¹ The title refers to the New Testament story of Lazarus, a crippled beggar who lay and died outside a rich man's gate, he then ascended to heaven whereas the rich man, upon his death, descended to hell. Luke 16; 19-26.

² While the term “persons with disabilities” is the most accurate description of individuals who have physical, mental or emotional impairments who confront social and environmental barriers, I employ “disabled persons” or “disabled individual” to signify the same category of people. I realize that while these terms are not the best, I use them as a stylistic tool, in order to guard my prose from sounding redundant.

³ Americans with Disabilities Act, 42 U.S.C. §12204 (1990)Google Scholar [ADA].

⁴ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 [Charter]Google Scholar.

⁵ As of 2006, the federal New Democratic Party (NDP) has shown some interest in a bill which would enforce accessibility nationally. Peter Julian, an NDP M.P. from British Columbia, has drafted a “National Persons with Disabilities Act,” to be put forward as a private member's bill.

⁶ An example of a beneficial side effect of accessibility is the fact that accessible ramps benefit individuals with wheeled suitcases, carts and strollers, as well as those who use wheelchairs. I mention some of these less obvious advantages in the final section of this paper.

⁷ Universal Declaration of Human Rights, GA Res. 217(III)Google Scholar, UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [Universal Declaration].

⁸ For more on the role that medicalized killing of the disabled played in the development of gas chamber technology of the Nazi concentration camps, see Lifton, Robert Jay, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 1986)Google Scholar.

⁹ See O'Brien, Ruth, Crippled Justice: The History of Modern Disability Policy in the Workplace (Chicago: University of Chicago Press, 2001) at 86 Google Scholar [Crippled Justice].

¹⁰ Rehabilitation Act of 1973, Pub. L. No. 93-112, §504, 87 Stat. at 355 [Rehabilitation Act].

¹¹ G.A. Res. 3447 (XXX), 30 U.N. GAOR Supp. (No. 34), U.N. Doc. A/10034 (1975).

¹² Ibid. at 88.

¹³ Most of this summary of American legal history regarding the disabled comes from the second chapter of Crippled Justice, supra note 9 at 64-65, 67.

¹⁴ See Vocational Rehabilitation Act Amendments of 1965, Pub. L. No. 89-333, 79 Stat. 1282.

¹⁵ See Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (codified at U.S.C. 794).

¹⁶ Ibid., §504.

¹⁷ See Crippled Justice, supra note 9 at 109.

¹⁸ See Civil Rights Act of 1964, P.L. 88-353, 78 Stat. 241 (1964).

¹⁹ See ADA, supra note 3.

²⁰ Ibid., §12101. As well, those with substance abuse and alcohol problems were clearly and explicitly excluded from the definition of person with a disability, see ibid., §12210.

²¹ See Crippled Justice, supra note 9 at 163.

²² See ADA, supra note 3, §12101.

²³ The only legislation that the federal Department of Justice departmental web site notes, prior to the adoption of human rights statutes, is the enactment and repeal of the province of Alberta's sterilization laws in 1948 and 1972 and, Ontario's Blind Person Right's Act in 1970. See online: Department of Justice Canada, <http://canada.justice.gc.ca/en/>.

²⁴ See Human Rights Act, R.S.N.S. 1989, c. 214 Google Scholar.

²⁵ See Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, (1975)Google Scholar.

²⁶ A Canadian Bill of-Rights was adopted by the federal legislature in 1960. However this law was not constitutional in nature and applied only to federal jurisdiction and thus did not apply to provincial laws. Moreover it did not offer protections for disabled Canadians. (Although it has been revised several times since and now does include the appropriate phrasing.) See Canadian Bill of Rights, S.C. 1960, c.44 Google Scholar.

²⁷ See Charter, supra note 4.

²⁸ Given the constraints of this paper, I do not itemize each province's and territory's specific human rights legislation; instead I choose here to focus on specifics of some provinces. My conclusions can be extrapolated, with some variation, to other provincial jurisdictions. In the area of human rights statutes, this cross-jurisdictional correspondence is largely the result of the constitutional entrenchment of the Charter.

²⁹ See Policy Guidelines on Disability and the Duty to Accommodate (Toronto: Ontario Human Rights Commission, 23 November 2000) at 12 Google Scholar.

³⁰ Ibid. at 37.

³¹ See Employment Equity Act, S.C. 1995, c.44 Google ScholarPubMed, s.20 [Employment Equity, 1995].

³² See Public Service Reform Act, S.C. 1992, c. 54 Google ScholarPubMed.

³³ See Employment Equity Act, S.C. 1996, c. 23 Google Scholar [Employment Equity, 1996].

³⁴ Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11 Google Scholar [ODA].

³⁵ In the U.S., the ADA had been originally and similarly attacked for its lack of financial assistance as well. Ultimately, this had not weakened the effectiveness of the environmental portions of the Act, nor had this been the difficulty with employment provisions, but Canadian activists nonetheless believed this to be a significant weakness of the Ontario legislation.

³⁶ See ODA, supra note 34.

³⁷ See Crippled Justice, supra note 9 at 14. It provides an insightful analysis of the American judiciary's response to disability employment legislation—please refer to it for a more detailed examination of these issues. Of course, any errors I make are my own. See also Colker, Ruth, “The Americans with Disabilities Act: A Windfall for Defendants” (Winter 1999) 34 Harvard C.R.-C.L.L. Rev. 99 Google Scholar [Colker: “The Americans with Disabilities Act”].

³⁸ See Crippled Justice, ibid. at 205.

³⁹ Ibid. at 139.

⁴⁰ See Southeastern Community College v. Davis, 442 U.S. 397 (1979). In another case, Justice Rehnquist, in analysing the 14^thamendment, diverges from the lower court decision and concludes that: “[n]othing in the “overall” or “specific” purposes of the Act reveals an intent to require the States to fund new, substantive rights.” Thus a disabled person in a state institution is not necessarily entitled to “equality” in living conditions. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981) at 18. In another decision in 1985, the Supreme Court concluded that the mentally impaired did not deserve equal protection. See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985).

⁴¹ For more on occupational therapy's approach to disability, see Townsend, Elizabeth et al. , eds., Enabling Occupation: An Occupational Therapy Perspective (Ottawa: Canadian Association of Occupational Therapists, 1997)Google Scholar. It is somewhat ironic that the guiding principles of this health profession have been used to limit people's capacities to claim disability, for these principles outline an ethos in which “Activities of daily living” are the means by which people engage with the world and create meaning in their lives.

⁴² See Rodriguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653 at 661 (DPR 1997); Deas v. River West, LP, 152. F.3d 471, 478 (5th Cir. 1998), 527 U.S. 1044 (1999). See also Ellis v. Mohenis Services Inc., 13 NDLR P 147 (E.D.Pa. 1998); Berg v. Norland Corp, 528 U.S. 872 (Mem. 1999), 169 F.3d 1140 C.A.8 (Iowa 1999); Perkin v. St. Louis County Water Co., 160 F.3d 446 C.A.8 (Mo. 1998).

⁴³ See Sutton v. United Air Lines Inc., 527 U.S. 471 (1999). Here the applicants, twin sisters with severe myopia that was corrected by eyeglasses, argued that the airline had violated the ADA when they were denied employment as pilots. The court held that they did not qualify for protection under the ADA as their impairment was mitigated by corrective lenses. The airline could thus deny the sisters employment on the basis that they did not meet their visual acuity standard. In this catch-22, the applicants were too impaired to qualify for the job but not impaired enough to qualify for protection under the ADA.

⁴⁴ See Arnold v. United Parcel Service 136 F.3d 854 (C.A.1 1998). See also Baert v. Euclid Beverage Limited, 149 F.3d 626 C.A.7 (Ill. 1998).

⁴⁵ Colker, “The Americans with Disabilities Act”, supra note 37.

⁴⁶ Board of Trustees of Univ. of Alabama v. Garrett, (99-1240) 531 U.S. 356 (2001).

⁴⁷ See Colker “The Americans with Disabilities Act”, supra note 37 at 100.

⁴⁸ See Colker, Ruth, “Winning and Losing Under the American with Disabilities Act” (2001) 62 Ohio St. L.J. 278 Google Scholar [Colker, “Winning and Losing”].

⁴⁹ See Board of Trustees of the University of Alabama, et al., Petitioners v. Patricia Garrett et al., 531 U.S. 356 (2001). The high court ruled that Congress must explicitly abrogate state powers if a piece of federal legislation intrudes on customary state jurisdiction—accordingly, the ADA does not meet this standard.

⁵⁰ US Airways, Inc. v. Barnett, 122 S. Ct (2002) at 1517.

⁵¹ See United States, U.S. Bureau, Census, Survey of Income and Program Participation (1998)Google Scholar.

⁵² See McNeil, John M., “Americans with Disabilities: 1994-95” in Current Population Reports: Household Economic Studies (Washington, D.C.: U.S. Census Bureau, August 1997) at 3, online: U.S. Census Bureau <http://www.sipp.census.gov/sipp/p70s/p70-73.pdf>Google Scholar [Current Population Reports].

⁵³ See 2005 Disability Status Reports: United States, Rehabilitation Research and Training Center on Disability Demographics and Statistics, Cornell University, online: Disability Statistics: Online Resource for U.S. Disability Statistics <www.disabilitystatistics.org>.

⁵⁴ See Lehmann, Ilana S., “Minimum Wage Rates and Employment of Individuals with Disabilities” (2006) 72 Journal of Rehabilitation at 54 Google Scholar.

⁵⁵ See “Adults with disabilities, their employment and education characteristics” in 1991 Health Activity and Limitation Survey (HALS) (Ottawa: Statistics Canada, 1993)Google Scholar. This presents a statistical portrait of Canadians' physical impairments. See also 2001 Participation and Activity Limitation Survey (PALS) (Ottawa: Statistics Canada, 2003)Google Scholar, which provides a more recent and revised statistical portrait of disability in Canada. Unfortunately, the statistics are being released in a graduated manner, and those dealing with employment rates have yet to be published.

⁵⁶ See Boschen, K & Tonack, M., “Measuring community integration and quality of life of adults with SCI” (Paper presented to 76th Annual Meeting of the American Congress of Rehabilitation Medicine: Promoting Excellence in Rehabilitation Research held at Orlando, Florida, October 1999)Google Scholar [unpublished].

⁵⁷ See On Target: Canada's Employment-related Programs for Persons with Disabilities (Toronto: The Roeher Institute, 1993) at 1–14 Google Scholar [On Target].

⁵⁸ This information can be obtained by visiting the provincial human rights commission web pages and looking at their annual reports for the past several years which record the numbers for different types of cases during the year. For instance, for Ontario, see online: OHRC <http://www.ohrc.on.ca/english/cases/>; for Alberta, see online: Alberta Human Rights and Citizenship Commission <http://www.albertahumanrights.ab.ca/legislation/panel_decisions.asp>; for Prince Edward Island, see online: PEI Human Rights Commission <http://www.gov.pe.ca/humanrights/> for Quebec, see online: Commission des droits de la personne et de la jeunesse <www.cdpdj.qc.ca/>.

⁵⁹ See Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 Google Scholar.

⁶⁰ See British Columbia (Public Service Employee Relations Commission) and British Columbia Government and Service Employee Union (Meiorin Grievance), [1997] B.C.J. No. 1630, [1999] 3 S.C.R. 3 (QL) [Meiorin].

⁶¹ See for example: Alberta Human Rights Commission Starzynski et al. v. Canada Safeway Limited and United Food Commercial Workers Local 401, [2001] L.V.I. 3173-1, 2000. ABQB 897, [2001] 3 W.W.R. 651, 86 Alta. L.R. (3d) 366. In this case, 15 disabled employees filed complaints against their employer and against their union to the Alberta Human Rights Commission when they were deemed ineligible to participate in a buyout program that was made available to non-disabled employees. The union did not compensate their disabled members. Here, the commission also held the employees' union responsible for adverse effect discrimination with regard to employment and disability as well as the employer. For a similar case of a union and employer's responsibility to accommodate and adverse effect discrimination (based on religious practices), see Central Okanagan School District No. 23 v. Renaud, [1987] B.C.J. No. 2834, [1992] 2 S.C.R. 970 (QL).

⁶² See MacMillan Bloedel (Power River) – and- Communications, Energy and Paperworkers Union of Canada, Local 76, [1998] B.C.D.L.A. 500.63.00.00-03 (QL)Google Scholar.

⁶³ Bingley (Re), [2004] C.I.L.R.B. No. 32.

⁶⁴ See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157.

⁶⁵ Ahkwesahsne Police Assn. v. Mohawk Council of Akwesasne (White Grievance), [2003] C.L.A.D. No. 642 at ¶ 15 (QL).

⁶⁶ Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commision des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (QL), [2001] 1 S.C.R. 665, [2000] S.C.J. No 24.

⁶⁷ Ibid. at 667.

⁶⁸ See Calgary (City) Electric System v. Weitman, [2001] Alta D. 430.20.30.60-01 (QL).

⁶⁹ See also Emergency Health Services Commission – and- Canadian Union of Public Employees, Local 873, [2002] B.C.D.L.A. 500.36.30.30-01 (QL)Google Scholar. The Supreme Court scrutinized the employees' behaviour when he did not engage in the re-training his employer offered as preparation for return to work in an accommodated position after a disability leave. The employer had attempted to fulfill a duty to accommodate but the employee did not participate in this endeavour. As a result, the Court dismissed the grievance.

⁷⁰ See Vancouver School Board – and- United Brotherhood of Carpenters and Joiners, Local 1995 (Steven Grievance), [1999] B.C.D.L.A. 36.30.30-01 (QL)Google Scholar.

⁷¹ Assessments of the extent of disability seem only to take place in cases that deal with qualification for disability social welfare or disability benefits.

⁷² See On Target, supra note 57 at 5, 7, 9. By extrapolating from statistics on the types of disability exhibited in the Canadian workforce, it seems that less than 9.4% of the working population is disabled. Further, “the rate of non-participation is over twice as high for people without disabilities.” U.S. Census Bureau compiled data using the Survey of Income and Program Participation (SIPP) showing that despite the ADA's passage the percent of disabled people in the workforce remained relatively stable during the 1990s. See Current Population Reports, supra note 52.

⁷³ In numerous discussions I've had with my Canadian and American peers, they almost always express disbelief that the government does not subsidize disabled people more fully in Canada. They erroneously presume that given the state provides universal health insurance, it provides universal access to equipment, transportation, housing and benefits. In fact, programs and policies to assist the disabled with the accessibility costs are severely limited and vary from region to region.

⁷⁴ The constraints of implementing this national socio-political culture of diversity and non-discrimination, particularly with regard to disability, were captured in a recent Supreme Court case. In 2002, the B.C. Supreme Court held that the province's denial of treatment to autistic children contravened the equality rights laid out in section 15 of the Charter. Canada's Supreme Court later over-turned this decision concluding that the government in British Columbia had not discriminated against the plaintiff in denying payment for a newly emergent therapy for autism, nor had it violated the Canada Health Act because the statute does “not promise that any Canadian will receive funding for all medically required treatment.” See Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2002] B.C.J. No. 2258; [2004] 3 S.C.R. 657.

⁷⁵ See Job Accommmodation Network (a service of the Office of Disability Employment Policy, U.S. Department of Labor) fact sheet, online: JAN <http://www.jan.wvu.edu/media/LowCostHighImpact.pdf>.