Legal Terminology and Definitions.docx

Legal Terminology and Definitions Term Definition Constitution The supreme law of a country. The Constitution of Canada gives Canadian courts the power to strike down legislation. Legislation The body of laws passed by a government. These laws must fall within the limits of the Constitution. Th...

Legal Terminology and Definitions Term Definition Constitution The supreme law of a country. The Constitution of Canada gives Canadian courts the power to strike down legislation. Legislation The body of laws passed by a government. These laws must fall within the limits of the Constitution. They outline goals, penalties, methods, etc. Regulation Once legislation is passed into law, regulations are developed. Regulations determine the specific details and rules regarding how the legislation will be applied and enforced. Building Code Detailed local regulations by which the building legislation is to be met. They generally apply to new construction and are concerned with the health and safety of a building's occupants. More recently, they have also dealt with energy conservation and accessibility. Model Code A building code that has no legal status. It can be adopted by a governmental agency and enforced as law, but it is not enforceable on its own. Standards A set of non-enforceable requirements or guidelines that are typically set by different agencies and organizations. A number of standards-writing RHFAC Training STUDENT GUIDE Page \| 200 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Term Definition agencies produce standards on various aspects of building, which are then referred to or included in building codes or in other regulations. Unit 5.1 Human Rights and Disability Legislation This unit focuses on the following outcome and sub-outcome: Integrate relevant legislation, regulations and standards when planning and executing a rating. o Locate appropriate human rights and disability legislation related to access and inclusion. Unit Outline Multi-Layered Legal Framework Employment and Human Rights Constitutional Rights and the Canadian Charter of Rights and Freedoms Canadian Human Rights Legislation o Canadian Human Rights Act o Provincial Human Rights Codes (BC, Ontario and Nova Scotia) o Employment Equity Act o Duty to Accommodate and Undue Hardship o Discrimination Complaints in Canada Related to Disability o Effect of Barriers on Employment Recent Canadian Legislation The Accessible Canada Act Disability Legislation International, National and Provincial Legislation RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 201 Examples of Existing Legislation AODA (Accessibility for Ontarians with Disabilities Act, 2005) Non-Compliance and Penalties (AODA) Nova Scotia's Accessibility Act (2017) Americans with Disabilities Act (ADA) Relationship and Hierarchy among Human Rights and Disability Laws RHFAC Training STUDENT GUIDE Page \| 202 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Introduction This unit will explain the legal environment related to human rights and disability. RHFAC Professionals need to be able to interpret the intent and requirements of relevant legislation and to understand the roles of various organizations, agencies and levels of government in promoting accessibility. Organizations need to understand that violations and complaints may lead to more than just penalties. They can create negative public relations. More than being inclusive and the right thing to do, compliance enhances an organization's public image, ultimately driving business. For example, if a facility doesn't provide appropriate access for people with disabilities, it may not meet minimum requirements for even a base-level rating. This, in turn, could trigger a human rights complaint. Multi-Layered Legal Framework The legal framework pertaining to disability and accessibility is multi-layered. It consists of constitutional, employment and human rights, and disability legislation, which guarantees the rights of individuals, together with building legislation and building codes, which define rules and minimum requirements related to accessibility. In this unit, we will focus on employment, human rights and disability legislation. Building legislation will be covered in the next unit. There are numerous laws that exist in Canada and around the world to protect the rights, prevent discrimination, and create equal access to society for people with disabilities. Canada's legal framework is much like a patchwork, with legislation found at the federal, provincial, territorial and municipal levels of government. This makes it confusing and cumbersome to interpret and apply. Moreover, there is often a general lack of awareness of the requirements. The end result is that those requirements are often ignored. RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 203 Employment and Human Rights Constitutional Rights and the Canadian Charter of Rights and Freedoms The Constitution Act, 1982, is part of the Constitution of Canada. And the Canadian Charter of Rights and Freedoms forms the first of 35 sections of the Constitution Act. The Canadian Charter of Rights and Freedoms (Section 15), which became effective in 1985, provides that every individual has the right to the equal protection and equal benefit of the law without discrimination. It applies to, and will override, any federal, provincial or municipal law or regulation as well as any government activity. It explicitly includes mental or physical disability among its prohibited grounds. In other words, this guarantees that all persons in society are entitled to receive the same level of service and that appropriate accommodations must be made to ensure this.26 Canadian Human Rights Legislation Canadian Human Rights Act In Canada, human rights laws have been enacted at both the federal and provincial levels. The Canadian Human Rights Act was passed by parliament in 1977 to ensure equal opportunity to people who may be the victims of discrimination based on a set of prohibited grounds, such as race, sex, disability or religion. It applies to federally regulated departments and agencies. Each province or territory has its own anti-discrimination law. Human rights legislation is complaints based. The Canadian Human Rights Commission (CHRC) was established to investigate claims of discrimination, while the Canadian Human Rights Tribunal was set up to judge the cases. 26 Canadian Constitution Act, 1982, Part I, Equality rights, Section 15. (1) RHFAC Training STUDENT GUIDE Page \| 204 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Provincial Human Rights Codes Provincial and territorial human rights codes exist across Canada, as well. Under these codes, organizations are required to accommodate people with disabilities to the point of undue hardship. The British Columbia Human Rights Code that pertains to disability is found in Chapter 210, Section 8, and states: Discrimination in accommodation, service and facility, (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. Similarly, under the Ontario Human Rights Code, unions, landlords and service providers have a legal "duty to accommodate" persons with disabilities. The goal of accommodation is "to allow people with disabilities to equally benefit from and take part in services, housing or the workplace." Enforcement and promotion of human rights is handled by independent human rights commissions, which are established in most jurisdictions in Canada. They deal with complaints filed by individuals claiming an infringement of their rights. In Nova Scotia, the Human Rights Act similarly protects people from discrimination. Employment Equity Act The Employment Equity Act requires employers to "engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, Aboriginal peoples, and visible minorities." The RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 205 Act states that "employment equity means more than treating persons the same way but also requires special measures and the accommodation of differences." Basically, employers are required to remove any barriers to employment. Duty to Accommodate and Undue Hardship A "duty to accommodate" on the part of an employer or service provider has arisen from both the Canadian Human Rights Act and the Employment Equity Act. The goal of accommodation is to ensure that an employee who is able to work can do so while not causing the employer undue hardship. If someone needs to be treated differently to prevent or reduce discrimination, an employer or service provider has an obligation to take steps to accommodate this person. "The duty to accommodate means that sometimes it is necessary to treat someone differently in order to be fair." Sometimes, alternate arrangements need to be made to ensure full participation. For example, if an employer requires all persons to submit a written application for a job or to complete a written test, this could exclude someone who is blind. While it is often necessary to accommodate people on an individual basis, ideally an organization is proactive and has policies in place to accommodate people with disabilities. When it is not possible to accommodate a person, an organization may claim that doing so would cause undue hardship. An undue hardship is an accommodating action that places significant difficulty or expense on the employer. Employers are required to provide a reasonable accommodation to qualified individuals with disabilities, but when an accommodation becomes too taxing on the organization it is classified as an undue hardship and is no longer required. These hardships include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. For example, it would be considered an undue hardship if the changes cost too much or create risks to health or safety. Each situation is unique, and evidence must be provided as to the nature and extent of the hardship. RHFAC Training STUDENT GUIDE Page \| 206 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Discrimination Complaints in Canada Related to Disability According to the 2013 Annual Report published by the Canadian Human Rights Commission,27 roughly half of all discrimination complaints are related to disability, and approximately 40% of disability complaints are related to mental health. In fact, there are so many disability-related cases that they are "clogging up" the system. Across the board, Canadians with disabilities face disproportionately high levels of discrimination in employment and when receiving services. People with disabilities must be accommodated at work, in housing by a landlord, and in public places (e.g., stores, restaurants, theatres, educational institutions, public transit and government services). An RHFAC Professional must be aware of any human rights issues related to the facility that they are assessing. Effect of Barriers on Employment The opportunity for meaningful employment is essential to not only an individual's economic security but also to their physical and mental health, personal well-being and sense of identity. Unfortunately, too few people with disabilities are able to access meaningful employment. Negative attitudes and misconceptions about disability has led to only a minority of employers -- whether government, non-government or corporate -- being willing to employ people with a disability. People with a history of mental illness or an intellectual disability are particularly stigmatized. In other cases, employers seemed unwilling to employ a person with a disability due to misconceptions about the cost of modifications and adaptive technology. 27 Canadian Human Rights Commission. 2013 Annual Report. Retrieved f rom: http://www.chrcccdp. gc.ca/eng/report/outcomes/statistics RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 207 Recent Canadian Legislation Accessible Canada Act The Accessible Canada Act (ACA), which builds on the Canadian Human Rights Act, was passed by parliament on June 21, 2019. This legislation focuses on the prohibition of discrimination based on disability. Its aim is to benefit everyone in Canada, especially persons with disabilities, by helping to create a barrier-free Canada through the proactive identification, removal and prevention of barriers to accessibility wherever Canadians interact with areas under federal jurisdiction. The Accessible Canada Act provides for the development of accessibility standards and gives the Government of Canada the authority to work with stakeholders and persons with disabilities to create new accessibility regulations that will apply to sectors within the federal jurisdiction, such as banking, telecommunications, transportation industries and the Government of Canada itself. These new regulations will set out requirements for organizations to follow, to identify, remove and prevent barriers to accessibility. The Accessible Canada Act will also put in place compliance and enforcement measures, as well as an accessibility complaints mechanism. Disability Legislation International, National and Provincial Legislation While employment and human rights legislation protects the rights of all people, including those with disabilities, some jurisdictions have introduced legislation that focuses specifically on protecting the rights of people with disabilities. The Americans with Disabilities Act (ADA), the Accessibility for Ontarians with Disabilities Act (AODA) and the Nova Scotia Accessibility Act (Bill 59) are three examples. The United Nations and many countries around the world have enacted human rights legislation to protect the rights of people with disabilities. In 2006, the UN Convention on the Rights of Persons with Disabilities was formally adopted by the UN General Assembly. This was a ground-breaking initiative that ensured that RHFAC Training STUDENT GUIDE Page \| 208 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE all persons with disabilities have full and equal enjoyment of all human rights. This was seen as a major step toward ensuring full participation and equal opportunity for all. Several countries that have developed comprehensive national legislation that protects people with disabilities in all area of life are the United States, Ireland and Australia. The USA enacted the Americans with Disabilities Act (ADA) in 1990, while Australia implemented the Disability Discrimination Act 1992 (DDA), and Ireland introduced the Disability Act 2005. Existing legislation is viewed as reactive, as the law seems to be applied only after someone has been discriminated against. Proponents say this legislation is long overdue. However, others are concerned that it may be ineffective. Although there is much existing legislation, regulation and enforcement is viewed as weak.28 Employment and Social Development Canada (Office for Disability Issues) engaged in open consultation with Canadians on access legislation between July 2016 and February 2017. The consultation is now closed. Provincially, only Ontario, Manitoba and Nova Scotia have provincial disability legislation on the books. Ontario introduced the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and the Ontarians with Disabilities Act, 2001 (ODA). The Accessibility for Manitobans Act (AMA) became law in 2013. Most recently, Nova Scotia passed Bill 59, the Accessibility Act in 2017. Other provinces, including British Columbia, Saskatchewan and Newfoundland have expressed an interest. British Columbia is currently engaging in a consultation process with a variety of different stakeholders from community, 28 Picard, Andre. (Aug. 11, 2015). It's well past time f or a Canadians with Disabilities Act. The Globe and Mail. Retrieved f rom: http://www.theglobeandmail.com/opinion/its-well-past-time-for-a-canadians-with-disabilitiesact/ article25904732/ RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 209 government and advocacy groups to determine the scope of a British Columbians with Disabilities Act (Barrier-Free BC). Examples of Existing Legislation To provide students with concrete examples of existing disability legislation, highlights of three different pieces of legislation are provided below: the Accessibility for Ontarians with Disabilities Act (AODA), Nova Scotia's Accessibility Act, and the Americans with Disabilities Act (ADA). Accessibility for Ontarians with Disabilities Act (AODA) Highlights of the AODA legislation are as follows: Purpose is to achieve accessibility standards for people with physical and mental disabilities to all public establishments by 2025. The scope of legislation includes both public and private institutions. Provides five accessibility standards that are being implemented in stages: o Customer Service Standard o Information and Communications Standard o Transportation Standard o Employment Standard o Design of Public Spaces Standard Customer Service Standard, Effective January 2008, Amended July 1, 2016 Ensures equal opportunity for people with disabilities to obtain, use and benefit from goods and services. Providers of goods or services must take steps that include the following: o Establish policies, practices, and procedures for accessible customer service o Train staff and volunteers o Allow service animals and support persons in areas that are open to the public o Create a feedback process RHFAC Training STUDENT GUIDE Page \| 210 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Information and Communications Standard, Effective July 2011 Deals with the way organizations create and communicate information and outlines how they are to make information and communications accessible to people with disabilities. Requires the provision of accessible formats and communication supports on request. Also covers such areas as emergency and public safety information; websites; feedback processes; educational, training and library materials and resources; and training of educators. Employment, Effective July 2011 Requires organizations to establish processes that provide for accessibility across the employment life cycle. Focuses on such areas as recruitment, job accommodation, return to work, performance management, career development, redeployment, and access to workplace and job-related information as well as customized emergency response information. Transportation, Effective July 2011 Contains a variety of technical, policy and operational requirements to prevent and remove barriers in both conventional and specialized public transportation services. Includes fare parity between conventional and specialized services, and technical requirements for new transit vehicles. Affects municipalities that license taxicabs, school boards and other public sector organizations that provide transportation services. RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 211 Design of Public Spaces (Built Environment), Effective January 2013 Goal is to prevent barriers for people with disabilities in newly constructed or redeveloped public-use areas. Includes recreational trails and beach access routes, outdoor public eating areas, outdoor play spaces, exterior paths of travel, parking areas, service counters, queuing guides and waiting areas. Enhanced accessibility standards covering new construction or extensive renovation of buildings have been incorporated into the Ontario Building Code, which became effective January 1, 2015. Non-Compliance and Penalties (AODA) Compliance provisions exist under the AODA (Ontario Regulation 191/11, Integrated Accessibility Standards, Part V -- Compliance). However, they are highly discretionary, vague and frequently not enforced. Penalties range from \$200 to \$15,000, where the amount of the penalty depends on several factors: Whether the responsible party is an individual/unincorporated organization versus a corporation. The severity of the impact of the contravention: The contravention history of the person or organization. However, in cases where the impact of the contravention is determined to be major and the contravention history of the person or organization is determined to be major, the above penalty may be treated as daily penalty to a maximum of: \$100,000, in the case of a corporation, and \$50,000, in the case of an individual or unincorporated organization. RHFAC Training STUDENT GUIDE Page \| 212 Version 3.0, September 2020 - RHFAC Training STUDENT GUIDE Nova Scotia's Accessibility Act -- Bill 59 (2017) Highlights of Nova Scotia's Accessibility Act are as follows: Enacted in 2017, the goal of the Accessibility Act is to achieve an accessible Nova Scotia by 2030. Provides framework and authority to create accessibility standards. Standards will include the following areas: o The delivery and receipt of goods and services o Information and communication o Public transportation and infrastructure o Employment o The built environment o Education Consultation will take place for the development of each standard. It is expected that development of each standard will take an average of two years. An Accessibility Advisory Board will work with stakeholders to set and enforce accessibility standards. Twelve members have been appointed to the Accessibility Advisory Board, including seven representatives from the disability community. An Accessibility Directorate is responsible for implementing and administering the Act and for addressing broader issues related to disability. They will develop awareness and education and will work closely with those impacted. Compliance and Enforcement o A Director of Compliance and Enforcement, reporting to the Minister of Justice, is responsible for ensuring compliance. o The Minister of Justice has the authority to overrule the Accessibility Advisory Board. o Following implementation of standards, there will be a reasonable period provided for compliance. o Inspections will be done on a risk-based model, not a compliance-based model. o Fines of up to \$250,000 could be levied on those who do not comply with standards. RHFAC Training STUDENT GUIDE RHFAC Training STUDENT GUIDE - Version 3.0, September 2020 Page \| 213 Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA), was enacted in 1990 to provide comprehensive civil rights protection to individuals with disabilities in the following areas: Employment. State and local government services, including public transportation facilities. Public accommodations and commercial facilities. This area covers building standards. o Public accommodations include restaurants, hotels, convention centres, retail stores and shopping centres. o Commercial facilities include non-residential facilities such as office buildings, factories and warehouses. Telecommunications. Relationship and Hierarchy among Human Rights and Disability Laws Generally, if two laws conflict with one another, the law that provides the higher level of accessibility is the law that must be followed. In Canada, human rights trumps everything. It applies universally. For example, the Human Rights Commission can tell Air Canada to make all flights accessible, including all types of aircraft. Whereas, disability laws are site or complaint specific -- they are not global and only apply to a specific problem or situation, such as a gate at a particular airport that was cited or complained about. NOTES RHFAC Training STUDENT GUIDE Page \|