From Warehouse to Greenhouse to Open House
An Address to the Air and Space Law Section of the Canadian Bar Association
By Chris Stark ()
August 1991
Table of Contents
p. 1 Introduction
p. 2 The Warehouse
p. 3 The Greenhouse
p. 6 The Open House
Appendices
p. 9 Appendix A – Significant Canadian Cases Affecting Persons with Disabilities
Introduction
We are eagerly awaiting the great life. We are anxious for change.
Yes, Canada is a great place to live. We are wheezing, tapping and rolling our way into our rightful place of dignity and independence within the Canadian fabric. Our resolve is fortified by what we have endured and survived in the past.
The continuum of our evolution can be divided into three areas, or three time periods, which are demarcated by distinct social attitudes:
– the era when persons with disabilities were pitied and looked after (the “warehouse”);
– the current era, in which persons with disabilities are discovering our own identity and society is discovering our abilities as we grow together (the “greenhouse”); and
– the approaching era of empowerment and autonomy (the “open house”).
Let’s consider these three areas and conclude with a brief overview of how the National Transportation Agency is contributing to the concept of accessible transportation for persons with disabilities. My co-presenter, Madam Forget, Member the National Transportation Agency, will elaborate on the role of the Agency.
“The Warehouse”
Not so long ago, the majority of people with disabilities – those of us who survived – lived in residential institutions, where we were cared for as patients. This institutional medical model was based on the belief that we were incapacitated. Individuals with individual disabilities were treated as a homogeneous group: services were designed to meet group, rather than individual, needs. One result of this institutional treatment was that the non-disabled community remained largely unaware of people with disabilities.
This so-called “warehouse” period is within the living memory of many. I, for example, at the age of five, left home of ten months of the year to attend a residential school for the blind, the proud traditions of which were rooted in the original asylums for the blind. My parents had no alternative but to send me there if I was to have an education.
Among my vivid recollections of this experience are images of very small children pressing their faces against the bars of a fence, looking longingly out at the sighted world. The notion of “us” and “them” had very real and specific meaning for us. For ten years, the “norm” in my world was that blind people were the overwhelming majority.
Our future prospects were few and defined by the expectations of others. If we were fortunate, we were told, we might work in a sheltered workshop or operate a canteen.
Still, blind people were the lucky ones. The life expectancy of many people with severe disabilities could be measured in months. Most children with disabilities did not go to school. Most adults with disabilities lived in medical institutions, a tradition that had gone on for decades. Those who lived in the mainstream of society, often struggling alone with the after-effects of institutionalization, reinforced the existing myths and stereotypes about persons with disabilities.
Initiated by the catalyst of the Vietnam War and its aftermath, the era of the “greenhouse” is now thriving. The traumatized and newly-disabled soldiers returning from Vietnam provided the models from which society as a whole benefited. There veterans refused to accept or tolerate the traditional way in which society related to its members with disabilities.
Canada’s proximity to the United States means that we, too, are benefiting from this accelerated progress. The advancement of rehabilitative medicine and the provision of government social services have contributed to a vast improvement in the quality of life for persons with disabilities.
While the remainder of the this presentation will deal with transportation services for persons with disabilities today, in the era of the “greenhouse”, we should not lose sight of the fact that for many persons with disabilities throughout the world, the era of the “warehouse” is still a reality of daily life.
“The Greenhouse”
Since the beginning of the “Decade of the Disabled” in 1981, the Parliament of Canada has planted numerous seeds of change in the “greenhouse” by issuing no fewer than eleven reports focusing attention on the aspirations of persons with disabilities. These reports have covered the spectrum of human interest from recreation and education to employment and transportation.
A number of Acts of Parliament have firmly rooted this growing understanding in the fertile soil of Canadian society today. The provisions of the Canadian Human Rights Act, The Charter of Rights and Freedoms, and the National Transportation Act, 1987, contain guarantees of protection and the promotion of freedoms. These are founded in the evolutionized status of persons with disabilities, which has fostered our strong desire for the blooming of independence and integration.
Two important corollaries of these principles are the right to self-determination and the dignity of risk. We must be the ones to direct services and resources for ourselves. We must be the ones to determine how the available alternatives can be used to our best advantage.
The movement towards integration and demedicalization implies personal choice, user control over ongoing support services, and equal access to the rights and responsibilities accorded to all Canadians. This concept is supported by Section 15 of the Canadian Charter of Rights and Freedoms.
In 1986, Statistics Canada estimated that more than 3.3 million Canadians (13.2% of the population) reported a disability. For these people, accessible transportation is a necessity and a right. With accessible transportation, people can become integrated into the community. It becomes possible to travel to and from school, a place of employment, or medical and recreational facilities. Through accessible transportation, persons with disabilities can participate more effectively and fully in community life.
Although the numbers illustrate just how much of a problem we have yet to overcome, they also show how much progress we have made. According to Statistics Canada, in 1986, 58% of persons with disabilities who reported needing urban transportation had access to it.
Most specialized transportation services which operate parallel to public transportation systems function on the charitable model. In 1986, 247,275 Canadians with disabilities were reported to be living in institutions, including 2,400 children under the age of 15.
The trend in education is toward placement decisions based on individual need resulting in greater mainstreaming at all levels. For example, in 1986, 4.3% of persons with disabilities received a university education, as compared to 10.3% of the general public.
In the same period, it was estimated that 25.4% of Canadian families with a member who had a disability were below the officially-determined “low income” or “poverty” level, as compared to 15.5% of Canadian families without a member with a disability. In 1985, 57.3% of working age persons with disabilities had total annual incomes of less than $10,000.
Persons with disabilities of working age have higher rates of unemployment than the general workforce: the unemployment rate in 1986 for persons with disabilities was 15.2%, as compared with 10.7% unemployment in the general population. This does not take into account a large percentage of persons with disabilities who have given up searching for work altogether.
Parenthetically, it is interesting to note that, according to the Department of the Secretary of State’s analysis of Statistics Canada’s 1986 Health and Activity Limitation Survey, the degree of poverty of persons with disabilities is correlational to the severity of their disabilities. Surprisingly, the largest percentage of persons with disabilities who are defined as poor are persons who are blind or visually impaired, follow closely by persons with either cognitive or mobility disabilities.
The work of the National Transportation Agency must be viewed in the context of today’s reality. Ours is a situation in which transportation is a vital foundation to the advancement of persons with disabilities. Once a person has chosen to exercise the dignity of risk and walk across the threshold into the community, that choice must be respected, encouraged, and, most importantly, accommodated.
Not all persons with disabilities are at the same level of social advancement or have the same abilities. Appropriate transportation services for travellers with disabilities are those which incorporate the principle of choice base on individual need rather than choice based on membership in a particular disability group. For example, not all persons who are blind or visually impaired have the same needs. We have all developed our individual methods of coping with the limitations of our disabilities.
Persons with disabilities, like all persons, are unique individuals with unique accomplishments. With each achievement, we become less willing to accept the indignities thrust upon us by systems and services which respond to us as “the blind” or “the handicapped” or “the disabled.”
Before concluding with an overview of how the National Transportation Agency is contributing to the “Open House” of the future, let’s look at some of these travel difficulties experienced by persons with disabilities. These pictures are composites of issues which have come to our attention. See if you can paint some beauty into these depictions of obstacles to the mobility of travellers with disabilities.
1.A person using a walking aid standing at the top of an escalator by a down arrow sign.
2. A profoundly deaf person reading a newspaper in a departure lounge with a speaker overhead emitting the words “All passengers should now be on board.”
3. A confusing set of direction signs with the caption, “ I do not understand.”
4. A person in a wheelchair at the bottom of a pair of train stairs or a commuter aircraft stairway, with the caption, “all aboard.”
5. A blind person with her dog and the caption “Please read the information on the card in your seat pocket.”
6. A person extending a tray of drinks to a blind person with the caption “Help yourself.”
7. A hearing impaired person at a check-in counter, with the caption “Your ticket please.”
8. Two travellers at a ticket counter or security checkpoint with the service provider addressing the companion of the persons with a disability rather than speaking directly to the individual concerned.
9. A blind person and a deaf person at the front of an aircraft being told to find their seats in row number six.
10. A ground transportation vehicle in front of a person in a wheelchair with the caption “Get in.”
11. A picture of a person in a seat with her guide dog in the aisle and an attendant stating “There is no room at your seat for the dog.”
12. A blind man hurrying into a ladies’ washroom.
13. A person who does not have a visible disability being asked to get out of priority seating for persons with disabilities.
14. A person with diabetes, while eating an orange to prevent a reaction, is told not to eat her orange by a person pointing to a sign which says “No food permitted.”
15. A person with epilepsy is denied service for being perceived as drunk.
16. A person in a wheelchair regarding a sign indicating that she should go up the escalator to the departure level.
17. A hearing-impaired person wondering why everybody is leaving, with the caption “There has been a change in the boarding gate for the flight.”
18. A blind person with her dog walking out an entrance door or in an exit door.
19. A person in a wheelchair trying to communicate with a ticket agent above him and behind the wall of the check-in counter.
20. A sign for train 204 leaving at 402 from track 024 against the backdrop of a busy confusing terminal.
21. A passenger is required to remain in a Washington chair for a long period of time between connecting flights because here wheelchair, customized for her comfort, is not brought to her by the airline.
22. An onboard wheelchair is not provided; the passenger has to be carried up and down the aisles of the aircraft.
“The Open House”
Thirty years ago, these images may have been looked upon as acceptable or understandable. Today, on the threshold of the “Open House” of the future, these images are jarring. In other words, attitudes and expectations have gone far beyond the existing situation today.
The ideals of the right to self-determination and the dignity of risk are important considerations in the Agency’s approach to accessible transportation, which hinges on the concept of “undue obstacle”. This concept is not defined by legislation, but by decision and regulation, actions taking in a climate of increased acceptance of our right to live fully integrated lives within the community and to participate in all aspects of it.
We are moving far away from the view of individuals with disabilities as being “sick” and in need of a complex bureaucracy of services, to a view of disability as a live issue or social circumstance which relates to all sectors of society, including the family, the community, the church, business, and, the specific sector of concern to us, transportation under federal jurisdiction.
The government of Canada has placed its prestige, authority and skill in full support of accessible transportation. This has come about, to a large degree, in response to the persistent lobbying of provincial and local consumer groups of persons with disabilities. The growing level of participation and sense of empowerment among persons with disabilities is a very real factor to be taken into consideration by any provider of transportation services or regulator of transportation services such as the National Transportation Agency.
The Agency was established in 1988 under the National Transportation Action, 1987. It replaced the former Canadian Transport Commission as the federal regulator of Canadian transport systems. The Agency is primarily responsible for economic regulation. It controls the entry and exit of transportation providers into the Canadian market. It has broad powers to resolve disputes between carriers and shippers. It pays subsidies under a number of government programs to Canadian carriers.
The Agency has no policy-making responsibilities. It is there to administer law. The Agency acts with government policy although policy direction may not be given on any case currently before the Agency for decision. Agency regulations must be approved by Cabinet.
Surprisingly, in the middle of this piece of economic legislation, and thus in the middle of what is essentially an economic regulatory body, we fine the concept of a basic human right to accessibility. I suggest that it is primarily there to ensure that accommodating persons with disabilities will be considered and acceptable cost of doing business in this country. Its practical application is ensured by its inclusion in the Act, setting the operating parameters of the transportation industry.
In the area of services for persons with disabilities, the Agency has quite broad powers to provide fair access to federal transportation systems, including air, rail, marine and bus transportation in Newfoundland. The National Transportation policy, contained in the National Transportation Act, states that providers of transportation must not pose undo obstacles to the mobility of persons with disabilities. When the Act was passed in 1987, the Agency was given responsibility for enquiring into complaints about undue obstacles. In 1988 the Act was amended to give the Agency broader powers of making regulations, subject to the approval of the Governor in Council, for the purpose of removing undue obstacles in Canada’s transportation network.
The debate is fundamental. I’m always pointing out that you “serve” passengers and “handle” freight. The jargon of the industry and the rush to meet the need may cause us to momentarily lose sight of the human aspect of everything we do.
Within the Agency, the Accessible Transportation Directorate is responsible for the programs to ensure fair access to travellers with disabilities. A dynamic four-star program has been established and is vigorously being implemented as we move toward the “Open House” era of the 21st century. Its four stars are consultation, monitoring, complaint resolution, and regulation development.
Madame Forget, Member National Transportation Agency, describes for you how these four stars are used to practically apply the law to improve the quality of life for persons with disabilities through fair access to transportation.
It only remains for me to say to you today that there is a role for each and every one of us in this evolutionary process, on the personal and professional level. The legal profession has always been in the forefront of social change and advancement: we need not look further than the civil rights movement in the United States and the role played by the judicial system in the desegregation of schools.
Therefore, remember: one in seven of your colleagues, of you clients, and of the travelling public, is a person with a disability. As the population ages, this percentage will only grow larger. With understanding and concern for one another the numbers may grow larger, but the problems will grow smaller. As Marcia Rioux from the G. Allan Roeher Institute of Toronto reflected:
“The needs of persons with a disability should, however, not be thought of as special needs, anymore than the needs of those without disabilities might have been seen as special had those with disabilities designed the world initially.”
Join us in the “Open House” of the 21st century.
Appendix A
Significant Canadian Cases Affecting Persons with Disabilities
Boehm v. National System of Baking Ltd. (Ontario Board of Inquiry, March 19, 1987) 8 C.H.R.R. D/4110 (harassment in employment because of mental disability)
Cameron v. Nel-Gor Castle Nursing Home (1984) 5 C.H.R.R. D/2170 (applying the “incapable of performing the essential duties” test under the Ontario Human Rights Code to a nurses’ aid with a disabled hand).
Canadian Disability Rights Council v. Canada (Federal Court, Trial Division, October 17, 1988) 38 C.R.R 53 (right to vote for persons suffering from mental illness)
Canadian Pacific Ltd. V. Canadian Human Rights Commission and Mahon (Federal Cours of Appeal, June 16, 1987) 8 C.H.R.R. D/4263 (case of a stable diabetic refused employment with railway; issue of “risk”).
Clark v. Clark (1982), 40 O.R. (2d) 383, 4 C.H.R.R. 3 C.R.R. 342 (Ont. Co. Ct.) (assertion of mentally handicapped person’s right to make decisions on his own behalf as an adult; young man with severe cerebral palsy and mental disability declared competent).
Dayday v. MacEwan (1987), 62 O.R. (2d) 588 (Ont. Dist. Ct.) (detention of involuntary patient in a psychiatric facility).
Eve v. Mrs. E. (Supreme Court of Canada, October 23, 1986) [1986] 2 S.C.R. 388, 185 A.P.R 273, 61 Nfld and P.E.I.R. 273, 31 D.I.R. (4th) 1 (a non-therapeutic sterilization cannot be performed on a mentally disabled woman without her consent).
Huck v. Canadian Odeon Theatres Limited (Sask. Court of Appeal, March 4, 1985) 6 C.H.R.R. D/2682 (a wheelchair user is entitled to a choice of theatre seating equivalent to any other patron).
Kelly v. VIA Rail Canada (Railway Transport Committee, Canadian Transport Commission, April 24, 1980) 1 C.H.R.R D/97 (refusal to sell railway ticket to individual in a wheelchair).
Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario Human Rights Commission (Ont. Supreme Court, June 22, 1987) 8 C.H.R.R D/4235 (Board of Inquiry ruling of discrimination on the ground of mental disability is reversed on the basis that school facilities lack the amenities, (i.e., necessary aides and trained teachers).
New Brunswick (Minister of Health and Community Services) V.B.(R.) (1990)m 70 D.L.R. (4th) 568 (N.B. Queen’s Bench) (denial of medical treatment to severely handicapped child).
Oiumette v. Lily Cups Ltd. 12 C.H.R.R. D/19 (Ontario Board of Inquiry, March 14, 1990 (sickness, such as a flu, is not a handicap within the meaning of the Ontario Human Rights Code).
Peters v. University Hospital Board (Sask. Court of Appeal, May 17, 1983) 4 C.H.R.R. D/1464 (access to facilities customarily available to the public by a blind person with a guide dog).
R. v. Ogg-Moss (S.C.C.) [1984] S.C.R. 171, 11 D.L.R. (4th) 549, 6 C.H.R.R. D/2498 (developmentally handicapped adults not to be exempted from protection of criminal law on the basis that they are “childlike”).
R. v. Swain (Ont. Court of Appeal) 24 C.C.C. (3d) 385 53 O.R. (2d) 609 50 C.R. (3d) 97 (right to a fair hearing concerning commitment to custody of a person declared not fit to stand trial; currently on appeal before the Supreme Court of Canada).
Re R.D. (Stephen Dawson case) (1983) 42 B.C.L.R. 173 (no one has the power to judge the quality of another’s life, regardless of disability).
Reference re Special Air Fare Policy for Attendants of Disabled Persons (Canadian Transport Commission, October 1986) (disabled people entitled under the Charter to have their attendants travel on their ticket i.e., “one person one fare”).
Trottier v. Ontario Express (National Transportation Agency, September 27, 1990) (disabled person has a right to fly in a commercial airplane and receive boarding assistance from the airline).
Also:
Andrews v. Law Society of British Columbia (S.C.C.) [1989] 2 W.W.R. 289, 56 D.L.R. (4th) 1, 10 C.H.R.R. D/5719 (on what is discrimination).
Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (S.C.C.) [1990] 2 S.C.R. 489, 12 C.H.R.R. D/417 (on duty to accommodate).
Ontario Human Rights Commission v. Borough of Etobicoke (S.C.C.) [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781 (on bona fide occupational requirements).