I.
ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
425 Bloor Street East, Suite 110
(416) 482-8255 (Main)
1 (866) 482-ARCH (2724) (Toll Free)
Toronto, Ontario M4W 3R5
(416) 482-1254 (TTY)
1 (866) 482-ARCT (2728) (Toll Free)
www.archlegalclinic.ca
(416) 482-2981 (Fax)
1 (866) 881-ARCF (2723) (Toll Free)
May 21, 2004
Accompanying the 3% increase to ODSP
rates (which should result in approximately
$28 more per month for a single recipient) is a
corresponding 3% increase in rates under the
Ontario
Works
program
and
an
announcement that the Government will not
claw-back “the July 2004 increase to the
federal National Child Benefit Supplement
(NCBS) for one year.”
Provincial Budget Released
by Bill Holder, Staff Lawyer
The McGuinty Government released its
budget on 18 May and there were several
announcements that will affect persons with
disabilities. Importantly, the Government
announced a 3% increase in benefit rates
under the Ontario Disability Support Program
(ODSP). Regrettably, the Government
cancelled disability programs, including a
program that refunded the Retail Sales Tax
(RST) on the purchase of vehicles used by
persons with disabilities.
INSIDE THIS ISSUE
1
2
The welcome news of a 3% increase to
ODSP rates comes in the context of an 11year freeze on benefit rates. New figures from
the Bank of Canada indicate that in the past
11 years, the price of a basket of goods and
services rose by almost 22%. The Bank of
Canada indicates that during the 11-year
freeze period, the average annual rate of
inflation was 1.82%. Considered in this
context, the 3% increase in ODSP benefits
will bring rates up to the level at which they
would have reached in mid-1994, if rates set
11 years ago had been indexed to the cost of
living.
3
4
5
6
6
7
7
8
9
10
11
The 3% increase must also be considered in
light of a Statistics Canada inflation report
released this month that noted a “54.7%
increase in Ontario's electricity index”
between April 2003 and April 2004.
1
Provincial Budget Released
Nominations for
ARCH Board of Directors
Education Update
ODSP Update
Restaurant Accessibility
ARCH Welcomes Lishanthi!
Workers’ Compensation Resources
Rental Housing Reform Consultations
New DTC Survey
Research Roundup
Education Strategy
DPI World Summit
New Case Law
ARCH Alert
www.archlegalclinic.ca
The budget also announced that, effective 19
May 2004, Ontario will no longer provide an
8% RST refund to persons with disabilities
with respect to vehicles purchased for their
transportation. This will cause dramatically
increased costs to persons with disabilities
who are compelled to purchase expensive
vehicles because public transportation is
unavailable, inaccessible, or inadequate.
May 21, 2004
with Severe Disabilities program and a
commitment to transform “services for people
with developmental disabilities in order to
create an accessible, fair and sustainable
system of community-based supports.” With
respect to the latter commitment, the
Government announced that it will “work with
stakeholders to create a plan that will result in
more self-reliant individuals and families
supported by co-ordinated information,
planning and services in their local
communities.”
The Government announced that it will
increase the funding (“by $10 million per
year”) to the existing Home and Vehicle
Modification Program (HMVP) in an effort to
“soften the blow” caused by the cancellation
of the RST refund program. It must be pointed
out, however, that increased funding for the
HMVP program cannot compensate for the
cancellation of the RST refund program. The
HMVP program does not cover the purchase
of vehicles but is rather available, sometimes,
to partly subsidize the cost of vehicle
modifications. There are, likewise, other rules
related to the HMVP program that preclude it
from constituting an effective replacement for
the loss of the RST refund program.
The Government also announced changes to
the health care system. An Ontario Health
Premium (the amount of which will be
between $300 and $900, depending upon
income) will be imposed on all persons
earning more than $20,000 per year. The
Government will stop paying for “selected
services not mandated under the Canada
Health Act” including optometry (for persons
aged 20-64), chiropractic services, and
physiotherapy (except for ODSP recipients
and “seniors served through home care and
long-term care facilities”).
The upshot of the budgetary announcement
is that persons with existing vehicles can still
apply for assistance for vehicle modifications,
but persons who need assistance to purchase
a necessary vehicle will no longer receive any
assistance through an 8% RST refund. It
should be noted that the cancellation of the
RST refund program for vehicles does not
affect other programs that exempt from RST
other items for persons with disabilities.
Regrettably, on page 134 of the budget
papers, persons with disabilities are referred
to as “people who are chronic invalids.” The
authors of the budget could not have
consulted the “Word Choices” publication of
the Accessibility Directorate of Ontario, which
lists this type of language in a “demeaning”
and “hurtful” category of words.

Nominations for
ARCH Board of Directors
Also cancelled in the budget was the
Workplace Accessibility Tax Credit, a tax
measure the purpose of which was to
encourage businesses in the province to hire
employees with disabilities.
by Dora Nipp, Chair, Nominations Committee
The ARCH Annual General Meeting (AGM) is
only a few months away and the Nominations
Committee is now preparing its Nominations
Report, to be presented at the AGM on
14 September. The Committee invites
statements of interest from people who would
like to volunteer on the ARCH Board as well
Other announcements in the budget, the
details of which will be clarified in the future,
include an increase in the amount of funding
available under the Assistance for Children
2
ARCH Alert
www.archlegalclinic.ca
May 21, 2004
as suggestions regarding candidates who
could make a valuable contribution to it.
ARCH. Statements of interest, including a
brief resumé, may be sent by regular mail or
by e-mail to gordonp@lao.on.ca.
The ARCH Board is composed of thirteen
directors who serve two-year terms. Our
bylaw provides that a majority of the members
must be persons with disabilities and a
majority must be individuals who come from
ARCH member organizations. Directors may
be re-elected for subsequent terms. Since six
members are currently mid-term, we will be
nominating a total of seven members this
year.

Education Update
by Roberto Lattanzio, Student-At-Law
Grade 10 Literacy Test
Justice Colin L. Campbell of the Ontario
Superior Court refused, last week, to grant an
injunction, which would have stayed the
graduation requirement of passing the
Ontario Secondary School Literacy Test
(OSSLT). Although the injunction was
refused, the case challenging the OSSLT will
proceed to a hearing on its merits and the
result may nevertheless be a finding that the
OSSLT has a discriminatory effect on children
with disabilities.
The Nominations Committee is looking for
individuals who are committed to defending
and advancing the equality rights of persons
with disabilities and in providing leadership
and support to ARCH’s staff, who fulfil our
mandate on a daily basis. In addition to this
commitment, we are interested in attracting
one or two individuals with fundraising
experience, someone with financial expertise,
and someone from the legal community. We
would also like to continue our practice of
having board members from around the
province, since ARCH is a provincial
organization.
Introduced in 2001 by the Conservative
government, the OSSLT will deny some
students in Ontario a high school diploma this
year, regardless of whether all required
credits have been obtained. For students with
disabilities, providing accommodations for
writing the test may not be sufficient. It is
ARCH’s position that the test is inherently
discriminatory, due to its design and content.
This is an active volunteer board commitment.
The Board is responsible for the oversight of
ARCH, including the planning and monitoring
of its activities and development of policies
governing our operations. The Board also has
the responsibility of ensuring that we are
meeting the requirements of our funders.
Prospective board members should be ready
to attend monthly board meetings, in person
or by telephone, and participate on standing
and ad hoc committees. Board members also
attend community or Legal Aid Ontario events
on behalf of the Board.
The Education Quality and Accountability
Office (EQAO) has released its report with
this year's OSSLT province-wide results. The
results show an increase of 5% of students
passing the OSSLT. Although there is an
increase from 38% to 49% of students in the
applied stream who passed, when compared
to the 90% of successful students in the
academic stream, the disparity continues to
illustrate the inequities of the OSSLT. Also, it
must be kept in mind that these figures do not
include those students who dropped out of
school due to beliefs that taking the exam
was futile, and students with disabilities who
opted not to take the exam. It is estimated
that 46% of students with special needs
Please let the Nominations Committee know
of your own interest or any suggestions of
candidates you may have by 18 June 2004.
Please contact the Nominations Committee
through Phyllis Gordon, Executive Director of
3
ARCH Alert
www.archlegalclinic.ca
successfully completed the OSSLT. The
EQAO report can be accessed at
www.eqao.com.
May 21, 2004
schools. More information on the TDSB Task
Force can be accessed at www.tdsb.on.ca.

Safe Schools
ODSP Update
By Dianne Wintermute, Staff Lawyer
The Safe Schools Act has had a serious
impact on children from marginalized groups,
including children with disabilities. The Act
has provided mechanisms for exclusion on
grounds of disability-related behavior, without
due process. The Ontario Human Rights
Commission in their report titled "Paying the
Price: The Human Cost of Racial Profiling,"
states that participants throughout their
inquiry emphasized that "the Safe Schools
Act and zero tolerance policies made by the
school boards appear to be having a broad
negative impact not only on students, but also
on their families, communities and society at
large."
March for Dignity
On 29 April, twenty courageous people
arrived in Toronto from Sarnia, concluding
their March for Dignity. The weather was cold
and rainy throughout the journey. Most of this
group were ODSP recipients who were calling
on the government to raise Ontario Works
and Ontario Disability Support Program
(ODSP) rates to reflect the real cost of living.
The group walked from Sarnia though
Woodstock, London, Kitchener, and Hamilton,
met by many supporters and well-wishers
along the way. At Queen’s Park, the marchers
joined approximately 300 others for a Rally for
a Raise, which called on the government to
raise social assistance rates and the
minimum wage.
Education Minister Gerard Kennedy has
recently stated that although there is no
intention to repeal the Safe Schools Act,
possible amendments may be made.
Parliamentary Assistant Liz Sandals has been
given responsibility to conduct a review of the
Safe Schools Act. More details as to the
scope and process of this review have been
requested from the Ministry so that we may
relay them to the community of persons with
disabilities.
ARCH applauds the fortitude and stamina
shown by this group of marchers in their effort
to raise awareness of the dire financial
situation of social assistance recipients. While
the government has recently announced a
3% increase to social assistance rates in its
new budget, this does not come close to
undoing the damaging cuts made by the
Conservative government, nor does it come
near to reflecting the actual cost of living for
persons with disabilities and others who rely
on social assistance.
The Toronto District School Board (TDSB)
has created a Task Force on Safe and
Compassionate Schools to review the school
board's safe schools policy and procedures,
and to provide recommendations following a
series of public consultations. Following 16
days of consultations, a final report has been
released. Among the recommendations made
by the Task Force are to ensure that the
perception of discrimination be addressed by
providing training, removing all reference to
zero tolerance language in policies and
documents, and ensuring a shift in policy from
policing to the creation of safe and inclusive
ARCH would like to encourage its readers to
get involved in the Ontario Needs a Raise
Campaign, which is focused on raising social
assistance rates, and the minimum wage,
among other issues. The next meeting of the
Campaign is on 27 May in the 5th floor
boardroom of the Income Security Advocacy
Centre, 425 Adelaide Street East in Toronto,
4
ARCH Alert
www.archlegalclinic.ca
from 7-9 p.m. If you are unable to attend in
person, but would like to participate by
conference call, please contact Dana Milne at
(416) 597-5820, ext. 5151.
May 21, 2004
in support an application for ODSP benefits, it
must be given to both the DAU and the SBT
at least 20 days before a scheduled hearing.
If the hearing date is moved up, a doctor may
not be able to provide a report in the
shortened period of time, and the applicant
may not be able to rely on it if the limitation
period is missed.
Disability Adjudication Unit
A recent change in practice at the Disability
Adjudication Unit (DAU) may be beneficial for
persons applying for ODSP benefits. If an
application for ODSP benefits is denied, the
DAU will now look at new medical reports and
additional medical conditions at the internal
review stage. In the past, the DAU would only
consider information contained on or
submitted with the Disability Determination
Package (the application forms) at the internal
review stage.
If you receive a revised notice of hearing and
are concerned that your right to a fair hearing
might be compromised, contact your local
community legal clinic as soon as you can.
ARCH, or Legal Aid Ontario, can help you find
the community legal clinic that can help you.
As of March 2004, the SBT has also released
new rules about holding Telephone Hearings
as an alternative to in-person hearings. These
types of hearings have the potential of being
scheduled quickly, and at less cost than inperson hearings. Telephone hearings will
work best where the subject matter of the
appeal is not complicated, where there is not
a significant amount of evidence to be called,
and
where
telephone
technology
is
compatible with the accommodation needs of
the ODSP applicant. Anyone can object to
having a telephone hearing if it can be shown
that “significant prejudice” would be caused.
This development could make the internal
review process a more meaningful one for
ODSP applicants. If someone is able to
provide the DAU with additional information
that enhances and supports the application, it
may mean that some people will be able to
access benefits more quickly. ARCH has
heard that the number of cases overturned on
internal review has recently risen from
approximately 5% to almost 25%.
If you have any questions about this change
in practice and how it might affect you,
contact your local community legal clinic or
ARCH for further information.
If you would like to know more about
Telephone Hearings at the SBT you can
contact your local community legal clinic or
ARCH for further details. Additionally, ARCH
would be interested in hearing from anyone
who has had a telephone hearing, and
learning about their experience with this type
of hearing.
Social Benefits Tribunal
ARCH has heard some disturbing news about
the scheduling practices of the Social
Benefits Tribunal (SBT). It appears that many
hearings before the SBT are being
rescheduled to earlier dates without much
notice. For persons who are appealing the
denial of ODSP benefits, this could be a
significant problem, since it may affect the
availability and production of additional
medical reports in support of the application.
If someone wants to introduce new evidence

Restaurant Accessibility
by Bill Holder, Staff Lawyer
The Ontario Human Rights Commission
released last month a long-awaited report on
restaurant accessibility titled “Dining Out
Accessibly.” The report follows a three-year
5
ARCH Alert
www.archlegalclinic.ca
effort on the part of the Commission to
persuade major restaurants to offer dining
services accessible to all persons with
disabilities.
May 21, 2004
report again next year regarding the progress
of the restaurants in becoming accessible.
To obtain a copy of the report, visit the
website
of
the
Commission
at
www.ohrc.on.ca.
Two years ago, the Commission audited the
accessibility of the following restaurants:
Country Style Donuts, McDonalds, Pizza Hut,
Starbucks, Subway, Swiss Chalet, and Tim
Hortons. In a report released in July of 2003
after conducting the audit, the Commission
lamented the fact that “there are facilities in
operation in Ontario that do not meet even
the most basic accessibility requirements of
the current Building Code, nor the
requirements of the Ontario Human Rights
Code. In some cases, facilities are completely
inaccessible while in others, persons with
disabilities would face significant barriers, for
example, in accessing washrooms.”

ARCH Welcomes Lishanthi!
by Phyllis Gordon, Executive Director
ARCH is happy to welcome Lishanthi
Caldera, our new Reference Centre
Coordinator. Lishanthi brings over 11 years of
work experience in public research libraries
and resource centres. Her most recent
position was that of Resource Centre
Coordinator at Office Workers Career Centre
in Toronto. Lishathi’s many skills include the
establishment and maintainance of library
collections
and
databases,
website
development and design, and excellent
project coordination skills. She has much
experience working with the public and
volunteers in diverse communities, including
working with persons with disabilities. The
ARCH board members and staff who have
spent time with Lishanthi have been very
taken with her friendly manner and clear
thinking. We look forward to working with
Lishanthi and introducing her to ARCH
members and users of the Reference Centre.
Lishanthi starts at ARCH at the end of May.
For the past year, the Commission has been
working with the impugned restaurants to
convince them, without having to resort to
initiating formal complaints against them, to
commit to taking the necessary steps to
remove and prevent further barriers to
accessibility.
The range of barriers identified by the
Commission and disclosed in the new report
include a lack of safe exterior pedestrian
routes,
inappropriate
parking
spaces
designated as accessible, inaccessible
entrances, problematic signage and menus,
inadequate interior routes, inaccessible
washrooms, and inappropriate heights for
salad bars and self-serve counters.

Workers’ Compensation Resources
by Theresa Sciberras,
Administrative Assistant
All of the restaurants audited by the
Commission have agreed to identify barriers,
develop and implement a plan to remove
barriers, monitor progress, and report to the
Commission.
The
restaurants
have
furthermore agreed to develop standardized
accessibility plans for future locations and to
develop accessibility policies and customer
complaints procedures. The Commission will
In 1997, what was known in Ontario as
“workers’ compensation” was renamed
“workplace
safety
and
insurance.”
Accompanying the name change were also
legislative changes affecting eligibility.
Understanding workers’ compensation law
was never easy but it became more
complicated in 1997.
6
ARCH Alert
www.archlegalclinic.ca
If you are trying to gain an understanding of
workers’ compensation issues, consider doing
some of your research at ARCH. Our
Reference Centre holds many sources of
information that are relevant to individuals
and advocates with respect to applying for
benefits and presenting cases before the
Workplace Safety and Insurance Board and
the Workplace Safety and Insurance Appeals
Tribunal.
May 21, 2004
issues for reform and initiating a thoughtful
consultation process. The paper sets out
background information on the current
situation under the Tenant Protection Act,
1997, with related questions on issues such
as rent increases, vacancy decontrol, and
dispute resolution processes, followed by
possible responses. The consultation paper
does not, however, consider rental housing
issues as they affect persons with disabilities.
It is therefore critical that a disability
perspective be conveyed during this process.
For instance, with respect to a question about
whether landlords should be required to post
information about the rights of tenants,
consider responding affirmatively, and insist
that information about the right to be
accommodated be posted by landlords.
Besides the legislation, the Reference Centre
also includes the Workplace Safety and
Insurance
Board’s
Operational
Policy
Manuals and the Workers’ Compensation in
Ontario service published by Butterworths.
We also have the Manual for Workers’
Advocates, jointly authored by the Industrial
Accident Victims Group of Ontario and
Community Legal Education Ontario.
The consultation paper can be accessed at
the Ministry’s website, the address of which is
www.mah.gov.on.ca. The Advocacy Centre
for Tenants Ontario (ACTO) has posted many
useful and relevant documents on their
website regarding this consultation process.
These include suggested answers to
questions asked in the consultation paper, as
well as tips on how to make effective oral
submissions. The ACTO website is located at
www.acto.ca.
ARCH
holds
the
American
Medical
Association’s Guides to the Evaluation of
Permanent Impairment, 5th ed. (2002), as well
as such texts as Impairment Rating and
Disability Evaluation (2000) and Disability
Evaluation, 2nd ed. (2003). The Reference
Centre also contains a number of anatomical
and medical texts, as well as binders from
legal education programs related to workers’
compensation.
ARCH's Reference Centre is available for use
by the general public Monday through Friday
between the hours of 10:00 a.m. and
4:00 p.m.
The deadline for submissions is 15 June
2004. Submissions may be made in writing,
or orally at consultation meetings in selected
areas. A list of meeting locations and dates is
available on the Ministry’s website.


Rental Housing Reform Consultations
New DTC Survey
by Roberto Lattanzio, Student-At-Law
by Theresa Sciberras,
Administrative Assistant
The Ministry of Municipal Affairs and Housing
is currently conducting public consultations to
inform possible reforms to Ontario's
residential tenancy legislation. A discussion
paper was released by the Ministry titled
"Residential Tenancy Reform Consultation
Paper" and it is aimed at setting out the
Are you satisfied with the Disability Tax Credit
(DTC)? The Coalition for DTC Reform, of
which ARCH is a member, wants to know,
and invites individuals to participate in a new
consumer survey.
7
ARCH Alert
www.archlegalclinic.ca
The survey can be completed anonymously
and results will inform the input that the
Coalition provides to the Canada Revenue
Agency and the Technical Advisory
Committee on Tax Measures for Persons with
Disabilities.
May 21, 2004
ODSP
supplementary
allowances
are
“especially inadequate for PHAs with complex
medical, dietary, transportation, and dental
needs.”
The paper may be accessed on the website
of the Ontario HIV Treatment Network, at
www.ohtn.on.ca.
The survey is available on-line at the website
of the Arthritis Society, at www.arthritis.ca.
Income for Living?

This month, the National Council of Welfare
released a report titled “Income for Living?”
which examines the difference between two
ways of measuring poverty. The report
compares Low Income Cut-Off (LICO) and
Market Basket Measure (MBM) data collected
in 2000 with respect to low-income persons
and families in Canada.
Research Roundup
by Bill Holder, Staff Lawyer
Deserving Dignity
The Ontario HIV Treatment Network released
a policy paper, in December of 2003,
authored by Joan Anderson and Glen Brown,
regarding the Ontario Disability Support
Program (ODSP). Titled “Deserving Dignity,”
the paper outlines many “serious flaws” with
respect to the program as it regards persons
living with HIV/AIDS (PHAs). The authors
make over 80 recommendations for reforming
the ODSP program.
LICOs represent income levels at which
“people have to spend disproportionate
amounts . . . on food, shelter, and clothing.”
LICOs are set by Statistics Canada, without
acknowledging that they constitute poverty
lines. The MBM compares income to the cost
of a minimum standard of living, determined
with respect to the price of a “basket” of “food,
clothing and footwear, shelter, transportation,
and other goods and services.” Human
Resources
Development
Canada
has
released MBM data, but only for 2000.
Some of the problems with the ODSP
program outlined in the paper include the
complexity and the length of the application
process, and the lack of a “human element” in
ODSP administration, which treats recipients
to “disrespectful and poor quality service by
an unwelcoming, inflexible delivery system.”
Also critiqued are the various rules that deter
persons from leaving the program and
insufficient benefit levels.
According to either measure, persons in
receipt of ODSP benefits were living in
poverty in 2000. In that year, ODSP benefit
rates for single persons were set at 78% of
LICO and 86% of MBM. The National Council
of Welfare is disappointed that, like all other
provinces, Ontario continues “to set welfare
rates at levels that simply do not allow any
welfare recipient to maintain the most basic
standard of living.”
With respect to benefit levels, the authors cite
studies that have demonstrated “a positive
association between socio-economic status
and survival time” for PHAs. The upshot of
the association is this: low ODSP benefit
rates translate into low survival statistics for
PHAs. The authors point out that ODSP
recipients “cannot afford the basic ingredients
for health: nutrition, housing, medication,
transportation, clothing, etc.” Furthermore,
The report is available on the website of the
National
Council
of
Welfare,
at
www.ncwcnbes.net.
8
ARCH Alert
www.archlegalclinic.ca
Risk of Death Among Homeless Women
May 21, 2004
The primary recommendation in the report is
for a “paradigm shift.” There is a perception,
which has been promoted by the Government
of Ontario, that persons in receipt of social
assistance are “lazy, unmotivated, and
deceptive.” The perception translates into
social assistance programs in which women
“are often subjected to demeaning and
humiliating treatment from workers within a
system in which suspicion and the
devaluation of recipients are structured into its
very core.” Far from representing a safe
haven from abuse, “the experience of welfare
is like another abusive relationship.”
In an article published in the Canadian
Medical Association Journal last month,
researchers Drs. Angela Cheung and
Stephen Hwang found that homeless women
aged 18-44 in Toronto are dying at a rate ten
times that of women in the same age group
who are not homeless. The full title of the
report is “Risk of Death Among Homeless
Women: A Cohort Study and Review of the
Literature.”
Significantly, the authors correlate the
shocking death rate to disability. The authors
conclude that efforts to reduce the mortality
rate of homeless women need to be directed
toward programs addressing disability
disadvantage:
The report notes that women with disabilities
can experience particular problems when
trying to extricate themselves from abusive
relationships
because
of
inaccessible
shelters, and social assistance shelter
allowances that are set below the cost of
accessible housing. For women with children
with disabilities, the report notes problems
with inflexible social assistance rules
regarding “benefits to meet their special
needs, in childcare arrangements, in workfare
participation, in transportation, and in
housing. The inflexibility and lack of
responsiveness compromised the health of
women and their children.”
“Given that HIV/AIDS and drug overdose
are the most common causes of death in
these women, programs to prevent and
treat HIV infection and to improve access
to treatment for drug addiction are
essential. Mental health issues must also
be addressed, given the high prevalence
of depression among homeless women
and their high risk of suicide.”
The report is available on the website of the
Canadian Medical Association Journal, at
www.cmaj.ca.
The report may be accessed in the media
relations section of the York University
website,
the
address
of
which
is
www.yorku.ca.
Walking on Eggshells

The final report of the Woman and Abuse
Welfare Research Project was released last
month. Titled “Walking on Eggshells: Abused
Women’s Experiences of Ontario’s Welfare
System,” the report examines the ways in
which the social assistance system fails
women who are caught in or have left abusive
relationships. The principal investigator of the
report was Janet Mosher and 34
recommendations are made for reforming the
Ontario Works and ODSP systems.
Education Strategy
by Roberto Lattanzio, Student-At-Law
All pupils under the Education Act are
afforded the right to stay in school, and most
mechanisms to exclude them from school
under the Act provide for an appeal or review
of that decision. The reality, however, is that
children with disabilities are often excluded
from public school, without due process or a
paper trail to document the exclusion.
9
ARCH Alert
www.archlegalclinic.ca
May 21, 2004
them a legal process requiring documentation
of the arguably discriminatory actions being
taken by the school board and an appeal
mechanism for asserting their child’s rights.
Parents will also be better positioned –
because of the paper trail – to complain to the
Ontario Human Rights Commission regarding
the actions taken by the school board.
Children with disabilities often do not receive
sufficient and appropriate accommodations.
For many children, a failure to provide
accommodation or a perceived inability to
accommodate are the key reasons relied on
by school boards for excluding them. These
reasons are arguably discriminatory. For a
school board to formally exclude, expel, or
suspend a student with a disability,
documentation must be produced.
Don’t let your school board talk you into
withdrawing your child!

Sometimes, however, school boards apply
pressure on parents to simply keep their
children at home. Parents are sometimes told
that by not bringing their child to school, they
will avoid unnecessary legal formalities
resulting in “black marks” in their children’s
student files. Parents report feeling coerced
into withdrawing their children, believing that
no other option is feasible.
DPI World Summit
by Michael Mercer, Student-At-Law
The Disabled Peoples’ International (DPI)
World Summit 2004: Diversity Within, will be
taking place in Winnipeg, Manitoba on 8-10
September. According to DPI, the Summit will
provide
an
opportunity
for
national
assemblies, disability organizations, nongovernmental organizations, international
development agencies, and service providers
to discuss and share information.
The result of parents acceding to pressures to
keep their children at home rather than
contesting an exclusion, expulsion, or
suspension, is that no documentation gets
produced regarding possibly discriminatory
acts taken by school boards. On the books,
decisions made by parents to keep their
children home are viewed as “withdrawals”
rather than acts of discipline. When parents
withdraw their children, they may lose access
to the procedural safeguards that exist with
respect to discriminatory actions taken by
school boards.
DPI was established in 1981as a network of
national organizations or assemblies of
persons with disabilities. It was established to
promote the human rights of persons with
disabilities, with a major goal being their full
participation in the mainstream of life.
DPI is headquartered in Winnipeg, and it has
National Assemblies in 135 countries, and
operating regional offices in several regions
of the world. The United Nations has
conferred DPI with Special Consultative
Status with its Economic and Social Council
(ECOSOC).
The discriminatory treatment of children with
disabilities by school boards needs to be
documented. The withdrawal of children
voluntarily by parents may compromise the
rights of students with disabilities, leaving the
students and their parents with little redress.
When school boards threaten disciplinary
action if parents do not withdraw their
children, parents should consider “calling the
bluff” of the school boards. The boards may
not follow through with their threats and, if
they do, parents will at least have available to
The Summit’s theme is the diversity of people
and their cultures, and will focus on women,
youth, and Indigenous and Arab peoples. DPI
has scheduled over 30 workshops over the
three days of the summit, with topics such as
human rights, bioethics, education, and
international development. Anyone can apply
10
ARCH Alert
www.archlegalclinic.ca
to make a presentation, as the Summit is an
opportunity to voice issues and share
experiences.
May 21, 2004
Justice MacFarland described the failure of
the TDSB to properly prepare a transition plan
for the student as providing “not much comfort
to the family.” The concern expressed by the
parents, regarding the absence of a transition
plan, was apparently interpreted by the
school principal as being in the nature of
meddling with his ability to make employment
decisions. Justice MacFarland stated that the
principal’s “greatest concern” was that the
student’s “parents were interfering with his
right to hire staff.”
Delegates and participants to the Summit
have a registration fee of $350 U.S. dollars.
The registration fee for Personal Attendants is
$175 U.S. dollars.
For more information, please visit DPI’s
website at www.dpi.org.

Justice MacFarland dismissed the argument
of the TDSB that it has an unfettered right to
make such employment decisions as the one
regarding the SNA: “For the Board to persist
in its position that it alone (through the
principal) has the right to make this decision
(to replace [the SNA]) without a transition plan
in place and without ensuring that the
replacement person is appropriately trained,
seems to me to fly in face of the duties set out
in the legislation.”
New Case Law
by Bill Holder, Staff Lawyer
Fleischmann v. Toronto District School Board
On 19 January 2004, Madam Justice
MacFarland of the Divisional Court ordered,
on an interim basis, the Toronto District
School Board (TDSB) to refrain from
replacing the Special Needs Assistant (SNA)
of a nine-year-old girl living with autism. The
decision was rendered in the context of an
application for judicial review regarding a
decision made by the TDSB to replace the
SNA.
Zorn-Smith v. Bank of Montreal
On 2 December 2003, Madam Justice Aitken
of the Superior Court of Justice found that the
Bank of Montreal treated a 21-year employee
with a mental health disability in a manner
that was “flagrant and outrageous” in a
wrongful dismissal case.
According to the reasons for decision, the
TDSB informed the SNA on 5 November
2003 that – due to provisions within the
relevant collective agreement – within 2 days
her services would no longer be required and
that within 5 days she would be replaced. The
SNA had been hired by the TDSB in
consultation with the student’s parents, and
the parents had paid for the SNA’s training in
Applied Behavioural Analysis (ABA). The
SNA worked one-on-one with the student on
a daily basis. The student’s Individual
Education Plan set out the student’s need for
ABA and there was evidence that the student
did not respond well to change. Nevertheless,
the TDSB planned to replace the SNA without
a transition plan and without training the new
SNA with respect to ABA.
Justice Aitken found that a stressful work
environment had “led to” the onset of the
employee’s mental health disability. After the
onset of the disability, the Bank offered the
employee a limited number of unpleasant
options, summarized by Justice Aitken as
follows: “the message to [the employee] was
to return to the same position that had led to
her burnout, with no promises of any changes
to the work environment, or accept a drastic
cut in pay either through a demotion, parttime work, or both. Those were not
reasonable options.”
11
ARCH Alert
www.archlegalclinic.ca
When the employee failed to select one of the
options offered to her, the Bank terminated
her employment, without termination or
severance payments, and without a letter of
reference. Justice Aitken was highly critical of
the termination:
May 21, 2004
to get back on her feet and to be able to
consider other employment.”
Justice Aitken ordered the Bank to pay to the
employee 16 months of her salary, plus
vacation pay and compensation for losses
related to her pension. The Bank was also
ordered to pay over three months of coverage
under the Bank’s disability insurance policy
and damages associated with the employee’s
cashing-in of her RRSPs after termination.
Finally, the Bank was furthermore ordered to
pay $15,000 for the tort of “intentional
infliction of mental suffering,” for being the
“primary cause” of the onset of the
employee’s mental health disability.
“[Advising the employee], while she was
on disability leave, that her employment
would be terminated unless she returned
to work against her doctor’s advice was
bad faith conduct on the part of the Bank.
. . . I have no doubt that the way in which
[the employee] was treated at the time of
her dismissal worsened her psychological
state and lengthened the time it took her
ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It
is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and
others with an interest in disability issues. ARCH is a non-profit community legal clinic, which
defends and promotes the equality rights of persons with disabilities through litigation, law/policy
reform and legal education. ARCH is governed by a Board of Directors elected by
representatives of member groups reflecting the disability community. The goal of ARCH
ALERT is to provide concise information, so that people are aware of important developments
and resources. Articles may be copied or reprinted to share with others provided that they are
reproduced in their entirety and that the appropriate credit is given. We encourage those who
receive it to assist with distribution of information in this way. We do ask that both Word and
Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.
Editor: Bill Holder
Production & Circulation: Theresa Sciberras
We welcome your comments and questions, as well as submissions. We will endeavour to
include all information of general interest to the community of persons with disabilities and their
organizations, but reserve the right to edit or reject material if necessary. We will advise you if
your submission is to be edited or rejected. Please assist us in your submissions by being brief
and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras,
Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities,
425 Bloor Street East, Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416482-1254, e-mail: scibert@lao.on.ca Website www.archlegalclinic.ca
12