Test Case Litigation and Interventions

Test Case Litigation

ARCH represents groups and individuals in test case litigation. We focus our test case litigation work in the priority areas set by our Board of Directors.

What is Test Case Litigation?

These are cases whose outcome will affect a large number of people with disabilities or will significantly affect the law as it relates to the rights of people with disabilities in Ontario.

Why is Test Case Litigation important?

Test Case Litigation seeks to address issues that impact more than just one person. In addition, some test cases change the law.

Over the years, ARCH has been involved in many leading disability-related cases, including cases at the Supreme Court of Canada. ARCH has represented persons with disabilities in significant and seminal test cases including the below cases:

JFR V KLL

This decision is important because it states that persons with disabilities must be included in cases that directly impact them.

This case was about M, an adult with a disability and his right to be involved in making decisions about where he lived and who he lived with. During his parents’ divorce proceeding, his father asked the Superior Court to make a parenting order under the Divorce Act. The Superior Court agreed to the parenting order which said that M live with each parent split equally, and that almost all decisions would be made for him by whichever parent he was living with.

The Superior Court made this parenting order despite M not having the opportunity to be involved in the case. The decision was appealed to the Court of Appeal for Ontario.

ARCH represented the Intervener, People First of Canada, at the Court of Appeal. We told the Court that persons with disabilities have the fundamental right to choose where to live and who to live with. The Court agreed that persons with disabilities must be provided the dignity of choice. Highlighting that persons with disabilities must be presumed capable of making decisions. The Court understood and made clear that adults should not be treated like children because of their disability, rather they must be given the same rights as all adults.

Our legal blog on this case can be found ARCH Blog – Case Summary and Analysis: J.F.R v. K.L.L, 2024 ONCA 520

ROSE V AIR CANADA

Timothy Rose uses a power wheelchair as a mobility device. Mr. Rose contacted Air Canada by phone to book a flight to Cleveland, Ohio in July 2016. During this conversation, Air Canada advised Mr. Rose that his mobility device would not fit through the plane’s cargo doors and deemed an oversized item.

Mr. Rose took his matter to ARCH Disability Law Centre to assist with filing an application with the Canadian Transportation Agency, a quasi-judicial tribunal.

After 5 years of litigation, several written submissions, and a 2 day oral hearing, Air Canada made a final decision on August 11, 2023 in Mr. Rose’s favor. Air Canada will now have to accommodate individuals with mobility devices that do not fit into a plane’s cargo area with an accessible flight or by switching the plane. Air Canada is appealing the decision.

HEJKA V THE REGIONAL MUNIVIPALITY OF DURHAM

As a person with a disability, Mr. Hejka had “unconditional eligibility” to use accessible transit under the Durham Region Transit’s paratransit system (“DRT”).

After implementing changes under the Accessibility for Ontarians with Disabilities Act (AODA) to make its conventional buses more accessible, the DRT reassessed Mr. Hejka’s eligibility category to “conditional.” This required that he use a mix of conventional and paratransit services, as well as a mandatory personal care attendant at his own expense.

The Divisional Court re-instated Mr. Hejka’s unconditional eligibility and found the DRT’s decision was unreasonable because it undermined the dignity of Mr. Hejka and amplified barriers to accessibility. The DRT’s decision was unjustifiable given the clear evidence that Mr. Hejka could not safely use conventional transit.

We focus our test case litigation work in the priority areas set by our Board of Directors.

Interventions

ARCH has represented interveners, and acted as an intervener, in many test cases at all levels of court and tribunals.

What is an intervention?

An intervention in court happens when someone who is not part of a lawsuit asks to join the case because they have an interest in the outcome. This person or people may want to defend an issue that they care about, or share important information that could affect the final decision of the court.

Why are interventions important?

Interventions in court are important because it allows people or groups to provide important information or different perspectives that could lead to a fairer or more informed decision. Interventions makes sure that everyone who could be affected by a legal decision has a chance to be heard.

ARCH has represented interveners, and acted as an intervener, in many test cases at all levels of court and tribunals, including the following test cases before the Supreme Court of Canada:

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27

R. v. Slatter, 2020 SCC 36

S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31

Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), [2017] 1 SCR. 591

Cuthbertson v. Rasouli, [2013] 3 S.C.R. 341, 2013 SCC 53

Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 S.C.R. 360

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, 2011 SCC 37

Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4

Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15