ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
CHAIR
David Lepofsky, CM, O. Ont. Chair, Accessibility for Ontarians with Disabilities Act Alliance Visiting Professor, Osgoode Hall Law School Co-Chair, Barrier-Free Canada
April 6, 2017
cpd (Continuing Professional Development)
*CLE17-0040100-A-PUB*
The Law Society of Upper Canada| Barreau du Haut-Canada
DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.
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Ensuring Access to Your Law Office and Services for People with Disabilities
ISBN 978-1-77094-590-6 (PDF) ISBN 978-1-77094-589-0 (Microsoft Word)
cpd (Continuing Professional Development)
cpd (Continuing Professional Development)
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
Chair: David Lepofsky, CM, O. Ont., Chair, Accessibility for Ontarians with Disabilities Act Alliance; Visiting Professor, Osgoode Hall Law School; Co-Chair, Barrier-Free Canada
April 6, 2017 4:00 p.m. to 6:00 p.m. Total CPD Hours = 2 h Professionalism
The Law Society of Upper Canada 130 Queen Street West Toronto, ON
CLE17-0040100
Agenda
4:00 p.m. – 4:10 p.m. Welcome and Opening Remarks
David Lepofsky, CM, O. Ont., Chair, Accessibility for Ontarians with Disabilities Act Alliance; Visiting Professor, Osgoode Hall Law School; Co-Chair, Barrier-Free Canada
1 4:10 p.m. – 4:25 p.m. Overview of AODA Requirements, Conducting a Barrier Audit
Geordie Gibbon, Manager, Public Education and Partnerships Unit, Accessibility Directorate of Ontario
4:25 p.m. – 4:40 p.m. Practical Strategies for Making Your Law Office’s Built Environment Accessible
Thea Kurdi, DesignABLE Environments Inc.
4:40 p.m. – 4:55 p.m. How to Make Your Law Office Digitally Accessible with Accessibility of Your Website and Documents
Sambhavi Chandrashekar, Accessibility Program Manager, D2L, Adjunct Professor, Inclusive Design Research Centre, OCAD University
4:55 p.m. – 5:05 p.m. Questions and Answers
5:05 p.m. – 5:50 p.m. Panel Discussion of Practical Ideas to Make Your Law Practice Accessible to Clients with Disabilities
Colleen Bauman, Goldblatt Partners LLP
Robert Lattanzio, Executive Director, ARCH Disability Law Centre
Cynthia Petersen, Discrimination and Harassment Counsel, The Law Society of Upper Canada
Joanne Silkauskas, Executive Director, ReachCanada, Equality and Justice for People with Disabilities
5:50 p.m. – 6:00 p.m. Questions and Answers
6:00 p.m. Program Ends
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ENSURING ACCESS TO
Your Law Office and Services for
People with Disabilities April 6, 2017 THE NEW OBLIGATIONS SKU CLE17-0040100
Table of Contents
TAB 1 Overview of AODA Requirements, Conducting a Barrier Audit
Easy first steps ...... 1 to 1
Geordie Gibbon Manager, Public Education and Partnerships Unit Accessibility Directorate of Ontario
TAB 2 Practical Strategies for Making Your Law Office’s Built Environment Accessible
Tip Sheet – Accessible Office Spaces ...... 1 to 1
Thea Kurdi DesignABLE Environments Inc.
TAB 3 How to Make Your Law Office Digitally Accessible with Accessibility of Your Website and Documents
Digital Accessibility Tips and Resources ...... 1 to 1
1
Sambhavi Chandrashekar Accessibility Program Manager, D2L, Adjunct Professor Inclusive Design Research Centre OCAD University
TAB 4 Practical Ideas to Make Your Law Practice Accessible to Clients with Disabilities
Providing Legal Services for People with Disabilities ...... 1 to 43
Interacting with Persons who have a Disability ...... 44 to 58
Robert Lattanzio, Executive Director ARCH Disability Law Centre
Helpful Resources ...... 59 to 59
Cynthia Petersen, Discrimination and Harassment Cousnel The Law Society of Upper Canada
Resources and Links (Reach Canada) ...... 60 to 61
Joanne Silkauskas, Executive Directo ReachCanada, Equality and Justice for People with Disabilities
TAB 5 Tips
Considerations for Law Firms ...... 1 to 1
Colleen Bauman, Goldblatt Partners LLP
Reach Canada ...... 2 to 2
Joanne Silkauskas, Executive Director, ReachCanada, Equality and Justice for People with Disabilities
General starting points and suggestions regarding disability Related accommodations and accessibility ...... 3 to 3
Helpful materials as a resources as a starting point ...... 3 to 4
Robert Lattanzio, Executive Director ARCH Disability Law Centre
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Sample Memorandum Re: Designating an Office Point Person on Disability Accessibility and Accommodation ...... 5 to 5
David Lepofsky, CM, O. Ont. Chair, Accessibility for Ontarians with Disabilities Act Alliance Visiting Professor, Osgoode Hall Law School Co-Chair, Barrier-Free Canada
TAB 6 Brief to the Ontario Government on Necessary Revisions to the 2007 Customer Service Accessibility Standard (March 15, 2016) ...... 1 to 14
Prepared by: Accessibility for Ontarians with Disabilities Act Alliance
ARCH Disability Law Centre
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The Law Society of Upper Canada| Barreau du Haut-Canada
TAB 1
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
Overview of AODA Requirements, Conducting a Barrier Audit
Easy First Steps
Geordie Gibbon Manager, Public Education and Partnerships Unit Accessibility Directorate of Ontario
April 6, 2017
cpd (Continuing Professional Development
Easy first steps: Ontario has accessibility laws. For a complete list of your organization’s requirements visit - www.ontario.ca/accessibility Use these free online resources to complete training requirements, and learn about accessible customer service - http://www.accessforward.ca/training Train your staff on how the Ontario Human Rights Code AODA work together - http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda Use this toolkit to make your workplace more accessible to employees with disabilities - http://www.conferenceboard.ca/accessibility/toolkit.aspx If your business or non-profit has 20 or more employees you are required to file a 2017 accessibility compliance report by December 31, 2017 - www.ontario.ca\accessibilityreport.
We can help. Contact the AODA Help Desk at: Email: [email protected] Toll-free: 1-866-515-2025 TTY: 416-325-3408 / 1-800-268-7095
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The Law Society of Upper Canada| Barreau du Haut-Canada
TAB 2
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
Practical Strategies for Making Your Law Office’s Built Environment Accessible
Tip Sheet – Accessible Office Spaces
Thea Kurdi DesignABLE Environments Inc.
April 6, 2017
cpd (Continuing Professional Development)
Tip Sheet - Accessible Office Spaces
Simply put, it’s about equal access and a welcoming environment for a variety of needs and abilities – mobility, vision, hearing, cognitive, hand function, arm function, aging, etc. Create an office that serves a lifetime of changing needs and abilities. Here’s our top 5 get started items: 1. Office entrance – entry door may or may not be part of the base building – check your lease a. Power operator at the front door; b. Door handles lever hardware and door edge that’s colour contrasted; c. Door frame is colour contrasted to wall; d. Door threshold needs to be flush with the rest of the floor; and e. Clear door width of at least 860mm but better if it’s 950mm. 2. Interior Path of Travel – part of the leased space a. Any vestibule with doors in series requires at least 1500mm measured from the open door. If the doors are at right angles a turn space of at least 1500mm, recommend at least 2100mm; b. Clear path at least 1100mm but recommend 1800 for main paths and at least 1800mm turn spaces at decision making points; and c. Provide from entrance to all facilities within the office for both public and staff. 3. Reception area – part of the leased space a. Counter height no more than 865mm; b. Good lighting for lip reading; c. Hearing loop system for people with hearing aids and a sign so people know you have it; and d. Seating area that’s on an accessible route with the space at least 850x1370mm for a person using an assistive device clear floor beside and in-line with other chairs. For people with service dogs provide a seat with space of at least 900x900 immediately next to the chair for their guide dog. 4. Offices, Meeting rooms, Photocopy, Kitchen and other areas – part of the leased space a. Accessible door with hardware, colour contrast and clear width; b. Accessible desk or table height with clear knee space. No pedestal tables. Ensure tables are on on accessible route; c. Accessible path to all user elements like side tables or presentation area; d. Clear knee space under the microwave and sink. The microwave which is placed at counter height and can be used from the front for safety; e. Hearing loop system – portable or hard-wired if room seats 6 or more; and f. Consider providing a power door operator or rough-in the electrical it’s so less expensive to add later if needed or as soon as your budget allows.
Image description: Showing the connection of the accessible path from parking, drop-off and transit stops connected to the accessible route inside the building. Image Source: https://adata.org/factsheet/parking by ADA National Network; Accessed: April 2, 2017
The Law Society of Upper Canada| Barreau du Haut-Canada
TAB 3
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
How to Make Your Law Office Digitally Accessible with Accessibility of Your Website and Documents
Digital Accessibility Tips and Resources
Sambhavi Chandrashekar Accessibility Program Manager, D2L, Adjunct Professor Inclusive Design Research Centre OCAD University
April 6, 2017
cpd (Continuing Professional Development
LAW SOCIETY OF UPPER CANADA: ENSURING ACCESS TO YOUR FIRM’S OFFICE AND SERVICES FOR PEOPLES WITH DISABILITIES
DIGITAL ACCESSIBILITY TIPS and RESOURCES Prepared by Sambhavi Chandrashekar, D2L / Inclusive Design Research Centre
Accessible Websites Tips Images: provide alternative text descriptions Colour: do not convey information using only colour Contrast: ensure enough contrast between the text and background colours Captions: provide text description for audio content and captions for video content Keyboard access: ensure all input controls are reachable by keyboard Focus: ensure focus is visible on current location Control labels: provide labels for buttons, check boxes and other controls Links: name links descriptively to indicate which web page they lead to Forms: provide labels for form fields to indicate what goes into each of them Page content: organize content by a hierarchy of headings and use heading styles Reading order: ensure that order of content in the code is the same as visual order Language: use simple writing style; and indicate the language of the content Downloadable PDF and Word documents: ensure they are created to be accessible Resources W3C tips for getting started with Web Accessibility Teach Access Tutorial
Accessible Digital Documents Tips Provide text alternatives for images and graphical content Specify the language of the content in the document meta data Use heading styles to organize content; use built-in document structures Use true numbered and bulleted lists to emphasize a point or a sequence of steps. Make content easier to see by using accessible fonts and sizes and good colour contrast Make content easier to understand; keep it simple; use meaningful hyperlink texts Create accessible templates for routine communication. Templates also help in projecting branding and help maintain consistent document quality with minimal copy- editing errors.
Resources Accessible Digital Office Documents Project Accessible Documents Cheatsheets WebAIM – Microsoft Word
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The Law Society of Upper Canada| Barreau du Haut-Canada
TAB 4
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities Panel-Practical Ideas to Make Your Law Practice Accessible to Clients with Disabilities
Providing Legal Services for People with Disabilities and Interacting with Persons who have a Disability Robert Lattanzio, Executive Director ARCH Disability Law Centre
Helpful Resources Cynthia Petersen, Discrminiation and Harassment Cousnel The Law Society of Upper Canada
Resources and Links (Reach Canada) Joanne Silkauskas, Executive Director ReachCanada, Equality and Justice for People with Disabilities
April 6, 2017
cpd (Continuing Professional Development
Chapter 2
Providing Legal Services for People With Disabilities1
September 2013
Current to September 2013. Anyone intending to rely on this paper should conduct their own research for updates in the legislation and jurisprudence.
1 This article is a revision and update of a number of previous, similar articles written by ARCH lawyers, the first written in 1988. Because the concept of disability and relevant laws evolve over time, this article will always be a work in progress. ARCH welcomes comments and questions regarding the provision of legal services to clients with disabilities.
TABLE OF CONTENTS
I. UNDERSTANDING, DEFINING, AND DESCRIBING DISABILITIES ...... 3 A. Understanding Disability ...... 3 B. Disability Models ...... 4 C. Prevalence of Disability in Canada: Most Lawyers will Represent Clients with Disabilities ...... 6 D. Appropriate Language and Terms Describing Disabilities ...... 9 E. Understanding of “Disability” in Jurisprudence and Legislation ...... 10 II. PARTICULAR LAWS AND LEGAL CONCEPTS RELATING TO DISABILITY ...... 13 A. The Duty to Accommodate Disability ...... 13 B. The United Nations Convention on the Rights of Persons with Disabilities ...... 14 C. The Accessibility for Ontarians with Disabilities Act, 2005 ...... 17 III. THE RULES OF PROFESSIONAL CONDUCT AND CLIENTS WITH DISABILITIES ...... 21 A. General ...... 21 B. “Client Under a Disability” and Capacity to Instruct Counsel ...... 21 C. Discrimination and Accommodation ...... 23 IV. GENERAL INFORMATION REGARDING DISABILITIES AND PRACTICAL CONSIDERATIONS FOR ACCOMMODATING CLIENTS ...... 25 A. General ...... 25 B. Deaf People and People with Hearing Loss ...... 28 C. Vision Disabilities ...... 32 D. Communication Disabilities ...... 33 E. Disabilities that Affect Mobility ...... 35 F. Mental Health/Psychiatric Disabilities ...... 36 G. Intellectual/Developmental Disabilities ...... 38 H. Learning Disabilities ...... 39 V. WEB RESOURCES ...... 40 Appendix A ...... 43
I. UNDERSTANDING, DEFINING, AND DESCRIBING DISABILITIES
“Disability” is a complex concept. While this paper provides basic information about disabilities and how disabilities are treated in law, the concept of disability, as well as relevant legislation and jurisprudence, are ever-evolving. A lawyer’s best assets in representing clients with disabilities are to keep an open mind and be willing to learn. When in doubt, lawyers should ask clients what living with a disability means for them.
A. Understanding Disability
Disabilities traditionally were regarded as being divisible into two categories: physical disabilities (e.g., paraplegia and arthritis) and mental disabilities (e.g. schizophrenia and depression). It has more recently been understood that many disabilities have both a “physical” and a “mental” component, and that these components are not easily separated or differentiated. Some disabilities involve multiple components, such as physiological, psychological, cognitive, sensory, neurochemical, etc. For example, acquired brain injuries may affect both mobility and emotional functioning. Multiple sclerosis may affect memory as well as mobility.
Legal recognition of disabilities is dynamic. Previously unrecognized disabilities are being identified and distinguished from others. For example chronic fatigue syndrome,2 chronic pain syndrome,3 fibromyalgia and environmental sensitivities4 have more recently been considered disabilities in law. There are also conditions that are recognized as disabilities by health care practitioners but are not recognized as disabilities in law. Similarly, the law recognizes some disabilities which health care practitioners do not.
Some disabilities are highly visible while others may not be apparent from a person’s appearance. The Ontario Human Rights Commission refers to the latter disabilities as
2 Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39. 3 Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54,at para. 1; Jeffrey v. Dofasco Inc.,2004 HRTO 5 (CanLII) at paras. 186-192. 4 Guibord v. Canada, [1997] 2 F.C. 17.
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“non-evident”.5 Examples of disabilities that may not be apparent include epilepsy, diabetes and acquired brain injuries.
It should be kept in mind that it is individuals who live with disabilities, and that limitations or symptoms commonly associated with a particular disability may not affect a particular person. For example, while it is possible for a person with cerebral palsy to have an intellectual limitation, this is not so for everyone who has cerebral palsy. Many, but not all, people with Down syndrome have heart conditions. An adult with cystic fibrosis may use a wheelchair and a ventilator and have a limited life expectancy, or may have only mild difficulty in breathing. Some students with autism require a service animal and one to one support in the classroom, while others may not. For this reason, the process of accommodation must be individualized, or tailored, to the particular person and his or her unique needs.
Additionally, when an individual is unable to do something in a certain way, it does not mean that he/she is unable to do the same thing in another way. A person who is blind cannot read in the same way as a sighted person but he/she may read using Braille and/or a computer with a screen reader. A person who is Deaf, deafened or hard of hearing may not communicate orally, but may be able to speak using sign language. A person who has been labelled with an intellectual/developmental disability may not understand a written training manual but may be able to learn a skill or grasp a concept through instruction, demonstration, and support.
B. Disability Models
A current understanding of the concept of “disability” has been articulated in the Preamble to the United Nations Convention on the Rights of Persons with Disabilities (“Convention”) as follows:
Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and
5 Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: OHRC, 2000) at 10 [Guidelines on Disability].
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environmental barriers that hinders their full and effective participation in society on an equal basis with others.6
The Supreme Court of Canada has stated that disability should not be confined within a narrow definition. Rather, the Court stated that it is more appropriate to leave room for flexibility and propose a series of guidelines that will facilitate interpretation.7 Thus, there are some fundamental principles about disability which are generally embraced by the disability community, and which have been accepted and articulated by recent Supreme Court of Canada jurisprudence. A broad multi-dimensional understanding of disability is the currently favoured approach.8 This approach is often referred to as the social model of disability or the human rights model of disability. It has been accepted and articulated by Supreme Court of Canada jurisprudence9 and in the Convention.10 It describes disability as the outcome of the interaction between the person and their environment.11 This “social model” recognizes that it is society’s failure to accommodate the needs of people with disabilities, not some inherent mental or physical condition, which gives rise to the ‘disabling disadvantage’ that people with disabilities encounter in their daily lives.
The currently favoured approach in law, thus, views disability not merely as being the direct result of a health problem or any physical or mental limitation.12 The older “medical model” understood and defined disability in terms of a physical or mental defect or sickness necessitating medical intervention. However, health problems alone do not
6 Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [Convention]. The Convention came into force on May 3, 2008. Canada signed the Convention on March 30, 2007 and ratified it on March 11, 2010. 7 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de las jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665, 2000 SCC 27 at para. 76 [Mercier]. 8 Mont states that the “…[m]edical model has recently been replaced by the social model of disability, which conceptualizes disability as arising from the interaction of a person’s functional status with the physical, cultural, and policy environments.” See Daniel Mont, “Measuring Disability Prevalance,” (March 2007) online: World Bank
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prevent people from participating in society. Rather, it is the obstacles in the socio- economic and built environment that do.13 The difference between the two models has been summarized succinctly as follows: “The medical model tries to adapt the individual to society whereas the social model tries to adapt society to the diversity of individuals that comprise it.”14
It is important to note that there is a large body of literature regarding models of disability. There are other models and theoretical constructs of disability that may not embrace the social and medical models.15
As an illustration of the social model, consider that people who use wheelchairs are able to enter buildings, but when buildings are erected with steps in front of them, they become ‘disabled’ from entering. It is the existence of steps in this example that results in a limitation, or disablement. When buildings incorporate ramps, elevators, automatic door openers, accessible washrooms, and other accessibility features, people who use wheelchairs are no longer disabled.
People tend to think of barriers as simply physical or environmental; however, barriers manifest in many different forms, such as socially-created economic, attitudinal and legal barriers. These may be based upon policies, procedures, practices, and attitudes. For example, inflexibility with respect to hours of work and job descriptions may create barriers for people with wide ranges of disabilities. There may be a stereotype that an individual is unable to perform a task satisfactorily, or that the individual will take excessive time off work due to his/her disability.
C. Prevalence of Disability in Canada: Most Lawyers will Represent Clients with Disabilities
According to Statistics Canada approximately 14% of Canadians report having some 16 17 level of disability. Additionally, the disability rate rapidly increases as age increases.
13 Ibid. 14 Ibid. at 74, citing Delcey, Michel. “Déficiences motrices et situation de handicaps” – ed. AFP-2002. 15 Marcia H. Rioux and Fraser Valentine, “Does Theory Matter? Exploring the Nexus between Disability, Human Rights and Public Policy,” in Dianne Pothier and Richard Devlin eds., Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (Vancouver: UBC Press, 2004) at 57. 16 Statistics Canada, “2006 Participation and Activity Limitation Survey: Disability in Canada,” online:
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This means that most lawyers, regardless of the area of law they practice, will represent at least some clients who have disabilities or otherwise encounter issues of significance to people with disabilities. For example, you may represent a client who has a disability or an individual who provides financial and other supports to a person with a disability. It is therefore incumbent on each lawyer to be aware of legislation, jurisprudence, services and programs of significance to people with disabilities.
When representing clients with disabilities it is useful, and may be necessary, to refer to the statistical profile of disability in Canada. Until recently Statistics Canada conducted the Participation and Activity Limitation Survey (“PALS”), which provided an excellent national database on disability statistics.18 However, this survey is no longer being carried out by the Federal Government.19
The Canadian Survey on Disability is a survey of disability issues in Canada, including type and severity of disability; use of aids and assistive devices; help received or required; educational attainment and accommodations; labour force status; and mobility within the community. Statistics Canada plans to release survey data in 2013, and quinquennially thereafter.20
The most recent PALS was conducted in 2006. The following data have been extracted from that report and provide a general picture of disability in Canada:
4,417,870 Canadians reported some level of disability
the incidence of disability increases with age, from 3.7% of children under 15 to 43.4% of those over 65, to 56.3% of those over 75
Statistics Canada
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the disability rate is approximately 2% higher for women than men, with the exception of the under 15 age range
of Canadians with disabilities between the ages of 15 to 64, the three most reported disabilities were chronic pain, mobility related disabilities, and agility related disabilities.
more than half a million adult Canadians reported living with a psychological disability
adults with disabilities are more likely to have multiple rather than single disabilities
people with disabilities have employment rates approaching half that of other Canadians
people with disabilities have significantly lower incomes than people without disabilities
women with disabilities are more adversely affected with respect to employment and income than are men with disabilities, although both groups are significantly disadvantaged
people with disabilities are about half as likely to have a university education as people without disabilities 21
21 PALS, supra note 17.
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D. Appropriate Language and Terms Describing Disabilities
It has been stated that words are a mirror of society’s attitudes and perceptions and “[a]ttitudes can be the most difficult barrier people with disabilities face in achieving full integration, acceptance and participation in society.”22 It is therefore important that lawyers strive to use appropriate language when speaking with or about people with disabilities.
There are differing views regarding the appropriate use of language to refer to disabilities. Certain types of language are considered appropriate by government and disability organizations, and useful guidance may be obtained from their publications and websites. The federal government produces a guide titled A Way with Words and Images and the provincial government publishes a similar guide titled Word Choices.23 Despite the advice contained in the guides of organizations and governments, individual people with disabilities and their families may have their own preferences.
Outdated terms may be found in older documents and among segments of the population not familiar with current thinking about disability. There are also cultural variances as to appropriate terminology.
See Appendix “A” for examples that can illustrate language that is, and is not, considered to enhance the dignity of people with disabilities.
22 Canada, A Way with Words and Images: Suggestions for the Portrayal of People with Disabilities (Ottawa: Queen’s Printer, 2006) at 1 [A Way with Words and Images]. 23 A Way with Words and Images, ibid.; Accessibility Directorate of Ontario, Word Choices: A lexicon of preferred terms for disability issues (Toronto: Ministry of Citizenship, 2002).
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E. Understanding of “Disability” in Jurisprudence and Legislation
There is no one legal definition in Canada either of disability in general or of specific disabilities. Indeed, the Supreme Court of Canada has stated that disability should not be confined within a narrow definition. Rather, the Court stated that it is more appropriate to leave room for flexibility and propose a series of guidelines that will facilitate interpretation.24
The Supreme Court of Canada has accepted a “social model” of disability, as distinguished from a “medical model”. See section 1.3 above. In Mercier25, Justice L’Heureux-Dubé writing for the Court made it clear that disability manifests not only as a physical limitation, but also as a social construct that must be interpreted broadly:
[b]y placing the emphasis on human dignity, respect and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a ‘handicap’[the term used in the Quebec statute at issue]. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes....Thus, a ‘handicap’ may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors.
The focus of the social model inquiry is on the effects of a differential treatment, rule, preference, or exclusion experienced by the person, and not on proof of physical limitations or the presence of impairment.
The Supreme Court expanded upon this model in Granovsky,26 stating that there are three aspects to disability: physical or mental impairments; functional limitations, whether real or perceived, and the “problematic response of society to th[e individual’s] condition. A proper analysis necessitates unbundling the impairment from the reaction of society to the impairment, and a recognition that much discrimination is socially constructed.”
24 Mercier, supra note 7 at para 76. 25 Ibid. at paras 77 and 79. 26 Granovsky, supra note 9 at paras 29-30.
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Different statutes and regulations define disability in different ways depending on their purpose and intent. The Canadian Charter of Rights and Freedoms27 (“Charter”) refers to “mental disability” and “physical disability” in section 15, but these terms are not defined in the Charter. The Criminal Code28 also refers to “mental or physical disability” in several sections, but once again these terms are not defined.
In some pieces of Ontario legislation, disability has been defined using a broad approach. For example, both the Accessibility for Ontarians with Disabilities Act, 200529 and Ontario’s Human Rights Code30 define disability as:
a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, b) a condition of mental impairment or a developmental disability, c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, d) a mental disorder, or e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
Under the Code and human rights jurisprudence the definition of disability includes past, present and perceived conditions.
In general, statutes and regulations tend to emphasize different aspects of disability. For example,
human rights legislation typically defines disability very broadly, because the public policy intent is to prohibit, comprehensively, all forms of discrimination on the basis of disability, including perceived disability31
27 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 28 R.S.C. 1985, c. C-46. 29 S.O. 2005, c. 11, s. 2 [AODA]. 30 R.S.O. 1990, c. H.19, s. 10(1) [Human Rights Code].
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disability income program legislation and guidelines may define disability narrowly, based on medical criteria, and/or may focus specifically on unemployability due to disability, and/or may look more broadly at a person's functional limitations in performing activities of daily living32
disability income and support programs may permit or may prohibit the use of social and economic factors (e.g., age, education, literacy) in determining whether someone is ‘disabled enough’ to qualify33
Clients with disabilities may be surprised to learn that, for some purposes, the government does not consider them to have a disability. In each case, it is important to look closely at the statutes, regulations and guidelines, if such exist, and also at jurisprudence to determine how the legislated definition is actually applied in practice.
31 See Ontario’s Human Rights Code, ibid. s. 10(1) and Canadian Human Rights Act, R.S.C. 1985, c. H- 6, s. 25. 32 Under the Canada Pension Plan, R.S.C. 1985, c. C-8, the definition of disability in section 42(2) is based on medical criteria, duration, as well as unemployability. According to the Canada Pension Plan Guideline entitled “Severe Criterion for the Prime Indicator (Medical Condition),” a person must first have a medical condition, and second, the medical condition must result in a severe and prolonged disability. The Guideline lists examples of medical conditions, including AIDS, cancer, muscular dystrophy, and Hodgkin’s Disease. Under the Ontario Disability Support Program (ODSP) disability is defined for the purposes of receiving income support, as well as for the purposes of receiving employment support. The definition of disability for income support looks at a person’s limitations in performing activities of daily living, as well as medical criteria: Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, s. 4 [ODSPA]. The definition of disability for employment support (s. 32) looks at medical criteria and unemployability due to disability; however, a person who meets the definition of disability in s. 4 of the ODSPA may also be eligible for employment support in s. 32. See also: ODSP Income Support Directive 1.2 “Disability Adjudication Process” (November 2007); and ODSP Employment Support Directive 2.1 “Program Eligibility” (September 2006). 33 Generally, the Ontario Disability Support Program permits the use of social and economic factors in determining whether someone is ‘disabled enough’ to qualify; whereas, the Canada Pension Plan Disability prohibits the use of social and economic factors. See: ODSP Income Support Directive 1.2, supra; Canada Pension Plan Guideline, “Personal Characteristics and Socio-Economic Factors”; Canada (Minister of Human Resources Development) v. Rice, 2002 FCA 47; and Canada (Minister of Human Resources Development) v. Angheloni, 2003 FCA 140.
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II. PARTICULAR LAWS AND LEGAL CONCEPTS RELATING TO DISABILITY
A. The Duty to Accommodate Disability
The widespread inaccessibility of physical, social, economic, and legal systems and the failure of these systems to accommodate people with disabilities to ensure their full participation in society constitute a form of systemic discrimination. For people with disabilities “…the right to be free from discrimination is associated with a right to be accommodated short of undue hardship.”34 Facilitating the ability of people with disabilities to do things differently than others is called accommodation.35
The duty to accommodate is a central concept in human rights jurisprudence. “’Accommodation’ refers to what is required in the circumstances to avoid discrimination.”36 The Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc.37 elaborated on the duty to accommodate people with disabilities as follows:
The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider.38
The principles underlying the duty to accommodate include: respect for dignity, individualized accommodation and integration and full participation.39
34 Bill Holder, “Accommodation of Disability in Ontario” (July 2004) at 4, online: ARCH Disability Law Centre
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The requirement for individualized accommodation has been articulated by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur40 and in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.41 The Supreme Court has recognized that accommodation is a highly individualized process that must be responsive to individual needs and must be implemented on an individualized basis:
Due sensitivity to these differences is the key to achieving substantive equality for persons with disabilities. In many cases, drawing a single line between disabled persons and others is all but meaningless, as no single accommodation or adaptation can serve the needs of all. Rather, persons with disabilities encounter additional limits when confronted with systems and social situations which assume or require a different set of abilities than the ones they possess. The equal participation of persons with disabilities will require changing these situations in many different ways, depending on the abilities of the person. The question, in each case, will not be whether the state has excluded all disabled persons or failed to respond to their needs in some general sense, but rather whether it has been sufficiently responsive to the needs and circumstances of each person with a disability.42
The section below titled “General Information Regarding Disabilities and Practical Considerations for Accommodating Clients” provides examples of how people with a wide range of disabilities can and should be accommodated in the legal system. A lawyer’s duty to accommodate is discussed further in the subsection below titled “Discrimination and Accommodation”.
B. The United Nations Convention on the Rights of Persons with Disabilities
The United Nations Convention on the Rights of Persons with Disabilities is an international treaty that entered into force on May 3, 2008. This was a historic event in that the Convention is the first comprehensive international treaty to specifically protect the rights of the world’s population of people with disabilities.43 Its purpose is to “…promote, protect and ensure the full and equal enjoyment of all human rights and
40 [2003] 2 S.C.R. 504 [Martin]. 41 Guidelines on Disability, supra note 5 at 13. 42 Martin, supra note 40 at para. 81. 43 Arlene S. Kanter, “The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities,” (2006) 34 Syracuse J. In’l L & Com. 287 at 288.
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fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”44 It prohibits all discrimination on the basis of disability and requires that all appropriate steps be taken to ensure reasonable accommodation.45 It also provides several rights for people with disabilities, including rights relating to employment, education, health services, transportation, access to justice, accessibility to the physical environment and abuse.46 The Convention calls on participating governments to change their country’s laws, as necessary, to comply with its articles.47
Canada signed the Convention on March 30, 2007 and ratified it on March 11, 2010. Ratification is the act by which Canada bound itself to the Convention and assumed the responsibility of ensuring that it complies with the provisions therein.48
Canada employs a “dualist” model, meaning that once a treaty has been signed and ratified by the federal executive it still requires incorporation into domestic law to be enforceable at the national level. 49 In Canada the usual method of implementing international human rights treaties is to rely on existing Canadian legislation and policies. Often Canada ratifies international human rights treaties after it has determined that existing legislation, policies and programs conform and comply with the principles and obligations set out in the international treaty. Federal government officials examine the provisions of a given treaty and determine whether existing federal laws and policies
44 Secretary General, Final Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, art. 1, delivered to the General Assembly, U.N. Doc. A/61/611 (Dec. 6, 2006) [Final Report]. 45 Convention, supra note 6, article 5. 46 These are only some of the rights articulated in the Convention. Reference should be made to the text of the Convention regarding its scope and coverage. See 34 Syracuse J. Inl’l L. & Com. 287 (2006- 2007). This special issue of the Syracuse Law Journal contains articles discussing the significance of the Convention and its implications. 47 Kanter, supra note 43 at 289. 48 United Nations, “Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol: From Exclusion to Equality, Realizing the rights of persons with disabilities” Ch. 4: Becoming a Party to the Convention and the Optional Protocol, online: < http://www.un.org/disabilities/documents/toolaction/ipuhb.pdf>; Armand de Mestral & Evan Fox-Decent, “Rethinking the Relationship Between International and Domestic Law” (2008) 53 McGill L.J. 573 at para. 48. 49 Due to the nature of Canadian federalism, responsibility for implementing the CRPD falls to both the federal and provincial/ territorial governments. The federal government can legislate to implement the CRPD in areas that fall within federal jurisdiction, but cannot do so in areas within provincial/territorial jurisdiction.
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already conform to the treaty obligations. A similar review is conducted at the provincial and territorial level. Before ratifying a treaty the federal government seeks formal support from the provinces and territories. Typically, no new legislation is enacted to specifically implement the treaty into Canadian domestic law. In circumstances where new federal, provincial or territorial legislation is required, such new legislation will be passed prior to ratification.50
To date no new legislation has been enacted to specifically implement the Convention into Canadian domestic law. However, several of the rights articulated in the Convention are already addressed in Canadian domestic laws, including the Canadian Charter of Rights and Freedoms, human rights legislation (such as Ontario’s Human Rights Code and the Canadian Human Rights Act) and the Accessibility for Ontarians with Disabilities Act.
The general principle regarding the use of international law within Canadian law is that international treaties and conventions are not part of Canadian law unless they have been implemented by statute.51 This was confirmed in Baker v. Canada (Minister of Citizenship and Immigration),52 where the Supreme Court of Canada found that the Convention on the Rights of the Child,53 which had been ratified by Canada but not implemented through domestic legislative provisions, had no direct application in Canadian law. The Court however disagreed on the weight to be given to the Convention. Whereas the minority, as a consequence, would not have given the Convention effect, L’Heureux-Dubé J. for the majority found that “the values reflected in
50 de Mestral, supra note 48 at para. 48, 49; See also Canada, Parliament, “Canada’s Approach to the Treaty-Making Process” by Laura Barnett, Legal and Legislative Affairs Division, PRB 08-45E (24 November 2008). 51 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 69 [Baker], citing Francis v. The Queen, [1956] S.C.R. 618, at 621; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at 172-73; Anne Warner La Forest, “Domestic Application of International Law in Charter Cases: Are We There Yet?” (2004) 37 U.B.C. L. Rev. 157; Jutta Brunnée and Stephen Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l Law 3. 52 Baker, ibid. 53 Can. T.S. 1992 No. 3.
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international human rights law may help inform the contextual approach to statutory interpretation and judicial review.” 54
Regarding Charter rights in particular, international human rights law may be “relevant and persuasive sources of interpretation of the Charter’s provisions.”55 In Health Services & Support – Facilities Subsector Bargaining Assn. v. British Columbia,56 the Supreme Court referenced international law to assist in interpreting the scope of section 2(b) of the Charter. The Supreme Court relied upon three international conventions57 which had been ratified by Canada, but not implemented through domestic legislation, to determine that the right to engage in collective bargaining is part of the guarantee under section 2(b) of the Charter to freedom of association.
Using provisions of the Convention on the Rights of Persons with Disabilities could potentially strengthen and support legal arguments advanced for clients with disabilities in Ontario. It remains to be seen how powerful a tool the Convention will be for lawyers to use when representing clients with disabilities.
For more information on the CRPD please refer to Chapter 10 of this Disability Law Primer, entitled, ”Convention on the Rights of Persons with Disabilities”.
C. The Accessibility for Ontarians with Disabilities Act, 2005
In 2005, the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”)58 became law. It applies to “…every person or organization in the public and private sectors of the Province of Ontario, including the Legislative Assembly of Ontario”.59 Its stated purpose is to develop, implement and enforce standards for accessibility related to goods, services,
54 Baker, supra note 51 at para. 70. 55 Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313 at para. 57. 56 [2007] 2 S.C.R. 391 57 The three conventions referenced were: the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 and ILO Convention No. 87, 68 U.N.T.S. 17 58 AODA, supra note 29. 59 Ibid. s. 4.
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facilities, accommodation, employment, buildings, structures and premises in Ontario. According to the statute, the goal of achieving accessibility is to be met by 2025.60
There is a commonality between the AODA and Ontario’s Human Rights Code in that they each, although using different schemes and mechanisms, promote equality and accessibility for people with disabilities. It is important to remember that the AODA is complementary to Ontario’s Human Rights Code and that its existence does not remove any obligations under the Code. Legal rights and obligations that exist in relation to disability which are embodied in the Code must be complied with irrespective of compliance with the AODA and its standards.
The primacy of the Code is emphasized in the language of the Code itself, which states that it prevails over any other Act or regulation, unless the Act or regulation specifically provides that it is to apply despite the Code.61 The AODA further recognizes the importance of other legal obligations in relation to people with disabilities. The AODA states that “[i]f a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities … shall prevail.”62 This is reinforced by another AODA provision which asserts that nothing in it or the regulations diminishes legal obligations with respect to people with disabilities that are imposed under any other Act or otherwise imposed by law.63
The AODA applies to services provided by lawyers.64 As well, lawyers may have to advise their clients on legal obligations relating to the AODA. As such, it is essential that lawyers are familiar with the Act and any standards pursuant to it.
The AODA requires the development of accessibility standards, which become regulations under the Act. These standards are to address the identification and removal of barriers and set out a timeframe for meeting these requirements. To date, two standards have been enacted, the Accessibility Standards for Customer Service and the
60 Ibid., s.1 61 Human Rights Code, supra note 30, s.47(2). 62 AODA, supra note 29, s.38. 63 Ibid., s.3. 64 Ibid., s.4
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Integrated Accessibility Standards. The Accessibility Directorate of Ontario is responsible for the administration of the AODA. For information on the AODA and standards view the following link: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/
On January 1, 2008, the first accessibility standard under the AODA, the Accessibility Standards for Customer Service,65 came into effect. The standard applies to designated public sector organizations and every other person or organization that has more than one employee and provides goods or services to members of the public in Ontario. It sets out requirements for making the provision of goods and services more accessible to people with disabilities. Public sector organizations were to have complied with the standard by January 1, 2010 and private businesses, non-profit organizations and other service providers (including law firms) were to have complied by January 1, 2012.
Under the standard, public sector organizations and businesses with more than one employee must:
Establish policies and practices on providing services to people with disabilities66
Take reasonable efforts to ensure that policies are consistent with the principles of dignity, independence, integration and equality of opportunity67
Train staff on interacting and communicating with people with various types of disabilities68
Allow service animals to enter the business or organization’s premises69
Permit support people to accompany people with disabilities into the business or organization’s premises70
Provide documents that are required by the Regulation in accessible formats.71 For example, the Regulation requires public sector organizations and other
65 O. Reg. 429/07 66 Ibid., s. 3(1) 67 Ibid., s. 3(2) 68 Ibid., s. 6 69 Ibid., ss. 4(2), 4(3) 70 Ibid., s. 4(4)
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providers of goods or services that have at least 20 employees in Ontario to prepare documents describing policies on providing services to people with disabilities.
Establish a process for people to provide feedback and complaints regarding the manner in which the business or organization provides goods or services to people with disabilities72
These are just some of the obligations set out in the standard. There are additional requirements that public sector organizations and organizations with more than one employee must fulfill as well as requirements that apply only to public sector organizations and organizations with at least 20 employees.
The Integrated Accessibility Standards combines several standards into one regulation, setting out requirements in the areas of information and communications, employment, transportation, and the built environment.73
The AODA sets out the mechanisms by which the accessibility standards will be enforced. Each person or organization to whom an accessibility standard applies is required to file an annual accessibility report with a director who is appointed under the Act. These reports must be publicly available.74 With respect to the Accessibility Standards for Customer Service, Regulation 430/07 creates an exemption from reporting for some organizations. Only designated public sector organizations and other providers of goods and services that have more than 20 employees are required to file accessibility reports.75 The AODA also requires the appointment of inspectors who have powers of entry and investigation. Directors appointed under the Act may order people or
71 Ibid., s. 9 72 Ibid., s. 7 73 Integrated Accessibility Standards, O Reg 191/11 s 1. 74 AODA, supra note 29, s. 14. 75 O. Reg. 430/07, s. 1(1).
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organizations to comply with an accessibility standard, file an accessibility report or pay an administrative penalty for contravening a standard.76
For more information about the AODA refer to Chapter 9 of this Disability Law Primer, entitled, “Accessibility For Ontarians with Disabilities”.
III. THE RULES OF PROFESSIONAL CONDUCT AND CLIENTS WITH DISABILITIES
A. General
The Law Society of Upper Canada’s Rules of Professional Conduct (“Rules”) contain two important references to disability. These are the Rule relating to clients under a disability (Rule 2.02(6)) and the Rules relating to discrimination (Rule 5.04 and Rule 1.03(1)(b)). It is essential to be aware of and follow these rules when serving clients with disabilities or clients who have a family member with a disability.
B. “Client Under a Disability” and Capacity to Instruct Counsel
The Rule of Professional Conduct that relates most specifically to clients who have disabilities is Rule 2.02(6), “Client Under a Disability.” It should be read in conjunction with Rule 5.04 relating to discrimination and Rule 3.01 relating to making legal services available.
When representing clients with disabilities, lawyers must follow three main requirements that arise from these rules. Firstly, when a client has a disability, or their ability to make decisions is impaired, the lawyer must maintain a normal lawyer and client relationship as far as reasonably possible.77 Secondly, a lawyer and client relationship requires that a client have legal capacity to give instructions.78 This requirement also arises because the relationship of a lawyer to his/her client is one of agent to principal.79 A valid relationship of agency requires that the principal have the requisite mental capacity to engage in the
76 AODA, supra note 29, s. 21(3). 77 Rule 2.02(6). 78 Commentary to Rule 2.02(6). 79 Scherer v. Paletta (1966), 57 D.L.R. (2d) 532 at 534 (Ont. C.A.).
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relationship.80 Thirdly, when a client does not have legal capacity to manage his/her legal affairs, the lawyer has an ethical obligation to ensure that the client’s interests are not abandoned.81
Most clients, including those who have disabilities, have the mental ability to instruct counsel. However, many lawyers agonize over those infrequent situations when a client’s mental ability is such that they are not sure if the client has the requisite legal capacity to instruct. As lawyers are precluded from acting on behalf of an incapable client, they are necessarily under an obligation to assess their client’s capacity to instruct. In this context, legal capacity is a legal determination, not a clinical assessment.82 However, lawyers are not trained to undertake this task, and the Rules do not specify how this is to be done.
In sorting out these situations it is important to remember that the lawyer and client relationship is founded on the principle of autonomy. The lawyer’s obligation is to respect the client’s right to make decisions wherever possible. Clients are entitled to make decisions that we believe may be foolish, unwise or risky, as long as they are competently made.83
Further, one should never presume that because someone has a disability he/she is necessarily incapable to instruct. There is no reason to believe that a person who is unable to speak, for example, is not mentally capable.
Lawyers are required to look at the capacity of the client to “make decisions about his or her legal affairs”.84 Thus the requisite level of capacity depends on the specific situation. Courts have recognized varying levels of mental capacity. A person may be mentally capable of making a basic decision and not capable of making a complex decision.85 For
80 Godelie v. Pauli (Committee of), [1990] O.J. No. 1207 at 5 (Dist. Ct.). 81 Commentary to Rule 2.02(6). 82 Judith Wahl “Capacity and Capacity Assessment in Ontario” (Paper prepared for the CBA Elderlaw Programme, March 2006) at page 5, online:
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example, a client who has been labelled with an intellectual disability may have the mental ability to instruct you to find a remedy relating to poor treatment she receives in a group home but may not understand the information necessary to instruct you to make a will.
Lawyers should ensure that clients are given the opportunity to use the supports they need to enhance their ability to make their own decisions. Thus, a client who initially appears to be incapable may be able to make his/her own decisions with the help of others, such as family members and friends. These people may assist the client by communicating using words that he/she is familiar with, explaining information and helping him/her understand the consequences of making a decision.
If a client’s legal capacity is an issue, a lawyer should document how any decision regarding his/her legal capacity was made, and on what basis it was made. Lawyers should not decline to represent a client only because they are unsure if he/she is mentally capable. While lawyers do have a general right to decline a particular representation, the Commentary to Rule 3.01 states that this right must be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation. For more guidance on the issue of capacity to instruct counsel, reference may be made to Chapter 4 of the ARCH Primers, “Capacity to Instruct Counsel”.86
C. Discrimination and Accommodation
Discrimination is addressed in Rule 5.04, which states that “[a] lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the ground of … disability with respect to professional dealings with other members of the profession or any other
Transit Commission, [2007] O.J. No. 1773 (Ont. Sup. Ct. J.). 86 Phyllis Gordon, “Notes on Capacity to Instruct Counsel” (November 2003), online: ARCH Disability Law Centre < http://www.archdisabilitylaw.ca/?q=notes-capacity-instruct-counsel>.
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person.” The Commentary to the Rule states that it is to be interpreted according to the provisions of Ontario’s Human Rights Code and related case law.
Rule 1.03(1)(b) reinforces this requirement stating that “a lawyer has special responsibilities … including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.”
Ontario’s Human Rights Code provides that people with disabilities have a right to be free from discrimination because of their disabilities with respect to services.87 Like all other services in Ontario, legal services are subject to the provisions of the Human Rights Code. Lawyers and law firms have a legal obligation to ensure that services are offered that are accessible to people with disabilities and do not discriminate. The obligation to not discriminate includes an obligation to accommodate people with disabilities, up to the point of undue hardship.
The Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate88 sets out in detail the views of the Commission regarding accommodation for people with disabilities. While not legislation, the Guidelines are an essential starting point for understanding the duty to make appropriate accommodations, short of undue hardship, for people with disabilities. The Guidelines do not contain a formula for determining which accommodations must be provided. Accommodation is an individualized process, and will require different solutions in different cases depending upon the specific client and his/her disability-related needs.
It is important to emphasize that since lawyers are obligated to provide accommodations, the costs of accommodations must be borne by lawyers. Expenditures on accommodations (e.g. sign language interpreters) are not disbursements that may be charged back to clients.
Some accommodation measures entail no costs and are accomplished by changes to law firm policies. For instance, broad policies prohibiting all animals from offices have the
87 Code, supra note 30 at s. 1. 88 Guidelines on Disability, supra note 5.
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effect of preventing access to people with guide dogs or other service animals. An amendment to such a policy to exempt disability-related service animals would cost nothing at all.
IV. GENERAL INFORMATION REGARDING DISABILITIES AND PRACTICAL CONSIDERATIONS FOR ACCOMMODATING CLIENTS
A. General
Too often, people with disabilities report that lawyers refuse to consider representing them because of their unfamiliarity with the person's particular disability. For example, someone who has a speech-related disability may find his/her call to a law office inappropriately ‘screened out’ by the receptionist. It is hoped that this section of the paper will provide information that will increase a lawyer’s comfort level with representing clients with disabilities. In this regard, recall that lawyers are obliged to respect the requirements of human rights laws, including Ontario’s Human Rights Code.89 The Rules further state that “[A] lawyer shall ensure that no one is denied services or receives inferior service on the basis of the grounds set out in this rule.”90 Lawyers must therefore not deny services on the ground that an individual has a disability.
It is important to remember that each person who has a disability is a unique individual. While disabilities are often categorized into types, each person with a disability experiences it differently. Individuals with the same disability may require different accommodations. There is no single way to accommodate a particular disability. Additionally, some people have more than one disability.
We have included the information in this section to provide lawyers with guidance that might assist them in representing their clients with disabilities and ensuring that they receive the accommodations they need. However, the best source of information about your client’s disability and accommodation needs is from him/her directly. It is often
89 Rule 5.04(1). 90 Rule 5.04(2).
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helpful to ask your clients about how disability affects them. Disability organizations can also provide useful information about accommodating specific disabilities.
Some clients with disabilities may require certain accommodations. Ask clients what, if any, accommodations are required or would be helpful. Clients with accommodation needs will appreciate such a question at the start of an interview or when the interview is scheduled. They can address, for instance, whether the seating arrangements and environment will permit effective communication with the lawyer, when would be an appropriate time to take a break, and so on. If it is anticipated that there may be a number of accommodation needs, then the lawyer may canvass and address these in advance of the meeting. Lawyers may want to develop a checklist for this purpose.
Time considerations are important for many clients with disabilities. Care must be taken to develop a realistic time-line for case preparation. A very tight timetable can cause problems. Clients with disabilities may use accessible transit services that, because of limited availability, require pre-booking before the date of a meeting. Clients with disabilities may need longer or more frequent breaks than usual to go to the washroom or take medication. A client with a cognitive or emotional disability may require more time to consider options and make a decision. An interview conducted using a sign language interpreter can be time consuming and must be arranged well in advance.
As with other clients, the lawyer should discuss all aspects of cases fully and frankly with clients who have disabilities. It is essential that clients be questioned about all relevant aspects of their cases, even if the questions may be difficult for the clients.
It is also essential to make sure that clients whose disability affects their legal capacity to understand the lawyer's advice. Some techniques that may be useful to assist with communication are as follows:
use plain and clear language, not legal terminology or jargon
ask clients to explain their understanding of what the lawyer has said using their own words or their own alternative means of communication
encourage clients to ask questions of the lawyer
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encourage clients to tell the lawyer everything that may be relevant, while suggesting what information would be of most use to the lawyer
Ask clients what meeting place is best for them. Some clients with disabilities may require home visits because their disability makes it difficult for them to leave their homes. For example, clients with chronic pain may find that travel exacerbates their pain, and clients with Multiple Chemical Sensitivity may react adversely to a number of substances in a lawyer’s office environment. Visiting clients in their homes will afford them with the accommodation they need. However, some clients with disabilities prefer the confidential setting of the lawyer's office for a meeting. Some people with disabilities live in places that do not afford complete privacy, such as group homes, hospitals and supportive housing. Meeting in their place of residence may raise suspicions of other residents, family members or staff and unintentionally divulge confidences.
As has been indicated, there is no one formula for providing accommodation. Lawyers are advised to ensure that their offices are barrier-free and to ask clients what accommodations, if any, are needed. Lawyers are further advised to educate themselves with respect to specific disabilities and common accommodations associated with such disabilities. Lawyers can do this, for example, by accessing information provided by organizations that provide services for people with particular disabilities. Lawyers can also learn by visiting the websites of disability organizations and government agencies, some addresses for which are listed in the section below titled “Web Resources”,.
What follows is a brief description of some accommodation issues and measures that pertain to some generally-classed disabilities. The information is provided to illustrate generally what accommodation can entail in some, selected, circumstances.
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B. Deaf People and People with Hearing Loss
For Deaf91 people and people with hearing loss, it will be necessary for lawyers to consider accommodation measures that pertain to facilitating communication between themselves and their clients. Deaf people and people with hearing loss interact with hearing people all the time, and most are comfortable telling you what works for them. No two people who are Deaf or have hearing loss communicate in exactly the same way. Each individual uses an individual combination of communication strategies. The best way to learn how to communicate is to ask what methods of communication the person with the disability prefers.
Some individuals who are Deaf may have a first language that is gestural (the most commonly-used gestural language in Ontario is American Sign Language). Therefore, for many Deaf people, English or French is not their first language. Sign languages do not have written forms so the written skills of a person whose first language is a sign language may appear stilted. Their written language should not be perceived as an indicator of education or intelligence.
For many Deaf people and people with hearing loss, the most important accommodation measure for lawyers to provide will be sign language interpretation. A professional sign language interpreter, knowledgeable in the language and culture of both Deaf and hearing people, is the bridge between ASL and English to a common understanding. Ontario Interpreter Services (OIS) is a provincial organization that books qualified interpreters. It is provincially co-ordinated by the Canadian Hearing Society and the Ontario Association for the Deaf. Both groups are part of the OIS Advisory Council. The Council establishes the fees charged for interpreting services and maintains a registry of qualified interpreters throughout Ontario. An ethical code as well as a code of confidentiality binds qualified interpreters to act solely as a communication channel.
91 The term “deaf” is generally used to describe individuals with a severe to profound hearing loss, with little or no residual hearing. Some deaf people use sign language to communicate. Others use speech to communicate, using their residual hearing and hearing aids, technical devices or cochlear implants, and lipreading or speechreading. The term “Culturally Deaf” refers to individuals who identify with and participate in the language, culture and community of Deaf people, based on sign language. Deaf culture, indicated by a capital ‘D’, does not perceive hearing loss and deafness as a disability, but as the basis of a distinct cultural group.
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To arrange for an interpreter, a law firm must call their local Canadian Hearing Society office and ask to speak with the OIS staff person. Advance notice of at least two to three weeks is usually required to ensure that a request can be met, although it is possible that an interpreter may be made available on shorter notice. There is a chronic shortage of interpreters in Ontario. Few work full time and those who do are usually booked weeks, if not months, in advance.
For some people with hearing loss, the preferred accommodation is through assistive listening systems. Such technology can render oral spoken communication at meetings, courts, and tribunals accessible through wireless sound transmission. With this technology, people with hearing loss wear wireless receivers while speakers use microphones. A transmitter converts the sound into infrared or FM signals which are beamed to those wearing receivers, whereupon the signals are converted back into sound.
Another accommodation measure for Deaf people and people with hearing loss is written captioning. Meetings, for instance, can be made accessible to people with hearing disabilities (who have sufficient written language skills) by providing real-time captioning, a word-for-word transcription of oral communications projected onto a screen by a specially-trained stenographer. An advantageous by-product of this form of accommodation is a written record of the event for which the captioning was provided. To locate companies that offer captioning services, look in the Yellow Pages under Captioning or contact the local branch of the Canadian Hearing Society. While captioning is a useful communication tool, it should not be used as a substitute for interpreter services between sign language and English.
E-mail is often used by Deaf people and people with hearing loss, who have computers and sufficient written language skills in English, to communicate just as it is used by hearing individuals. Chat on the internet is also used. Lawyers must be aware that communication over e-mail and chat may not be secure or confidential.
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For people who are deaf-blind, intervenors may be used. Intervenors facilitate the interaction of a person who is deaf-blind with other people and the environment.92 Intervenors can assist people who are deaf-blind to communicate, for example, using a tactile and/or visual form of language or any combination of them. A deaf-blind person, for reasons of comfort and the protection of privacy, may wish to use or not use a particular intervenor that he/she knows.
It is important to be aware of potential conflicts of interest if the interpreter or intervenor is a family member or care giver and the possibility that the interpreter or intervenor may try to influence the client. Lawyers must ensure that they are ascertaining the wishes of their client.
For appearances before courts or tribunals, lawyers should contact the relevant registrar to make requests for the accommodation of their clients. For the purposes of a client who is Deaf or has hearing loss, and is a witness in a proceeding, for example, it may be necessary for both a sign language interpreter and a real-time captioner to be present. A sign language interpreter can communicate most of the dialogue that occurs in a legal proceeding, but a person who is Deaf or has hearing loss may require real-time captioning in addition to sign language interpretation. Through reference to real-time captioning, a person who is Deaf or who has hearing loss can access oral concepts that were not translated by their interpreter and, they can check to ensure that their interpreter is correctly rendering, orally, their evidence given through sign language.
Lawyers must remember Rule 4.06(8) of the Ontario Rules of Civil Procedure93 when commissioning an affidavit for a client who is Deaf or has hearing loss and who has limited proficiency in written English or French. The Rule requires the lawyer to certify that the affidavit was interpreted to the client by an interpreter who swore or affirmed to interpret the contents correctly.
A teletypewriter (TTY), also known as a text telephone, is an important aid for communication, in written format, over telephone lines. This machine has a typewriter
92 Online: Rotary Cheshire Homes
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keyboard, an electronic display, and an attached roll of print-out tape. Users place standard telephone headsets into cradles on the machine and type messages to receiving parties. The message is transmitted to a TTY on the other end, which also has a real-time electronic display, and may also generate a printed copy of the conversation. The other party sees the message on their own screen (and on a print-out) and types back. Using a TTY is similar to using chat technology over the internet.
Communicating via a TTY can, unfortunately, be time-consuming (depending upon the typing skills of interlocutors). However, one benefit for lawyers is that exact records of conversations, including instructions, are created by the resultant print-outs.
Some clients, whose first language is sign language, may find it difficult to communicate problems, concepts, and even basic questions through a TTY. In such circumstances, it is preferable to meet in person in the presence of a qualified interpreter.
Bell Canada offers a service known as the Bell Relay Service, in which an operator will relay messages between people using regular telephones and people using TTY machines. For lawyers who have not yet purchased TTY machines, this is a useful service.
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The Bell Relay Service is accessed by calling the following special national access numbers:
TTY 711
Voice 1 800 855-0511
Additional information about terminology, communication and accommodation in relation to people who are Deaf and have hearing loss can be accessed from “Breaking the Sound Barriers: Employing People who are Deaf, Deafened or Hard of Hearing” at http://www.chs.ca/en/documents-and-publications/employment/index.php. While the manual covers workplace issues, it contains much relevant, general information on the above topics.
C. Vision Disabilities
For clients with vision disabilities, lawyers must ensure that written communications are provided in an accessible format. Each client defines accessibility for himself/herself. Therefore, the lawyer must ask the client which format is best for them.
For clients who have access to and are familiar with computers with specialized software, documents can be transmitted in electronic text format. The advantage of communicating electronically is that it permits individuals with different levels of vision to be able to convert documents into the specific formats that they prefer. For clients who have access to e-mail, this form of communication may be easiest.
Some clients who are blind may prefer documents (and business cards) in Braille. Braille is a system that permits people to read by running their fingers over a series of configurations of raised dots. For offices equipped with Braille printers, documents may be converted into Braille before being sent to clients who require documents in this format.
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Some people who are blind prefer written materials to be read onto audio tapes as their main conduit to the “printed word.” Even for those fluent in Braille, tapes can be important because they are often easier and cheaper to prepare and transport than Braille materials.
Lawyers who receive written correspondence on behalf of clients who are blind can use scanning technology to convert such documents into text formats, ready for electronic transmission to their clients. For lawyers who lack scanning technology, it is important to orally or electronically (i.e., through e-mail) advise clients of the contents of such correspondence, once received.
For appearances before courts or tribunals, lawyers should contact the relevant registrar and other parties to ask that certain accommodations be provided. For instance, a request can be made for evidence to be converted, in advance of a hearing, into an accessible format so that a client will be able to understand the evidence and instruct his/her lawyer accordingly during a hearing.
Lawyers should consider the applicability of Rule 4.06(7) of the Rules of Civil Procedure when commissioning an affidavit for a client who is blind.
D. Communication Disabilities
A communication disability describes a restriction in a person’s ability to speak in a manner that can be readily understood, which is associated with a physical or mental impairment. For people with communication disabilities, communication through electronic means may be advantageous for relaying day-to-day information.
Communicating with people who have communication disabilities can be time consuming. At in-person meetings, lawyers can accommodate people with communication disabilities by cooperatively using systems designed to augment or serve as alternatives to speech. People who have limited verbal skills may use one or more augmentative communication devices or systems. Augmentative communication systems make use of objects, pictures, graphic symbols (such as those depicted on communication boards), manual signs, finger spelling, or artificial voice outputs. The latter may be controlled by push-
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buttons, puffs of air, eyebrow wrinkles, or other means. People who have significant speech or language impairments often rely on gestures and facial expressions and body movements.
There are a number of augmentative communication systems available to people who are non-verbal. Blissymbolics, one example, is a graphic language often printed and presented on the surface of a tray, but sometimes in books and increasingly frequently on personal computers. Symbols accompanied by the equivalent word are written within squares. Symbols may have to be presented one at a time. Each can be pointed to and the client asked if it is the desired one, or a light can scan the symbols and be stopped at the desired one. Some people who use Blissymbolics have mastered a few thousand symbols and can express virtually any idea using them. In addition to Blissymbolics, other codes such as numbers, letters, or shapes can also represent phrases. Many people with communication disabilities may use an electronic device for communication such as an ipad, iphone or other tablet.
For people who use symbolic languages, a communication assistant who is familiar with the person's particular method of communication may be very important, especially when it comes to interpreting symbols that are newly generated from existing vocabulary. However, because communication assistants often are family members of, or provide care to, the client, lawyers must be aware of potential conflicts of interest between the client and the assistant, and the possibility that the assistant may try to influence the client. It may be necessary to bring in a neutral communication assistant to ascertain the client’s wishes.
Resources for the legal community in relation to accommodating the communication needs of people who use Augmentative and Alternative Communication are available at http://www.accpc.ca/ej-resources.htm.
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E. Disabilities that Affect Mobility
For people with mobility disabilities, the primary form of accommodation that will be required of lawyers is the removal of physical and architectural barriers in law offices.
Ontario’s Human Rights Code provides that facilities must not discriminate against people with disabilities. The Code does not set out specific standards to be followed, however the Ontario Human Rights Commission has stated that service providers (including lawyers) should conduct an accessibility review of their facilities in order to identify existing barriers and remove them.94 Similarly, while the AODA95 provides for the establishment of accessibility standards for buildings, no such standards currently exist. There are accessibility standards in the Ontario Building Code Act, 1992 and its associated regulations,96 but these apply only to new or renovated buildings. These standards are quite minimal in some respects. There are more comprehensive standards available from the Canadian Standards Association but the use of these is voluntary.97
Accessibility related to structural elements within a building is only part of the broader issue of access. There are potential barriers that are created by badly placed furniture, unsuitable floor coverings, and poor lighting. There are also potential barriers in the environment outside of buildings, including inaccessible sidewalks, inaccessible parking spaces, and uncleared snow and ice. If a lawyer’s office is inaccessible, the lawyer should consider another meeting space that would meet the disability-related needs of the client.
Transportation can be a major barrier to people who use mobility aids. It is important to check transportation arrangements carefully with clients who use specialized public transportation services such as Wheel-Trans (Toronto), Para Transpo (Ottawa) or accessible public transit services in other municipalities. For example, some services require notice for ride bookings, and this has to be taken into account when planning
94 Online: Ontario Human Rights Commission
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client meetings. Unexpected emergency legal meetings may have to take place in the homes of people with mobility disabilities who rely upon public transit services.
It is important to ensure that appropriate (i.e., accessible) parking spaces are available for clients who arrive in their own vehicle and that the entrance to the building is accessible. If someone else drives the client, then a safe and accessible drop-off area for the client, and a parking area for the person who drove them, is also required.
For appearances before courts or tribunals, lawyers should contact the relevant registrar to ensure that accessible rooms are booked for proceedings involving clients with mobility disabilities. Unfortunately, there are still many court houses with inaccessible rooms.98
F. Mental Health/Psychiatric Disabilities99
The mental health and psychiatric disability community represents diversely situated people with a range of perspectives. Mental health is usually understood through a broad range of diagnostic categories found in the Diagnostic and Statistical Manual (DSM) for example schizophrenia, depression, mood disorders and phobias. While some clients find these clinical categories helpful, other clients do not find them useful and will not recount their experiences via psychiatric language.100 Accommodation for clients should encompass sensitivity to how a particular client chooses to narrate their experience. It is therefore important to avoid imposing stereotypical perceptions on
98 Report of the Disability Issues Committee, “Making Ontario’s Courts Fully Accessible to Persons with Disabilities” (December 2006), online: Court of Appeal of Ontario
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clients who have mental health/psychiatric disabilities (e.g. do not ask are you “psychotic”?). The focus should be on interacting with the person as an individual and not a label or a number. The intensity or effect of any given mental health disability varies from person to person, can be episodic in that there may be times when the person is not affected at all by his/her mental health disabilities. Trauma can also impact people in a variety of ways that is not always visible but will impact a client’s ability to follow through on tasks.
Some actions of a person with a mental health/psychiatric disability may seem different from what is perceived of as “normal” among people who have no such experiences. Do not be overly concerned by a sudden change in mood, speech pattern or volume, a burst of energy or anger, or a communication that is not understood.
People with mental health/psychiatric disabilities may occasionally have difficulty concentrating. If this is the case, consider breaking down tasks into manageable steps and arranging shorter meeting periods. Written instructions, reminders and clear communication can facilitate interactions and address memory loss and concentration concerns. Use accessible language and explain the implications of certain legal decisions.
Lawyers should inquire of clients as to any side-effects of medication, so that accommodation can be provided, both in a law office and in court.
It is important to be respectful, patient, flexible, understanding and positive when interacting with people with mental health/psychiatric disabilities. Resist the tendency to focus on the person’s behaviour and instead focus on the overall goal of the conversation.
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G. Intellectual/Developmental Disabilities
There is some controversy about appropriate terminology in the context of intellectual/developmental disabilities. However, in current practice the two terms, “intellectual disability” and “developmental disability” are frequently used interchangeably. At ARCH we prefer, “people who have been labeled with an intellectual disability”.
Generally, intellectual/developmental disabilities are present from childhood, and can affect a person’s intellectual development and functional capacity in areas such as language, mobility, learning and self care.
In the past the terms “mental retardation,” “dumb” and “slow” were used to describe these disabilities, but are now avoided because they carry such pejorative, discriminatory connotations. Lawyers can accommodate their clients with intellectual/developmental disabilities by ensuring that appropriate, dignity-enhancing language is used to describe the disabilities.
It is often assumed that individuals who have been labelled with an intellectual disabilities are incapable to instruct counsel by virtue of their disability. This assumption is not necessarily true. It is important that a lawyer assess each client’s capacity individually. See the discussion regarding capacity to instruct in the section above titled “’Client under a Disability’ and Capacity to Instruct Counsel”.
Some people who have been labelled with an intellectual disability are shy and easily intimidated, and they may not be aware of things in the common experience of others. Because of vulnerability and dependence on others they may be afraid to express their own ideas without support. This can result from the environment in which they have spent their lives. Many people with intellectual/developmental disabilities have led sheltered lives, either with their parents, in a group home, or increasingly rarely, in an institution. They may have been denied educational opportunities. They almost certainly have been denied social and employment opportunities.
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Clients who have been labelled with an intellectual disability should be treated like others unless there is a compelling reason not to do so. Do not underestimate the capacities and potential of clients who have been labelled with an intellectual disability. When talking with clients, lawyers should use clear and concise concepts and avoid complex sentences. Repetition and careful explanation are important. When something is really important, lawyers should say so explicitly to clients. Be alert to the possibility that clients may misinterpret jargon or technical terminology, while seeming to use it appropriately.
When interacting with clients who have been labelled with an intellectual disability, lawyers should clearly explain the purpose of the meeting. The lawyer should also explain to the client that it is their decision whether they wish to take the lawyer’s advice. Due to socialization in group homes, institutions or the family home, direction from authority figures can be seen as non-optional to people with intellectual/developmental disabilities.
A client who have been labelled with an intellectual disability may benefit from the support of a person who they know and trust (e.g., a family member, friend, or an advocate) when they meet with lawyers. However, lawyers must be aware of the potential conflicts of interest between the client and the family member, friend or advocate. As with other clients with disabilities, it is important to find out from a client with an intellectual/developmental disability what accommodations are required.
H. Learning Disabilities
A learning disability is defined as a neurological dysfunction that interferes with the brain's capacity to accurately store, process, or produce information, either spoken or written or tactile. It is not caused by visual, hearing, or motor impairments, or by intellectual or psychiatric disabilities. Learning disabilities are frequently found in association with a variety of other medical conditions (e.g., Fetal Alcohol Syndrome and Fragile X Syndrome).
Generally, individuals with learning disabilities have few obvious problems collecting information, but they may experience difficulties screening, interpreting, recalling, processing, or translating that information. Some specific learning disabilities are:
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dyslexia (severe problems reading); dysgraphia (severe problems writing); dysphasia (severe problems developing spoken language); and dyscalculia (severe problems doing mathematics). While learning disabilities do not disappear, individuals living with them can learn strategies to compensate for their disabilities.
Because learning disabilities are largely invisible, they are often not taken seriously. Lawyers can demonstrate that they accept and respect their clients’ disabilities and accommodation needs by inquiring as to whether accommodation is needed and in what form.
Clients with learning disabilities may take more time than others to reason through a situation or set of facts. Lawyers may need to provide accommodation in the form of longer meetings with clients with learning disabilities. Other forms of accommodation may include the provision, in advance, of a written schedule for a meeting, a written summary of meeting minutes, reminders for meetings, or a written list of tasks to be completed. Lawyers must discuss with their clients what forms of accommodation are desired when the working relationship first begins. Accommodation measures can be assessed, periodically, to determine whether they are working.
V. WEB RESOURCES
For further information, the following websites may be consulted:
ARCH Disability Law Centre: www.archdisabilitylaw.ca
ARCH is a community legal aid clinic dedicated to defending and advancing the equality rights of people with disabilities in Ontario. Its website provides a description of the services it offers as well as information on disability law and initiatives in litigation and law reform.
Canadian Council on Rehabilitation and Work: www.ccrw.org
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CCRW is a network of organizations and individuals that provides leadership in programs and services for job seekers with disabilities and businesses committed to equity and inclusion. The site provides information on programs and services for job seekers and businesses interested in providing accommodation for employees with disabilities.
Council of Canadians with Disabilities: www.ccdonline.ca
CCD is a consumer-controlled organization that advocates for the equality rights of people with disabilities. This site describes the philosophy and membership of the CCD and includes information on their advocacy work in a number of areas including technology, human rights, international development, social policy and transportation.
Disability-Related Policy in Canada: www.disabilitypolicy.ca
This website presents policy discussions on the funding, supply and availability of a range of products and services for disability-related needs, including personal supports and technical aids and equipment.
Disability Research Information Page: www.ccsd.ca/drip
This website provides centralized access to information about disability research on a wide range of topics including employment, education, health care, and supports and services available for people with disabilities.
EnableLink: www.abilities.ca
Enablelink provides links to Canadian and international resources on a wide variety of disability-related topics including links to directories, articles, organizations, advocacy and support groups, services and products.
Legal Aid Ontario: www.legalaid.on.ca
Legal Aid is available to low income individuals and disadvantaged communities for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as landlord/tenant disputes, disability support payments and other income security.
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Ministry of Community and Social Service: www.mcss.gov.on.ca/en/mcss/programs/accessibility
This link provides information about the Accessibility for Ontarians with Disabilities Act, the Ontarians with Disabilities Act and detailed information about accessibility for people with disabilities.
Ontario Human Rights Commission: www.ohrc.on.ca/en
The Commission administers the Ontario Human Rights Code, which protects people in Ontario against discrimination in employment, accommodation, goods, services and facilities, and membership in vocational associations and trade unions. The site provides information about the investigation of complaints under the Code and provides other educational materials about human rights in Ontario, such as a guide to the duty to accommodate.
Persons with Disabilities Online: www.pwd-online.ca
This site is sponsored by the Federal Government and provides links to both national and provincial information sources for a wide range of programs and services available to people with disabilities including housing, employment, assistive technology, tax benefits and transportation.
United Nations Convention on the Rights of Persons with Disabilities: www.un.org/disabilities/
This site gives information on the history and development of the Convention, the background behind the provisions and the current work taking place on the Convention.
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Appendix A
Language that is, and is not, Considered to Enhance the Dignity of People with Disabilities101
putting the person first by saying, for example, “people with disabilities” or “women with disabilities” is now generally considered more appropriate than saying “disabled persons” or (especially) “the disabled” people with disabilities are often referred to as “consumers” of disability-related services people with a strong commitment to Deaf culture capitalize the word “Deaf” some people prefer to be known as “autistic” rather than as a “person with autism” “disability” is a more appropriate term than “handicap” “non-disabled” is considered more appropriate than “able-bodied” refer to a “wheelchair user” rather than to someone “confined” or “bound” to a wheelchair usage (in Canada, especially) strongly favours “intellectual disability” or “developmental disability” as opposed to “mental retardation” people with a lengthy history of psychiatric treatment or hospitalization often refer to themselves as “survivors” or “consumer/survivors”. There are several other terms used to describe people with mental health issues and there has been long standing debate and no consensus on appropriate terminology. Other terms in use include: psychiatric survivors, psychiatric disability, mental disabilities, people with mental illness, people with mental health issues, and madness. it is not appropriate to speak of someone as “suffering” from a disability or as “afflicted” with it, or as a “victim of it,” except in some particular circumstances. For example, people who were affected by Thalidomide refer to themselves as “Thalidomide victims” it is appropriate to use words like “see” as you would normally when speaking to a person who is blind it is preferable to use the terms “partial vision” or “low vision” rather than “legal blindness” the terms “physically challenged” and “mentally challenged” are not in general use in Canada
101 This Appendix provides general information only. Individual persons with disabilities and/or groups of people with disabilities may prefer the use of specific words or terminology.
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55 Universtiy Avenue, 15th Floor Toronto, Ontario M5J 2H7 www.archdisabilitylaw.ca
(416) 482-8255 (Main) 1 (866) 482-2724 (Toll Free) (416) 482-1254 (TTY) 1 (866) 482-2728 (Toll Free) (416) 482-2981 (FAX) 1 (866) 881-2723 (Toll Free)
Interacting with Persons who have a Disability
Tips on interacting with people in a manner that best accommodates their disability
December 2007 (Last Update: July 2011)
These fact sheets are intended to be used by lawyers who have clients with disabilities, but contain information that may be useful to other professionals and members of the public.
ARCH Disability Law Centre 55 University Avenue, 15th Floor Toronto, Ontario M5J 2H7
Tel: 416-482-8255, 1-866-482-2724 TTY: 416-482-1254, 1-866-482-2728 Fax: 416-482-2981, 1-866-881-2723 www.archdisabilitylaw.ca
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Interacting With Persons Who Have A Mobility Disability
What is a Mobility Disability?
There are many reasons why people use mobility aids. A mobility disability may be congenital (present at birth) or may be acquired as a result of an injury, accident, the onset of disease or illness. Often aging can necessitate an individual's use of a mobility aid.
Each person's need for assistive devices and support services is unique. A person who uses a wheelchair may have some mobility and may be able to transfer in and out of the chair depending on the situation.
Assisting a Person with a Mobility Disability
Never assume that a person with a disability requires assistance. Instead, ask whether the person wants your help.
There are many types of mobility aids, such as wheelchairs, scooters, crutches, leg braces, canes and walkers. A person's mobility aid should not be moved without first requesting permission to do so. Having a mobility aid within reach facilitates the person's capacity to move independently.
If assisting a person with their mobility aid, ask the person how you should handle the device. For example, a wheelchair has brakes and the brakes should be on before assisting the person in and out of the chair. A scooter may need to be parked a certain way in order to access an electrical outlet. Ask the person where and how they would like their mobility aid to be stored. Some equipment may be folded or temporarily detached.
Some persons view their mobility aids as extensions of themselves. Never lean on or rest your foot on a mobility device and do not handle a mobility device inappropriately.
Communicating and Meeting with a Person with a Mobility Disability
Make sure that you are communicating with the person and not focusing on their mobility aid or the person accompanying them.
When speaking to someone who uses a wheelchair, remember to give the person a comfortable viewing angle of yourself. Having to look straight up is not a comfortable viewing angle. Sit, squat or kneel in order to make eye contact with the person and to ensure that each of you can hear and speak directly to the other.
When walking with a person using a mobility aid, let him or her set the pace.
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Before making an appointment ensure your meeting place and the route the person will be taking are accessible. Ask the person how they will be traveling. Remember to consider distance, accessibility of route, weather conditions and accessibility of destination premises. Avoid physical obstacles, such as steep inclines, stairs, unpaved road, lengthy routes and small elevators. Be clear about the route and distance when giving directions.
Remember to consider sufficient lead time for pick up and drop off for accessible transit, which can be considerable, as well as sufficient location space for boarding and disembarking from accessible transit. Ensure that there is accessible parking at the destination premises.
Remember that it may take the person with a mobility disability a longer time to perform a task or get to a destination.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons with mobility disabilities. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons With Vision Loss
What is Vision Loss?
Vision loss and blindness can result from a variety of causes, including congenital (present at birth) conditions, injury, brain trauma, or as the result of other illnesses such as diabetes and multiple sclerosis.
Not all people with vision impairments are blind. A person with vision loss may have some degree of sight, such as an ability to see shapes or a blur, like looking through tissue or frosted glass. Some people have partial or low vision, such as central vision or side vision. Persons who are blind may have limited or no vision. If you need to know how much vision a person has, politely ask him or her.
Making Written Materials Accessible
Some, but not all, persons with vision loss read braille. There are a variety of assistive technologies that persons with vision loss use to make information more accessible.
In addition to braille, persons with vision loss use consumer products and assistive technologies such as screen readers, voice-activated software, talking watches, audio recordings and braille displays to read. Ensure that your written communication is provided in an accessible format, such as electronic text format for conversion by computer accessibility software. When corresponding with a person with vision loss, ask the person what type of correspondence they prefer.
Some people with low or partial vision read using special glasses, magnification, adapted computer screens, or electronic devices such as Tablets/Ipads. Ensure printed materials are in large, bold, square print without serifs. Written materials should use an accessible font like Arial and be 18 point or larger size type. The type should be in a colour that contrasts with the paper or screen.
Communicating and Meeting with a Person with Vision Loss
Announce your presence by identifying yourself and indicating where you are in the room. When in a group setting, address a person with vision loss by name so that they know you are speaking to them.
Be careful not to rely on your own body language, pointing and gestures to communicate unspoken cues or implicit messages.
Assist the person's orientation by describing the layout of the room and using clock direction. Give the person verbal information that is visually obvious to those who can see.
Do not move items (furniture, personal belongings) after a person with vision loss has adjusted to the positioning of the item.
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De-clutter the walking path. Make sure doors are fully open or closed.
When giving directions to a person with vision loss, describe the route, slopes, obstacles, distance by number of steps, and the need to veer left and right.
When walking with a person who has vision loss, offer them your arm or elbow and lead the way. Lead only after they have accepted your offer to do so. Allow them to hold your arm, rather than you holding them. Service animal users may choose to hold your arm or follow you or your voice. Do not pull or forcibly lead. If you are helping a person sit down, guide their hand to the back of the chair.
Speak clearly in a normal speed and tone of voice - there is no need to raise your voice or slow down.
Some people with vision loss use a cane or a service animal. Do not attempt to touch a person's cane. When a guide dog is wearing its harness, it is on duty and should not be petted or distracted. Do not touch or give the animal food or treats without the permission of the owner.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons with vision loss. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons Who are Deaf, Culturally Deaf, Oral Deaf, Deafened or Hard of Hearing
What do Deaf, Culturally Deaf, Oral Deaf, Deafened and Hard of Hearing mean?
A hearing impairment may be congenital (present at birth), age-related, hereditary, or as a result of an injury, accident or the onset of disease or illness (e.g. meningitis and rubella/German measles).
Being deaf, deafened or hard of hearing not necessarily mean the person is unable to speak.
Not all people with hearing impairments are deaf or use the same forms of communication. The term deaf is generally used to describe persons who have a profound hearing loss. Some people who are deaf use sign language to communicate and others use speech.
Persons who are culturally Deaf identify with and participate in the language, culture and community of Deaf people and use visual languages such as American Sign Language (ASL) or Langue des signes quebecoise (LSQ) to communicate.
Persons who are oral deaf used spoken language during their childhood/ teenage years and may use sign language in later life.
Persons who are deafened experienced a profound hearing loss later in life. Late-deafened adults may not understand speech without visual clues such as computerized notetaking, speechreading, lipreading or sign language.
Persons who are hard of hearing have some residual hearing, which may be boosted by amplification through assistive technology. Assistive Listening Systems (ALS) or Assistive Listening Devices (ALD) are amplifiers that bring sound directly into the ear. These include hearing aids and cochlear implants. Often, persons who are hard of hearing use spoken language as their primary means of communication and may supplement their residual hearing with speechreading, hearing aids and technical devices.
Communicating and Meeting with a Person who is Deaf, Deafened or Hard of Hearing
When communicating in person with someone who is hard of hearing, eliminate environmental and background noise as much as possible by closing doors and windows when appropriate. Avoid rooms with poor acoustics. If the person is using hearing aids, avoid conversations in large, open and noisy surroundings.
Politely ask a person who is deaf, deafened or hard of hearing if they can hear you and if they need you to speak up or repeat anything.
Face the person and be aware that tinted glasses, beards and moustaches may make it more difficult for the person to understand what you are saying.
When communicating in person with someone who is deaf, deafened or hard of hearing, speak appropriately, not too fast or too slow. Avoid over-enunciation. Increased volume does not help. Yelling distorts the face and makes lipreading difficult. 49
Be careful not to rely on auditory clues, such as coughs or pauses, to communicate unspoken or implicit messages.
When approaching someone who is deaf, get the person's attention with a gentle tap on the shoulder or by a wave of the hand.
It may be appropriate to use the services of a qualified sign language interpreter. When doing so look at and speak to the person who is deaf, deafened or hard of hearing, not the interpreter.
Consider using text technology such as written notes, computers, email and TTY (teletypewriter or text telephone) as different means to communicate. Ask the person what means of communication they prefer.
Bell Canada offers the Bell Canada Relay Service, in which an operator will relay messages between persons using regular telephones and persons using TTY machines. Ask the person if they wish to communicate through this service.
Have a pen and paper or computer available during face to face discussions. Writing or typing key points may facilitate communication and ensure that the important information is conveyed.
Many persons who are deaf, deafened or hard of hearing need the services of notetakers or real- time captioning. A notetaker is useful for persons who need to watch the presentation for lipreading or the sign language interpreter and so cannot take notes. A notetaker summarizes what is spoken.
Real-time captioning is similar to court stenography in that the spoken words are simultaneously processed by the captionist into a typed document projected onto a screen. Real-time captioning is a verbatim print representation of the spoken material. Communication Access Realtime Translation (CART) or Computer Aided Real-Time Captioning provides realtime speech to text translation of conversations in a myriad of settings such as the class room, workplace, social setting by a CART Specialist using a laptop or stenographic machine. CART can be delivered using a small screen which enables the CART specialist to follow the user.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons who are deaf, deafened or hard of hearing. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons Who Have A Speech Disability
What is a Speech Disability?
A speech disability may be congenital (present at birth), age-related, acquired as a result of a brain injury or accident, the onset of disease or illness, hearing loss, intellectual disability, physical disability or neurological disorders. A speech disability does not mean the person has an intellectual disability or a hearing impairment.
Communicating and Meeting with a Person with a Speech Disability
Persons with speech disabilities that limit their ability to communicate verbally often use augmentative communication devices or systems. Augmentative communication systems involve objects, pictures, graphic symbols (such as those depicted on communication boards), manual signs, finger spelling, or artificial voice outputs.
Blissymbolics is a graphic language often printed and presented on the surface of a tray, sometimes in books and increasingly frequently on personal computers and electronic devices. The person will point to the letters, words or pictures to indicate their message. When communicating with a person using Blissymbolics, say the letters, words or pictures out loud so the person knows that you understood the correct point. If you are not sure what the person means, wait until they are finished and politely ask them.
Persons who have speech or language disabilities may rely on gestures, facial expressions and body movements.
Make sure that you are communicating with the individual and not focusing on their communication device or the person accompanying them.
Be patient. People who have speech disabilities may communicate at a slower speed. Do not interrupt, attempt to answer for the person with the speech disability, or finish their thoughts. Convey clearly that the message is understood, but do not try to hurry up the discussion by filling in gaps. Persons who spell out words using augmentative communication devices may use short forms, such as B4 meaning before, to speed up their communication.
When meeting with a person with a speech disability, it may be necessary to allow for extra time.
Speak to the person with a speech disability as you would to everyone else. Do not speak louder or slower than you usually would.
It may be necessary to ask some questions that require only a short answer or a “yes or no” answer to simplify and clarify the conversation. However, do not limit the conversation to yes or no communication as this can restrict and close the discussion.
Do not pretend to comprehend when you did not understand what was said. It is acceptable to indicate that you did not understand. Politely ask the person to repeat what they said.
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When in doubt about what the person said, tell them you are seeking confirmation, recap what they said in point form and ask them if you understood correctly.
You can use gestures and objects to help facilitate communication, such as pictures, demonstrations and body language.
Use concrete language and avoid figures of speech and metaphors, which can be confusing.
You can support a person who uses an augmentative communication system by ensuring that you know how they communicate and how you can facilitate their communication. Most augmentative communication system users have written instructions that tell you how they communicate and what you can do when communicating with them. These instructions are often attached to the communication display or wheelchair tray.
If the person with the speech disability does not have an augmentative communication system, ask them if they would like to use paper and pen or computer to highlight key points to ensure that the important information is conveyed.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons who have a speech disability. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons Who Have An Intellectual Disability
What is an Intellectual Disability?
Intellectual disabilities may be congenital (present at birth), acquired through an accident, or related to a physical disability or a neurological disorder, and manifest before the person reaches adulthood.
An intellectual disability may affect learning, memory, problem solving, planning and other cognitive tasks. Individuals with intellectual disabilities vary widely in their abilities, and definitions of intellectual disability also differ.
Communicating with a Person with an Intellectual Disability
When communicating with a person with an intellectual disability, it is not necessary to change the inflection of your voice or to use language that is meant for children. An adult with an intellectual disability is not a child. They have many years of life experience and it is demeaning to treat them like a child.
Maintain the eye contact and body language you would typically use during any other conversation.
While it may be necessary to simplify your language or shorten your sentences, persons with an intellectual disability should be treated with dignity and respect and a fulsome and comprehensive discussion should occur.
Communication may be facilitated by using diagrams, demonstrations or hands-on modeling.
The most important thing to focus on during a conversation with a person with an intellectual disability is the overall goal of the conversation.
Try to recognize the capabilities and potential of each person and adapt to them.
If there is some doubt in your mind whether you were understood, politely ask for confirmation. If necessary, rephrase your statement to ensure that the person understands what you are saying.
Listen carefully and be prepared to explain things in different ways.
If you are in a public area with many distractions, ask the person if they would like to move to a quiet or private location.
Be aware that medication may slow the individual's speech or reactions. A lack of response or slow response does not mean the person is being rude.
A person with an intellectual disability may take more time to absorb information so ensure that you have sufficient time to meet and review things. You may need to repeat your ideas on more than one occasion.
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Ways to help a person with an intellectual disability to absorb information may include providing a written schedule for a meeting in advance, providing a written summary of meeting minutes, sending reminders of meetings, or providing a written list of tasks to be completed.
Capacity
An intellectual disability does not automatically mean the person lacks capacity to make decisions. Merely having a particular diagnosis that may affect capacity, such as an intellectual disability, does not affect an individual's capacity to instruct counsel.
When considering whether your client can instruct you, remember that there is a presumption that an adult client has capacity to give you instructions, and that this presumption applies whether or not your client has a disability. More information on capacity issues can be found on ARCH Disability Law Centre's website at www.archdisabilitylaw.ca/publications/.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons who have an intellectual disability. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons Who Have A Mental Health or Psychiatric Disability
What is a Mental Health or Psychiatric Disability?
Mental health disabilities have no single cause. They can be biological, psychological, and social.
There are a broad range of mental health or psychiatric disabilities, including schizophrenia, depression, manic depression/ bipolar disorder, anxiety disorders such as obsessive compulsive disorders, panic disorders, phobias and others.
A person with a mental health disability may exhibit no symptoms for long periods of time as mental health disabilities are often episodic. The type, intensity and duration of symptoms vary from person to person, making it difficult to predict symptoms and functioning.
Communicating with a Person with a Mental Health or Psychiatric Disability
When interacting with a person with a mental health or psychiatric disability, find out how the person prefers to identify themselves with respect to their disability. For example, a person may prefer to be called a psychiatric patient, a client, a consumer, a consumer/survivor, a survivor or a user. The identifier used by an individual is illustrative of how they think about themselves in relation to the larger mental health system. By adopting the language they prefer, you will indicate that you are sensitive to mental health issues, which may ease the person's comfort level and facilitate communication.
It is important to be respectful, patient, flexible and positive when interacting with persons with mental health or psychiatric disabilities.
The actions of a person with a mental health or psychiatric disability may seem hostile, antagonistic or unusual. Do not be overly concerned by a sudden change in mood, speech pattern or volume, a burst of energy or anger, or an indecipherable communication. All of these may be aspects of the disability or side-effects of medication.
Resist the tendency to focus on the person's behaviour and instead focus on the overall goal of the conversation.
Be aware that medication may slow the individual's speech or reactions and a lack of response or slow response does not mean the person is being rude.
The person may have medication induced lethargy, memory loss, mumbling or slurring. Certain medication can trigger involuntary muscle movements, such as restlessness, pacing, shuffling and facial grimaces.
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Meeting with a Person with a Mental Health or Psychiatric Disability
People with mental health or psychiatric disabilities may occasionally have difficulty concentrating. If this is the case, consider breaking down tasks into manageable steps and arranging shorter meeting periods. Written instructions, reminders and clear communication can facilitate interactions and address memory loss and concentration concerns.
If you are in a public area with many distractions, ask the person if they would prefer moving to a quiet or private location.
A person with a mental health or psychiatric disability may benefit from the support of a person whom they know and trust in stressful or public situations.
Capacity
It is important to keep in mind that merely having a particular diagnosis that may affect capacity, such as schizophrenia or dementia, does not affect an individual's capacity to instruct counsel.
When considering whether your client can instruct you, remember that there is a presumption that an adult client has capacity to give you instructions, and that this presumption applies whether or not your client has a disability. More information on issues of capacity can be found on ARCH Disability Law Centre's website at www.archdisabilitylaw.ca/publications/.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons who have a mental health or psychiatric disability. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Interacting With Persons Who Have A Learning Disability
What is a Learning Disability?
A learning disability usually affects one or more processes related to learning, which includes the manner in which a person takes in, comprehends, retains or expresses information. A learning disability can affect a person's ability to pay attention and focus, collect and co-ordinate information, remember, reason, communicate, read, write, spell or calculate.
Learning disabilities are not due to hearing or vision impairments, intellectual disabilities, socio- economic factors, cultural or linguistic differences, lack of motivation or ineffective teaching. However, any or all of these factors may further complicate the challenges faced by persons with learning disabilities.
Communicating with a Person who has a Learning Disability
When interacting with a person with a learning disability, politely ask the person to provide you with guidance as to how they best learn and understand information. Be attentive to how you can build upon learning opportunities and relay information.
Be aware that what appears to be a simple and logical way to carry out a task for you may not be the most logical way for a person with a learning disability. Conversely, what might appear to be a complicated way of doing something may be the easiest way for the person with a learning disability to complete the task.
Remember that persons with learning disabilities may have nonlinear thought processes, which may seem confusing to persons without learning disabilities.
Be flexible with your approach. There are a variety of different ways to learn. For example, some people prefer lists and notes as the best means to learn, some people learn better from visual diagrams, and for others practice and repetition ensure success.
Accept that some tasks may take longer to perform or complete. Have realistic expectations with respect to deadlines.
Communicate with the person with a learning disability in a setting with minimal distractions.
Be aware that "symptoms" of learning disabilities may be more apparent or aggravated at the end of the day or when the individual is fatigued.
Don't assume that a person with a learning disability has understood, or conversely, failed to understand you. Politely ask whether or not you provided sufficient information. Clarify what you have said by summarizing the information. Be brief and to the point.
When a new or altered routine is necessary, notify the individual, provide explanation of what can be anticipated and reduce surprises and confusion.
Be aware that as situations change, so may the person's ability to process information and communicate. Just because a person's learning disability affects them in a particular way in one 57
setting, does not mean that it will affect them the same way in another setting. Do not be rigid or expect that the strategies and accommodations used in one setting will apply in a different setting.
Persons with learning disabilities may use assistive technologies, such as interactive videos, voice output/ text to speech systems, variable speech control tape recorders, or assistive software programs. Ask the person with the learning disability whether they use assistive technologies and how you can incorporate these technologies into your communication.
For More Information
This information is general and does not apply to all situations. Each person's disability and need for support are unique. ARCH Disability Law Centre's website contains links to organizations that can offer more information on interacting with persons who have a learning disability. Please see www.archdisabilitylaw.ca and click on Useful Links.
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Helpful Resources
DHC website www.dhcounsel.on.ca
The Human Rights Legal Support Centre www.hrlsc.on.ca.
Members’ Assistance Program for licensees of the Law Society of Upper Canada: http://www.myassistplan.com/
59 Resources and Links (Reach Canada) ~ http://www.conferenceboard.ca
~ Toolkit from Conference Board of Canada: http://www.conferenceboard.ca/accessibility/toolkit.aspx see “Making Ontario Workplaces Accessible to People With Disabilities, 2nd Edition” (Report, 189 pages, October 2, 2015) and French: « Trousse à outils de l’employeur » Rendre les lieux de travail de l’Ontario accessibles aux personnes handicapées, 2e édition. (Rapport, 211 pages, 2 octobre 2, 2015)
~http://yourlegalrights.on.ca/ (see employees’ rights section)
~https://www.labour.gov.on.ca/english/es/tools/srt/index.php (Ontario Ministry of Labour)
~Rules of Professional Conduct, Law Society of Upper Canada Lawyers’ obligations and Human Rights Law: See Section 6.3.1 Discrimination
See Section 6.3.1-3 Employment Practices and Duty to Accommodate
~Reach Canada strives to make Equality for All. In this effort, Reach staff and volunteers, from committee members and the Board of Directors, contribute to providing client support services and educational programs, fundraising events and activities. Volunteers are the backbone of the organization. Reach depends on the knowledge, expertise and support of individuals and organizations, including lawyers, mediators, community service providers, law students, members of the Ottawa community. Reach has two main focuses:
Legal Referral Services for people of all disabilities including their family members. Reach mobilizes a network of over 160 lawyers and mediators in Ottawa to help people with disabilities deal with legal problems related to issues such as employment, insurance, wills and powers of attorney, personal injury, and discrimination to name a few. Reach also refers clients to appropriate
60 community services if not a legal issue or Reach is unable to assist.
Educational & Outreach Services
Reach provides legal and resource information to persons with disabilities, family members, including lawyers, health and service providers.
Reach facilitates educational seminars on issues related to disabilities, often in cooperation with community organizations, professional service and health providers and the legal community. Reach organizes conferences on topical issues such as access to justice, employment equity, mental and physical health and services, long term disability and post-traumatic stress. Reach also organizes Advanced Seminars for the public and private sectors.
As a charitable, non-profit, self-funded organization, Reach depends upon the support of individuals and organizations to maintain its programs.
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The Law Society of Upper Canada| Barreau du Haut-Canada
TAB 5
ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
Tips
Colleen Bauman Goldblatt Partners LLP
Joanne Silkauskas, Executive Director ReachCanada, Equality and Justice for People with Disabilities
Robert Lattanzio, Executive Director ARCH Disability Law Centre
David Lepofsky, CM, O. Ont. Chair, Accessibility for Ontarians with Disabilities Act Alliance; Visiting Professor, Osgoode Hall Law School; Co-Chair, Barrier-Free Canada
April 6, 2017
cpd (Continuing Professional Development
LAW SOCIETY OF UPPER CANADA: ENSURING ACCESS TO YOUR FIRM’S OFFICE AND SERVICES FOR PEOPLES WITH DISABILITIES
CONSIDERATIONS FOR LAW FIRMS Prepared by Colleen Bauman, Goldblatt Partners LLP
Identify Barriers to Your Office and Services o Think about the physical space, methods of communication, technology and individual attitudes or biases o With respect to your on-line presences, there are services that can help you identify and address accessibility issues (i.e. Siteimprove)
Develop a Policy and Plan o AODA is the starting point o Plan should provide for removal of all barriers identified over time o Treat plan as a living document o Revise and amend plan as barriers are removed and new barriers identified o Revisit and revise plan at times of renovation or moves
Train your Staff and Lawyers o Be proactive by providing training at regular intervals o Consider both practical (i.e. guidelines for use of respectful and appropriate terminology etc.) and systemic issues (i.e. overcoming unconscious bias etc.)
Assign an Individual to Take Responsibility o Can be the same person who also receives and responds to complaints about accessibility o If you have multiple offices, have a point-person in each office
Seek Feedback From Clients o Where barriers and/or problems are identified through feedback, amend you plan to address those
Advocate for Your Client at All Stages of the File and in All Spaces o Outside of your office space, ensure your clients and/or witnesses have the necessary accommodations in place for mediations, arbitrations, tribunal hearings, court hearings etc. o Find out about the physical space in advance o Leave yourself sufficient time to make the necessary arrangements ahead
No One Size Fits All Approach o When faced with a new situation, inform yourself about your client’s needs and seek out the resources you need to provide your services in an accessible format
Be Proactive
1 LSUC Webinar: Ensuring access to your law office, prepared by Joanne Silkauskas, Reach Canada
-See Reach Canada project 2006, “Equality in Practice”, Promoting Responsive Legal Services for all Clients: A Guide for Student Legal Clinics on Accommodating Clients with Disabilities. https://www.oba.org/getmedia/1de8332b-1396-4317-a12f- bd4d737333a5/b7djamalova06.pdf and http://www.oba.org/getmedia/d2004428-17af-4cc3-8f7c- f00953832451/4_ReachCanada-EqualityinPracticeProject- AHandbookonDisabilityforLawProfessionals.pdf
-Train all employees: Receptionists, law and paralegal students, lawyers, partners, human resource staff
-Thorough Intake via phone/email: Conduct pre-meeting assessment of legal issues and discuss special requirements prior to first meeting will cover aspects of accommodation including support persons and interpretation needs
-Suggest client bringing in support person: family member, friend, personal support worker or social worker
-Don’t assume literacy, take time to review documents with clients to assess understanding
-Use Plain Language and take time
-Consider conducting clients meetings outside law office for a variety of reasons but mainly if office not accessible (rent space, home visit, hospital visits)
-Consider awareness raising through education and training: attend professional development on areas such as mental health; speak and consult with experts
SEE: www.cba.org/Publications-Resources/CBA-Practice-Link/Young- Lawyers/2014/Making-Your-Law-Office-Client-Friendly; Rules of Professional Conduct, Law Society of Upper Canada
2 Law Society of Upper Canada: Ensuring Access to Your Law Office and Services for People with Disabilities – April 6, 2017
Prepared by: Robert Lattanzio, Executive Director, ARCH Disability Law Centre
General starting points and suggestions regarding disability related accommodations and accessibility:
Know your obligations including those pursuant to Ontario’s Human Rights Code, Accessibility for Ontarians with Disabilities Act, and the Law Society of Upper Canada’s Rules of Professional Conduct; Consider your own assumptions about disability; Creating a more inclusive culture and space benefits everyone; Survey and identify barriers related to your services, office space, practices, policies and procedures and develop a plan to address them; Consider how your office communicates to clients and offer communication in accessible and alternate forms; Use clear and accessible language; Communicate directly with the person with a disability; Make efforts to eliminate the use of ableist language and promote appropriate disability related language; Don’t make assumptions; ask clients if there are accommodation related needs that you should be aware of from the outset; Accommodation is individualized; accommodations are as diverse as disability itself; Create a resource list for staff that may include contact information for supports and accommodations such as sign language interpretation and captioning; Ensure appropriate training for all staff and lawyers as well as others who may be in contact with clients such as building security; Be proactive and incorporate accessibility and inclusive design in all decision making; never stop exploring and considering inclusive options.
Helpful materials and resources as a starting point:
ARCH offers a free service to lawyers who represent persons with disabilities and who wish to consult on disability and accommodation related issues that arise in their case. For an appointment to consult with an ARCH lawyer, you can contact us at 416-482-8255, Toll Free 1-866-482-2724, TTY 1-866-482-2728, or [email protected].
ARCH Fact Sheets on Interacting with Persons who have a Disability http://www.archdisabilitylaw.ca/fact-sheets-interacting-persons-who-have-disability
ARCH Primer – Chapter 2 “Providing Legal Services for People with Disabilities”, and Chapter 4 “Capacity to Instruct Counsel: Promoting, Respecting and Asserting Decision-Making Authority” http://www.archdisabilitylaw.ca/node/807
3 Ontario Human Rights Commission, Policy on Ableism and discrimination based on disability, http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability
4 SAMPLE PREPARED BY DAVID LEPOFSKY
MEMORANDUM TO: Management Committee FROM: Re: Designating an Office Point Person on Disability Accessibility and Accommodation
I want to propose that our office designate one person to serve as our office/firm Disability Accessibility and Accommodation Point Person. This person could help ensure that clients with disabilities can fully benefit from the services that our office provides. We would mandate this individual to:
* gather information on measures that our office can take to ensure that people with disabilities can fully benefit from our services;
* make recommendations on steps we can take in the short run and the long run;
* keep us posted on new ideas or measures we can take;
* serve as the "go to" person if anyone in the office has a disability accessibility or accommodation issue needing help or advice;
* keep track of successes;
* keep us posted when we are considering any changes in the office, on whether they might present a disability accessibility problem.
We could try this for a few months and then see how it is working. We can rotate this role over time, once we have some more experience.
5 ENSURING ACCESS TO Your Law Office and Services for People with Disabilities
Brief to the Ontario Government on Necessary Revisions to the 2007 Customer Service Accessibility Standard (March 15, 2016)
Prepared by: Accessibility for Ontarians with Disabilities Act Alliance
ARCH Disability Law Centre
April 6, 2017
cpd (Continuing Professional Development
Table of Contents
1. Introduction ...... 2 2. Executive Summary ...... 3 3. Select Customer Service Barriers and Readily-Achievable Solutions ...... 5 a) Commitment to Barrier-Free Customer Service ...... 5 b) Designated Accessibility Customer Service Representative ...... 5 c) Ensuring Accessibility for Ontarians with Speech and Language Disabilities ...... 5 d) Letting Customers With Disabilities Know About Nearest Accessible Washroom And Transit Locations ...... 6 e) Providing Accessible Public Washroom Signs ...... 6 f) Posting Signage Requesting Compliance with Scent-Free Policy ...... 6 g) Accessible Parking ...... 7 h) Physical Barriers to Accessible Customer Service ...... 7 i) Ensuring Accessibility of “Point-of-Sale” and Immovable Debit/Credit Information Transaction Machines (ITMs) ...... 9 j) Ensuring Accessibility of Cash Registers or Tills with Price Display ...... 10 k) Accessible Drug Prescription Labels and Information ...... 10 l) Accessibility of Restaurant Menus ...... 11 m) Visual Fire Alarms ...... 11 n) Accessibility of Services and of Provincially-Regulated Financial Institutions that Offer Bank-Like Services ...... 11 o) Standard Symbol and Signage Use ...... 11 p) Reducing Loud Music in Public Spaces Where Customer Service is Offered ...... 11 q) Reinforcing Policies with Public Announcements ...... 12 r) Meaningful Enforcement Mechanisms ...... 12 Appendix A ...... 13
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Accessibility for Ontarians with Disabilities Act Alliance United for a Barrier-Free Ontario for All People with Disabilities www.aodaalliance.org [email protected] Twitter: @aodaalliance
ARCH Disability Law Centre www.archdisabilitylaw.ca
Brief to the Ontario Government on Necessary Revisions to the 2007 Customer Service Accessibility Standard
March 15, 2016
1. Introduction
In this brief, the Accessibility for Ontarians with Disabilities Act (AODA) Alliance and ARCH Disability Law Centre (ARCH) jointly present concrete, workable, and much-needed revisions to strengthen the Customer Service Accessibility Standard. The Ontario Government can easily implement these without excessive cost or delay.
The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is: "To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act." To learn about us, visit: http://www.aodaalliance.org.
Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee's broad, grassroots base. To learn about the ODA Committee's history, visit: http://www.odacommittee.net
ARCH Disability Law Centre is a specialty legal clinic dedicated to defending and advancing the equality rights of persons with disabilities in Ontario. We are a not-for-profit charitable organization whose staff reports to a volunteer elected Board of Directors, at least half of whom are people with disabilities. Our goal is to advance and defend the rights of persons with disabilities. To learn more, visit: http://www.archdisabilitylaw.ca.
On December 3, 2015, after getting input from its supporters, the AODA Alliance sent the Wynne Government a detailed submission on the Government’s proposed revisions to the Customer Service Accessibility Standard and Integrated Accessibility Standards Regulation. Our submission showed that the Government’s proposed revisions would not significantly improve the accessibility of Customer Service for people with disabilities in Ontario. In some ways, they would make the weak 2007 Customer Service Accessibility Standard even weaker. They would break Premier Kathleen Wynne’s December 3, 2012 written promise to never reduce any accessibility protections under the AODA. They would also wrongly preserve an unlawful provision in the Customer Service Accessibility Standard which impermissibly creates an
2 accessibility barrier. To see the AODA Alliance’s December 3, 2015 submission to the Wynne Government on its proposed revisions to the 2007 Customer Service Accessibility Standard, visit http://www.aodaalliance.org/strong-effective-aoda/12042015.asp
ARCH Disability Law Centre fully endorsed the AODA Alliance submissions and presented some additional comments to the Government.
As the final report of the Mayo Moran AODA Independent Review showed in 2015, Ontario lags behind schedule for reaching full accessibility by 2025. The Accessibility for Ontarians with Disabilities Act has not made a significant difference in the lives of people with disabilities, even ten years after the AODA was passed. The revisions that we propose would go a long way to changing the Customer Service Standard in a positive way.
Supplementing our earlier submissions, this new brief makes recommendations for specific revisions that the Wynne Government should enact to strengthen the Customer Service Accessibility Standard. Our recommendations are readily achievable in a short time, with little or no cost to obligated organizations. Any minimal cost is more than offset by an obligated organization’s increased profitability and productivity. Where we can, we indicate where comparable measures have been spelled out either in laws in other jurisdictions, or in “best practices” identified by government bodies or professional/business associations. These revisions, when implemented, will improve organizational or business success and help generate profits for obligated organizations. They reflect and help implement the existing requirements of the duty to accommodate customers with disabilities imposed by the Ontario Human Rights Code.
We urge the Ontario Government to assign senior Government officials to sit down at one table together with representatives from the disability community, the business sector, and the broader public sector, to discuss our recommendations and prepare an agenda for improving the 2007 Customer Service Accessibility Standard. We offer the proposals in this brief as examples of needed revisions to discuss. Through this dialogue, other barriers and solutions to them will no doubt emerge.
2. Executive Summary
This brief lists some examples of low or no cost readily-achievable requirements that will improve the Customer Service Standard and make it more effective for persons with disabilities. The Customer Service Accessibility Standard should be revised to include these measures now, as well as by implementing additional measures that require long term action. Examples of revisions here include: a) Ensuring that obligated organizations make a clear commitment to provide barrier-free and accessible customer service. b) Designating an employee within an organization’s existing staff to ensure accessible that customer service is provided, and that complaints about accessibility are heard and readily resolved.
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c) Communicating by diverse and adaptable methods. d) Advising customers with disabilities of the nearest available accessible washroom and transit locations. e) Providing accessible public washroom signs. f) Posting signage about scent-free policies. g) Establishing accessible parking. i) Requiring accessible “point-of-sale” and movable debit/credit information transaction machines (ITMs). j) Ensuring accessibility of cash registers or tills with price displays. k) Providing accessible drug prescription labels and information. l) Providing accessible restaurant menus. m) Implementing visual fire alarms. n) Making accessible any financial services and provincially-regulated financial institutions that offer bank-like services. o) Standardizing all signage for ease and consistency. p) Reducing intrusive loud music in public spaces where customer service is offered. q) Making public announcements that reinforce priority accessibility policies at an obligated organization’s establishment. r) Enforcing all priority policies that have been established for persons with disabilities. This includes designated seating, priority entry to public transportation and other policies designed to remove barriers. Without enforcing priority policies for persons with disabilities, these measures become meaningless.
This list is not exhaustive. We urge that revisions to the Customer Service Accessibility Standard ensure that needed accessibility and accommodations are provided to customers with all kinds of disabilities, including e.g. those labelled with intellectual, learning, mental health, communication, or mobility disabilities, or vision or hearing loss.
Appendix A provides a history of the Customer Service Standard and the Government’s review of it.
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3. Select Customer Service Barriers and Readily-Achievable Solutions a) Commitment to Barrier-Free Customer Service
The Customer Service Accessibility Standard requires obligated organizations to commit to providing accessible, barrier-free Customer Service to customers with disabilities. This policy should be publicly posted, e.g. on the obligated organization’s website and in the obligated organization’s establishment. b) Designated Accessibility Customer Service Representative
All organizations that provide goods, services or facilities to customers with disabilities should designate an existing employee to assist customers with disabilities, ensure compliance with customer service standards, and resolve customer service complaints. This “one-stop-shopping” approach helps organizations ensure accessible Customer Service while helping customers with disabilities know whom to approach.
This practice is mandated under the Americans with Disabilities Act (s. 35.107). Moreover, each Ontario-administered court facility commendably has a designated Courts Accessibility and Accommodation Coordinator appointed from among its court services staff.
If an obligated organization has a website, it should be required to clearly identify that there is an accessible Customer Service representative in their organization, and how to contact them. Contact information should include a variety of communication methods including both phone and email, in order to accommodate different communication disabilities.
If the obligated organization has other readily-available ways of announcing this to the public, such as on a telephone interactive voice response system, it should be required to announce that position on that line. Finally, any recorded messages including phone numbers should be repeated more than once, slowly, in plain language. c) Ensuring Accessibility for Ontarians with Speech and Language Disabilities
When serving a customer with a communication disability, accessible service should be seek to ensure that the customer is effectively understood. To achieve this, the obligated organization should be required to ensure that a customer service representative is specifically trained (beyond the standard accessible Customer Service training, given to all employees) in addressing a list of recurring communication supports. The Ontario Government could assist this by creating a free online training module to fulfil this need.
Communication Disabilities Access Canada (CDAC) defines this essential communication as a two-way process of understanding and expression of messages within contexts (page 2, http://www.communication-access.org/wp-content/uploads/2015/11/CDAC-Brief-on- Amendments-to-AODA-.pdf).
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d) Letting Customers with Disabilities Know about Nearest Accessible Washroom and Transit Locations
Where obligated organizations have not yet ensured the full physical accessibility of their public premises, customers with disabilities still need vital information. When persons with disabilities cannot use the washroom in, or park near, an obligated organization that provides goods, services or facilities, due to physical accessibility barriers, those obligated organizations can lose customers.
As an interim measure, a customer service accessibility representative could easily tell a customer with a disability the location of the closest accessible washroom, parking or public transit stop. Ensuring that an obligated organization can provide this would cost nothing, improve awareness of existing barriers, and would be quite helpful to customers with disabilities.
Further, the customer service accessibility representative can relay information about the accessibility measures in the office, store, or restaurant. For example, when making reservations at a restaurant, the representative should know of barriers that still exist within the space, remove any known readily-removable barriers, and ask the customer what further measures are needed? e) Providing Accessible Public Washroom Signs
When obligated organizations have public washrooms, they should be required to post accessible signage i.e. signs that include universal access symbols, Braille, large print and colour-contrasted raised letters. Further, if the washroom is not accessible, an accessible sign should direct users to the nearest accessible washrooms. These are not expensive. They are important for independent access.
The US Department of Justice requires signage to be acquired under the Americans for Disabilities Act (ADA) even in temporary situations such as emergency shelters. The signs should be installed “with raised characters and Braille on the wall adjacent to the latch side of the door and centered 60 inches above the floor and leave the existing sign in place on the door if removing it will damage the door,” (ADA Checklist for Emergency Shelters, 2007, pg. 42). f) Posting Signage Requesting Compliance with Scent-Free Policy
Individuals with invisible disabilities such as Multiple Chemical Sensitivities (MCS), or Idiopathic Environmental Intolerance (IEI), can easily be accommodated through the expanded visibility of no scent/fragrance policies. In addition, offices using cleaners should be required to use the least toxic or “green” cleaning products. All of us benefit from fewer toxins in the air. This signage, web postings, and related periodic announcements on the obligated organization’s public address system and telephone voice response system, where these communication systems already exist, will also serve as a low-cost or no-cost public education tool.
Posting signs in stores, offices, and customer service centers will promote understanding of, and responsiveness to, no scent policies. This policy should extend to scent policies in public spaces
6 including on public transit.
Massey Hall and Roy Thompson Hall have signage posted and messages on their phone services while customers wait to purchase tickets, announcing their scent free policies. See also the University of Toronto’s Scent-Free Guidelines and Information Poster, as an excellent example. (https://www.utm.utoronto.ca/health-safety/information-campaigns/u-t-scent-free-guideline) g) Accessible Parking
Parking can be the first interaction between customers and an obligated organization. While longer term accessibility measures are incorporated or implemented in the built environment, interim or temporary measures may be necessary and very helpful. If a parking lot does not contain any, or enough accessible parking, and when there is an available curb cut-out in place, a temporary measure can be put in place to secure more accessible parking.
The Americans with Disabilities Act Checklist for Polling Places, a document produced for comparable temporary accessibility needs by the US Department of Justice, describes the process for adding additional accessible parking spaces:
“Find a relatively level parking area near the accessible entrance and then designate the area for accessible parking spaces and adjacent access aisles. Use three parking spaces to make two accessible parking spaces with an access aisle. Traffic cones or other temporary elements may be used to mark the spaces and access aisles. Provide a sign designating each accessible parking space and make sure the access aisle of each space is connected to the accessible route to the accessible entrance.” (2004, pg. 8).
This parking measure should be accompanied by a curb ramp in order to achieve true accessibility as set out in the Oregon State University Built Environment Best Practices (Part 2: 5C3a, http://oregonstate.edu/accessibility/bestpractices).
Alternatively, when there is no nearby accessible curb cut-out and the obligated organization does not have a curb ramp, the organization’s accessible customer service representative should at minimum investigate and tell customers with disabilities about the nearest accessible parking spots available that they could use.
A recent example demonstrates this point. Various tribunals were using a local courthouse for their hearings. The police parked in all of the “handicapped” parking spots close to the court house, leaving persons with disabilities to park at the back end of the parking lot. This caused serious difficulties for persons with disabilities, especially in bad weather. They were late for their hearings. Sometimes people could not get to their hearings at all. This was only resolved when ARCH intervened and raised the possibility of a human rights application. h) Physical Barriers to Accessible Customer Service
Despite promising to do so “promptly” in the 2011 Ontario election, the Ontario Government has not enacted a comprehensive Built Environment Accessibility Standard under the AODA. The
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2013 amendments to the Ontario Building code did not require accessibility retrofits for existing buildings that are not undergoing a significant renovation, or in parts of those buildings where no significant renovation is underway. Moreover, those Ontario Building code amendments did not ensure that new buildings, or significant renovations, were fully accessible and free of physical barriers. The “Public Spaces” accessibility requirements in the Integrated Accessibility Standards Regulation, enacted under the AODA in 2012, only provide for limited accessibility, free from physical barriers, in a very limited range of public spaces.
The 2014 final report of the Mayo Moran AODA Independent Review concluded that there is a pressing need for action on built environment barriers, especially retrofits to existing buildings.
Built environment barriers must therefore now be addressed, where appropriate, in other AODA accessibility standards, to fill huge gaps that remain. Physical accessibility is an indispensable part of accessible Customer Service. If customers with disabilities cannot get into the facility where goods and services are provided to the public, they are already placed in a very disadvantageous position due to their disability.
As such, it is appropriate to address physical barriers to accessible Customer Service through revisions to the Customer Service Accessibility Standard. Nothing prevents the Government from addressing physical accessibility barriers through the Customer Service Accessibility Standard, where they impede access to Customer Service.
As a first step, interim measures are immediately needed to address readily-removable physical barriers that impede accessible Customer Service. We offer examples here:
(i) Many establishments that offer goods, services or facilities to the public have one, two or three steps at their entrance. They should be required to at least provide a movable ramp, except where to do so would cause undue hardship within the meaning of the Ontario Human Rights Code.
The provision of transportable ramps is a necessary accommodation for persons with mobility disabilities. A growing number of obligated organizations have accepted this. Ontario’s ground- breaking “Stop Gap” organization offers such temporary ramps at low cost.
These ramps need to be positioned in a way that ensures there are no barriers at the top and bottom of the ramp. The ramp should fit the specific width of the sidewalk, or landing beyond the steps, and allow for maneuverability of a mobility device.
Door handles should function without the need for tight grasping, pinching, or twisting. See the US Department of Justice’s Checklist on Polling Places (pg. 20).
Where manageable, doors should have automatic door openers, especially if they are used for public access and are heavy. Members of the public with no disability much prefer to use automated doors, especially if they are carrying things.
If the building has not yet been retrofitted, businesses and service providers can post a phone
8 number in the window at virtually no-cost so that customers with disabilities that prevent them from opening the door can contact someone inside.
(ii) Snow is an inevitable reality in Ontario winters. Yet, piling snow up on accessibility ramps and paths of travel need not be. The Customer Service Accessibility Standard should require that piling snow in those areas should be avoided, except where it is impossible to do so.
(iii) Obligated organizations should be required to remove movable physical obstacles from main paths of travel within an obligated organizations Customer Service areas, and on any outdoor public path of travel leading to the entrance. For example, where signage can be situated in a place where customers with vision loss or other disabilities won’t collide with it, this should be preferred over placing it in the middle of main traffic halls or aisles. Head-level obstructions should be required to be avoided, especially where the obstacle cannot be safely detected by the use of a white cane.
(iv) The Customer Service Accessibility Standard should be revised to designate required widths of aisles and heights of shelves for display of products for sale. These can be varied depending on whether the obligated organization is a large chain store, or a medium-size establishment, or a small “mom and pop” local store. Retail establishments want to know what they need to do to ensure accessibility. They don’t want to each have to spend the time and money to reinvent the wheel in this regard.
An obligated organization which, despite these efforts, cannot assure full physical accessibility of its public areas should be required by the Customer Service Accessibility Standard to create and publicize alternative ways for people with disabilities to access their goods, services, or facilities. This could include a phone number to call for curb-side shopping, offers for a store employee to help a person shop from home using Skype etc. i) Ensuring Accessibility of “Point-of-Sale” and Immovable Debit/Credit Information Transaction Machines (ITMs)
Increasingly, retail outlets and other businesses that use point-of-sale transaction machines (or ITMs), have shifted from debit/credit mechanisms that were attached to tills with thick, but malleable and movable cords, to fixed position ITMs that cannot be adjusted for wheelchair users.
Several US jurisdictions, including those under the Architectural Access Board (AAB) of Massachusetts, stipulate explicit accessible range of motion measurements that must met in all retail locations. Introducing a new point-of-sale device immovable device would not be acceptable in these jurisdictions, where the cord-connected devices would be acceptable.
The Customer Service Accessibility Standard should be required to ensure that these devices are positioned so that they are either reachable, or readily adjustable to be reachable. We propose that these new fixed position ITMs be made adjustable by a lowering mechanism, or a return to the cord devices. Since these technologies are rapidly changing, an obligated organization should find it easy to adjust these installations over a short business cycle.
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Point-of-sale devices that have a numeric keypad for keying in a PIN code should have a raised dot on the 5 and the “ok” buttons, to assist those with vision loss or dyslexia. If the device does not come with it, the obligated organization can fix this easily, e.g. with a drop of nail polish. Where available, they should chirp when each key is clicked, to assist those customers to know that the click registered.
As well, despite the inclusion of Information and Communications Standards in the AODA Integrated Accessibility Standards, point-of-sale devices are increasing using inaccessible touch- screen technology. To introduce new inaccessible point-of-sale devices is a clear violation of the duty not to create new barriers, imposed by the Ontario Human Rights Code. Apple iOS products all include measures to make touch-screen technology accessible. There is no reason why new point-of-sale devices, deployed in Ontario, do not also always include accessibility technologies.
The information and communication provisions of the Integrated Accessibility Standards Regulation have not prevented this problem. People with disabilities cannot wait for years until the Ontario Government completes a revision of those provisions, to solve this problem. The longer the Ontario Government delays addressing it, the more preventable new barriers will be created in the meantime. j) Ensuring Accessibility of Cash Registers or Tills with Price Display
The price display on cash registers should use a large font, with proper colour contrasting. To assist customers with low vision.
In addition to tills with large font displays, customers with certain disabilities need the name of products and their price to be in larger font. One person reported that he has to carry a magnifying glass with him and bend close to produce in grocery stores because he is unable to read the signage. Many experience gradual vision loss as they age. For example, drug stores cater to many among the senior population. k) Accessible Drug Prescription Labels and Information
Large drug store chains or other large chains that have pharmacies should be required to offer accessible prescription labelling services. This technology is now readily available. It would let customers with print disabilities independently read their prescription information.
Similarly, those establishments should be required to offer to print prescription labels and information in large font if requested. An American drug store chain was offering this service over a decade ago.
Finally, large retail establishments should have carry to car service for customers with disabilities who may be unable to carry groceries by themselves. This is included in Manitoba’s Discussion Paper on an Initial Proposed Customer Standard, April 17, 2014.
10 l) Accessibility of Restaurant Menus
There are several low cost options for restaurants to make menus available in an accessible format for those who cannot read print due to such things as vision loss, or dyslexia. Braille menus can be ordered for production for a few dollars. A large print menu can be easily printed for pennies. Posting the menu online in an accessible format allows a person using a smart phone to have its screen-reader read the menu aloud to him or her. m) Visual Fire Alarms
Having visual fire alarms installed in organizations that offer goods, services or to the public is essential for personal safety for persons who are Deaf, deafened or hard of hearing. Yet despite the irremediable consequences of not having a visual alarm, they are not required in existing or older organizations. See: https://www.orhma.com/Portals/0/PDF%20Files/GovtRelations/AccessibilityHotVisualFireAlar ms2007.pdf n) Accessibility of Services and of Provincially-Regulated Financial Institutions that Offer Bank-Like Services
Organizations that provide financial services should have specific requirements to provide printed financial statements in an accessible format. Such financial records are very important to an individual and contain very private information. A person should not have to ask others to read that private information to them aloud.
Provincially-regulated banking institutions that provide services to their customers should implement technology that can allow customers with disabilities to conduct banking transactions at home via webcam. This service has been adopted in the UK by Lloyds Bank of London with success. Provincially-regulated financial institutions that offer bank-like services should be mandated to do the same.
Existing time lines for ensuring website accessibility should b be accelerated for this class of organizations. o) Standard Symbol and Signage Use
Where possible, signage should use consistent styles and symbols. Universal symbols and signage help ease-of-use for the public including people with disabilities. Washrooms, entrances and exits, automatic door openers, and ATM and ITM points-of-service should use identical symbols and colours to allow for recognition as well as, seamless and independent use. p) Reducing Loud Music in Public Spaces Where Customer Service is Offered
Loud music in public spaces and service areas of obligated organizations that provide goods, services or facilities is likely annoying to many if not most customers. For people with certain disabilities, this loud music can go beyond annoyance. It can constitute a real and serious barrier.
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This is raised in the Manitoba Discussion Paper on An Initial Proposed Customer Service Standard. For some people with autism, it can be the same as shining a blinding light in one’s eyes. For a person who is hard of hearing, it can prevent carrying on a conversation. For people with vision loss, it can make it hard or even impossible to navigate independently, since sound is a key part of independent orientation and mobility.
The Customer Service Accessibility Standard should be revised to require obligated organizations to have a policy that they will reduce the music volume or turn it off, when requested based on a disability-related accommodation need. This policy should be posted and periodically announced, where the obligated organization has regular spoken announcements or a telephone interactive voice response system. Where the obligated organization has a website, it should be posted there. The obligated organization should include, in its accessible Customer Service training, a requirement to train Customer Service staff on this policy and on how to turn down the volume. One might be surprised to learn that in some retail establishments, many employees that serve the public have no idea how to turn down or off the music volume, or even if it is permitted. q) Reinforcing Policies with Public Announcements
As well, many of the above barriers and solutions are already being used by service providers. For instance, some public transportation outlets have adopted priority measures for serving persons with disabilities (for example, persons with disabilities enter a TTC bus first to ensure proper ramp use, and then have priority seating at the front of the bus).
These processes are helpful to ensure the access to accessible public transportation for persons with disabilities. However, as with many other accessibility measures, enforcement is a concern. Posted signage and visual announcements are encouraged, but should be augmented by audible public announcements that reinforce the need for priority service and act as public education tool on the existing policies. r) Meaningful Enforcement Mechanisms
Even when obligated organizations have put policies and practices in place, the lack of meaningful enforcement mechanisms makes any progressive measures far less effective and useful for people with disabilities.
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Appendix A
Background to the Customer Service Accessibility Standard and the Government’s Review of It
On November 9, 2015, the Wynne Government posted online a summary of changes it proposes to make to the 2007 Customer Service Accessibility Standard and to the 2011 Integrated Accessibility Standards Regulation. Both accessibility standards were enacted under the Accessibility for Ontarians with Disabilities Act (AODA). Around January 29, 2016, the Government then posted for public comment the text of the proposed amendments to these accessibility standards on which it had invited public input late in 2015. The Government has given the public up to March 14, 2016 to provide feedback.
The Government enacted the Customer Service Accessibility Standard in 2007. It was the first accessibility standard enacted under the AODA. It was enacted just two years after the AODA was passed in 2005.
The Customer Service Accessibility Standard was based on recommendations by the Customer Service Standards Development Committee which the Ontario Government appointed under the AODA. Working as the first AODA Standards Development Committee, that committee did not operate with all the protections for people with disabilities that we later secured in 2007 promises from the Ontario Government. It did not include equal representation by people with disabilities. It did not vote on its proposals clause-by-clause. Disability sector representatives did not have the benefit of dedicated staff from the Accessibility Directorate of Ontario to assist them in their work.
The Ontario government promised all those reforms to the standards development process in the 2007 Ontario election. That was too late for the Customer Service Standards Development Committee. It was therefore not surprising that the 2007 Customer Service Accessibility Standard was very weak. The lopsided process by which it was developed tilted decisively against people with disabilities.
Shortly after the 2007 Customer Service Accessibility Standard was enacted, the AODA Alliance made public a detailed critique of its deficiencies. That analysis remains valid today. The September 12, 2007 AODA Alliance analysis of the Customer Service Accessibility Standard is available at http://www.aodaalliance.org/strong-effective-aoda/09122007.asp
Under the AODA, the Government was obliged to launch a review of the 2007 Customer Service Accessibility Standard by an AODA Standards Development Committee within five years of its enactment. That had to begin by the 2012 summer. The Government did not launch that mandatory review until the second half of 2013. It appointed Ontario’s Accessibility Standards Advisory Council (ASAC) to conduct that review.
In March 2014, the Government made public, for public comment, ASAC’s initial proposal for making changes to the Customer Service Accessibility Standard. ASAC’s initial proposals for revisions were very weak and inadequate. They were in part counterproductive and harmful to
13 people with disabilities.
On April 4, 2014, the AODA Alliance submitted a detailed 50-page brief to ASAC. It gave our feedback on ASAC’s initial proposals. It showed what was wrong with both the original Customer Service Accessibility Standard and with ASAC’s proposals for revisions to that standard. The AODA Alliance’s brief made constructive recommendations on what is needed to strengthen the Customer Service Accessibility Standard.
After receiving input from the public, ASAC formulated its final proposals to the Government on proposed revisions to the 2007 Customer Service Accessibility Standard. The Government made ASAC’s final recommendations for revisions public on November 7, 2014.
On November 12, 2014, the AODA Alliance widely circulated ASAC’s final proposals, in an AODA Alliance Update that strongly criticized them as inadequate. That Update stated:
“We urge the Government to immediately instruct the Accessibility Directorate of Ontario to develop meaningful, strong revisions to the Customer Service Accessibility that are not constrained by the weak and counterproductive proposals that ASAC has submitted. The Accessibility Directorate of Ontario is part of the Ministry of Economic Development, Employment and Infrastructure – the Ontario Government Ministry with lead responsibility to implement and enforce the AODA.
The Government should use the AODA Alliance’s April 4, 2014 brief to ASAC as the basis for these reforms. We would welcome the chance to work with the Government and other stakeholders on this.”
One year later, on November 9, 2015, the Government made public a summary of the changes it proposed to make to the 2007 Customer Service Accessibility Standard and the 2011 Integrated Accessibility Standards Regulation, followed around January 29, 2016 with the actual text of those proposed revisions.
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