CALT is really grateful to this amazing group of professors who brought us a wonderful workshop on Incorporating disability into the curriculum on June 29 2022.
- David Lepofsky – Disability Advocate, Adjunct Professor of Law, University of Toronto and Chair of the Accessibility for Ontarians with Disabilities Act Alliance
- Laverne Jacobs – Professor, Faculty of Law, University of Windsor and lead author and General Editor Law and Disability in Canada: Cases and Materials. Lexis Nexis 2021.
- Odelia Bay – PhD Student, Osgoode Hall Law School, York University
- Ruby Dhand – Associate Professor, Faculty of Law, Thompson Rivers University
- David Ireland – Associate Professor, Faculty of Law, University of Manitoba
- Richard Jochelson – Dean, Faculty of Law, University of Manitoba
- Freya Kodar – Associate Professor, Faculty of Law, University of Victoria
Anna Lund, Associate Professor, Faculty of Law, University of Alberta (moderator)
David Lepofsky opened the session, describing his report on this topic, originally written for Osgoode Hall Law School and soon to be published in the Windsor Yearbook of Access to Justice as a paper. David noted that he’s given talks at many schools on this topic and welcomes requests to do so – just reach out.
The lead author of Law and Disability: Cases and Materials, Laverne Jacobs (also the 2022 winner of CALT’s Academic Excellence Award!) spoke about the aims and scope of book (available here, tell your librarian and your colleagues), which she noted was “inspired by the notable absence of material about the lives of people with disabilities in law school curricula”. She described it, in part, as a “necessary part of cultural competency of students, disabled and non disabled alike”.
Describing how she brings disability into the public law context, Dr. Jacobs (who teaches, inter alia, Admin law) suggested two practical tips. First, reread an older case in light of changes in the law. She suggested Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624, with which many will be familiar, which could be reread to ask whether the Medical Commission properly exercised discretion when it did not include sign language translation on the list of funded services. Next, she suggested that a more recent case like Vavilov could be read with a disability lens. Students can be asked to outline the actual impact on people with disabilities, people who access many statutory regimes of benefit provision, for instance. She also recommended, in the area of equality and human rights law, Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70 (CanLII), <https://canlii.ca/t/jjg28> , noting that it focuses on evidentiary requirements which are often important in disability related cases.
Odelia Bay, a sessional instructor in labour law and PhD candidate at Osgoode Hall Law School talked about how she uses her classroom to model accessibility and contrast it with accommodation, working in her teaching to assume that all her students are people with disabilities. She also establishes the difference between social and individual/medical models of disability and how these produce different legal analyses and outcomes. She noted in particular the complexities of episodic disabilities, cases which challenge the idea of predictability in disability and “accommodation”, pointing to some a case she takes up in her contribution to the volume which involves the return to work of a person with bipolar disorder and the labour arbitration over what accommodations were required. She noted that cases also offer the possibility of a discussion of social class and private support. In the case she takes up, the person making the claim was a professor, and the final outcome included insurance payouts which lessened the financial cost of accommodation for the university. But in many cases, people with disabilities will not have this kind of support.
Freya Kodar teaches in the areas of income support law, pension law, social welfare law and tort law. Her engagement with disability analysis focuses on the ways that income support law provides income support across life course, but raises many questions about the adequacy of that support. She particularly noted her efforts to ensure that students are able to problematize the need (in legal contexts) to present disability in a negative light in order to qualify for support. Students can work on identifying the ways that this fits with the medical model and differs profoundly from how a disability justice approach or a social model/critical model might frame the issue.
David Ireland and Richard Jochelson wrote about disability in the criminal law context, considering in particular jury representations for people with disabilities (pointing out that in the case of Indigenous people in Canada, the percentage of people identifying as disabled seems to be higher and perhaps substantially higher than the 1 in 5 usually cited for the rest of the Canadian population) and then the work done at inquests into deaths in state “care”, considering not only deaths in custody, but a other contexts as well. Their contribution also considers how mental and physical disability plays a role (or does not) in sentencing decisions. Like many of the presenters, these two emphasized the need to alert students to the failings of the legal profession in its own approaches to access and accommodation.
Finally, Ruby Dhand, who teaches mental health law spoke about her work in teaching this substantive content of mental health law (which, as she pointed out, intersects with a huge number of overlapping legal areas including human rights law, clinical legal education, health law, criminal law) as well as in furthering discussions about and importance of mental health in the profession. Prof Dhand pointed to the importance of encouraging students to use a trauma informed lens in their own work as lawyers.
This discussion and this book highlight the ways that “disability” issues pervade our law, and people with disabilities are users of all of the doctrine and systems that are used by the non-disabled – with some systems uniquely focused on people with disabilities. Thus the necessity of including this material and habituating our students to thinking about the way that disability is and should be treated in law seems clear. Equally, we are teaching in spaces that include people with disabilities and thus must think about our own practices with respect to disability and access. Finally our students, whether living with disabilities or not and whether planning to practice something that we might label “disability law” or not, must be prepared to have people with disabilities as their clients and colleagues and to respond in professional and appropriate ways to different needs and concern.
CALT is very grateful to all of the presenters in this workshop for their published work and their daily ongoing work to foreground and support the work of access and inclusion in form and practice.