Making Poverty a Human Rights issue for People with Disabilities

Yvonne Peters and Debra Parkes*
November 4, 2014

Introduction

Over the past several years, people with disabilities have made modest, but steady progress in establishing their rights under human rights legislation and the Canadian Charter of Rights and Freedoms.[1] As this paper demonstrates, the greatest achievements have occurred primarily in the area of accessibility and the duty to accommodate with respect to employment and services. Certainly, having access to employment and services are critical aspects of equality and social well-being for people with disabilities, but such gains have done little to resolve the crushing impact of poverty which pervades the lives of many such persons. In this paper we argue that the poverty experienced by people with disabilities must be regarded as more than a social policy issue. The fulfillment of true equality and human rights recognition for people with disabilities demands that economic barriers be regarded as equally pernicious as those that impede access.

The paper begins by highlighting some of the key gains made by people with disabilities under human rights and equality rights law. Next we assess how such gains could be used by people with disabilities to begin to tackle the discriminatory effects of economic barriers. We acknowledge that the relationship between disability and poverty is complicated. It involves several factors and may require a much more complex human rights analysis than a relatively straight-forward claim for access to a public facility. Such an analysis is further compromised by the general reluctance of courts to recognize poverty as a human rights issue.[2] However, we agree with our colleague, Michael Prince, that the recently ratified Convention on the Rights of Persons with Disabilities (CRDP) "ushers in a new vision for understanding disability, for tackling poverty, and for advancing full citizenship."[3] The CRDP provides an important interpretive guide in the implementation of Canadian human rights law.[4] It reflects a new and conscious commitment by all levels of government to take proactive measures to eliminate disadvantage and achieve full inclusion for people with disabilities.[5] Advocacy rooted in constitutional equality and statutory human rights law can be part of a broader strategy to hold governments accountable to make good on these obligations.

Part I: Human Rights Achievements

Over the past four decades, human rights law has developed in both the constitutional and statutory contexts to prevent and remedy discrimination experienced by people with disabilities. Even before 1985 when equality rights were constitutionally entrenched in section 15 of the Canadian Charter of Rights and Freedoms,[6] people with disabilities had mobilized to seek legal recognition of their rights and protection from discrimination in a range of contexts. In fact, protection from discrimination on the basis of disability was only included in the section 15 equality guarantee of the Charter after intense lobbying efforts by people with disabilities.[7] As briefly discussed below, the legal trajectory of equality rights for people with disabilities has included developments in statutory human rights law and constitutional law, efforts which have been bolstered through the infusion of obligations under international law, including most recently the signing and ratification of the CRPD.

1. Defining Disability Rights

Until the 1970s and early 1980s, there were no laws in Canada to protect people with disabilities from discrimination, and no laws that enforced their equality rights. This situation changed when Canada and its provincial and territorial counterparts introduced human rights legislation. Over time, human rights law in Canada has come to recognize the serious harm that discriminatory barriers create in the lives of people with disabilities.

Central to human rights advocacy by people with disabilities has been a shift in discourse and law to a social model of disability from a biomedical one. Instead of disability being understood as an individual, medical problem or impairment, the social model of disability entails an understanding that society is full of structural barriers that deny people with disabilities the right of full participation.[8] Through human rights advocacy, people with disabilities called for the breaking down of those barriers, rather than charity to help them cope in a discriminatory society. This was a profound shift[9] which also coincided with the promotion and adoption by Canadian courts of a concept of substantive equality.[10] Briefly, substantive (rather than formal) equality is rooted in an understanding the treating people or groups the same does not necessarily amount to equality in a meaningful or substantive sense. Rather, substantive equality "acknowledges that, although norms, rules, and laws may appear neutral on their surface, they are in fact often constructed in favour of a dominant group to naturalize and maintain its privilege."[11] This principle is closely related to the duty to accommodate, which has been developed in the human rights case law and will be discussed further below.

Over more than three decades, people with disabilities have achieved and celebrated important legal victories which confirm that exclusion or negative treatment because of a disability may be against the law. Following are some examples of the progress that has been made by people with disabilities in the courts.

1.1 Movie Theatres: Same Treatment Can Be Discriminatory

In the early 1980s, a movie theatre in Saskatchewan was held responsible for discriminating on the basis of disability because its seating arrangement could not accommodate Michael Huck, a man who used a motorized wheelchair.[12] The theatre argued that it did not intend to discriminate against Mr. Huck, and that it treated all patrons the same. This argument was rejected by the Saskatchewan Court of Appeal.[13] It said that treating everyone the same can still have negative consequences for people with disabilities.[14] Huck was one of the first cases to recognize the discriminatory effects of same treatment.

1.2 Health Care: Government Benefits Must Be Inclusive

The approach to discrimination applied in Huck was also prominent in the Charter decision of Eldridge.[15] In this case, deaf patients were denied the use of sign language interpretation when seeking health care. The Supreme Court of Canada (SCC) made it clear in Eldridge that when a government provides a benefit, like health care, it must ensure that the benefit can actually be enjoyed by recipients, including people with disabilities.[16]

1.3 Train Travel—Positive Duty to Ensure that Facility Standards Are Inclusive

In the Via Rail case, newly purchased train cars were not accessible to passengers with disabilities.[17] The SCC confirmed that the approached used to identify discrimination in the workplace also applies to physical barriers present in transportation systems.[18] The Court rejected the notion of separate transportation facilities for people with disabilities and said "[p]ersons with disabilities are entitled to ride with other passengers, not consigned to separate facilities."[19] It went on to rule that the duty to accommodate people with disabilities means that there is a positive duty to remove barriers and develop standards that are inclusive.[20]

1.4 Government Websites: Communication with Government Must be Accessible and Inclusive

The Eldridge and Via Rail cases were pivotal influences in the Jodhan case decided by the Federal Court of Appeal.[21] Donna Jodhan sought a declaration that the federal government's failure to develop, maintain, and enforce standards that would ensure all Government of Canada websites and online services are accessible for all individuals with visual impairments contravened the Charter guarantee of equality. The Court ruled that access to federal government information by way of the internet constituted a benefit of the law.[22] Thus the Court said that "the visually impaired are entitled to full access to government information and services which clearly includes online access."[23]

1.5 Education: Rejection of Disability-Based Comparator Analysis and Definition of a Service as Applied to People with Disabilities

The most recent SCC case dealing with disability rights is that of Jeffrey Moore.[24] It represents a landmark ruling regarding the correct analysis to be applied when identifying disability-based discrimination, and the definition of services as they apply to people with disabilities. To explain the significance of this ruling, a fuller description is provided than that given in the previous cases.

In a complaint to the British Columbia Human Rights Tribunal, Jeffrey Moore's parents alleged that the provincial government and a Vancouver school district had discriminated against their son for failing to provide him with the services he needed to succeed as a student with a learning disability.[25] In other words, the parents argued that the school did not enable Jeffrey to benefit from public education because it did not accommodate his special learning needs.

The respondents repeatedly argued that the services required by Jeffrey were special education services and not services normally provided to students. Moreover, they argued that when compared with other students with disabilities, Jeffrey was no worse off and therefore could not prove discrimination.

These arguments reflect the Supreme Court ruling in Charter case of Auton.[26] In Auton, the Court said that to prove discriminatory treatment, the claimant must compare his or her situation to others in a similar situation.[27] In the Moore case, the respondents argued that this meant comparing students with learning disabilities to other students with disabilities rather than making comparisons with the general student population.

The Council of Canadians with Disabilities (CCD) intervened in Moore and strenuously objected to this form of comparison analysis.[28] CCD argued that because most people with disabilities experience significant disadvantage and inequality in society, comparing one disability group with another disability group runs the risk of reducing the duty to accommodate to a race to the bottom, thereby perpetuating inequality and exclusion from mainstream society.[29]

The SCC firmly rejected the comparator group analysis. It agreed with CCD and stated that requiring Jeffrey to compare himself to other students with disabilities "risks perpetuating the very disadvantage and exclusion from mainstream society the [human rights] Code is intended to remedy."[30] With respect to the definition of a service, it said that special education is the means by which students like Jeffrey get meaningful access to general education available to all students.[31] In other words, the specialized support required by students with learning disabilities is no different than a ramp required by those who use wheelchairs.[32] It is a form of accommodation and not a special program separate and distinct from mainstream education.

1.6 The Duty to Accommodate Comes of Age

The cases described above all share an important concept. They recognize that in many instances, achieving the removal of barriers and the fulfillment of equality for people with disabilities requires additional proactive action. Under human rights law, this concept is understood as the duty to accommodate. Although the concept of accommodation has existed in human rights law for some time, it was the Meiorin and Grismer cases that gave it meaning and substance as a critical component of equality.

The Meiorin Case

The 1999 Supreme Court of Canada decision brought by forest firefighter Tawney Meiorin was a landmark turning point in human rights jurisprudence.[33] One of the key issues considered by the SCC was the meaning of the duty to accommodate. According to Meiorin, which involved a challenge to a mandatory aerobic fitness test that disadvantaged women applicants, an employer who relies on discriminatory standards in the workplace must demonstrate that it is impossible, short of undue hardship, to accommodate groups or individuals negatively affected by the discriminatory standard to avoid liability under human rights legislation. The Court said "[b]y enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, insofar as this is reasonably possible."[34] The Court went on to say that "To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced."[35]

Meiorin gave the duty to accommodate a central place in human rights analysis. Prior to Meiorin, the legitimacy of a standard that appeared neutral was seldom questioned. Rather the focus was on accommodating the individual, leaving the existing standard intact.[36] In critiquing this approach to accommodation, the Court said: "The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others."[37]

Following Meiorin, the emphasis shifted from requiring individuals to adapt to requiring workplace standards to be designed with all workers in mind. In short, the starting point for assessing all claims of discrimination is now the standard in question, and not solely the individual.

The Grismer Case

The Grismer case was decided close on the heels of Meiorin.[38] It applied the Meiorin analysis to a service-provider within a disability context. At issue in Grismer was a blanket policy that applied to all applicants wishing to obtain a drivers license. Because of a visual condition, Mr. Grismer could not meet the standards set out in the policy. He therefore requested an individualized assessment. His request was refused.

The SCC found the application of the blanket policy to all applicants to be discriminatory.[39] It said that "those who provide services must adopt standards that accommodate people with disabilities."[40] Such accommodation may include an individualized assessment. Although the remedy was individual, the implications are systemic. The onus was on the respondent to show that the failure to provide an individualized assessment was reasonably necessary to the achievement of road safety. The evidence indicated that no attention had been given to the concept of individualized assessment.[41]

The analysis in Grismer is precisely the same as that of Meiorin. Accommodation short of undue hardship is now the guide-post for both employers and service providers. Grismer clarifies that discriminatory policies that are applied inflexibly and categorically will seldom pass muster under human rights law.

Impact of Meiorin and Grismer

These cases mark a profound change in the responsibilities respondents (governments, employers, and service providers) have under the law. The duty to accommodate has been significantly expanded to include two key requirements. First, a discriminatory standard must be rigorously assessed to determine if it can be changed to be more inclusive and respectful of substantive equality. Second, if this is not possible and the standard can be legally justified in that alternatives would cause an undue hardship; substantial efforts may also be required to provide individual accommodation. This new and improved approach to accommodation gave persons with disabilities optimism that courts and governments alike would take seriously their obligation to apply a more inclusive and a more systemic analysis to social norms and practices.

As Dianne Pothier explains, a systemic approach to accommodation challenges able-bodied norms by contemplating diversity from the start. Systemic accommodation is founded on "inclusive thought." She says, "Such contemplation gives the duty to accommodate the potential to be genuinely transformative in challenging able-bodied norms, instead of limiting it to ad hoc minor modifications."[42]

1.7 Making Good on the Promise of Substantive Equality

Disability rights advocates joined with other equality-seeking groups in the early 1980s to demand a constitutional equality guarantee that would be meaningful and transformative.[43] Bruce Porter has documented the vision of equality put forward by these advocates—and ultimately adopted in the language of section 15[44] which includes equal benefit of the law—involved positive obligations on the government, particularly in relation to addressing economic inequality.[45] He notes, "Equality seekers articulated the new right to equality as a social right, a guarantee that both government action and inaction would be assessed for compatibility with constitutionally affirmed values of enhanced social participation and economic justice."[46]

Similarly, once the Charter equality guarantee came into force, disability rights advocates worked alongside other social justice and equality-seeking groups to advance a rich, substantive equality interpretation in their interventions before the courts. In Andrews, the first case to reach the Supreme Court, and one dealing with discrimination on the basis of citizenship status, these efforts proved successful. The court rejected a narrow, formal equality interpretation, instead describing the purpose of section 15 as "ensur[ing] equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component."[47]

Unfortunately, the road of equality litigation since Andrews has been littered with cases in which the stated commitment to substantive equality is not matched with meaningful demands on governments to implement measures to make social and economic equality a reality. Cases involving social benefit programs have proven particularly impervious to equality analysis.[48]

However, there have been some important gains made in equality litigation. The highwater mark for equality interpretation is undoubtedly Eldridge,[49] the case discussed earlier in which the government of British Columbia was ordered to provide sign language interpretation to deaf patients seeking medical treatment. In finding discrimination on the basis of disability, the Supreme Court unanimously rejected as "a thin and impoverished vision of s. 15(1)" the government's argument that the equality guarantee "does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action."[50] In Vriend,[51] the Supreme Court affirmed that equality rights might be infringed by government inaction, as well as action. In that case, the government of Alberta's refusal to include sexual orientation as a prohibited ground of discrimination in its human rights legislation amounted to a violation of the equality rights of gays and lesbians. Eldridge, Vriend, and a handful of other cases[52] demonstrate that a truly substantive interpretation of the Charter equality right is possible. As will be discussed further in section 2.3 below, Canada's ratification of the Convention on the Rights of Persons with Disabilities provides further force to an interpretation of section 15 that entails positive obligations on the government to ensure meaningful equality to people with disabilities (and others) who live in poverty.

Part II: Making the Link Between Human Rights and Disability-Based Poverty

2.1 Facing the Facts

This section provides a brief overview of recent economic and demographic research setting out the troubling link between poverty and disability in Canada. We adopt a social model of disability, along with the definition of poverty found in Quebec's Act to Combat Poverty and Social Exclusion,[53] which defines poverty as "a condition of a human being who is deprived of resources, means, choices and power necessary to acquire and maintain economic self-sufficiency or to facilitate integration and participation in society."

For many human rights commissions, the ground of disability makes up the majority of complaints they receive.[54] This has led to a greater understanding of accessibility and the need for accommodation. However, despite comprehensive human rights legislation across Canada and the Constitutional guarantee of equality, the prospect for people with disabilities living in Canada remains dismal. Consider the following:

• Working-age people with disabilities are about twice as likely as other Canadians to live below the poverty line.[55]
• People with disabilities are more likely to have no formal educational certification—not even a high school diploma—than those without disabilities and are also less likely to have a university degree or certificate.[56] Even if some form of education is obtained, people with disabilities are still about twice as likely to live on low incomes as people without disabilities.[59]
• People with disabilities are persistently less likely to be employed than people without disabilities; in 2006 51.3% of working-age people with disabilities were employed compared to 75.1% of people without disabilities.[58]
• Even when people with disabilities are employed, they are more likely to have a low income than those without disabilities (11% vs. 7.3%).[59]
• People with disabilities who live on low incomes are more likely than their counterparts with higher incomes to need help with everyday activities because of disability. Only 18.5% of people with disabilities living in low-income households reported receiving all of the support they need with everyday activities.[60]
• The single largest source of income for working-age poor people with disabilities is social assistance.[61] For poor people without disabilities, market income—mainly from employment—is the single largest source of income.[62]

To date, courts in Canada have tended to say that poverty is not a human rights issue.[63] While courts may continue to echo this message with respect to the issue of poverty as a whole, they may be open to considering specific situations or issues which demonstrate a clear link between social and economic disadvantage and disability-based discrimination. Set out below are some initial thoughts about how human rights law could be used to persuade both courts and governments to address systemic barriers which perpetuate disability-based poverty and inequality.

2.2 Setting the Context

We have lots of information regarding the rate of poverty among people with disabilities. We have less information about why such poverty persists. A quick scan across Canada tells us that there are a variety of programs and benefits in Canada aimed at reducing the sting of poverty for people with disabilities. However, as CCD observes: "In Canada, there is no coordinated policy response to the poverty of persons with disabilities. Instead, there is a patchwork of local/provincial/territorial and federal programs that overlap, grab back and fail to provide adequate income and basic supports required to remove barriers associated with disability."[64] Thus, poverty continues to be a fact of life for many people with disabilities.

The causes of disability-based poverty are complex and complicated, and thus it is difficult to lay the blame solely at the feet of one particular culprit. However, it is important to identify that law and government action (or, in many cases, inaction) can exacerbate or fail to remedy the poverty experienced by people with disabilities in a number of ways. In some cases the law does not take into account the particular needs or circumstances of people with disabilities. In other cases, laws are specifically targeted to people with disabilities or a group of people with disabilities but they are inadequate in various ways. Factors such as lack of coordination among government programs and benefits, disparities regarding program/benefit eligibility criteria and definitions of disability, the point at which a person acquires a disability - attached or unattached to employment - and the prevalence of discriminatory attitudes and barriers are possible explanations for the lethargic progress to reduce and eliminate disability-based poverty. These factors are further compounded by governing political ideals and governments' interest in prioritizing social equity.

Human rights law alone cannot resolve the inequities arising from disability-based poverty. However, the law does offer some opportunities to identify and seek remedies where discrimination is a contributing factor to the persistence of disability-based poverty. Interestingly, Canada has signed onto a number of international human rights obligations, including the CRDP, many of which speak directly to poverty. Despite these commitments, none of the current provincial poverty reduction strategies incorporate a human rights approach to fighting poverty. In fact, most of them do not even reference human rights.[65]

In the next section we outline some opportunities that may help to raise the profile of human rights analysis and strategies as important tools in tackling poverty. This discussion is a starting point for consideration and not an in-depth legal analysis.

2.3 Poverty as a Human Rights Issue: The Infusion of Obligations under the Convention on the Rights of Persons with Disabilities

Human rights case law involving disability-based discrimination and the duty to accommodate clearly confirms that some form of positive action is required to remove and eliminate barriers. As described above, courts have compelled respondents (often governments) to take proactive measures which include requiring seating spaces for wheelchairs in movie theatres, providing sign language interpreters in health care facilities, ensuring access to train transportation, designing websites that are compatible with screen readers, offering individualized assessment/testing procedures, and making remedial support available to students with learning disabilities. These cases affirm the equality rights principle set out in the Charter case of Andrews that "the accommodation of difference…is the essence of true equality…".[66]

Further support for positive action can be derived from Canada's recent ratification of the Convention on the Rights of Persons with Disabilities.[67] As opined by Brodsky et al., the cases of Meiorin and Grismer mirror the objective of the CRDP—that "accommodation, properly understood, mandates genuine inclusiveness."[68]

The concept of positive action is a central theme of the CRDP. Of particular interest is the identification of reasonable accommodation as the linchpin for realizing human rights and equality rights for people with disabilities.[69] Reasonable accommodation as envisioned by the CRDP, knits together the recognition of rights and the obligations flowing from such rights recognition. Article 5.3 states that "In order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided."

While Canadian human rights law provides a broad and holistic approach to rights, the CRDP imposes a number of specific steps that state parties must undertake to ensure the full realization of rights. For example, Article 28 requires state parties to provide people with disabilities with an adequate standard of living and social protection. This requirement is comprehensive and far reaching and includes the right to adequate food, clothing, and housing. Arguably, Article 28 recognizes that people with disabilities have social and economic rights and hence, it sets out a number of steps that must be taken to realize these rights.

In Canada, international human rights instruments such as the CRDP are generally regarded as persuasive interpretive tools.[70] Therefore, it is reasonable to assume that the role of the CRDP is vital to the interpretation of human rights law and the concept of positive action as a means of removing discriminatory barriers for people with disabilities. The CRDP in conjunction with advances made under human rights law thus raises the possibility of a legal basis for analyzing disability-based poverty as a human rights issue. The requirements set out in Article 28 further strengthen this proposition.

2.4 New Avenues for Advocacy

a) Poverty Reduction Strategies

At least five provinces have introduced poverty reduction strategies.[71] Generally, these strategies offer initiatives to improve access to housing, education, employment and social inclusion. Given the high rate of poverty among people with disabilities, these strategies are of particular importance and should be rigorously assessed to determine their effectiveness in addressing disability-related barriers. For example, do such strategies understand, acknowledge and fully respect the human rights principle of accommodation for people with disabilities?

In a report prepared for the CCD Community-University Research Alliance project regarding current poverty reduction strategies, Pamela Brown points out that "While the number of social assistance benefits people can qualify for is growing, accessing these benefits still often depends on being employed in the first place."[72] This requirement may continue the cycle of disadvantage for people with disabilities, as noted above many such persons continue to experience chronic unemployment and ailianation from the workplace. Brown further observes that while employment barriers faced by persons with disabilities are well documented, barriers to employment programs are not.[73]

Poverty reduction strategies tend to make access to employment and self-sufficiency one of their key themes. For example, a Manitoba Minister stated: "The best route out of poverty is a decent job."[74] This sentiment, while laudable, may not adequately serve the interests of all people with disabilities. First, while access to employment is a very important and essential goal for people with disabilities, their reasons for unemployment are complex, underscored by well entrenched and deeply rooted discriminatory barriers. It is therefore hard to imagine how current poverty reduction strategies will have the resources required to significantly alter this long-standing situation. Second, as employment support programming becomes more outcome focused, it is possible that certain persons with disabilities may be turned away by case workers who deem them to be unlikely of finding employment.[75]

Examples of poverty reduction strategies that truly address and accommodate the dual needs of people with disabilities may include a focus on obtaining employment and a focus on providing adequate living income benefits and supports. Where employment is the primary goal, accommodation may take the form of specially-tailored employment programs that include supports and benefits to off-set the unique needs and costs associated with certain disabilities.

As previously indicated, case law demonstrates familiarity with applying a human rights analysis to employment barriers and issues of access to services for people with disabilities. Poverty reduction strategies and related social and economic programs must also be evaluated from a human rights perspective. Cases such as Eldridge, Via Rail and Moore, together with the CRDP, give us the legal principles to argue that government programs must proactively address the causes of poverty among people with disabilities and introduce the specific measures needed to improve their life situation.

b) Social Disadvantage as a Prohibited Ground of Discrimination

Some jurisdictions have made a specific effort to recognize the human rights of poor people. Quebec, New Brunswick, the Northwest Territories and, most recently, Manitoba have all added the ground of "social disadvantage" or "social condition" to their human rights legislation.[76] This move can be interpreted as a signal that governments recognize the need to provide added protection from discrimination for poor people. For example the Manitoba Human Rights Code defines "social disadvantage" as "diminished social standing or social regard due to (a) homelessness or inadequate housing; (b) low levels of education; (c) chronic low income; or (d) chronic unemployment or underemployment."[77]

This is a relatively new human rights ground. Unlike other grounds of discrimination, jurisdictions like Manitoba have imposed some qualifiers on this ground by saying that social disadvantage discrimination must be based on negative bias or stereotype related to the social disadvantage in question.[78] Nevertheless, the recognition of social disadvantage as a ground under human rights legislation now means that governments must assess the impact of programs and action plans on the rights of socially disadvantaged people. Even though some governments like Manitoba have sought to limit the interpretation of social disadvantage, it still has the potential to be an important and powerful human rights tool for poor people. This is particularly true for people with disabilities.

Combining the grounds of social disadvantage and disability may provide greater opportunities for holding governments accountable for the barriers and lack of supports that force people with disabilities to continue to live in poverty. As noted above, considerable social scientific evidence exists documenting the social disadvantages experienced by people with disabilities. Thus, governments' failure to remedy these disadvantages may be regarded as a violation of human rights law.

c) Human Rights and Administrative Boards and Tribunals

Human rights commissions are no longer the only agencies able to deal with human rights matters. In 2006, the SCC in the Tranchemontagne decision affirmed that administrative boards and tribunals have the capacity to consider issues which raise human rights concerns.[79] At issue in the Ontario Tranchemontagne case was the lower rate of social benefits paid to persons with addiction disabilities compared to other recipients with disabilities. The Court recognized that human rights legislation has primacy over all other legislation, unless otherwise stated.[80] This primacy means that all boards and tribunals are required to consider human rights issues that may arise when interpreting legislation.[81]

In the light of Tranchemontagne, boards and tribunals that deal with issues of particular concern to poor people, such as access to housing, education and training, social benefits and health care, are now required to consider human rights implications. Tranchemontagne gives people with disabilities yet another legal avenue for challenging government programs/services and benefits that fail to accommodate their unique needs.

Conclusion

In Canada, having a disability means a high likelihood of living a life of poverty.[82] At the same time, living in poverty increases the incidence of disability.[83] As noted by CCD: "It is a vicious cycle and one that must be changed."[84] According to Sarah Lugtig, "Courts in Canada have tended to say that human rights do not have a role in addressing poverty, that poverty is not a human rights issue."[85] However, she remains optimistic that the door is not completely closed and that there are things we can do to raise the profile of poverty as a human rights issue.[86]

In this paper we have demonstrated that people with disabilities have made significant legal gains in the area of human rights. As the cases described above reveal, positive action in the form of accommodation is often the prescribed remedy for eliminating disability-based discrimination. The ratification of the CRDP provides further insight as to what specific positive action or accommodation is required to remove barriers and achieve equality for people with disabilities.

We must not be discouraged by the limited thinking of the courts to date. We must heed the advice of Sarah Lugtig and take advantage of the useful legal tools we have established and those opportunities that can help us establish disability-related poverty as a critical human rights issue that demands attention and remedy.

• [*]* Yvonne Peters is Chair of the Manitoba Human Rights Commission. She practices equality rights law in Winnipeg, providing legal consultation and advice to unions, community groups, human rights organizations, the corporate sector and governments. Debra Parkes is Associate Dean (Research and Graduate Studies) in the Faculty of Law, University of Manitoba. The authors thank the Social Sciences and Humanities Research Council (SSHRC) and the Council of Canadians with Disabilities (CCD) for supporting this research. They are also grateful to the many members of the SSHRC Community-University Research Alliance team who provided input and feedback into this research. Joëlle Pastora Sala, Sara Minshull, Nathan Irving, Althea Wheeler, and Zilla Maria Jones provided invaluable research assistance to this project at various stages.
• [1] "Celebrating Our Accomplishments," published by Council of Canadians with Disabilities, November 2011. Online: http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/income-security-reform/celebrating-our-accomplishments.
• [2] Gosselin v. Québec (Attorney General), [2002] S.C.C. 84 and more recently Tanudjaja v. Attorney General (Canada)(Application), 2013 ONSC 5410 which applied Gosselin.
• [3] Michael J. Prince (Co-Principal Investigator for the CCD CURA Disabling Poverty & Enabling Citizenship 2008-2014), "Disabling Poverty & Enabling Citizenship: Recommendations for Positive Change," (forthcoming).
• [4] Joëlle Pastora Sala, "How the UN Convention on the Rights of Persons with Disabilities (CRPD) Might Be Used in Canadian Litigation." Report prepared for CCD, April 5, 2012. Online: http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/legal-protections/crpd-in-canadian-litigation.
• [5] Brodsky, Gwen, Sheilagh Day & Yvonne Peters. "Accommodation in the 21st Century," Canadian Human Rights Commission, March 2012. Online: http://www.chrc-ccdp.ca/sites/default/files/accommodation_eng.pdf.
• [6] Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11.
• [7] Yvonne Peters, "From Charity to Equality: Canadians with Disabilities take their Rightful Place in Canada's Constitution," in Deborah Stienstra and Aileen Wight-Felske, eds., Making Equality: History of Advocacy and Persons with Disabilities in Canada (Concord, ON: Captus Press, 2003).
• [8] In Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Justice Sopinka described these barriers as "headwinds to the enjoyment of society's benefits" (at para. 67).
• [9] See generally Lisa Vanhala, Making Rights a Reality? Disability Rights Activists and Legal Mobilization (New York: Cambridge University Press, 2011), chs. 1 and 2.
• [10] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
• [11] Ibid., at 111-112.
• [12] Canadian Odeon Theatres Ltd. v. Huck (No. 2) (1981), 2 C.H.R.R. D/521 (Sask. Bd.Inq.).
• [13] Saskatchewan Human Rights Commission and Huck v. Canadian Odeon Theatres Ltd. (1985), 18 D.L.R. (4th) 93 (Sask. C.A.), leave to appeal refused.
• [14] Ibid.
• [15] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
• [16] Ibid., at para. 80.
• [17] Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 SCR 650.
• [18] Ibid., at para. 296.
• [19] Ibid., at para. 175.
• [20] Ibid., at para. 183.
• [21] Canada (Attorney General) v. Jodhan, 2012 FCA 161.
• [22] Ibid., at para. 131.
• [23] Ibid., at para. 152.
• [24] Moore v. British Columbia (Education), [2012] SCC 61.
• [25] Moore v. B.C. (Ministry of Education) and School District No. 44, 2005 BCHRT 580.
• [26] Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657.
• [27] Ibid., at paras. 55 and 56.
• [28] Factum of the Intervenor (Council of Canadians with Disabilities) in Moore, Supreme Court of Canada, March 5, 2012. {11013-001/00264995.2}, online: http://www.ccdonline.ca/media/humanrights/factum-of-the-intervener-ccd-00268315.pdf.
• [29] Ibid., at para. 24.
• [30] Supra note 24 at para. 31.
• [31] Ibid., at para. 28.
• [32] Ibid., at para. 5.
• [33] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. (Commonly referred to as the "Meiorin" case).
• [34] Ibid., at para. 68.
• [35] Ibid.
• [36] Ibid., at paras. 40-41.
• [37] Ibid., at para. 41.
• [38] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. (Commonly referred to as the "Grismer" case).
• [39] Ibid., at para. 42
• [40] Ibid., at para. 44
• [41] Ibid.
• [42] Dianne Pothier, "Tackling Disability Discrimination at Work: A Systemic Approach" (2010), 4:1 M.J.L.H. 17, at pgs. 22 and 27.
• [43] Bruce Porter, "Expectations of Equality," (2006) 33 Supreme Court Law Review (2nd) 23.
• [44] Section 15 of the Charter provides as follows: (1) "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." (2) "Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
• [45] Ibid.
• [46] Ibid., at 27.
• [47] Andrews, Ibid.
• [48] See, for example, Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 (health care funding for autism treatment), Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 (inadequate social assistance rates), and Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357 (survivor benefits for common law spouses).
• [49] Supra note 15.
• [50] Ibid., at para 72-73.
• [51] Vriend v. Alberta, [1998] 1 S.C.R. 493.
• [52] See, for example, Falkiner v.Ontario (Ministry of Community and Social Services) (2002), 212 D.L.R. (4th) 633 (Ont. C.A.) (recognizing discrimination on the basis of receipt of social assistance).
• [53] (R.S.Q., chapter L-7).
• [54] For example see the 2013 Annual Report of the Canadian Human Rights Commission showing that the proportion of complaints filed by grounds of disability comprise over half (55%) of the total received. All other grounds (sex, national or ethnic origin, race, family status, age, colour, religion, marital status, sexual orientation and conviction for which a pardon has been granted or record suspended) combined total 45%. Online http://www.chrc-ccdp.gc.ca/sites/default/files/pdf/chrc-annual-report-2013.pdf
• [55] Cameron Crawford, "Looking Into Poverty: Income Sources of Poor People with Disabilities in Canada," Institute for Research and Development on Inclusion and Society, 2013, online http://www.ccdonline.ca/media/socialpolicy/Income%20Sources%20Report%20I....
• [56] Social Policy—"Trying to 'Make the Grade': Education, Work-Related Training," Council of Canadians with Disabilities website. Online http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/demographic-profile/trying-to-make-the-grade. Produced through the Council of Canadians with Disabilities' Disabling Poverty/Enabling Citizenship project, which is funded by the Social Sciences and Humanities Research Council's (SSHRC) Community-University Research Alliances (CURA).
• [57] Ibid.
• [58] Social Policy—"Low Household Income and Disability: Income Sources, Employment and Employment Discrimination," Council of Canadians with Disabilities website. Online http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/demographic-.... Produced through the Council of Canadians with Disabilities' Disabling Poverty/Enabling Citizenship project, which is funded by the Social Sciences and Humanities Research Council's (SSHRC) Community-University Research Alliances (CURA).
• [59] Ibid.
• [60] Social Policy—"On the Home Front: Poverty, Disability, Housing and Help with Everyday Activities, Council of Canadians with Disabilities website. Online http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/demographic-profile/on-the-home-front. Produced through the Council of Canadians with Disabilities' Disabling Poverty/Enabling Citizenship project, which is funded by the Social Sciences and Humanities Research Council's (SSHRC) Community-University Research Alliances (CURA).
• [61] Social Policy—"John Stapleton and Anne Tweddle, "What is Happening to Disability Income Systems in Canada?" Council of Canadians with Disabilities website. Online http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/income-security-reform/disability-income-systems.
• [62] Supra note 58.
• [63] Supra note 2.
• [64] Social Policy—Poverty, Council of Canadians with Disabilities website. Online: http://www.ccdonline.ca/en/socialpolicy/poverty.
• [65] Vincent Greason, "Poverty as a Human Rights Violation." (June 16, 2013). Accessed from the Social Science Research Network website at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2279838. Greason notes that the Quebec government "reluctantly" includes mention of international human rights obligations but does not incorporate a human rights analysis in its strategy.
• [66] Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, McIntyre J.
• [67] Convention on the Rights of Persons with Disabilities, online: http://www.un.org/disabilities/convention/conventionfull.shtml
• [68] Supra note 5.
• [69] Anna Lawson, "The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?" In Arnardottir, O. and Quinn, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden: Martinus Nijhoff, 2009) at 320. Cited by Joëlle Pastora Sala, (August 2012) Canadian Legal Literature Addressing the Positive Rights Dimension of the CRPD.
• [70] Supra note 4.
• [71] Supra note 65.
• [72] Prepared by Pamela Brown for Michael Prince, Co-Investigator, Council of Canadians with Disabilities—Community-Universities Research Alliance: "Disability lens evaluation of four provincial poverty reduction strategies: Manitoba, New Brunswick, Newfoundland and Labrador, and Nova Scotia." (2011). Online: http://www.ccdonline.ca/media/socialpolicy/PRS-Disability-Report-Final-Draft.pdf.
• [73] Ibid.
• [74] Ibid., at p. 58.
• [75] Ibid.
• [76] Sarah Lugtig, "Human Rights Responses to Poverty: The Road Ahead is at Our Feet." Presentation made to the ISAAC PITBLADO LECTURES: Human Rights Challenges & Achievements, Winnipeg, Manitoba, November 2013.
• [77] C.C.S.M. c. H175, 1. Definitions.
• [78] Ibid. clause 9(2.1).
• [79] Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 SCR 513.
• [80] Ibid., at paras. 31–39.
• [81] Ibid.
• [82] Council of Canadians with Disabilities (CCD) Brief for Submission to the Standing Committee on Finance, April 5, 2013. This information was produced through the Council of Canadians with Disabilities' Disabling Poverty/Enabling Citizenship project, which is funded by the Social Sciences and Humanities Research Council's (SSHRC) Community-University Research Alliances (CURA), online http://www.ccdonline.ca/en/socialpolicy/employment/Finance-Committee-5April2013.
• [83] Ibid.
• [84] Ibid.
• [85] Supra note 76.
• [86] Ibid.