ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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Excellent Media Coverage of the Policy Experts Conference on What Canada's Promised National Accessibility Law Should Include -- and -- More Media on Other Accessibility Issues

August 24, 2017

Summary

1. Wonderful Media Coverage of the August 22, 2017 Online Policy Experts Conference on What Canada's Promised National Accessibility Law Should Include

The August 22, 2017 online Policy Experts Conference on What Canada's National Accessibility Law Should Include was a real success. It was hosted at the Inclusive Design Research Centre at OCAD U, and was organized under the Alliance for an Inclusive and Accessible Canada.

Below, you can find a great article in the August 24, 2017 Toronto Star on the Policy Experts Conference. We also provide a transcript of the August 21, 2017 interview with AODA Alliance Chair David Lepofsky about this conference on CBC Radio Toronto's Here and Now Program. You can also listen to the audio of the CBC Radio August 21, 2017 broadcast by visiting
http://www.aodaalliance.org/strong-effective-aoda/08212017-cbc-radio-CDA-conference.mp3

We will let you know as soon as the conference video finishes post-production clean-up and is posted online in a permanent form for one and all to watch, if you missed it the first time!

Experts from Canada, the U.S., Israel and Switzerland shared great ideas on what Canada can learn from experience with accessibility laws here and abroad. It was fantastic that in the front row at the conference were the federal Minister for People with Disabilities, Carla Qualtrough, and the federal Deputy Minister of Labour Lori Sterling. They are leading the creation of this federal legislation.

The conference was chaired by AODA Alliance Chair David Lepofsky. These senior federal officials listened as the ministers who brought in Ontario's AODA and Manitoba's Accessibility for Manitobans Act each discussed what they got right in their laws, and what, with hindsight, they'd do differently. The persons who conducted Ontario's two Independent Reviews of the AODA, Charles Beer in 2010 and Mayo Moran in 2014, each discussed what they'd recommend to the Federal Government based on Ontario's experience with the AODA's implementation and enforcement. Valerie Picher, chief of staff to Ontario's Community and Social Services Minister Madeleine Meilleur (2006-2010) gave the Federal Government advice based on her experience, working with the Ontario minister who led the creation of Ontario's accessibility standards on accessible customer service, employment, transportation and information and communication.

Turning attention to south of the border, the conference presented the Federal Government with advice on how to create effective accessibility standards from David Capozzi, the executive director of the U.S. Access Board. John Wodatsch, director of the Rights Section of the U.S. Department of Justice from 1990 to 2011, gave the Federal Government advice on how to make public enforcement work. University of California's Accessibility Evangelist, Lucia Grecco, gave practical tips on how to ensure that procurement of information technology is accessible to people with disabilities, and how this can drive the private sector to create more accessible goods and services.

As well, at this conference, the Federal Government got excellent advice on international expert on defining disability, Prof Jerome Bickenbach. Advice on the shortcomings in laws in Canada on the accessibility of the built environment was offered by a front-line Canadian built environment accessibility expert, Thea Kurdi.

The Federal Government got to learn from experience in Israel, drafting their Customer Service Accessibility Standard, from Israeli lawyer Tzvia Admon, who led the drafting of that accessibility standard. As well, the Federal Government got to learn from Israel's experience enforcing its accessibility law, from lawyer Bila Berg. She is the legal advisor to the enforcement team in Israel's Commission on Equal Rights for People with Disabilities.

2. Still More Media Coverage of Other Accessibility Issues

Each time the media reports on a specific accessibility barrier, this helps us show more broadly why we need Ontario to ramp up its implementation and enforcement of the AODA. It also shows the Federal Government why its promised federal accessibility law must improve on inadequacies at the provincial level.

As examples of this, below you can also find:

* The August 21, 2017 CBC News article giving more coverage to the incident in Prince Edward County where a local bed and breakfast reportedly refused to admit a couple, because they had a guide dog. This article again quoted AODA Alliance Chair David Lepofsky.

* The August 22, 2017 report from CBC Calgary of a breath-taking accessibility blunder at Calgary's airport. The airport made a deal with Lexus, in exchange for money. Lexus could designate certain choice airport parking spots as exclusively for Lexus owners. The spots they re-assigned for this had been disability parking spots. A public complaint led to media coverage, which led this blunder to be retracted.

* The August 17, 2017 National Post included a very troubling guest column, set out below, by Queens University law professor Bruce Pardy, objecting to certain accommodations for students with mental health conditions, on law school exams. His guest column reflects a deeply troubling and fundamental misunderstanding of human rights law and the duty to accommodate students with disabilities.

The August 22, 2017 National Post commendably included a compelling response and rebuttal to Professor Pardy's column. This response, also set out below, came in the form of an excellent guest column by Osgoode Hall Law School's associate dean Ben Burger and its dean, Lorne Sossin. That they had to write a response is yet more proof why Ontario needs a strong Education Accessibility Standard enacted under the AODA.

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MORE DETAILS

The Toronto Star August 24, 2017

The Toronto Star
News

Disability law will 'make history,' minister says; Carla Qualtrough welcomes expert recommendations on new federal legislation

Carla Qualtrough, federal minister of sport and persons with disabilities, sought practical advice on a governance model from Canadian and international disability experts at a conference Tuesday. Vjosa Isai/Toronto Star

As pen hits paper in drafting Canada's first federal accessibility legislation, disability experts say they want to see independent enforcement and standardized accessibility features in the new law.

Among others, these recommendations were heard by Carla Qualtrough, federal minister of sport and persons with disabilities, at a conference on Tuesday, as the government works to draft its new law following months of public consultations.

"This law, when created, will be very proactive and basically tell employers, and service providers, and programmers, and the government itself, these are the expectations we have on you and we're going to hold you to account," Qualtrough said. "I think that we're going to make history."

Although the prospective act would govern only those areas under federal authority, such as banks, telecommunications and interprovincial transportation, Qualtrough believes it will also show leadership beyond this jurisdiction and inspire provinces to create similar laws.

Currently, seven provinces do not have accessibility legislation.

Disability advocate and lawyer David Lepofsky has been closely involved in holding the provincial government to account in its goal of being fully accessible by 2025, since it passed its landmark Accessibility for Ontarians with Disabilities Act in 2005.

Lepofsky commended Ottawa for participating in Tuesday's conference, which included experts from the U.S. and Israel and was accessibly broadcast online from the Inclusive Design Research Centre at OCAD University. However, he said, it's important for the law to contain features that will make it endure past this government's time in office.

"We need a national champion," he said. "It's great to have a minister, but we need someone who's not political, but who's got the mandate to stand up and lead the enforcement, lead making the standards, and also be the one to say where we're doing well, and call us out."

Other suggestions from the expert panel include accountability functions from an independent body, detailed and standardized accessibility requirements, and greater enforcement action for non-compliance.

Bila Berg, a lawyer at the Israeli commission on the rights of people with disabilities, said the country has 12 inspectors nationwide tasked with enforcing accessibility laws. There are five with comparable duties in Ontario, Lepofsky said.

The minister also heard about how technology procurement by the government can help steer private companies or vendors to innovate accessibility into their products.

Lucy Greco, an Albertan web accessibility expert based at the University of California, Berkeley, has worked with companies like Google in developing an accessible interface for their web collaboration tools.

"It's your role to help find experts to help people achieve the accessibility they need ... they can't do this in a vacuum," said Greco, who has been blind since birth.

For Qualtrough, the law will help to create a consistent accessibility experience for Canadians.

"We're going to say as a system, and as a society, that we need to remove barriers because you're entitled to live in a world that thinks of you and includes you as someone with a disability," she said.

The legislation is expected to be introduced by the end of the year or early 2018.

Vjosa Isai
Toronto Star

August 21, 2017 CBC Radio 1 Toronto

Here and Now Program
Host: Gill Deacon

Host: what should Canada's national accessibility law look like? During the last federal election campaign, Justin Trudeau promised to enact a national law that would remove barriers for Canadians living with disabilities. That's a law being proposed this year.

The Alliance for an Inclusive and Accessible Canada is gathering experts from around the world to answer the question, about what should Canada's national accessibility law look like. David Lepofsky is a visiting professor at the Osgoode Hall Law School, moderating the conference.

David, tell me a bit about this conference that you're moderating.

David Lepofsky: Well, thank you for including me in your program. The Federal Government, to its credit, promised this legislation, and has wrapped up a major consultation across the country, and now has to decide on the details, not just the rhetoric, the details of what's good to be in the law. So people with disabilities wanted to share ideas, and I have the privilege of chairing a conference where we are going to have speakers online or in person from around the world, across Canada and around the world. It's something anyone can view tomorrow live, online, because it's an online conference from 10 AM to 1 PM. Just go to the website www.alliance-Canada.org and there'll be a listen link live.

Host: and people will be sharing what their experience is of what's worked well, their experiences of challenges…

David Lepofsky: We're going to be talking to people from Canada, from the US, Switzerland and from Israel, who've been involved in either designing or operating such legislation, to learn from each of them what's worked well, what hasn't, what they would've done differently, and so on. And this will be an exciting opportunity.

We are delighted that in the front row, in the room watching, will be the minister from the Federal Government Carla Qualtrough, who's going to be designing this legislation, and her Deputy Minister. We invited them. They said they'd like to come and learn what we have to offer.

We are also hoping that what we have to learn and to share during this conference can be used by the seven provinces across Canada who don't have an accessibility law. Ontario was the first to enact one. Then Manitoba and Nova Scotia. The other seven don't. And we also hope that it will assist countries elsewhere in the world that haven't got legislation, though the trend is growing around the world, to learn from all of us, what works, what doesn't and what are Federal Government should do.

Host: How many Canadians are affected by disabilities?

David Lepofsky: Well, right now as best we know, over four million people in Canada have a physical disability, or a mental disability, or a sensory disability, learning disability, autism, mental health condition, and so on. But that number understates things, because ultimately everybody listening to this program will get a disability in their lifetime. You've just got to get older. It comes to all of us.

I happen to be blind. Mine came early. Other people haven't gotten theirs yet. But this legislation will ultimately, if it's designed right, will serve everyone.

Host: and why do you think that we don't have anything like it, as yet? Why is it taking so long to put a national accessibility law into effect?

David Lepofsky: Well, Canadians are proud that we are usually ahead on social justice things, like healthcare. But in some areas we are behind, and on accessibility for people with disabilities, we definitely are.

Now Canada was out front when Pierre Trudeau was our prime minister. Back in 1982, he brought in our Charter of Rights, and it was the first Constitution in the Western world that had an explicit guarantee of equality for people with disabilities. And it was included because we fought for it. They also passed a Canadian Human Rights Act that includes equality for disabilities. That's good. But those laws leave it to individuals to have to fight barriers, one at a time, and those are long and hard fights. We needed legislation that would tear down the barriers we face, without us having to fight them individually, through individual lawsuits.

We now can learn from other countries and from those provinces that have gotten out ahead on this, the best way to do it federally.

Host: Can you give some examples of what might change, what you'd like to see, personally, as part of a Canadian accessibility law, and what difference it could make? Can you give an example of that?

David Lepofsky: Sure, absolutely. So, a couple of areas the federal government is able to regulate, air travel. People with disabilities repeatedly report problems, whether at airports or with airlines, with inaccessible travel. And I as a blind person have had hassles just getting someone guiding me from the curb to the counter, where you can check in, when you show up in a taxi. Others have problems where they lose your wheelchair or whatever on the flight. So those are examples of recurring problems.

Accessibility in services at banking, dealing with the Federal Government, dealing with Bell Canada or Rogers.

Another area that's really important – the Federal Government and federally regulated organizations spend a lot of money, whether it's on infrastructure or purchasing things. We want to see legislation that will attach accessibility strings, so that money, federal money is never used, unless it is used to make accessibility better, not worse. And we want to learn from other countries how they've done it.

Host: What are some examples in other countries, to that point, that have worked well?

David Lepofsky: Oh, absolutely. We've got a speaker tomorrow on the conference, who is going to speak exactly to that. And it's quite exciting. So we're encouraging people to go to alliance-Canada.org and logon, live tweet, whatever. They're going to eventually archive it. There's going to be sign language and captioning available, but we're going to archive it eventually so it'll be available as a permanent resource for people across Canada and around the world.

Host: You're pretty passionate about this. I mean, you mentioned that you're visually impaired. Is that the primary driver for you, in volunteering on this?

David Lepofsky: Well, I've been involved in advocacy for many years. I was one of the many people who fought to get disability into the Charter of Rights back in 82. I had the privilege of leading the fight to get Ontario's accessibility law passed, that we passed in 2005. It's a good law, but there have been serious problems in how it's been implemented. And we'd like to see the Federal Government able to learn from what provinces like Ontario have done well, but also to do better in areas where Ontario has fallen down on the job. There are some serious examples of that, that we'll discuss tomorrow.

Host: I hope it goes well, and I appreciate the conversation today. Thank you.

David Lepofsky: Thanks for including this.

Host: That was David Lepofsky. He's a visiting professor at Osgoode Hall Law School. He's moderating a conference that's happening tomorrow that will solicit advice from experts around the world on what Canada's accessibility law should look like.

CBC News August 21, 2017

Originally posted at:
http://www.cbc.ca/news/canada/calgary/airport-parking-lexus-mosley-calgary-reserved-disabled-1.4255651

Calgary airport to return accessible parking spots after botched marketing campaign - Calgary -
Lexus was unaware airport authority converted accessible spaces into 'Lexus-only' spaces

CBC News
Posted: Aug 21, 2017

Lexus paid the Calgary Airport Authority for the right to put its name on five parking spaces for the exclusive use of people who drive its vehicles. Dan McGarvey/CBC

The Calgary Airport Authority is returning disabled parking spaces after it was criticized for converting them to more lucrative "Lexus-only" spaces as part of a marketing campaign.

It received a complaint after a family with access needs pulled into the short-term section of the parkade to find five accessible parking spaces they usually use were gone.

The airport sold the space to Lexus so it could paint its logo on the floor and allow its customers to enjoy the prime location exclusively.

In a response to CBC Calgary, Lexus Canada said Monday night that it was unaware the marketing campaign would involve the removal of parking spaces for travellers living with a disability. 

Jody Moseley

Calgary Airport Authority spokesperson Jody Moseley says the airport is always looking for new ways to create revenue. (Dan McGarvey/CBC)

"Lexus Canada would like to offer our heartfelt apologies to anyone who may have been affected or offended by a recent marketing campaign at the Calgary airport. We were not aware that accessible parking spaces would be used for this campaign, and have asked the airport to correct the situation as quickly as possible by returning these parking spaces to their intended use," read a statement sent by Michael Bouliane, manager of corporate communications at
the company.

"In the future, we will more carefully scrutinize the details of these types of marketing campaigns. We were truly embarrassed by this mistake. It shouldn't have happened and we are taking steps to make sure that it doesn't happen again."

Airport apologizes

The airport also released a statement Monday night, saying it would reverse the decision and return the spots to accessible parking. 

"YYC Calgary International Airport would like to apologize to our passengers impacted by the decision to change the location of the accessible parking stalls at the airport; it is clearly out of touch with our commitment to being an accessible facility," the statement said. 

In addition to a commitment to revert the stalls "asap," the authority also said disabled stalls that were added in another location when the Lexus-only spots were created will remain. 

"The Calgary Airport Authority would also like to apologize to Lexus Canada," the statement continues.

"For clarity, The Calgary Airport Authority was solely responsible for the selection of the stalls identified for the parking campaign. Lexus Canada did not play a role in selecting, and was not aware of, the locations for the campaign."

Revenue stream

Earlier in the day, Calgary Airport Authority spokesperson Jody Moseley said selling the bays as advertising space to the luxury car brand would make the airport some money.

"We're always looking at different ways to diversify our revenue stream," she said.

Moseley said not providing alternative accessible spaces simultaneously was just a case of bad timing.

"I think it was one of those communication fails, from the YYC perspective," she said.

"We really were in the process of moving and accommodating the new advertising space at the same time, but what we really should have done is let them know in advance that this was happening."

LEXUS PARKING

The airport sold parking spaces near the doors to Lexus so the company's customers can enjoy the prime location. (Dan McGarvey/CBC)

Airport customer Dustin Stroh says it seems like a waste of space.

"If they're taking handicap spots, you'd think they'd have replaced them first. And they're all empty right where there could be five spots where somebody needs wheelchair access," he said.

CBC News Online August 22,2017

Originally posted at:
http://www.cbc.ca/news/canada/toronto/prince-edward-county-response-1.4257901

Prince Edward County officials decry 'unfortunate' case of couple denied B&B over service dog

Same officials say province's accessibility rules need clarification

By John Rieti, CBC News
Posted: Aug 22, 2017 4:47 PM ET

A Toronto couple was hoping to spend a weekend at a Bloomfield, Ont., bed and breakfast, but were turned away because of their service dog. (Google)
 
Prince Edward County officials are trying to make things right after a couple with a service dog were barred from a local bed and breakfast earlier this summer.

David Greenwood and his wife, Jill, had planned to spend the weekend at a bed and breakfast in the town of Bloomfield, Ont., about 200 kilometres east of Toronto, but were told they couldn't stay there with Greenwood's black Labrador service dog, Romy.
 
Toronto couple with service dog barred from Prince Edward County B&B

Emily Cowan, the executive director of the county's chamber of commerce, called the situation "unfortunate" in an emailed statement.

Given the number of bed and breakfasts in the area, Cowan says she'd like to see some legislative clarity around what the rules are when it comes to service animals.

Following the incident, Sunrise's owners, John and Joan Stenning, hired a lawyer who suggested that because the bed and breakfast operates in a private space, they should have the right to turn away a service dog.

But according to the Accessibility Directorate of Ontario, if a bed and breakfast has at least one employee, it must adhere to the Accessibility for Ontarians with Disabilities Act (AODA), which states people with disabilities must be able to bring service animals with them in areas open to the public.

Prominent accessibility lawyer David Lepofsky, who chairs the AODA Alliance, said refusing someone with a service animal also violates Ontario's Human Rights Code, which guarantees everyone equal treatment with respect to services and facilities.

"Renting a hotel or a B&B room would seem to me to be pretty obviously a service or facility," he said.

B&B operators urged to go 'above and beyond'

Cowan said county officials will be speaking with bed and breakfast operators about situations like this.

"We encourage accommodation providers to go above and beyond the legislated requirements to ensure all customers have an outstanding experience," she said.

Meanwhile, Neil Carbone, the county's director of community development, said he's been in touch with Greenwood to ensure his next visit is a more positive one.

"The county prides itself on welcoming all visitors," he said in a statement.

National Post August 17, 2017

Originally posted at
http://nationalpost.com/opinion/bruce-pardy-mental-disabilities-shouldnt-be-accommodated-with-extra-time-on-exams/wcm/dd64d54b-1569-42e0-816e-0186dca980dc

Bruce Pardy: Mental disabilities shouldn't be accommodated with extra time on exams

A professor who awards an A to the best exam and a B to the middle of the pack discriminates between exams. She also discriminates between students on the basis of their cognitive skills and mental abilities
 
Special to National Post

August 17, 2017
           
Last week at the World Track and Field Championships, Usain Bolt ran his final race. Andre De Grasse, the Canadian sprint star, missed his last chance to beat Bolt because of a hamstring tear. If, instead of pulling out of the race, De Grasse had claimed accommodation for his injury and demanded a 20-metre head start, no one would have taken the request seriously.

Yet an equivalent accommodation is standard practice at Canadian universities and colleges. They award extra time on exams and assignments to students who claim mental and cognitive impairments. Extra time for mental disabilities is as unfair to other students as a head start would be to other runners. Human rights legislation does not prescribe such measures. The practice is illegitimate and inconsistent with the law.

The number of Canadian university and college students claiming mental disabilities has increased dramatically in the past decade. Depression, anxiety, obsessive compulsive disorder, learning disabilities, and attention deficit and hyperactivity disorders are common conditions. Some are permanent and others temporary; some are constant and others recurring. Typically, only a medical note is required to get accommodation, even though many clinicians rely on self-reported symptoms to measure impairment. At some universities, students not need even disclose the nature of the condition they claim to suffer. A typical accommodation is an additional 50 per cent of the time allotted (an extra hour for a two-hour exam).

Extra time for mental disabilities is as unfair to other students as a head start would be to runners

Provincial human rights commissions insist that these extra-time accommodations are necessary. These commissions are not neutral investigative bodies but advocacy agencies with expansive agendas and wide powers to interpret and apply human rights code provisions. On this subject, their directions are inconsistent with prevailing principles of human rights law.

Their confusion is in part a product of the tangled concept of discrimination. To "discriminate" means to distinguish or tell apart. While the law prohibits certain specific instances of discrimination, telling people apart is not illegal but an essential tool for functioning in the world. People discriminate constantly. They choose to be friends with some people and not others. Employers hire better qualified candidates rather than those less qualified. Distinguishing between people even on prohibited grounds is proper if done for a bona fide purpose.

The bona fides of any competition are the skills and abilities that the competition tests. The purpose of the race is to discriminate between people based upon their speed. Therefore, it also discriminates against people with disabilities that affect speed, but not in a way that offends the law. No accommodation need be made.

Discrimination is one of the purposes of the exam

Exams are competitions too. A student's grade depends largely upon how his performance compares to his classmates. When a professor awards an A to the best exam and a B to the middle of the pack, she discriminates between exams. Therefore, she also discriminates between students on the basis of their cognitive skills and mental abilities: how well they can think, learn, analyze, remember, communicate, plan, prepare, organize, focus and perform under pressure. Discrimination is one of the purposes of the exam. That discrimination is not illegal or inappropriate. No accommodation need be made.

Other kinds of disabilities can be accommodated because they are not what the exam is testing. Blind students, for example, may need to access exam questions with a text reader. Unlike extra time for mental disabilities, such accommodations create no undue hardships for other students in the class.

Alicia Raimundo is a mental health advocate and a former student at the University of Waterloo diagnosed with dyslexia, depression, anxiety and Asperger's syndrome. Her attitude is typical. Students with mental disabilities, she told Maclean's Magazine last year, "might have the smarts to achieve (grades in the) 90s but will only receive 60s. (Accommodations are) about levelling the playing field."

Extra time does not level the field but tilts it

This claim is false. Extra time does not level the field but tilts it. Given enough time, many students could put together a paper that would earn a 90 — had it been produced within the two hours allotted for the exam. Claiming the right to extra time and then insisting that what you produce is an A paper is like claiming that you should win the gold medal for the 100 metres by running only 80 metres. That logic cheats those who have accomplished more demanding tasks. There is only one gold medal and only a limited number of A grades. Pressure is part of the conditions of the test. Students who can exhibit proficiency only when sources of stress are eliminated are like athletes who can perform at their best only in practice rather than in the big game. Accommodating those students makes no more sense than accommodating the athletes.

The proper purpose of accommodation is to facilitate participation, not to compensate for lack of ability that the test is about. Students who claim extra time for mental disabilities are already able to participate within the normally allotted period. They simply wish to increase their prospects for success at the expense of their peers.

National Post

Bruce Pardy is Professor of Law at Queen's University. This column is based upon an article published in the Education and Law Journal.

National Post August 22,2017

Originally posted at:
http://nationalpost.com/opinion/benjamin-berger-and-lorne-sossin-exams-should-test-mental-ability-not-mental-health/wcm/e3ff770b-edae-4066-b81b-99b39a22fa46

Benjamin Berger and Lorne Sossin: Exams should test mental ability, not mental health

Bruce Pardy correctly notes that more students are requesting exam accommodations. But he effectively suggests students are trying to gain an unfair advantage. We see the issue very differently
 
Students write final exams GREG PENDER/STAR PHOENIX     
 
As we prepare for the start of another lively academic year, the question of how to be fair to students who live with mental health issues is once again top of mind. On Aug. 17, 2017, the National Post published an op-ed by Queen's University law professor Bruce Pardy, which argues that providing exam accommodations to students with mental health issues provides those students with an unfair advantage.

This position strikes us as unfounded, and gives rise to an array of undesirable implications. As we see it, Pardy's claims are based on a number of flawed premises and assumptions, foremost of which is his confusion of mental health and mental ability. We take a different view of the connection between fairness and students' circumstances, and, more fundamentally, on the purpose and nature of legal education.

Pardy is correct to observe that the number of students requesting accommodation on exams has risen. He suggests, in effect, that students are using the system to gain an unfair advantage. We see the rise in accommodations differently. A number of factors are leading more students to recognize and respond to mental health issues, including concerted efforts at law schools and elsewhere to de-stigmatize mental health conditions, to identify and intervene when early warning signs of mental health illness appear, and to provide a range of strategies and services designed with student wellness in mind.

Pardy suggests students are requesting accommodation to gain an unfair advantage

More broadly, there is growing evidence of a higher incidence of mental health illnesses in law school (in Canada as well as countries like the U.S., Australia and the U.K.). We see this trend as symptomatic of a broader problem. More competition, greater expectations, higher tuition and debt, and more stressful circumstances all contribute to the higher incidence of mental health illness at law school. We see this less as a reality to be acknowledged and defended than as a call to action to provide better legal education that is more consistent with students' experiences and our values as educators.

Pardy claims that the point of an exam is to assess how well students perform under pressure, like athletes at a competitive meet. If a mental health issue—such as anxiety or depression—prevents a student from doing well, that condition should not be accommodated, Pardy argues, because it is the point of the evaluation to assess how the student performs under stress (though he acknowledges physical disabilities such as blindness should be accommodated).

But Pardy is confusing mental abilities with mental health. A student's diagnosed mental health condition is not a reflection of his or her intellectual worth, talent or abilities. And exams and assignments should not be exercises in testing mental health. This is one way in which Pardy's attempt to analogize between an athletic race and law school assessment breaks down. Given its animating values and goals, legal education is not a race.

Of course, law school grades will draw distinctions between students. But the goal of evaluation in law school (and other postsecondary fields) is to assess a student's knowledge, critical thinking and problem-solving abilities. The purpose of academic accommodations is to ensure these distinctions are being drawn on those bases, not on the basis of medical conditions. Students with diagnosed mental health conditions—like students with physical disabilities—may require accommodations in order to have a fair opportunity to display these abilities, and to give professors an opportunity to fairly evaluate them. Crafting appropriate accommodations is certainly not an easy task. However, regardless of whether mental health conditions are temporary, situational or chronic, to simply ignore them is unjust to the student and frustrates what we are trying to achieve as educators.

The bigger conundrum is why law schools are exacerbating mental health conditions

Ultimately, however, we do not see the goal of the movement to better accommodate students with mental health conditions as an end in itself. Addressing the reasons why law school contributes to, or exacerbates, mental health conditions is the bigger conundrum.

In its recent Access Osgoode Strategic Plan, Osgoode Hall Law School committed to pursuing "universal design" so as to reduce (and, ideally, eliminate) the need for accommodations in the first place. For example, as Pardy notes, many current accommodations centre on requests for additional time in sit-down, in class exams. Such exams represent only one of many options for evaluating a student's abilities. Other forms of evaluation—from experiential assessments, to take-home exams, to oral presentations, to collaborative problem-solving—could do a better job of determining student performance while at the same time reducing accommodations.

There is another benefit to highlighting the nature and implications of mental health in law school: namely, lawyers play a key role in the mental health system. As we build a more inclusive, accessible and fair law school, our graduates can dedicate themselves to building a more inclusive, accessible and fair society.

Benjamin Berger is a Professor and Associate Dean (Students) and Lorne Sossin is a Professor and Dean of Osgoode Hall Law School at York University.

More Background

To read the Federal Government's report on its public consultation on promised federal accessibility legislation.

To read the Federal Government's summer 2016 Discussion Guide for this consultation, released last summer.
 
To read the Discussion Paper on what the Canadians with Disabilities Act should include, which AODA Alliance Chair David Lepofsky made public in August, 2016.

We encourage you to forward this Update to your Member of Parliament in Ottawa. Urge them to ensure that the promised Canadians with Disabilities Act will address the issues in this analysis, and not just those conclusions in the Federal Government's consultation report.

You can always send your feedback to us on any AODA and accessibility issue at aodafeedback@gmail.com

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We encourage you to use the Government's toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.

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