Episode 34 (En anglais): Barriers to Access to Administrative Justice for People with Disabilities
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Episode 34 (En anglais): Barriers to Access to Administrative Justice for People with Disabilities
Broadcast Date: October 14, 2021
Summary
In this episode, Professor Emeritus Philip Bryden meets with human rights advocate and accessibility consultant Michael McNeely to discuss barriers to access to administrative justice for people with disabilities. Together, they explore the obstacles that Mr. McNeely himself may encounter while practising law, and how the justice system could adapt to better meet the needs of his clients.
Audio transcript is available below.
Guest
- Michael McNeely, family law attorney, human rights advocate, teacher and accessibility consultant
Michael McNeely is a Family Law Attorney at Manteghi Law. 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
- Professor Philip Bryden, Q.C.
Philip Bryden, Q.C. is a Professor Emeritus at the University of Alberta. Prior to his retirement in June 2021, Professor Bryden held the TransCanada Chair in Administrative and Regulatory Law at the University of Alberta’s Faculty of Law. From 2015-2019 he was seconded to the Government of Alberta where he served as Deputy Minister of Justice and Solicitor General and Deputy Attorney General of Alberta. He was appointed Queen’s Counsel in 2016. He was the Wilbur Fee Bowker Professor and Dean of Law at the University of Alberta from 2009-2014, and the Dean of Law at the University of New Brunswick from 2004-2009. He was a member of the Faculty of Law at the University of British Columbia from 1985-2004. His research and teaching have been primarily in the fields of Canadian administrative and constitutional law, and he has been a frequent contributor to continuing education seminars for judges, members of administrative tribunals and lawyers.
Audio File Transcript
Professor Bryden: Hello and welcome to the first of three CIAJ podcasts on improving access to administrative justice for people who have disabilities. My name is Philip Bryden, and I am an emeritus professor at the University of Alberta Faculty of law. Today we’re going to focus on some of the barriers that people who have disabilities come up against when they try to access administrative justice systems. I’m joined today by Michael McNeely, who is a deaf-blind lawyer, living in Toronto. Michael has experience with these challenges, both as a result of his experience as a complainant at the Human Rights Tribunal of Ontario, and through his work in assisting clients who have disabilities with their administrative proceedings. So, thank you very much Michael for joining us.
Michael McNeely: Thank you very much for having me professor, it’s an honour and a privilege to be here.
Professor Bryden: Perhaps we can begin by talking about your personal experiences. Michael, would you be willing to start us off by explaining what types of accommodations are necessary to enable you to participate effectively in proceedings such as ones before the HRTO (Human Rights Tribunal of Ontario) in which you are complainant.
Michael McNeely: Certainly; As you mentioned, I am deaf and blind and the combination of those disabilities kind of creates another disability, which we call deaf-blindness. As a result of that, I have different needs that are specific to me, and sometimes, one of the first things I have to tell other people, is that what works for other people doesn’t necessarily work for me. Just because I have told you that I’m deaf-blind, doesn’t mean that you know exactly what’s my level of vision and my level of hearing. So it does require some specificity to address my needs. My attendance at the HRTO, I always, fundamentally, require closed captioning. And I prefer that the closed captioning to be provided by a human. Captionists as opposed to artificial intelligence. The reason for that is because I feel that human captionists can provide far more accuracy than artificial intelligence can at this time.
As you may have noticed from hearing me speak I do have an accent. And sometimes that accent can make it hard for the artificial intelligence to pick up. And the last thing that I want is to be in the proceeding and to be looking at my own closed captioning and to be reading things that I am not saying, I think that might be quite stressful for me, as a speaker and distracting as well. So that would be the first accommodation I’m asking for: closed captioning.
Now, it is important to indicate to all people involved that closed captioning has a bit of a delay. Because once you hear what is spoken then you still need time to type it. So even if you’re very fast, we’re could be talking about a five second delay or a 10 second delay. That means that if the administrator or arbitrator or even judge is asking a question, I require some time to answer that question, because not only does the captionist have to type the question, but I have to read the question as well. I have to understand it, because if I’m not understanding auditorily, I am understanding the written word, and that’s where my vision challenges kick in. Because I may have trouble reading, if I can’t see the words that are on the screen.
I think, just to make a long story short, it’s important to think about my senses, operating distinctively from each other, and the additional cost of stress from attending the proceeding and affecting all my senses working. So, even if everything is working well from a technology standpoint, it doesn’t mean that I am working well. I may be stressed out. I may be wondering what’s happening. I may not be in the best shape to read that question and to answer that question. So thankfully to my experiences being a lawyer I have had practice, but I can only imagine that other people who are new to administrative tribunals would struggle. And all that was just in regards to closed captioning and telling everyone, I need a few seconds in advance to respond to the questions or to the statements that have been put before me. I have noticed that sometimes opposing counsel can interject before it is my turn to speak, because they think that perhaps I don’t have anything to say. So I know now when doing things on zoom that I can put my hand up on zoom and the arbitrator or administrator or judge can ask me for what I have to say, I’m still not 100% confident about that, because I’m not sure if they can see the hand raising. But for now, it seems to be working okay. And I haven’t really been prejudiced because of someone speaking before me I always get a turn at some point, but sometimes I wish that I was able to respond quickly, but I can’t as a result of my disabilities.
So, I think that covers the attendance at the tribunal, but the other side would be at some access to accessible documents that have been used by all parties of the tribunal. So with regards to human rights management, and what the documents been used to be in extra-large print. And that large print needs to be formatted in such a way that it’s still readable within the confines of the document. So for example, if I’m looking at a legal form, you will notice that they’re often very busy, they’re often very crowded, and so once you start opening, once you start enlarging those words, then the words, um, the words become too big for the purposes that they’re in. And the document just becomes unreadable. So I really need administrators, or staff, staff workers to be considerate of that enlarging needs to be strategic and it needs to be easily readable. So, I think that would answer your question, in short, professor.
Professor Bryden: Thank you. Thank you very much Michael, that’s extremely helpful and I think it shows, even for somebody as experienced as you there are a variety of challenges and individuals who aren’t represented by someone with your experience, will see those barriers increase significantly.
So perhaps we could talk about some of the experiences that you have had at the HRTO and, of course, the HRTO is an organization that is dedicated to accommodation of all people who have disabilities. So, one would expect a high standard of performance from them but nevertheless you have had some negative experiences there and perhaps you could tell our audience a bit about some of those experiences.
Michael McNeely: Yes, thank you professor, I would be happy to speak to those experiences. I think, first of all, I have to recognize the privilege that I have to have the time to afford to pursue matters before the HRTO. I don’t believe that HRTO would be accessible to many with financial difficulties because it does require a few days off, so to speak, to pursue your matter. And unfortunately, it’s only open from nine to five when most people work, or I have to look for work or have to find social assistance. So, that is the privilege that I’m speaking of. And, even with regards to the time that I’ve had to pursue matters at the HRTO, I still found a lot of delays. And I found a lot of confusion with regards to my needs. And how matters are going to be scheduled. So, for example, in the last year, I’ve had two matters go forward, and I’ve had to interrupt the normal course of events to ask for closed captioning, because it was not clear to me when I could be asking for that. So that meant that in one matter that I was pursuing a hearing date had been scheduled. And then I responded may I have closed captioning for this date. And then the next email I received the hearing date had been postponed to have closed captioning incorporated. And I was a bit frustrated with that because I felt that the date that had been chosen was already far off in advance that closed captioning could have been found for it.
And so, my, my matter was delayed, even further to find closed captioning. Now, I know that this may be a bit subjective of me, but all these emails have been shared with opposing counsel, of course, because that’s part of the HRTO process, that no email to the HRTO is in a private, because we don’t want the allegation of any sort of favoritism or any sort of undue process. But I’m asking for an accommodation, and I think the most part would prefer that to be private. But I do understand the issue coming from both ways. I just wish that you know there was an accessibility coordinator. An accessibility intake person that I could request privately for accommodations, without the opposing counsel hearing about it.
Thankfully, in the matters that I am pursuing, I know that the opposing counsels will not use my disability against me. I just don’t know them. And I feel, I always feel uncomfortable sharing such personal information.
And I believe that you and I have spoken about another issue that I experienced at the HRTO. And that is the use of PDFs or the use of Adobe Acrobat, but not even that it’s the use of an outdated document that is required to fill out the application. The application is the document. And I was struggling for so long to try and fill it out, or to even print it out, or even to see it, but it was becoming more or less, um, counter-intuitive to the HRTO process.
As I mentioned the HRTO is there as a symbol of accessibility, as a representation of inclusion. And yet, I can’t do the first form, I cannot do it. I cannot do it because of the lack of technical expertise that I have and I cannot do it as, as a result of the combination of disabilities that I face.
But it wasn’t just me, ironically enough, it was the staff at the HRTO that could not do their own form. So, it was a bizarre circumstance and I had to check and see if I was in the twilight zone, because the person that I had my support staff call and ask for assistance had no idea how to solve this problem. And there was no formal « who », there was no « we’ll get back to you, » no it was just « keep trying and let us know if you still having trouble in a week’s time next time. »
I frankly have not experienced that level of customer service in any business or private organization. I felt like my experiences were just not being valued, or that my, my struggle was not necessarily being appreciated, because, you know, first of all, as I mentioned, it does take some time to do these forms. And secondly, it does take a lot of effort to talk about yourself in such a personal way. And if you can’t even access those forms to gain entry into the tribunal in the first place. Then I shudder to think about how many people are not having their needs met and how many people are not able to have their cases go forward.
Professor Bryden: Yes, of course, not everyone has your determination and willingness to push to overcome those barriers, so we have really no idea how many people give up at some point, just because it’s, it’s too difficult to get over that first threshold.
Let’s move on to talk about some of the experiences that your clients, sometimes have and I particularly wanted to ask you about something that we’ve talked about and that is the importance of a support person for people who have disabilities and sometimes tribunals are reluctant to allow people to bring support people to different aspects of their proceedings or whether it’s a mediation or a hearing or that kind of thing, particularly if they’re not lawyers. Could you talk a bit about the importance force of support people for people with disabilities in administrative proceedings?
Michael McNeely: Yes, I’d be happy to. I think, when it comes to support people, I think we do have some nervousness, and we do have some anxiety because we’ve heard of stories, such as the movie « I care a lot. » We’ve heard of stories where people who claim to help other people with disabilities are actually taking advantage of them. And so, we typically take a push, and we may look at the support person suspiciously. But I think that is wrong.
However, I do think that there is a need to qualify support persons and to ensure that they’re doing the jobs that they’re supposed to be doing. And if they are doing the job they’re supposed to be doing, then they end up being supportive of those who are engaging in administrative tribunals.
I think fundamentally we’re looking at a society that was not created with people with disabilities in mind.
And as a result, those people with disabilities require support services or support people to access the same levels of service that other people have. It can even be a microaggression, such as that somebody refuses to speak to a person with a disability, but speaks to their support person that indicates, you know, the inequality at place in our society.
And because of that mental anguish in going forward, sometimes the simplest thing to do is to allow it to continue. And for that person who is speaking to the support person, just to get it over with, just to get that situation over with, so that the person with a disability can move on with their lives as opposed to, as opposed to, you know, educating that person with them and they are about the AODA the customer service standard, and how one should treat people with disabilities.
Sometimes, if you’re just talking to a person, trying to pay your parking ticket. You just want to get it over with and move on with the day. So, to some degree a support person could allow that to happen. To some degree a support person can smooth over the social interaction.
But I believe that support people can play a more important part than just that. I believe that support people can take notes. I believe that support people can provide their insights, provide opinions, ask questions in a different way, and clarify complex language, provide safety when safety is important. And also just to be there as a sounding board. And, a shoulder to cry on if that happens to be the case, there are many avenues in which the support person can be supportive.
But again, it needs to be a qualified and it needs to be sure that, first of all, the client with a disability wants the support person present. And secondly, that the support person is doing their job. Because it is a job. It’s always a job even if you’re doing it voluntarily, you’re still working. That person needs to be qualified as I mentioned, and also needs to be professional. So, I think there needs to be more transparency with the rules and regulations about how support persons actually work.
Professor Bryden: Thank you. That’s very helpful, Michael. You know, another type of support person obviously is legal counsel. They can’t play exactly the same role, but we know that getting affordable legal representation is a challenge for many people who are seeking access to administrative justice. Are there particular challenges that you see people with disabilities facing in getting affordable legal representation in their matters?
Michael McNeely: Yes. I believe that the Bar in general has much learning to do about people with disabilities. I believe that the bar needs to be educated on the customer service standard, because it does apply to them and how they provide services to people with disabilities.
I say that respectfully, because I have faced many people that are surprised that I’m a lawyer, because I have a disability. And I often wonder why they underestimate people with disabilities in such a way that we’re not even perceived as being able to be lawyers. And I would mention that, in the previous question when we talked about support persons. And I would also, again, indicate that the support persons, not as lawyers, but as support persons, they are still needed, in some cases, to talk to counsel.
But again, the support persons need to be qualified, and again, agencies should not be taken away from the client, with the person who is the person with a disability. There are many disabilities that do not affect our ability to think and to process information, but maybe the disability does affect our ability to speak, or to communicate. But that doesn’t mean that we cannot speak, or we cannot communicate. And we should not have the words taken out of our mouths, simply because we speak or communicate in a different way.
So, I believe that’s the main issue with regards to clients with disabilities, working with lawyers, is that the lawyers are obligated, under the law, to ensure that the clients have all their accessibility needs met. But at the same time, it’s the lawyer that needs to tell the client that they’re obligated under the law to meet the client’s accessibility needs. So, it’s a, it’s almost a conflict of interest, because the client is the one that needs to hold the lawyer up to a higher standard of accessible customer service.
But if a lawyer doesn’t do that. The lawyer could end up using their power to intimidate or to coerce or to indicate that this is just the way things are, and they have to do what I say in order for you to win this case, then the power dynamic is unfair for the client with a disability.
And so, in my experience working with legal aid clients and clients with low income, I find that some of them are afraid and suspicious of lawyers. And frankly, I have reasons to agree with them.
Professor Bryden: Can you provide any sort of advice to lawyers who are acting for clients with disabilities, about what steps they should be taking to ensure that they’re representing those clients effectively?
Michael McNeely: So, I mean first of all I would ask the client with a disability, how they define themselves. How they disclose themselves, what kind of disability do they have, what they’re comfortable with when answering that question. If they’re not comfortable with answering that question, I think that’s an avenue to explore further, while respecting the confidentiality and integrity of that client.
But if they do answer the question to say, you know, Professor, pardon, I’m deaf and I’m blind, then the next question would be, how I can accommodate you, how can I meet your needs. Am I meeting your needs well right now or how can we do a better job at that. And I think this is one of the issues that I ran into, interestingly, a while ago is that I know that, lawyers, bill by the hour, so to speak. Um, but it’s possible that you may have with cerebral palsy or a client who takes a long time speaking. A client that needs to go through several methods of communication, i.e with an interpreter. Billing by the hour no longer makes sense. And it’s no longer equitable to bill by the hour, because maybe, maybe in one hour, you’ll get a half hour worth of information.
So, in some degree, accommodating someone with a disability means accommodating someone with a disability, it means that your standards and expectations need to go out the window, and you need to come up with new standards and expectations. Because people with disabilities may not benefit from an hourly billing, or legal aid may not benefit from this strict regime of, you know, accounting for every hour that passes by.
Because for example, they may be on Legal Aid, but the interpreter may be late, the interpreter may be 20 minutes late. So, the question is up to the lawyer to bill ethically and to bill responsibly. While recognizing that the interpretation is a just resource for clients with disabilities.
So, if I needed to summarize my long-winded answer. I would first say, speak to the client about the disability, ensure that it’s a comfortable space and a safe space in which to do so and ensure confidentiality. And then address those needs in a professional manner befitting someone who is working with the public. Ensure that those accommodations are met whenever there is a court hearing or whenever there’s an administrative tribunal, you know, do your due diligence and ensure that the accommodations are met at those locations.
And that may require, you know, scheduling in advance those accommodations, or working with accessibility officer at the court to ensure that those accommodations are met. And also have the ability to say, you know, this matter is not going forward right now because my clients does not have the accommodations that they need.
Professor Bryden: Thank you very much, Michael. Let’s conclude this podcast with some observations from you about the sort of key pieces of advice that you would have for administrative agencies that are seeking to ensure that they’re accessible to people with disabilities.
Michael McNeely: Thank you for this question. I think that one of the methods would be to open an entry portal for people with disabilities, so that when somebody or anyone has indicated that they have a disability at any stage during the process, this portal opens up and allows you quick and ready access to administrative officers and staff clerks that can help you with the procedures in place.
So, for example, if I was doing a form for the HRTO and just so happen to say I have a disability. In the 17th paragraph, just as an afterthought. It would be flagged as something that is important as something that is deserving of recognition and something that is needing to have a response by the administrative staff. And I believe that this would go a long way to ensuring that people with disabilities feel welcome and appreciated for however they present themselves.
I would also indicate that in every conceivable advertising mechanism that the administrative body uses or effort should be taken to indicate that also offices are accessible, and that people can indicate their disability in a confidential way to ensure that the accommodations are met. It doesn’t matter if I’m suing a place, it doesn’t matter if I have an issue with City Council, or whatever it may be. It doesn’t even matter if my issue is valid. The very first thing is that I need to be accommodated in order for me to realize whether my issue is valid or not. So even if I’m going to carried through the exit door, I least I would like to be accommodated before that does happen.
So, even if my issue is not relevant at the Court at hand. At least it would be, Mr. McNeely, you have some accommodations. What are they, how can we meet them? And then I could be escorted out, because I think my value as a person with a disability is such that my accommodations come first, and then the legal matter comes second. I would also urge our administrative staff to keep up on top of their professional development, and to ensure that their professional development currently includes disability awareness training.
I think something that is something I didn’t mention, Mr. Bryden, that I should have, is that during the age of COVID, people have been wearing face masks. So, I think it’s important too, to understand how current world developments affect people with disabilities.
Because in my case, I cannot understand anybody with a face mask without assistance. And so that means, the debate about courts going back to, in person needs to be made more complex. Because the question is, how are you going to accommodate those wearing face masks, or how you’re going to accommodate those who cannot understand those with face masks? So, I hope my answers have made sense. And, you know, somehow, it helps others in the long run.
Professor Bryden: Thank you very much Michael and thank you so much for taking the time to share your knowledge and your expertise, and I hope that listeners will look forward to the other two podcasts in which you’ll be participating and can explore the issues in a bit more detail about different perspectives so, thank you once again for your assistance.
Michael McNeely: Thank you very much.
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