The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol


Hasnt The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

May 14, 2020

SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Governments widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCHs website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCHs executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Governments lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVOs The Agenda with Steve Paikin.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letters excellent points:

1. ARCHs May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Governments secret March 28, 2020 medical triage protocol:

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations Convention on the Rights of Persons with Disabilities.

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

2. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontarios Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

3. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVOs The Agenda with Steve Paikin. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.

4. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.

5. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.

6. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.

7. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Governments political strategy in this area had been to wait for the curve to flatten, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Governments initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofskys and Wendy Porchs May 8, 2020 interview on The Agenda with Steve Paikin and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliances COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premiers office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected] Please stay safe!

MORE DETAILS

The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre
Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health College Park, 5th Floor
777 Bay Street
Toronto, ON M7A 2J3

Mr. Matthew Anderson
Chief Executive Officer
Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re: Ontarios Clinical Triage Protocol for Major Surge in COVID Pandemic

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic1 (the Triage Protocol), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Governments letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Governments direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups aside from the OHRC that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Governments assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, The scarcity of resources should never be a justification to discriminate against certain groups of patients2. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.3

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,4 the Charter of Rights and Freedoms (the Charter),5 and the United Nations Convention on the Rights of Persons with Disabilities.6 For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.7 The Triage Protocol, and the tools it relies on to determine a patients prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).8 The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels9 and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and advanced or moderate neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The animating norm of section 15 is substantive equality,10 which responds to the reality that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.11

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.12 Historically, and due to this, persons with disabilities have been denied equal access to health care13 on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.14 The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.15 This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable16 to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.17 However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.18 The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them severely frail on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the persons health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities19 into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patients life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.20

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.
It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a persons disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,21 those who use support persons for daily living tasks and personal care,22 those who walk with assistance,23 or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as frail which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patients likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,24 and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.25 It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.26 Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Governments attention, for example, to the United Kingdom,27 where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.28 The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of frailty according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival29 also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.30 The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.31 The preamble explains that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.32

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties shall closely consult with and actively involve them through representative organizations.33 This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

(a) Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
(b) Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
(c) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
(d) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
(e) Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
(f) Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,
ARCH DISABILITY LAW CENTRE

Robert Lattanzio
Executive Director

Cc: Raymond Cho, Minister of Accessibility
Todd Smith, Minister of Children, Community and Social Services Renu Mandhane, Ontario Human Rights Commissioner

1 Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].
2 No exceptions with COVID-19: Everyone has the right to life-saving interventions UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities
3 Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD]. 4 RSO 1990, c H.19 [Code]
5 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 6 CRPD, supra note 3.
7 Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge]. 8 Triage Protocol, supra note 1 at 6.
9 Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

10 See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143. 11 Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.
12 Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/. 13 Eldridge, supra note 7.
14 Eldridge, ibid at para 56.
15 United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with
Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [?Report of the Special Rapporteur?]. 16 Savin & Guidry-Grimes, supra note 12.
17 Triage Protocol, supra note 1 at 3.
18 Report of the Special Rapporteur, supra note 15, at 6.
19 The Triage Protocol uses cognitive impairments, which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term cognitive disabilities is used throughout.
20 See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

21 Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10. 22 Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid. 23 Scoring a 6 on the CFS, see Triage Protocol, ibid.
24 CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859
25 Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html
26 National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale
27 Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/
28 The Governments attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

29 See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3. 30 Hughes v Elections Canada, 2010 CHRT 4 at para 79.
31 United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7]. 32 CRPD, supra note 3, Preamble.
33 CRPD, ibid, Art 4(3).




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The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

May 14, 2020

          SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Government’s widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCH’s website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCH’s executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Government’s lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVO’s “The Agenda with Steve Paikin”.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letter’s excellent points:

  1. ARCH’s May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Government’s secret March 28, 2020 medical triage protocol:

“In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations’ Convention on the Rights of Persons with Disabilities.”

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

  1. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontario’s Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

  1. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVO’s “The Agenda with Steve Paikin”. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.
  1. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.
  1. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.
  1. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.
  1. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Government’s political strategy in this area had been to wait for the “curve to flatten”, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Government’s initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofsky’s and Wendy Porch’s May 8, 2020 interview on “The Agenda with Steve Paikin” and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliance’s COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premier’s office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected]. Please stay safe!

          MORE DETAILS

 The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre

Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health

College Park, 5th Floor

777 Bay Street

Toronto, ON M7A 2J3

Mr. Matthew Anderson

Chief Executive Officer

Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re:       Ontario’s Clinical Triage Protocol for Major Surge in COVID Pandemic

 

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic[1] (the “Triage Protocol”), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Government’s letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Government’s direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups – aside from the OHRC – that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Government’s assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, “The scarcity of resources … should never be a justification to discriminate against certain groups of patients[2]. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.[3]

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,[4] the Charter of Rights and Freedoms (the Charter),[5] and the United Nations’ Convention on the Rights of Persons with Disabilities.[6] For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.[7] The Triage Protocol, and the tools it relies on to determine a patient’s prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).[8] The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels[9] and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and “advanced or moderate” neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

 

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The “animating norm” of section 15 is substantive equality,[10] which responds to the reality that “persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.”[11]

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score – it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.[12] Historically, and due to this, persons with disabilities have been denied equal access to health care[13] on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.[14] The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.[15] This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners’ decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable[16] to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.[17] However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates “to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.”[18] The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them “severely frail” on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the person’s health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities[19] into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patient’s life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.[20]

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.

It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a person’s disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

 

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,[21] those who use support persons for daily living tasks and personal care,[22] those who walk with assistance,[23] or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as “frail” which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patient’s likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities’ right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,[24] and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.[25] It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.[26] Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Government’s attention, for example, to the United Kingdom,[27] where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.[28] The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities’ right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of “frailty” according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival[29] also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.[30] The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.[31] The preamble explains that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”.[32]

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties “shall closely consult with and actively involve” them through “representative organizations”.[33] This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

  • Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
  • Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
  • Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
  • Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,

ARCH DISABILITY LAW CENTRE

 

 

Robert Lattanzio

Executive Director

 

Cc:       Raymond Cho, Minister of Accessibility

Todd Smith, Minister of Children, Community and Social Services

Renu Mandhane, Ontario Human Rights Commissioner

[1] Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].

[2] No exceptions with COVID-19: “Everyone has the right to life-saving interventions” – UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities

[3] Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD].

[4] RSO 1990, c H.19 [Code]

[5] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[6] CRPD, supra note 3.

[7] Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge].

[8] Triage Protocol, supra note 1 at 6.

[9] Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

[10] See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143.

[11] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.

[12] Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/.

[13] Eldridge, supra note 7.

[14] Eldridge, ibid at para 56.

[15] United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with

Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [“Report of the Special Rapporteur”].

[16] Savin & Guidry-Grimes, supra note 12.

[17] Triage Protocol, supra note 1 at 3.

[18] Report of the Special Rapporteur, supra note 15, at 6.

[19] The Triage Protocol uses “cognitive impairments,” which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term “cognitive disabilities” is used throughout.

[20] See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

[21] Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10.

[22] Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid.

[23] Scoring a 6 on the CFS, see Triage Protocol, ibid.

[24] CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859

[25] Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html

[26] National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale

[27] Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/

[28] The Government’s attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

[29] See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3.

[30] Hughes v Elections Canada, 2010 CHRT 4 at para 79.

[31] United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7].

[32] CRPD, supra note 3, Preamble.

[33] CRPD, ibid, Art 4(3).



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Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE

January 28, 2020 Toronto: After a year delay, the Ford Government today offered thin gruel to 2.6 million Ontarians with disabilities in its response set out below to the searing report of the Government-appointed Independent Review of the implementation of Ontarios disability accessibility law conducted by David Onley. On January 31, 2019, the Government received Onleys blistering report that concluded that for people with disabilities, Ontario is not a place of opportunity, but is instead full of countless, dispiriting, soul-crushing Barriers, with progress on accessibility being barely detectable and coming at a glacial pace.

To fix this, today the Ford Government mainly re-announced existing measures, in place for months or years, primarily focusing on public education efforts that are proven to be insufficient. Among these, it even re-announced a program for purchasing accessible buses that was started a quarter century ago by the Bob Rae Government.

After a year, this is the best they can do? Premier Ford has still announced no action plan to implement the Onley Reports important recommendations to strengthen and speed up the implementation and enforcement of the 2005 Accessibility for Ontarians with Disabilities Act. The AODA requires the Government to lead Ontario to become accessible by 2025, under five years from now, said David Lepofsky, chair of the non-partisan grassroots AODA Alliance that leads the campaign for accessibility in Ontario. How long must we wait for a real plan to actually implement the Onley Report? A years dithering mainly produced a re-announcement of earlier voluntary programs that the Onley Report shows were insufficient to meet the needs of Ontarians with disabilities who want to ride public transit, get an education, use our health care system or get a job.

The Onley Report found that Ontario has suffered from years of ineffective leadership on accessibility. Todays announcement shows none of the new leadership by the premier for which the Onley Report called. Indeed, Premier Ford has to date refused to even meet with the AODA Alliance.

Since taking office, the Ford Government has taken steps setting back accessibility, such as:

* For months, it froze the work of five advisory committees, appointed under the AODA to propose new measures to achieve accessibility for Ontarians with disabilities in education, health care, information and communication and employment. The AODA Alliance had to campaign hard to get that unjustified freeze lifted.

* It rejected recommendations to create a long-overdue Accessibility Standard to ensure that buildings in Ontario become accessible. The Ford Government unfairly slammed that proposal as “red tape.” Todays re-announcement that the Ford Government plans to harmonize the weak Ontario Building Code with the weak federal building code could lead to a further weakening of already-inadequate accessibility protections for Ontarians with disabilities.

* Again re-announced today, it wastefully diverted $1.3 million public dollars into the deeply-flawed and unaccountable Rick Hansen Foundation’s private accessibility certification program funds which should have been used to create new regulations on building accessibility, rather than having the Hansen Foundation use inadequate standards to have its insufficiently-trained people inspect a meager 250 buildings across all of Ontario.

* It mandated the creation of serious new barriers against people with disabilities by legalizing electric scooters on Ontario roads and sidewalks, endangering accessibility and safety of people with disabilities and others. Todays announcement says the Ford Government will lead by example on accessibility, but its example so far is one that no one should follow.

* It is considering allowing builders to hire the private building inspector of their choice to inspect their construction project a proposal riddled with conflicts of interest. Here again the Government is showing a weak commitment to accessibility in the built environment, despite the Onley Reports emphasizing it as a top priority and the Governments announcement today emphasizing barriers in the built environment.

* It has not committed to ensure that public money is never used to create barriers against Ontarians with disabilities. This is so even though the Government has emphasized its commitment to be responsible in the use of public money.

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @aodaalliance

Text of the Ford Governments January 28, 2020 Announcement In Response to the Onley Report

Ontario Establishes a New Framework to Continue Progress on Accessibility Applying Cross-Government Actions to Advance Accessibility

NEWS
January 28, 2020
TORONTO When a society is inclusive and barrier-free, people can fully participate in their communities. Making Ontario a province where communities and businesses are accessible for everyone benefits us all.

The government continues to build momentum in creating a barrier-free Ontario, but a lot of work still needs to be done to make the province accessible for everyone. That is why Ontario has developed a new framework informed by the recommendations made by the Honourable David C. Onley in the third legislative review of the Accessibility for Ontarians with Disabilities Act (AODA), as well as input from key partners, organizations and people with disabilities. The new framework will make a positive difference in the daily lives of people with disabilities.

Today, Raymond Cho, Minister for Seniors and Accessibility, announced Advancing Accessibility in Ontario at the Toronto Pan Am Sports Centre. This cross-government framework will help focus the provinces work in four key areas:

* breaking down barriers in the built environment
* government leading by example
* increasing participation in the economy for people with disabilities and * improving understanding and awareness about accessibility

We know that making Ontario accessible is a journey that cannot be completed overnight or alone. The Advancing Accessibility in Ontario framework will support our work with all of our partners across government and beyond to remove barriers for people with disabilities, said Minister Cho. Our government created a dedicated Ministry for Seniors and Accessibility because we are working towards a more accessible and inclusive province today and for future generations.

As I conducted the third legislative review of the AODA, it became increasingly clear that the people of Ontario wanted an all-of-government commitment to making Ontario far more accessible. This could not be achieved with a single stand-alone ministry attempting to resolve the problem alone, said David C. Onley. That is why I am pleased that the government is coordinating access activities and programs with multiple ministries in an-all-of-government commitment.

The first area in Advancing Accessibility in Ontario breaking down barriers in the built environment shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

For example, the Ontario Building Officials Association is receiving funding from the governments EnAbling Change Program to enhance its curriculum and training on accessibility. By making building officials more aware of the challenges people with disabilities face in accessing buildings and training them about areas of improvement, new and existing buildings can be planned and built to be more accessible.

There are several additional examples that illustrate progress and upcoming initiatives as the government continues its work towards making Ontario accessible.

Ontario is committed to protecting what matters most to people with disabilities.

QUICK FACTS

* There are 2.6 million people in Ontario that have a disability.

* The government is investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.

* Further information on the other key areas in Advancing Accessibility in Ontario will be announced in the coming weeks.

ADDITIONAL RESOURCES

Advancing Accessibility in Ontario: Breaking down barriers in the built environment

Accessibility for Ontarians with Disabilities Act

Accessibility in Ontario: Information for Businesses web page

-30-

MEDIA CONTACTS

Pooja Parekh
Ministers Office
[email protected]

Matt Gloyd
Communications Branch
647-268-7233
[email protected]
ontario.ca/msaa-news
Disponible en français
Ontario Government Backgrounder

Advancing Accessibility in Ontario:
Breaking down barriers in the built environment

BACKGROUNDER
January 28, 2020Advancing Accessibility in Ontario is a cross-government framework that will help focus the governments work in four key areas. The four key areas are:

* breaking down barriers in the built environment
* government leading by example in its role as a policy maker, service provider and employer * increasing participation in the economy for people with disabilities and * improving understanding and awareness about accessibility

The first area in Advancing Accessibility in Ontario breaking down barriers in the built environment shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

Work the government is doing to break down barriers in the built environment includes:

* Making buildings safer and more accessible for people with disabilities by increasing harmonization of Ontarios Building Code with the National Construction Codes. This process is reducing barriers and has resulted in accessibility changes, including new requirements for the design of barrier-free ramps, clearer accessibility requirements in barrier-free washrooms and easier-to-understand requirements for universal washrooms in large buildings and equipment such as grab bars and faucets.

* Investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.

* Improving access to buildings and places for people with disabilities by working with key partners in architecture, design, and building. We are exploring ways to enhance training for those practicing in the field and undertaking discussions with the post-secondary sector to reach a new generation of professionals. For example:
o We are partnering with the Ontario Building Officials Association to enhance its curriculum and training on accessibility, helping to ensure that new and existing buildings can be planned and built to be more accessible.
o The Royal Architecture Institute of Canada is introducing a new course on accessibility to be available March 2020. Introduction to Successful Accessible Design will analyze the impacts of accessibility in society, the built environment, and the development industry. The course will be offered in English and French, both as a complete university graduate level course and as a continuing education course for practicing professionals.

* Making places of worship more accessible so people can connect with their faith groups by funding Our Doors Are Open a free guide created by OCAD University that provides practical information on how places of worship can remove physical barriers to accessibility.

* Helping main street businesses earn more customers and employees by providing them with tips on how to become more accessible through funding a free handbook created by the Ontario Business Improvement Area Association called The Business of Accessibility: How to Make Your Main Street Business Accessibility Smart.

* Giving retailers of all sizes in Ontario practical information on how to make their store more welcoming for customers and staff with disabilities by funding EnAbling Change for Retailers: Make your Store Accessible a free guide created by Retail Council of Canada that covers how stores can implement accessibility in their communications, customer service and recruitment and retention.

* Providing $1.4 billion in funding for the 2019-20 school year to help school boards provide safe and healthy learning environments for students, such as installing important accessibility features like elevators and ramps.

* Ensuring better access for people with disabilities throughout Ontario by continuing to require that all public transportation vehicles bought with provincial funding be accessible.

* Continuing to help Ontario residents with long-term mobility disabilities remain in their homes and participate in their communities by funding the Home & Vehicle Modification Program, which is administered by March of Dimes Canada. With an annual investment of $10.6 million, this program reduces safety risks by approving grants up to $15,000 to make basic home and vehicle modifications.

As the government moves forward with making Ontario more accessible, upcoming work includes:

* Funding free resources and training materials for the building sector through the EnAbling Change Program to further educate associations and employers about how to improve accessibility in the built environment. Many of these resources are available on a comprehensive one-stop-shop government web page that provides businesses and communities with information to help them be more accessible and inclusive.

* We are committed to developing an innovation guide with the Ministry of Municipal Affairs and Housing that will be used to support the implementation of Ontarios Housing Supply Action Plan. The action plan will address housing challenges and support fresh approaches to help make homes more accessible.

MEDIA CONTACTS

Matt Gloyd
Communications Branch
647-268-7233
[email protected]
ontario.ca/msaa-news
Disponible en français




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Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Ford Government’s Long Delayed Response to the Blistering Report of the David Onley Independent Review of the Implementation of Ontario’s Disability Accessibility Law Offers Thin Gruel to 2.6 Million Ontarians with Disabilities

January 28, 2020 Toronto: After a year delay, the Ford Government today offered thin gruel to 2.6 million Ontarians with disabilities in its response set out below to the searing report of the Government-appointed Independent Review of the implementation of Ontario’s disability accessibility law conducted by David Onley. On January 31, 2019, the Government received Onley’s blistering report that concluded that for people with disabilities, Ontario is not a place of opportunity, but is instead full of “countless, dispiriting, soul-crushing Barriers”, with progress on accessibility being “barely detectable” and coming at a “glacial” pace.

To fix this, today the Ford Government mainly re-announced existing measures, in place for months or years, primarily focusing on public education efforts that are proven to be insufficient. Among these, it even re-announced a program for purchasing accessible buses that was started a quarter century ago by the Bob Rae Government.

“After a year, this is the best they can do? Premier Ford has still announced no action plan to implement the Onley Report’s important recommendations to strengthen and speed up the implementation and enforcement of the 2005 Accessibility for Ontarians with Disabilities Act. The AODA requires the Government to lead Ontario to become accessible by 2025, under five years from now,” said David Lepofsky, chair of the non-partisan grassroots AODA Alliance that leads the campaign for accessibility in Ontario. “How long must we wait for a real plan to actually implement the Onley Report? A year’s dithering mainly produced a re-announcement of earlier voluntary programs that the Onley Report shows were insufficient to meet the needs of Ontarians with disabilities who want to ride public transit, get an education, use our health care system or get a job.”

The Onley Report found that Ontario has suffered from years of ineffective leadership on accessibility. Today’s announcement shows none of the new leadership by the premier for which the Onley Report called. Indeed, Premier Ford has to date refused to even meet with the AODA Alliance.

Since taking office, the Ford Government has taken steps setting back accessibility, such as:

* For months, it froze the work of five advisory committees, appointed under the AODA to propose new measures to achieve accessibility for Ontarians with disabilities in education, health care, information and communication and employment. The AODA Alliance had to campaign hard to get that unjustified freeze lifted.

* It rejected recommendations to create a long-overdue Accessibility Standard to ensure that buildings in Ontario become accessible. The Ford Government unfairly slammed that proposal as “red tape.” Today’s re-announcement that the Ford Government plans to harmonize the weak Ontario Building Code with the weak federal building code could lead to a further weakening of already-inadequate accessibility protections for Ontarians with disabilities.

* Again re-announced today, it wastefully diverted $1.3 million public dollars into the deeply-flawed and unaccountable Rick Hansen Foundation’s private accessibility certification program – funds which should have been used to create new regulations on building accessibility, rather than having the Hansen Foundation use inadequate standards to have its insufficiently-trained people inspect a meager 250 buildings across all of Ontario.

* It mandated the creation of serious new barriers against people with disabilities by legalizing electric scooters on Ontario roads and sidewalks, endangering accessibility and safety of people with disabilities and others. Today’s announcement says the Ford Government will lead by example on accessibility, but it’s example so far is one that no one should follow.

* It is considering allowing builders to hire the private building inspector of their choice to inspect their construction project – a proposal riddled with conflicts of interest. Here again the Government is showing a weak commitment to accessibility in the built environment, despite the Onley Report’s emphasizing it as a top priority and the Government’s announcement today emphasizing barriers in the built environment.

* It has not committed to ensure that public money is never used to create barriers against Ontarians with disabilities. This is so even though the Government has emphasized its commitment to be responsible in the use of public money.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

Twitter: @aodaalliance

Text of the Ford Government’s January 28, 2020 Announcement In Response to the Onley Report

Ontario Establishes a New Framework to Continue Progress on Accessibility

Applying Cross-Government Actions to Advance Accessibility

TORONTO — When a society is inclusive and barrier-free, people can fully participate in their communities. Making Ontario a province where communities and businesses are accessible for everyone benefits us all.

The government continues to build momentum in creating a barrier-free Ontario, but a lot of work still needs to be done to make the province accessible for everyone. That is why Ontario has developed a new framework informed by the recommendations made by the Honourable David C. Onley in the third legislative review of the Accessibility for Ontarians with Disabilities Act (AODA), as well as input from key partners, organizations and people with disabilities. The new framework will make a positive difference in the daily lives of people with disabilities.

Today, Raymond Cho, Minister for Seniors and Accessibility, announced Advancing Accessibility in Ontario at the Toronto Pan Am Sports Centre. This cross-government framework will help focus the province’s work in four key areas:

  • breaking down barriers in the built environment
  • government leading by example
  • increasing participation in the economy for people with disabilities and
  • improving understanding and awareness about accessibility

“We know that making Ontario accessible is a journey that cannot be completed overnight or alone. The Advancing Accessibility in Ontario framework will support our work with all of our partners across government and beyond to remove barriers for people with disabilities,” said Minister Cho. “Our government created a dedicated Ministry for Seniors and Accessibility because we are working towards a more accessible and inclusive province today and for future generations.”

“As I conducted the third legislative review of the AODA, it became increasingly clear that the people of Ontario wanted an all-of-government commitment to making Ontario far more accessible. This could not be achieved with a single stand-alone ministry attempting to resolve the problem alone,” said David C. Onley. “That is why I am pleased that the government is coordinating access activities and programs with multiple ministries in an-all-of-government commitment.”

The first area in Advancing Accessibility in Ontario – breaking down barriers in the built environment – shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

For example, the Ontario Building Officials Association is receiving funding from the government’s EnAbling Change Program to enhance its curriculum and training on accessibility. By making building officials more aware of the challenges people with disabilities face in accessing buildings and training them about areas of improvement, new and existing buildings can be planned and built to be more accessible.

There are several additional examples that illustrate progress and upcoming initiatives as the government continues its work towards making Ontario accessible.

Ontario is committed to protecting what matters most to people with disabilities.

QUICK FACTS

  • There are 2.6 million people in Ontario that have a disability.
  • The government is investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.
  • Further information on the other key areas in Advancing Accessibility in Ontario will be announced in the coming weeks.

ADDITIONAL RESOURCES

Advancing Accessibility in Ontario: Breaking down barriers in the built environment

Accessibility for Ontarians with Disabilities Act

 

Accessibility in Ontario: Information for Businesses web page

-30-

Ontario Government Backgrounder

Advancing Accessibility in Ontario:

Breaking down barriers in the built environment

BACKGROUNDER January 28, 2020

Advancing Accessibility in Ontario is a cross-government framework that will help focus the government’s work in four key areas. The four key areas are:

  • breaking down barriers in the built environment
  • government leading by example in its role as a policy maker, service provider and employer
  • increasing participation in the economy for people with disabilities and
  • improving understanding and awareness about accessibility

The first area in Advancing Accessibility in Ontario – breaking down barriers in the built environment – shows how government is working with partner ministries and businesses to reduce barriers to accessibility for people with disabilities in the built environment and housing.

Work the government is doing to break down barriers in the built environment includes:

  • Making buildings safer and more accessible for people with disabilities by increasing harmonization of Ontario’s Building Code with the National Construction Codes. This process is reducing barriers and has resulted in accessibility changes, including new requirements for the design of barrier-free ramps, clearer accessibility requirements in barrier-free washrooms and easier-to-understand requirements for universal washrooms in large buildings and equipment such as grab bars and faucets.
  • Investing $1.3 million over two years for the Rick Hansen Foundation to launch the Rick Hansen Foundation Accessibility Certification program in Ontario to help remove barriers in buildings. An update on the program will be announced shortly.
  • Improving access to buildings and places for people with disabilities by working with key partners in architecture, design, and building. We are exploring ways to enhance training for those practicing in the field and undertaking discussions with the post-secondary sector to reach a new generation of professionals. For example:
    • We are partnering with the Ontario Building Officials Association to enhance its curriculum and training on accessibility, helping to ensure that new and existing buildings can be planned and built to be more accessible.
    • The Royal Architecture Institute of Canada is introducing a new course on accessibility to be available March 2020. Introduction to Successful Accessible Design will analyze the impacts of accessibility in society, the built environment, and the development industry. The course will be offered in English and French, both as a complete university graduate level course and as a continuing education course for practicing professionals.
  • Making places of worship more accessible so people can connect with their faith groups by funding Our Doors Are Open – a free guide created by OCAD University that provides practical information on how places of worship can remove physical barriers to accessibility.
  • Giving retailers of all sizes in Ontario practical information on how to make their store more welcoming for customers and staff with disabilities by funding EnAbling Change for Retailers: Make your Store Accessible – a free guide created by Retail Council of Canada that covers how stores can implement accessibility in their communications, customer service and recruitment and retention.
  • Ensuring better access for people with disabilities throughout Ontario by continuing to require that all public transportation vehicles bought with provincial funding be accessible.
  • Continuing to help Ontario residents with long-term mobility disabilities remain in their homes and participate in their communities by funding the Home & Vehicle Modification Program, which is administered by March of Dimes Canada. With an annual investment of $10.6 million, this program reduces safety risks by approving grants up to $15,000 to make basic home and vehicle modifications.

As the government moves forward with making Ontario more accessible, upcoming work includes:

  • Funding free resources and training materials for the building sector through the EnAbling Change Program to further educate associations and employers about how to improve accessibility in the built environment. Many of these resources are available on a comprehensive one-stop-shop government web page that provides businesses and communities with information to help them be more accessible and inclusive.
  • We are committed to developing an innovation guide with the Ministry of Municipal Affairs and Housing that will be used to support the implementation of Ontario’s Housing Supply Action Plan. The action plan will address housing challenges and support fresh approaches to help make homes more accessible.
   
MEDIA CONTACTS

Matt Gloyd

Communications Branch

647-268-7233

[email protected]

ontario.ca/msaa-news

Disponible en français



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Change In Ontario Law Creates Uncertainty For Service Dogs In Schools


“Are all these school boards going to start saying that the dogs need to be certified?” By Bailey Martens

Fifteen-year-old Cameron Cadarette was a C student, struggling to stay in school in Windsor, Ont. until Vincent came along. The specifically trained golden Labrador helps the teen manage his post-traumatic stress disorder, and gain better focus in classes.

Cameron scratches his arms and legs until they bleed; Vincent is able to interrupt his self-harming behaviour by nudging the teen’s hand. The service animal also keeps the teen safe at night, waking him from night terrors and bringing him water bottles to help him catch his breath during an anxiety attack.

Two years later, Cameron holds an average of 95 per cent in Grade 9 and is able to have relationships with his peers. “He can meld into the school system and not be an outcast,” said his mother, Nicole McMillan.

But a recent change in Ontario’s Safe and Supportive Classroom Act is making McMillan and other families with students who use service animals nervous.

Vague nature of new section concerns dog handlers

A new section on service dogs, which was approved in April, notes that the education minister may create policies and guidelines, and require school boards to comply with them or create their own based on the minister’s parameters.

A draft policy is underway, the Ministry of Education told HuffPost Canada, that will “set out the framework and required components of board policies across the province resulting in greater consistency, transparency and clarity of process when requesting that a student be accompanied by a service animal in school.”

“We are committed to ensuring every student in Ontario has access to safe and supportive learning environments,” said a ministry statement, which noted that it’s aware of 39 of 72 school boards with active policies on service animals.

Still, the vague nature of the new section has left service dog handlers with more questions than answers.

“Nothing is actually changing because they’re just passing a bill that says the minister could do something,” said Deanna Allain, an Ontario-based service dog trainer and lobbyist. But the concern comes in the unknown: “The minister could ban all service dogs, that’s that’s how specific this legislation is.”

Emily Write has been working with her diabetic alert service dog Kailey for six years. Kailey is scent-trained to alert her handler to dangerous changes in blood sugar levels.

Write is nearing completion of her masters degree from the University of Toronto’s Ontario Institute For Studies In Education, and has been doing a required teaching placement at a Catholic school.

“I realize that we can’t just have anyone bring a dog in a school and that the dog does need to have appropriate training levels,” Write told HuffPost Canada. But the new addition in the law is not the way to go about it, she said.

With a lack of clear expectations, it provides no information on the process to bring a service dog to school. “Are all these school boards going to start saying that the dogs need to be certified, and who is going to monitor that? Because we don’t have a certification process,” said Write.

Uneven requirements across Canada

Currently, Ontario only requires a note from a medical professional outlining the need for a service dog. This is contrary to provinces like British Columbia, which mandates a certification test, or Alberta, where certification is voluntary. There’s no national standard or consistency across provincial laws, which becomes problematic when more public places are requesting proof of certifications. An increase in fraudulent registries and copycat harnesses and ID cards doesn’t help either.

Then there’s the issue of reporting complaints. The Accessibility for Ontarians with Disabilities Act (AODA) that governs service animals does not have a formal complaint process. Write wonders why new service dog legislation would be implemented if it has no clear path to enforcement.

McMillan has fought complex policies before. Cameron’s service dog was initially denied by both the Greater Essex Public School Board and the Windsor-Essex County Catholic School Boards because they couldn’t recognize Vincent’s international training credentials from Florida.

The public school board has its own service dog policies and was considered complaint with the AODA. McMillan took their case to the Ontario Human Rights Tribunal, which said the issue was settled through mediation in 2017.

Cameron now attends a private school with Vincent by his side.

“All I want for him is an education that he has the right to,” said McMillan.

She feels the new section in provincial legislation can open doors, “but it’s also left room for interpretation, which in the long run, I think you’ll see some battles from families trying to … get their service dogs in schools that are adequately trained for their children.”

“It encourages empathy.
Emily Write

McMillan fears that families will go “school-district shopping” as they try to place students in schools with better service dog policies, as it appears the act’s new section would allow districts to have varying policies.

As a teacher in training, Write points out that service dogs benefit the whole classroom. “It encourages empathy,” she said. She noted how students she worked with, ranging from kindergarten to Grade 12, recognized when the classroom was getting too loud through Kailey’s changing body language and would respond accordingly.

“As an educator, that’s not something I ever knew: that by bringing a service dog into a classroom that it would not just benefit me but also benefit my students,” said Write.

Original at https://www.huffingtonpost.ca/entry/ontario-service-dog-school-policy_ca_5d014863e4b0985c419705b8?utm_hp_ref=ca-living&guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS91cmw_cmN0PWomc2E9dCZ1cmw9aHR0cHM6Ly93d3cuaHVmZmluZ3RvbnBvc3QuY2EvZW50cnkvb250YXJpby1zZXJ2aWNlLWRvZy1zY2hvb2wtcG9saWN5X2NhXzVkMDE0ODYzZTRiMDk4NWM0MTk3MDViOCUzRnV0bV9ocF9yZWYlM0RjYS1saXZpbmcmY3Q9Z2EmY2Q9Q0FFWUFDb1VNVEEwTURnNE5qWXlNamN4TmpRek9Ea3dOemt5R2pGa1l6QTJOVFF5TjJaa00yRmhORFE2WTI5dE9tVnVPbFZUJnVzZz1BRlFqQ05FYXZiTTdqeDFZUTE3OXVRcElabkxsekNFYWl3&guce_referrer_sig=AQAAACquXyzeRYfHimJ7dPggreypPKVGbaamqEGxlH9Uk4ADtqTX1oq4Z9iLbgCR6CbQJnTKndTqxxv46eR0LjoXnjQiw4Hrghk0WMoSBP29oaXjuJRmjiQDiK4FwzCtSCFbPeFxMBtOqn8QQudOe6E704VNYOn41BsqlM1OwhPgwcGA



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Law Around Service Animals


Tuesday, May 28, 2019
By Amanda Lawrence-Patel

The recent increase in media reports regarding requests by individuals to access their service animals, or “therapy pets” or “compassion pets” in the course of their employment and in accessing services has caused various organizations to consider their responsibility to accommodate staff and clients who require the use of a guide dog or service animal. Accordingly, the purpose of this article is to provide some best practices to ensure that your organization knows how to respond when a request for access to a service animal is received.

Familiarize yourself with key terms

While the terms “service animal” and “guide dogs” are sometimes used interchangeably when speaking about the right of an individual to access a service animal or guide dog, the two terms are not synonymous for the purposes of all applicable legislation. Indeed, the legislation which provides individuals with a right to use a service animal may differ slightly depending on the animal and/or its purpose, although all are covered by the Human Rights Code.

Know applicable legislation

Organizations should be aware of three key pieces of legislation. First, the Blind Person Rights Act specifically pertains to guide dogs used for blind persons and defines a guide dog as a dog trained as a guide for a blind person and having the qualifications prescribed by the regulations. Under the Act, no person shall deny accommodation, services or facilities to a person accompanied by a guide dog or shall discriminate against any person for the reason that they are accompanied by a guide dog.

Second, the Accessibility for Ontarians with Disabilities Act (AODA) states that where a person with a disability is accompanied by a guide dog or other service animal, a provider of services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her (unless otherwise excluded by law). Under the AODA, an animal is a service animal if the animal can be readily identified as one that is being used by a person for reasons relating to that person’s disability, including where the animal is confirmed as such by a letter from a qualified “regulated health professional.”

The third piece of legislation to be aware of is the Ontario Human Rights Code. “Disability” under the Code includes “physical reliance on a guide dog or other animal.” This captures guide dogs, but like the AODA, it is also much broader and includes all types of dogs as well as other animals used for support purposes. Failing to accommodate a guide dog or service animal where the animal is actually required for a disability related need to the point of undue hardship constitutes a failure to accommodate a disability.

Respond appropriately to request

First, regardless of whether a request to access a guide dog or service animal is in the context of employment or access to services, be sure that the organization responds promptly and takes the request seriously. To facilitate this, organizations should consider developing a policy for employees outlining how requests will be handled and the process for a response.

Second, the organization should look critically at whether the service animal or guide dog is actually required to address a disability-related need that is acting as a barrier to employment or accessing the service. In many cases, the first step of the inquiry is easy for example, in the case of a blind individual, the guide dog is clearly addressing a disability-related need as the “eyes” of the individual.

In other cases, the issue of whether a service animal is required to address a disability-related need is not as straightforward. In those circumstances, the organization should have a thoughtful and respectful discussion with the individual who has made the request, to discuss the type of support that the service animal provides to the individual and other relevant information, such as what care the animal needs.

There may be some circumstances, such as where the request is made in the context of employment or where the request involves ongoing access to an organization’s premises, which necessitates a request for medical documentation related to the individual’s disability-related needs. The information which is requested should, in almost all cases, be limited only to the individual’s limitations and restrictions and the need which the service animal will address.

Implement accommodation as appropriate

If it is determined that access to a service animal is a reasonable accommodation, the organization should consider how to integrate the animal into the workplace. For example, there may be circumstances where the organization should give notice of the animal’s presence to other employees, customers or third parties. Concerns raised by other employees, customers or clients about a fear of animals or allergies to animals must be addressed and a balancing of rights may need to be considered.

Finally, organizations may also want to re-evaluate the need for the service animal periodically where appropriate.

Amanda Lawrence-Patel is a labour and employment lawyer in the Toronto office of Hicks Morley LLP. She frequently provides workplace investigation training and accommodation training to clients at internal workplace sessions and she provides external training on issues such as the duty to accommodate and workplace harassment. You can reach her at 416-450-6022 or [email protected]

Original at https://www.thelawyersdaily.ca/articles/12612/law-around-service-animals



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Support Persons Law in Ontario


Under the Customer Service Standard of the AODA, service providers’ policies must state that they welcome support persons. Support persons assist people who have disabilities with a variety of tasks, depending on their capabilities and needs. Here we outline support persons law that service providers should follow.

Support Persons Law in Ontario

Welcoming Support Persons

All service providers that operate premises open to the public, or to third parties that serve the public, must welcome support persons. They must allow customers with disabilities to keep their support persons with them anywhere they need to go. For instance, a customer may need a support person with them at times when other people receive service alone to maintain privacy, such as a doctor’s or lawyer’s office. In situations like these, providers of confidential services may require support persons to sign confidentiality agreements to ensure that everyone in the room will respect client-provider privacy.

Can organizations require support persons?

Providers can only require that a customer has a support person with them if the support person’s absence would create health or safety risks for the customer or for others. Providers cannot decide to require a support person unless they first consult with the customer whom they believe should not receive service without personal support. Some service providers may not understand how people with various disabilities accomplish tasks. As a result, they may feel that most customers with disabilities should have support persons with them. However, this belief is false. As a result, organizations cannot usually require that customers with disabilities bring support persons with them. Likewise, organizations usually cannot deny service to customers who do not have support persons.

Nonetheless, support persons are sometimes necessary. Providers wishing to require support persons should consult with many people who have different disabilities. The providers and the people with disabilities should talk about whether activities would be more risky for customers with disabilities than for customers without disabilities. Providers may sometimes falsely believe that every-day activities are more risky for people with disabilities than they truly are. In addition, if risks do exist, customers with disabilities may have ways of reducing them that the provider has not thought of. Each customer will know how they can best accomplish tasks. They will also know whether or not they need a support person in different situations.

Reduced or Waived Fees for Support Persons

Moreover, many Ontario venues have policies allowing support persons to attend events for a reduced or waived fee. These policies are not support persons law, but they remove barriers for customers who cannot attend events without support persons. Otherwise, such customers would need to pay double what others pay. All venues must let customers know whether or not they reduce prices for support persons and what the reduction is.

Service providers who follow support persons law are showing their commitment to serving all customers.



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CBC Radio and TV Report on the Ford Government’s Continued Freeze on the Work of Standards Development Committees to Tackle Disability Barriers in Ontario’s Education and Health Care Systems – and – The Ford Government Makes the Obviously Incorrect Claim that Ontario’s Accessibility Law Doesn’t Cover Accessibility of Buildings


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org  [email protected] Twitter: @aodaalliance

CBC Radio and TV Report on the Ford Government’s Continued Freeze on the Work of Standards Development Committees  to Tackle Disability Barriers in Ontario’s Education and Health Care Systems – and – The Ford Government Makes the Obviously Incorrect Claim that Ontario’s Accessibility Law Doesn’t Cover Accessibility of Buildings

November 16, 2018

          SUMMARY

1. Still No End in Sight for the Ford Government’s Four-Month-long Freeze of the Work on Removing and Preventing Barriers Against Students with Disabilities in Ontario’s Education system, and Barriers Against Patients with Disabilities in Ontario’s Health Care System

On November 13, 2018, CBC TV and radio news aired excellent reports on the Ford Government’s ongoing and unjustified freeze on the work of the Standards Development Committees that were appointed under the Accessibility for Ontarians with Disabilities Act to recommend what disability barriers must be removed and prevented in Ontario’s education system and health care system. This freeze has gone on for over four months. From what the Government told CBC, this freeze appears to have no end in sight. The Government says that it will be giving this issue “further consideration””

We set out below the text of the online version of this CBC news report. While preparing this report, CBC news sent AODA Alliance Chair David Lepofsky a statement, which the Ford Government sent to CBC on November 9, 2018 on point. CBC asked the AODA Alliance to comment on the Government’s statement. We set that full statement out below.

The Government’s statement notes that the Government is resuming the work of the Employment Standards Development Committee and the Information and Communication Standards Development Committee. All that Government statement said about the work on education and health care standards was this:

“We will have more to say regarding the resumption of the Education and Health Standards Development Committees upon further consideration.”

The Government has made no public statement on what “further consideration” is needed, or how long this further consideration will take, or why it has taken over four months so far, with no end in sight. The new Government has shown itself capable of acting quickly and decisively on other issues, when it wishes to do so.

Early last summer, the Ontario Government said that it needed to brief the Minister for Accessibility and Seniors on this. It does not take this long to brief a minister.

The AODA Alliance wrote the Minister for Accessibility and Seniors Raymond Cho back on August 29, 2018, to spell out in detail why it is important for the Ford Government to lift this freeze now. the Government has not answered that letter.

If it takes the Government this long just to decide on resuming the work of these Standards Development Committees, there can be real concern whether the Government will act promptly and effectively to get Ontario back on schedule to reach accessibility for Ontarians with disabilities by 2025. This delay in resuming the work of the Education and Health Care Standards Development Committees does not square with the commitments on accessibility for people with disabilities that Doug Ford made in the 2018 Ontario election. In his May 15, 2018 letter to the AODA Alliance, Doug Ford wrote:

“Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.

Too many Ontarians with disabilities still face barriers when they try to get a job, ride public transit, get an education, use our healthcare system, buy goods or services, or eat in restaurants.

Whether addressing standards for public housing, health care, employment or education, our goal when passing the AODA in 2005 was to help remove the barriers that prevent people with disabilities from participating more fully in their communities.

For the Ontario PCs, this remains our goal. Making Ontario fully accessible by 2025 is an important goal under the AODA and it’s one that would be taken seriously by an Ontario PC government.”

2. The Ford Government Wrongly Claims that Ontario’s Accessibility Law Doesn’t Cover Accessibility of Buildings

Is the Ford Government trying to substantially cut back on the reach of the AODA? We have a basis for concern.

The Government’s November 9, 2018 statement to CBC includes a very disturbing new and clearly incorrect statement on the reach of the Accessibility for Ontarians with Disabilities Act. The CBC’s November 13, 2018 news report does not address this issue.

The Ford Government told CBC:

“It is important to note that accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act (AODA), but under the Ontario Building Code. Accessibility requirements for buildings are included in Ontario’s Building Code to make it easier for organizations by ensuring that all construction requirements are found in one place. The Building Code is the responsibility of the Ministry of Municipal Affairs and Housing.”

This is obviously untrue. Accessibility in buildings falls well within the AODA. It is true that the Ontario Building Code has provisions, albeit chronically insufficient ones, on accessibility in new buildings and in major renovations of existing buildings. However, it is incorrect for the Government to claim that accessibility of buildings is somehow outside the scope of the Accessibility for Ontarians with Disabilities Act.

The very first section of the AODA specifically includes accessibility of buildings. It defines the scope and purpose of the AODA. Section 1 of the AODA provides:

”      1. Recognizing the history of discrimination against persons with disabilities

in Ontario, the purpose of this Act is to benefit all Ontarians by,

(a)    developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and

(b)    providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.”

Section 3(d) of the AODA makes the AODA apply, to among others, a person who:

”         (d)    owns or occupies a building, structure or premises…”

Section 6 of the AODA requires an accessibility standard to address, among other things, barriers in buildings. Section 6 includes:

”       (6)   An accessibility standard shall,

(a)    set out measures, policies, practices or other requirements for the identification and removal of barriers with respect to goods, services, facilities, accommodation, employment, buildings, structures, premises or such other things as may be prescribed, and for the prevention of the erection of such barriers;…”

In February 2015, the former Ontario Government released the report of an Independent Review of the AODA, conducted by former University of Toronto law dean Mayo Moran. Her report said this, among other things:

* “The Building Code does not require retrofitting of existing buildings to improve accessibility and most of the accessibility provisions do not apply to houses.

* “The issue of retrofits to remove existing barriers was a particular subject of discussion during the consultations. Current accessibility requirements apply to new buildings and extensive renovations as well as to newly constructed or redeveloped public spaces. They do not call for the retrofitting of the built environment, but many in the disability community and in the business sector do not realize this. As a result, people with disabilities may feel betrayed when they encounter physical barriers, while some businesses are turned against accessibility by what they fear will be high retrofit costs.”

* “As mentioned above, the current Built Environment Standards do not cover retrofits to remove existing barriers. Many disability stakeholders argued that this must change. They pointed out that barriers in buildings mean people with disabilities cannot use them, whether to shop, study, work, play or obtain services from health care to driver’s licences.

During the Review, considerable discussion of retrofits arose in different sectors.  Many concerns were raised about the built environment in health care, such as lack of elevators to doctors’ offices and inaccessible hospital washrooms.  A strong view was expressed that all health care facilities in particular should be physically accessible to people with disabilities.  The importance of access to buildings was also underlined in the education sector.  In the housing sector, a suggestion was made for retrofits of all apartment suites to install power door openers.

Generally speaking, the Review heard that if accessibility standards were expanded to require building retrofits, it would be necessary to create exemptions in cases of undue hardship.  For example, some people with disabilities who contended that the AODA should require retrofits of ramps and door openers felt this should apply only where it can be done without undue hardship.  Other disability stakeholders observed that such exemptions would be inconsistent with the usual approach under the Building Code, which is to impose accessibility requirements without providing for exceptions if the cost would result in undue hardship.  It was argued that this usual practice should be overlooked if it stands in the way of retrofits to improve accessibility.”

* “On the content of other possible new standards, it may be helpful to summarize the gap analysis that emerged from the Review.  The gap that stood out most clearly from the perspective of this Review concerned the built environment and the issue of retrofits.   As mentioned earlier, of all the barriers facing people with disabilities, those involving the built environment attracted the most comment during the Review.  Yet, as noted above, barriers in existing facilities – as opposed to those in new construction or renovations – are not covered by the current accessibility standards, leading to much frustration in the disability community.  The Review repeatedly heard that in the absence of an obligation to ensure that the built environment eventually incorporates at least some accessibility features, it will be very difficult to celebrate the Ontario of 2025 as a leader in accessibility.  At the same time, it is also very clear that retrofit obligations (which many assume are already part of the AODA standards) can be costly undertakings and imposing any new obligations in this regard requires sensitivity.

Ontario could begin to address this issue by considering standards resembling the U.S. Americans with Disabilities Act (ADA) regulations which require private facilities that provide goods or services to remove existing architectural barriers where this is “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.”  (ADA Title III Regulations, section 36.304).  This approach would lend itself to setting some priorities for accessibility enhancements, such as entry ways and washrooms (the two areas most frequently referred to in the consultations).  Although by no means a full solution, beginning to address the built environment through a relatively modest option would significantly improve access for people with disabilities without generating major worries about cost.

As is the case with all AODA standards, compliance with such a requirement would not relieve organizations of their obligation under the Human Rights Code to accommodate people with disabilities to the point of undue hardship.  Individuals who believed their needs were not adequately met by “readily achievable” measures would still have the option of seeking recourse through the Human Rights Tribunal of Ontario.”

It is true that AODA standards to date have not comprehensively addressed disability accessibility barriers in the built environment. The former Ontario Government promised to enact a Built Environment Accessibility Standard, but did not ever do so. It only enacted a much narrower accessibility standard, addressing barriers in a limited number of public spaces.

However, that does not mean that “accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act” as the Ford Government claims. It is very important for the Ford Government to correct this serious misunderstanding of its obligations under the AODA.

We always welcome your feedback. Write us at [email protected] or tweet us at @aodaalliance

More Details

CBC News November 13, 2018

Originally posted at https://www.cbc.ca/news/canada/toronto/ontario-standards-development-committees-1.4901869

Accessibility advocates want the Ontario government to put them to work

Committees working on provincial accessibility standards say their work’s been paused for too long

Taylor Simmons CBC News

Posted: Nov 13, 2018 4:00 AM ET | Last Updated: November 13

Kathleen Lynch, a student at Humber College, looks down at a garbage can blocking the path to her classroom. She wants Ontario to get back to work creating accessibility standards, so all of her classrooms will be equipped with automatic doors. (Mehrdad Nazarahari/CBC)

A Toronto student with multiple sclerosis has a message for Premier Doug Ford: “Get in my chair” and see how you experience the province.

Kathleen Lynch, a journalism student at Humber College, is one of some 74,000 post-secondary students with disabilities in Ontario.

She says if Ford could only see the daily challenges she faces, he’d work much harder to ensure the province accomplishes its goal of becoming fully-accessible by 2025.

“Do you know how quickly he’d be snapping his fingers saying, ‘We need to do something about this?’” she said.

And Lynch isn’t alone in her criticism.

Kathleen Lynch wants to see the government do more to make post-secondary institutions more accessible to students with disabilities. (Mehrdad Nazarahari/CBC)

Accessibility advocates say the government hasn’t put several Standards Development Committees (SDCs) — special groups looking at how to get rid of accessibility barriers in the province — back to work almost five months after the spring election.

Their work is an essential part of the Accessibility for Ontarians with Disabilities Act (AODA), passed in 2005. All the parties voted to work toward making the province barrier-free by 2025.

Creating a standard

The SDCs are meant to study barriers in different sectors to make recommendations for an accessibility standard.

The three still paused — looking at health care, schools K – 12 and post-secondary institutions — are the most recent to begin their work.

They stopped work on May 8, 2018, when the provincial election campaign officially began.

Raymond Cho became Ontario’s new minister of Seniors and Accessibility in June 2018. He was a previously a Toronto city councillor. (John Sandeman/CBC)

In a statement, the Ministry for Seniors and Accessibility said they’ve resumed some of the other committees, but they’ll have more to say on the ones still paused “upon further consideration.”

That doesn’t sit well with David Lepofsky, the chair of the AODA Alliance.

He said as the official opposition, the PCs had previously criticized the former Liberal government for not moving fast enough to create the committees.

“On our behalf they slammed the former government when it delayed,” he said. “The Conservative Party that used to press to move forward on this has frozen our work … That’s not fair.”

When he inquired, Lepofsky said a spokesperson told him the government needed time to brief the new minister before resuming the committees’ work.

David Lepofsky is also a member of the K-12 Standards Development Committee. (CBC)

“It doesn’t take four months to brief a new minister,” he said. “Our students with disabilities have been facing this uphill situation in schools for years. It’s long overdue time to fix it, so we can’t afford a delay.”

Why the standards matter

In the absence of a standard, Lynch feels she’s been left to fight her own battle.

As a result of her disease, she isn’t able to move her left arm and uses a power wheelchair to get around.

Most of her classrooms are not equipped with automatic door openers, which she said makes it extremely difficult to get through them.

“If there is an automatic button … that’s my independence,” she said. “There’s a lot of handicapped kids, and I don’t know if their needs are being met.”

Lynch said this is the only classroom door, as part of her program, she can open using an automatic door opener. Otherwise, she’s left flagging other students down for help. (Mehrdad Nazarahari/CBC)

On top of that, she said other students are often using the barrier-free washrooms, which are the only ones she can use.

“Several times I’ve come here and I’m waiting 10, 15 minutes for somebody to walk out that door. And it’s kind of demoralizing, it’s kind of dehumanizing and it’s a basic need to go to the washroom,” she said.

As a fix, she’d like to see the college give out key cards to students with disabilities so only they can use those washrooms.

In a statement, Humber College said Lynch’s building exceeds accessibility standards, and has automatic door openers installed at all public entrances and at barrier-free washrooms.

But an accessibility standard might require them to do more.

When a student with a physical disability enrolls in a program, the standard might require the school to offer those classes in rooms already equipped with automatic openers.

Lynch said those openers would give her back her independence, which is why she’s also eager for the SDCs to get back to work.

“It’s 2018. They’re too far behind,” she said.

‘We’re disappointed to still be waiting’

Sandi Bell, the chair of the Health Care Standards Development Committee, agrees.

“We’re disappointed to still be waiting,” she said. “I have been particularly concerned because we are one of the most recent … committees to have been formed. So we’re still working on our very first set of recommendations.”

Bell said they’re looking at complex barriers, such as what a hospital might do with a person’s service animal should they experience an emergency.

“The issues are huge,” she said. “Every day that goes by, someone may not be being afforded the accessibility, the accommodation that they need.”

Jeanette Parsons is a member of the Post-Secondary Standards Development Committee. (Grant Linton/CBC)

Jeanette Parsons, the chair of the Inter-University Disability Issues Association and a member of the post-secondary SDC, is also eager to resume.

“We really, really do want to come back to the table with this and we’re looking forward to the resumption of this work,” she said.

Parsons’s committee had just begun to identify some of the biggest barriers facing post-secondary students with disabilities, such as transitioning from high school, accessible learning materials and mental health.

“It’s valuable for universities to sort of have a road map as to how they can enhance accessibility generally,” she said.

Many hospitals and schools have created their own accessibility standards, but according to Lepofsky: “There’s no specific accessibility standard regulation that’s enforceable in Ontario for schools, colleges, universities, hospitals and other health care providers.”

There are accessibility requirements for buildings under the Ontario Building Code, but they’re “completely inadequate,” Lepofsky says.

People can also file complaints under the Ontario Human Rights Code, but it’s up to the individuals to fight those battles.

“If we set one provincial standard then everyone will know what they’ve got to do,” Lepofsky said.

“We’re eager to get back to work so we can give this government good recommendations … but we can’t do that until they lift their freeze.”

Statement from the Ontario Government to CBC on Friday November 9, 2018

Everyone in Ontario deserves to fully participate in everyday life and we are committed to working with our partners to advance accessibility. Increasing accessibility is good for everyone including people with disabilities, businesses, seniors and families with young children.

It is important to note that accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act (AODA), but under the Ontario Building Code. Accessibility requirements for buildings are included in Ontario’s Building Code to make it easier for organizations by ensuring that all construction requirements are found in one place. The Building Code is the responsibility of the Ministry of Municipal Affairs and Housing.

Also, Ontarians, including students should know that under Ontario’s existing accessibility laws, organizations are required to ensure that if accessibility features are not in place, alternate measures are available so that a person with a disability can access goods or services. Organizations are also required to have a process in place to receive and respond to feedback.

Under the AODA, Standard Development Committees engage in important work recommending and reviewing Ontario’s accessibility standards. Active committees were paused in advance of the spring election, however we are pleased to confirm that the Employment and Information & Communications Standards Development Committees have been notified that their work will be resuming this year. The Transportation standards committee’s work is complete, and their final recommendations were posted on Ontario.ca in May of 2018.

We will have more to say regarding the resumption of the Education and Health Standards Development Committees upon further consideration.



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Trudeau Government’s Proposed Federal Law on Accessibility for People with Disabilities Falls Far Short and Must be Substantially Beefed Up, Disability Advocates to Tell Parliamentary Committee Today


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

 

Trudeau Government’s Proposed Federal Law on Accessibility for People with Disabilities Falls Far Short and Must be Substantially Beefed Up, Disability Advocates to Tell Parliamentary Committee Today

 

October 25, 2018 Ottawa: Bill C-81, a bill now before Parliament, which aims  to ensure that Canada becomes accessible to over 5 million people with disabilities, must be amended to make it strong and effective, Parliament’s Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities will be told from 8 to 10 a.m. today at the Wellington Building, 197 Sparks Street, Ottawa. Among the presenters from 8 to 9 a.m. will be AODA Alliance Chair David Lepofsky, who led the campaign from 1994 to 2005 to get Ontario’s 2005 accessibility law passed, and now leads the campaign to get it effectively implemented.

“It’s good the Federal Government agrees that Canada needs a new federal law because people with disabilities face too many barriers when travelling by air or train, when trying to use banks, cell phone or cable TV services, or when dealing with the Federal Government itself,” said David Lepofsky. However, he cautioned: “This bill is great on intentions but palpably weak on implementation and enforcement.”

The AODA Alliance is one of many groups presenting similar strong concerns with Bill C-81, although they heartily commend the Federal Government for agreeing to bring forward a bill and for consulting widely on it. For its part, the AODA Alliance submitted a 114-page brief, tabling 97 specific amendments, backed by detailed analysis. Seven key amendments are summarized in an easy-to-read 4-page summary sent to MPs.

“With a federal election coming next year, MPs from all parties will want to be sure this bill is amended to make it a historic law,” said Lepofsky. “We’ll remind MPs at the hearings today that people with disabilities are the minority of everyone, since everyone either has a disability now or is bound to get one later. No politician or party can afford to disregard the needs of the minority of everyone!”

“For me, this day has a real feel of history,” said Lepofsky. Thirty-eight years ago, Lepofsky, now a visiting professor at the Osgoode Hall Law School, appeared before a Standing Committee of Parliament on CNIB’s behalf, to urge the Pierre Trudeau Government to amend the proposed Canadian Charter of Rights and Freedoms so it would guarantee equal rights for people with disabilities in Canada. (That December 12, 1980 presentation to Parliament is online at https://www.youtube.com/watch?v=hBdYFUtAslc “Today’s presentation aims to get the proposed new Accessible Canada Act amended so that it will make the Charter’s guarantee of disability equality at last become a reality in the lives of over 5 million people with disabilities in Canada and all others, who are bound to get a disability later in life,” Lepofsky explained.

The AODA Alliance is tweeting MPs one at a time, to urge them to support these amendments. Follow @aodaalliance

The AODA Alliance’s proposed amendments draw on front-line experience with accessibility legislation in Ontario since 2005, in Manitoba since 2013, in Nova Scotia since 2017, in the US since 1990 and in Israel since 1998. The hearings are open to the public, and streamed live at www.ourcommons.ca/Committees/en/HUMA Presenters will be available to media after the Committee adjourns at 10am.

Presenters at the hearing will include:

8-9 a.m. AODA Alliance, CNIB and the Canadian Hard of Hearing Association

9-10 a.m. Canadian Association of the Deaf and the Saskatchewan Human Rights Commission

Contact:  David Lepofsky, [email protected]

Twitter: @aodaalliance

All the news on the AODA Alliance’s campaign for strong national accessibility legislation is available at www.aodaalliance.org/Canada

All the news on the AODA Alliance’s campaign for accessibility in Ontario is available at: www.aodaalliance.org



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