To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.

Can Lii, Can Do

Based on the premises that something is better than nothing *, news from the National Self Represented Litigants Project Website:

The NSRLP is proud to launch our latest resource for [Self Represented Litigants] SRLs, NSRLP CanLII Primer V1

The Can Lll Primer: Legal Research Principles and CanLII Navigation for Self-Represented Litigants is the result of innumerable hours of research and drafting by NSRLP Research Assistant Tamara Thomas, who worked with Julie to develop the Primer. Tamara says this about what she learned from the experience, and what motivated her to spend so much time and passion on this project. 

“The CanLII Primer aims to help SRLs develop a basic understanding of how to operate CanLII in a straightforward and effective way. CanLII is a wonderful resource because it is open to anyone to use – no fees, no commitments – but it can also be frustrating to operate. Of course, I say that coming from the privileged position of having taken classes specifically on legal research and writing in law school… 

I realized fairly quickly into this process – and I got a really good appreciation of this as a result of creating the Primer – that the legal system is one created by and dependent upon inaccessible and unintuitive language, and trying to access and understand the legal research process without properly understanding that language throws up yet another barrier to SRLs. Writing the Primer required that I completely deconstruct everything that I knew in a way that we are not taught in law school. ...

Check it out.

* A reference to my blogging (or lack thereof), not the content of the post.

Time to Shake Things Up

UPDATE: It gives me great pleasure to advise that this complaint will get a hearing before a Board of Inquiry and the Disabiltiy Rights Coalition has been given standing to be added as a party. Kudos to all involved.

Anybody who has been reading here for any amount of time is quite familiar with my an ongoing love affair with the Dept. of Community Services (DCS). Don't believe me? Follow the link.

On that note, I was very pleased to (very) recently learn about the Human Rights Complaint that has been brought forward against the Services for Persons with Disabilities Disability Support program on behalf of three long-term residents of Emerald Hall.

As noted in Beth's story, Emerald Hall is intended to be an acute care in-patient unit serving clients who live with intellectual disabilities as well as complex mental and/or physical health issues. What Beth's story fails to mention is that Emerald Hall is designed to provide only temporary (up to three months) stabilization care for people who are living in the community.

Note this comment from Capital District Health's Capital District Mental Health Program Services page:

Emerald Hall supports adults living with a mental illness and developmental disability who are not able to live in the community either because of a lack of available resources or a need for intense support that is only available in hospital. Many of Emerald Hall’s current clients are long-term residents. As such its occupancy is almost always 100 per cent. However, crisis admission is sometimes available to registered clients.
(Emphasis added)

Long-term residents is one way to put in I guess - some of those "residents" have lived there for 13 years. That's right - 13 years. And that's not because it was considered medically necessary - these residents individuals have been medically discharged from the NS Hospital years ago but continue to reside there because DCS either can't or won't provide them with placement in the community.

"Sad situation, indeed", you say. "But what exactly does this have to do with my family?", you ask.

Good question. Deserves a good answer.

But before we get there, let me point out one more thing.  From the Chronicle Herald article:

A complaint over the province’s failure to provide supportive, community-based housing for people with disabilities has been accepted by the Nova Scotia Human Rights Commission.

“There has been an investigation and investigative report prepared,” Donna Franey, executive director of the Dalhousie Legal Aid Service, wrote in an email to the media late Friday.

“The report notes that ‘the existence of discrimination cannot be denied in this situation,’ yet the recommendation to the commission is dismissal of the complaint.”

Riddle me this, please. How is it even possible for a Human Rights Commission investigator to find that "the existence of discrimination cannot be denied in this situation", but then go on to recommend that the complaint be dismissed?

Is it just me or does that sound awfully strange to you too? Fortunately this story is far from over.

But back to you. And me. And your children. And mine.

This complaint, if successful, has the potential to shake up the SPD Disability Support program for all of us, in a very positive way. The crux of the case is the argument that the three complainants were discriminated against by being forced to stay in an institution, where they neither want nor need to be. That DCS discriminated against these individuals by providing assistance for people without disabilities, who are in need, to live in the community while failing for many, many years to take into account and accommodate their differing needs and offer supports for them to live in the community.

Can you imagine being forced to be live in a locked unit in a psychiatric hospital even though you neither wanted nor needed to stay in the hospital, let alone in a locked unit?

Can you imagine being unable to properly develop or receive an education, of being deprived of the chance to work, make and interact with friends and do any of the myriad of other things that you and I take for granted in the community?

How about being exposed to the problems of living in a psychiatric ward, including noise and the risk of violence on a daily basis?

Can you imagine your feelings if you were  repeatedly told that you would be found a home in the community but it never happened?

I can and it makes me shudder.

At this point, we can only hope and pray that reason and the rule of law will preside when the matter goes before the Commission for review and a decision is made on whether to dismiss the case or forward it to a board of inquiry.

'Here To Help'

As part of Nova Scotia Legal Aid's (NSLA) current Strategic Direction ("Here to Help'), a new website has been launched. The idea is that some level of help is now available to all Nova Scotians in core areas of Family, Criminal and Social Justice.

I was at a Pro Bono Symposium last week in which this was touched upon and a few interesting points were made:

1. the income limit under which a family/individual must fall in order to qualify for Legal Aid has risen; and
2. for those who would still not qualify financially, service may be provided if the person "makes a [financial] contribution towards the payment of the costs of the legal services rendered".

In addition, no matter your income level, NSLA Offices are now providing summary advice service in relation to issues in relation to Canada Pension Disability, Employment Insurance, Income Assistance and Residential Tenancies issues.

Although individuals can contact their local office to make application for such summary advice, "Clinics" are now being offered across the Province*, such as 

•      walk-in clinics the third Friday of every month in Yarmouth with respect to Landlord/Tenant Disputes, Canada Pension Plan Applications and Appeals, Social Assistance Appeals, Housing & Low Income Housing or Grant Applications, and Employment Insurance Appeals. The initiative is aimed at giving advice to people in the Yarmouth coverage area who simply need a few questions answered with respect to a legal issue but cannot wait 3-4 weeks for an appointment;
•      questions or problems with CPP Disability, Income Assistance, Employment Insurance, Housing Grants, Landlord/Tenant relationships and Child Protection matters can be answered at the Spryfield Legal Aid Office on the first, second and fourth Tuesdays of the month; 
•     similar initiatives are being offered in Eastern Chebucto and Sydney; and
•     the NSLA Youth Justice Office is providing youth social justice service (school/school board issues, Department of Community Services and youth ombudsman assistance, Protection of Property Act concerns, housing and income security or any area in which a youth thinks NSLA can help with information, advocacy or representation) in both Spryfield and at Chebucto Connections on the third Tuesday of every month. Importantly, there is no financial qualification for youth summary advice so anyone aged 12 to 18 is welcome to stop by. 

I highly recommend checking out the new NSLA website, including the "Communtiy Resources" tab. And, of course, lest we forget, Dalhousie also offers Legal Aid services. 

* More details on all these clinics (including times and how to confirm an appointment) can be found on the website. 

'Spread the Word to End the Word'

Post by Lindsay Spilker Tate.

Enough said.

'My Life ... My Death' Controversy

Big news out of the Supreme Court of Canada yesterday - relevant for all of us, whether or not we currently have a disability.

I am speaking, of course, of the Supreme Court of Canada's decision striking down the law against assisted suicide in Canada. Or, at least, that's what the media would tell you happened.

Prior to yesterday, there were two sections of the Criminal Code, which, when combined together, banned assisted suicide.

Sec. 241 prohibited counseling, aiding or abetting anyone to commit suicide

Suicide

Counselling or aiding suicide
241.Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years

and sec. 14 provided that no one can consent to having someone else end their life.

Consent to death
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

What the Court did was to strike down these two sections of the Criminal Code only to the extent that they prohibited physician-assisted suicide "for a competent adult person who

1. clearly consents to the termination of life and 
2. has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition". 

So, just to clarify, the law against assisted suicide still stands when it comes to you or I or Joe Blow down the street counseling, aiding or abetting someone (anyone) in committing suicide - this decision only applies to physician-assisted suicide, which fact was implied in some media coverage, but perhaps not clearly stated in all of it.

And, for just a bit more clarity (in case you missed this little tidbit in the ongoing roar), this declaration of invalidity was suspended for 12 months - what that means is all will continue as it was for the next year, giving the government the opportunity to attempt to craft a new law. Of course, the federal government could also decide to do nothing at all (after all, not deciding is a decision in and of itself, isn't it?) in which case, come February 5, 2015, physician-assisted suicide (but only under the circumstances set out above) will be legal in Canada.

In case anyone is wondering why the SCC would approve of physician-assisted suicide today when it didn't, ten years ago, when the case involving Sue Rodriguez was decided (which is a very good question, by the way), the Court explained this inconvenient little inconsistency away by stating that law relating to sec. 7 of the Charter (which protects an individual's right to "life, liberty and security of the person" and is the section of the Charter that the Court used to strike down the relevant Criminal Code sections) has "materially advanced" since the Rodriguez case was decided.

But back to the Carter decision; the Court found that, insofar as the Criminal Code prohibited physician‑assisted dying for competent adults who were suffering from a grievous and irremediable medical condition that caused enduring and intolerable suffering, it deprived these adults of their right to life, liberty and security of the person under s. 7 of the Charter. How you ask?

Well, the Court reasoned that the prohibition had the effect of forcing some of these people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person (which deal with concerns about autonomy and quality of life), were also engaged as a person’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denied people in this situation the right to make decisions concerning their bodily integrity and medical care and by leaving them to endure intolerable suffering, it impinged on their security of the person.

Further, this infringement was done in a manner that was not in accordance with the principles of fundamental justice. The object of the prohibition was not to preserve life whatever the circumstances, but to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights were not deprived arbitrarily. However, the prohibition caught people outside the class of protected persons and the limitation on their rights was in at least some cases not connected to the objective, making the prohibition overbroad.

Looking at the question of whether the government was justified in violating these individuals' right under sec. 7, the Court went on to hold that although an absolute prohibition on physician‑assisted dying was rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, the evidence did not support the contention that a blanket prohibition was necessary in order to substantially meet that objective. The evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making showed that a permissive regime with properly designed and administered safeguards would be capable of protecting vulnerable people from abuse and error. Vulnerability could be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally.

As an interesting aside, because the Court found that the prohibition on physician‑assisted dying violated s.7 of the Charter, it did not go on to consider whether it also deprived adults with physical disabilities of their right to equal treatment under s. 15 of the Charter. Any equality arguments around sec.15 of the Charter concerning this issue remain to be dealt with on another day.

And given that the Supreme Court of Canada is the highest court in the land, that, as they say, is that. Or is it?

'To Be or Not To Be'

To be, or not to be -- that is the question:
Whether 'tis nobler in the mind to simply ignore
The fact that I have seriously neglected this blawg
Or to take arms against a sea of never-ending "to do"s
And by opposing end them.

To work, to sleep--
No more--and by a sleep to say we end
The busyness, and the thousand things
That must be done in a day. 'Tis a consummation
Devoutly to be wished. To work, to sleep--

To sleep--perchance to dream: ay, there's the rub,
For in that weary sleep what dreams may come
When we have shuffled off to bed,
Must give us pause. There's the guilty, worried conscience
That makes calamity of so short a life.

For who would bear the whips and scorns of time,
Th' opponent's wrong, the judge's contumely
The pangs of lost time, the law's delay,
The insolence of teenagers, and the spurns
That patient merit of th' unworthy takes,
When she herself might her quietus make

With a mere laptop? Who would fardels bear,
To grunt and sweat through a busy life,
But that the dread of something left undone,
The misplaced file, the limitation period long past, from whose bourn
No lawyer returns, puzzles the will,
And makes us rather bear those ills we have
Than fly to others that we know not of?

Thus conscience does make exhausted cowards of us all,
And thus the hazy blue resolution of thy computer
Is sicklied o'er with the pale cast of thought,
And enterprise of great pitch and moment

With this regard their currents turn awry
And forgets all good intentions. -- Soft you now,
The fair blawg  -- A Primer on Special Needs and the Law, in thine readership 
Be all my sins forgiven.

But my humble attempt to express my ongoing regret and sadness over the current state of this fair blawg. And yet, on a fool's errand to ease my sorely troubled conscience, I have, alas, updated thine "Places To Be". But that it were enough ...

Fear not, for this humble blawg shall not depart this earthly realm; for now I can but bid you a sad adieu and wish you pleasant dreams as I whisper one last promise in thy ear --

I. Will. Be. Back.

~ With my deepest apologies to the Bard ~

Spoken Word Poetry

An emotional spoken word poem written by a father to his son.




Robb Scott wrote and performed this poem for his son who was born with Down Syndrome. The poem expresses how the R-word changed for Robb and how he hopes he son deals with hearing it as he grows up. The poem expresses how the R-word changed for Robb and how he hopes he son deals with hearing it as he grows up.

Those Least Like Us Have the Most to Teach Us (About Ourselves)

I knew Danny Graham had a child with special needs.
Today I realized that I certainly didn't know the whole story.

Reinventing the Practice of Law

First, let me start with apologies. When I wrote that last post (can you believe that was back in August?), I had every intention of posting more often and on a regular basis. Alas, what is it they say about the "best laid plans of mice and men women"?

It turns out that starting a solo law practice [even on a part-time basis] and keeping current with legal education requirements while continuing to offer presentations [and creating new ones] and doing additional work to keep the lights on ... takes more time than I thought. Who knew?

But I read something yesterday that excited me - something that I really wanted to share with you. So here goes.

Many Hopefully some of my readers will be familiar with the new battle cry in the legal profession; namely "access to justice". It appears that the powers that be in the legal community (and not just here in Nova Scotia but across Canada and the US and elsewhere) have gradually come to realize what a huge issue this is for so many people. After all, what good are a gazillion legal rights if you have no meaningful access to them?

That realization combined with the fact that technology is affecting the legal profession almost as much as those industries we more traditionally think about in this context (ie. newspapers and magazines) has resulted in the profession looking for ways to reinvent itself so as to remain relevant and provide better service to the public.

The American Bar Association, in particular, appears to be a real leader in this area, having published several very interesting publications on the subject. Publications which yours truly has been eagerly reading and digesting.

The reason for that being that I have no intention of MMC Legal Services being a traditional law practice.

Given that my main motivation for doing this has been to provide better and more meaningful access to justice for the disability community, I realize that I need to approach this in (many) different ways. As I see it, there's no point in reinventing the wheel - by which I mean, no point in opening just another law practice, even one as unique as a practice devoted to disability issues.

Where am I going with this, you ask? Good question. And the answer, as I see it, is pretty much down the path less traveled.
                                                                              Image from Right Brain Law

But lucky for me us, the time appears to be ripe for taking on such an initiative, what with all the new possibilities now available to run a non-traditional practice. The current state of technology now makes things like virtual law offices not just a possibility, but a reality; the increase in the use of flat fee billing as opposed to the "almighty billable hour"; and the acceptance by Bar Associations of concepts like "unbundled legal services" (otherwise known as "limited representation"); and lawyers who now make "house calls" (including will-signing parties - love the concept!) really make the sky the limit - provided one ensures they are always complying with the relevant Bar Society requirements, of course.

Change is often slow, particularly among established traditional professions like the legal profession. But, lo and behold, it is happening. Quicker in some jurisdictions than in others (there's no doubt about that), but it is happening.

And it is exactly these changes and possibilities that MMC Legal Services is poised to take advantage of. As I've come to realize over the last few months, getting this law practice up and running the way I envision is not about to happen overnight. But, I firmly believe, that when it does it will be YOU that benefits.

So stay tuned, if you will, to discover a very different law practice. And feel free to leave a comment telling me your biggest pet peeve with the way law has been practiced (just try to stay away from the the too obvious, please) and what you would like to see the profession (and my law firm) do differently.

'Ensuring the Future of Your Child with Special Needs'

We have discussed various aspects of future planning for our children and other family member with special needs and I know from my presentations that this is a HUGE issue for families around the Province. As well it should be.

As luck would have it, I came across a great video the a few weeks ago, entitled "Ensuring the Future of Your Child with Special Needs". Upfront warning: the video is lengthy BUT I highly recommend watching the whole thing - it will be well worth your time.

Although American, I would say it is at least 80% straight on accurate for families here in Nova Scotia. And, best of all, the presenters (there are three of them) all have children with special needs, in addition to the professional expertise (a lawyer and a financial planner) they bring to the table. This means that they often speak as parents and when they do - trust me, you WILL relate.

"Unfortunately, doing nothing is an action of its own because eventually the future 

becomes the present ... If we have not planned for that eventuality, it will come 

either way and we will have less time to do something meaningful about it."

~ Keith Coldwell, Failure to Plan

Given that the video is quite lengthy, I though it might be useful to break it down into a Table of Contents, if you will. So here goes:

1. Introduction
2. Set Up
3. Greatest Hindrance to Parents Getting Started
4. First Steps (14:15)
5. Five Steps to Plan:

• Letter of Intent 
• Special Needs Trust
• Advance Directives 
• Guardianship 

     6.  The Importance of Communication

If you are a regular reader of the blawg, you will likely be familiar with some of these terms but perhaps not all.

Mea Culpa

My apologies for going so long without posting ... 51 days to be exact, but who's
counting, right?

As usual, excuses abound - I am happy to say that I have been busy work-wise, which is a very good thing when it comes time to pay the bills. That being said, I am, of course, always happy to consult with anyone who has a disability-related issue involving themselves or a family member.

So. I have come here today to apologize for the 51 days lengthy time between posts and to commit to doing better. I would really like to get this blawg on a consistent schedule and start blogging on a weekly basis.

My absence has not been for lack of material, believe me; I have quite a selection saved that I would like to blog about. Some get stale and out of date, of course, but I have enough blawg fodder to keep me going for a while.

There's one post in particular that I am really looking forward to working on - a couple of weeks back, I stumbled upon an EXCELLENT video on future planning for a family member with special needs. It's American, so not 100% on point, of course, but the vast majority of it should be very useful for Nova Scotian families. It's going to take some work on my part, though - I watched the entire very lengthy video once (actually it's more like I was riveted to it) but I will need to go through it again in order to break it down and discuss the issues in a meaningful way.

All right, then. You have my promise to get back to this blogging thing on a much more regular basis. Please feel free to hold me accountable - if you don't, who will?

A New Day Dawns

HAPPY BELATED CANADA DAY!!

I hope you and yours enjoyed a great one.

As for me and mine, I am happy to report that Yours Truly managed to not just celebrate our great country and spend some bonding time with my youngest daughter, but I also dotted all my i's and crossed all my t's ... that's right - I finished up the last of the paperwork necessary to finalize the change back to practicing status.

So please welcome my firm, MMC Legal Services, into the

big bad world. And spread the word, this particular firm only serves the disability community.