1 00:00:00,730 --> 00:00:05,580 Making courts and mediations accessible for people with disabilities. 2 00:00:05,580 --> 00:00:13,140 David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance. 3 00:00:13,140 --> 00:00:16,666 Delivered at the Osgoode Hall Law School, January 4 00:00:16,666 --> 00:00:20,462 21st, 2014 as a Roy McMurtry Clinical Fellow. 5 00:00:22,403 --> 00:00:28,406 What I'd like to talk to you about, for a few minutes, is addressing the barriers 6 00:00:28,406 --> 00:00:31,277 that people with a mental or physical or 7 00:00:31,277 --> 00:00:35,757 sensory disability might face, in the mediation process. 8 00:00:35,757 --> 00:00:38,747 So we're anticipating that there's, there's 9 00:00:38,747 --> 00:00:42,720 a a court order tribunal administered proceeding. 10 00:00:42,720 --> 00:00:45,850 They've decided to go to mediation to see if they can settle the problem. 11 00:00:47,330 --> 00:00:53,000 A mediator is appointed, and one or more of the participants 12 00:00:53,000 --> 00:00:57,440 in the proceeding has a physical, or mental, or sensory disability. 13 00:00:57,440 --> 00:00:59,960 It may be one of the clients, it may be one of 14 00:00:59,960 --> 00:01:03,420 their support people, or their spouses or friends if they're taking part. 15 00:01:04,630 --> 00:01:09,240 or, of course, it could be the mediator themselves or arbitrator, 16 00:01:09,240 --> 00:01:12,010 or it could be the, the lawyer representing one of them. 17 00:01:13,430 --> 00:01:17,290 Primarily, though, I'm gonna focus on the parties. 18 00:01:17,290 --> 00:01:20,630 If it's a, a matrimonial thing, the spouses. 19 00:01:22,780 --> 00:01:25,470 They could face barriers in the mediation process, 20 00:01:25,470 --> 00:01:27,210 and we need a strategy to deal with them. 21 00:01:28,300 --> 00:01:30,760 There's a good place to turn to get ideas 22 00:01:30,760 --> 00:01:33,350 about what those barriers are and how to fix them. 23 00:01:33,350 --> 00:01:34,700 Let me tell you about that place. 24 00:01:35,740 --> 00:01:38,740 Let me tell you a bit about what was learned, and then let me 25 00:01:38,740 --> 00:01:41,770 give you a few ideas of the kind of barriers that can come up. 26 00:01:43,080 --> 00:01:44,600 And how they might be dealt 27 00:01:47,070 --> 00:01:47,600 with. 28 00:01:47,600 --> 00:01:51,570 In 2005, the Ontario Legislature, through the enactment of the Accessibility 29 00:01:51,570 --> 00:01:54,150 for Ontarians with Disabilities Act, committed 30 00:01:54,150 --> 00:01:56,700 the province to become fully accessible. 31 00:01:56,700 --> 00:02:01,360 At that time, the chief justice of Ontario was Roy McMurtry. 32 00:02:01,360 --> 00:02:04,210 I am now the, honored to be the Roy McMurtry Clinical 33 00:02:04,210 --> 00:02:08,300 Fellow at, at Osgoode Hall Law School for, during this term. 34 00:02:09,570 --> 00:02:15,040 And so the coincidence of talking about what he did, to help out is delightful. 35 00:02:16,780 --> 00:02:21,390 Chief Justice McMurtry, was and is a visionary individual. 36 00:02:21,390 --> 00:02:25,380 And he announced in 2005, that he 37 00:02:25,380 --> 00:02:29,200 supported the government's plans to require Ontario 38 00:02:29,200 --> 00:02:33,530 to become fully accessible by 2025, and that the courts should do their part. 39 00:02:33,530 --> 00:02:37,360 So the courts, too, have to become fully accessible. 40 00:02:37,360 --> 00:02:41,770 So Chief Justice McMurtry appointed a joint committee of the 41 00:02:41,770 --> 00:02:47,210 judiciary, the government, and the legal profession, to identify the 42 00:02:47,210 --> 00:02:50,800 barriers that now exist in the court system, and to 43 00:02:50,800 --> 00:02:52,710 offer an action plan on what to do about it. 44 00:02:53,750 --> 00:02:57,110 It was, conducted under the able leadership of its 45 00:02:57,110 --> 00:03:00,900 chair, Justice Karen Wilder, of the Interior Court of Appeal. 46 00:03:00,900 --> 00:03:02,860 I was privileged to serve on that committee. 47 00:03:04,730 --> 00:03:09,380 We reached out to the legal profession, the government, and others, to figure out 48 00:03:09,380 --> 00:03:10,900 what kind of barriers took place and, 49 00:03:10,900 --> 00:03:13,010 and, and the final Weiler report identified them. 50 00:03:14,340 --> 00:03:18,370 And we also came up with a vision of what an accessible court would be like. 51 00:03:19,930 --> 00:03:23,000 And we and the Weiler report identified that. 52 00:03:23,000 --> 00:03:25,390 And finally we offered an action plan of how to get 53 00:03:26,750 --> 00:03:31,040 from a court system full of barriers, to fully accessible court system. 54 00:03:32,500 --> 00:03:34,960 That document that resulted from the two years 55 00:03:34,960 --> 00:03:37,470 of work was called the Weiler Committee Report. 56 00:03:38,620 --> 00:03:40,940 Weiler's is weiler. 57 00:03:40,940 --> 00:03:42,250 It's available in the court of appeal. 58 00:03:42,250 --> 00:03:44,030 And if anybody wants to see it, or they're watching 59 00:03:44,030 --> 00:03:50,810 this video, you just Google, Weiler report, disabilities in Ontario. 60 00:03:50,810 --> 00:03:54,246 Or go to the Ontario Court of Appeals website, and you'll see the report posted. 61 00:03:54,246 --> 00:03:58,910 And the report stands the test of time. 62 00:04:01,080 --> 00:04:01,720 It got it right. 63 00:04:03,410 --> 00:04:13,690 And, one of the things it did was to ask a direc, propose that a permanent committee 64 00:04:13,690 --> 00:04:17,240 of the bench, the bar, and the government be set up to oversee its implementation. 65 00:04:18,530 --> 00:04:20,600 The courts and the government did that. 66 00:04:20,600 --> 00:04:22,000 That committee still exists. 67 00:04:22,000 --> 00:04:23,050 I serve on it, as well. 68 00:04:23,050 --> 00:04:25,940 It's called The Ontario Courts Accessibility Committee. 69 00:04:25,940 --> 00:04:30,340 And through the, the work of the Weiler Committee from' 05 to' 07 and the work 70 00:04:30,340 --> 00:04:33,520 of the courts, Ontario Courts Accessibility Committee, from' 71 00:04:33,520 --> 00:04:36,980 07 to the present, we've learned a lot. 72 00:04:36,980 --> 00:04:38,960 There's been a lot of progress. 73 00:04:38,960 --> 00:04:41,570 There of course is much still to be done. 74 00:04:43,040 --> 00:04:46,260 One of the things that we learned, is that there 75 00:04:46,260 --> 00:04:51,040 are a number of recurring barriers, in the court system. 76 00:04:51,040 --> 00:04:52,380 And I'm not talking about barriers to getting a 77 00:04:52,380 --> 00:04:56,250 lawyer or justice barriers or inadequacies in the law. 78 00:04:56,250 --> 00:04:59,260 Those are all important issues, or inadequacy 79 00:04:59,260 --> 00:05:01,160 of legal aid coverage and so on. 80 00:05:01,160 --> 00:05:03,720 I'm talking about a person's involved in a court proceedings as a 81 00:05:03,720 --> 00:05:07,740 client, a lawyer, a witness, a prospective juror, judge, court staff, whatever. 82 00:05:09,010 --> 00:05:11,380 They face a range of specific barriers. 83 00:05:12,580 --> 00:05:14,600 Let me summarize them, and then let's turn, see 84 00:05:14,600 --> 00:05:17,580 what we can draw on this for the mediation process. 85 00:05:17,580 --> 00:05:19,820 First we found there are a lot of physical barriers. 86 00:05:19,820 --> 00:05:24,950 Some of our courts are old and they may have steps to get into 87 00:05:24,950 --> 00:05:28,720 them or a step to get into a jury box or a witness box. 88 00:05:28,720 --> 00:05:31,095 They may not have sufficient accessible 89 00:05:31,095 --> 00:05:34,190 uh,facilities throughout the building and so on. 90 00:05:35,250 --> 00:05:38,840 We also found that there were communication barriers. 91 00:05:38,840 --> 00:05:41,480 Section 14 of the Canadian charter of rights and freedoms. 92 00:05:41,480 --> 00:05:42,550 Nobody reads section 14. 93 00:05:42,550 --> 00:05:45,970 Had to go from 13 not incriminating yourself right 94 00:05:45,970 --> 00:05:48,770 to 15 equality, and I, never look at it. 95 00:05:48,770 --> 00:05:52,100 But guarantees a right to an interpreter people involved in court proceedings. 96 00:05:53,400 --> 00:05:57,650 If they're deaf or if they don't speak whatever official language is. 97 00:05:57,650 --> 00:05:59,429 Of course there is official language entitlement. 98 00:06:01,630 --> 00:06:03,990 And yet, because of sign language shortages and 99 00:06:03,990 --> 00:06:07,480 so on there are problems that people who are 100 00:06:07,480 --> 00:06:09,540 deaf, or who are deaf under the court of 101 00:06:09,540 --> 00:06:14,240 hard of hearing, getting access to appropriate interpretation supports. 102 00:06:14,240 --> 00:06:21,400 People with vision loss, or dyslexia can face barriers in, in reading court forms. 103 00:06:21,400 --> 00:06:25,530 Or reading printed material that is used in court proceedings. 104 00:06:28,430 --> 00:06:35,160 People with intellectual disabilities, and some other kinds 105 00:06:35,160 --> 00:06:38,970 of disabilities find the language we use impenetrable. 106 00:06:38,970 --> 00:06:43,020 Of course, lay people with no disabilities find the language we use impenetrable. 107 00:06:44,060 --> 00:06:48,310 For them, plain language wherever possible is critical. 108 00:06:49,370 --> 00:06:52,420 Interestingly, the whole direction in legal writing now, 109 00:06:52,420 --> 00:06:57,210 in for the public, for clients, is plain language. 110 00:06:57,210 --> 00:06:59,430 The extent the legal profession fails to live up to that. 111 00:07:00,570 --> 00:07:02,510 We're actually hurting everybody, but we're especially 112 00:07:02,510 --> 00:07:05,790 hurting folks with certain kinds of disabilities. 113 00:07:05,790 --> 00:07:11,990 We also found, a range of other, kinds of barriers. 114 00:07:11,990 --> 00:07:14,730 I will, leave it to you to read the Weiler report to 115 00:07:14,730 --> 00:07:18,560 get more about that, but lemme talk about transposing this to pardon me. 116 00:07:18,560 --> 00:07:20,290 What, what did, what did the Wyler Report recommend? 117 00:07:20,290 --> 00:07:25,638 They recommend the government develop a series of strategies, to deal with this. 118 00:07:25,638 --> 00:07:28,100 They suggest, proposed, the government has adopted this, that every 119 00:07:28,100 --> 00:07:29,100 court facility should have a 120 00:07:29,100 --> 00:07:32,450 disability accessibility, and a combination coordinator. 121 00:07:32,450 --> 00:07:35,189 One stop shopping to go if you need something fixed. 122 00:07:36,320 --> 00:07:39,210 They proposed that judges and lawyers need more training on this 123 00:07:39,210 --> 00:07:43,810 and there's been, an increase in training for judges and lawyers. 124 00:07:43,810 --> 00:07:47,468 For example, the Law society I've had the privilege, I've really been 125 00:07:47,468 --> 00:07:49,769 honored to chair, two successful continuing 126 00:07:49,769 --> 00:07:52,210 legal education webinars by law [UNKNOWN]. 127 00:07:52,210 --> 00:07:56,750 We have a third one coming in May of 2014, to deal with these issues. 128 00:07:56,750 --> 00:08:02,832 The and there's training for judges on these kind of barriers too. 129 00:08:02,832 --> 00:08:06,460 As well it was proposed that the 130 00:08:06,460 --> 00:08:09,080 government should put in place specific strategies 131 00:08:09,080 --> 00:08:12,100 to address recurring barriers, and should communicate 132 00:08:12,100 --> 00:08:13,720 the availability of these to the public. 133 00:08:15,850 --> 00:08:17,839 So now let me turn to the mediation process. 134 00:08:18,970 --> 00:08:21,660 The same barriers that come up in the 135 00:08:21,660 --> 00:08:25,210 court process, can come up in a mediation process. 136 00:08:27,060 --> 00:08:28,440 Dealing with them may be in 137 00:08:28,440 --> 00:08:31,490 a sense administratively a little more challenging. 138 00:08:31,490 --> 00:08:34,860 Not because they're any harder to fix, but because the 139 00:08:37,150 --> 00:08:43,500 the mediation may be under a mediation, organization or a company. 140 00:08:43,500 --> 00:08:44,920 It may be under a government department. 141 00:08:44,920 --> 00:08:47,250 It may not be as, under the same 142 00:08:47,250 --> 00:08:51,020 kind of central control, as the interior government has. 143 00:08:51,020 --> 00:08:54,080 The ministry of the attorney general has an entire division called The Court 144 00:08:54,080 --> 00:08:59,138 Services Division that can put in place, strategies to be available court wide. 145 00:08:59,138 --> 00:09:03,860 Her province wide to try to deal with some of these barriers. 146 00:09:05,540 --> 00:09:08,580 nevertheless, here is some practical suggestions. 147 00:09:10,000 --> 00:09:10,760 Number one. 148 00:09:11,920 --> 00:09:17,259 It should be built into any negotiation slash mediation or arbitration process. 149 00:09:18,940 --> 00:09:25,970 From the beginning, that parties and other participants be solicited right up front. 150 00:09:27,640 --> 00:09:30,560 Does anyone have a disability, that requires an 151 00:09:30,560 --> 00:09:34,639 accommodation, so they can fully participate in the process? 152 00:09:35,690 --> 00:09:37,630 One thing we've learned through the court 153 00:09:37,630 --> 00:09:40,610 process, through implementing the Weiler committee, is that 154 00:09:40,610 --> 00:09:43,980 it's absolutely essential, that that question be 155 00:09:43,980 --> 00:09:47,450 put as early in the process as possible. 156 00:09:47,450 --> 00:09:50,060 You don't wait for the first day of trial to walk in and say, 157 00:09:50,060 --> 00:09:51,260 I know it's an eight-week trial, but 158 00:09:51,260 --> 00:09:53,110 we need sign language interpretation every day. 159 00:09:54,750 --> 00:09:55,450 You're not going to get it. 160 00:09:55,450 --> 00:09:57,334 You are going to end up delaying the trial. 161 00:09:57,334 --> 00:09:59,300 The earlier the request is made, 162 00:10:01,330 --> 00:10:02,910 the easier it is to plan for it. 163 00:10:03,990 --> 00:10:07,220 And participants in the mediation process, especially lay 164 00:10:07,220 --> 00:10:11,520 participants, will not know that they can ask. 165 00:10:11,520 --> 00:10:13,620 And they certainly won't know who to ask. 166 00:10:15,770 --> 00:10:19,450 Organizations that provide for mediation should have this inbuilt either in the 167 00:10:19,450 --> 00:10:25,660 forms they use, or in the online resources they have or whatever. 168 00:10:25,660 --> 00:10:27,560 But it's also important that anybody 169 00:10:27,560 --> 00:10:30,700 actually conducting the mediation should, as 170 00:10:30,700 --> 00:10:33,580 part of their introductory remarks or even the materials they send out 171 00:10:33,580 --> 00:10:37,360 before the mediation begins, identifying if there are any accessibility needs, and 172 00:10:37,360 --> 00:10:41,150 trying to connect people up with whomever they need to, to solve them. 173 00:10:42,480 --> 00:10:47,790 Drawing on a court experience, let me give you just of a series of examples. 174 00:10:48,900 --> 00:10:53,620 If there's a person with vision loss, or dyslexia, who can't read printed 175 00:10:53,620 --> 00:10:57,300 materials, there are ways, many ways to 176 00:10:57,300 --> 00:11:00,210 translate printed materials into an accessible format. 177 00:11:01,720 --> 00:11:04,030 And you don't need to know Braille to do it. 178 00:11:04,030 --> 00:11:06,470 Many of us use a computer, as I have sitting 179 00:11:06,470 --> 00:11:09,440 in front of me with a screen reader on it. 180 00:11:09,440 --> 00:11:12,350 Its software that will read the text on the screen. 181 00:11:12,350 --> 00:11:14,060 But if the material's sent to us in a format 182 00:11:14,060 --> 00:11:15,940 like pdf, we may not be able to read it. 183 00:11:15,940 --> 00:11:19,610 It's important to ask the individual, can your computer, do you have a computer 184 00:11:19,610 --> 00:11:23,330 that can read these to you, can they read Word, do you need HTML. 185 00:11:23,330 --> 00:11:24,750 There's a number of formats that are easy to 186 00:11:24,750 --> 00:11:28,880 access like Word and HTML, and pdf's can be awful. 187 00:11:28,880 --> 00:11:30,850 There are some who claims pdf's can be accessible. 188 00:11:30,850 --> 00:11:32,600 There are features you can turn on. 189 00:11:32,600 --> 00:11:35,720 They help with accessibility, but it's a, still a rear guard battle. 190 00:11:35,720 --> 00:11:38,990 It's better not to use that format, wherever possible. 191 00:11:38,990 --> 00:11:43,770 And frankly don't choose that format period when providing information to us. 192 00:11:43,770 --> 00:11:49,730 For some people with vision loss they have low vision and they need large print. 193 00:11:49,730 --> 00:11:52,380 Can expand the information on the page, print it. 194 00:11:52,380 --> 00:11:57,620 Or there are people with low vision who have magnifying technology so they put 195 00:11:57,620 --> 00:12:02,850 the document under a camera and it comes up on the screen, substantially enlarged. 196 00:12:02,850 --> 00:12:04,410 All a matter of planning in advance. 197 00:12:06,600 --> 00:12:09,329 Some when it comes to people with hearing loss. 198 00:12:10,970 --> 00:12:15,290 They fit into three categories, people who are deaf, ie born with no hearing. 199 00:12:15,290 --> 00:12:18,920 People who are deafened, ie people who had hearing and lost it. 200 00:12:18,920 --> 00:12:21,750 And people who are hard of hearing, people with some but not complete hearing. 201 00:12:23,410 --> 00:12:25,310 Depending on which you are, and even 202 00:12:25,310 --> 00:12:28,940 within those groups, people use different communication supports. 203 00:12:28,940 --> 00:12:31,470 Some use sign language, and there's different sign 204 00:12:31,470 --> 00:12:34,788 language, there's American sign language for English speaking people. 205 00:12:34,788 --> 00:12:42,560 LSQ for French Canadian people, people in Canada who speak French 206 00:12:43,624 --> 00:12:50,660 and for some people they don't use sign language. 207 00:12:50,660 --> 00:12:54,260 Often deafened people, or hard of hearing. 208 00:12:54,260 --> 00:12:55,860 And they may prefer to have captioning. 209 00:12:55,860 --> 00:12:57,450 Real time captioning. 210 00:12:57,450 --> 00:12:58,790 Same people who do some real 211 00:12:58,790 --> 00:13:01,180 time transcription can provide real time captioning. 212 00:13:02,950 --> 00:13:07,860 similarly, some people, use, lipreading. 213 00:13:07,860 --> 00:13:09,610 It's important to identify. 214 00:13:09,610 --> 00:13:12,620 You don't just say, oh, they're hard of hearing, they must read lips. 215 00:13:12,620 --> 00:13:16,680 It's important to canvas with the individual, which support works for them. 216 00:13:18,250 --> 00:13:21,180 With any disability different people with 217 00:13:21,180 --> 00:13:24,490 the identical condition, will use different supports. 218 00:13:24,490 --> 00:13:30,820 There are people with other kinds of communication disabilities where they have 219 00:13:30,820 --> 00:13:35,670 difficulty processing or communicating, not due to hearing or vision. 220 00:13:35,670 --> 00:13:38,320 And there's a whole field called AAC or Augmented 221 00:13:38,320 --> 00:13:41,520 and Alternative Communication with professionals 222 00:13:41,520 --> 00:13:43,410 who can provide communication supports. 223 00:13:45,160 --> 00:13:47,250 Obviously, physical barriers are an issue. 224 00:13:47,250 --> 00:13:49,740 You need to conduct a mediation, in a building 225 00:13:49,740 --> 00:13:53,970 that's fully accessible with washrooms that are fully accessible. 226 00:13:55,100 --> 00:14:00,730 That is accessible by accessible transit, or has accessible parking nearby. 227 00:14:00,730 --> 00:14:03,960 Don't assume that all exists, and don't assume it 228 00:14:03,960 --> 00:14:07,170 exists even if the building has signage saying accessible. 229 00:14:08,880 --> 00:14:11,680 And even if it has signage, even if it's accurate. 230 00:14:11,680 --> 00:14:14,360 You gotta be careful cause somebody could pull up and find out that 231 00:14:14,360 --> 00:14:17,470 somebody shoveled a pile of snow right at the foot of the ramp. 232 00:14:18,902 --> 00:14:23,660 And therefore the accessible entrance isn't accessible at all. 233 00:14:23,660 --> 00:14:25,010 Yes these things really do happen. 234 00:14:26,230 --> 00:14:29,060 People with intellectual disabilities may need support. 235 00:14:29,060 --> 00:14:30,760 And some other disabilities may need support. 236 00:14:30,760 --> 00:14:35,030 People may need plain language support assistance. 237 00:14:36,090 --> 00:14:37,200 People with different kinds of 238 00:14:37,200 --> 00:14:40,670 disabilities may have fatiguing conditions. 239 00:14:40,670 --> 00:14:42,360 Or do to medications they're taking, there might be 240 00:14:42,360 --> 00:14:44,610 times of the day that are better for them. 241 00:14:44,610 --> 00:14:47,040 That may involve working on scheduling arrangements 242 00:14:47,040 --> 00:14:51,510 to best accommodate their capacity to fully participate. 243 00:14:51,510 --> 00:14:54,430 If you go to the Weiler report, you'll see other examples. 244 00:14:54,430 --> 00:14:58,100 I've just given a few cuz this is just a short presentation. 245 00:14:58,100 --> 00:15:02,510 But the best way to solve all of this is, as early as possible, to ask the 246 00:15:02,510 --> 00:15:05,460 individuals do you, to explain, here's what the process 247 00:15:05,460 --> 00:15:08,220 is like, are you gonna have any accommodation needs? 248 00:15:08,220 --> 00:15:14,500 Please let us know, and let us know which accommodations, best meet your needs. 249 00:15:14,500 --> 00:15:16,290 The sooner you know that, the sooner you 250 00:15:16,290 --> 00:15:18,750 figure it out, the sooner it can get implemented. 251 00:15:20,000 --> 00:15:23,220 A high burden rests with lawyers. 252 00:15:23,220 --> 00:15:26,850 Lawyers aren't used to asking their clients about this. 253 00:15:26,850 --> 00:15:30,170 But it's important for any lawyer that's going to take place, take part in any 254 00:15:30,170 --> 00:15:34,480 court or mediation process or any litigation process, 255 00:15:34,480 --> 00:15:36,530 to find this out as soon as possible. 256 00:15:36,530 --> 00:15:39,480 And in the court process it goes further because you need to know about 257 00:15:39,480 --> 00:15:43,620 the needs of witnesses, and others who may, you may be calling to testify. 258 00:15:45,190 --> 00:15:51,194 Let me conclude by saying that in the years I've spent training lawyers 259 00:15:51,194 --> 00:15:57,290 and judges, on the issue of accessibility to the courts. 260 00:15:58,340 --> 00:16:06,130 I have been met with a unanimous tidal wave of support. 261 00:16:06,130 --> 00:16:08,960 The things that we often hear back are like this. 262 00:16:08,960 --> 00:16:13,720 I've never thought of this before, I didn't know this was going on. 263 00:16:13,720 --> 00:16:16,890 Thank you for letting us know and what else can we do? 264 00:16:17,940 --> 00:16:22,010 A judge or a mediator can't be expected to be an expert on all disabilities. 265 00:16:23,300 --> 00:16:27,540 But, they can benefit by simply asking or having 266 00:16:27,540 --> 00:16:30,210 the lawyers do the kind of solicitation I've mentioned. 267 00:16:30,210 --> 00:16:33,920 To enable them to proceed and to ensure full participation, full inclusion.