Struggling for Accommodation

Written by Silvia Battaglia and Shannon Meikle, law students and NSRLP Research Assistants; originally published on Slaw, Canada’s online legal magazine.

The NSRLP receives a great deal of mail from our community, and every week we receive emails from people sharing their experiences as self-represented litigants (SRLs). Last year, we began receiving a lot of emails from SRLs who had requested accommodations in the legal process, needing courts to recognize and adapt to their cognitive disabilities (requesting, for example, more time to respond, frequent breaks in hearings, etc.). In a nutshell: they were not being accommodated. We read their stories with concern and became aware of the need to look more deeply into the issue: what types of barriers are SRLs with cognitive disabilities facing? And specifically, how do these barriers manifest themselves as SRLs apply for accommodation?

Undoubtedly, people who self-represent in legal proceedings face barriers to justice. The barriers to justice for cognitively disabled SRLs are even steeper. The term ‘cognitive disability’ encompasses a variety of conditions, including mental illness, developmental disability, and mental disorders including anxiety and PTSD (this list is not exhaustive, and the Supreme Court of Canada has emphasized that a cognitive disability may be identified on a case-by-case basis (see our Guide for SRLs with Disabilities for more information)). Because we were hearing so much from this group, we decided to gather more information and bring attention to the topic by launching a study on access to justice for cognitively disabled SRLs: Struggling for Accommodation: Barriers to Accessibility Faced by Cognitively Disabled Self-Represented Litigants (released November 15, 2021).

How do SRLs make accommodation requests?

We began by familiarizing ourselves with the processes of applying for accommodation, paying special attention to the guidelines that came out during the pandemic. Every province has its own procedure for requesting accommodations. In Ontario, you must contact the local Court Accessibility Coordinator and submit an official letter of accommodation request. This letter must identify which disability you are applying for, explain what accommodation you are looking for, and explain how that accommodation is relevant to your disability. In addition, you must find and submit case law or a piece of jurisprudence in support of your request (see NSRLP’s sample letter of accommodation request).

However in some provinces, information regarding the accommodations process is completely lacking. For example, not providing a list of accommodations that litigants may pick from, guidelines hard to locate in a myriad of web pages, or difficult to understand.

What is clear is that the processes for and information on requesting accommodations vary widely across Canada, and are never straightforward or simple.

The study

Our study aimed to firstly, identify common experiences among SRLs with cognitive disabilities who request accommodations, and secondly, explore the potential impact of COVID-19 on any barriers they experience.

Using our social media pages and our newsletter we put out a call for participants across Canada who identify as persons with cognitive disabilities, and who also have sought accommodation as SRLs.

Ultimately we were able to engage 10 anonymous participants, and then conduct individual, in-depth, open-ended interviews where we asked them to share the details of their experiences. Specifically, we asked:

1. How did you request accommodations for your disability?
2. Did you face any challenges while requesting accommodations?
3. If you answered yes to the question above, please explain. (What challenges did you face while requesting accommodations?)
4. What resources did you use to help you navigate your request for accommodations?
5. Please describe any efforts the courthouse made to ensure that you knew how to properly submit an accommodations request.

What SRLs with cognitive disabilities told us

We found that the respondents faced many challenges in requesting and seeking accommodations for their disabilities. Unfortunately, we were not surprised by our findings, with participants articulating feelings of discontent and frustration with court processes throughout the interviews.

9 of 10 participants described challenges including:

1. Lack of information. Even where present, the material was not made accessible and was hard to understand. One alarming finding was that official websites are of little help to people with cognitive disabilities as no appropriate measures are taken to make them accessible to a public with diverse abilities.
2. Five out of nine participants who experienced challenges reported feeling degraded by comments, with one participant recalling a judge asking her, “do you know what you’re doing?” Other participants were met with suspicion; one reported: “I felt that my disability was dismissed. The system was looking at it as a ploy or tactic.” In other instances, participants felt the accommodation process triggered their PTSD as it related to their disability, finding that the process does not account for the possibility that SRLs with disabilities might be vulnerable to triggering situations.
3. Lack of resources. Five out of nine participants who described challenges and obstacles told us that they relied on our NSRLP resources, and three out of nine relied on community resources such as McKenzie Friends and legal clinics.
4. No help from the court. Nine out of ten participants told us that they received no help from the courthouse regarding information on the accommodations process. One participant pointed out that in addition to a lack of support, they felt as though the courthouse avoided helping her, “at every turn” using the pretext that staff cannot give any legal advice – even though this participant was merely looking for help applying for accommodation.
5. The effects of the pandemic were felt heavily by our participants. Some reported a lack of information regarding the newly adapted processes, others reported a general feeling of confusion. With useful in-court resources no longer available, the shift to online resources made the process even more inaccessible.

Our recommendations for courts

We used the data we collected from participants to formulate the following list of recommendations:

1. Improve judicial training regarding the nature of cognitive disability and the available resources to accommodate SRLs with cognitive disabilities.
2. Increase access to information regarding the accommodations process in each province.
3. Update court web pages to include clear and accessible information about the functions of the Accessibility Coordinators.
4. Allow SRLs to identify any disability at the start of their court process.
5. Enhance awareness among the members of the Bar on the barriers to justice faced by persons with cognitive disabilities who self-represent.

Since some of these recommendations can be achieved relatively easily – for example, better website information and other ways of improving public messaging regarding accommodations – we hope that this study will help to clarify widespread confusion about the accommodations process, and also improve the climate generally for SRLs who feel that the courts are neither responsive nor well-informed about the impact of cognitive disabilities.