Barriers to justice hold back disabled

Posted on May 29, 2009 in Equality Debates, Inclusion Debates – Opinion – Barriers to justice hold back disabled
May 29, 2009.   Carol Goar

By 2025, every public courthouse in Ontario must be barrier-free.

It’s government policy, the will of the judiciary, perhaps even a sign of the times. “We’re dealing with some courthouses that are really old and decrepit, but disability issues are being taken seriously,” said Justice Anne Molloy. “I think we’ll see some improvement in the short term.”

But even when the last ramp is built and the last Braille nameplate mounted, Ontarians with disabilities will face barriers. They won’t be physical. But they’ll be every bit as formidable as a flight of steps or a dark corridor.

This week the Law Society of Upper Canada hosted a two-hour symposium to highlight some of those impediments. They ranged from the high cost of litigation to the destructive meddling of politicians.

To the surprise of organizers, the audience also got a brief glimpse of the justice system through the eyes of someone who is disabled, poor, alone and caught in a bureaucratic nightmare.

An apologetic senior showed up at the symposium as a last resort. “This wheelchair just cleaned me out,” she explained.

Public health authorities had ordered her to buy a wheelchair or move into a nursing home. So she spent all her savings, believing government assistance would be available. But her application was turned down.

She didn’t know what she’d done wrong. She couldn’t afford a lawyer. And she had no idea how the courts worked. “Am I eligible for help?” she asked piteously.

Legal aid clinics serve thousands of people like her. But most Ontarians with disabilities give up, back down, do without.

For two hours, a panel of legal experts steered the audience through the obstacle course disabled Ontarians seeking justice must negotiate. Here are a few of the stumbling blocks:

Legal costs: Under court rules, the losing party in a lawsuit bears both sides’ costs. This makes litigation much too risky for people with disabilities.

Until recently, the federal government provided financial assistance to Canadians of limited means seeking legal equality. This led to groundbreaking jurisprudence.

Prime Minister Stephen Harper killed the Court Challenges Program in 2006.

Proliferating tribunals: Many of the issues that directly affect people with disabilities are decided by quasi-judicial bodies such as the Ontario Human Rights Tribunal, the Ontario Social Benefits Tribunal, the Workplace Safety and Insurance Appeals Tribunal and the Landlord and Tenant Board.

In theory, an individual does not need a lawyer to appear before these tribunals. In fact, most people with disabilities need one.

Only one tribunal – the Ontario Human Rights Tribunal – provides free legal counsel. Applicants who need advice or representation have access to lawyers, paralegals and phone support.

Conservative leadership contender Tim Hudak is campaigning to eliminate it.

Legal representation: Very few lawyers are trained to deal with clients who have difficulty expressing their wishes or judging what’s in their own best interest. A lawyer is not a substitute decision-maker. But he or she must represent the client as effectively as possible.

This may involve asking the court to make expensive accommodations. It may involve preparing a case without knowing how coherent the client will be. It may involve managing family tensions.

Ethically, it is a minefield. Emotionally, it is draining. The remuneration is modest.

Not surprisingly, disability law is underdeveloped in Canada.

There is a clear guiding principle. Section 15 of the Charter of Rights states that “every individual 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.”

But it is hard to keep it in sight with so many obstructions in the way.


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