Disabilities Act must have teeth

By Brian Dickson

The Toronto Star Wednesday, October 7, 1998

I urge that the Ontario government proceed with the sweeping barrier removal legislation it has promised.

Full participation of members of the disabled community will benefit and enrich Canadian society as a whole. In the legal sphere an Ontarians with Disabilities Act would maximize access to justice by minimizing the need for costly litigation. One clear beneficiary of such a law would be the courts.

The courts of Canada have been called upon, through the enactment of federal and provincial human rights legislation and the equality clause in the Canadian Charter of Rights and Freedoms, to identify and remove discriminatory barriers faced by persons with disabilities.

This was a task the courts did not seek. It required that we consider a number of interpretive aids with which many of us were not previously familiar. While it may not have been a role we sought, I am proud to say it was a responsibility which we did not shirk.

For years the courts have grappled with the meaning of equality in the context of disability. The Supreme Court of Canada, in a series of decisions written after my retirement, has provided clear guidance.

The court held in unanimous decisions in these case that integrated education should be the norm of general application for students with disabilities, that each child should be accommodated in the manner which best meets the child's needs; and that while an employer may be under no obligation to offer its employees a long-term disability plan, having done so, the plan must not single out members of particular disability groups for discriminatory treatment. Most recently, the court held that the province must provide deaf patients with sign interpreters so they can communicate effectively with their health-care providers.

One might infer from these decisions that the disabled community's problems have now been solved. It need only identify a barrier, secure the assistance of qualified counsel and wait for the Supreme Court of Canada to find in its favour.

Please let me explain why I draw the opposite conclusion.

In Canada, courts and legislatures do not exist in isolation from each other. The courts must exercise their constitutional authority in a manner which enhances rather than detracts from democracy. At the same time, the legislatures must act in a manner which is consistent with the rule of law.

Thus, when the courts have spoken, as they so clearly have, it brings justice into disrepute to disregard what they are saying.

It may be in the short-term financial interests of a government to require people with disabilities to litigate the removal of every barrier. As a group, they are generally poor. Legal aid resources are in scarce supply. But such an approach would not only place an impossible strain on these resources, it would also put a strain on the moral authority of the courts. When the Supreme Court of Canada has spoken it should not have to repeat itself.

Compliance with the court's decisions can be viewed quite narrowly. For example, I understand the Ontario Ministry of Health is still considering whether it will take action as a result of the Eldridge decision. British Columbia has established a sign interpreter service within the time frame fixed by the court. Having been given evidence that deaf patients in Ontario do not have access to sign interpreters, and that in some areas access has actually worsened as a result of hospital restructuring. I would have thought the province's responsibility was quite clear.

In my opinion, compliance should extend further to include the spirit as well as the letter of the court's decision. While the Eldridge decision directly applied to health care, the right to effective communication could just as easily arise in a range of analogous circumstances.

Take post-secondary education as an example. Apparently, deaf students are simultaneously losing access to specialized schools in the United States and having their funding for interpreters at Ontario colleges and universities reduced. I am concerned that in these areas the compliance gap would appear to be widening.

By enacting a strong Ontarians with Disabilities Act, the government of Ontario would be demonstrating respect for the courts, as well as concern for the equality rights of the province's disabled citizens.

The courts function best when called upon to ensure the consistent application of commonly held principles. They struggle when compelled to devise broad policy responses to meet particular needs. Legislatures with their mechanisms for consulting those who will be affected, and the public service to provide it with technical advice, are in the best position to carry forward the barrier removal process with due regard to the guidance provided in the cases to which I have referred.

If the Ontario government's consultation process is accessible to persons with disabilities, I am confident people with a broad range of disabilities will be heard about the barriers they face. Some of these barriers have existed for generations. Others have been created. Some will require a resolute if incremental approach; others the reversal of decisions made without an awareness of the impact they would have on persons with disabilities.

The former minister promised the disabled community an ODA with teeth. By this, I assume she meant an act worthy of comparison with the American with Disabilities Act (ADA).

We can benefit from the American experience. Coming from a country not noted for leadership in governing intervention or social programs, the Americans Disabilities Act demonstrates a sincere American commitment to the goal of creating a barrier-free society.

I understand it has opened the prospect of a post-secondary education to many who would otherwise have been denied one. Americans with disabilities enjoy equal access to public transportation. Major software manufacturers now take account of their blind customers and television networks accommodate their deaf viewers.

I understand the representations by disability groups have now concluded. I look forward to reviewing the bill the Hon. Isabel Bassett has indicated will be placed before the Ontario Legislature this fall.

I hope the legislation is powerful and helps those in the disabled community who are in need of help.

Brian Dickson is a former Chief Justice of the Supreme Court of Canada.