A Qualitative Look at Serious Legal Problems for People with Disabilities in Central Canada

Research Results and Discussion

In this section, results are presented using three key themes from the research questions: the experience of a serious legal problem, how the problem was resolved (or not), and finally, the effects of this process on the individual and their supports.

Limitations

Results must be understood in context of the following limitations imposed by the project methodology and backdrop.

Because of some of the contextual issues noted above, it is not possible to generalize about similarities or differences across both provinces (for instance, participants had access to different supports and resources depending on location). In a similar vein, not all participants shared where they experienced their legal issues, so this study cannot provide data pinpointing specific provincial or regional (e.g., urban vs rural) issues.

On another note, the research team tried to gather intersectional data where possible, e.g. through a brief screening questionnaire. However, due to the voluntary nature of this questionnaire, the varied ways data was gathered, and the anonymous nature of the process, the intersectional information collected was not consistent across all participants. Still, where possible, this report touches on the role of intersectionality in shaping participants’ access to and experiences with the justice process.

Lastly, information was gathered from participants using more than one method, which shaped how participant experiences are presented throughout this report. For example, some participants were comfortable providing single-word or short sentence responses, while others shared in greater detail. Other participants, because of the delicate and ongoing nature of their legal issues, preferred to have the researcher take notes (rather than record the interview), prepare a narrative of the story, and present it back for approval. In other cases, the research team had to remove details that could potentially identify other parties or raise privacy issues.

  1. Types of problems

Participants described a number of different types of legal problems they encountered. These fall under the following key areas:

As the list above demonstrates, research participants experienced a wide range of serious legal issues. Many participants noted that these kinds of experiences were common for them as people with disabilities. What the general population may perceive as serious legal problems may unfortunately be more common experiences for people with disabilities and for others from marginalized groups. Below are specific details participants provided to help contextualize their experiences of serious legal problems.

Employment issues

Employment was one of the key sites in which participants experienced serious legal issues. Participants also shared a number of examples of legal problems and disability barriers linked to employment, including barriers in the application process itself, the refusal of accommodation while on the job, mistreatment and harassment at work, and wrongful termination.

According to one participant, they were “fired from a job after asking for accommodation for my disability.” In this case the participant stated that they had been fired after making a simple accommodation request, as they were becoming fatigued after being asked to work longer work days (i.e. 16-hour days). The participant was not being compensated or receiving any overtime for these newly imposed longer hours. Upon termination, they were told they were not being fired because of their disability, but rather because they “lied by omission” during their interview process about their ability to do the job.

This example reinforces a theme that emerged whereby employers and potential employers seemingly understood that they could not fire or refuse to hire a person because of a disability, so instead found ways to frame their actions as necessary and unrelated to a person's disability. This barrier is reflected in research which indicates that employers rationalize the exclusion of people with disabilities in an effort to absolve themselves of discriminatory practices. The workplace was a site of rights-based violations for many of the participants; they noted discrimination, verbal and physical harassment, inaccessible job applications and web sites, and illegal termination of employment.

It is important to note the persistence of these kinds of rights-based violations within the workplace and related to employment. While clear rights-based frameworks are currently in place that theoretically protect people with disabilities from this kind of treatment, the frequency of these violations speaks to larger and more systemic issues that require other interventions that are not reliant on individual complaints. Employment, as a means of social inclusion for people with disabilities, is often a policy priority, yet the employment experience remains full of serious and systemic barriers for people with disabilities.This information points to a glaring disconnect between legal rights, policy, and the actual experience of employment for people with disabilities; that is, while there legislation at both provincial and federal levels on employment and human rights, the lived experiences of people with disabilities does not include the protections afforded by the legal and policy framework.

Barriers and discrimination in accessing health care

Participants described their experiences of barriers and discrimination in accessing health care, including how their intersectional identities shaped these experiences. According to one participant, their experience with accessing health care, from start to finish, illustrated how “the whole system isn’t working.” A trans participant with a disability shared that they had put off accessing health care as they understood, based on their past experiences, that they would face stigma and institutional violence. For them, accessing health care is fraught with barriers and stigmatization in general. During their hospital stay they encountered several injustices they believe were a result of the staff lacking the necessary knowledge in order to provide appropriate care. As visibly trans and disabled they also noted they felt an “atmosphere of shame” within their interactions with hospital staff, as if staff were taking out their own feelings of shame on vulnerable patients.

Another aspect of health care that emerged was related to the role of support people with regard to accessibility. In one example, a participant’s partner (who identified as trans and as also having a disability) provided necessary communication support and acted as a substitute decision-maker for the hospitalized participant. However, the staff frequently told the support person they had to leave, despite the support person’s vital role in communication support and decision-making.

The issue of health care for people with disabilities has become even more pressing with COVID-19. Several high-profile cases across the country, including at least one resulting in a patient death, have been linked to medical staff denying people with disabilities access to support personnel in medical situations. As well, in some cases, doctors have made assumptions about the quality of life of people with disabilities and limited their care options accordingly. Concerns were raised in stakeholder interviews about COVID-19 triage protocols and potential health care rationing that can leave people with disabilities without access to the care they need. As an example, in a well-publicized case early in the pandemic, a 40-year-old woman with a disability in BC died because her support person was not allowed to accompany her when she was admitted to the hospital, where hospital staff subsequently designated her as needing end-of-life care rather than treating her COVID. This kind of ableism within medicine is not new, but COVID-19 has brought it into the public debate. The examples here illustrate how pressing the issue of access to health care is for people with disabilities, and how an intersectional lens can shed light on how systemic barriers, such as ableism and transantagonism, shape access to health care.

Education

Another important issue that emerged was that of education and the rights of people with disabilities in educational settings. Participants frequently brought up education, as a site of serious legal problems they had experienced in the last three years. They also noted the formative aspects of their educations, and said this context shaped their experiences with legal issues later in life. This is an important insight as it is critical for us to understand how legal issues are experienced over the life course.

The youngest participants in the study described the ongoing barriers they faced in attaining an accessible education. These included:

With respect to lack of accessible washrooms, this participant shared that they were instructed to “not to make it a habit of using the accessible staff washroom.” To complicate this matter, they had to rely on an elevator to reach an accessible washroom that often malfunctioned and that they felt was unsafe. They also said that this elevator was often out of order and took weeks to repair.

This example is important for a few reasons. First, in the interviews, stakeholders, many of whom had disabilities, flagged the topic of education and rights-based violations. Many people with disabilities experience legal problems early in life within the education system, which can have a lifelong impact on the individual.

The question of lifelong impact was reinforced in other interviews. For instance, one participant, who is trans and has a disability, said that experiencing systemic barriers and violations throughout their life course shaped their understanding of the “full hierarchy” of how institutional systems operate (medical, psychiatric, children’s aid, police and so on) and how the interactions between these systems create barriers and can inflict trauma. This participant explained that the interconnected nature of these systems, and the way they shape experiences of oppression, makes it difficult to self-advocate or to advocate around one single issue. This complexity was echoed in conversations with stakeholders, who noted that rights-based violations often begin early in life for people with disabilities and can be relentless over the life course. This context, in part, helps to explain why the effects of the legal process can be so traumatic for many even later in their lives.

On this note, many stakeholders, who also identified as having disabilities, also flagged the following common barriers and rights issues within education settings, including colleges and universities:

In keeping with the goal to understand the lived experience of disability through a more intersectional lens, we also want to highlight that when children and young people with disabilities experience legal problems, their age and the level of adult control to which they are subjected may in fact exacerbate the damage of these experiences. While the experiences of children are outside of the scope of this study, adult participants indicated that the kinds of rights violations many people with disabilities experience early in life shape how they perceive themselves and their rights. Indeed, early education is a critical influence on experiences over the life course, including access to higher education and employment outcomes in turn.

Housing

Housing was another key area that more than one participant flagged as a site where they experienced serious legal problems. One participant, who lives in co-operative housing, indicated that their needs have changed as they have aged and they now require an overnight attendant. They received a letter from the co-op informing them that they would need to pay more for their unit because of this additional “overnight guest.” The participant found the “legal jargon and confusion around supports” challenging. Having to navigate and address the situation caused considerable stress.

Participant statements about housing issues highlight not only the kinds of legal problems people with disabilities commonly face, but also that housing is connected to other systemic issues they face. One participant, a trans person with a disability, noted that they and their partner had been illegally evicted from their home. After the landlord found out about their pronouns and accessibility needs, they were served with an eviction notice. They felt that “transphobia and ableism” shaped this experience, because rather than being given accommodations, “we were harassed.” This example illustrates how intersectional factors play out in the lived experience of people with disabilities.

The frequency at which housing issues were noted speaks to a lack of accessible and affordable housing in both Ontario and Quebec, as well as persistent human rights violations where housing is concerned.

(In)accessible services

Another common area where participants experienced legal problems was their access to services, including ones provided and regulated by the government. As an example, one blind participant said that despite laws and protections, they are still unable to independently verify that they have cast their vote. They also noted their continued frustration with the use of technology and forms that remain inaccessible when they are trying to access government information and federally-regulated services.

The government plays a role in ensuring and protecting accessibility for Canadians with disabilities, yet the narratives provided by the participants show that there continue to be serious access issues. This tension speaks to the need for broad systemic change.

  1. Resolution strategies and outcomes

Where did participants find support?

Participants found the following supports invaluable when they were facing legal problems:

In one case, a participant who had experienced gender-based violence noted that as a woman it was important that they were supported by women professionals, including a woman police officer, a woman investigator and a woman attorney.

Barriers to seeking resolution

This section highlights how participants worked to resolve the serious legal issues they encountered. Across the board, participants stated that these legal problems were common for them. Many noted that sometimes it is easier to “give up and move on” than to fight. This shared observation is significant, as it sheds light on one of the ways the justice process differs for people with disabilities. Indeed, the frequency and systemic nature of violations, their inherent ableism, and the exhaustion and trauma many people with disabilities carry will influence how they decide to proceed when they encounter rights violations or legal problems. It is likely that far more experiences are hidden from researchers, as people with disabilities may have grown tired of the adversarial nature of the legal process and the labour involved in it. More than one respondent expressed this fatigue and questioned whether sharing these experiences with the research team would even change anything.4

Additionally, many people with disabilities have likely come to expect these experiences and have normalized them. Because of this, even when their rights are infringed, they may not recognize these problems as legal per se, but instead see them as expected outcomes of living in a hostile world that is not tailored to meet their needs.

Respondents used both formal and informal means, often together and at different times over the course of the legal process, to try to resolve their legal issues. Most participants tried to address issues informally but often later escalated to more formal processes. Several participants felt that the legal process could have been avoided if they had been listened to through informal channels. An important theme emerged as participants, even those who considered themselves well-versed in the law, indicated that the legal process is long and confusing. They also noted that the process can change along the way based on shifts in policy and law.

The majority of participants indicated that their understanding of legal issues was at least good, yet, when reflecting on their experiences and the effects of those experiences, they noted confusion and a lack of clarity. This contradiction speaks to systemic issues and a lack of accessibility for people with disabilities, both in general and with respect to the legal process.

This research suggests that not only is the law itself at play, but so, too, are the policies, procedures, funding, and supports that shape the legal experience. Some of the specific and systemic barriers participants noted in the resolution process include:

Many of the findings of this research echo what the literature says about barriers. These include:5

Below are some additional examples of the most common themes when participants discussed navigating the resolution process. Stakeholders also noted that there is often not one clear linear process to follow, which can further complicate this part of the experience.

Lack of intersectional supports

Participants noted that the process tended to become more formal as they progressed. For example, when a trans participant sought to address the poor care received and barriers faced within a hospital setting, they sought the support of community groups and resources, including a trans social worker, a legal clinic, a paralegal with a disability, a human rights professional, a primary care physician, and a trans medical advocate. The participant noted that the more staff became involved, the more formal the process became, which created tension as they sought a resolution. In this example, the participant was advised by many to pick one ground for the discrimination they had experienced—either disability or gender— and to proceed in challenging their treatment this way.

This example illustrates a lack of intersectional community support and speaks to the reality that community support is often understood and provided based on isolated aspects of a person’s identity and through isolated service silos. The trans participant’s hospital experience also suggests that the law may not be equipped to address human rights violations that are grounded in multiple (and potentially conflated) aspects of an individual’s protected rights. There may not be a clear legal route that protects all aspects of an individual’s rights infringements.

Participants who felt marginalized because of aspects of their identity (e.g. women, members of the LGBTQQIP2SA community, and so on) mentioned that it was important to them to be able to receive support from people who understood these barriers because of their own lived experience. One participant noted that it is rare to find a lawyer or other legal support provider who identifies as having a disability. There is a lack of legal professionals representing diverse identities, and services and supports tend to be delivered in ways that are only equipped to support certain aspects of people’s lived experience.

Lack of clarity about the impacts of monetary outcomes on disability benefits

Several respondents in Ontario noted that under the Ontario Disability Supports Program (ODSP) rules, a monetary award could potentially affect their eligibility for disability benefits. In a number of instances, regulations related to disability support shaped how people proceeded in attempting to resolve their legal problems. (This was even a concern for many participants in regard to the small research honorarium provided for this study.) Participants expressed confusion regarding disability benefits and how much money they were permitted to hold or have outside of benefit allotments. This confusion often seemed to occur when individual caseworkers provided conflicting information. The unclear nature of policy and the varying information supplied by case workers resulted in uncertainty for many participants about what a potential monetary outcome would mean for their access to future benefits.

Limited scope of resolutions

When monetary settlements came up in the interviews, participants overwhelmingly said that money was not a motivating factor; several participants noted this kind of resolution did not address their main concerns. For example, one participant said they were not seeking a monetary award, but rather that they had hoped their experience would lead to some kind of systemic change that would ensure others did not experience what they had. This sentiment was echoed throughout the interviews, focus group and questionnaire responses.

As well, two respondents said they feared that the legal process would result in front-line staff being fired, and they noted these workers were underpaid and under-supported, and were often racialized. They feared that legal resolutions would be grounded in a punishment model that does not address systemic issues and that would exacerbate systemic issues by negatively affecting other marginalized people. Individual terminations or punishments would not address the trauma these participants were carrying after their experiences. Participants’ responses show that it is important to think critically about how resolution may be defined within the justice process and how this definition may fail to address the kinds of systemic issues and trauma many people with disabilities reported.

A long and traumatic process

Another thread that emerged in this research relates to how hostile and adversarial the legal process can be, which may re-traumatize participants who are seeking resolution after initial instances of trauma. For instance, one participant pursued resolution following incidents in their experience in accessing health care. Part of the resolution process involved attending meetings with five to ten people who represented the institution in which they had experienced injustice. In one of these meetings, a doctor spoke about “ICU psychosis” for the majority of the time and suggested that this was the problem, rather than the persistent discrimination the individual had faced. This suggests that ableism and other forms of discrimination shape how people are treated in these settings and throughout the legal process.

In another example, while the participant had taken copious notes throughout the incident that led to their legal problems, the legal process required a level of detail that they felt was impossible to provide. This participant described how at one point they were asked to identify a staff member who had not provided their name at the time they interacted. When the participant could not identify the person with certainty, this detail was used to discredit their entire experience and suggest their complaint was not credible. This research shows that this is a common experience among people with disabilities, including within the legal process, as their credibility is often questioned as a result of systemic ableism, while non-disabled professionals and others are often automatically granted credibility.

In another example, one participant stated that in the resolution process there was “no help available…[and] the most vulnerable are suffering.” Many participants echoed this sentiment, which speaks to both the need for more support for people with disabilities, and the ways in which the justice process is not tailored to meet the needs or value the experiences of marginalized groups.

Another participant who took a case to the Human Rights Tribunal noted that while the goal was a $30,000 settlement, they ended up settling for $10,000. Research participants repeatedly expressed feeling pressure to settle in formal cases and said this often did not lead to their desired outcome, but instead simply “ended the process.”

Many participants also noted that the legal process did not offer a resolution that led to the kinds of support they needed in order to deal with the lasting impacts or trauma related to the precipitating event. In one case, a participant was eventually able to negotiate for therapy to address the trauma of their experience, but this was extremely limited (three sessions) and did not provide the level of support they required. Another participant, when reflecting on the resolution process, stated that “as a person with a disability, I am never the one that wins.”

Unresolved legal problems

None of the participants who had experienced legal problems related to housing had reached any resolution. In one case, the tenants were evicted and are still seeking resolution. In another example, while the participant gathered two letters of support from the community attesting to the fact that they cannot be charged higher rent because of the presence of an overnight aide, they have yet to receive a response from their co-op. They expressed frustration that although they had worked diligently to try and resolve the issue in a timely manner, they had not yet received a response. They described the stress this unresolved issue has caused as well as their frustration with the process itself.

Aside from housing, the majority of participants’ legal problems either were unresolved or had resulted in settlement. One participant noted, “I needed to move on with my life. Hanging in the balance is no way to live.” Another participant indicated that although there is often pressure to settle for a number of reasons, the desire to get something out of such a long and arduous process is one of the main reasons people finally choose to do so. The complex and lengthy legal process, coupled with the marginalization and discrimination many people with disabilities already face, introduces risk without the promise of any resolution. The pressure to settle may feel like the only option, as the alternative could be no resolution at all.

Another participant spoke of the poverty and trauma many people with disabilities live with as a result of lengthy processes and unresolved legal issues: “I had to use a food bank. I worked with a psychologist to deal with post-traumatic shock and my social network changed.”

The experiences described in the above sections capture many of the problems with the resolution process. To sum up, these problems include:

  1. Impacts on participants

Participants shared that difficulties with the legal process had taken a tremendous toll on them. Below, we break down these impacts by type—emotional, financial and social—to illustrate their extent and variety.

Emotional

Participants cited emotional impacts by far the most frequently. Specifically, participants mentioned:

One participant said that the process left them with “a feeling of powerlessness, of injustice. Demotivation, loss of hope, self-esteem and confidence. Above all, stress due to lack of safety.” Another participant said that “the psychological repercussions are very difficult to bear, and monetarily it was also impossible for me… very expensive, and for poor people it’s very hard.”

These emotional impacts help illustrate why the legal process can be so difficult for people with disabilities. They may also help shed light on why many participants noted their hesitancy to follow through with the legal process. Indeed, in many cases participants said that the resolution process was retraumatizing, stressful and isolating, and left them feeling hopeless.

It is likely that this emotional toll is more than simply a discomfort or lack of information about the legal process. Indeed, one respondent also noted that they had engaged in the legal process throughout their life as an individual advocate and as a part of various advocacy groups. Even with this past experience they felt that they were always learning, as there are often new laws and policies, changes to supports and to the complaints process. Given that this process is never easy or straightforward, the labour of self-advocating under ever-changing rules can take a tremendous emotional toll on those who choose to follow this route.

Financial

Financial impacts were another key theme that emerged. This included the significant cost for those who could afford to undertake a legal process or found financial help to do so, as well as barriers for those who could not afford to undertake such a process or who thought it could impact the availability of benefits. Participants mentioned:

One theme that emerged was that the cost of this process imposes limitations. Even people with means who came out with favourable settlements noted the barriers within the system. Additionally, for people who lacked financial means, cuts to community support, as well as regulations around funding and access to disability supports, served as additional barriers. Such financial aspects create particular challenges for many people with disabilities, and the legal system has failed to recognize these challenges in its processes. Indeed, in keeping with the examples noted earlier, a monetary resolution may seem like a just conclusion in some cases, but not when the complaint is related to a systemic human rights violation, when the individual has experienced trauma, or when disability benefits prevent them from accessing monetary rewards.

Social

While social impacts were not mentioned as often as others, some participants did mention key areas in which the legal process impacted them socially. These included:

In sum, it is not surprising that the impacts were both particular and traumatic for many of the respondents given the kinds of barriers they face, the systemic nature of these barriers, the frequency at which troubling experiences arise because of their marginalized status, and disability-specific constraints and barriers within the resolution process.

Footnotes

3 Bhattacharjee, K. (2003). The Ontario Safe Schools Act: School discipline and discrimination. Ontario Human Rights Commission.

4 There is a cynicism within the disability community regarding the potential for a real and meaningful commitment to their rights and an accessible process. In more than one survey response participants shared that they did not think their responses would matter. This may have led to some answers being shorter.

5 Office des personnes handicapées du Québec, cyberbulletins de l’office, volume 11, numéro 2, 2017