Law Commission of Ontario Rejects Proposals to Advance Rights of People who have an Intellectual Disability

On March 8, the Law Commission of Ontario released its long awaited Final Report on Legal Capacity, Decision-Making and Guardianship. The report goes to some length to flatly reject detailed proposals it received from the Coalition on Alternatives to Guardianship, which includes Community Living Ontario, People First of Ontario, People First of Canada and the Canadian Association for Community Living. For over 25 years, the Coalition has called on governments to provide an alternative to guardianship because for so many people it stands as a fundamental violation to their human rights, a reality the United Nations acknowledged over a decade ago. Guardianship removes people’s power over their own lives.

The Coalition recommended the Law Commission of Ontario recognize supported decision-making as one option for situations where people are unable to make personal decisions independently, and we provided a comprehensive draft statutory framework developed by legal experts.

“The reforms we put forward would give legal recognition to what so many people and families now do in practice, which is interdependent decision-making guided by a person’s will and preferences,” said Chris Beesley, Chief Executive Officer of Community Living Ontario.

Supported decision-making is legally recognized in British Columbia, the Yukon, Manitoba and increasingly in jurisdictions around the world. As well, it has been recognized in the UN Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010.

“The Law Commission failed Ontarians who have an intellectual disability and their families, because everyone should be able to have power over their own lives, regardless of whether they need support or not,” said Kory Earle, President of People First of Canada. “The reality is that many people who have an intellectual disability cannot even change their address with the Canada Revenue Agency or open a Registered Disability Savings Plan without a guardian being appointed. We’re asking the Government of Ontario to follow the lead of other provinces and territories by providing a third option, so that we have more of a say when we go to the bank, speak with our doctor or participate in the community in other ways.”

The Coalition has recommended a series of robust safeguards to protect people under supported decision-making, including specified commitments by supporters, enabling the appointment of monitors, notification of a supported decision-making arrangement being put into place, measures to investigate situations of harm, abuse or neglect, and the creation of a special tribunal to consider complaints and to mediate disputes among supporters and individuals.

“The Law Commission adopted all these recommendations, but only for those under powers of attorney. It says it would be too complex to extend these safeguards to supported decision-making, where people are not able to appoint a power of attorney. Instead, it calls for more research,” stated Brendon Pooran, Principal at PooranLaw Professional Corporation. “I receive calls from families every day in my practice looking for an alternative because their son or daughter cannot appoint power of attorney and the costs and complexities of guardianship, not to mention that it removes their family member’s legal personhood, rightfully prevent people from pursuing that option. People who have an intellectual disability should not be required to forfeit their right to make their own decisions due to gaps in our legislative framework.”

Extensive studies on supported decision-making have been conducted in Canada and internationally, the practice has been in place in other provinces for years, and it is recognized by the United Nations. As far back as the early 1990s, the Coalition has called on the Government of Ontario to include the option of supported decision-making when the Substitute Decisions Act was first introduced. At that time, it was the government who called for more study.

In response, Community Living Ontario developed detailed proposals and the Canadian Association for Community Living also produced a major report titled Alternatives to Guardianship. However, the government failed to act on any of the recommendations. Since then, calls have grown in Ontario to introduce supported decision-making, including from the Ontario Legislature’s Select Committee on Developmental Services in its 2014 Report. We trust Premier Kathleen Wynne and Attorney General Yasir Naqvi will finally take the necessary leadership, go beyond the Law Commission of Ontario’s far too limited vision, and enact significant and meaningful change to at least recognize the rights of all Ontarians to inclusion, citizenship and equal respect for the right to legal capacity.

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