OH, Canada!

Alex Caggiano, Seth Goldstein, Kate Helms, and Carolyn Manka

Overview

- Defining Disability- Introduction to Canadian Disability Law- Applicability to Canada – Cases, Issues, &

Holdings- Social Security

- Definitions and Comparisons to US and International Law

- Reasonable Accommodation- Definitions and Comparisons to US and

International Law- Conclusion

Defining Disability• Canada’s Human Rights Act: disability is viewed as “any

previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug” (Article 25).

• UN Convention on Rights of Persons with Disabilities: defines disability as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” (Preamble) as well as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (Article 1).

• United States’ ADA: defines disability as an individual with:

1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

2. A record of having such an impairment; or3. Being regarded as having such an

impairment

Opportunities Fund for Persons with Disabilities

• The program helps disabled people enter the job market, become trained or return to work.– To gain assistance, eligible participants must “self-identify as having a permanent physical or mental disability, be unemployed (or working less than 20 hours/week), legally entitled to work in Canada and in need of assistance to prepare for and keep employment or self-employment”

Employment Equity Act

• Its purpose is to achieve equality in the workplace, providing “special measures and the accommodation of differences”

• Established the Public Service Commission, which has the power to enforce compliance among businesses. – Cases are to be “resolved through persuasion and the

negotiation of written undertakings” (Article 22, Section 2).

Federal Public Service

• The Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service evaluates the Federal Public Service to ensure disabled people’s participation.

• Departments and agencies can provide notice about significant issues that arise from the implementation of the policy – Can report to either the Public Service

Commission or the Treasury Board Secretariat

Canada’s Pension Plan (CPP)• Created “The Reasonably Satisfied Standard for Review for

Determining Eligibility and/or Continuing Eligibility for Canada Pension Plan Disability Benefits”

• Their standard is deemed by “whether [disability] causes a ‘particular person’ to be incapable regularly of pursuing any substantial gainful occupation”

• Effects must be “severe” and “prolonged” (Article 1.2 and 1.3)

• Attempts to take into consideration personal characteristics and how that affects the individual– Personal characteristics based on the individual’s age,

education and work experience

The Saskatchewan Human Rights Code

Article 3 - Objectives- The objects of this Act are: - (a) to promote recognition of the inherent dignity and the equal

inalienable rights of all members of the human family; and - (b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminate

discrimination. Definition(d.1) “disability” means:

(i) any degree of physical disability, infirmity, malformation ordisfigurement and, without limiting the generality of the foregoing

 Discrimination prohibited in employment:Article 16 (1) No employer shall refuse to employ or continue to employ or

otherwisediscriminate against any person or class of persons with respect to

employment, orany term of employment, on the basis of a prohibited ground.

Battlefords and District Co-operative Ltd. v. Gibbs

[1996] 3 S.C.R. 566• Facts: Ms. Gibbs is an employee of the Battlefords and District

Co-operative Limited. She became disabled in 1987 as a result of a mental disorder and was unable to work.

• Issue: Does the appellant’s disability plan, which places limitations on benefits for nervous, mental or emotional disability, but not for other kinds of disability, discriminate on the basis of disability contrary to The Saskatchewan Human Rights Code?

• Holdings: Yes

• Significance: Mental disabilities should be viewed the same as physical disabilities as defined purpose is to insure employees against the income-related consequences of becoming disabled and unable to work.

Granovsky v. Canada [2000] 1 S.C.R. 703

• Facts: The appellant claimed to have suffered a back injury following a work-related accident in 1980. Prior to his accident, he had made Canada Pension Plan (CPP) contributions in six of the ten previous years. The appellants back condition continued to deteriorate and became permanent in 1993, at which time he applied for a CPP disability pension.  His application was refused.

• Issue: Does the Canada Pension Plan discriminate against persons on the basis of physical or mental disability by including periods of physical or mental disability in a claimant’s contributory period?

• Holding: No

• Significance: Hinders people with temporary disabilities from taking future action

Rehabilitation Act 1973 and the ADA: Employment

• Addresses discrimination against disabled individuals in the workplace

• ADA Title I focuses specifically on issues with employment of disabled individuals

Social Security Law in Canada

• Do You Qualify as Disabled?

• Canada Revenue Agency

• Additional Requirements

Social Security Law in the United States

• Do You Qualify as Disabled?• Disability Determination Services• Additional Requirements• Types of Social Security–Social Security Disability

Insurance–Supplemental Security Income

International Social Security Legislation

• Article 28 of the UN Convention on the Rights and Dignity of Persons with Disabilities

• Adequate Standard of Living and Social Protection

• Assistance and Equal Access

Comparison of Canadian and American Disability Social Security Legislation

• Same basic structure:– Must fill out application to qualify for

disability benefits– Application reviewed by state agency– Financial aid provided based on other

substantial incomes

• Canada has less restrictive regulations, easier to receive aid

• International law not specific, requires some kind of equality and state support

Reasonable Accommodation in Canada

Legislation and Definition- Canadian Law provides for ‘reasonable accommodations’ to be

made in both the fields of Education and Employment- Restrictions to the allowance Reasonable Accommodation- Sources: Federal Statutes, Human Rights Statutes, Case Law

Employment Equity Act - para. 5(b) – Employer Obligations- Requires employers to make ‘reasonable accommodations’ to

ensure that persons with disabilities are represented in the workplace similar to in society

Canadian Charter of Rights and Freedoms (1982)– para 15: the duty to make positive efforts to ensure that

persons with disabilities share the same benefits that are offered to the general public

Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service (2002)- applies to employees in public services jobs

Restrictions of Reasonable Accommodation: Undue Hardship

Employment- Factors to Consider- Case Law: Eldbridge v. British Columbia (Attorney General)

[1997] 3 S.C.R. 624- Reasonable accommodation is only required so long as they pose no

‘undue hardship’ to employers

Education- Factors to Consider

Who judges whether an Undue Hardship exists?

Reasonable Accommodation in the United States

History, Legislation, and Definition

- History of Reasonable Accommodation

- Rehabilitation Act of 1973- Section 504: Reasonable accommodation means an

employer is required to take reasonable steps to accommodate an individual with a disability unless it would cause the employer undue hardship.

- Each Federal agency has its own section 504 guidelines

- Americans with Disabilities Act of 1990- Applicable under all three (3) Titles

Restrictions of Reasonable Accommodation: Undue Hardship &

Undue BurdenTerms:- ADA: Title I – Undue Hardship- ADA: Title II - III – Undue Burden

Employment- Reasonable Accommodation is only required so long as it poses

no “undue burden” to employers- Factors to Consider- Enforcement Mechanism: EEOC- Case Law: US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002)

Education- Section 504 and Title II

Denial of Reasonable Accommodation

Who determines if an undue burden or undue hardship exists?

- UN Convention on the Rights of Persons with Disabilities

- Article 2: Definition

- Article 24: Education

- Article 27: Work and Employment

- Signatories- Signed by Canada: March 30, 2007- Signed by United States: July 30, 2009

Reasonable Accommodation in UN LawLegislation and Definition

Comparison of National and International Reasonable Accommodation Legislation

Compare and Contrast: Canadian Law v. UN Law- Canadian Law is more developed- Applicability of Reasonable Accommodation- Preventative Measures of Reasonable Accommodation- Enforcement Mechanisms- Canadian Law allows for minimal affirmative action

Compare and Contrast: Canadian Law v. United States Law- Extremely Similar- Longer history of disability law in the US- Applicability of Reasonable Accommodation- Preventative Measures: Undue burden and Undue Hardship- Enforcement Mechanisms- Canadian law is more focused on Human Rights aspect

International Covenant on Economic, Social and Cultural

Rights (ICESCR)• Article six addresses the right to work– State Parties recognize “the right to work, which includes

the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”

• Article nine covers the right to social security (those who cannot work are included)– State Parties “recognize the right of everyone to social

security, including social insurance”

Conclusion

• Canadian Disability Law is more developed than International Disability legislation

• Canadian Disability Law is similar to US legislation

• Canadian Disability Law is prevalent in both federal statutes and human rights legislation

• Canadian Disability Law does not have an overall applicable definition of disability

Need Further Proof Why America is Better?

Country Gold Silver Bronze TOTAL

United States 9 15 13 37

Germany 10 13 7 30

Canada 14 7 5 26