Lawyers, perhaps because they are trained from day one that precedents (past outcomes in similar situations) must always be respected, tend to be slow to change. The law, too, can be slow to change, particularly when it comes to language. That is why even important and socially progressive laws like the Accessibility for Ontarians with Disabilities Act refer to persons with disabilities rather than to differently abled persons.
The curators of this Law Directory have given careful consideration to the use of language in the description of this area of legal practice. Our preference would be to use differently abled in place of disabled but, while the former term is now widely accepted in everyday discourse, it has not yet found its way into the laws that protect and advance the interests of members of the differently abled community. Therefore, for now, we will usually say disabled instead of differently abled in this discussion but please understand this is only to avoid confusion when talking about this topic and not because we are unaware of, or insensitive to, the rights and feelings of those who prefer the more acceptable – and respectful – term.
There are far more situations where the assistance of a Disability Lawyer is required than many people might imagine, although disabled persons and their families (or legal guardians, if a person in that role is required) will most certainly have a clear understanding. Disabled persons face challenges every day that an abled person does not.
A person may be disabled from birth, a disability may result from an accident (often a workplace or car accident), or a disability may develop over time (some forms of mental disorder, for example, do not present until an individual’s teen or adult years). “Disability” covers a broad spectrum and degree of conditions, some visible and some not. There are physical, mental, and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, mental health disabilities and addictions, environmental sensitivities, and other conditions.
Disabilities caused by an accident may be temporary or permanent. If an accident occurs in a workplace, wage-loss benefits, medical coverage, and support to get back to work (if that is possible) are provided in Ontario by the Workers’ Safety and Insurance Board. Other provinces have similar organizations.
“Worker’s Comp” is, in effect, an insurance plan that covers everybody when they are at work. A dispute may arise between an injured worker and the WSIB about the worker’s entitlement to benefits. In that case, obtaining the assistance of a lawyer is highly recommended. Because the WSIB has its own, unique, rules and procedures a lawyer with specialized knowledge and experience is required. Some Disability Lawyers do handle WSIB cases, but the specialist you need will often identify as an Employment Lawyer. This is because not only are Employment Lawyers experts in WSIB law, they also understand employers’ obligations when it is time for a person injured in the workplace to return to work. These obligations can include accommodating the returning employee’s limitations as they get back up to speed, as it were, or finding the employee a more suitable job.
If a workplace accident results in a permanent disability, the assistance of a Disability Lawyer may be more appropriate than that of an Employment Lawyer because longer-term the disabled person will most likely require assistance in areas that do not involve the WSIB. However, in this situation, it is wise to ensure your Disability Lawyer has WSIB experience. In particularly complex cases, it may be necessary to retain an Employment Lawyer to deal with the WSIB and a Disability Lawyer for other matters.
In the case of a person injured in a motor vehicle accident, a lawyer’s intervention may be required when dealing with the insurance company responsible for providing support. If the prognosis is a disability is temporary, support should include, at a minimum, income replacement and coverage for medical and rehabilitation expenses. A lawyer’s assistance may be required if the insurance company resists providing all of the support to which the injured person is entitled. Disputes with respect to the precise nature and extent of an injury and the time needed for rehabilitation are frequent. In such cases, the assistance of either an Insurance Lawyer or a Disability Lawyer may be sought.
In either case, one valuable area of knowledge the Lawyer will bring is a deep understanding about how to deal with medical professionals so that the reports they provide are not inadvertently worded in a way that deprives the injured person of benefits to which they would otherwise be entitled. The Lawyer will also advise that one should be careful about accepting “full and final” settlement offers from an insurance company. It is not unusual that issues arising out of an accident do not show up until after a considerable period of time has passed.
The other side, as it were, of Disability Law is supporting and advocating for persons who are differently abled from birth. Although strides have been made to adjust so that differently abled individuals have the same opportunities in life as abled people have, many barriers and challenges remain. It is certainly the case, for example, that high-profile changes such as disabled parking permits and designated parking spots, and the provision of ramps in addition to stairs in newly-constructed buildings have made it possible for some differently abled individuals to take advantage of opportunities they could not otherwise have accessed.
Nevertheless, differently abled persons continue to face challenges when it comes to getting an education or a job or, indeed, doing many of the things others take for granted. A Disability Lawyer is an expert in knowing all the laws, such as the Human Rights Code, that can be relied upon to assert the right of a differently abled person in a variety of situations.
A Disability Lawyer will also be well-versed in ensuring that a differently abled person is not unfairly denied government assistance under any of the several laws and regulations intended to benefit members of that community. As well-meaning as those laws and regulations are, bureaucracy can sometimes get in the way.
The aggressive assistance of a Disability Lawyer may also be necessary in situations in which well-meaning but misguided officials fail to give differently abled persons credit for the abilities they do possess. An example of this type of situation that makes the news from time to time is when a child protection agency attempts to remove a child from the care of disabled parents. There are no winners in these gut-wrenching battles between child safety advocates and advocates for differently abled persons.