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Simon Shields, LLB

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Disability

. Hejka v. The Regional Municipality of Durham

In Hejka v. The Regional Municipality of Durham (Div Ct, 2022) the Divisional Court granted a judicial review of a municipal decision [of the 'Specialized Services Eligibility Appeal Panel'] to reduce disability transportation availability to the applicant. The case turned on the interpretation of the Accessibility for Ontarians with Disabilities Act, 2005, which the court summarized in part:
The Statutory Framework

[5] The Act was passed in 2005. Its purpose is as follows:
1. Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this Act is to benefit all Ontarians by
(a) developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025.

...
[6] Section 6 of the Act gives the Lieutenant Governor in Council the authority to establish accessibility standards.

[7] Part IV of the Regulation contains the Transportation Standards.

[8] Under the Regulation the Respondents provide two types of transportation services. One type is conventional transportation services, which includes public buses and motor coaches. The other is specialized transportation services, which includes vehicles that are designed to transport persons with disabilities.

[9] Section 63(1) of the Regulation requires every “specialized transportation service provider” to have “three categories of eligibility to qualify for specialized transportation services”:
(a) Unconditional eligibility;

(b) Temporary eligibility; and

(c) Conditional eligibility.
[10] Section 63(2) describes which persons with disabilities are to be put into which category. It states that “[a] person with a disability that prevents them from using conventional transportation services shall be categorized as having unconditional eligibility.” If a person has a temporary disability that prevents them from using conventional transportation services, that person is to be categorized as having temporary eligibility. “A person with a disability where environmental or physical barriers limit their ability to consistently use conventional transportation services shall be categorized as having conditional eligibility.”

[11] Section 68(1) provides that “[e]very specialized transportation service provider shall provide origin to destination services within its service area that takes into account the abilities of its passengers and that accommodates their abilities.”

[12] Section 68(3) states that “[f]or the purposes of this section, origin to destination services refers to the overall package of transportation services that allows a specialized transportation service provider to provide, in a flexible way, transportation services in a manner that best meets the needs of persons with disabilities.”

[13] Section 64(5) requires the specialized service provider to establish an “independent appeal process to review decisions respecting eligibility.”
. Hejka v. The Regional Municipality of Durham

In Hejka v. The Regional Municipality of Durham (Div Ct, 2022) the Divisional Court granted a judicial review of a municipal decision [of the 'Specialized Services Eligibility Appeal Panel'] to reduce disability transportation availability to the applicant. The case is one of only a few considering the Accessibility for Ontarians with Disabilities Act, 2005::
[1] The Applicant, Mr. Hejka, is a person with mobility, developmental and cognitive disabilities. For 8 years prior to the decision under review in this application Mr. Hejka regularly and independently used the Respondents’ specialized transportation services without incident. He used this service to travel to and from his employment, his gym and his local community centre.

[2] The Respondents have taken steps to improve the accessibility of their conventional transportation services. As part of that process they initiated a review of Mr. Hejka’s eligibility to use their specialized services on an unconditional basis. That review culminated in a decision of the Specialized Services Eligibility Appeal Panel dated May 11, 2021 (the “Decision”). The Decision found that Mr. Hejka is no longer eligible for unconditional door to door service and changed his eligibility to conditional. Under this conditional eligibility Mr. Hejka is required to use conventional transportation for part of his trip and he is required to be accompanied by a personal care assistant (PCA), which he must provide at his own expense.

[3] This is an application to judicially review the Decision. Mr. Hejka does not take issue with the fact that the Respondents chose to initiate a review of his need to use specialized transportation services. What he argues is that the Decision is unreasonable because it found that he had disability related needs that made it dangerous for him to travel alone on conventional transportation services and then found that the way to alleviate that danger was to require him to find a PCA who could assist him in using the conventional services at issue.

[4] For the reasons that follow I would allow the application and set aside the Decision as being unreasonable. In short, the Decision fails to meet the purpose and objective of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (the “Act”), which is to remove barriers and set accessibility standards for public transportation services that recognize the historical discrimination that persons with disabilities have experienced. It is also contrary to the text, purpose and objectives set out in the Integrated Accessibility Standards, Ont. Reg. 191/11 (the “Regulation”). The Regulation requires the Respondents to provide transportation services that best meet Mr. Hejka’s disability related needs. The Decision recognizes that Mr. Hejka has disability related needs that make it dangerous for him to use conventional transportation services, but then chooses to solve that problem by erecting rather than removing a barrier. That barrier requires Mr. Hejka to be accompanied by a PCA provided at his own expense. The other effect of the Decision is to undermine rather than promote Mr. Hejka’s independence and dignity, two fundamental needs of persons with disabilities that have historically been ignored.

....

The Modern Principle of Statutory Interpretation

[36] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 117, the Supreme Court of Canada affirmed that the modern principle of statutory interpretation requires statues to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”

The Legislation is Remedial and should be interpreted in a fair, large and liberal way

[37] Section 64(1) of the Legislation Act, S.O. 2006 c. 21, provides:
An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
[38] In the debates concerning the Act it was made clear that it “was social justice legislation that would need to be interpreted broadly by the courts in order to achieve its purpose” (Ontario, Legislative Assembly, Standing Committee on Social Policy, Accessibility for Ontarians With Disabilities Act, 2005, 38-1 (31 January 2005) at SP-463 (Katherine Hewson)). This point is reinforced by the Supreme Court of Canada in cases such as Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571, at para. 5, where Iacobucci J. stated:
On the subject of the appropriate interpretive approach for human rights statutes, the need to approach the legislation purposively, giving it a fair, large and liberal interpretation with a view to advancing is objects, is well accepted. But is also well established that the wording of the statute is an important part of the process.
The Text of the Legislation

[39] Section 68(1) of the Regulation requires a specialized transportation service provider to provide origin to destination services in a manner that “takes into account the abilities of its passengers and that accommodates their abilities.”

[40] Section 68(3) gives the specialized transportation service provider the discretion to provide “in a flexible way”, “transportation services in a manner that best meets the needs of persons with disabilities” [emphasis added]. Thus, the text of the Regulation mandates that the service provider’s discretion to be flexible is prescribed by the requirement that the transportation services provided be the ones that best meet the needs of the person with a disability. Nowhere in the Regulation does it specify that the discretion to be flexible includes the right to decide that even though one type of service might best meet the disability-related needs of a passenger, that service should not be provided because of a need to take into account the needs of all the other passengers using the service.

[41] The text of the Regulation also does not give the Region the discretion to consider whether Mr. Hejka should provide his own PCA to make an otherwise inaccessible transportation service more accessible.

The Context and Purpose of the Legislation

[42] As set out in s. 1(a) of the Act the purpose of the legislation is to develop, implement and enforce accessibility for persons with disabilities in recognition of the history of discrimination against persons with disabilities in Ontario. Section 6(6) of the Act states that an “accessibility standard” shall “set out measures, policies, practices or other requirements for the identification and removal of barriers…and for the prevention of the erection of barriers.”

[43] The definition of “disability” in s. 2 of the Act makes it clear that it encompasses far more than just a physical disability and includes the mental and cognitive impairments that Mr. Hejka has.

[44] The definition of “barrier” in the Act is also expansive. It means “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communication barrier, an attitudinal barrier, a technological barrier, a policy or a practice.” Adopting a practice or policy that requires a person with a disability to provide a PCA to use public transportation services is a barrier within the meaning of the Act. It limits and potentially prevents a person with a disability from fully accessing public transportation services. If they cannot provide a PCA they cannot use the service.

[45] In Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 56, the Supreme Court described the history of disabled persons in Canada in the following way:
It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms. (Citations omitted).
[46] In Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 110, Abella J. explained that “[t]o redress discriminatory exclusions, human rights law favours approaches that encourage, rather than fetter, independence and access.” At para. 162, Abella J. stated:
The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.
[47] While there has not been a significant amount of caselaw interpreting the Act, the Ontario Court of Appeal has endorsed the proposition that the Act, together with the Human Rights Code of Ontario and the Charter represents a greater societal appreciation of the barriers affecting persons with disabilities, and a resolve to eliminate those barriers (Toronto Transit Commission v. Ontario (Finance), 2009 ONCA 658, affirming [2008] O.J. No. 5251 (Ont. S.C.J.), 2008 CanLII 67910 (ONSC)).

The Decision Ignores the Text of the Legislation and its Purpose and Context

[48] In the Decision the Appeal Panel justified classifying Mr. Hejka’s eligibility for specialized services as “conditional” on the basis of his ability to perform certain discrete tasks—namely his ability “to travel a half block or greater, cross the street at an intersection” and his ability “to wait for ten minutes or more at a bus stop.” At the same time, the Appeal Panel acknowledged that the risk to Mr. Hejka’s safety in being knocked over on a crowded bus creates a significant barrier to his accessing conventional transportation services. To remove that barrier the Appeal Panel created another barrier: the need to provide a PCA.

[49] This solution does not best meet the needs of Mr. Hejka as a disabled person. It neither allows him to be as independent as possible nor does it promote his ability to easily participate in the activities that he has previously participated in—employment, exercise and socialization. To engage in those activities (activities that able bodied people regularly engage in) he will have to ensure that he has a PCA, something that on its face is not easy to do. That person will have to be available for short, irregular periods of time. If that person can be found, they will have to be paid for from Mr. Hejka’s limited financial resources or consistently put their lives on hold to assist Mr. Hejka in emulating the abilities of an able bodied person. The effect of this solution is to perpetuate the discrimination (with the marginalization and lack of dignity that involves) that Mr. Hejka has experienced as a person with disabilities and to once again require that if he wishes to access transportation services he must make sure that he is accompanied by an able bodied person who can make up for the “abnormalities” or “flaws” he possesses.

[50] This solution neither promotes the objectives of the Act nor accords with the text of that legislation. As already noted, the discretion the Respondents have to be flexible is constrained by the requirement to provide a service that best meets Mr. Hejka’s disability related needs. The Decision is not one that best meets Mr. Hejka’s disability related needs—needs that were met for 8 years without incident when his eligibility was categorized as unconditional. It may meet the needs of the Region to cut down on the number of people who use specialized services, but that is not what the Regulation specifies should be the governing consideration.

[51] Further, the Regulation makes no provision for the creation of a category known as Conditional with a PCA. While requiring a disabled person to travel with a PCA may promote the Region’s ability to be “flexible” it defeats the objectives of the legislation, which is to remove, not erect barriers.

The Appeal Panel’s Reasons for the Decision are not Intelligible or Justified.

[52] The Decision is not intelligible or justified because it does not explain how, if travelling on conventional transportation could pose a risk to Mr. Hejka’ personal safety, he can be categorized as being eligible for the conditional model. The source of his difficulty with using the conventional model is his disability. That disability is a permanent one. Therefore, he is a “person with a disability that prevents them from using conventional transportation services” under s. 63(2) of the Regulation. According to the text of the Regulation such a person “shall be categorized as having unconditional eligibility.”

[53] To remove the risk that travelling on conventional transportation poses to Mr. Hejka because of his disability the Decision requires Mr. Hejka to find a PCA to accompany him when he uses that transportation. The Decision does not explain how such a requirement meets Mr. Hejka’s disability related needs or how the requirement does not result in the imposition of a barrier to Mr. Hejka’s access to transportation services—something that is antithetical to the purpose of the statutory scheme.

The Decision is Unreasonable

[54] The Decision does not accord with the text or the purpose of the Act. The reasoning used to justify the decision is not intelligible or justifiable. For these reasons, the Decision is unreasonable.
. Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

In Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse) (SCC, 2021) the Supreme Court of Canada faced an interesting conflict between the dual quasi-constitutional 'rights and freedoms' of expression and equality (ie. non-discrimination). The case was brought to the Quebec equivalent to a human rights Commission (Commission des droits de la personne et des droits de la jeunesse) under the provincial Charter of Human Rights and Freedoms, but the court openly acknowledged that Charter law dealt with the same issues and that they should strive to establish consistent law in these important areas.

The case involved a physically disabled child entertainer being ridiculed for features of his physical disability by a comedian. One joke even focussed on the possibility of his being drowned.

While the case drew significant media attention for it's compelling facts, much of it turned on the structure of the Quebec human rights and freedoms statute. The Supreme Court took the oppourtunity to re-direct a line of Quebec cases that both effectively dispensed with any causation of 'damage' requirement [I use the term 'damage', but more accurately in the context the harm is "social effects of discrimination, such as the perpetuation of prejudice or disadvantage": para 28], and with a requirement that the two rights be 'balanced' against each other. It then proceeded to do both of those things - ie. consider damage and balancing.

On damages, the case relied heavily on a previous Saskatchewan Charter case, Saskatchewan (Human Rights Commission) v. Whatcott (SCC, 2013) which - with similar expression-discrimination 'balancing' task (here, pamphlets vilifying gays) - struck down portions of the Saskatchewan human rights statute that prohibited expression that "ridicules, belittles or otherwise affronts the dignity" of the complainant. However the court sustained that portion that dealt with "hatred" - albeit on a narrow reading. The strike-down aspect was basically justified on the general 'tolerance' accorded expression in our legal system, and "hatred" was read-down to “the most extreme type of expression that has the potential to incite or inspire discriminatory treatment against protected groups on the basis of a prohibited ground” (Whatcott, para. 48).

The court obviously viewed the impugned expression in Ward as properly categorized as 'ridicule', and thus - consistent with the result in Whatcott - would not locate this expression as 'hatred', which would have made it legally discriminatory. The court also drew the distinction between individual targeting (the facts here) and collective targeting (presumably all disabled person), as further justification for ruling against the complainant. Throughout the case, the court lamented the fact that the litigation had not been commenced as a defamation action - obviously preferring that remedy.

In the result, it seems obvious that the court is recommending in future a defamation remedy for such non-hatred, individual-directed expression - throwing the law into the legal mess that we have been left with after Bhadauria (no lawsuits for discrimination) by forcing people to further and further hair-splitting. Disabled people who are insulted, even if the insult is directly-based on their disability, will have to accurately predict each court's predilection on this jurisdiction issue. As though physically disabled people didn't have enough problems coping with an overwhelmingly able-bodied-favouring world.

In my view the weakest aspect of the tribunal's ruling below is that the comedian "had made comments concerning Mr. Gabriel’s disability, although he had not chosen Mr. Gabriel because of his disability" as though this were somehow excusing of the magnitude of the ridicule [para 16]. It was plain - and the Supreme Court seems to agree with me [para 91] - that the comedian overtly sought out and integrated into his routine issues that would challenge levels of social tolerance, and it is difficult to believe that he was ignorant of the effect of his choice of targets as he planned this 'untouchables' routine. However the court tolerated this tribunal finding out of a disengenuous appellate deference.

I suppose my main objection to the result in this case should have been expressed when Whatcott came down in 2013, as both gays (Whatcott) and disabled people (Ward) (the latter of which I count myself) are - like most typical human-rights code protected categories - similar in that they don't 'chose to be that way', and in that sense are equally 'innocent' and deserving of protection. That would have been the time to argue against the 'hatred'-only prohibition of expression against those on the human-rights protected list. But - to my shame - I wasn't disabled in 2013 and so did not focus on Whatcott.

However, in hindsight, it seems that an appropriate concession to even the very high status accorded expression in our culture that such constitutionally (and quasi-constitutionally) meritorious groups would be that open, disability-directed ridicule be prohibited, even if by the relatively weak remedies of provincial HR statutes.

Perhaps this is what the court alludes to when it gives itself a legal 'out' in the following passage:
[63] In our view, limits on freedom of expression are also justified where it is used to disseminate expression that, even if it does not fully meet the definition of hatred set out in Whatcott, nonetheless forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy” (Whatcott, at para. 75; see also Keegstra, at p. 765). As Professor Waldron writes:
[A] person [must be able] to walk down the street without fear of insult or humiliation, to find the shops and exchanges open to him, and to proceed with an implicit assurance of being able to interact with others without being treated as a pariah. [p. 220]
The individual/collective insult distinction made in Ward seems further disingenuous and unpersuasive. Why should a disabled individual insulted on the basis of their disability have fewer remedies than those effected by expression directed at a group? Why does it matter to them (and for that matter to the disabled 'group' to which they belong) that the offensive expression was not 'targeted' at them, however dubious that claim may be in the present case?

Finally, the essence of the fundamental doctrinal legal dispute may be at least identified by whether the reader agrees or disagrees with the majority in Ward when they say:
[109] In both his video and his show, Mr. Ward mocked some of Mr. Gabriel’s physical characteristics. Making fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted (Whatcott, at paras. 90‑91).
If you truly have grounds for ridicule, you can do it without relying on the target's race, sexual orientation, disability or any other protected grounds. To do so is simply offensive and lacks the poignancy that we expect from quality comedy - it has no redeeming value otherwise. Why should we tolerate that? Are the able-bodied majority of the court so certain of their view that such expression does not "incite others to detest or vilify the humanity of the person targeted"? I, and most other disabled people, would have little hesitation in disagreeing with this conclusion. This ruling, despite it's frequent analytic competency, seems generated from a by-gone era.

. Leroux v. Ontario

In Leroux v. Ontario (Div Ct, 2021) the Divisional Court dismissed class action certification motions based on Crown negligence in the administration of the Services and Supports to Promote the Social Inclusion of Persons with the Developmental Disabilities Act, and the Ministry of Community and Social Services Act. All of the case, which consists of an initial 118 paragraph dissent and a brief majority ruling, is useful for disability rights and crown tort liability.

. R v Bulic

In R v Bulic (Ont CA, 2020) the Court of Appeal cited law that disability does not normally factor in to reduce criminal sentencing:
[13] The trial judge did address the appellant’s mental health issues. He concluded that the issues appeared to be a result of his criminal conduct and not a result of a pre-existing condition. Further, “medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence”: R v. Heron, 2017 ONCA 441, at para. 25.


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