This Report examines the experiences of cognitively disabled self-represented litigants (SRLs) who have requested accommodations for their cognitive disabilities.
Cognitively disabled SRLs have increasingly reached out to the NSRLP detailing their frustrations with the accessibility of legal proceedings and the barriers they face in requesting accommodations for their disabilities. In response, we have sought to clarify the challenges faced by these individuals in order to make specific recommendations to Canadian Courts. A secondary goal of the study was to begin a preliminary investigation into the effects of the COVID-19 pandemic on cognitively disabled SRLs’ ability to secure accommodations.
The 10 participants were all Canadian adults with cognitive disabilities. We used data collected via semi-structured interviews and qualitative content analysis to determine the nature and extent of the challenges faced by cognitively disabled SRLs while requesting accommodations, and to determine whether the onset of the COVID-19 pandemic has impacted these experiences.
We found that participants were generally unaware of available resources and the appropriate processes they should follow to request accommodation due to inaccessible or unavailable informational materials. Participants overwhelmingly reported that the Court had made no effort to assist them, and many described how Court employees and judges treated them with hostility and dismissiveness.
Based on these results, the we have recommended that judges, court services employees, and members of the Bar receive training on the nature of cognitive disabilities and court resources and procedures, and that accommodation policies be better communicated and advertised to SRLs.
In addition to this report, participants’ testimonies and the NSRLP’s recommendations were presented to the Ontario Courts Accessibility Committee in June of 2021. Segments of the interviews may be heard in our podcast episode, “Struggling for Accommodation.”
I consider myself somewhat familiar with many of the court process, I was an SRL for a decade. I learned the hard way what to do and how to do it, mostly by copying what the defendants did and acquiring and digging through an archived file from an old case. I had no idea that requests for accommodation were not to be handled through the court, I motioned for venue change and my disabilities include chronic fatigue, a condition that causes variable cognition; that motion was unsuccessful. Why aren’t the counter staff, the people taking filings informing PWDs of the process? Why aren’t there pamphlets and mandatory requirements for them to be handed out by counter staff, and further to explain the contents if necessary? Why haven’t the provincial Attorneys General effectively communicated the new process and rights they created for PWD’s?
Excellent questions Barb, we wonder the same!
What continues to be absent from these discussions is the ACTIVE role that insurers like lawpro (insure judges, lawyers, etc) – plays.
Insurers continue to (actively) PROMOTE to judges, lawyers, etc – that PWcD are “difficult” and must be “folded” – excluded from legal / society.
http://www.slaw.ca/2017/05/03/how-scarcity-can-change-us-why-the-justice-system-needs-empathy/
Insurers FINANCE the cost of human rights defendents, but there is no insurance product for the malicious act of discrimination.
These inequities are at the base of this problem – the insurance industry is actively promoting and incentivizing systemic eugenics in the legal sector – and choosing ‘the right’ sort of humans to access fundamental legal help and all services that splinter from this.
Great Report! Informative and shocking all at once. Incredible groundwork done by NSRLP staff.
Few questions: (1) considering the amount of SRL PWID why hasn’t there been any previous studies conducted via legal or mental health sectors/institutions?; (2) why the void in researching this issue? and (3) why aren’t law schools and legal organizations formally training and/or educating law students, judges, lawyers, court staff, etc training on the nature of cognitive disabilities and court resources and procedures in aiding with accomodations?
Thank you! And those are all great questions, I wish we had the answers to them.
There are so many studies!
The mental health commission of Canada has been pretty accurate with contributions like it’s out of the shadows, or structural stigma series. (Google them. Easy to find).
The issues I think, flow from the push back from the insurance, and presumably government sectors, which ultimately contaminates the legal sectors.
The issues are well documented, as is the apathy and stigma from an insurance sector who effectively finances the jurisprudence on this issue, by offering human rights litigation costs as a product, but not subsequent malicious acts insurance for people experiencing systemic discrimination.
This is an issue at the federation of law societies and insurance regulation issues that splinter down in many ways and make relationships with doctors and lawyers more difficult than they need to be to solve often simple or banal legal issues.
My partner and I requested to 8 lawyers and the 6 Corporations they represent, among them 3 insurance companies, and to an accessibility coordinator and to a judge to be reasonably and procedurally accommodated but all of them denied it. The request was based on art. 96 of the Constitution, art. 15 of the Charter, the Ontario human rights code, the LSO’s Rules of Professional Conduct for lawyers, the Accessibility for Ontarians Acts 2001 and 2005 he UN Guidelines and Principles to Access to Justice for Disabled People https://news.un.org/en/story/2020/08/1071252
I was in litigation for almost 12 years. For brief periods of time I was represented by counsel and the other side used my disability to try and argue lack of capacity, but yet, not my lawyers or the judges even thought to mention any possibility of accommodation. I’ve also been working in family law over the past 8 years but I only found out about accommodations through the NSRLP in 2021, when my court matter concluded after almost 12 years.
“Why” questions are asked when someone doesn’t know. Maybe someone isn’t understanding what is being stated or asked. Case in Point: A hostile clerk at the law courts, gave me a dismissive response to my naive question: “What is a style of cause?” That was me in 2011- I didn’t know what a style of cause was. I didn’t know what an “argument” was either. I did know, however, I had been wronged and I was psychologically injured from this dehumanizing experience. The “law clerks” were biased – mostly unconscious – and insensitive. An ordinary person with an average cognitive ability, more or less, can become severely and temporarily cognitively disabled when presented with overwhelming written material – it is called “information overload”. This phenomenon is scientific, evidenced-based, empirical research for those in the field of literacy. As a specialist, I know “information overload” obstructs – even paralyses one’s ability to function. Lack of understanding coupled with circumstantial anxiety of unknown processes and procedures, renders most ordinary people “vulnerable”. That vulnerability can leave the person cognitively disabled – it’s a factor in being demoralized.
A very interesting point, thank you Paulette.
The University of Toronto had at one point put out a Youtube video for students with disabilities, that broke down the process in plain easy to understand language and steps. As a former college student who was eventually (too late) made aware that sometimes accommodations could be applied for, I began to wonder if I could ask the same of the Courts after a very rocky start in my proceeding which really hasnt improved in the years the matter(s) have gone on. Out of frustration and shear desperation, I used the university youtube video as a guide in order to attempt to request accommodations from the court. Even with that, it has been hit-and-miss every step of the way.
Perhaps the Courts could put out a Youtube primer on how to submit for accommodation then provide it not only as a public resources but as a staff guide and awareness professional development tool.
A great idea!
Thank you so much for hearing us and putting our voices into such a well written thorough report and for speaking out on this issue on our behalf. It provides hope that perhaps one day the Courts will fully abide by the very laws they are to be instilling….
Thank you so much, we’re so glad you feel well-represented in the report.
These commentators are in disbelief as to why no one has done anything to effect the “accommodation of difference” for people without counsel (SRLs) including people with (cognitive) disabilities. Accommodation of Difference is a Principle of LAW. The Supreme Court of Canada hails it as the cornerstone of democracy. Why isn’t it addressed by the Attorney Generals? Why aren’t pamphlets distributed? Why don’t court staff know about SRLs with PWcDs, you ask? Short answer: they have never studied. It isn’t on their radar so why would they know how to accommodate difference? This is highly specialized field. Educators study the science far beyond graduate school. It involves the” principles of learning’ that support strategies for “accommodation of difference” because “access to learning” is an essential service. The legal community doesn’t know this. Why do we assume they are specialized in this area? Would they be in fear of losing control of their institution if they studied related fields to accommodate differences? Lack of education on “accommodation of difference” is the status quo – it is an old-school mentality. Wasn’t a “one size fits all practice” good for the legal community for 300 years? Again – short answer – ignorance and arrogance keeps the legal community insulated from taking action to address the disparities in access to justice. Shaking the entire legal community up to be more educated, caring, understanding, empathetic and more in tune with humanity’s differences in ability is an essential service not to be denied. Unfortunately, this essential service is denied every day to SRLs and PWcDs.
Re: “Accommodation of Difference”;
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (CanLII), [2000] 1 SCR 665, says: “[39] The objectives of the Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer.”
“…give that person a virtually impossible task” resonated as a PWCD SRL.
Alexandrea Nasager, The Supreme Court, Functional Bilingualism, and the Indigenous Candidate: Reconciling the Bench, 2020 57-3 Alberta Law Review 797, 2020, says; “Diversity is an honourable characteristic for the Supreme Court justices to embody, but without mechanisms of accommodation to rectify potential exclusionary thinking, and absent the recognition of substantial inequities that may exist between applicants with significantly different socio-economic, cultural, and political backgrounds, the diversity requirement may do little more than provide a shell game for Indigenous candidates hoping to serve as a justice at the Supreme Court.”
Adding “disabled self-represented parties” & “disabilities”, accommodations seem to be implied in theory but not in practicality.
Accessibility committee responds with its own survey?
https://www.surveymonkey.com/r/OCACSurveyEN
We are working on a generalized letter that persons across Canada can submit to their Member of the Legislative Assembly with a petition and reference list attached. It’s coming along and will be sent to Julie and the NSRLP Team and to Judy Gayton for final review shortly. We are including in the proprosal in support of establishing The Gayton Principle, a requirement that ALL court resources and documentation including websites, information, Court Forms, published Caselaw, Endorsements and Orders, meet the standards set out in the WC3 Web Accessibility standards which you can find here: http://www.w3.org/WAI/
Checkout the link above on W3C:
“Making the Web Accessible
Strategies, standards, and supporting resources to help you make the Web more accessible to people with disabilities.”
Online security needs to be factored in, particularly for the vulnerable.