Episode 37: With the Best of Intentions: Are Courts and Tribunals Really Providing Accessible Service to People With Disabilities?
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Episode 37: With the Best of Intentions: Are Courts and Tribunals Really Providing Accessible Service to People With Disabilities?
Broadcast Date: November 4, 2021
Summary
Are courts and tribunals really providing accessible service to people with disabilities? Michael Gottheil, Chief of the Commission and Tribunals of the Alberta Human Rights Commission, and Michael McNeely, Family Lawyer at Rogerson Law Group and first deaf-blind lawyer to graduate from Osgoode Hall Law School at York University, are seeking to answer this question in the third and last episode of our series on disability. Along the way, they discuss the reality in the justice system for people with disabilities, how courts and tribunals still struggle to provide accessible service to them, what challenges they are faced with on a day-to-day basis and how they can work and evolve in the sector of Law.
Audio transcript is available below.
Did you like this content? Listen to our podcasts with Michael McNeely about disability: Podcast #34 on Barriers to Access to Administrative Justice for People with Disabilities and Podcast #35 on Disability Inclusion: Access to Administrative Justice, Post-Secondary Education and Community Activism
Guest
- Michael McNeely, Law Graduate | Human Rights Advocate | Teacher | Accessibility Consultant
Michael McNeely is a Family Law Attorney at Rogerson Law Group. He is the first deaf-blind lawyer to graduate from Osgoode Law School. He has also been a film critic since 2014. He has taught advocacy skills at the Canadian Helen Keller Centre, is attempting to finish a documentary on deaf-blind advocates, and is an accessibility advocate who works with those in the film, theatre, transportation industries. He was formerly on Sensity’s Board of Directors and is a member of the Toronto Accessibility Advisory Committee.
Host
- Michael Gottheil, Chief of the Commission and Tribunals of the Human Rights Commission
Michael Gottheil was appointed Chief of the Commission and Tribunals of the Alberta Human Rights Commission and began his term in August 2018.
Mr. Gottheil brings many years of leadership experience in the Administrative Justice sector, having previously served as Chair of the Human Rights Tribunal of Ontario, and Executive Chair of both the Environment and Land Tribunals Ontario and the Social Justice Tribunals Ontario, which is comprised of eight tribunals. Mr. Gottheil is a firm believer in justice, as a means and an end, and has worked to foster collaboration among those in the legal community, as well as civil society more broadly.
A graduate of Osgoode Hall Law School, Mr. Gottheil practiced labour, employment and human rights law for close to 20 years. He is a frequent presenter at conferences and seminars, and has written widely on administrative law, institutional design and alternative models of dispute resolution. Throughout his career, he has worked on initiatives that seek to make justice more accessible, efficient, effective and responsive to the needs of the public. He is particularly interested in how organizational capacity and community partnerships can help build an effective and equitable justice system.
Through his professional work, personal journeys and as a person with a disability, Mr. Gottheil continues to embrace the values of empathy and fairness as well as the richness of our diversity and inclusion as a basis for our shared humanity.
Audio File Transcript
This is In All Fairness presented by the Canadian Institute for the Administration of Justice (CIAJ)
Michael Gottheil: Hello! My name is Michael Gottheil. I’m the chief of Commission and Tribunals of the Alberta Human Rights Commission and former Board Member of the CIAJ.
I’m pleased to host this third in the series of podcasts on disability and the justice system with Michael McNeely, family and human rights lawyer and disability rights activists. Hi Michael!
Michael McNeely: Hi Michael, it’s very nice to meet you too. And we’ve met before, but I’m happy to be here today.
Michael Gottheil: Thank you. So, one of the things I thought we might talk about today is, you know, the reality in the justice system for people with disabilities. You know, it’s not like accessibility and accommodation is a new thing. The Americans with Disabilities Act (ADA) was passed almost 30 years ago (1990). The Ontario funds for accessibility for Ontarians with Disabilities Act (AODA) was passed, like 15 years ago (2015). And, and we’ve been talking about accessibility and accommodation for many years and people are committed to it. And yet it seems that Courts and Tribunals still struggle to provide accessible service to people with disabilities.
So, I’m going to kind of have a bit of a discussion about that Michael and maybe we could start, I know you have not only appeared and practiced, I mean before the courts, but you’ve also been a complainant before the Human Rights Tribunal of Ontario, and I have had some challenges there. Maybe you could tell us a little bit about your story.
Michael McNeely: Yes, I would love to. And so, basically, in my experience, with the Human Rights Tribunal of Ontario (HRTO) started when my law school was on strike. I was looking for something to do with my time, because I really missed my legal education and I wanted to make sure that I was still polishing the skills. And then I came to realize that I was frustrated with the use of UBER. Because ultimately, whenever I requested a ride, it was even made harder during the strike. Whenever I requested a ride, the drivers would call me, and I’m deaf. So, I couldn’t, I couldn’t answer the phone. And I felt a lack of independence and I felt infantilized because I had to sometimes go to strangers, so I had to go to my friends and ask them: “can you help me talk to this driver. I need to meet, I need to go somewhere”. Because the driver would call, needing the instructions right but I can’t give them the instructions. And sometimes I was trying to text them. But when I texted them, there was no guarantee that they would see my messages. And so, a lot of times the drivers basically drove away, and they left me without a ride. Or if they did pick me up, some of them were hostile towards me, because they didn’t really understand my deafness. Some of them thought that, because I’m deaf, I shouldn’t be using the app, or I shouldn’t be going for rides or because I’m deaf, I was amazing, because I was in law school, and so I got all sorts of sentimental and, I guess stereotypical stuff thrown at me, and I didn’t ask for any of that. I just wanted to go for a ride.
And so, this anger and this frustration and my lack of recognition for the things that I’ve gotten through ultimately led me to fill a human rights complaint, because I figured, you know, maybe now if I figured how hard could it be. And it’s not that hard to be to be honest. The hard thing is the lack of accommodation within the Human Rights Tribunal itself. And I also didn’t mention that I expect a position of privilege, because I come from a background where I was encouraged to study the Law in my free time, even before I went to law school. So, I had some advantages that others didn’t have. But I really struggled with the completion of the form because it was in a PDF. And, as you know Michael, PDFs are not accessible for those with low vision, which I also have. And, ultimately, as I did mention before in the CIAJ roundtable, there was the form, I got a message saying that my current settings were not compatible with the version of Adobe that I needed to have. And then, as I mentioned before, I called for support and the HRTO staff could not support me because they didn’t know anything about the functionality of the form. So, there I was, I’m asking, I’m doing this process and I’m asking for support to do this process. I’m doing this process because I’ve been discriminated against. But then I’m being discriminated against a second time, because the process itself is discriminatory.
Michael Gottheil: I guess, you know, I feel every time I hear your story about your experience at the HRTO, I feel particularly shabby because I was, beginning of 2009, the Chair of the Human Rights Tribunals of Ontario and right up until 2009 then I was back as Executive Chair of Social Justice Tribunals which HRTO was a part of. And we put a lot of effort into what I thought was a comprehensive accessibility and accommodation policy and giving training to the staff. We had a point person who was specifically trained and was the reference person if there were any particularly complex disability related needs.
And yet, here you are experiencing real barriers and the barriers that I would say would be pretty simple to remove. Why do you think that even organizations and institutions that are committed to accessibility that may have policies still drop the ball when it comes to providing accommodation for individual parties?
Michael McNeely: If I can say something completely controversial, I would say that maybe, a lot of people don’t really look at people with disabilities as being people, period. I think with a surface-oriented model, the people with disabilities are the end users. And so, if you think about the ODSP (Ontario Disability Support Program) in the Toronto region, and probably now with Covid you have those plexiglas windows. Those are the windows that separate the administrators from the people that they’re supposed to support, I think for lack of a better word, this social distancing. People think that there’s no people with disabilities within the system or there no people with disabilities that require the use of the system, even though the system was built for those people in mind. So, I think it’s a bit of social psychology that I’m throwing at you. But I think one of the things that would have helped when you were talking about that support person in 2007 and 2008. That point person that was going to be there to address all the accessibility concerns, it would have been nice to know that person’s name, it would have been nice to know that person as a person, you know, to have a bio page online, even though that would lead to a greater, I guess a greater difference from the HRTO as it is now because it’s very impersonal. But I think to serve people with disabilities, you need to get personal. So, for example, you would say: “Oh, this is Susan, she’s been working in the legal sector for 20 years. She has a disability, and she’ll be here to help you with any disability needs”. I think, I think that message would go a long way, because I feel like right now it’s very sterile, right now, it’s very matter of fact, and it doesn’t seem to matter who you are.
Michael Gottheil: It says to me to, that organizations, you obviously go through staff, people turnover, people retire, people move on to other jobs. And the last few organizations have an act of ongoing commitment. They say not just ongoing commitment to accessibility, but an active ongoing commitment, understanding that there needs to be refresher courses, there needs to be updates, technology changes. We have to look at who users are and who isn’t coming to the tribunal or the court. And what gaps might be there, and constantly refresh our accessibility accommodation efforts, you know, as they say, there might be organization that might just be running on its past successes and running on fumes, but the current experience for people just, you know, isn’t there.
Michael McNeely: I agree with you. I think it’s also important to be upfront with the training and with the professional development that administrators do. I think I might even go so far as to say: “so and so attended this training on this date, and this is what they learned”. And I think this might be a great opportunity to open up transparency. So that, for example, if the training apparently was not effective. Then, it could be made known to the public that this training was not effective, and that the HRTO or others administrative staff are doing makeup training to make up for that lack of effectiveness because I want to know who’s given the training, I want to know if people with disabilities are giving the training. Because if people without disabilities are giving the training, then that means there is a voice that’s missing at the table, that means there’s a lack of job opportunities. So, I would really like to see a process in which people could I guess submit training and opportunities to the HRTO staff. And they could say, for example, I’m with ARCH Disability Law Center and we’re providing trainings for judges and administrators. So, here it is please come. And then of course, there is mechanisms in place to federal the training, or to ensure that the people who give the training don’t have any conflicts of interest. But I think that might be a first step in the right direction.
Michael Gottheil: That’s a great idea. I want to ask something else, kind of along the same lines, I was wondering, do you think there are things inherent in the law and the justice system that makes accessibility and accommodation particularly challenging? And one of the things I’m thinking of is the court administration tribunals there are providing a service that’s under human rights legislation to their service providers. And yet, you know, one of the challenges is that if you’re a party on one side and you’re seeking accommodation the question may arise. Well, whether and to what extent the other side of the disputes gets to chime in on what that accommodation might look like. And what about privacy rights, and those sorts of things? You know, if you’re just going into a store, you need accommodation. Well, it’s not really up to other customers views as to whether you should get accommodation. But some might say well, an accommodation for a plaintiff actually might affect the rights of the responded. Any thoughts on that Michael?
Michael McNeely: Yes, I think in one of the earlier podcasts, I think it was with Professor Bryden. I did mention that there was this discomfort, if you will, about emailing the HRTO and then emailing to respondent as well to indicate that in need of accommodations. And so, to your point, Michael, I would mention that, having that support person in place so that point person to take care of accessibility should be done without involving the respondent because you could have the issue that the respondent did not accommodate the plaintiff. Yet, the plaintiff still needs those accommodations at the HRTO. So, I think it’s even more humiliating, or even more depersonalization or dehumanizing to have to talk to the respondent and then to talk to the HRTO and ask for your accommodation that they may have rejected in the first place. I think the first, the first level is a level of education and raising awareness to those plaintiffs or so to those potential plaintiffs about how they should be talking about their desire to be accommodated. That’s why I kind of missed the Human Rights Tribunal of Ontario so learning center or some support center, because I believe there were more hands on in previous years, with more educational and raising awareness. But, now, I don’t quite see that, I don’t quite see the information exchange taking place, and that worries me because I feel that there’s more education that needs to be done. And that those potential respondents are not going to be doing the education themselves because they don’t want to be sued. So, it’s a conflict of interest.
Michael Gottheil: Right, you know, from my perspective where I have sat for a number of years as an adjudicator and chair of tribunals, it’s always, you know, if you care about accessibility accommodation, particularly in tribunals that are addressing the needs and serving individuals who are traditionally marginalized and disadvantaged people with disabilities you’re, you’re always sort of balancing the reality that, you know, you’re already in the judicated process, but you don’t want that imbalance of power that comes from marginalization to affect the outcome. So I give you an example, I’ve had situations in which complainants to the human rights complaint have said, for example, because of a particular mental disability, they don’t want to be in the same room as the responded in a hearing or, you know, could they do, be cross examined by video or telephone, traditionally responded council would say absolutely not that would undermine our rights and press against that. Of course, now, during the pandemic, everyone’s doing hearings by teleconference and video conferencing, and it doesn’t seem to be that much of a problem. And so, in the, in the pain you get to wonder whether in the past, respondents or parties were just using those kinds of arguments out of ignorance, or as a litigation strategy. I want to ask you, Michael. I know you practice as a family lawyer, and as a human rights lawyer do you ever feel that the opposing side is taking advantage of you and taking advantage of your disability?
Michael McNeely: That’s a good question. I hope that they don’t take advantage of my disability, but I do know that they may take advantage of my lack of experience, because I just got called to the bar, on May 21st, 2021. My disability doesn’t come up as often as the client’s own issues. And I much prefer to focus on the client to ensure that I’m delivering the right amount of service that I’m supposed to as a lawyer. However, there’s the question of what I can ask for, and what am I not getting? How do I know what I can ask for if I haven’t been taught what I can ask for? So, for example, in this example that you gave, when you were talking about one of the plaintiffs I guess, wanting to not be in the same room as the respondent, I don’t know if I could ask for that. Maybe I would like to ask for that now, but I just don’t know because this is the first time that I’ve heard of it. It makes sense to me that, for example, a domestic violence victim may not want to be in the same room as the respondent. But perhaps I could have a disability where I don’t want to be in the same room as the respondent, but I just don’t know how I would qualify for such an accommodation. And so, I think that, that leads back into the lack of awareness about what we could be asking for. I think, with the focus on being impartial and impersonal we lose track of what makes everyone unique and what makes everyone have different needs within the system. And so, that’s a long-winded answer to your question.
Michael Gottheil: That’s really interesting what you say because I know, and we know as, you know, as people with disabilities, quite independent of being lawyers, maybe, especially as being independent of being lawyers that people with disabilities often struggle with loneliness, feeling like the other, not feeling part of mainstream society, being excluded. And there’s been a lot written about people with disabilities what, you know, sensory disabilities, other kinds of disabilities. What is so important in our lives is that humanity, that human connection, the kindness that can come with an appreciation of everyone’s gifts. And again, I wonder, is there something about the law which, you know, we’re supposed to be stoic and impartial, not show. Not that you’re supposed to be mean, but you’re not supposed to necessarily show kindness, there’s an aloofness. You think that makes law difficult for people with disabilities?
Michael McNeely: I think, ultimately, there’s a responsibility for those who work within the law to collect people stories. And I think by having your story told, it alleviates some of that loneliness that you’re talking about. So, for example, I’ve been through a difficult experience, and I want to tell you about it. I don’t necessarily want you to do anything about it. But I just want to ensure that my experience is heard, that my experience is understood. And I really think that goes a long way for people with disabilities because I don’t think we’re often heard and understood, we’re often pushed aside. And our stories are told not to matter. And so, I think the whole point of having a tribunal is to allow us to come and tell our stories. But if we don’t feel like we can come and tell us our story, then, what is the purpose of it in the first place? So, I do believe that there is a place for attentive listening, there’s a place for, I guess, empathy, that doesn’t necessarily require taking sides. It just requires understanding and mutual respect. And unfortunately, that understanding and mutual respect needs to come through in the application forms themselves. It needs to encourage people to get through that process because people will go through the process without much of a struggle.
Michael Gottheil: Yeah, you know it’s interesting again that you’re talking is, you know, in my role as an adjudicator, mediator, as somebody who’s responsible, has been responsible for the overall operation of busy tribunals with, you know, massive caseloads and that sort of thing. It’s easy to, you know, even if you’re committed to accessibility accommodation to, what you’re saying, to attentive listening and active listening. I think we have to constantly remind ourselves, those of us who work, you know, sit on the dais, sit in the adjudicator chair because the just institutional pressures to get cases done. And, you know, I think sometimes, particularly in human rights people want to tell stories that are really relevant to their experience, but an adjudicator might be thinking oh this is not within my jurisdiction or if this is a bunch of facts that just not relevant to those narrow legal issue that I need to, you know, need to decide. And there’s a tendency to lose patience and I get frustrated and move people along. And I think we have to remember that yes, there are those institutional pressures and imperatives but we’re still dealing with real people with problems and issues that they’re seeking a resolution for. So, I think your point is well taken that we need to show empathy, not just on the surface but in everything we do.
Michael McNeely: I remember I used to volunteer at Anime North, which is basically a festival for anime lovers. And, as you probably know some of those people are probably bullied from school and other things and I remember that one day somebody came to me and asked me where the bathroom was. And the bathroom was just behind me. And I thought it was rather obvious, but I think it was when my support staff that told me, you know, that person’s kind of lonely, that person just wanted to talk to somebody, that person just wanted a social interaction. And I’m not saying it’s the place for the HRTO to provide social interactions, but I think it is the place of the HRTO to show that they care and that they listen, by virtue of transparency, by saying, you know, we did this training on Autism Awareness today and tomorrow, we’re going to do a training on visual impairment, and so forth and so forth. And then people can talk about those trainings, people can say well, you know, I really liked that autism training, but did you hear about this other autism organization I think that, maybe, that’s a way for people to get involved. And that would also continue to, to follow the HRTO mandate, because I feel like, you know, there, there’s a transparency piece but there’s also a bridge, a bridge that’s not there, because people with disabilities haven’t been consulted traditionally or paid for their labor. So I feel like there’s a lot of missing pieces there.
Michael Gottheil: Part of what I think we hear and I think it’s positive or this commentary from government saying we need more people with disabilities on the bench, we need more people with disabilities on tribunal, we need more diversity on the bench. One of my pet peeves is a couple of questions on the federal judicial application. This is the questionnaire that people who are seeking appointment to the bench, that are really important, judges have to fill out a questionnaire and there’s a section called health and wellness and, in the introduction is something like, you know, the work of a federally appointed judges is very busy and stressful and people have to be in sufficiently good health and fitness not to sacrifice their well-being and then one of the questions says: “Have you within the last 10 years experienced any significant health problem?”. And another question says: “Do you have any impediments that you think would interfere with your ability to perform the role of a judge?” And it always struck me as somebody with a disability that, not to mention as a human rights lawyer, I always scratch my head about those questions. As a young lawyer, starting out, a person with disabilities, how does these questions make you feel?
Michael McNeely: I have to say that I read that you were going to ask me this question earlier. Because you sent me an email, and I was angry then, and now I’m still angry because it’s like I heard these questions for the first time, just by having read it ahead. First of all, it’s none of anybody’s business. It’s none of anyone’s business if you have a mental health disability. As long as you can perform the standards of the job. And the question about being a judge I guess if I can, if I’m allowed to speak about judges because I’m always in awe of them. They do a lot of work that we haven’t done yet as lawyers. But the question is, you know, can I tell you Michael that I’m going to me healthy tomorrow. I can’t tell you that, I could die tonight. I could catch Covid tomorrow. I can’t be a lawyer, if I’m in the hospital I can’t practice, I can’t respond to emails. So, I don’t think a judge can guarantee that he or she will be healthy tomorrow. But that doesn’t even touch on the biggest problem about this. I can still be healthy, and I can still have depression. I can still be healthy, and I can still have schizophrenia. I can still be healthy, and I can have bipolar, and so forth and so on. And this equates, this looks to me as it equates health with not having any mental health issues. And I feel that’s very sanist to use that term that you may have heard by another Michael if I’m not mistaken. So, the question here Michael is, how am I supposed to answer that? because sure, I’d like to be a judge. So how would I answer this question? Would I have to talk about the fact that my uncle committed suicide, maybe less than 10 years ago? Although I don’t want to do the math. Do I have to talk about how I lost my grandparents in different ways and how I’m traumatized by their deaths? Do I have to talk about how I went on different kinds of medication, how I tried to get counseling? But ironically was not identified as a deaf person, and they called me. This is the story of my life, people calling me and me not being able to answer the phone. So, as a result, I wasn’t placed on the waiting list in time to get what I needed faster. I mean, the question is, well, where do you say it’s their business to know. And it just seems fly on the face of human rights developments. And so, I guess to summarize my long windedness again in this podcast, I would say, I want you, not you, but the people making these questions they might prove beyond a reasonable doubt that my mental health is their business. I think ultimately, we have to trust judges and lawyers to and other administrators that if you’re having a bad day, you have a bad day, you try and take care of yourself. If you can’t take care of yourself, then you do what’s right.
Michael Gottheil: You know, I really get what you mean and especially that questions as you know, do you have an impediment that would prevent you from performing the role? well you know Michael you don’t use a regular phone, you know I can’t read regular print. Is that an impediment? You know, it all depends on what level of accommodation the courts would provide to a judge, and there’s really nothing in the judicial application that indicates that they do provide accommodation and, of course, we could say, well of course they will provide accommodation because, of course, the Accessible Canada Act and the Ontario’s Accessibility for Ontarians with Disability Act, but I guess the question is the issue is reading those questions. How many people with disabilities, how many women would just say I’m not even going to bother because obviously they have some preconceived notion of what you need to have, and what you need to be in order to be appointed to the bench?
Michael McNeely: Yes. And you know the plot twist of all this, Michael, is that you’re probably the first person of judicial branch that I’ve met who has a disability. I don’t know anybody else that has a disability. So, this whole podcast is for you and I to meet. And it’s a great opportunity, don’t get me wrong, but like you said, it’s kind of a lonely place, because, you know, you’re in Alberta, I’m in Ontario, so…
Michael Gottheil: Michael, let me ask you one final question before we wrap up and this has been just a wonderful experience for me and I’m sure for all the listeners. One of the things we know as people with disability that we often and I want to ask this, you know, for others out there, people with disabilities who are in the law or might want to pick up law as profession or want to see how it feels to be a person with a disability, working in the law. But you know one of the things we know is as, as people with disabilities we’re often put up on a pedestal. We’re seen as, we’re there for inspiration, it’s like: “Wow, that’s really amazing that you’ve been able to go to law school and become a lawyer or tribunal chair, and you have a disability” we’re seen as overachievers and then at the same time we’re often, I would say, under potential, low potential in the sense that people would say: “Wow, like you were able to finish law school and you have a disability that’s really amazing. It makes me feel like I can feed myself, I’m able to actually take the bus as if that’s my greatest achievement”. So how do we get through the law which again is, you know, there’s lots of people who have a lot of energy and there’s a lot of people with egos and people trying to get ahead and win. How could we, you know, manage through that sort of dilemma, where we’re seen as people who have high expectations on us and there’s low expectations on us?
Michael McNeely: Well, I think that could be that could be the subject of another podcast all together. A professor told me in law school that I was brave for going to law school. And I was in an UBER of course when the driver told me that he know a deaf blind person, and the deaf blind person stuffed the mattresses for his parents, and that the mattresses were very comfortable. And to no offense to that deaf blind person, I hope that deaf blind person had a good life, I’m assuming that they are passed on now because the driver was quite old, and his parents would definitely be passed on by now. But I think the end of the day is the inspiration doesn’t help, the inspiration doesn’t alleviate those barriers that are supposedly inspiring to have overcome in the first place. So, if you’re inspired by someone with a disability, I would just ask: “what exactly are you inspired by?” And does that person deserve to be a source of inspiration? because maybe they deserve not to be the source of inspiration, and for that failure to be gone all together. Like I just mentioned in the last question, it’s kind of a lonely place being a person with a disability in this profession, because that’s not quite a lot of us here. And so, if you’re inspired by us being here because there’s not a lot of us here, then the question is: “Should there be more of us to be here in the first place?” And that’s how I deal with it. I just try to keep it grounded. I just point out some of these absurdities that I face on a day-to-day basis. Now people say the most outlandish things and I just write it, write it down to remember for another day, because ultimately, there’s not much else I can do. I have been tremendously inspired to use that problematic word, I’ve been inspired by my clients, because my clients see me as a person, they don’t care about my disability, the expect services to be delivered within a reasonable amount of time. And that’s what I try to do.
Michael Gottheil: That a great way to send off and end off this podcast Michael. Your perspective, thinking about our clients the range of clients we have, the duty we have to the public that’s ultimately why we do this work. And regardless of who we are and where we come from, of course, we all bring something special to our work and we need to be aware of those special gifts we bring. And Michael, it has just been a pleasure having this discussion with you. And I wish you all the best in your practice and I know we will get to work together.
Michael McNeely: I hope we’ll get to talk together again soon and meet in either Alberta or Ontario.
Michael Gottheil: Thank you so much, Michael, have a great day.
Michael McNeely: You too.
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