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ARCH Alert - January 16_ 2004 - WORD

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ARCH Alert - January 16_ 2004 - WORD Powered By Docstoc
					                            I.

ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
425 Bloor Street East, Suite 110  (416) 482-8255 (Main)      1 (866) 482-ARCH (2724) (Toll Free)
Toronto, Ontario M4W 3R5          (416) 482-1254 (TTY)       1 (866) 482-ARCT (2728) (Toll Free)
www.archlegalclinic.ca            (416) 482-2981 (Fax)       1 (866) 881-ARCF (2723) (Toll Free)
                                                                                        January 16, 2004


ODSP Update:                                            Effective 24 December 2003, the Liberal
Lifetime Ban Repealed!                                  Government has revoked the regulation that
by Dianne Wintermute, Staff Lawyer                      prohibited people convicted of social
                                                        assistance fraud from collecting social
Dalton McGuinty’s Liberal Government has                assistance. This means that the lifetime ban
honoured one of its campaign promises – the             and the three- and six-month bans will no
repeal of the lifetime ban.                             longer apply to social assistance recipients
                                                        convicted of fraud. Unfortunately, at this
The     Harris    Conservative    Government            stage, we do not know what will happen to
introduced a law that initially prohibited
people convicted of social assistance fraud              INSIDE THIS ISSUE
from receiving social assistance for three                      ODSP Update: Lifetime Ban Repealed!
months after a first conviction and six months           1
for any subsequent conviction. This law was                     ARCH Delivers a Disability Law Primer
later changed to say that beginning in April of
                                                         2
                                                                ODA Update: Message from the Minister
2000, a person convicted of social assistance            3
fraud could never receive social assistance                     A Wrongful Path: “Wrongful Birth” and
again.
                                                         4      “Wrongful Life” Torts Emerge in Canada

Many of you will remember that the ban was
                                                         5      Ministry Consultation Regarding
                                                                Disabled Person Parking Permits
first challenged by Kimberly Rogers.
Unfortunately, the courts were not able to               6      Hearing to Consider Home Care Cutbacks
                                                                Ministry Policy Preventing
determine the constitutional validity of the law,        8      Access to ODSP Benefits
because Kimberly died (while eight months
pregnant) serving a sentence of house arrest             9      Tax Update
for her conviction. Four other people who
were banned from collecting social assistance            9      Health Privacy Legislation Introduced
also challenged the lifetime ban. Their case             10     Litigation Update
(called Broomer v. Attorney General of
Ontario) was scheduled to be heard in                    11     Human Rights Update
                                                                New in our Library
October of 2003. However, because the                    13
Liberal government had just been elected,
they asked for, and the Court granted, an                14     A New Report on Canadians with Disabilities
adjournment of the case.                                 15     Legal Notice: Law Firm Considering
                                                                Challenge to Cost of Prescription Drugs



                                                    1
ARCH Alert                         www.archlegalclinic.ca                           January 16, 2004
the people  approximately 200  who were              As a member of the Steering Committee on
convicted of fraud and therefore became                Social Assistance, ARCH and members of the
subject to the lifetime ban before the                 Income Security Advocacy Centre and the
regulation was revoked.                                Ontario Social Safety Network participated in
                                                       the OMSSA Task Force. Recently, the Task
At the same time that many people were                 Force released a report that discusses
applauding the repeal of the ban, the                  “guiding principles” for those involved in the
Government changed some of the rules                   eligibility review process and/or fraud
regarding when referrals to the police get             investigations. It lists factors to be considered
made. This may, unfortunately, cause an                when a referral to the police is being
increase in the number of people who                   considered and it also discusses a number of
become the subject of fraud investigations.            possible alternatives to prosecution.

On 12 January, Minister of Community and               ARCH believes that the Task Force report is
Social Services Sandra Pupatello stated that           still a very valuable tool in assessing whether
“social assistance administrators have been            a case should be referred to police for
directed to refer all suspected cases of fraud         investigation or prosecution. Someone’s life
to police for investigation.” A review of the          circumstances are very relevant in the
Ontario Works (OW) and Ontario Disability              assessment of whether there might be “intent”
Support Program (ODSP) Policy Directives               to commit fraud or “reasonable grounds to
has confirmed this: cases where there is a             suspect” fraud. If the Task Force report is
reason to suspect intent to commit fraud must          used, it will prevent needless referrals to the
be referred to the police. The OW Policy now           police.
reads: “Where sufficient evidence exists to
suspect intent to commit fraud, the case must          The revocation of the lifetime ban and the
be referred to police for possible criminal            three or six month bans from receiving social
prosecution.” The ODSP Directive states that           assistance only applies to cases where
if “there are reasonable grounds to suspect            someone is convicted of fraud. It must be
fraud, the matter must be referred to the              pointed out that people may still receive three
police for possible criminal investigation.”           or six month administrative suspensions of
Under the old Policy Directives, referral to the       their benefits if they break certain other social
police was more clearly discretionary.                 assistance rules, such as quitting or being
                                                       fired from a job without just cause or not
The issue of making referrals to the police            meeting their OW participation requirements.
was considered at an Inquest into the death
of Kimberly Rogers. One of the Jury                    ARCH will continue to work with other
recommendations was that the Ontario                   community groups and activists to ensure that
Municipal Social Services          Association         the Government lives up to some of its other
(OMSSA) create a Task Force to develop a               promises to low-income Ontarians, including
model to be used throughout Ontario to help            raising the social assistance rates.
assess whether cases involving fraud
allegations should be referred to the police.          
The Jury further recommended that this
                                                       ARCH Delivers a Disability Law Primer
model include an evaluation of the social
                                                       by Kit Stone, Litigation Assistant
assistance recipient’s life circumstances and
the consequences of a conviction for the
                                                       In partnership with Pro Bono Law Ontario and
recipient and/or their dependants.
                                                       the Law Society of Upper Canada, ARCH
                                                       presented a continuing legal education

                                                   2
ARCH Alert                         www.archlegalclinic.ca                           January 16, 2004
program on 27 November 2003. The                       Message from the Minister
program, titled “A Disability Law Primer,” was         To ARCH Alert Readers
offered free-of-charge to lawyers in exchange          by Dr. Marie Bountrogianni,
for their agreement to accept at least one pro         Minister of Children’s Services
bono case referred to them by ARCH. The                Minister of Citizenship and Immigration
event was a great success, with over 90
participants!                                          As Minister of Children's Services and
                                                       Minister of Citizenship and Immigration, it is
Speakers at the program were Harry Beatty              my great honour and privilege to have
(lawyer, tax consultant, and former ARCH               responsibility for accessibility issues in
staff), and Phyllis Gordon, Bill Holder, Lana          Ontario.
Kerzner, and Dianne Wintermute of ARCH.
Several important topics were covered,                 The McGuinty government is committed to
including the following:                               creating a province where there is increased
                                                       opportunity for everyone. We want Ontario to
capacity                                               be a place where people of all abilities have a
representing persons with disabilities                 chance to participate fully and achieve their
the duty to accommodate                                potential.
income tax
estate planning                                        The McGuinty government is committed to
income support programs such as ODSP and               moving forward on improving accessibility.
CPP(D)                                                 Through accessibility planning over the last
supports programs funded by Ontario                    18 months, we have seen the beginning of
ministries                                             positive change towards accessibility and
                                                       inclusion.
The materials that were produced and
distributed at the program are in the process          We will listen to ideas and input from
of being mounted on the ARCH web site;                 interested individuals and groups across the
several documents have already been                    province. Stakeholder input will play an
posted. The materials will be updated on an            important role in helping our government
ongoing basis to incorporate changes to the            develop viable measures to make the ODA
law in these areas and new sources of                  more effective. I have already met with key
information. Similar programs will be offered          provincial disability organizations to begin to
throughout the Province in coming months               obtain input. Our strategy also includes
which we hope will be similarly successful.            meeting with students with disabilities, private
                                                       sector     leaders,      municipal     advisory
                                                     committees, ethno-cultural organizations, and
ODA Update                                             other interested stakeholders.

The McGuinty Government campaigned on a                The government recognizes and applauds the
promise to pass, within one year of forming            work of ARCH to further disability rights. In
government, a “strong and effective”                   December, I had the pleasure of meeting with
Ontarians with Disabilities Act. As indicated in       Phyllis Gordon, Executive Director of ARCH,
what follows, the Minister responsible for the         and I look forward to working together in the
ODA will be consulting with respect to how             future to better address the needs of people
the ODA may be strengthened, and she looks             with disabilities in Ontario.
forward to hearing from ARCH Alert readers.


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ARCH Alert                          www.archlegalclinic.ca                            January 16, 2004
Input from the members of ARCH will help us              are  at least in theory  no longer
gain a deeper understanding of the barriers              responsible. (When someone reaches
that directly and indirectly impact the daily            adulthood and requires monetary assistance
lives of people with disabilities and their              it is assumed to be the obligation of the state,
families. Full accessibility benefits all of us.         rather than of the parents, to provide help.)
                                                         Damages in wrongful life cases allow for
                                                       damages to be recovered beyond a child's
                                                         age of majority since the damages for a
A Wrongful Path:                                         ‘wrongful’ life presumably accumulate until life
                                                         ends.
“Wrongful Birth” and “Wrongful Life”
Torts Emerge in Canada
                                                         Wrongful birth was initially rejected in Canada
by Lesli Bisgould, Staff Lawyer
                                                         but it has now been accepted, as it is in the
                                                         United States and the United Kingdom.
New torts and a disturbing trend are emerging
                                                         Wrongful life is not yet accepted in Canadian
in Canada. “Tort” is the word used in the legal
                                                         law; Manitoba's Court of Appeal has rejected
context to describe an actionable wrong                 it but three Ontario cases have been
harm done by one party to another, for which             permitted to go to trial for the issue to be
the harmed party can sue. Negligence is a                considered here. It has been accepted in
common tort: if a person slips and falls on her          California and Washington, while rejected in
own living room floor it is an accident, but if a        many other States, and Minnesota has
person slips on another person’s floor, and              passed a law prohibiting it altogether. As one
the floor was in a poor state of repair, that            might imagine, beyond the disability
could be a tort.                                         implications of these torts there are also
                                                         abortion issues with their own political
The two new torts to watch are “wrongful                 dynamic.
birth” and “wrongful life.”
                                                         An interesting aspect of the development of
Wrongful birth is a tort asserted by parents of          this area of law to date is how these cases do
a child born with a disability, disease, or ‘birth       not generally seek or award general damages
defect,’ who claim damages against health                but only special damages. General damages
practitioners for the failure to conduct genetic         are intended to compensate for harms that
testing, to warn of the risks of medication or           are hard to quantify, such as pain and
pre-existing illness, or to successfully perform         suffering, while special damages compensate
an abortion. The parents claim that, had they            specific and quantifiable losses, such as out-
been aware of the true state of affairs, they            of-pocket expenses and loss of future
would not have had the child in question and,            earnings. There seems to be a public policy
as a result, they have suffered damages and              concern that awarding general damages in
been burdened with the child and associated              these cases would be tantamount to saying
costs.                                                   that having a life with a disability is worse
                                                         than having no life at all. It is assumed that
Wrongful life is a similar tort but it is asserted       the same message is not being conveyed if
by the child, through his or her parents acting          the damages awarded are for disability-
as litigation guardians, rather than by the              related expenses.
parents.
                                                         The distinction, however, makes no sense.
Damages in wrongful birth cases tend to be               Regardless of the kind of damages being
limited and are assessed only until the child            awarded, the devaluing of certain kinds of
becomes an adult, at which point the parents

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ARCH Alert                         www.archlegalclinic.ca                            January 16, 2004
people is inherent in the claim itself. The            person parking permit be issued if two criteria
basis of the claim is that a health practitioner       are satisfied, as follows:
negligently failed to provide the opportunity to
prevent or abort the pregnancy of an                   the applicant “is unable to walk unassisted for
‘undesirable’ person. The policy concern is            more than 200 metres without great difficulty
the same no matter what kind of                        or danger to his or her health or safety” and
compensation is sought.
                                                       the applicant submits a certificate of a
It may be that courts have tried to rationalize        medical practitioner “certifying that the
the constrained development of these torts in          applicant is a disabled person and setting out
a sympathetic effort to help families with             whether the disability is temporary or
compelling financial challenges. Yet no matter         permanent and, if temporary, the anticipated
how well-intentioned the motivation, and no            length of time the disability is expected to
matter how financially important these cases           continue, if known.” For this purpose, a
may be to individual parties, their broader            “medical practitioner” can be a physician,
implications  the ideas they are entrenching          chiropractor,       occupational    therapist,
in Canadian society  are cause for serious            osteopath, or physiotherapist who is legally
concern. ARCH will continue to monitor the             qualified to practice in Canada.
development of these new torts.
                                                       However, the eligibility criteria that the
                                                     Ministry requires individuals to meet do not
                                                       conform exactly to those set out in law. Their
Ministry Consultation Regarding                        criteria are reproduced in the application form,
Disabled Person Parking Permits                        and are stated as follows: “the applicant is
by Lana Kerzner, Staff Lawyer                          unable to walk 200 meters (218 yards)
                                                       unassisted in 8 minutes or less without great
A person with a disability may obtain a                difficulty or danger to health or safety.”
“disabled person parking permit” to which
certain parking privileges are attached. The           The Ministry imposes further conditions on
goal of the permit is to minimize accessibility        eligibility which are also not contained in the
barriers in the context of parking. To obtain          law, but which are set out in the application.
such a permit, an individual must submit an            Firstly, the Ministry states that an individual is
application to the Ontario Ministry of                 not eligible if the disability lasts less than two
Transportation (Ministry). Permits are only            months. Secondly, the Ministry defines
granted to individuals who meet certain                “unassisted” as “without the aid of a mobility
eligibility criteria.                                  assisting device or any person.”

The Ministry is currently undertaking a                General information about disabled person
stakeholder consultation on the issue of               parking permits is available on the Ministry
eligibility criteria for disabled person parking       web site (www.mto.gov.on.ca).
permits. ARCH will be submitting a response
and we would like your feedback.                       Ministry Consultation

Elements of Eligibility Criteria                       The Ministry sent out letters to a number of
                                                       organizations seeking feedback on eligibility
The eligibility criteria are legal requirements        criteria. The letter states that they have
and are set out in the regulations to the              “received several complaints from persons
Highway Traffic Act (Ontario Regulation 581,           with disabilities, their families and friends that
s. 2(1)). The law requires that the disabled
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ARCH Alert                          www.archlegalclinic.ca                          January 16, 2004
disabled person parking permits are being               chair, walker brace, help of another person,
used by people who are not eligible for the             crutches, cane, etc?)”
program.” The Ministry states that the most             should visual impairment qualify an individual
frequent feedback they receive is that permits          for the permit?
are too easy to obtain. There is an impression          should infants under the age of two be eligible
that people who do not truly need permits are           for a permit?
nevertheless able to obtain them, which                 are there other medical conditions that should
causes parking spaces designated for                    qualify for a permit?
persons with disabilities to be difficult to get.       are there any medical conditions that are
The Ministry is considering whether the                 severe enough and permanent that should
current eligibility criteria are contributing to        not require a medical re-certification to renew
this perceived situation. It is in this context         the permit?
that they have initiated their consultation.
                                                        We encourage you to provide us with general
If the Ministry has not contacted your                  comments on any other aspect of the
organization and you wish to make                       disabled person parking permit program. We
submissions, you may contact Godwin Ekere,              would    appreciate   your   feedback by
Program Contact, by telephone (416-235-                 26 January 2004. Please e-mail your
4896), fax (416-235-4646), or e-mail                    comments to Lana Kerzner, Staff Lawyer, at
(Godwin.Ekere@mto.gov.on.ca). The Ministry              kerznel@lao.on.ca.
is interested in feedback on eligibility criteria
as well as other aspects of disabled person             
parking permits. Submissions are due by
29 January 2004.
                                                        Hearing to Consider
                                                        Home Care Cutbacks
ARCH Wants Your Opinion                                 by Lana Kerzner, Staff Lawyer

ARCH has been asked to participate in the               In Ontario, Community Care Access Centres
Ministry’s consultation and to respond to a             (CCACs) provide free home care services.
questionnaire which they sent with their                These services include nursing, social work,
consultation request. We would like to provide          help with daily activities, and homemaking.
a response as reflective of persons with                CCACs are funded by the Ministry of Health
disabilities as possible and, as such, are              and Long-Term Care.
soliciting your input.
                                                        For well over a year, CCACs have been
Please provide your opinions to us on the               cutting back or discontinuing homemaking
following issues. The issues set out below are          services. Homemaking services include
taken     directly   from     the    Ministry’s         house cleaning, laundry, and preparing
questionnaire.                                          meals. A number of CCACs throughout the
                                                        province have created their own internal
should the Ministry criteria, as set out above,         policies to remove these services. They are
continue to apply?                                      doing so not because their clients are not in
should the permit “be restricted to persons             need of homemaking services, but because
whose disabilities are profound and visibly             the CCACs do not have enough money to
identifiable? (Particularly, restricting DPPP to        provide those services.
persons with disabilities who require
orthopaedic assisted devices such as wheel              The cutbacks are now the subject of a case
                                                        that is soon to be heard before the Health
                                                        Services Appeal and Review Board. The case

                                                    6
ARCH Alert                          www.archlegalclinic.ca                           January 16, 2004
involves an individual, Ian Black, who is in            If Your Home Care is Cut
receipt of services from the Ottawa-Carleton
CCAC. Mr. Black’s homemaking services                   If you receive home care services from a
were terminated as a result of a policy that            CCAC and are told that your services will be
was implemented by his CCAC to eliminate                cut or terminated, you have a right to
all homemaking services to its clients. The             complain to the CCAC directly. The law says
CCAC subsequently changed its policy to                 that every CCAC must have a complaint
allow for some limited homemaking services,             process. Contact your CCAC case manager
but this level is alleged to be insufficient to         and ask for a copy of the complaint
meet Mr. Black’s needs. The CCAC justifies              procedures as well as a written explanation of
its policy on the basis of scarce resources.            the reasons for the CCAC’s decision. Follow
One of the major issues in this case is                 the complaint process to get a final decision.
whether the CCAC has the power to initiate              The law says that the CCAC must make a
such a policy.                                          decision and give it to you in writing within 60
                                                        days from the date that you made your
Any member of the public can attend the                 complaint. If you are unhappy with the final
hearing. It will be held on 18-19 February in           decision then you can appeal to the Health
the Diplomat Room of the Embassy Hotel &                Services Appeal and Review Board.
Suites, 25 Cartier Street, Ottawa and on
20 February at the Health Services Appeal               For more information about home care
and Review Board, 151 Bloor Street West,                complaints and appeals, you may refer to a
Toronto. Mr. Black is being represented by              pamphlet, “Home Care Complaints and
lawyers named Ernest Tannis and Perry                   Appeals,” which was written jointly by ARCH
Brodkin. For more information about the case,           and the Advocacy Centre for the Elderly
you may contact Mr. Brodkin by telephone at             (ACE), and was edited and produced by
416-482-3482.                                           Community Legal Education Ontario (CLEO).
                                                        It can be ordered through CLEO’s web site
ARCH encourages as many people in the                   (www.cleo.on.ca) or by calling CLEO at 416-
community as possible to attend the hearing             408-4420. For general information about how
to show your support. If you plan to attend be          to begin an appeal to the Health Services
sure to contact the Health Services Appeal              Appeal and Review Board, you can contact
and Review Board the day before the hearing             the Board directly (see contact information
to confirm that the hearing is still taking place       above).
and details of the location. The Board may be
contacted by telephone (416-327-8512 or 1-              Besides being a legal issue, this is also a
866-282-2179), fax (416-327-8524), or e-mail            political issue because it is the government of
(hsarb@moh.gov.on.ca).                                  Ontario that decides how much money each
                                                        CCAC gets. You may want to contact your
It is important to follow the progress of the           Member of Provincial Parliament (MPP) for
case of Mr. Black. You may obtain a copy of             help.
the Board’s final decision in the case by
requesting it from the Board. If Mr. Black wins         You do not need a lawyer for any stage of the
his case, then you may wish to use that                 complaint and appeal process. But you do
decision to assist you if you are involved in a         have the right to hire a lawyer if you want
similar case.                                           one. In particular, if you want to appeal to the
                                                        Board, it is a good idea to have a lawyer
                                                        because it is a formal legal process. For
                                                        telephone advice or a referral to a lawyer

                                                    7
ARCH Alert                         www.archlegalclinic.ca                          January 16, 2004
regarding home care, you may access                    broadly the legal entitlement that ODSP
ARCH’s Summary Advice and Referral                     recipients have to transportation costs for
Service by calling ARCH. Additionally, for             medical treatment. Unfortunately, the Ministry
legal advice and/or representation, you are            is employing a narrow interpretation with
advised to contact your local community legal          respect to the entitlement.
clinic or a lawyer. However, not all community
legal clinics and lawyers can help with home           In a Policy Directive titled “Mandatory Medical
care issues. You can usually find the                  Necessities,” the Ministry takes the position
community legal clinic nearest you by looking          that in order for a recipient to be reimbursed,
under “Legal Aid” in the white or yellow pages         the medical treatment must be provided by a
of your phone book. You can also call Legal            professional designated under the Regulated
Aid Ontario at 1-800-668-8258 (or, in Toronto,         Health Professionals Act (RHPA). As a
416-979-1446), or go to their web site                 consequence of the policy, the Ministry
(www.legalaid.on.ca.) For referral to a private        routinely refuses to reimburse costs incurred
bar lawyer, you may wish to access the                 with respect to transportation to and from
Lawyer Referral Service by calling 1-900-565-          treatments conducted by professionals not
4577. Through this service you will receive a          regulated under the RHPA including therapy
30-minute free consultation, but a $6.00               conducted by social workers, water therapy
charge will be added to your phone bill.               conducted by fitness instructors, and
                                                       counselling conducted by sexual assault
                                                     counsellors. The Ministry refuses to provide
                                                       reimbursement even where a professional
Ministry Policy Preventing                             regulated under the RHPA has prescribed the
Access to ODSP Benefits                                treatment being provided by the professional
by Bill Holder, Staff Lawyer                           who is not regulated under the RHPA.
Persons who are in receipt of benefits under           In case after case, individual recipients are
the Ontario Disability Support Program Act             forced to appeal Ministry refusals to
(ODSPA) are having a difficult time accessing          reimburse their transportation costs to the
certain benefits because of a policy of the            Social Benefits Tribunal. In case after case,
Ministry of Community and Social Services              the Tribunal has stated that it will not follow
(Ministry).                                            the narrow policy of the Ministry and has
                                                       ordered the Ministry to reimburse the
In a regulation under the ODSPA, recipients            recipient. The Ministry, despite many of these
are entitled to “the cost of transportation that       losses at the Tribunal, nevertheless refuses
is reasonably required in any month for                 for now  to amend the policy that is
medical treatment.”                                    clearly fettering the discretion of its ODSP
                                                       staff.
The Court of Appeal for Ontario, in Gray v.
Ontario      (Director,  Disability    Support         The ODSP Action Coalition, of which ARCH is
Program), stated that the ODSPA must be                a member, is presently turning its attention to
interpreted broadly: “As remedial legislation,         this issue. The Action Coalition plans to speak
the ODSPA should be interpreted broadly and            soon to Ministry officials to determine whether
liberally and in accordance with its purpose of        it will amend its policy, in light of the many
providing support to persons with disabilities.“       Tribunal decisions that have, effectively,
                                                       found it to be inconsistent with the ODSP
One would expect, in consideration of the              regulation.
clear direction from the highest court in
Ontario, that the Ministry would interpret

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ARCH Alert                         www.archlegalclinic.ca                           January 16, 2004

                                                     (TAC). The 18-month mandate of the TAC is
                                                       to make recommendations to the Ministers of
Tax Update                                             Finance and National Revenue regarding
by Bill Holder, Staff Lawyer                           measures that will render the tax system
                                                       more fair to persons with disabilities.
New DTC Certificate Available
                                                       On 22 December 2003, the TAC provided an
The new application form for the Disability            interim report to the aforementioned Ministers
Tax Credit (DTC) is ready! After consulting            advising that, after seeking input, it received
with many disability organizations, including          39 submissions (including one from ARCH).
ARCH, the Canada Customs and Revenue                   The TAC supports the extension of tax relief
Agency (CCRA) has completed its revisions              to persons with mood disorders, learning
and made the form available to the public.             disabilities, and episodic disabilities, who
                                                       currently have great difficulty accessing the
The form bears the number T2201 and is                 DTC. The TAC is concerned about the
called the DTC Certificate. The form must be           present situation in which grants provided
filled out jointly by a claimant and a health          solely for disability supports are being taxed,
professional.                                          and about barriers experienced by persons
                                                       with disabilities when trying to move from
The form has been subjected to a great deal            income supports to employment. The TAC is
of criticism over the past decade for being            exploring ways in which relief may be
confusing and for narrowing the eligibility            provided to persons with disabilities with
criteria for the DTC without legislative               respect to personal expenditures on
authority.                                             accommodation measures, ways to improve
                                                       the administration of the DTC by the CCRA,
Not all of the problems with the form have             and ways to improve public awareness of the
been addressed by the CCRA in the revised              DTC and the Medical Expense Tax Credit.
DTC Certificate, but it represents a significant
improvement upon the form that was                     The final report of the TAC will not be
otherwise in use. For instance, the form now           completed until the fall of 2004. The interim
lists functional considerations with respect to        report is available on the TAC website
determining eligibility for persons under the          (www.disabilitytax.ca).
“perceiving, thinking, and remembering”
criteria. It is recommended that persons who           
have had difficulty accessing the DTC in the           Health Privacy Legislation Introduced
past, due to problems related to the DTC               by Lana Kerzner, Staff Lawyer
Certificate, consider reapplying with the new
Certificate.
                                                       The McGuinty Government introduced the
                                                       Health Information Protection Act, 2003
The new DTC Certificate is available from tax          (Bill 31) on 17 December 2003. The stated
offices and on the website of the CCRA                 goal of the legislation is to protect the privacy
(www.ccra-adrc.gc.ca).                                 of individuals, and the confidentiality and
                                                       security of personal health information in the
TAC’s Interim Report                                   health sector in a way that facilitates the
                                                       effective provision of health care. The
The 2003 federal budget provided for the               legislation will only apply to the health sector.
creation of a Technical Advisory Committee             The Act contains rules for collecting, using,
on Tax Measures for Persons with Disabilities          and disclosing personal health information. It

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ARCH Alert                        www.archlegalclinic.ca                              January 16, 2004
also contains provisions governing an                  M7A 1A2), and         e-mail     (tonia_grannum
individual’s access to and correction of such          @ontla.ola.org).
information.
                                                       You may access a copy of the Bill on-line on
Currently in Ontario health information is             the web site of the legislative assembly
covered by a number of different statutes,             (www.ontla.on.ca). For further information on
including the Mental Health Act and the Long-          the Bill, and health privacy generally, you may
Term Care Act. However, to date, there has             wish to access the following web sites:
not been a single piece of legislation in              Ministry of Health and Long-Term Care
Ontario that forms a comprehensive treatment           (www.health.gov.on.ca), Ontario Information
of health information. A number of attempts to         and Privacy Commissioner (www.ipc.on.ca)
introduce such health privacy legislation have         and the Privacy Commissioner of Canada
been made in the past, but have all failed.            (www.privcom.gc.ca).

Health and Long-Term Care Minister George              
Smitherman has been quoted as saying that
the “McGuinty government is committed to
                                                       Litigation Update
                                                       by Bill Holder, Staff Lawyer
listening to the public and our health partners
to ensure the right privacy act is developed
                                                       ARCH engages in test case litigation on
through the public hearing process in the new
                                                       behalf of groups and individuals, primarily in
year.”
                                                       higher courts. Test cases include those in
                                                       which an issue is being considered by a court
After the first reading of Bill 31, which took
                                                       or tribunal for the first time and in which an
place on 17 December, it was referred to the
                                                       appellate court is deciding an issue that will
Standing Committee on General Government.
                                                       affect a large number of people. ARCH's
The Standing Committee will hold public
                                                       object in test case litigation is to provide a
hearings on the Bill. Hearings will be held in
                                                       client’s disability perspective to the decision-
Toronto on 26, 27, and 28 January; in Sault
                                                       maker when a case is being decided that will
Ste. Marie on 3 February; in Kingston on
                                                       affect the lives of persons with disabilities.
4 February; and in London on 5 February.
                                                       The current caseload of ARCH includes the
If you wish to make an oral presentation at a          following.
public hearing in Toronto, you should contact
the Committee Clerk by 5:00 p.m. on                    Education: ARCH is co-counselling with Legal
20 January. If you wish to make an oral                Assistance of Windsor with respect to a
presentation at a public hearing in Sault Ste.         human rights complaint against a school
Marie, Kingston, or London, you should                 board, brought by a student who lives with
contact the Committee Clerk by 5:00 p.m. on            autism and who has been out of school for
27 January. If you do not wish to make an              3½ years. The case is currently before the
oral presentation, you may comment on the              Ontario Human Rights Commission.
Bill by sending written submissions to the
Committee Clerk by 5:00 p.m. on 6 February.            Supports: ARCH is co-counselling with the
                                                       Community Legal Clinic (Simcoe, Haliburton,
The Committee Clerk is Tonia Grannum,                  Kawartha Lakes) and the law firm Weir
whose contact information is as follows:               Foulds in a case challenging the adequacy of
phone (416-325-3519), fax (416-325-3505),              supports and services provided to two
TTY (416-325-3538), regular mail (Room                 children living with autism and their sole-
1405, Whitney Block, Queen’s Park, Toronto,            support parents. This judicial review case is

                                                  10
ARCH Alert                          www.archlegalclinic.ca                               January 16, 2004
scheduled to be heard by the Divisional Court             Public Transportation:       ARCH is co-
on 10 and 11 February.                                    counselling with Hamilton Mountain Legal &
                                                          Community Services with respect to the
Supports: ARCH is co-counselling with the                 representation of two individuals with human
law firm Cavaluzzo Hayes Shilton McIntyre &               rights complaints against the City of Hamilton.
Cornish with respect to a proposed                        The case challenges the adequacy of the
intervention on behalf of clients in a Supreme            City’s    ‘para-transit’   service    as     an
Court of Canada case called Auton v. British              accommodation measure, provided in lieu of
Columbia (Attorney General). The case                     a fully-accessible ‘conventional’ public
regards      the    obligation  of    provincial          transportation system. The case is before the
governments to provide therapy to children                Human Rights Tribunal of Ontario.
living with autism.
                                                          Accommodation: ARCH is representing
Supports: ARCH represents two individuals                 clients with respect to a proposed intervention
with respect to human rights complaints                   at the Supreme Court of Canada, called
against the Ministry of Health and West Park              Newfoundland and Labrador Association of
Healthcare Centre, challenging age-based                  Public and Private Employees v. Her Majesty
eligibility criteria pertaining to an incontinence        the Queen in Right of Newfoundland as
supplies program. The cases are currently                 represented by the Treasury Board and the
before both the Ontario Human Rights                      Minister of Justice. The case has the potential
Commission and the Divisional Court.                      to affect the “undue hardship” test that must
                                                          be met by governments with respect to
Social Assistance: ARCH is co-counselling                 disability accommodations made pursuant to
with John Judge and Manizeh Fancy of the                  the Canadian Charter of Rights and
law firm Stikeman, Elliott with respect to a              Freedoms.
proposed intervention on behalf of a client in
a Supreme Court of Canada case called                     Accessibility: ARCH is a party to an
Falkiner v. Ontario (Director, Income                     application to the Canadian Radio-television
Maintenance Branch). The case will decide                 and      Telecommunications      Commission
whether “receipt of social assistance”                    (CRTC) relating to the possible regulation of
constitutes a ground of discrimination                    all telephone products in Canada with respect
pursuant to the Canadian Charter of Rights                to accessibility. The case is currently
and Freedoms.                                             suspended, pending a consultant’s report,
                                                          ordered by the CRTC.
Social Assistance: ARCH is representing a
client with respect to a proposed intervention            
before the Court of Appeal for Ontario in a
case called Werbeski v. Ontario (Director,
                                                          Human Rights Update
                                                          by Bill Holder, Staff Lawyer
Disability Support Program). The case will
examine whether the anti-discrimination
                                                          Changes Coming to the
provisions of the Human Rights Code operate
                                                          Ontario Tribunal?
to prevent the Social Benefits Tribunal from
applying an allegedly discriminatory provision
                                                          In December of 2003, the Human Rights
within the Ontario Disability Support Program
                                                          Tribunal of Ontario (HRTO) drafted an
Act (the provision that bars persons, whose
                                                          amended version of its Rules of Practice
disability is addiction, from receiving benefits).
                                                          (Rules) that, if approved, will govern human
                                                          rights proceedings before the HRTO.
                                                          Changes to the Rules include the following:

                                                     11
ARCH Alert                        www.archlegalclinic.ca                             January 16, 2004
                                                       31 January to those who contact her and
a requirement that the Ontario Human Rights            make such a request. Ms Grenier may also
Commission bring a motion to the HRTO if it            be able to make arrangements for the delivery
desires to withdraw from proceedings                   of oral submissions to the HRTO.
a requirement that parties draft and disclose
lists of privileged documents                          Federal Tribunal Rejects Commission’s
a requirement that parties draft motions in a          New Participation Plan
prescribed format
a power granted to the HRTO to order “all or           ARCH has been monitoring the policy,
part” of one party’s costs to be paid by               adopted in 2003, of the Canadian Human
another party                                          Rights Commission (Commission) to withdraw
                                                       from proceedings before the Canadian
Administrative tribunals, like the HRTO, are           Human Rights Tribunal (Tribunal) in cases
intended to be informal and inexpensive. The           where    the    Commission        deems      the
draft Rules will make the process before the           proceedings to fall short of raising significant
HRTO more formal and, potentially, more                public interest issues. The plan of the
expensive. The new power to award costs                Commission had been to send a lawyer to
against parties, including complainants, is            make opening statements, regarding the
especially of concern. The draft Rules provide         public interest and the law, in Tribunal
that costs can be awarded against a party, up          proceedings prior to withdrawing.
to $2000 per request and up to $7000 in total
for a proceeding. Making a cost award will be          In a case decided on 21 November 2003, the
contingent upon a finding that the party’s             Commission’s ability to make an opening
conduct was “unreasonable, frivolous or                statement before withdrawing was challenged
vexatious,” or that the party “acted in bad            by a respondent. In Mowat v. Canadian
faith.” The $7000 cost amount is almost 25             Armed Forces, the Commission proposed to
times the level of costs that may be awarded           “deliver an opening statement consisting
by the Small Claims Court. Although a $7000            primarily of a general overview of the
cost award will seem like nothing to a                 applicable law, and then withdraw from the
corporate respondent, it may be greater than           proceeding.” The Tribunal reviewed case law
the net worth of all of the assets owned by a          pertaining to the purpose of opening
complainant.                                           statements. The Tribunal found that such
                                                       statements are intended to put an adjudicator
ARCH is concerned that the introduction of             on notice of facts that are intended to be
cost consequences into the human rights                proven, and are not to be used for making
adjudication process may deter complainants,           legal arguments. Since the Commission did
including persons with disabilities, from              not intend to prove any facts and wanted to
making human rights complaints because it              make legal submissions, the Tribunal denied
will make the process look potentially more            permission to the Commission to make an
expensive.                                             opening statement in the manner that it
                                                       wished.
The HRTO is interested in receiving
submissions regarding the proposed changes             The Tribunal furthermore noted that the
to the Rules. To make a submission, contact            Commission would violate the Tribunal’s
Acting Registrar Patricia Grenier by telephone         Rules of Procedure if it were to show up on
at 416-314-8419. The HRTO has asked for                the first day of hearing and make a statement
submissions to be received by 19 January but           regarding the public interest, if it did not first
Ms Grenier    will    grant   extensions     to        provide disclosure to the other parties.

                                                  12
ARCH Alert                        www.archlegalclinic.ca                           January 16, 2004
                                                       were inclusive of compensation for mental
The Tribunal’s decision will undoubtedly affect        anguish.
the ability of the Commission to carry out its
intention to make opening statements in                While the majority of human rights decisions
Tribunal cases before withdrawing. ARCH will           still result in relatively low damage awards,
continue to monitor this situation.                    which arguably do not make complainants
                                                       whole, there have been an increasing number
Damage Awards Increasing                               of cases in which larger damage amounts
                                                       have been awarded. The growing willingness
For as long as human rights legislation has            of the HRTO to award higher “make-whole”
existed, purporting to provide access to               remedies is good news for individuals
“make-whole” remedies for experiences of               weighing the pros and cons associated with
discrimination,    critics   have     properly         making a human rights complaint.
complained that actual awards made
pursuant to such legislation have been                 
inadequate. Damage awards have been, for
many years, minimal, and have not come
                                                       New in our library
close to providing complete compensation or
                                                       Disability and human rights in the
making      complainants      “whole”    after
                                                       workplace: a CLV special report
experiencing discrimination.
                                                       Adelyn L. Bowland
                                                       Toronto: Thomson (Carswell), 2004 (184 p.)
In Ontario, there is no cap on the level of
                                                       Review by Wayne Johnston,
damages that may be awarded to make a
                                                       Director of Library and Reference
complainant      whole   after   experiencing
discrimination. While there is a $10,000 cap
                                                       This new publication offers a concise analysis
on damage awards compensating for mental
                                                       of employment issues for persons with
anguish, there is no cap on damage awards
                                                       disabilities within the context of human rights
compensating for other aspects of an
                                                       law. While the focus is on the responsibilities
experience of discrimination (humiliation,
                                                       of employers and how they can protect
injury to dignity, and so on) which may be
                                                       themselves from complaints and grievances,
characterized as “loss[es] arising out of the
                                                       this is also a valuable resource for employees
infringement.”
                                                       who are seeking to understand their rights in
                                                       the workplace.
More than ever before, there is reason to
believe that human rights adjudicators are
                                                       The book covers the employer's duty to
moving beyond minimal “make-whole”
                                                       accommodate and how the concept of undue
remedies. In 2002, in a case involving
                                                       hardship is applied to set limits on the
disability discrimination (Ketola v. Value
                                                       employer's obligations. Over half the book is
Propane), the HRTO awarded $40,000 in
                                                       devoted to the policies of federal and
general damages, plus interest. In a case
                                                       provincial human rights commissions related
rendered on 22 December 2003 (August v.
                                                       to disabilities in the workplace.
Richland Marketing), a case involving sexual
harassment, the HRTO awarded the
                                                       Bowland is well-qualified to write this book as
complainant a total of $68,000 in general
                                                       she is a human rights mediator with more
damages, plus interest. In ten cases with
                                                       than 20 years experience working in human
significant “make-whole” remedies decided
                                                       rights. She is also the author of one of the
within the past ten years, the average general
                                                       most heavily used legal texts at ARCH,
damage award was $33,400. These awards

                                                  13
ARCH Alert                        www.archlegalclinic.ca                            January 16, 2004
Carswell's Annotated Ontario Human Rights              A New Report on
Code.                                                  Canadians with Disabilities
                                                       by Roberto Lattanzio, Student-at-Law
One of the points that Bowland stresses is
that the employer's obligations to employees           On 3 December 2003, in recognition of the
with disabilities apply to all aspects of the          United Nations International Day of Disabled
employment cycle, from hiring practices                Persons, the Office for Disability Issues
through on-the-job accommodations to                   (Human Resources Development Canada)
termination of employment. She stresses that           released a report titled Disability in Canada: A
well-drafted job descriptions are critical as          2001 Profile.
they form the basis for determining if a person
with a disability can perform the job. She also        This report is an accessible tool, intended to
points out important considerations for the job        provide a summary of some key findings from
posting, the application form, and the                 the results of the Participation and Activity
employment interview.                                  Limitation Survey (PALS) conducted in 2001.
                                                       PALS gathered information on Canadians
Another area that receives attention is                with disabilities, with a survey sample of
psychiatric disabilities including stress and          35,000 adults and 8,000 children with
substance addiction. Bowland points out that           disabilities.
drug and alcohol addictions are considered
disabilities under human rights law and the            More specifically, the report addresses the
employer's duty to accommodate applies                 findings released in the four sets of PALS
even if the employee does not acknowledge              data reports released to date:
their own disability.
                                                       A Profile of Disability in Canada, 2001
One of the more difficult concepts related to          Disability Supports in Canada, 2001
accommodations is that of "undue hardship."            Children with Disabilities and their Families
What constitutes undue hardship depends on             Education, Employment and Income of Adults
many factors and the way it is interpreted             with and Without Disabilities
varies from province to province.
                                                       The report also includes some highlights from
Either the Canadian Human Rights Act or the            further PALS data collected, some of which
Ontario Human Rights Code will apply to all            became available to the public on 3
workplaces in the province. It is critical for         December 2003.
anyone with concerns about potential
discrimination in the workplace to understand          The PALS information used in this report
these pieces of legislation for, as Bowland            serves to examine key issues and challenges
states, they are quasi-constitutional and              in areas such as education, employment, and
therefore take precedence over any other               income that affect Canadians with disabilities
employment legislation.                                at various stages in their lives. Hence, the
                                                       report is primarily organized by age, and
                                                     divided into categories of five age groups:
                                                       children (aged 0 to 14); youths (aged 15 to
                                                       24); core working-age adults (aged 25 to 54);
                                                       older working-age adults (aged 55 to 64); and
                                                       seniors (aged 65 and over).



                                                  14
ARCH Alert                         www.archlegalclinic.ca                             January 16, 2004
The following are some highlights from the              Among persons aged 65-74, 31.2% have
report.                                                 disabilities. With respect to persons aged 75
                                                        and over, 53.2% have disabilities. Of seniors
It is estimated that 1.6% of children aged 0-4          in need of assistance, 34.3% of persons aged
have a disability. Of these children, 20% have          65-74, and 31.8% of persons aged 75 and
been refused daycare or babysitting services            over, are in need of more help with everyday
due to their disability.                                activities.

Children aged 5-14 with disabilities make up            Disability in Canada: A 2001 Profile and other
4% of their age group. Of this group of                 publications are available from the website of
school-age children, 96.3% attend school:               the Office for Disability Issues, which can be
65.1% attend regular school; 26.1% attend               accessed       through    Human     Resources
special education classes within a regular              Development Canada (www.hrdc-drhc.gc.ca).
school; 6.4% attend segregated schools; and             PALS releases are available at the website of
2.3% attend other type of schooling.                    Statistics Canada (www.statcan.ca).

PALS data estimates that 3.9% of persons                
aged 15-24 years have disabilities; 48% of
persons within this category are fulltime
                                                        Legal Notice
students, and 51% have less than a high
                                                        Law Firm Considering Challenge
school education. The data also show that
                                                        To Cost of Prescription Drugs
persons in this age category with disabilities
                                                        by Carolyn Chandy, Barrister & Solicitor
have greater difficulty entering the work force,
with more than a 10% difference between
                                                        Are you affected by the high cost of
those employed with disabilities and those
                                                        prescription drugs in Canada? The law firm of
without.
                                                        Raven, Allen, Cameron and Ballantyne in
                                                        Ottawa is currently exploring a potential legal
With regard to persons aged 25-54 years,
                                                        challenge, based upon the Canadian Charter
referred to as core working-age adults, 9.2%
                                                        of Rights and Freedoms, to the current
are estimated as having disabilities. The
                                                        method of pricing prescription drugs in
survey shows that core working-age adults
                                                        Canada.
earn, on average, significantly less than those
without disabilities  a difference of $20,116.
                                                        In order to develop this potential legal case
When considering disability supports, 61.1%
                                                        we are looking to find individuals who are in a
of persons within this age group with
                                                        similar situation to our client. If your income is
disabilities stated that they have all they
                                                        limited and you are unable to afford your
need, 30.8% receive some but require more
                                                        prescription, and government programs for
assistance, and 8.1% although in need,
                                                        prescription drugs do not solve your problem,
receive no assistance.
                                                        then this case may be of assistance to you.
With respect to older working-age adults,
                                                        If you are unable to afford a needed
aged 55-64, 21.8% have disabilities. The
                                                        prescription and would be interested in finding
employment rate for persons with disabilities
                                                        out more about this potential legal case, then
in this age group is 27.3%, compared to
                                                        please contact us.
56.2% of older working-age adults without
disabilities.
                                                        We are currently researching the chances of
                                                        success of this potential legal challenge and
                                                        all information sent to us will be strictly

                                                   15
ARCH Alert                          www.archlegalclinic.ca                         January 16, 2004
confidential and seen only by lawyers at our             Please send your letter, or any questions
firm. We are seeking this information in order           about this announcement, to lawyer Carolyn
to find out whether there are other people               Chandy by email at: cchandy@ravenlaw.com,
who might be interested in being involved in             or by mail at:
this legal case as co-plaintiffs with our client.
There is no cost to you for expressing an                Raven, Allen, Cameron and Ballantyne
interest in this case.                                   220 Laurier Avenue West, Suite 1600
                                                         Ottawa, Ontario, K1P 5Z9
If this notice applies to you, then please send
us a letter providing us with basic information
about your situation. Please note that by
asking for this information we are not
agreeing to take your case. We will only
contact individuals who are in situations that
we determine would be helpful in advancing
this case.




 ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It
 is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and
 others with an interest in disability issues. ARCH is a non-profit community legal clinic, which
 defends and promotes the equality rights of persons with disabilities through litigation, law/policy
 reform and legal education. ARCH is governed by a Board of Directors elected by
 representatives of member groups reflecting the disability community. The goal of ARCH
 ALERT is to provide concise information, so that people are aware of important developments
 and resources. Articles may be copied or reprinted to share with others provided that they are
 reproduced in their entirety and that the appropriate credit is given. We encourage those who
 receive it to assist with distribution of information in this way. We do ask that both Word and
 Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.

 Editors: Bill Holder & Wayne Johnston              Production & Circulation: Theresa Sciberras

 We welcome your comments and questions, as well as submissions. We will endeavour to
 include all information of general interest to the community of persons with disabilities and their
 organizations, but reserve the right to edit or reject material if necessary. We will advise you if
 your submission is to be edited or rejected. Please assist us in your submissions by being brief
 and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras,
 Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities,
 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-
 1254, e-mail: scibert@lao.on.ca Website www.archlegalclinic.ca




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