Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Time to end cities' discriminatory bylaws group home she operates there. Henley says her clients have been subject to taunts from neighbours as well as resistance from the town over the status of her group home. Th e town' I it was the wrong location for a group home and noted he'd be upset if s mayor reportedly said he lived near it. Henley is now seeking redress at the Human Rights Tribunal of Ontario over the town's alleged discriminatory practices. Th e tribu- nal is also facing a number of other cases dealing with related issues in Smith Falls, Kitchener, Sarnia, and Toronto. In Toronto, a bylaw states that group homes must be at least 250 metres from each other. Th e Dream Team, a group of advocates and people with disabilities, says the municipal policies are discriminatory and unfair. Th e distance requirements, of course, limit the number of group t's amazing that in 2012, a number of municipalities in Ontario are still fi ghting group homes for people with disabilities. As Law Times reports on page 13 and 14 this week, Kendra Hen- ley is battling the Town of Greater Napanee over zoning for the COMMENT September 10, 2012 • Law timeS homes overall and restrict them from setting up in what otherwise might be good locations. What' s more, the City of Toronto is reportedly stalling the case through legal maneuvers (see "Zoning challenge moves ahead," page 14). For example, it has repeatedly and unsuccessfully sought to dismiss the case. Instead of tying up the process, it should address the substantive issues the applicants are putting forward. Obviously, these policies have no place in our society. Th ey're blatantly unfair and harken back to outdated atti- tudes towards people with disabilities. It appears some of the municipalities have seen the light. Kitchener and Sarnia are both on the way towards relaxing their bylaws while Smith Falls, which has a cap on the number of people with dis- abilities who can live in group homes there, has said it'll remove the restriction. Napanee? Clearly, they need to catch up with the times. While nearby residents may have legitimate concerns about large numbers of people living near them, the way to deal with that is by enforcing the laws in order to deal with any problems that arise, not by limiting the housing options of people who already face enough disadvantage. Th at's great to see, but what about Toronto and — Glenn Kauth T Superintendent cloaks policy issue as science on catastrophic impairment he superintendent's report on seem like a dry topic, but for those suff er- ing injuries in motor vehicle accidents, the diff erence between having a catastrophic impairment designation and not getting one can be a life-altering distinction. Of all of the proposals in the super- intendent's report, none is more con- the defi nition of catastrophic impairment in the statutory ac- cident benefi ts schedule may combining impairments is a simple additive process." It' conclusion given the constit- uency of the expert panel. As stated on July 9 by Dr. Harold Becker in his submission to the standing committee on fi nance and economic aff airs, the majority of s also not a surprising troversial than the one rejecting the combination of physical and psychiatric impairments to determine catastrophic impairment. Th e origin of this proposal lies with the fi nal report of the catastroph- ic impairment expert panel from April 2011. Th e panel conceded in its fi nal re- port that it "did not have the resources to conduct a comprehensive review of the literature to determine whether valid and reliable methods of combining physi- cal and psychological impairment exist." Th us, it wasn't surprising that it "did not fi nd suffi cient evidence that combined impairment ratings are more clinically meaningful than using separate criteria." We've come full circle with the super- intendent now concluding that "there is no scientifi c evidence to suggest that Law Times LT Masthead.indd 1 panel members weren't ex- perts in catastrophic impair- ment and the two physiatrists are friendly to insurers. Becker believes the "failure to acknowl- the expert Alan Shanoff edge the coexistence of traumatic brain injury and associated psychiatric impair- ment . . . is seriously fl awed and demon- strates a serious bias against both brain- injured claimants and claimants who develop associated psychiatric reactions resultant from traumatic brain injury. Becker's views deserve the utmost of " deference. He was responsible for lead- ing the advisory panel that wrote the catastrophic impairment assessment guidelines for designated assessment centres in 2001. He then served as the medical representative on the advisory panel that wrote the previous report on Social Justice the defi nition of catastrophic impairment. Is there an epidemic of claimants? Hardly. According to the 2011 annual report of the offi ce of the auditor gen- eral of Ontario, about one per cent of all accident victims are determined to be catastrophi- cally impaired. Th at' 700 people a year. But perhaps there' inition if we allowed the combination of physical and psychological impairments? Th at' tial fl ood of additional claim- ants who would satisfy the def- of catastrophic impairment has been in- terpreted to permit the combination of physical and psychological impairments and in last December' s not the case. Th e current defi nition nierz v. Economical Mutual Insurance Co., the Ontario Court of Appeal referred to a concession made by the insurer that "there are only a very few cases where there are permanent physical impairment and per- manent psychiatric impairments that are not catastrophic if assessed separately but are catastrophic if assessed together. s decision in Kus- So permit me to be puzzled about " Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ...................... Mallory Hendry CaseLaw Editor ................. Adela Rodriguez Art Director ...................... Alicia Adamson Production Co-ordinator ............. Catherine Giles Electronic Production Specialist ....... Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 8/16/12 4:04 PM the pressing need to disallow combined impairment ratings. It' that any decision to disallow combined impairment ratings shouldn't be based on scientifi c evidence or the lack thereof. Th is isn't a scientifi c or medical question. It' s also noteworthy s less than s a poten- question of policy. Th e Court of Appeal said it succinctly in Kusnierz when it said the purpose of the catastrophic impair- ment defi nition is to ensure that "those with the greatest need for health care are able to recover the expenses of that health care. s a combined impairment ratings? Th e composition of the expert panel " If so, why is it necessary to disallow was problematic at the outset. It made a recommendation without conducting a comprehensive review. Th e superinten- dent has followed that recommendation and in turn made an ill-informed rec- ommendation that cloaks a policy issue as a scientifi c one to the Ontario govern- ment. It' do the right thing and reject it. s now up to the government to LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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