Litigation has opened opportunities for persons with disabilities who historically had been excluded. Such cases have set precedents that created opportunities for many more than just the litigants. Many cases have resulted in accessibility standards being established that have opened doors and leveled playing fields.

One example is in the area of education. No group within society has been excluded so pervasively, yet arguably no group needs an education more. Cases have challenged the assumption that 1 type of education fits all; as well as the misconception that some persons with disabilities cannot benefit from an education. At the post secondary level litigation has resulted in financial support for disability accommodations, equitable admissions criteria and student financial assistance. Much remains to be done.

Deaf patients were formerly hindered by the inability to communicate with their care providers throughout Canada’s vaunted healthcare system. Litigation resulted in the requirement that all health care services include an effective means of communication with them, a precedent that has now been followed within the justice system and elsewhere.

Strategic litigation has also prevented the creation of new barriers. Initiating litigation resulted in a commitment to install elevators in new subway stations and during the renovation of existing ones. When VIA Rail proposed introducing a new generation of inaccessible rail cars, litigation resulted in the direction to retrofit the cars purchased to make them fully accessible and available on all routes. Again while much remains to be done, there has been progress towards inclusive design of all modes of transportation.

Technology is an area where considerable expertise and research are required to determine whether and how inclusion can be feasibly accomplished. When contracting for new website software the federal government said accessibility was to be a consideration, however, its websites did not measure up to internationally recognized inclusionary standards. The courts decided good intentions were not good enough when the means of full accessibility was readily available and imposed compliance with recognized access standards on governments. Litigation has just started to make information and communication technology [“ICT”] a means of opening previously unimagined opportunities for persons with disabilities.

TIC and Litigation

TIC links the leadership of the disabled community with disability researchers to identify barriers that can be removed by the adoption of legally imposed standards or through litigation.

Recently a TIC Board member, Jutta Treviranus, chaired the Accessible Standards Canada Advisory Committee composed of members with disabilities, technology experts, and representatives of government, trade unions and industry, including major technology firms, that resulted in the adoption of Accessibility Requirements for ICT Products and Services can-asc-en301549-20240226-v02-en-aoda.pdf. Despite their name, the “Requirements” are actually advisory guidelines that meet the access expectations and needs of persons with disabilities and the need of technology users for standards that ensure feasibility and predictability.

As in the accessible website case, recognized standards can establish goals for inclusion litigation. TIC volunteers have a proven track record in enlisting the involvement and contributions of the most highly qualified experts, including academics working in related fields of study.

TIC provides a mechanism for bringing together those with the need for inclusion and those with expertise in documenting and developing the means of redressing barriers to inclusion. Frequently persons with disabilities perform both roles, both of which are essential to making meaningful inclusion possible.

Dickson Circle

Canada’s late Chief Justice Brian Dickson recognized the importance of worthy disability cases coming before the courts. He also recognized the enormous access to justice barriers facing those with worthy cases to litigate. Before his death he agreed that his name could be used to help achieve access to justice in such cases. Ten lawyers annually were to be asked to become members of the Dickson Circle, each of whom would take on a disability case pro bono [ie. without cost to the client].

TIC has prioritized inclusion cases because, for persons with disabilities, that is where the most acute access to justice barriers exist and the need is perceived as being the greatest.

For federal Charter cases the Court Challenges Program exists, but nothing comparable exists to help defray the cost of provincial or private sector cases. TIC is endeavouring to help counsel manage costs by recruiting volunteer case development lawyers and expert

witnesses. Cases of this type tend to reward successful litigants with public interest cost awards, to which pro bono counsel would be entitled. In the event an appeal must be argued, the member is not obligated to carry the case forward, however if the member chooses to do so it would qualify as membership for another year. Where it is or should be an appeal, and the member who handled the case at the trial or application stage is not going to handle the appeal, the appeal is then offered to the next prospective Dickson Circle member.

TIC volunteers agree to assume responsibility of the case development process that enables its Dickson Circle Committee to match pre-eminent pro bono counsel with worthy cases of importance to the inclusion of persons with disabilities. The Dickson Circle Committee consists of The Honourable Ian Binnie, Earl Cherniak and Bill Carter. TIC board members David Baker serves as secretary to the Committee, and Professor Stephanie Chipeur currently coordinates case development. The Committee invites the most qualified counsel to become members of the Dickson Circle. Those invited can meet with the proposed client, as well as with the volunteer lawyer[s] and experts responsible for the case’s development, before deciding whether to accept Dickson Circle membership and enter a pro bono retainer with the client.

It is recognized that such cases can be resource intensive, even though pro bono experts are matched with cases, and rarely settle at a preliminary stage because they may set precedents that open inclusive opportunities for many others. Membership therefore involves making a serious commitment