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In February, the Supreme Court of Canada struck down the laws prohibiting physician assisted suicide in Carter v Canada. Bakerlaw represented the Council for Canadians with Disabilities, as an intervenor. The ruling requires new federal and provincial legislation to be put in place by February 2016.
The Ontario Government has set up an expert panel to work on drafting the legislation.
The legislation will require adequate safeguards to ensure the right to physician assisted dying is not abused or used inappropriately.
David Baker has continued his personal involvement in the subject engaging with Gilbert Sharpe to create a piece of draft legislation. This draft includes the types of strong safeguards required to protect those who may pursue the assistance of a physician in ending their life.
In early October, David Baker participated on the expert panel in a webinar hosted by Canadians With Disabilities- Ontario. The panel discussed the draft legislation. The webinar was a success and was attended by experts in both the medical and legal fields. David Baker will also be speaking in the Alberta Assissted Suicide Prevention webinar later this month.
See David Baker’s powerpoint slides and draft legislation on our website (link).
See the Carter v Canada decision here (link).
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Experts report that 90% of deaths would benefit from palliative care services. Despite this, roughly 70% of Canadians do not have access to palliative care.
Canada has a two-tiered legislative approach to health care. The Federal Government provides funding for “medically necessary” services and the provinces are responsible for providing services and allocating funding as appropriate. Palliative care is not included in the definition of “medically necessary”. This leads to a patchwork of availability of adequate and affordable palliative care.
Given our aging population, demand for palliative care is increasing but access is not. Bakerlaw hopes to challenge this.
Section 7 of the Charter protects the right to life, liberty and security of the person in accordance with the principles of fundamental justice. Inadequate access to palliative care is endangering the lives and security of people the aged and those with life-limiting diseases.
Section 15 of the Charter protects the right to equality. Currently, the under-inclusive approach to what is “medically necessary” is discriminating against the aged and disabled.
See the Think Paper here (link).
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Bakerlaw has been communicating with new clients discussing the possibility of bringing a case against the Federal Government for its inaccessible procurement practices.
This case would have many similarities to bakerlaw’s earlier case against the Federal Government in Jodhan v Canada (link to case).
In Jodhan, the complainant was visually impaired and could not access public Government websites. The Government websites were not compatible with assistive devices such as screen readers.
Affirmed at the Federal Court of Appeal, the Court ruled that this was discrimination contrary to section 15 of the Charter.
Following this ruling, the Federal Government created Web Accessibility Standards. However, these Standards only apply to public-facing websites. We have been in discussions with Federal Government employees who do not have full and independent access to their work computers and the internal websites and programs required to do their jobs.
These employees often require assistance reading documents and websites and even logging in. Further, many of the online collaborative programs used by Federal Government employees are not accessible to assistive devices. This results in employees with visual impairments being less able to participate. This exclusion is discriminatory.
Bakerlaw intends to challenge the Government’s failure to procure accessible programs for its employees.
If you know of anyone who might be interested in working with us on this case please contact us (link).
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Bakerlaw is currently representing an individual with a developmental disability and complex care needs. Currently, the Ontario Government limits or “caps” the amount of home care visits a person can receive. Our client requires more care than what the cap allowed. As such, any additional care had to be funded privately.
Recently, the Government amended the regulatory cap to extend the number of home care visits allowed. Thanks to this regulation change, the financial burden has been lifted for our client.
However, this does not render the case moot. Bakerlaw believes there are still live issues at play.
Firstly, the complainant experienced discrimination the entire time the additional care was privately funded.
Further, the systemic element of this case has not been resolved. Bakerlaw believes that failure to provide and fund adequate care in the home, thus necessitating that an individual be moved to an institution that can provide for his or her needs, is discrimination.
This case mirrors the principles discussed in the United States case: Olmstead (link to case). The Court held that the unnecessary institutionalization of people with disabilities is discrimination. Bakerlaw hopes to have this principle affirmed in Canadian law.
To see more on how institutionalization is discriminatory, click here (link) to view our blog post on the subject.
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Bakerlaw is reiterating and renewing the call for the newly elected {XX} party to enact national legislation that would increase and improve the inclusion of people with disabilities.
The Rick Hanson Foundation cited that four million Canadians are living with a disability of some form. Further, as aging is the biggest cause of disability, the Foundation estimated that by 2030 approximately 1 in 5 people will have a disability.
The Canadians with Disabilities Act would complement existing provincial legislation where it exists and would ensure that those provinces without disability legislation would be held to an appropriate national standard.
Further, a national approach to disability legislation would combat the physical, economic and attitudinal barriers that people with disabilities face on a regular basis. This national approach has been used in the United States of America in the form of the Americans with Disabilities Act which was enacted in 1990.
In October 2006, the Council of Canadians with Disabilities along with Canadian Association for Community Living, commissioned a paper by Phyllis Gordon at ARCH Disability Law Centre which included a framework of the Bill (link to bill).
Provincially, Ontario enacted the Accessibility for Ontarians with Disabilities Act, 2005, (AODA). Part of this Act sets a deadline for compliance with the Employment Standards described in the Act. In order to comply, organizations must ensure accommodations are in place or readily available when hiring, creating policies, communication, return to work plans, performance management, career development and advancement as well as redeployment.
Organizations with 50 or more employees have to comply with the Employment Standard by January 1, 2016. Smaller organizations have until January 1, 2017 to meet these standards.
Bakerlaw hopes that these standards and the call for a Canadians with Disabilities Act will result in increased inclusion and fewer barriers for individuals with disabilities.
For more information on the AODA click here (link).
For information of where you can vote, click here (link).
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Bakerlaw recently represented a client at the Canadian Human Rights Tribunal who was discriminated against on the basis of age and place of origin.
Our client is a foreign-trained psychiatrist who applied for a position with the Canadian Forces. Rather than accepting the Ontario standard which licenses doctors through either practical or written examinations, the Canadian Forces only accept applicants who passed the written exam.
Our client excelled at the practical exam; however, despite several attempts he was unable to pass the written exam. Expert evidence demonstrates that age and place of education have a negative impact on an applicant’s ability to pass the written examination. Therefore, reliance on this standard as a requirement for the position, was discriminatory.
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Bakerlaw recently settled a case in which the Respondent argued that there was no duty to accommodate because the Applicant was an independent contractor, not an employee.
The Respondent had fired our client while she was on disability leave. Prior to firing our client, the Respondents failed to take any steps to accommodate the client’s disability. This amounts to discrimination under the Ontario Human Rights Code.
Our position was that independent contractors can be considered employees for the purposes of section 5 of the Code.
We were able to assist our client in settling this case. Despite this success, we are cautious that independent contractors will not necessarily be assessed as employees in all other judicial contexts such as wrongful dismissal suits.
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A recent Alberta decision adds further guidance to the newly explored area of discrimination: family status.
In the case, a mother was required to rotate between day and night shifts. The rotation resulted in costly child care expenses. The employer denied her request to switch exclusively to day shifts.
The arbitrator accepted that childcare responsibilities were included within the meaning of ‘family status’.
The employer challenged the result on the grounds that the arbitrator failed to consider that the mother took no steps to self-accommodate.
The Court of Queen’s Bench of Alberta dismissed the appeal finding that childcare responsibilities fall under the heading of ‘family status’ (para 50). The mother’s failure to self-accommodate did not alter the finding of a prima facie case of discrimination (paras 66-67).
This case builds on bakerlaw’s work in the area of family status discrimination. Last August, bakerlaw represented a mother who had been terminated from Canadian National Railway (CNR) because she refused to relocate from her home in Alberta to British Columbia.
Ms. Seeley refused the transfer because of the needs of her two children. The Federal Court of Appeal ruled that CNR had discriminated against her by failing to accommodate her child care needs.
Ms. Seeley was reinstated with full compensation. To read the full decision click here (link).
This new Alberta decision elaborates on the existing jurisprudence under the ‘family status’ heading. Hopefully, this will encourage employers to take employees’ childcare responsibilities more seriously and provide adequate accommodations. To read the full decision click here (link).
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