accommodation has been complicated in the past,^10 increasingly,
administrative boards and tribunals as well as the courts are
acknowledging the need to have in place simple, accessible and cost
effective processes to permit the appointment of litigation guardians or the
use of other forms of accommodation to ensure that litigants with capacity
issues are not prevented from asserting their legal rights due to a lack of
proper accommodation by the legal system.^11
IV. ACCOMMODATIONBefore any determination of capacity is made, accommodation must be
provided. The Ontario Human Rights Code obligates all service providers
to accommodate disability. This means that lawyers have a legal
obligation to provide whatever accommodations are required by a client
with a disability. This includes clients with mental health issues, acquired
brain injuries, intellectual disabilities or any other disability that may impact
upon a person’s ability to understand or process information or appreciate
the consequences of making or not making a decision. A lawyer has a
professional obligation not to turn away a client simply because they
require accommodations that the lawyer may find expensive or
inconvenient. In addition, service providers must accommodate people
with disabilities without passing on the cost to those persons. This means
that a lawyer cannot charge a client for the cost of interpreters or other
forms of accommodation.^12
(^10) Tess Sheldon, Access to Administrative Justice for Persons with Disabilities: Addressing the
Capacity of Parties Before Ontario’s Administrative Tribunals, Promoting Autonomy and Preserving
Fairness, (December 2009), online: ARCH Disability Law Centre
<http://www.archdisabilitylaw.ca/?q=addressing-capacity-parties-ontario%E2%80%99s-
administrative- 11 tribunals-respecting-autonomy-protecting-fairne>.
12 See Yuill v. Canadian Union of Public Employees 2011 HRTO 126.^
It is not clear what assistance the Law Society of Upper Canada or the Ontario Bar
Association can offer to lawyers who find the cost of accommodating clients with
disabilities overwhelming.