers, employers or those Reduction have asked the government to new to Canada will be able to get fund income tax clinics across the information on human rights history, province to help people on social principles, legislation and policies at the click of a button any time of the day. After

16 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 working through the various sections, To attend you must RSVP to this event users can also take a quiz at the end to as seating is limited. Contact Karen Bell see how much they have learned. Here at [email protected] or 416-968-0650, is the ink to Human Rights 101: ext. 2299. Space is limited. RSVPs will http://www.ohrc.on.ca/hr101/ be taken on a first-come, first-served basis. Wheelchair seating is available but REACH Canada Seminar on Chronic limited. Please RSVP early. Pain The event is hosted by Community Living DATE AND TIME: June 25th, 2010, Toronto in partnership with: 12:00 – 2:00 LOCATION: REACH Canada, Bloorview Kids Rehab 400 Coventry Road, 3rd Floor (Enbridge CNIB Building) Ottawa Community Living Ontario A light lunch will be served!!! March of Dimes Canada Surrey Place Centre Scholarships are available for people with disabilities. For more information Check ARCH’s website occasionally feel free to contact us. Phone: 613-236- at www.archdisabilitylaw.ca for 6636 Email: [email protected] notification of another Toronto Mayoral Debate being planned in mid Cost per session: $25 persons with to late September on disability issues. disabilities, $10 seniors & students, $50 social/health service agencies & family members, $75 government, corporate, lawyer. Please register online at www.reach.ca

Toronto Mayoral Candidates Meeting

Make Toronto Yours. Focus on the issues that matter most to people with disabilities by attending a Toronto Mayoral Candidates Meeting:

DATE: Tuesday, June 29, 2010 TIME: 6 – 8 pm WHERE: Innis College Town Hall, 2 Sussex Avenue, U of T Campus.

Moderated by TV Ontario’s Steve Paikin and attended by:

Giorgio Mammoliti, Joe Pantalone, Rocco Rossi, George Smitherman and Sarah Thomson.

17 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 The ODSP Action Coalition presents: • Launch of the ODSP Action Telling Our Stories: Disability Should Coalition’s Disability Declaration Not Equal Poverty • Photo exhibit by community activist Cheryl Duggan DATE: Wednesday, July 7th *NEW DATE* TIME: 1pm-5pm Displays, information tables and WHERE: Metro Hall Rotunda, 55 John networking throughout the event St. Toronto (Near University Avenue and Light Refreshments will be served. TTC King St. West) tokens available for low-income people

Program Highlights: For more information or to request • Panel discussion on ODSP and attendant care services, ASL or Real human rights moderated by Carol Time Captioning, please contact Naomi Goar, Editorial Columnist - Toronto Berlyne at 416 539-0690 ext 258. Star • Personal stories told by individuals on Requests for special needs services ODSP must be made by June 28.

Publications at ARCH

ARCH writes or publishes papers, articles and fact sheets from time to time. Some of these materials are available on our website. We are providing a list of our current publications available to the public via our website, e-mail or by mail. To access any of the publications on ARCH’s website, please go to http://www.archdisabilitylaw.ca/publications/index.asp. If you are unable to access them online and would like to have a publication sent to you, please contact Theresa at ARCH, providing her with the specific publication and how you would like to receive it (by mail or e-mail) at:

Tel.: 416-482-8255 Toll-free: 1-866-482-2724 TTY: 416-482-1254 Toll-free: 1-866-482-2728 or by e-mail at [email protected]

DISCLAIMER: THESE PUBLICATIONS PROVIDE INFORMATION ONLY AND THEY SHOULD NOT BE CONSIDERED TO BE LEGAL ADVICE. THE CONTENTS REFLECT THE LAWS THAT WERE CURRENT AT THE TIME OF WRITING OR UPDATING AND THE LAW MAY HAVE CHANGED SINCE THAT DATE.

TITLE DESCRIPTION

Fact Sheets

18 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 Mental Health Fact Sheets, Two fact sheets which contain information for people who use December 2008 or have used mental health services and supports. One fact sheet provides information about human rights and the right to be free from discrimination. The second fact sheet provides information about the right to language interpretation services at Courts and Tribunals. Assistive Devices Fact Sheets, A series of three fact sheets on assistive devices for people June 2008 with disabilities.

Fact Sheet on Interacting with These fact sheets provide general tips on how to interact with Persons with Disabilities, people in a manner that best accommodates their disability. December 2007

Workshops ARCH Presentation on Human This is a power point presentation that provides legal Rights in Employment, March information about the rights of people with disabilities in 2010 employment situations. The presentation provides an outline of Human Rights Code protections and also contains some information about the Accessibility for Ontarians with Disabilities Act. ARCH Lawyers present at ARCH staff lawyers attended the 2nd international conference International Conference on at the University of Warsaw, Poland entitled ‘Education for All’. Inclusive Education, Human Our presentation discussed a human rights approach to Rights and Universal Design, education and ways in which universal design can be September 2009 incorporated into the delivery of education services.

Continuing Legal Education Materials ARCH Presents at CAPSLE ARCH staff lawyers, Kerri Joffe and Robert Lattanzio, presented 2010 Conference: April 25-27, at the 2010 CAPSLE Conference in Calgary on Inclusive 2010. Education and the United Nations Convention on the Rights of Persons with Disabilities. Addressing the Capacity of This report summarizes the procedures available to people with Parties before Ontario’s capacity issues before selected administrative tribunals in Administrative Tribunals: Ontario. Respecting Autonomy, Protecting Fairness, November 2009 Addressing the Capacity of This Guide offers concrete strategies and options to lawyers Parties before Ontario’s representing people with capacity issues before administrative Administrative Tribunals: A boards and tribunals. Practical Guide for Ontario Lawyers, October 2009 Providing Legal Services to This article is intended to be a resource for lawyers on People with Disabilities – LSUC representing clients who have disabilities. Article, April 2009

19 ARCH Alert www.archdisabilitylaw.ca June 23, 2010 Notes on Capacity to Instruct This paper was prepared for a November 2003 continuing legal Counsel, November 2003 education program titled ‘A Disability Law Primer’. It reviews some central concepts regarding capacity and provides a practical starting point for lawyers in determining whether their clients have capacity to instruct.

Articles and Position Papers Federal Disability Act: This paper was commissioned by the Council of Canadians with Opportunities and Challenges, Disabilities (CCD) and the Canadian Association for Community October 2006 Living (CACL). The paper considers what a Federal disability act might look like and what its reach could be.

20 ARCH Alert www.archdisabilitylaw.ca June 23, 2010

Donating to ARCH While ARCH receives core funding from Legal Aid Ontario and grant funding from other sources, we also rely on the donations from individuals. We ask you to consider being a part of our work by contributing whatever you can. If you are able to assist please donate to ARCH through www.canadahelps.org . Or you can send your donation cheque to: Office Manager ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R5 We will promptly send you a charitable receipt. Charitable No. 118 777 994 RR 0001

Become a Member of ARCH If you would like to become an individual member of ARCH, please visit our website at www.archdisabilitylaw.ca or contact our office to request an Application for Individual Membership form. Membership is free.

ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e- mail or mail to ARCH members, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both PDF and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01. Editor: Laurie Letheren Production & Circulation: Theresa Sciberras We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Program and Litigation Assistant, ARCH Disability Law Centre, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981 or 1-866-881-2723, TTY: 416-482-1254 or 1-866-482-2728, e-mail: [email protected] Website: http://www.archdisabilitylaw.ca/