HRTO case against Visual Arts Mississauga underscores struggles of deaf students neglected by PC government   

Jane has always seen herself as an artist. 

A bright, adventurous young woman, she uses her paints and pencils as an extension of her imagination and interaction with the world. Her art is an expression of Jane’s place among the wonders that surround her. It connects her to them.

At 22, Jane’s experiences are unlike many others. 

She endured unthinkable physical and sexual abuse while attending E.C. Drury School for the Deaf in Milton; bullying which led to a traumatic brain injury, the development of post-traumatic stress disorder (PTSD) and severe anxiety. Her neglect at the hands of senior administrators and fellow students is part of an ongoing lawsuit against the Provincial Demonstrations School Branch and the Ontario government (which operates the specialized school board). 

Jane’s symptoms spiked each time she stepped inside the walls of the school. An environment that was meant to support and nourish her growth instead became a prison holding her back. Her condition degraded to the point where, nearly four years ago, she left school unable to continue due to her worsening medical conditions. 

Her parents were forced to watch as their daughter retreated into herself, rejecting the pursuits she once loved. 

Art and painting became a chore. The injuries to her brain stopped her from focusing for longer than a few minutes without developing a headache, or being stopped short by negative self-talk. 

I’m stupid 

I suck

These became normal phrases in Jane’s vocabulary. 

“It’s been really difficult, frustrating for me. I've been watching my daughter, she used to be an adventurous, jovial and friendly girl, and slowly she’s just become anxious and depressed and afraid to go outside,” Jane’s mother previously told The Pointer. “It’s been very difficult to just hold it together and get through this.”

Then Jane found Visual Arts Mississauga (VAM), and she found hope. 

VAM is an organization that describes itself as a pillar of the city’s arts community and open to everyone.

“Jane’s dream has always been to become an artist and we see how VAM could be the stepping stone for Jane to finally reintegrate back into society and find purpose again,” her father wrote in an email to the organization.

The first classes saw Jane reinvigorated. Her talents, shook free from the chains of her trauma and previous educational experiences, flourished. She began producing beautiful works of art. 

She was happy. Her parents were hopeful. Then reality struck. 

VAM refused to provide the necessary accommodations for Jane, who is deaf and needs assistance to interpret and grasp the complex art techniques she is being taught. 

Once again, Jane finds herself fighting for the basic rights those in the non-disabled community take for granted. 

It’s a reality faced by thousands of disabled Ontarians who live in a province with a PC government that has failed to take serious action on accessibility barriers that have existed for decades—despite the requirement by law to do so. It also highlights significant gaps in Ontario’s education system that is failing to keep pace with the growing number of students with disabilities and neurodivergent conditions like ADHD and their increasingly complex needs in an educational environment.

Jane and her family are now taking VAM to the Human Rights Tribunal of Ontario (HRTO) to try and get assistance she desperately needs and help her find passion and purpose once again. 

VAM executive director Nasrin Gilbert stated she is unable to comment as the matter is before the HRTO. 

Jane began attending classes at VAM in the fall of 2023. It was clear from the outset she was enjoying the instruction, her father says, and the works of art she created are evidence of a young artist learning new skills and expanding her artistic talents. 

During these lessons, Jane, who is deaf, requires the aid of an ASL-fluent interpreter to help her understand, process and apply the complex techniques she’s learning. The interpreter is crucial for Jane, whose intellectual disabilities and autism, make it difficult to process information as fast as her non-disabled peers. Further, Jane’s awareness of her own struggles, and her perception that she may be moving slower than her fellow students can trigger severe anxiety and PTSD symptoms inflicted by her traumatic educational history. These symptoms include headaches, seizures and hallucinations. A trauma-informed interpreter can work with Jane at the pace she requires, and prevent her from losing herself in negative self-talk and stave off the reemergence of her symptoms. 

And through her first few lessons, it was clear this system worked. The interpreter was able to work closely with Jane, taking detailed notes during the instruction phase of the lesson on everything from wet and dry brush techniques; the differences between a flat wash, graduated wash and variegated wash; and even how to create reflections on water using watercolor paints. Then during the practical part of the lesson, the interpreter walked Jane through these techniques at her own pace. 

Under the Accessibility for Ontarians with Disabilities Act (AODA) it is the responsibility of the organization to pay for necessary accommodations for those with disabilities. 

To date, VAM has refused to pay, leaving Jane’s parents to pick up the bill (approximately $4,300 between September 2023 and May). 

Jane’s father first raised their concerns in October in an email to VAM Executive Director Nasrin Gilbert, informing her it was VAM’s responsibility to pay for this vital service. 

Gilbert replied that “VAM is AODA compliant” and had no problem providing the space for an interpreter to assist Jane, but could not cover the costs. 

“As we are a not-for-profit, we do not have the means to cover the cost of an interpreter at this time,” she wrote. She added that VAM looked into volunteer ASL interpreter programs in the GTA, but are not eligible. Gilbert also suggested a potential pilot program if Jane had other friends with similar needs who would like to attend VAM courses. 

“We’d be happy to work with you to share the cost of an interpreter with other participants and help market the course,” she wrote. “Once we have a successful program as evidence, we may be able to expand our offerings with funding.”

The AODA is clear. Unless a request will cause “undue hardship” to an organization, it is legally required to accommodate the needs of the disabled individual. Undue hardship refers to costs that are so substantial “they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability”, according to the Ontario Human Rights Commission,  In an email to the family, Gilbert claims the costs for Jane’s interpreter would place undue hardship on VAM. The same is stated in a letter sent from Heath Law to Jane’s family on March 20. Heath Law did not respond to a request for comment for this story. 

According to Jane’s father, the costs for an interpreter to assist his daughter would be approximately $2,000 per quarter, depending on the number of VAM courses she enrolls in. 

The 2023 Financial Statements for VAM show the organization earned $959,500 in revenue last year, the largest source coming from program fees ($583,708) and grants ($321,045). With total expenditures of $980,271–nearly half going to salaries and contract costs. The not-for-profit held a deficit of $20,771 last year. The document shows the organization pays significantly more in salaries and administrative costs ($419,683) compared to the money that goes back into programming expenses ($262,769).

The Supreme Court of Canada has made it clear the standard for arguing against accommodating a disabled person due to excessive costs is a high one. 

“It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment,” a 1999 ruling reads. “One must be wary of putting too low a value on accommodating the disabled.”

After his daughter’s horrific treatment in the public school system—forcing her to try and find alternative forms of education at places like VAM—Jane’s father is shocked to once again experience resistance trying to get fair, equal treatment for his daughter.  

“Just from a straight financial perspective it’s insane that they’re fighting this, cause they’re going to lose. They’re going to lose money, they’re going to lose reputation, it’s just awful,” he says. “They have likely spent more than we’re even claiming trying to defend themselves against providing for a deaf, autistic, intellectually disabled student who has paid thousands in fees to attend their classes.”

VAM has offered alternative accommodations for Jane, but her father says they are ineffective and demeaning to deaf learners. 

Gilbert offered to provide an iPad with text/icon based communication tools that Jane could use to communicate with her teacher and eliminate the need for an interpreter.

However, these apps (Proloquo and Spoken ACC), are ill-fitted for someone like Jane with complex needs. These apps use icons and basic text commands that would allow Jane to communicate with her teacher. But these simple commands would make it incredibly difficult to clearly communicate the complex art techniques Jane is learning at VAM. It would also be hard for the teacher to effectively communicate with Jane through the app while simultaneously teaching the rest of the class. 

“It’s ludicrous what they believe is reasonable accommodation,” Jane’s father says. 

David Lepofsky, a prominent disability advocate in Ontario and Chair of the Accessibility for Ontarians with Disabilities Act Alliance states adequately accommodating those with disabilities requires organizations to understand that these needs are incredibly individualized. 

“Two people with the exact same hearing loss, the identical hearing or lack of hearing, may use completely different modalities,” he states. 

While not having direct knowledge of Jane’s case, Lepofsky says he hears similar concerns from individuals across Ontario looking for help in gaining effective accommodations. 

“That’s what I get emails about all the time. I can’t even answer them all,” he says. 

According to data from the Government of Ontario, there are 2.9 million Ontarians living with one or more disabilities. That number is expected to grow by 1 million by 2040. Despite this sizable demographic, the government is absolutely failing them, Lepofsky states. 

Lepofsky was instrumental in pushing for the AODA to be approved nearly 20 years ago, and he says the act was written in a way to avoid residents having to go before the HRTO to solve problems. 

“The way the AODA works is people shouldn’t have to fight these battles one at a time. Organizations should know what they have to do,” he says. 

But that’s not how things have played out over the last 20 years. Repeated reviews of the AODA have highlighted a litany of failures by the government to adequately enforce its own laws.

“Even if you could show that someone was clearly contravening it, there is nowhere to go,” he says. “The government is failing everybody on this.”

This failure has triggered a domino effect resulting in a sizable backlog of cases before the HRTO. It can take years to get a ruling, Lepofsky states. 

“If your child was facing a barrier getting into kindergarten, you might get a decision by the time they’re at the age where they’re ready for high school. It’s crazy.”

David Lepofsky is the Chair of the Accessibility for Ontarians with Disabilities Act Alliance. 

(Submitted)

Independent reviews of the AODA commissioned by the PC government have described the list of failures in detail.

In a report, published in March 2023, Rich Donovan, CEO of Return on Disability Group, concluded the entire regime for enforcing and applying the AODA in Ontario is “an unequivocal failure”. 

The reasons for this, he wrote, are “straightforward and predictable”. Donovan points to a lack of data collection by the Province and the total absence of any plan to change how “Ontario will get from where it currently is to where it needs to be.”

There are no accountability mechanisms, and “the result is a series of failures and missed opportunities that has spanned 17 years.”

This was the fourth independent review, with others conducted in 2010, 2014 and 2019, all of these independent reviews appointed by the provincial governments of the day have come to the same conclusion. 

In 2010, reviewer Charles Beer found there were “concerns” with how the AODA had been implemented over the first five years. 

In 2014, reviewer Mayo Moran concluded “the pace of change is seen as agonizingly slow by persons with disabilities.”

Then in 2019, reviewer David Onley told the Doug Ford government that progress toward implementing the AODA was “glacial”, leaving Ontario filled with “soul-crushing barriers” for people with disabilities.

“If you’re in a chair with wheels, most likely the building has ramps, but if you have any other disability, you have to fight,” Jane’s father states. “Deaf, blind, intellectually disabled, neurodivergent of any sort, other disabilities, you have to fight…It’s not just us, we know so many families that have to do the exact same thing, fight at every turn to get their disabled family members accommodated.”

For years, Jane’s parents have fought the PDSB, and the ongoing lawsuit details a litany of disturbing allegations. Picking up another fight and pursuing an HRTO case against VAM was not something they wanted to do. 

“I’ve been telling (VAM) for six months, eight months, that we don’t want to file this against you, I don’t want to bring disrepute to this wonderful organization,” Jane’s father says. “They just kept ignoring us.”

To date, it’s unclear whether VAM has filed any response to the HRTO application from Jane and her parents. A request seeking clarity sent to Heath Law, the human rights lawyers for VAM, was not returned. 

Email: [email protected]

Phone: 437-922-9889

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