Disabled Seniors Have a Right to Accommodation

As people have begun to live longer and longer, more and more people are becoming disabled in their later years. About 47% of people over the age of 65 have some disability. Disabilities can range from a bad knee or hip to more serious degenerative conditions like dementia or multiple sclerosis.

Because of this, many pieces of legislation exist to protect the rights of people with disabilities. These include: 

• the Canadian Charter of Rights and Freedoms, 
• the Ontario Human Rights Code, 
• the Accessibility for Ontarians with Disabilities Act, 
• the Residential Tenancies Act, and
• the Ontario Building Code.

Disabled seniors’ rights are protected

The Ontario Human Rights Code is the “cornerstone document for human rights law and for disability law,” says Tim Phelan, an associate lawyer in the Estate Litigation, Business Litigation, and Constitutional Advocacy Groups of Cambridge LLP, an Ontario law firm. 

According to the Ontario Human Rights Commission, the Code “prohibits actions that discriminate against people based on a protected ground in a protected social area,” Phelan says.

The Accessibility for Ontarians with Disabilities Act relates to the accessibility of buildings. It provides specific standards to follow so that different spaces are as accessible as possible for people with varying disabilities.

The Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act apply to public and private entities. This means that both provincial government agencies and provincial Crown corporations (such as Service Ontario or the LCBO) and private businesses (for example, grocery or clothing stores) are subject to their regulations.

How should seniors with disabilities expect to be accommodated?

Any disabled person should be able to access a service in the same way that any person without a disability would. 

If possible, accommodation should target the specific disability that a person has. Most accommodation and accessibility standards are open-ended to allow businesses to create whichever solution makes the most sense for their situation.

Standard accommodations include wheelchair ramps or lifts, braille or large fonts for people with vision impairments, or closed captioning or visual cues for people with hearing impairments. It is also illegal to impose a barrier on entry for support animals or support persons.

However, the size and budget of the organization or the business can limit solutions. 

“The baseline is to try to make it as easy and as dignified for somebody to access a particular service,” Phelan says.

What should disabled seniors do if they encounter a private or public entity that violates disability laws?

In most cases, businesses or organizations that violate disability laws don’t do so deliberately. If you encounter an issue regarding accessibility or accommodation, you should contact the person in charge of the establishment with your concerns, Phelan advises. If the change is not major, they would be happy to accommodate your needs most of the time.

When possible, it is always best to try resolving these issues internally before taking legal action. However, in some cases, you may receive pushback. 

In such a case, the best solution for this might be a complaint to the Human Rights Tribunal of Ontario, Phelan says.

Any individual can make a complaint without legal assistance. Still, in a complex situation, Phelan advises seeking the help of a legal professional. 

You could call a lawyer or seek assistance from Legal Aid Ontario or a legal clinic.

What is the process of resolving a complaint with the Human Rights Tribunal of Ontario?

After you make your initial complaint, the opposite party will have a chance to respond to the complaint and give their side of the story. You can reply to this, but it is not necessary.

Next, a mandatory mediation will take place. Both parties get together with a mediator, an expert in disability law, to discuss the issue and resolve it themselves. Most cases are settled after mediation because of the influence of the neutral third party.

If the mediation fails, you will be put on a list of cases to be heard by the Tribunal. Getting a hearing date could take a long time, so this situation is not ideal. The issue in question might not be resolved for a long time while you wait for the hearing.

The benefit of going to the Human Rights Tribunal is that the order that they make is legally binding. Therefore, if you win your case, the opposite party will have to accommodate your request.

Phelan says that, like most areas of law, disability law is a complicated matter and that lawyers, politicians, and policymakers are not perfect.

“[Disability law] takes time to evolve,” says Phelan. “Like most law, it’s always ten years behind where we would like it to be… But I think generally we’re getting a lot better at accommodating disabilities than we used to be.”

BIO

Tim Phelan is an associate lawyer in the Estate Litigation, Business Litigation, and Constitutional Advocacy Groups of Cambridge LLP, a law firm with offices in Toronto, Burlington, and Elliot Lake. He graduated cum laude from the University of Ottawa Faculty of Law in 2020. 

For more information go to: Cambridge LLP