Catch up on our work this summer and get a sneak-peak of what we’re up to this fall.
What's Inside
OUR WORK                                                                        


Assisted Suicide Legislation

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).

The Right to Palliative Care

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).

Accessible Procurement & Re-Visiting Jodhan

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).

Making Strides in Our Deinstitutionalization Case

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.

The Path to a National Disability Act

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).

Our Work at the Canadian Human Rights Tribunal

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.

Employee or Independent Contractor?

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. 

In Other News . . .

Family Status Discrimination

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).

Addiction Afflicted Worker Reinstated

David Baker was recently interviewed for his opinion on a Manitoba Human Rights Commission case. The case set an “important precedent” according to David Baker. The case involved a worker who had been fired three years earlier because of her alcohol addiction. The Commission ruled that she had been discriminated against because of this addiction and it was a factor in her termination. The Commission ordered that she be reinstated.


This case reinforces that addictions are disabilities according to human rights law. David Baker believes that “this case should be reviewed and considered useful, persuasive authority across the country”.


To read the full article and more of David Baker’s comments, click here (link).

To read the case, click
here (link).

Privilege and Independent Workplace Investigations


An important arbitration decision was released that emphasized the relationship between independent workplace investigations and solicitor client privilege.
In the case, a lawyer retained by Durham Regional Police Board conducted an investigation regarding a harassment claim made by two members of the Durham Regional Police Association. The lawyer refused to disclose the report summarizing her findings, on the basis that it was protected by solicitor-client privilege. The arbitrator ruled that the report was not privilege. It was not created with the intent or purpose of providing legal advice. Rather, the report was meant to review the facts of what occurred that gave rise to the harassment claim. 
This decision is important because it affirms the distinction between a third-party workplace investigator and lawyer hired to represent an employer for anticipated litigation. In this case, the lawyer tried to assume both roles.

To read more about the issues surrounding workplace investigations, click here (link).
To read the full case, click here (link).

bakerlaw - who we are and what we do

Bakerlaw is committed to accessible justice.

Our lawyers are experienced in human rights, disability and accommodation law. If you, or someone you know might require our services, visit our website to learn more (link).

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