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The prospect of political interference is at the heart of the SNC-Lavalin controversy. But it raises more issues related to identifying and preventing inappropriate interference.

Transportation is the lifeline that connects persons with disabilities with the community, and facilitates greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities, yet there is a dearth of sustained research on the legal and societal implications of transportation inequality for persons with disabilities. This article contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of their legal claims. Ultimately, the author argues that narrow interpretations of prevailing law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities. These opportunities may be captured by the application of a new theory of equality that addresses disability discrimination through the lens of what the author terms the ‘universality of the human condition’.

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions, d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to further and strengthen disability access laws on the ground. The federal government has proposed to introduce legislation that will likely establish a framework for the development of accessibility standards within Canada’s federal legislative jurisdiction. This follows on the heels of accessibility legislation being enacted in Ontario (2005), Manitoba (2013) and, most recently, Nova Scotia (2017). Public consultations in 2016-17 for the proposed federal accessibility legislation identified confusion about the practical differences between human rights laws and accessibility laws, and the need for more clarity about how these two laws interact. This study was commissioned to examine the interplay between human rights legislation and accessibility legislation in Canada and internationally. Based on the research findings, several recommendations are made regarding the complete set of governance functions examined. These recommendations include: incorporating a mechanism for public enforcement within the enforcement of accessibility standards, incorporating human rights supports and technical expertise within the development of standards, strengthening the statutory language to ensure an inclusive equality approach, avoiding confusion between reactive and proactive approaches to accessibility legislation by keeping the two systems distinct, and, establishing a Commissioner to take leadership in promoting awareness and systemic culture change, in encouraging compliance and in public education both across the federal government and with the general public. Finally, throughout this report, the author argues that all administrative governance functions in the proposed federal accessibility legislation should be guided by and promote an inclusive equality approach. Inclusive equality is a theoretical framework put forward by the UN that focuses on recognizing the intersectionality of individuals with disabilities in their experiences of disability discrimination. Power relations, access to justice, and the socio-historical context surrounding legal efforts to realize equality by people with disabilities within a reactive regulatory (complaints-based and adjudicative) system should also be considered through this lens.The views expressed in this document are those of the author and not those of Employment and Social Development Canada (Government of Canada) (ESDC).

The Accessibility for Manitobans Act (AMA) was enacted in December, 2013. Manitoba is the second Canadian province to enact accessibility standards legislation. The first province was Ontario, which enacted the Ontarians with Disabilities Act in 2001, and, later, a more fortified and enforceable Accessibility for Ontarians with Disabilities Act, 2005. The AMA presents a strong set of philosophical and social goals. Its philosophical goals mark accessibility as a human right, and aim to improve the health, independence and well-being of persons with disabilities. The AMA’s social goals have the potential to make a positive impact on the development of equality law norms within the context of disability discrimination. Nevertheless, the AMA would be strengthened with a more robust and explicit appreciation of how disability discrimination issues are experienced. The Act should show a greater recognition of the relevance of embodied impairment to individuals with disabilities, and there should be more significant scope for the statute to address intersectionality within disability discrimination. These two challenges replicate the two principal critiques of the social model of disability –the model of disability on which the AMA is based. Finally, for the legislation to be successful, issues of compliance and enforcement that require positive uses of discretion on the part of the civil service should be addressed early on. The findings of this article may be useful for the implementation of the AMA and for the design of future accessibility legislation in Canada and elsewhere.

This paper examines one of the most recent and widespread cases of consultation to occur in the development of lawmaking in Canada: citizen participation in the enactment of accessibility standards for persons with disabilities. Canadian provinces are attempting a new politico-legal experiment to combat disability discrimination. Through consultation processes leading to binding regulations, they are enacting mandatory standards of accessibility under legislation such as the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). These statutes create an antidiscrimination regulatory process designed to offer participatory rights to persons with disabilities and other interested stakeholders in the development of accessibility standards. The standards address conditions of social inclusion in areas such as customer service, employment, transportation, and information and communication, and aim to break down a host of barriers including architectural and attitudinal ones. Collaborative standard development is a new and proactive approach to addressing disability barriers in society. The first part of the paper presents a comparative overview of Canadian accessibility legislation with a focus on citizen participation.

The Accessibility for Manitobans Act (AMA) was enacted in December, 2013. Manitoba is the second Canadian province to enact accessibility standards legislation. The first province was Ontario which enacted the Ontarians with Disabilities Act in 2001 and later a more fortified and enforceable Accessibility for Ontarians with Disabilities Act, 2005. In this article, we provide an overview of the Accessibility for Manitobans Act highlighting its purpose, philosophical and social goals; the standards to be developed and the process for developing the standards; information on the compliance and enforcement of the statute (including penalties and appeal mechanisms) and statutory review of the statute and standards.

This special collection of articles in the Windsor Yearbook of Access to Justice [WYAJ] stems from a symposium of the same name held at the Berkeley Law School at the University of California on 5 December 2014. The Berkeley Symposium is the first conference to bring together scholars and experts from both Canada and the United States to present research and exchange ideas on equality issues affecting persons with disabilities in both countries. Writing this introduction allows me to bring together my identities as a law and disability scholar, the principal organizer and convener of the Berkeley Symposium, and editor-in-chief of the WYAJ. Each academic was invited to write about an equality issue of their choice that is of contemporary concern to persons with disabilities, and to focus on Canada, the United States, or both, at their option. The result is a set of articles that is simultaneously introspective and comparative. The symposium papers fall within the emerging field of Disability Legal Studies. Disability Legal Studies asks us to think about, and critically evaluate, how law engages with and reflects the lived experiences of persons with disabilities, how the law does and should regulate the lives of persons with disabilities, and how persons with disabilities can induce change in policy and legislation. This introduction provides a brief overview of the articles, which fall into three themes: a) social and economic rights, particularly with respect to movement across borders and the definition of capacity to consent; b) the UN Convention on the Rights of Persons with Disabilities (CRPD) as a legal instrument designed to combat disability discrimination and further the socio-economic empowerment of persons with disabilities; and c) disability advocacy, its human and monetary impacts, and how social change may be effected through procedural design.

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.

‘Inquisitorial processes’ refers to the inquiry powers of administrative governance and this book examines the use of these powers in administrative law across seven jurisdictions. The book brings together recent developments in mixed inquisitorial-adversarial administrative decision-making in a hitherto neglected area of comparative administrative process and institutional design. Reaching important conclusions about their own jurisdictions and raising questions which may be explored in others, the book's chapters are comparative. The contributors to this collection, who are leaders in the field, explore the terminology and scope of the concept of inquisitorial process, justifications for the use of inquiry powers, the effectiveness of inquisitorial processes and the implications of the adoption of such powers. The book will set in motion continued dialogue about the inherent challenges of balancing policy goals, fairness, resources and institutional design within administrative law decision-making by offering theoretical, practical and empirical analyses.

Access to information (ATI) dispute resolution is an administrative context in which polyjuralism abounds. This chapter examines the models of dispute resolution used by the legislative officers that have been statutorily created to resolve access to information complaints in Canada. Since the enactment of Canada’s first freedom of information legislation by the federal government in 1983, a debate has emerged as to whether an investigatory approach based on the ombuds tradition or an adversarial adjudicative approach is most suitable for achieving effective regulatory oversight. This chapter contributes to the debate in two ways. First, it defines three typologies for access to information dispute resolution regimes: investigatory, adjudicative, and mixed investigatory-adjudicative, using the access to information statutory regimes of the 14 territorial Canadian jurisdictions as a case study. With respect to mixed investigatory-adjudicative dispute resolution, it argues that the appropriate classification of Access to Information Commissioners endowed with both ombuds-like powers and order-making capacities is to understand them as independent accountability agencies. This avoids concerns about the 'citizen defender' image and denaturing the ombuds’ tradition, and instead properly focuses on the Commissioner as an agent of the policy goal of promoting governmental transparency. Second, this chapter takes an empirical look at how Canada's federal Office of the Information Commissioner is faring with respect to the four theoretical values of: i) institutional competence, ii) access to justice, iii) efficiency, and, iv) effectiveness in promoting government transparency. The empirical data for this discussion is taken from the preliminary results of an online survey administered to access officials in the federal government.

Evaluating Ombuds Oversight in the Canadian Access to Information Context: A Theoretical and Empirical Inquiry - 1

In the past decade or so, one has seen an increase in the use of the term “inquisitorial” with it becoming de rigueur for many instances of non-adversarial decision-making in the administrative state. The phenomenon of terming non-adversarial administrative process as inquisitorial, is not peculiar to Canada. In other Commonwealth jurisdictions where the adversarial tradition prevails, such as Australia and the UK, a similar phenomenon has occurred. Similarly, in the United States, the Supreme Court has labeled the federal Social Security adjudicatory scheme an inquisitorial procedure, owing in part to the investigatory nature of the Administrative Law Judge. Despite the classification, in most jurisdictions around the world, the meaning of the term “inquisitorial” refers to many different concepts and processes that often do not replicate the pure inquisitorial model that originated in the Civil Law tradition. This article reports on an international research workshop that brought together academics, policy-makers, and judges who have served as Commissioners of public inquiries, to discuss polyjural decision-making in the administrative state. Participants stemmed from traditionally adversarial and inquisitorial jurisdictions, generating innovative comparative insights on hybridized administrative process and institutional design, in relation to hearing processes, legislative oversight, ombudsman, public inquiries and administrative investigations. The conference website can be found at: http://www.uwindsor.ca/law/inquisitorial-processes/ .