Deanna Steblyk, KC: Good morning.
Deanna Steblyk, KC: We're pleased to welcome you to today's webinar accessibility in the legal profession, opportunities for change-making and discussion
Deanna Steblyk, KC: today. December 3rd is also the international day of persons with disabilities.
Deanna Steblyk, KC: The 2024 theme is amplifying the leadership of persons with disabilities for an inclusive and sustainable future. We hope that we've captured the spirit of this year's theme by featuring some esteemed speakers to share their knowledge and experiences with you. Today.
Deanna Steblyk, KC: We hope that you'll leave this session equipped with some valuable information.
Deanna Steblyk, KC: First, st just a quick introduction. I'm Deanna Steblik Casey, president of the Law Society of Alberta.
Deanna Steblyk, KC: It's my honor and pleasure to introduce to you today your speaker and your panel for today's session. But before I do that I'd like to briefly walk you through a few features of the Zoom Webinar software that we're using today.
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Deanna Steblyk, KC: before we get into today's content. I'd like to acknowledge the traditional lands and territories of the indigenous peoples who have lived on these lands, and have taken care of them since time immemorial.
Deanna Steblyk, KC: What became known as the Province of Alberta in 19 0. 5 is also the traditional and ancestral home to many indigenous peoples, and for that we're honoured to have shared this land with them since Treaties 6, 7, and 8 were entered into
Deanna Steblyk, KC: Alberta is also the historical Northwest Metis homeland, which includes 5 territories.
Deanna Steblyk, KC: We acknowledge the many 1st nations, Metis and Inuit, who have lived in and cared for these lands for generations. We're grateful for the traditional knowledge keepers and elders who are still with us today and those who have gone before us.
Deanna Steblyk, KC: We make this acknowledgment as an act of reconciliation and gratitude to those whose territory we reside on or are visiting.
Deanna Steblyk, KC: We'll now turn to our keynote speaker, David Leposky for his perspective on today's topic. David is a retired lawyer who chairs the accessibility for Ontarians with disabilities act alliance. During his 33 years of practice. David served as counsel for the Ontario Government.
Deanna Steblyk, KC: He argued civil cases, constitutional cases, and for the last 23 years criminal cases.
Deanna Steblyk, KC: He appeared in the Supreme Court of Canada on 30 cases, and in the Ontario Court of Appeal for approximately 200 appeals
Deanna Steblyk, KC: listing David's career and volunteer achievements would take the duration of our time today. So I'll simply ask folks to refer to the Zoom landing page for this event for a brief synopsis.
Deanna Steblyk, KC: It's safe to say that David is one of the foremost experts in the intersection of the legal system and disabilities in Canada, and his decades of experience as both counsel, educator, and advocate is remarkable.
Deanna Steblyk, KC: David, please go ahead with your remarks. Thank you.
David Lepofsky, CM, O. Ont, LLB, LLM: Thank you so very much for including me. I am under strict instruction from your moderator
David Lepofsky, CM, O. Ont, LLB, LLM: not to tell you that I'm in South Florida, about 10 meters away from the
David Lepofsky, CM, O. Ont, LLB, LLM: the Everglades. So I am going to honor those instructions most vigorously.
David Lepofsky, CM, O. Ont, LLB, LLM: I will try to send in the chat box a bit of the warm weather, and hope you folks are getting through the colder weather.
David Lepofsky, CM, O. Ont, LLB, LLM: It's really an honor to be here, especially on the international day, for people with disabilities. But what we need on this day is not what usually happens in our legislatures, which is
David Lepofsky, CM, O. Ont, LLB, LLM: politicians of all political strikes, professing their deep commitment to the needs of people with disabilities, and how we have more to do and all that kind of stuff. What we actually need to do is focus on doing stuff. And that's what I'm going to talk about. We live in a world that is largely, if not overwhelmingly, organized and operated, based on a very pervasive.
David Lepofsky, CM, O. Ont, LLB, LLM: central, and completely ridiculous organizing principle.
David Lepofsky, CM, O. Ont, LLB, LLM: and that is that it is overwhelmingly for people without disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: The buildings that we go to the public transit. We ride
David Lepofsky, CM, O. Ont, LLB, LLM: the schools where we study, and the curriculum and content they teach, and the equipment they have there.
David Lepofsky, CM, O. Ont, LLB, LLM: the stores where we shop, and the goods that are sold there, the workplaces where we work.
David Lepofsky, CM, O. Ont, LLB, LLM: and indeed the courts of law, where we go for justice and the laws that apply to us there are overwhelmingly designed, as if they're for people with disabilities. Well, probably people without disabilities and not for people with disabilities. Now.
David Lepofsky, CM, O. Ont, LLB, LLM: of course, there's no great conspiracy. This is not deliberate.
David Lepofsky, CM, O. Ont, LLB, LLM: but the thing is, had there been a conspiracy, and had it been deliberate, our world would not look a whole lot different than it does today. Yeah, we do provide some accommodations for people with disabilities. But it's usually an afterthought. It's usually after a struggle. And it's usually after being told that. Well, this is what we can do, but it's you know, it's not the right time.
David Lepofsky, CM, O. Ont, LLB, LLM: We'd love to do more. And you know we're so inspired by what you can, what you've accomplished
David Lepofsky, CM, O. Ont, LLB, LLM: and that kind of stuff.
David Lepofsky, CM, O. Ont, LLB, LLM: Well, the thing is, we live in a world full of barriers.
David Lepofsky, CM, O. Ont, LLB, LLM: and this is a gathering of lawyers. So let's let's apply a little law. The fact is, all these barriers are illegal.
David Lepofsky, CM, O. Ont, LLB, LLM: They violate provincial human rights legislation in the Federal sphere. The Canada Human Rights Act.
David Lepofsky, CM, O. Ont, LLB, LLM: If it's in the public sphere, the public sector, they violate. Section fifteen's guarantee of equality for people with disabilities, and for many provinces. Sadly, not yet Alberta, but for many provinces and the Federal Government, they they fly in the face of accessibility, legislation, like the accessibility for Ontarians with Disabilities Act passed in 2,005. I had the privilege of leading the campaign to get that law
David Lepofsky, CM, O. Ont, LLB, LLM: past, and the accessible Canada act passed in 2019.
David Lepofsky, CM, O. Ont, LLB, LLM: The only vaguely contestable or interesting legal question to discuss is how long obligated organizations have to remove
David Lepofsky, CM, O. Ont, LLB, LLM: those barriers, not whether they have to.
David Lepofsky, CM, O. Ont, LLB, LLM: Now, before I go any further, I want to sort of focus on who this touches. When I talk about people with disabilities, people with a physical disability, people with a sensory disability, like blind people like myself, or people who are deaf or hard of hearing, or who have low vision, people with intellectual disabilities, learning, disabilities, communication disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: people with mental health conditions, the whole spectrum neurological disabilities, neurodiverse people. We're a rather large number of folks across the country. We're upwards of 8 million around the world
David Lepofsky, CM, O. Ont, LLB, LLM: over a billion.
David Lepofsky, CM, O. Ont, LLB, LLM: But even those numbers understate our numbers
David Lepofsky, CM, O. Ont, LLB, LLM: because every one of you attending this webinar today
David Lepofsky, CM, O. Ont, LLB, LLM: either has a disability now, like I do.
David Lepofsky, CM, O. Ont, LLB, LLM: or has someone near and dear to you with a disability? The barriers that hurt them hurt you.
David Lepofsky, CM, O. Ont, LLB, LLM: or you're inclined to get. You're destined to get a disability later in your life.
David Lepofsky, CM, O. Ont, LLB, LLM: because the most common cause of disability is aging. And guess what we're all doing that so
David Lepofsky, CM, O. Ont, LLB, LLM: ultimately people with disabilities adversely affected by this ridiculously ridiculous organizing principle that pervades our society
David Lepofsky, CM, O. Ont, LLB, LLM: are the minority of everyone.
David Lepofsky, CM, O. Ont, LLB, LLM: Well, let's turn our attention to legal services, courts, and the like.
David Lepofsky, CM, O. Ont, LLB, LLM: These barriers apply there, just like everywhere else.
David Lepofsky, CM, O. Ont, LLB, LLM: And one thing we've all learned, those of us who do disability, advocacy as a volunteer activity, and others
David Lepofsky, CM, O. Ont, LLB, LLM: is that accessibility doesn't happen by accident.
David Lepofsky, CM, O. Ont, LLB, LLM: Barriers don't get removed by accident.
David Lepofsky, CM, O. Ont, LLB, LLM: They only get removed when you set about to do it. They only get removed when the law is effectively implemented that guarantees us rights.
David Lepofsky, CM, O. Ont, LLB, LLM: our rights and when people plan for it. Now, what's distinctive about a lot of the rights. I've talked about the guarantee of equality in Section 15 of the Charter of Rights to people with disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: The guarantees in these provincial and the Federal accessibility. Law
David Lepofsky, CM, O. Ont, LLB, LLM: guarantees and human rights codes like in the Ontario Human Rights Code, where I was involved in fighting for the amendment we got with others. Many others is these aren't laws that were handed down to us by politicians writing political platforms or public servants, drafting policy briefs. These rights actually came from us first.st They're they're not. They were grassroots
David Lepofsky, CM, O. Ont, LLB, LLM: movements. Excuse me, that generated them
David Lepofsky, CM, O. Ont, LLB, LLM: that we came to government and and fought for these very often.
David Lepofsky, CM, O. Ont, LLB, LLM: Which is different from most rates.
David Lepofsky, CM, O. Ont, LLB, LLM: most legislation that we study in law schools and deal with in our law practices. If you want to know the saga of how disability got into the charter of rights back in 1980. I've actually written a memoir about it.
David Lepofsky, CM, O. Ont, LLB, LLM: It's a personal memoir. I was one of the many people who fought for it. It's available online, it's published. And it's free. Just Google swimming up Niagara Falls.
David Lepofsky, CM, O. Ont, LLB, LLM: I called it that because fighting for the disability charter. Like battling many of these barriers often feels like we're swimming up Niagara Falls.
David Lepofsky, CM, O. Ont, LLB, LLM: So what are the barriers in the court system?
David Lepofsky, CM, O. Ont, LLB, LLM: Well, the good news is, we don't have to guess. We know.
David Lepofsky, CM, O. Ont, LLB, LLM: In 2,005 the Chief Justice of Ontario.
David Lepofsky, CM, O. Ont, LLB, LLM: the now late Roy Mcmurtry, a wonderful visionary jurist in person he appointed a committee of judges, lawyers.
David Lepofsky, CM, O. Ont, LLB, LLM: government officials, and people, with disabilities to make a report to the courts, and the Attorney general, on what barriers face people with disabilities in the courts, and what needs to be done about it.
David Lepofsky, CM, O. Ont, LLB, LLM: I had the privilege. Excuse me, of
David Lepofsky, CM, O. Ont, LLB, LLM: You're not going to sympathize if I tell you I got hay fever here.
David Lepofsky, CM, O. Ont, LLB, LLM: The he appointed this committee. I had the privilege of serving on it. It was led by then Court of Appeal, Justice Karen Wyler, and it resulted in the Wyler Report, WEIL. ER. Now on our Court of Appeal website in Ontario, and among the links that will be provided to you. In connection with this presentation.
David Lepofsky, CM, O. Ont, LLB, LLM: we surveyed and identified the barriers in the court system and provided an outline for what? What our vision of what an accessible court system would be.
David Lepofsky, CM, O. Ont, LLB, LLM: and then made a recommendation, an action, a series of recommendation, an action plan.
David Lepofsky, CM, O. Ont, LLB, LLM: and I'm going to talk to you about that, and what's been done about it. It is, to my knowledge, the only such action plan
David Lepofsky, CM, O. Ont, LLB, LLM: in the country, and it's 1 that Alberta could borrow from build upon use and indeed improve it.
David Lepofsky, CM, O. Ont, LLB, LLM: the courts have
David Lepofsky, CM, O. Ont, LLB, LLM: built environment barriers. We have many courthouses that are not fully accessible to people with all disabilities. When I talk about the built environment and accessibility, you probably 1st think about flights of stairs instead of ramps that might impede people with using wheelchairs. But there are built environment barriers that affect people with many other kind of disabilities, including blindness.
David Lepofsky, CM, O. Ont, LLB, LLM: You would think that by now we'd have solved this problem. But sadly, we haven't building codes across the country are woefully inadequate and do not adequately cover our accessibility needs. You can build a new building strictly to code, and it'll be replete with disability barriers. This is not just a hypothetical. I can give you a brutal example. It's a new courthouse in the heart
David Lepofsky, CM, O. Ont, LLB, LLM: of downtown Toronto.
David Lepofsky, CM, O. Ont, LLB, LLM: A new Ontario Court of justice. Criminal Trial Court was opened to replace 6 satellite courts opened last year.
David Lepofsky, CM, O. Ont, LLB, LLM: It is replete with disability barriers.
David Lepofsky, CM, O. Ont, LLB, LLM: If you want a to see examples, including suggestions over what they should have done.
David Lepofsky, CM, O. Ont, LLB, LLM: just go to Youtube and search on 1 billion dollar accessibility bungle
David Lepofsky, CM, O. Ont, LLB, LLM: 1 billion dollar accessibility bungle. I co-produced a video went up on
David Lepofsky, CM, O. Ont, LLB, LLM: on Youtube last August, gotten tons of media. And, needless to say, a bit of government attention, but too late.
David Lepofsky, CM, O. Ont, LLB, LLM: because it documented the barriers and proves
David Lepofsky, CM, O. Ont, LLB, LLM: that we actually warned them about them in advance.
David Lepofsky, CM, O. Ont, LLB, LLM: So that's 1 area that we have to worry about. Both new courts and old courts.
David Lepofsky, CM, O. Ont, LLB, LLM: The second kind of barriers we could face are information barriers. Courts are a place where we pass where we deal with a lot of information, usually in printed documents or electronic documents. These could create barriers for people who are blind.
David Lepofsky, CM, O. Ont, LLB, LLM: or people who are dyslexic or people who cannot manipulate physical pages because of motor limitations.
David Lepofsky, CM, O. Ont, LLB, LLM: There are alternative formats that can make these accessible. But we need a strategy to make sure that happens.
David Lepofsky, CM, O. Ont, LLB, LLM: You might think, oh, heck! We have a solution. All those blind folks know. They lots of them use talking computers. We'll just send them a Pdf.
David Lepofsky, CM, O. Ont, LLB, LLM: but guess what? Pdf is a terrible format for accessibility. And if you hear anyone ever say, Oh, we could send an accessible Pdf.
David Lepofsky, CM, O. Ont, LLB, LLM: the term accessible Pdf is an oxymoron.
David Lepofsky, CM, O. Ont, LLB, LLM: probably created by the adobe company.
David Lepofsky, CM, O. Ont, LLB, LLM: Pdfs are a pain. If you provide a document in Pdf.
David Lepofsky, CM, O. Ont, LLB, LLM: you should ask somebody if they may have a print disability, what alternative format they need. Often something like simple, as Ms word will solve the problem. Communication communication is a huge central part about court.
David Lepofsky, CM, O. Ont, LLB, LLM: We are talkers. Courtrooms are a talking place. If you have a communication disability that can create all sorts of barriers that could include deafness, hard of hearing, or any number of other communication, related disabilities for somebody with an intellectual disability. Our
David Lepofsky, CM, O. Ont, LLB, LLM: professions,
David Lepofsky, CM, O. Ont, LLB, LLM: Failure to use plain language
David Lepofsky, CM, O. Ont, LLB, LLM: can constitute a barrier, because for a person with an intellectual disability, the lack of plain language itself is a communication barrier
David Lepofsky, CM, O. Ont, LLB, LLM: Another category of barriers can relate to scheduling needs. There are people who have chronic fatiguing conditions, chronic pain, maybe on medication that makes them weaker or stronger at different times of the day, or more alert or less alert. There are people who need frequent washroom breaks
David Lepofsky, CM, O. Ont, LLB, LLM: a full day's court schedule, a rigid court schedule, where you simply sit there till you're told that there's a break, maybe more than people can manage.
David Lepofsky, CM, O. Ont, LLB, LLM: Now. There are accommodations that can address all of these. There is no reason why we can't have an accessible legal process.
David Lepofsky, CM, O. Ont, LLB, LLM: Similarly, there are, and the courts accessibility, or the the Wyler report will give you concrete examples of what to do.
David Lepofsky, CM, O. Ont, LLB, LLM: Let me offer you 3 resources
David Lepofsky, CM, O. Ont, LLB, LLM: that could help Alberta make huge progress on this and start on it literally tomorrow. First, st it is very worthwhile to set up your own provincial Courts Accessibility Committee. The Wyler report recommended that we establish one in Ontario as a permanent body. It's called the Ontario Courts Accessibility Committee or ocac. It is co-chaired by a Justice of the Court of Appeal.
David Lepofsky, CM, O. Ont, LLB, LLM: currently Mikkel Fairburn, the Associate Chief Justice of Ontario, and I'm honored to say, a good friend.
David Lepofsky, CM, O. Ont, LLB, LLM: and the Assistant Deputy Attorney General for Ontario, responsible for court services. So by having people that senior
David Lepofsky, CM, O. Ont, LLB, LLM: leading the committee is a huge advantage. We have representatives from all levels of court, from major lawyer organizations like the Advocate Society, the Bar Association, and the Law Society. We have representations from the disability community and key government representatives. We meet quarterly. I've been serving on it since it started. We don't have any statutory mandate. You don't need any regulations passed. We were just jointly appointed by the then Attorney General, and then Chief Justice
David Lepofsky, CM, O. Ont, LLB, LLM: back in the late 2 thousands.
David Lepofsky, CM, O. Ont, LLB, LLM: and we just carry on. Our mandate is to provide oversight to progress. And as a non statutory body, we have been on top of this meeting after meeting, focusing on priority areas working with the government, but also raising issues where they need to improve.
David Lepofsky, CM, O. Ont, LLB, LLM: So that's the 1st thing. And the Wilet report provides a really nice roadmap
David Lepofsky, CM, O. Ont, LLB, LLM: of what they need to do, and you folks could simply take that, grab it and then look at it and see what, if anything, you need to improve on, we'd love to learn from what things you come up with, that we haven't yet
David Lepofsky, CM, O. Ont, LLB, LLM: the next step that we took, and this came from the Weiler report, and it has made a real difference.
David Lepofsky, CM, O. Ont, LLB, LLM: Is people need one stop shopping if they go to a court, and they need to ask for accommodation of of their disability. Not every court staff, not every judge, will know what to do.
David Lepofsky, CM, O. Ont, LLB, LLM: So what we, what we did is we went to the government, and the Government agreed back in the late 2 thousands we've had it ever since. Is the Government has identified. Excuse me. One court services person, at least
David Lepofsky, CM, O. Ont, LLB, LLM: in every major court facility as the disability, accessibility and accommodation coordinator. That's not a new hire.
David Lepofsky, CM, O. Ont, LLB, LLM: It's just someone on existing staff, instead of trying to train up everybody and think of how much turnover there is on everything that's available. They train up this core of people, network them, have a couple of folks at head office at the Ministry of the Attorney General, and it provides them to not only be a 1-stop shopping resource for members of the public, the legal profession and judges.
David Lepofsky, CM, O. Ont, LLB, LLM: They don't do everything. They connect people with what they need, so they can get things done. But it also
David Lepofsky, CM, O. Ont, LLB, LLM: provides us at the Court's Accessibility committee with really good information.
David Lepofsky, CM, O. Ont, LLB, LLM: We get reports every year or so on what the requests they get are, and one of the most common requests, if not the most common request, year after year is
David Lepofsky, CM, O. Ont, LLB, LLM: for hearing supports or listening supports. This led the ministry to decide that they would go into the courts
David Lepofsky, CM, O. Ont, LLB, LLM: and do a systematic upgrade of the PA systems put them into some courtrooms where they didn't have them. In other words.
David Lepofsky, CM, O. Ont, LLB, LLM: picking up on a problem they might not have otherwise picked up on, because they were a problem that individuals faced. But nobody was tracking. The one big problem with this system so far is that
David Lepofsky, CM, O. Ont, LLB, LLM: too many lawyers, too many members of the public coming to court don't know about the court accessibility coordinators. So we at the Courts Accessibility Committee are trying to get the government to do a better job of publicizing it. So if you combine the Courts Accessibility Committee.
David Lepofsky, CM, O. Ont, LLB, LLM: the roadmap, and the coordinators, there's a real potential for moving things forward.
David Lepofsky, CM, O. Ont, LLB, LLM: and you can get get the Weiler report. It's in the hyperlinks that I'm providing to you. But if folks at the Law society want to get together with people at the government and the judiciary, and say, Why don't we pull something like this together?
David Lepofsky, CM, O. Ont, LLB, LLM: I can assure you that we in Ontario, both at the Courts Accessibility Committee, and I'm sure the Ministry of the Attorney General Staff would be happy to plug you in. You could listen in on a couple of our meetings because we do them hybrid, get ideas and and run with it. We don't have some big 20 year game plan. We've been just kind of rolling with it year after year, taking steps towards progress.
David Lepofsky, CM, O. Ont, LLB, LLM: The other thing that's available beyond the courts themselves. We have to focus on accessibility challenges that clients with disabilities face when trying to get services from lawyers. I could tell you that I've been a visiting professor teaching.
David Lepofsky, CM, O. Ont, LLB, LLM: focusing on disability rights since I retired at the end of 2015, at 3 successive law schools at Osgood for 7 and a half years, right now at Western law for 2 years, and in the 1st year of what I'm hoping will be a longer engagement at the University of Ottawa.
David Lepofsky, CM, O. Ont, LLB, LLM: I give guest lectures on areas of the law as they could affect people with disabilities. I'm going to be giving one right at the top of the hour, which is why, I've got to finish my talk to you and then leap into giving a class. This involves giving instruction to students
David Lepofsky, CM, O. Ont, LLB, LLM: on the areas of law that could affect people with disabilities
David Lepofsky, CM, O. Ont, LLB, LLM: that we don't usually teach about in law schools.
David Lepofsky, CM, O. Ont, LLB, LLM: It's not enough to have at a law school an individual course on disability rights which is good if they have one. Many don't, but that'll only address a few students. All students will eventually serve clients with disabilities in criminal family, public law, private law, wide range of different areas that can come up.
David Lepofsky, CM, O. Ont, LLB, LLM: I've written a law journal article
David Lepofsky, CM, O. Ont, LLB, LLM: based on my experience giving guest lectures in over 30 classes, different subject areas on curriculum that we could be relating.
David Lepofsky, CM, O. Ont, LLB, LLM: The article is entitled, People with disabilities need lawyers, too.
David Lepofsky, CM, O. Ont, LLB, LLM: It's available online. Again, it's free as a download. It's in the Windsor Yearbook of Access to justice. I encourage you to encourage the law schools in Alberta.
David Lepofsky, CM, O. Ont, LLB, LLM: one of whom I've given a guest faculty seminar to on this article a couple years ago, I'd encourage them that they need to make sure law students are trained not only to serve clients without disabilities, but also to serve clients with disabilities
David Lepofsky, CM, O. Ont, LLB, LLM: that includes not only teaching about substantive law, but also clinical practices that affects people with disabilities. How do you communicate at a law firm
David Lepofsky, CM, O. Ont, LLB, LLM: with a client who has a disability that impedes spoken word communication?
David Lepofsky, CM, O. Ont, LLB, LLM: How do you deliver documents to someone who's blind and can't read print.
David Lepofsky, CM, O. Ont, LLB, LLM: Well, here are resources.
David Lepofsky, CM, O. Ont, LLB, LLM: The Law Society of Upper Canada, as part of our Court's Accessibility Committee activities conducted a series of
David Lepofsky, CM, O. Ont, LLB, LLM: 6 webinars between the year 2010, and 2015, or 2,016.
David Lepofsky, CM, O. Ont, LLB, LLM: 5 of them are about accommodating people with disabilities in court.
David Lepofsky, CM, O. Ont, LLB, LLM: and there were panels, one on blindness.
David Lepofsky, CM, O. Ont, LLB, LLM: one on people who are deaf or hard of hearing, one on people with intellectual disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: one on people with mental health challenges the entire spectrum, the United Nations of Disabilities recovered
David Lepofsky, CM, O. Ont, LLB, LLM: in the 6th of those webinars
David Lepofsky, CM, O. Ont, LLB, LLM: focused on, how do you adapt your law, firm or law office to ensure that you're effectively serving clients with disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: I had the privilege of leading all of those webinars. They're now all available and captioned on Youtube the link to the
David Lepofsky, CM, O. Ont, LLB, LLM: entire package of them is going to be provided to you in connection with the collection of links associated with my talk. And I've done. Guest talks on this at law school, also talking to clinic. I just gave a talk a few days ago
David Lepofsky, CM, O. Ont, LLB, LLM: at a clinical education class at at University of Ottawa. These are students doing clinical education placements in in family or or criminal or other poverty law contexts.
David Lepofsky, CM, O. Ont, LLB, LLM: And I'm talking there, not about substantive law, but answering these very practical questions about how to effectively meet serve clients with disabilities.
David Lepofsky, CM, O. Ont, LLB, LLM: If we teach interviewing
David Lepofsky, CM, O. Ont, LLB, LLM: at law school, which some do, we should be teaching, interviewing where a person that you're interviewing may not be able to get in the room, or may not be able to communicate in spoken language without an accommodation, support, and so on.
David Lepofsky, CM, O. Ont, LLB, LLM: So let me wrap up by summarizing
David Lepofsky, CM, O. Ont, LLB, LLM: number one. We have a court system and a legal profession, and a legal system that are, like the rest of society, replete with disability barriers.
David Lepofsky, CM, O. Ont, LLB, LLM: We have a collective obligation to remove these barriers and prevent new ones.
David Lepofsky, CM, O. Ont, LLB, LLM: That doesn't happen by accident. It only happens if we plan for it.
David Lepofsky, CM, O. Ont, LLB, LLM: There are ways, systematic ways, that this can be done.
David Lepofsky, CM, O. Ont, LLB, LLM: Ontario, I'm proud to say, has taken some good steps.
David Lepofsky, CM, O. Ont, LLB, LLM: We haven't made as much progress as we need, but we certainly are well further ahead of where we would have been had we not launched on this
David Lepofsky, CM, O. Ont, LLB, LLM: back around 2,005. Thanks to the late Roy Mcmurtry, we can. Alberta is well positioned to pick up on this, to run forward, to actually proceed much more quickly than we did, borrowing from what we've done, so that you don't have to reinvent the wheel.
David Lepofsky, CM, O. Ont, LLB, LLM: I encourage you to.
David Lepofsky, CM, O. Ont, LLB, LLM: I encourage your law society, your organized legal profession, your Attorney General's ministry, and your judiciary, to come together.
David Lepofsky, CM, O. Ont, LLB, LLM: form an Ontario court or form an Alberta Courts accessibility committee, and get to work on looking at ways you could take steps like the ones we've described. And you've got free resources. And if you just need a little motivation like, I said, Google, 1 billion dollar accessibility bungle, 14 min walk, 14 min of watching that video. And you'll see why you just can't expect that the obvious and simplest things will get done right
David Lepofsky, CM, O. Ont, LLB, LLM: before I wrap up. I want to give you a Ps.
David Lepofsky, CM, O. Ont, LLB, LLM: And it's a Ps. That dates back a couple of weeks ago, so I got this invitation
David Lepofsky, CM, O. Ont, LLB, LLM: from the Government of Canada.
David Lepofsky, CM, O. Ont, LLB, LLM: A couple of them.
David Lepofsky, CM, O. Ont, LLB, LLM: Excuse me. A couple of months ago they were said that there's going to be a conference on access to justice for people with disabilities. The topic we're talking about today, and it's going to be in Jamaica, hey? If I if I was invited, what could I talk about? So I summarized for the government the things I'm now describing for you.
David Lepofsky, CM, O. Ont, LLB, LLM: Next thing you knew
David Lepofsky, CM, O. Ont, LLB, LLM: I got invited to speak in Kingston, Jamaica, a couple of weeks ago. At this Conference of Jamaican Academics.
David Lepofsky, CM, O. Ont, LLB, LLM: Jamaican Disability advocates, Jamaican Disability Service Providers, Police Minister of Justice and the Chief Justice all in one room.
David Lepofsky, CM, O. Ont, LLB, LLM: talking about what more should be done to achieve access to justice?
David Lepofsky, CM, O. Ont, LLB, LLM: 2 thoughts that come from this, that I invite you to draw upon Number One.
David Lepofsky, CM, O. Ont, LLB, LLM: They had that conference. It was sponsored by the Government of Canada as part of our UN development contribution. I am so proud of this.
David Lepofsky, CM, O. Ont, LLB, LLM: but we've never had a conference like that here here in Canada.
David Lepofsky, CM, O. Ont, LLB, LLM: So Alberta could be the first, st
David Lepofsky, CM, O. Ont, LLB, LLM: and you could put the rest of us to shame if our Government can help fund that in the in Jamaica our provincial Government could help fund that in in Alberta.
David Lepofsky, CM, O. Ont, LLB, LLM: The second thing I heard about, and I'd never heard of this before.
David Lepofsky, CM, O. Ont, LLB, LLM: The Canadian Government was funding a program to help Jamaica with a strategy
David Lepofsky, CM, O. Ont, LLB, LLM: by providing sign language training to some court officials and some lawyers.
David Lepofsky, CM, O. Ont, LLB, LLM: and I thought, That is brilliant, and we've never even tried that
David Lepofsky, CM, O. Ont, LLB, LLM: if we offered sign language training and could get some public subsidy for it at our law schools. I bet you we'd have law students lining up to learn it.
David Lepofsky, CM, O. Ont, LLB, LLM: and we have a shortage of sign language interpreters. So this would be fantastic again. Hey, Alberta.
David Lepofsky, CM, O. Ont, LLB, LLM: put the rest of us to shame. Grab that idea that I learned about in Jamaica and run with it.
David Lepofsky, CM, O. Ont, LLB, LLM: Thank you very much. Happy international day for people with disabilities, and I I wish you the best of luck with the rest of your conference.
Deanna Steblyk, KC: Thank you so much, David, for your insights and your contribution to this important topic. I really appreciate how you've helped contextualize the key role that lawyers play both as advocates and as people who have disabilities. And I know you're short on time today, and you have to go teach that class, but we very much appreciated the time you were able to spend with us today. So thank you again.
David Lepofsky, CM, O. Ont, LLB, LLM: Thanks, so much.
Deanna Steblyk, KC: All right. So, moving on, we are shifting to our panel, and they are going to help provide some insights into accessibility in Alberta's legal profession.
Deanna Steblyk, KC: Taking over the hosting duties for me will be Roxanne Davis. Casey Roxanne is a lawyer, and the managing partner at Carbert Waite, Llp.
Deanna Steblyk, KC: Roxanne's practiced litigation for more than 20 years with a focus on employment law
Deanna Steblyk, KC: she regularly presents at seminars and conferences on topics related to human rights, including the duty to accommodate
Deanna Steblyk, KC: joining. Roxanne is Taylor Grantham, a litigation lawyer practicing in commercial and family litigation. Taylor graduated from the University of Calgary faculty of law in 2019, where she was awarded the Provincial Court of Alberta. Judges award of merit for contributions to access to justice
Deanna Steblyk, KC: diagnosed with cerebral palsy at birth. Taylor applies the skills she's developed in overcoming adversity to her legal practice.
Deanna Steblyk, KC: And finally, we have Bob Fenton Casey, who currently holds the role of director of legal services for the Calgary Police service.
Deanna Steblyk, KC: His three-decade legal career is marked with many highlights, including acting as legal counsel for Team Canada. During the 2,018 winter Paralympic games in Pyongyang, South Korea.
Deanna Steblyk, KC: Bob, who's been blind since birth, is also the chair of the Board of Directors for the Canadian National Institute for the blind
Deanna Steblyk, KC: Roxanne. I turn it over to you and leave the panel discussion in your capable hands. Thanks.
Roxanne Davis, KC: Thank you, Deanna.
Roxanne Davis, KC: We're very happy to be here today with everyone.
Roxanne Davis, KC: It can be challenging for everyone to have discussions surrounding the topic of disability. Those experiencing disabilities can fear that they will experience discrimination if they
Roxanne Davis, KC: make disclosures or speak out, and others can be fearful of causing offense.
Roxanne Davis, KC: to say nothing of a number of other challenges to having these types of discussions. So we wanted to start the panel today with the discussion of how we can approach the topic of disability in the workplace.
Roxanne Davis, KC: Taylor, would you like to lead us off with some comments on that.
Taylor Grantham: Sure. So, assuming everybody can hear me. Okay, I just want to start by saying that my comments are informed by my experience with disability, my experience as an employee and my experience as a lawyer and employer. So while my comments come from a breadth of experience, they're certainly not going to work for everybody, be tailored to everybody, and they're just recommendations in the hope that you learn something, and you can take something away from this.
Taylor Grantham: My advice on this point would be that as with anything in the workplace, your starting point should be respect
Taylor Grantham: and common sense. So while we're having a very public discussion today.
Taylor Grantham: My advice is that the initial pro approach with respect to conversations around disability should occur in private.
Taylor Grantham: and that successful accommodation will ultimately likely lead to a more public and open discussion and inclusivity in your workplace. But what you need to make sure in 1st instance.
Taylor Grantham: is that you're respecting the employees, privacy enough to have those discussions so that they feel comfortable opening up.
Taylor Grantham: And then, once you've done that, you've implemented the original or initial recommendations, recommend reviewing
Taylor Grantham: and making sure that it's going well on an ongoing basis.
Taylor Grantham: Me.
Roxanne Davis, KC: Thanks, Ted.
Robert Fenton, KC: I I think I would add a couple of points here to
Robert Fenton, KC: All of us are bound by the rules of professional conduct, and that requires a certain standard of behavior of us, and that's to be respectful and to be civil
Robert Fenton, KC: and to be kind.
Robert Fenton, KC: And if you approach a conversation around disability with those kind of ideas in mind.
Robert Fenton, KC: You're gonna get it right more often than you're gonna get it wrong. And if you ask people what they need
Robert Fenton, KC: rather than telling people what they can or should have.
Robert Fenton, KC: You'll probably end up achieving a much better result both for you and the the person that you're communicating with.
Robert Fenton, KC: It's all about discussion. It's all about being inquisitive, asking questions, learning.
Robert Fenton, KC: and yes, making mistakes on both sides. I know I've made my share over my 30 odd year career, and I suspect others in this room have, too.
Robert Fenton, KC: but that shouldn't discourage us from trying. We should continue to
Robert Fenton, KC: try and keep moving forward and and making efforts to to learn from each other. And I learned a very valuable lesson recently, when I was conducting interviews with a colleague at work, and
Robert Fenton, KC: they were going on about how this candidate was was, had odd facial expressions when they were answering questions, and they weren't. They were looking around the room and they weren't paying attention. I said
Robert Fenton, KC: to them, Did you actually listen to what this candidate had to say.
Robert Fenton, KC: because if you can get past all of that visual noise.
Robert Fenton, KC: this candidate was actually a really strong candidate, and we actually hired them.
Robert Fenton, KC: So sometimes it's just sticking a step back and just
Robert Fenton, KC: paying attention to what the person's actually doing and saying, rather than on any of these kind of surface things.
Roxanne Davis, KC: Yes, that's absolutely true.
Roxanne Davis, KC: Bob, do you have any other comments on what employers can do within the hiring process to create a more inclusive environment for applicants with disabilities.
Robert Fenton, KC: I have a few suggestions.
Robert Fenton, KC: one of the things is in the posting itself.
Robert Fenton, KC: Indicate that you are you are. You are willing to accommodate
Robert Fenton, KC: people who have disabilities and who are members of other equity seeking groups.
Robert Fenton, KC: and if people need specific accommodations during the interview process, invite them to ask you for them
Robert Fenton, KC: that creates an atmosphere of openness and inclusivity where this can become relevant is if you have a writing
Robert Fenton, KC: sample, part of your hiring process, and you want somebody to prepare written work while they're in the interview room.
Robert Fenton, KC: If I didn't know, for example, that I was gonna have to do that. I wouldn't bring my computer with me, and that would put me at a real disadvantage because the employer likely would not have a talking computer that I could use to generate that piece of work.
Robert Fenton, KC: Another thing that you could do, too, is is, when you interview
Robert Fenton, KC: focus 1st on the merits. Is this person qualified to do this job
Robert Fenton, KC: and ask the usual questions that you would normally ask
Robert Fenton, KC: when you're hiring hiring a lawyer.
Robert Fenton, KC: and if the person with a disability is
Robert Fenton, KC: the best candidate, and and sometimes and often they will be
Robert Fenton, KC: then, and only then, do you talk to them about what accommodations they need. And and this can be done privately. It doesn't need to be done in a formal interview session. It can be done over the phone. You can exchange emails. You can do whatever it is that you need to do.
Robert Fenton, KC: And then we, you could talk about
Robert Fenton, KC: the types of equipment they may need. If there's any schedule modifications as David was talking about that you may need, or if there's a requirement in the job that. The person has to have a driving license, and a blind candidate happens to be the best qualified. How can we work around that?
Robert Fenton, KC: And there's lots of ways to do it, just because
Robert Fenton, KC: you look at a requirement on its face. And you say, this can't be done because the person, her himself or themself cannot drive.
Robert Fenton, KC: It doesn't mean you can't find another way to accomplish that task.
Roxanne Davis, KC: Yes, that's absolutely true, Bob. When we were speaking earlier, you had, some
Roxanne Davis, KC: reflections from your experience. As an interviewer, can you share some of those with us.
Robert Fenton, KC: Yeah, I I mentioned a little bit of that before. When I was interviewing with other panelists that are cited is, I look for very different things. I look for people, for
Robert Fenton, KC: how people respond to the questions that we ask.
Robert Fenton, KC: are they focused? Are they demonstrating the core competencies in the skills, and and my colleague said to me afterwards, she says, You know, it's very different interviewing with you, because when you discuss candidates I discuss more of the visual presentation and and how they interact with me in terms of facial expressions.
Robert Fenton, KC: And that's all nice and well and good. But what we're really trying to do is we're trying to hire somebody who can do a job and do it well. And the
Robert Fenton, KC: the criteria that you're looking at
Robert Fenton, KC: is actually better, because you're actually getting to the root of what it is we're trying to do, and that's hire the best person we can.
Robert Fenton, KC: And
Robert Fenton, KC: you know, and I've I've gone through panels where I've actually had the names removed from from applications. So I I didn't know who the names were. I just picked the best 5 went in, did the interviews, and hired somebody.
Robert Fenton, KC: and I found
Robert Fenton, KC: that that also has worked well. Because then you truly are assessing people on their merits rather than knowing what their last name or was, or what they looked like. If they had a a photo in the package, or anything like that. So
Robert Fenton, KC: And I guess I guess the other thing is is
Robert Fenton, KC: You learn very quickly when you're interviewing when you have a disability, how comfortable somebody is going to be working with you.
Robert Fenton, KC: and I would say 99 times out of a hundred
Robert Fenton, KC: there may be a little bit of awkwardness at the beginning, but that is gone within the 1st 2 or 3 min of the interview, when you start asking them the hard questions like, oh, geez! This guy actually does know what he's talking about. And then it's like, it's never an issue at any time after that.
Roxanne Davis, KC: Yes.
Roxanne Davis, KC: Taylor, once a hiring decision has been made. What steps should an employer
Roxanne Davis, KC: take in terms of potentially accommodating any concerns an employee with a disability might have.
Taylor Grantham: Sure. So I think once you've decided to hire somebody, you've ultimately decided they're competent to do the job that you're hiring them for too often. I think that there's a conflation of incompetence and disability just because somebody's disabled in one respect does not mean that they're incompetent.
Taylor Grantham: Your duty as an employer is to make sure that they have the tools and support necessary to do their job. You've already decided that they are capable of doing their job. So I think that that's the most important thing that you should be approaching it
Taylor Grantham: from a perspective of giving them the tools to be competent in their role because you've already assumed and determined, obviously, that they are when you've decided to hire them. And then again, it kind of goes to the same thing of common sense and overall respect. So the one thing that I would say is that this question is probably more targeted towards individuals with this with visible disabilities, because
Taylor Grantham: it's a lot easier to identify if somebody is blind or has a mobility impairment, because, remember, an employee doesn't actually have an obligation to disclose a medical disability to an employer. Of course, disclosure does lead to better accommodation, but it's often often it's not disclosed because of for fear for discrimination.
Taylor Grantham: What I think you'll see, though, is that the individuals who don't have the luxury of non disclosure, they're a little bit more open to
Taylor Grantham: to accommodation and to communicating their needs. So the 1st thing that I would say is, just be very
Taylor Grantham: common sense respectful, and I know I've said that a few times. But if you take on that role and understand that a blind lawyer that you're hiring is going to need assistive software, or that you shouldn't put a lawyer in a wheelchair in an office of 3 sets of stairs. You remove the obligation on the employee to become an education portal for yourself
Taylor Grantham: as opposed to just sort of taking the necessary and reasonable steps that are readily identifiable.
Taylor Grantham: And then, after that, it's about closing the gaps in information, identifying what needs to be done and taking the steps to do it.
Taylor Grantham: And again, I think just echoing the comments around privacy
Taylor Grantham: and around continuation of accommodation. It doesn't just stop as soon as there's
Taylor Grantham: you know, the initial accommodations in place. And then the other things that I think is kind of important is
Taylor Grantham: love. The business as is many other professions where we hire people with disabilities.
Taylor Grantham: and I think some of the reluctance that employers have is around the cost of accommodation, feeling as if they're going to have to share the burden of cost.
Taylor Grantham: There's tax breaks, there's grants, there's funding. There's all kinds of things, especially if you have to buy like assistive equipment or make modifications to an office.
Taylor Grantham: And I do think that that's something that companies should be looking at.
Roxanne Davis, KC: Absolutely.
Roxanne Davis, KC: Bob, are there important considerations with respect to managing performance for that are applicable to employees with disabilities.
Robert Fenton, KC: Yes, and and thanks for raising this, because this is an area that really befuddles a lot of people like is is the performance
Robert Fenton, KC: concern, or what you think is a performance concern based on the person having the disability? Or is it actually a true competence issue that you have to deal with, and
Robert Fenton, KC: you know, most of us when we joined the profession, we're still learning how to be lawyers. We didn't know how to be lawyers, and that's also true of people with disabilities as well. We're not only trying to figure out how to accommodate our disability within the profession.
Robert Fenton, KC: we, we, too, are learning the profession, just like all of you are.
Robert Fenton, KC: and I can't tell you the number of times I heard from senior partners early on in my career.
Robert Fenton, KC: You know, I couldn't do what you're doing. And it's like, Well, that's okay. You don't have to. We have to find a way
Robert Fenton, KC: so that I can do it as well or better than you can so that I can practice law effectively within this place.
Robert Fenton, KC: So the key advice I would give here is
Robert Fenton, KC: really have a discussion around with the, with the person, with the disability around what the issue is. I've noticed.
Robert Fenton, KC: that when I've asked you to locate documents on a certain system. It takes you longer to find them than it takes another lawyer.
Robert Fenton, KC: Why is that?
Robert Fenton, KC: And you might get one of 2 things back. Well, the system isn't accessible, so I have to get somebody else to find them for me. Oh, that's an accommodation issue.
Robert Fenton, KC: or I don't know how to use the system properly. That's a training issue. That's a competency issue. Or
Robert Fenton, KC: maybe it's I didn't think it was a priority.
Robert Fenton, KC: And I'm sorry to say, and and that's a performance issue that you'd have to deal with. So it's really identifying what the actual core reason for the behavior that you're observing actually is.
Robert Fenton, KC: And
Robert Fenton, KC: if it's accommodation, then we have to put the right accommodations in place. If it's training or performance, you have more options depending on whether there's been issues before in this kind of situation or not.
Robert Fenton, KC: so you know.
Robert Fenton, KC: And if you're not sure what to do
Robert Fenton, KC: you do have access to Hr. Professionals and and labor and employment lawyers that can also help you through it if you're not quite sure how to ask the questions.
Robert Fenton, KC: But really your common sense is, Taylor has said should prevail here, and you just have a discussion like we're having now. And just say, look, you know you're
Robert Fenton, KC: you seem to be having a difficulty with this. How can we work together to make that this better? How can we?
Robert Fenton, KC: You know? How can we better understand each other? And how can we? How can we get this level of
Robert Fenton, KC: a performance for the client's benefit to level that we that we need.
Taylor Grantham: Yeah, if I could just add one or 2 things onto that point.
Taylor Grantham: So.
Robert Fenton, KC: When you're managing performance what I like to say is that an employee is entitled to accommodation.
Taylor Grantham: And an employer is entitled to accountability.
Taylor Grantham: meaning that if you need accommodation, and it's, you know, impeding your ability to do your job, you have an obligation to communicate that to your employer, and they have an obligation to listen. That said, if it's a performance issue or a competency issue, your employer is additionally entitled to the accountability.
Taylor Grantham: and this is probably more applicable to lawyers who are independent professionals. Notwithstanding that we may or may not be disabled. We do have an obligation to our clients and to the profession to do things competently, and that obligation isn't subsumed by the need for accommodation, or anything like that. So I do think it's important for law firms to remember
Taylor Grantham: that an employee is entitled to accommodation, and I think it's important for lawyers and people with disabilities and employees with disabilities to remember that employers are entitled to accountability.
Roxanne Davis, KC: That's a great point, Taylor.
Roxanne Davis, KC: Do you have some other examples or suggestions for us and for registrants, for how firms can create more inclusive environment
Roxanne Davis, KC: for lawyers and other employees who may have disabilities.
Taylor Grantham: Yeah. I think inclusivity starts with the golden rule kindness respect like anything in a workplace. We wanna obviously encourage
Taylor Grantham: all of those positive behaviors. I think the most obvious thing that firms can do is remove the pervasive negative behaviors that do exist. You remove hate speech, and you remove discrimination, and you remove act of prejudice.
Taylor Grantham: For me. Personally, inclusivity can also mean an open enough environment where you feel comfortable enough to talk, or in some instances, joke about the challenges you're facing. That's something that I currently enjoy where I work. But it's not something that I always have. So that's something that I would say comes with the individual, and that you should take your cues on inclusivity from individuals who are experiencing what you're trying to
Taylor Grantham: include. But I do think that
Taylor Grantham: obviously removing anything prejudicial is part and parcel to inclusivity, and then just sort of creating an environment where everybody wants to be themselves, I think, is a very good start.
Robert Fenton, KC: Yeah. And and I think there is an obligation on
Robert Fenton, KC: partners and managers and supervisors of people with disabilities as well is
Robert Fenton, KC: is, if we see behavior in our workplace
Robert Fenton, KC: that belittles, discriminates, or demonstrates other unkind behavior.
Robert Fenton, KC: we have the same obligation towards people with disabilities as we have towards other equity seeking groups.
Robert Fenton, KC: You know, it's not enough
Robert Fenton, KC: to confine what's going on. If if bad behavior is going on to our workplace, sure, we have to deal with it there.
Robert Fenton, KC: But if we have a colleague on the other side of a file that's belittling, or we have even a judge.
Robert Fenton, KC: it's up to us as the supervisor of that employee with a disability to support them.
Robert Fenton, KC: and actually call out that behavior. Because we have. We have obligations under human rights legislation and also under occupational health and safety legislation, to make sure that our workers
Robert Fenton, KC: are working in a safe environment, and that means
Robert Fenton, KC: holding people accountable for inappropriate behavior if and when it happens, and we're starting to see more and more cases in this space
Robert Fenton, KC: as time goes on. And and
Robert Fenton, KC: you know, law firms on on involved in corporate deals. We've all probably heard stories over the years how sexually harassing comments have been made from one lawyer to another on on the other side. And you know
Robert Fenton, KC: those comments are inappropriate, just like they are around disability or around race or anything else. And this is why we have the nondiscrimination provision in our rules of professional conduct
Robert Fenton, KC: is to deal with behaviors like this, and to make sure that they are dealt with, so that this profession is safe for everybody.
Roxanne Davis, KC: Yes, and I would just add one more thing to that. It also applies to clients who may be discriminating. There's certainly been lots of circumstances where clients say they don't want to work with that individual. They want another lawyer, and employers have obligations to step in in those situations as well. That's not acceptable.
Robert Fenton, KC: And it's happened to me. I know what that's like, and
Robert Fenton, KC: and and luckily I had an employer that behaved as exactly Roxanne is in the way that you described.
Robert Fenton, KC: and it turned a really really ugly experience
Robert Fenton, KC: into actually a positive one in terms of how we could work together to make sure that didn't happen again.
Roxanne Davis, KC: is there anything different? Or any additional considerations that you would recommend with respect to accommodating clients, who might have a disability Bob, do you have? Do you want to start.
Robert Fenton, KC: Yeah, I think the 1st thing to do is, if you have a client that has a disabilities in in your 1st meeting, have a really good discussion with the client about how to best communicate with them.
Robert Fenton, KC: What kind of meeting environment works best for them? How should information be shared. How much time do they need to absorb information? What format should you provide the information in? And and this is where I I disagree with with David somewhat I don't view the world of the world of the big bad Pdf. As he as negatively as he does. I read Pdfs every day, and can find a way to deal with it.
Robert Fenton, KC: Handwriting is another matter.
Robert Fenton, KC: how do we deal with with issues? If if handwritten documents are provided by the other side. How? How are we gonna make sure that I, as the client, would know? How? What's in those documents, and
Robert Fenton, KC: could assess what's important.
Robert Fenton, KC: Is that obligation on the lawyer? Well, maybe is it on
Robert Fenton, KC: the the client support person? Well, maybe. But then, if we're getting into having somebody work with the client. Then we have to look at the retainer to make sure that that support person understands that they're bound by the same
Robert Fenton, KC: obligations is not to disclose privilege information as as a lawyer is
Robert Fenton, KC: because we don't want the support person to breach that client's privilege. So those are issues that you'll have to think about as well is, do you need to look at a modification to your retainer agreement to make sure that that solicitor and client privilege is protected you are protected so that if there is a breach it's it doesn't come back on you
Robert Fenton, KC: and and also payment arrangements. How? How are you? Gonna communicate your bill to your client? And how? What kinds of payments will you accept
Robert Fenton, KC: writing checks for me is a real pain.
Robert Fenton, KC: Electronic transfers or credit card payments are not
Robert Fenton, KC: so. If there's ways like that, that we can make the process easier. That that is also is is also beneficial. If you have a client who's deaf positioning in the room may matter because that person who is deaf may be watching someone's lips or reading Asl sign language, and if if they have to stare into a bright, into bright sunlight to do that, that may be very uncomfortable. Experience for them.
Robert Fenton, KC: If your office is hard to find in a building.
Robert Fenton, KC: and you have somebody who may not have been in that building before, meet them in a central location like at the bottom of an elevator or something, and that way you can. You know, you can find a way to
Robert Fenton, KC: to assist them in getting to the place where you need to meet. There's more that I can share, but I think this is just a few to get you started.
Taylor Grantham: Yeah, if I might add just a few comments there. I think service to a client with a disability goes back to our duty to provide competent service.
Taylor Grantham: And I think it's incumbent on a lawyer who's acting as an advocate for a client to identify barriers in their case. So those barriers can be
Taylor Grantham: procedural like a lot of what Bob spoke about there with respect to, you know, just making it a little bit easier. I think it's important to remember that people who hire lawyers and people who are going to court, and people who are dealing with things are very often dealing with some of the most stressful things they will face in their life.
Taylor Grantham: It's our job to try to make that less stressful. Make sure that they have appropriate medication. If they need to testify, make sure they're given accommodation by the court, if necessary, and then additionally, your duty to your client is above all else, which means that
Taylor Grantham: you know lots of times when these clients have disabilities and they come in. What they'll have is they'll have a support person there, or they'll have somebody there. I do think that it's important for somebody with a disability to have a support person if they need it. I also think that there's an enhanced duty on the lawyer to look out for things like undue influence
Taylor Grantham: neglect, mistreatment, or abuse in those contexts. Very often purported support. People are actually taking advantage of the vulnerability, vulnerabilities of a disabled client, and I think vigilance against that is an important step to take.
Robert Fenton, KC: Yeah, actually, can I add one thing here? And it was an experience I had at 1 point
Robert Fenton, KC: I had to swear an affidavit for something which is fine. I wrote it, and it.
Robert Fenton, KC: There's an interesting rule in our in our
Robert Fenton, KC: Alberta rules a court that if a deponent is blind. There has to be a special jurat used
Robert Fenton, KC: to indicate that the lawyer has read the affidavit to someone who is blind.
Robert Fenton, KC: I'm very much opposed to these kinds of mandatory provisions, because in my case, that doesn't make a whole lot of sense. I wrote the affidavit.
Robert Fenton, KC: and I just needed somebody to commission it for me. So
Robert Fenton, KC: I I think the thing that if we do have
Robert Fenton, KC: certain things like this, we need to exercise common sense and apply it to the situation that you're facing.
Robert Fenton, KC: Don't just blanketly apply a rule just because
Robert Fenton, KC: the last person you've dealt with did it that way, or you had a friend of a friend of a friend who told you this is how they did it.
Robert Fenton, KC: Your best bet is to ask and look at the individual circumstances, and see what works.
Roxanne Davis, KC: Taylor, are there any additional considerations beyond what we've talked about already that would be applicable to individuals with invisible disabilities.
Taylor Grantham: Yeah, I think I alluded to this a little bit earlier, but people with visible disabilities don't really have the luxury of non disclosure.
Taylor Grantham: And I say luxury somewhat colliqually, because I actually think disclosure is what makes it more livable. As we all know, we all saw the report to the profession with respect to invisible disabilities with respect to mental illness and addiction and substance, use, and different forms of invisible chronic illnesses, that like the legal profession. Candidly,
Taylor Grantham: when an employer hires somebody again, we're gonna presume that they're hiring them at a competent standard. They're assuming that they're competent. They're seeing good work come out there, you know, they make the employee makes it past their probationary period. So what you would assume is that that person is, is capable of doing the job, and you're happy with their work.
Taylor Grantham: I think there becomes a duty to inquire on the employer when you start to see that slip very often, because invisible disabilities are not as easily identifiable, and are often concealed for fear of discrimination, both from an employment standpoint, but also from a stigmatized standpoint.
Taylor Grantham: People are more reluctant to
Taylor Grantham: to make, to not disclose those sorts of things. I do think it's incumbent on an employer to make inquiries. Now, that's not to say that an employee has a positive duty to disclose those struggles that said without disclosure, accommodation becomes very difficult. I do think that there's some very real things that firms can start doing with respect to invisible disabilities.
Taylor Grantham: not the least of which is substance. Use the legal profession used to be very centered around alcohol consumption, removing events solely focused on alcohol consumption or making non-alcoholic options available to people is a really good option.
Taylor Grantham: But giving people breaks mental health breaks when you can very easily tell that they're burnt out or tired, or, you know just not themselves, or encouraging them to access the supports of their peer mentors, or assist, or something like that, are some things that you can do for invisible disabilities. Additionally, this one maybe doesn't apply to employers as much. But we're all friends in this profession, or we should be.
Taylor Grantham: I think, that that duty should extend to your friends.
Roxanne Davis, KC: That's a dream.
Roxanne Davis, KC: Do you have any recommendations for lawyers in circumstances where they're working on a matter
Roxanne Davis, KC: with a lawyer who has a disability, Bob, do you want to start with comments on that.
Robert Fenton, KC: Sure. And and this is something I do with
Robert Fenton, KC: with all the lawyers that I have cases with with people on the other side is, and and even with
Robert Fenton, KC: lawyers who's on the same side as me that I happen to be work working with is I have a discussion with them at the beginning of the matter, where we talk about.
Robert Fenton, KC: How would you like to receive information from me? And how can I receive information from you? And this is where we talk about making sure that we get
Robert Fenton, KC: documents in a preferred format.
Robert Fenton, KC: For example, I prefer never to get faxes, because they don't always scan well, and there's errors, and they're difficult to read.
Robert Fenton, KC: Instead, I prefer to get an email attachment, whether it be a word file or a Pdf.
Robert Fenton, KC: And then I can read it and absorb it, and we don't have the same kind of error rate that we do with a fax
Robert Fenton, KC: case. Books. I always tell people
Robert Fenton, KC: don't bother sending me a bound case book. I can't read it.
Robert Fenton, KC: It's better for you to just write me an email with the cases that you're going to rely on.
Robert Fenton, KC: and the paragraphs that you're going to highlight.
Robert Fenton, KC: and then I can pull the cases off Kenley or or Westlaw, or wherever the case is, and read them myself, with the technology that I have.
Robert Fenton, KC: And I say to the, to the opposing lawyer, I say.
Robert Fenton, KC: and in exchange for you. Doing that. I'll give you my case books early, too, so that you have access to my materials. So because I never want to put somebody in a situation where I'm asking them to do something that I'm not prepared to do myself.
Robert Fenton, KC: You know, it's just it's comes back to the whole point of civility and and courteousness that we should all show each other
Robert Fenton, KC: in terms of document production. Same thing. I I just ask people if if they're gonna produce documents,
Robert Fenton, KC: if you can produce them electronically, please do. It's easier for me
Robert Fenton, KC: than if you send me a box of paper over
Robert Fenton, KC: and I'll do whatever it is that you're you require that be done so that you get the the stuff in a format that you can read
Robert Fenton, KC: when dealing with other disabilities. I've when I've had people with mobility disabilities on files, I've said, look, is there anything that we need to do if we have court applications to make things easier for you, for example.
Robert Fenton, KC: is it easier for you if we ask the judge to hear us? Virtually.
Robert Fenton, KC: and I've done that before to accommodate other people with disabilities, who? It's a more challenging time for them to go to court, especially in the winter and the snow and everything else
Robert Fenton, KC: and that's been received quite well by the courts when we've done that is, you know, they seem to be quite receptive that you know there are some judges that prefer in person attendances.
Robert Fenton, KC: but when you actually explain it to them what this, the reason behind it is
Robert Fenton, KC: you know I have yet to be refused when I've asked for that. With another lawyer who has that that issue? Also, if you need. If the other counsel needs to take more frequent breaks if they need an earlier or a later start time
Robert Fenton, KC: for things. I ask about those cause. It's all about balance. It's all about making sure that
Robert Fenton, KC: every one of us in this profession can do our job to the best ability possible.
Roxanne Davis, KC: Yes, at the beginning of our session today, David Lepofsky spoke about legislative initiatives that have been implemented
Roxanne Davis, KC: and are in the works in Ontario. Alberta doesn't have an equivalent to the accessibility, for Ontarians with Disabilities Act is anything similar in the works in Alberta.
Robert Fenton, KC: Yes, but it's very, very early. When Michael Gottill was the chair of the Alberta Human Rights Commission.
Robert Fenton, KC: he put a working group together to
Robert Fenton, KC: start trying to advocate with the Government for the passage of an Albertans with Disabilities Act.
Robert Fenton, KC: It's still very, very early days. Kent hair has been involved. Many of you will know who he is from his time in provincial and federal politics.
Robert Fenton, KC: He's been, you know, working with on this with with a bunch of others.
Robert Fenton, KC: But we're not at the stage where we're anywhere near close to getting a bill. It's still very much at the Coalition building stage and kind of
Robert Fenton, KC: needs identification and everything else. So very early days. But this is something, I think, as a profession.
Robert Fenton, KC: If we could get behind this, we could really make things better for a whole bunch of people.
Roxanne Davis, KC: And finally, before we get into the Q. And A. Do, either of you have any tips or suggestions you like you would like to share for achieving a successful career.
Taylor Grantham: Sure. My career is pretty early, and not as storied as Robert, for sure. But I think, borrowing from my theme of just assume you're confident. Assume you're entitled to be here. Start there, and just
Taylor Grantham: don't deviate from that and if you need assistance, if you need support do reach out, because do do appreciate that if you do need support and assistance, and you're struggling with a disability
Taylor Grantham: as unfair as it may seem, it is your responsibility to do that. To a certain extent employers definitely have an obligation to identify, to inquire and to support. But nobody's going to know how to help you unless you ask, and you don't need to be ashamed to ask, especially in the profession as we see it now. It is improving in that sense, but again, just feel entitled to be here would be my piece of advice.
Robert Fenton, KC: If I was having this discussion with the younger me.
Robert Fenton, KC: I would say 3 things. First, st find mentors within your organization
Robert Fenton, KC: who are willing to work with you and teach you, because you still, even though you have a disability, you still still need to know
Robert Fenton, KC: how to practice law. And
Robert Fenton, KC: you need to have somebody who's interested in how you're going to do those things and is willing to work with you.
Robert Fenton, KC: and maybe even at times
Robert Fenton, KC: assist you with some of the difficult conversations you that you may have to have with other senior colleagues within your workplace that may not be as receptive.
Robert Fenton, KC: The second piece of advice I would give younger me is
Robert Fenton, KC: absolutely make sure that you ask for what you need.
Robert Fenton, KC: and don't just kind of make do, because you're worried about making waves.
Robert Fenton, KC: I tried that. It doesn't work.
Robert Fenton, KC: and I found that I was being judged because people assumed
Robert Fenton, KC: that I had what I needed and I didn't.
Robert Fenton, KC: and I wasn't performing at the level that I should until I actually developed the courage to say.
Robert Fenton, KC: No, I need more of X.
Robert Fenton, KC: I need less of y but to actually be
Robert Fenton, KC: courageous enough to go forward and identify truly what you need is an absolutely critical thing.
Robert Fenton, KC: And then, on the other side.
Robert Fenton, KC: make sure that you work closely with people who will listen and will try to be supportive.
Robert Fenton, KC: it's very easy in business today and in the world today to find people who will criticize. They're available everywhere.
Robert Fenton, KC: It's less easy to find people who will listen and who will collaborate. And those are the types of people
Robert Fenton, KC: that we need to find and need to work with. Well, to to be successful.
Taylor Grantham: Yeah, I would encourage people to be selective of their circle of support and very dismissive of their critics. And to focus on their wellness is another piece. A good lawyer is a well lawyer.
Robert Fenton, KC: Yep, absolutely.
Roxanne Davis, KC: Yes, those are great points. Thank you both for sharing all of that with us, and
Roxanne Davis, KC: now we will move into our Q. And a. I see we have have quite a few questions.
Robert Fenton, KC: More the merrier and harder the better.
Deanna Steblyk, KC: Thanks for that, and thanks very much, Roxanne, Bob and Taylor, for your insights and commentary. It's a very interesting discussion
Deanna Steblyk, KC: before we do move into the Q. And a session. I'd like to share that. A donation has been made to the Canadian National Institute for the Blind and to cerebral palsy Alberta, on behalf of our speakers today as a way of showing our gratitude for your time and efforts.
Deanna Steblyk, KC: At this time Avery, who is the Law Society Senior advisor communications and stakeholder engagement will now take over to pose some of the questions you asked throughout the session, and you can continue to submit questions during the Q. And a session using that Q&A button at the bottom of the zoom screen.
Deanna Steblyk, KC: Please bear in mind that with the number of attendees at today's session. We may not be able to get to everyone's question, but we'll do our best to keep a list of outstanding questions and reach out to those people whose question we didn't get to.
Deanna Steblyk, KC: So with that, Avery 1st question.
Avery Stodalka, LSA Communications: Thank you. The 1st question that we have are, do the panelists have any advice on how to go about seeking an accommodation with the courts?
Taylor Grantham: Ask.
Taylor Grantham: It's as simple as that. I stopped wearing dress shoes to court. I don't know 3 years ago.
Taylor Grantham: and I just wrote a letter to the judges and said, I'll be wearing sneakers from now on, I guess. I phrased that as ask I sent more of a statement, but if you don't want to do that, ask.
Robert Fenton, KC: Yeah, I I would support that answer. And I'm I'm quite in favor as well of just literally having a discussion with the judge at the beginning of of the proceeding, especially if you're going to be dealing with the judge. Multiple times like, if you have a case management judge
Robert Fenton, KC: and you can talk about you know what you need and why you need it and and answer any questions. You know. If you send a letter I find you don't do as well because you don't get the benefit of the dialogue, and I think the dialogue on accommodation issues is really important.
Avery Stodalka, LSA Communications: Thank you. The next question is, please comment how to deal with a situation where an employee becomes disabled during the course of employment, and any unique issues for leave and accommodation.
Taylor Grantham: I think this goes to your ongoing duty to accommodate and appreciating that the employment relationship is fluid and initial accommodation may be insufficient for an employee that you hire with a disability, and their needs may change over time. But an able-bodied employee who you hire may become disabled over time. I think it's just about identifying where the employee is at, and if and when accommodation is necessary, and ensuring that the accommodation that you've implemented
Taylor Grantham: remains suitable with respect to leave, I think that
Taylor Grantham: aspect of the question probably touches a little bit on legal advice. I think we are all lawyers here. So that's okay. But
Taylor Grantham: employees are entitled to medical leave statutory. And then there's a common law duty and entitlement or obligation on employers to provide medical leave outside of that.
Taylor Grantham: so I think that that's
Taylor Grantham: that's probably the starting point. I would certainly encourage any employer to obtain independent legal advice in that regard, and to encourage their employees to take a look at any employer, provided benefit packages.
Robert Fenton, KC: And that. And that's where I was. Gonna take. This is is down. That that road is
Robert Fenton, KC: number one. Make sure that you understand what the disability is, because it's not enough necessarily just to provide for a leave.
Robert Fenton, KC: There may also be a need to retrain the individual on how to use new pieces of technology they may not have used, or they, if they lose their sight
Robert Fenton, KC: on how to navigate the world. And those are not traditional things that are covered under employment. Employee benefits. So like insurance companies don't always cover these kinds of things. So it's a really good discussion point that you need to have for
Robert Fenton, KC: between the employee, the insurer and yourselves to figure out who's gonna pay for what? Depending on what this this particular employee needs.
Robert Fenton, KC: The other thing is.
Robert Fenton, KC: you know, there may be circumstances where the nature of the disability that the employee has acquired
Robert Fenton, KC: may cause them to have to shift
Robert Fenton, KC: their career focus from one area of law to another.
Robert Fenton, KC: I've seen this, especially in the area of invisible disabilities where stress levels are too high in the current job, and they need to to find another type of legal career that fits them better.
Robert Fenton, KC: And again, that there needs to be the time and the space provided
Robert Fenton, KC: to allow the person to retrain, and usually those kinds of of retraining opportunities you may have more support for through disability, insurance carriers and the like. So it's really critical that you have those discussions
Robert Fenton, KC: involve the employee. Figure out what they want to do.
Robert Fenton, KC: There will be those employees who will try to give up and say, Look, I've just lost my site. I can't possibly do X,
Robert Fenton, KC: and that's where, you know, people such as myself, who've practiced without sight.
Robert Fenton, KC: who know a lot of other people who have, who know a lot of other people who have lost sight while practicing.
Robert Fenton, KC: can put people in touch with each other so that they can talk through some of these these fears and anxieties that they have.
Robert Fenton, KC: so that they can get the support they need. This is as much
Robert Fenton, KC: a peer support issue as it is an accommodation issue, and we can't lose sight of that.
Taylor Grantham: And in the absence of that phone rock, Dan, I'm sure she'll have good suggestions for you.
Avery Stodalka, LSA Communications: I was. Gonna say, just making sure, Roxanne, that you had nothing to add before I move on.
Roxanne Davis, KC: No go ahead!
Avery Stodalka, LSA Communications: What can people who are not managers, supervisors, do to support colleagues with disabilities? How can we be an ally without being intrusive or demeaning.
Robert Fenton, KC: Be yourself.
Taylor Grantham: Yeah, and take your cues from the person you're trying to support. If they're open and humorous and like to, you know, want to share with you. Listen respectfully. And kind of go from there. The one thing that I would say is anyone asking that question probably doesn't need this warning. But a moment of unkindness is remembered for a long time compared to the moments of kindness. And just always remember that when you're having conversations around difficult topics.
Robert Fenton, KC: Yeah.
Robert Fenton, KC: Yeah. And I would just say, Be yourself.
Robert Fenton, KC: you know, be upfront. I I wanna know what I can do to best help you. And then it turns into a discussion that way. And
Robert Fenton, KC: and then we, as the person with a disability, learn more about you, and you learn more about us, and we can find ways to work together.
Robert Fenton, KC: And and that's that's what it's about.
Avery Stodalka, LSA Communications: Thank you. The next question is, what can we do to ensure our services to clients and the public are accessible.
Avery Stodalka, LSA Communications: What are the appropriate questions to ask before clients come to the office or courts.
Taylor Grantham: Yeah, this is certainly a question that's more important where we see virtual practice happening a lot more where maybe you don't meet somebody in person in advance of your 1st couple of meetings kind of the procedural basics that we covered, you know, making sure, if you're aware that they're in a wheelchair that they can get into the room. If you're aware, if they're blind, that you've got the appropriate software. If they're deaf, you're considering positioning or audio technology.
Taylor Grantham: and just kind of going from there.
Taylor Grantham: I don't think that it's disrespectful to ask a disabled client what they need from you to have better service
Taylor Grantham: I I don't think it is at all. I have seen firms who use
Taylor Grantham: prompt on their intake forms or something. Is there anything that we need to know with respect to disability or accommodation, they do the same thing with respect to, you know, chosen pronouns and that sort of thing that happened on veteran forms. So if you really want to be specific about it, I think you know, want to find your intake process. To identify those things early is a really good way to make sure that you tailor the support to the individual.
Robert Fenton, KC: Yeah, I agree with all of that. The other area where it is relevant is in the area of technology. For example. I always tell people I prefer teams meetings over Zoom.
Robert Fenton, KC: because there is technology that if you need to show me a Powerpoint now.
Robert Fenton, KC: I can read that off a team screen. If you have the right version of the software involved, I can't read it off a zoom screen.
Robert Fenton, KC: You know. How do I? You know? How do I receive correspondence from you, or how should I receive correspondence from you?
Robert Fenton, KC: Or send correspondence to you? Is a critical question. Do we? Because
Robert Fenton, KC: if I can't read what you send me, I can't do what you want, and that's
Robert Fenton, KC: something that I I don't think any of us want to have happen. So just being
Robert Fenton, KC: yeah. And and if you're not sure like it's, it's a very difficult thing, because
Robert Fenton, KC: disability is not the same.
Robert Fenton, KC: And people with the same type of disability may present differently, depending on whether they've acquired it or whether they've had it since since birth.
Robert Fenton, KC: What the degree of the disability is might matter what opportunities they've had to get. Training on. Technology may matter.
Robert Fenton, KC: you know.
Robert Fenton, KC: And there's there's the other factors that may come into it. Disability and language may be an issue if there is, if English is a second or 3rd or 4th language.
Robert Fenton, KC: or if it's coupled with another disability. So
Robert Fenton, KC: there's no kind of one. Size fits all here, like there is with other equity, seeking groups, or or can be with other equity, seeking groups. It's very much individualized.
Avery Stodalka, LSA Communications: Thank you. That is all the audience questions that we have posed. So I'm not sure if you have final thoughts or comments before we wrap up. We have about 7 min remaining.
Taylor Grantham: I, I just wanna actually thank the law Society for the donation that they made in honor of our attendance here today. I know it's also giving Tuesday, which is a new
Taylor Grantham: sort of social movement to inspire charitable giving. So it's it's quite
Taylor Grantham: it. It lines up quite well with today. So thank you very much to everybody that's attended, and also thank you to the Law Society for putting this on, and for the additional thoughtfulness of a donation to charities that help individuals with disabilities.
Robert Fenton, KC: Yeah.
Robert Fenton, KC: And I echo what Taylor said. And I I also doubly thank the Law Society for their donation, because Cnib has a donor.
Robert Fenton, KC: That is double is matching contributions up to $250,000 for donations made today. So what you donate has now been doubled.
Robert Fenton, KC: So that is a huge gift towards people who are blind in this country, and I appreciate that
Robert Fenton, KC: not just as a person who is blind, but also as a board member who's kind of accountable for these things. So thank you.
Robert Fenton, KC: But I'm gonna say the same thing. I said in the video I did in our workplace today.
Robert Fenton, KC: around disability and and the international day of people with disabilities is
Robert Fenton, KC: just be open. If you have questions, ask them
Robert Fenton, KC: if you have concerns, express them in a respectful way.
Robert Fenton, KC: If you have fears, tell us about them, we can deal with them.
Robert Fenton, KC: But it's better that we have the dialogue. It's better that we
Robert Fenton, KC: have the opportunity to address whatever those things are.
Robert Fenton, KC: so that we're both comfortable, because that's when we get our best work done. That's when we best get to know each other as people. And that's how we can make society better.
Robert Fenton, KC: So thank you again, and really appreciate your time and patience for listening to us, and hopefully, you've gone away with some ideas that you can use.
Deanna Steblyk, KC: Thank you so much. We appreciate everybody joining us today for this webinar, and I hope that everybody is able to take away some valuable information. And of course, thanks again to Roxanne Taylor and Bob.
Deanna Steblyk, KC: a version of the Webinar was recorded, and it will be posted to our website in the next few days might be valuable. If someone who's in attendance would like to review anything, or if you know someone who might be interested in the information that's been presented today.
Deanna Steblyk, KC: And just before we sign off just a quick reminder, please take a couple of minutes and complete the webinar exit survey that will provide us with insight on today's presentation, identify any improvements needed to our Webinar software and help us determine future webinar topics. So, thanks to everyone again for joining us, and I hope that you have a great rest of your day.
Deanna Steblyk, KC: Thanks.
Taylor Grantham: Thank you.
Robert Fenton, KC: Thank you.
Roxanne Davis, KC: Thanks. Everyone.