Abstract
One of the fundamental requirements for the successful deinstitutionalization of persons with disabilities (PwD) is a robust and well-resourced strategy to support their inclusion and independence in the community. A crucial element of this strategy involves the removal of legal barriers that limit their autonomy and independence. However, in many of the jurisdictions where deinstitutionalization has begun, it has become clear that government efforts to remove these barriers have fallen woefully short. This chapter will provide illustrative examples of some of the ongoing legal barriers to the inclusion and independence of PwD in Canada, as well as some of the advocacy efforts being made to remove these barriers. Some of the issues this chapter will briefly cover include: (a) accessibility in housing; (b) gaps in the right to security of tenure for PwD; (c) problems associated with complaint mechanisms around the quality of services and support PwD receive; and (d) some of the common forms of discrimination persons with disabilities experience in the area of housing and independent living. In covering these issues, this chapter will use Article 19 of the CRPD to both critique these barriers and to illustrate what the CRPD requires of States Parties when it comes to promoting the independence and inclusion of PwD in the community.
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Notes
- 1.
These obviously represent just two problems among many in the National Building Code. A number of other notable problems exist. For example, one critique of the current standards is that only a portion of persons with disabilities are addressed by the current standards, as these requirements are primarily based on the dimensions required for people who use manual wheelchairs.
- 2.
Adaptable housing is housing that can be easily renovated to improve accessibility at minimal cost. As noted above, one of the primary housing challenges many persons with physical disabilities experience is related to the evolution of their disability, and the potential that they will experienced increased accessibility needs. In many cases, they may be in housing which is either expensive or impossible to renovate. Adaptable housing is designed to address this issue by including structural features within the housing that minimizes the cost of renovation and maximizes the type of accessibility-related features that could be implemented.
- 3.
It is worth emphasizing here that the same is unlikely to be true of the Charter in this circumstance. Indeed, the author has previously done work which suggests that a Charter challenge on the basis of s. 7 and s. 15 has the potential to broadly challenge some of the accessibility barriers currently embedded in the NBC.
- 4.
It should be emphasized that this statement also applies to British Columbia as well. While the report emphasizes that the relationship in assisted living is a landlord-tenant relationship, assisted living arrangements “are not currently governed by the Residential Tenancy Act, which governs most rentals of living accommodations in British Columbia.” (p. 23)
- 5.
In practice, it can be quite difficult to determine which housing/service providers actually qualify for this exemption as this is typically seen as a factual issue that must be decided on a case-by-case basis. See: Smith v. Youthlink Youth Services, 2020 ONSC 7624 (CanLII) at para 47; YWCA NWT v Hashi, 2021 NWTSC 15 (CanLII).
- 6.
At times, this type of eviction may result not in an individual becoming homeless, but instead in greater institutionalization. Persons with disabilities may be “discharged” from a more inclusive community-based setting to a more institutional setting based on their perceived level of need (e.g., a nursing home).
- 7.
For example, see: SOL-94702-18-RV (Re), 2018 CanLII 141,507 (ON LTB) (Failure to inquire about accommodation needs prior to applying for eviction); Erika v. David, 2003 HRTO 13 (CanLII) (Imposition of extra conditions on tenancy because of disability); Devoe v. Haran, 2012 HRTO 1507 (CanLII) (failure to properly engage in accommodation process); Cityviews Village Inc. v. [tenant], RTB (BC) Decision No. 6020 (2021) (Landlord pressuring tenant with disability to move out); TEL-92935-18 (Re), 2019 CanLII 86,868 (ON LTB) (Landlord not engaging in accommodation process); TEL-81015-17-RV (Re), 2018 CanLII 111,868 (ON LTB) (Landlord failed to inquire about accommodation needs prior to applying for eviction); SOL-66034-15-SA (Re), 2016 CanLII 44,564 (ON LTB) (Landlord failure to provide accommodation to the point of undue hardship); SWT-97811-16 (Re), 2017 CanLII 48,795 (ON LTB) (Landlord failed to inquire about accommodation needs).
- 8.
Examples: TSL-46861-13 (Re), 2014 CanLII 23631 (ON LTB) (No reference by LTB to factors to be considered in undue hardship analysis in eviction hearing); McKenzie v. Supportive Housing in Peel, 2005 CanLII 12858 (ON SCDC) (LTB decision did not consider Code obligations in eviction hearing); Bronson v. Kingston and Frontenac Housing Corporation, 2014 HRTO 619 (CanLII) (LTB did not consider accommodation issue regarding a rental subsidy in eviction hearing); Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC) (LTB failed to consider landlords obligation to accommodate in eviction hearing); Ramadhin v. Chavali, 2014 HRTO 866 (CanLII) (LTB mediator advised applicant he could not raise human rights issues at LTB eviction hearing); N.K. v. The Owners, Strata Plan LMS YYYY, 2018 BCCRT 108 (CanLII) (refusal to allow occupant to keep support animal – failure to apply test for discrimination); Sharp v. The Owners, Strata Plan BCS 435, 2020 BCCRT 1142 (CanLII) (Failure to properly apply test for discrimination and burden of proof); Metro Vancouver Housing Corporation v. [tenant], RTB (BC) Decision No. 6022 (2020) (No human rights analysis – tenants evicted because of noise from child with a disability); TST-32086-12-RV (Re), 2015 CanLII 71788 (ON LTB) (Failure of LTB to consider Code related issues at eviction hearing); SWL-13871-18 (Re), 2018 CanLII 42924 (ON LTB) (Failure to consider code related obligations in LTB eviction decision); TSL-67255-15-RV2 (Re), 2016 CanLII 39865 (ON LTB) (Failure to reference Code obligations for procedural accommodations).
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Reid, L., Lattanzio, R. (2024). Article 19: Deinstitutionalization and Full Inclusion in Community. In: Rioux, M.H., Buettgen, A., Zubrow, E., Viera, J. (eds) Handbook of Disability. Springer, Singapore. https://doi.org/10.1007/978-981-19-6056-7_79
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