Latest / Podcasts By Donna Jodhan / Remarkable World Commentary Episode #53: Interview with David Baker, Associate Counsel, Labour & Employment Law and Human Rights Law Groups, Ross & McBride LLP

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Remarkable World Commentary Episode #53: Interview with David Baker, Associate Counsel, Labour & Employment Law and Human Rights Law Groups, Ross & McBride LLP · Podcasts By Donna Jodhan

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Podcast Commentator: Greetings Donna J. Jodhan, LLB, ACSP and MBA invites you to listen to
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her biweekly podcast, Remarkable World Commentary.
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Here Donna shares some of her innermost thoughts,
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insights, perspectives and more with her listeners.
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Donna focuses on topics that directly affect the future of kids,
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especially kids with disabilities.
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Donna is a blind advocate, author, site loss coach,
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dinner mystery producer, writer, entrepreneur,
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law graduate, and podcast commentator.
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She has decades of lived experiences, knowledge,
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skills, and expertise in access technology and information.
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As someone who has been internationally recognized for her work and roles.
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She just wants to make things better than possible.
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Donna J, Jodhan, LLB, ACSP, MBA: Hello everybody, and welcome to another episode of Remarkable World Commentary.
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I'm Donna J. Jodhan, a lifelong disability advocate and one who sees the world mainly
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through sound, touch and stubborn optimism.
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I am a law graduate, accessibility consultant,
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author, lifelong barrier buster who also happens to be blind.
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You may know me from a few headline moments.
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In November of 2010, I won the The Landmark Charter case that forced the Canadian
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government to make its website accessible to every Canadian,
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not just to blind Canadians.
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And in July of 2019, I co-led the Accessible Canada Act with more than two dozen
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disability groups to turn equal access into federal law.
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And most recently, on June 3rd, 2022, I was greatly humbled by Her Late
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Majesty's Platinum Jubilee Award for tireless commitment to removing barriers.
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When I'm not in a courtroom or a committee room or pottery studio,
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you will find me coaching kids with vision loss,
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producing audio mysteries, or helping tech companies to make their
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gadgets talk back in plain language.
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Everything I do circles one goal to turn accessibility from an afterthought into
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everyday practice. I invite you to think of this show as our shared workbench where
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policy meets lived experience and lived experience sparks fresh ideas.
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Now, before we jump into today's conversation,
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let me shine a spotlight on today's guest, a changemaker whose work is every bit as
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remarkable as the world that we are trying to build.
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David Baker, Charter Challenge Champion this is how I like to think of you.
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Welcome to my podcast.
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David Baker: Thank you for that kind introduction.
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Donna J, Jodhan, LLB, ACSP, MBA: You're very welcome. And David, I have to tell you,
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I will never, ever forget the day when Charlene Ayotte encouraged me to call you.
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And I never expected you to say right off the bat,
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Donna, you have a case.
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So welcome again. Him.
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David Baker: So I haven't forgotten the day that you called.
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It isn't every day that a client calls with a case fully developed,
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as you did. So I think people should understand that quite often in charter cases,
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the lawyer engages in a lot of shaping of the issue.
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But you came with an idea, and it was a good one for everybody.
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Donna J, Jodhan, LLB, ACSP, MBA: Hey, David.
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David Baker: For everybody, I believe.
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Yes.
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Donna J, Jodhan, LLB, ACSP, MBA: So, David, you've been called a builder of modern equality law.
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Could you walk me through your origin story from creating a legal aid clinic inside a
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psychiatric Hospital as a law student to working with Ralph Nader to founding arch.
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David Baker: Well let's see law school was kind of boring.
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So I continued on with my studies in
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English, and I audited a course my first year of law school in English and was put in a
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seminar with the professor and one other student who turned into my wife.
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So it pays not to pay too much attention to law school.
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And the other thing I did to entertain myself during law school was I did a lot of
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litigation. Not all of it was disability related,
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but My first summer. So the let's see got through first year.
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Oh, I should say your first day of law school.
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The dean comes in and he says, look to your left,
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look to your right. By the end of the year, one or other of the people next to you will
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be gone. As in, they were flunking out at that time,
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about one third of admissions.
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So that was a nice welcome.
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Anyway, I didn't manage to flunk out, even though I didn't pay too much attention
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to law school. And at the end of first year, in those days,
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there were things called lip grants, which means the Government of Canada gave
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money to worthy organizations doing worthy things to pay minimum wage.
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And The Student Legal Aid Society was hiring Students to
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take on cases, and I was the only first year student they hired.
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And therefore all the other students got first choice of where they went and what they
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did. And I was stuck with starting the legal aid clinic at the Queen Street Mental Health
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Centre. Oh, no. As my summer job, which was fine because I had a motorcycle and
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I could ride down there and ride back.
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No problem. Wow. And they had a swimming pool,
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so I was able to go swimming when I wasn't lawyering.
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And Anyway it was the first legal clinic in a psychiatric hospital in Canada.
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There was one previous one in Washington, D.C.,
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and I think the place was is Bellevue in New York City.
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What's the hospital in the big psychiatric hospital in Washington?
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I forgot the name of it.
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Anyway, there was one started there, and we were the second.
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And then there was one. Started out in B.C., not not too long after.
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And the fun thing about being in on the ground floor of something is that suddenly
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you're an international expert, even even though you don't know anything,
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because what little you know is more than anybody else knows,
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because you're kind of making it up as you go along.
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And so I had an entertaining summer of speaking at international conferences and
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talking to psychiatrists who had no clue what the law was.
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And as I say, I didn't know much more than they did,
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but I guess I knew enough more that they kept coming back to here.
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So it was very interesting.
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We had a, a number of successful cases where people were discharged from the hospital,
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and, and And this was all kind of new.
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And out of that, I will say came a number of things,
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including the Justice Rosalie Abella Report on Access to Legal Services for persons with
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disabilities, which resulted in legal aid being made available to psychiatric patients.
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So the Student Legal Aid Clinic was displaced by real lawyers providing services.
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Not too long after we started the student clinic there.
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And that continues to this day.
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There is not legal aid for much in Ontario.
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Basically family law, criminal law a bit of immigration primarily
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refugee law and and then mental health law.
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So that was an interesting spin off from a student riding his motorcycle down to the
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psychiatric hospital to have a swim and do review board hearings.
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Wow. Oh. Ralph Nader. So after I graduated let's see.
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And did my articles there were no real public interest law opportunities around in Canada.
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So I went down and worked with Ralph Nader at the Tax Reform Research group.
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I was offered a job by the General Accounting Office on taxation of life insurance
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reserves, which is very esoteric, but to me,
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interesting area and hired by the preeminent tax policy guy in the United States who was
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heading the project and Ronald Reagan canceled it.
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So I'm a Canadian still, thankfully.
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And while I was down working for Nader, I was also working with something called the
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Mental Health Law Project, which is now the Bazelon Center,
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which does a lot of the very large systemic cases about closing institutions and
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transferring that money into other community services,
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which we still haven't managed to achieve in terms of litigation.
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Here, there's a case called Olmstead for which they are responsible.
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And my efforts to duplicate it here got short circuited into
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settlements that turned out to be worthless because the government that signed the deal
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lost an election and was replaced by another government that came in and undid the whole
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the whole thing. And I'm too old and too tired to go and litigate it all again.
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And what else did you want to know about Nader?
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Law school.
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Donna J, Jodhan, LLB, ACSP, MBA: I wanted to ask this question of you.
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David Baker: Yeah.
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Donna J, Jodhan, LLB, ACSP, MBA: In arch's early years, you helped secure handicap as a protected
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ground in Ontario's Human Rights Code and press for Disability Inclusion in the
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Canadian Charter. What strategies and coalition moves made those breakthroughs
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possible?
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David Baker: Well let's see. Well, first of all, when I was down in the States
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working with Nader and the Mental Health Law Project,
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there was something in the process of being invented.
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It was called the Rehabilitation Act then, but it's come to be known as the Americans
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with Disabilities Act.
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So the Americans got there before us turning disability into a human rights issue.
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And the real crusaders for those rights were veterans of the war in Vietnam who returned
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with disabilities. They were not happy about the war,
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and they were even less happy about facing discrimination as people with disabilities
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they chained themselves to the white House fence and didn't leave until they got
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themselves a law which is not well known or understood here,
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but and their experience and I had started at that point just
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at that point, and both the provincial government and the Ontario government sent me
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down to study what was going on.
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And I came back and provided reports that there should be something like human rights
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and inclusion in the human rights code.
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The charter, of course, came a bit later.
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And so the, the government actually paid me to go down and think about it.
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So there were some progressive people, I would say they weren't politicians.
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They were actually bureaucrats who were interested in human rights.
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In those days, the government was supportive of human rights.
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Now, I would say the reverse is true generally speaking.
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But in those days, there was great interest in human rights,
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and and human rights were quite popular.
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We didn't have Donald Trump talking about Dei and all the stuff that's going on now with
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Pierre Poilievre parroting him and so on.
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It was it was a different time and there was quite a bit of interest in talking about
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human rights. And, you know, rather than a handout or a hand up,
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it was more about equality and what does equality mean?
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And that became a big part of what I did for the rest of my career.
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Donna J, Jodhan, LLB, ACSP, MBA: Now, your graduate work in equality became, in many ways,
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a blueprint for section 15 litigation and fed into the landmark Andrews case.
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How did that scholarship shape your courtroom strategy then,
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and how does it still guide you today?
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David Baker: Well My thesis. Well, there are a bunch of stories.
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None of them are important.
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But I will just say that no one ever paid attention to my thesis that was published in
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the Supreme Court Law Review, of which I am aware it never got quoted by
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the Supreme Court of Canada, to my knowledge.
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However, I did use it as the basis for arguments in a number of equality cases.
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The strategy developed by arch and I should say when I say arch,
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I mean the leadership of 73 disability organizations working collectively to
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prioritize cases and develop strategies for cases.
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So arch meaning the disabled community decided to intervene in other important
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equality cases involving adverse impact discrimination.
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Discrimination that appears neutral on the face but has a disadvantaging effect on
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people, including people with disabilities.
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The initial cases had to do with a CNR employee who was sick and wanted to wear a
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turban instead of a hard hat, and cases involving Jewish folks who felt
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they should be able to shop on Sundays and not lose jobs because they
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Couldn't work on their Sabbath, which was different from the Christian
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Sabbath. So those were the initial cases that took me to the Supreme Court of Canada.
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And in those cases, I used examples from my Supreme Court of Supreme
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Court Law Review article and disability examples.
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And the court was very interested in the disability examples.
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The chief justice at that time was a man named Brian Dixon.
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Chief Justice Dixon was a war veteran who was disabled in the war,
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lost a leg, and he. Was an early and perhaps the
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most important ever champion of disability rights in this country.
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And and deserves to be remembered as such.
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But he he just wanted to talk about disability,
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and they gave me extra time to talk, and I talked about disability,
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and everybody got all excited because it helped the sick and the sick case,
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and it helped the people who wanted to have Sunday openings for
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shops and didn't want to be forced to work on their particular Sabbath and,
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so they liked it because the disability aspects appeal to the court.
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And the court framed a decision that was good for them,
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the litigants in the cases, but also good for disability cases which came
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to follow.
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Donna J, Jodhan, LLB, ACSP, MBA: Now listeners hear the terms formal equality and substantive equality a lot.
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How do you explain the difference in plain language.
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And why does that distinction distinction matter in real people's lives.
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David Baker: Well perhaps just take an easy example.
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If there was a staircase up to the front door of a building that someone needed to get
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into, and that person was in a wheelchair.
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Formal equality says, well, you face exactly the same stares that
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everybody else faces. Person in a wheelchair.
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So you have not been discriminated against.
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You've been treated similarly to the person who can walk up those stairs.
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Substantive equality looks at the adverse impact of someone in a wheelchair being
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confronted by a flight of stairs and says that has an adverse impact on a person with
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disability, and it deepens their disadvantage as a person with a disability.
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And therefore, that's discrimination.
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Maybe I can just jump ahead to say that there is an international convention called the
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convention on the Rights of Persons with disabilities that is now taking up a lot of
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my time, and it has the inclusive Model of equality,
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which incorporates the substantive model and introduces a social justice and inclusive
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approach to what our equality issues.
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It gets right down into how programs operate to include or exclude and so on.
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So I'm, I'm these are early days and I've just filed the first Canadian case
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on reliance on the CRPD inclusive model of equality.
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So we'll find out what it all means in a in a while.
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Donna J, Jodhan, LLB, ACSP, MBA: Oh my goodness. Now, David, the duty to accommodate runs through many of
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your cases. What does a genuine good faith accommodation process look like for
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employers, schools and public services.
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And where do they most often go wrong?
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David Baker: Well I would say initially they went wrong just about every possible way because they
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didn't see stairs up to the front of a building has been discrimination.
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In other words, they didn't think in terms of adverse impact.
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And there have been some initiatives that have.
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Changed thinking about that.
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I mean, there was the Employment Equity Act that came and went in Ontario and basically
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has been effectively dismantled federally as well,
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but it existed for a period of time.
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There's the Aoda that said we'd be barrier free by now.
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Unfortunately, it didn't work out that way, but it taught people they were supposed to be
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thinking substantively about adverse impact.
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And then there's the Accessible Canada Act.
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And I would say with the exception of electronic communications or ICT where there
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have been effective regulations provincially under the Aoda
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and there has been your case federally with respect to ICT accessibility which
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we can come to I think there are some unfortunate loose ends remaining following
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your case that we may have time for the, the,
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you know, the bottom line is that it it meant that in large employers,
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particularly large corporations we're told they were supposed to think substantively,
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even if they weren't acting substantively to remove barriers.
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And accommodation can be thought of quite simply as removal of the barriers to access
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or inclusion. And the limit on the duty to accommodate in human rights terms is undue
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hardship. And so your your question about what are the limits on accommodation or what
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are the problems that arise?
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I guess the problems that arise have to do with whether or not making accommodation
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would cause undue hardship to the person or organization required to accommodate.
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Donna J, Jodhan, LLB, ACSP, MBA: Now, I am very aware that you have a very important dinner date.
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But I wanted to ask you this question.
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Before I ask you my final question.
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Eldritch established that governments must sometimes take positive steps,
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like funding. Sign language.
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Okay. Interpretation. Interpretation to ensure equality.
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What did that case change across healthcare and beyond?
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David Baker: Well, I mean Eldridge is an extremely important case for a number of reasons we
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don't have time to go into.
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I mean, the immediate and practical result of Eldridge was that doctors in private practice
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and hospitals had to at their own expense fund sign interpretation,
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if that's what was necessary for there to be what is called effective communication with a
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person who is deaf. And this was certainly news.
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I think sign interpretation was considered one of the real tough nuts when it came to
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accommodation. And Supreme Court just said, do it,
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get on with it. And as a result of that case,
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an awful lot of other barriers came down.
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But just staying with the issue of sign interpretation,
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we then took that case and went after the Tax Court of Canada which refused to provide sign
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interpreters for lawyers, articling students or witnesses in cases.
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And that case was won, was successful.
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And then we went after all the other courts in the country,
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and all of them quickly crumbled and agreed to provide signed interpretations.
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So throughout the judicial system.
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Sign interpretation became the norm.
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They're still working on language interpretation in a number of areas,
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which I think is inexcusable.
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But the bottom line was Eldridge spoke loudly and clearly that there was a need for
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effective communication to be provided by means of sign interpretation.
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If that was the means by which a deaf person effectively communicates.
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Now, let me hasten to say, Donna, I hope you're not cutting this
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interview short so we don't talk about the bad news about your case,
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but that's up to you. Of course you're the interviewer.
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Donna J, Jodhan, LLB, ACSP, MBA: I know I have room for that.
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Don't worry.
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David Baker: Okay.
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Donna J, Jodhan, LLB, ACSP, MBA: So, David, you are well known for being a part of the case and the very real case.
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Now we come to the Jodhan case.
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Tell me in your words, David, what really made you take this on?
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And you mentioned a little while ago that there are loose ends.
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Tell us about it.
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David Baker: Okay. So I took it on because this person called me up and wouldn't take no for an
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answer, so that was easy.
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Who was that? Someone named Jodhan, I do believe.
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And No, I mean you came and made a perfectly reasonable point.
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There are interactive websites, websites generally,
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that were inaccessible to you, and that was the primary means and becoming
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almost the exclusive means by which government communicates with citizens.
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And you couldn't use it.
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And that just cried out for litigation and you
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didn't go by half measures you took on every government website there was which was kind
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of unheard of, but and the government lawyers wanted to duke it out and say you had to
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prove every, every comma and every word here and word there was inaccessible.
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And the judge kind of got it.
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Justice. Kellen was the applications.
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Judge. He retired soon thereafter, by the way,
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and taught human rights at the University of Ottawa Law School.
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And I'm told the whole course consisted of the Jodhan case and nothing else but the
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Jodhan case. So there you go.
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A whole generation of law students grew up believing that's all there was to human
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rights. Oh, no. But the the case said that there was to be equal access.
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Equal access was developed by a then emergent international standard called wcaG 2.0.
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And to answer your second question, what happened next?
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The first thing that happened was the government appealed the decision of Justice
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Kellen. And you were successful on the appeal,
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except for one thing, Justice Kellen had retained jurisdiction to
30:07
receive reports and oversee the implementation of accessibility to ensure
30:15
that it actually happened.
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And the Federal Court of Appeals said the government is composed of a swell bunch of
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people who can be relied upon to comply with their obligations under this decision,
30:32
and therefore, Or just as Kellen will not be overseeing the implementation of his
30:39
judgment. We'll just trust him.
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And interestingly the government bureaucrats took
30:53
wcaG 2.0. I believe they consulted your expert witness in the case,
31:01
Uta Treviranus in the process and started over the period of time that the
31:10
government was given by the court to implement accessibility over that period of
31:17
time, they said they were following wcaG 2.0 at precisely midnight on the day.
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The judgment said everything was to be completed.
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They stopped complying with wcaG 2.0, if indeed they ever had been,
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because we never saw proof that they did.
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But we now know that they are not in compliance with wcaG 2.0,
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and they are most certainly not in compliance with the current national accessibility
31:49
standard, which is IC 301549.
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I'm quite proud of myself for being able to remember that which is the European standard,
31:59
which is, as I understand it, in effect, in European nations.
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And so they have breached the court order and a
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new case has been started which is going forward.
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The government is already raising all kinds of technical objections and threatening
32:25
motions and this and that to prevent that case from going forward.
32:30
And we shall see what happens.
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But that case goes further than looking at government websites.
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It involves looking at the entire range of government,
32:43
ICT, information and communications technology,
32:47
all of their computer systems, so that people who communicate with the
32:53
government and people who communicate within the government who are not able to access
33:02
information will, if the case is successful be entitled to access it up to that standard
33:11
of accessibility, which has now been accepted as the national accessibility standard.
33:18
But of course, it's only a recommendation.
33:21
The previous government, the Trudeau government,
33:24
introduced a bill that would have, with many exceptions and exemptions and
33:32
extensions. Adopted in 301549 as the standard that
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bill has died on the order paper and I understand will not be reintroduced.
33:49
Our position was if they had reintroduced it and done away with all the exemptions,
33:53
extensions and so on and so forth.
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If they'd actually complied with N301549 then there'd be no case.
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But of course they have not.
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They will not. The legislation is not being reintroduced and the case goes forward.
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Donna J, Jodhan, LLB, ACSP, MBA: Oh boy. So what happens next?
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How can I help in any way, shape or form?
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David Baker: Well, you could bring contempt proceedings against the government for failing to comply
34:29
with your judgment. That would be interesting.
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And maybe the Prime Minister should be put in jail.
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Donna J, Jodhan, LLB, ACSP, MBA: I don't.
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David Baker: Know. Apart from that, you are informing the public
34:46
about the issues, and hopefully people will let their feelings be known about this and
34:54
many other issues. We have, of course, many other cases ongoing.
35:00
And I will tell you, I mean, I'm in a similar vein.
35:05
There is the issue of discrimination against people with disabilities in artificial
35:13
intelligence.
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Donna J, Jodhan, LLB, ACSP, MBA: Oh, yes.
35:15
David Baker: I'm advised that artificial intelligence is an instrument for widespread discrimination
35:22
against people with disabilities.
35:24
People with disabilities can be set free and Gain enormously through accessible
35:33
technology. Inaccessible technology slaps people in jail and traps them forever
35:43
in inferior positions.
35:46
Status, early retirements, lack of promotions.
35:50
On and on and on and so it's a big issue.
35:59
Again my understanding is that your expert in your case,
36:05
you to treviranus advise the government on legislation about regulating artificial
36:13
intelligence. And the government said it was interested and I think introduced a draft
36:21
bill. But I'm told that will not go forward either under the current government.
36:28
If it had, I think it probably would have been highly problematic because artificial
36:33
intelligence is a global issue, and trying to regulate it at a national level
36:40
will be highly problematic.
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And I'm now in the process of discussions with human rights centers in the United
36:48
States, China, the EU, and so on about bringing up an artificial
36:54
intelligence discrimination case against all developments of artificial intelligence and
37:01
all purchases or uses of artificial intelligence crossing international
37:07
boundaries. So we're looking to international law to regulate something which I think is
37:14
quite difficult to regulate at a national level.
37:19
The government pulled the bill because they were concerned it would put Canadian
37:24
manufacturers, if that's the term developers of artificial intelligence at a disadvantage
37:29
relative to Americans, where Mr.
37:32
Trump has killed all regulation of any sort.
37:36
And sky's the limit in terms of discrimination.
37:41
Whether Mr. Trump would pay any attention to international law in this area,
37:46
as opposed to international law and any other area is doubtful.
37:50
But who knows? Canadian courts have said we're going to pay attention to Canadian to
37:57
Canada's international obligations and incorporate it wherever possible in Canadian
38:02
law. And I'm talking to American human rights centers about developing a similar principle
38:09
in the US courts. Donald Trump's appointed the majority of members of the US Supreme
38:16
Court. So how far that would get is your guess?
38:23
But I'm going to suggest that maybe justice will ultimately prevail,
38:28
or at least sanity. And that there will be human rights in the United States again which
38:37
would enable the world to stop discriminating against people with disabilities,
38:43
since America will be leading with artificial intelligence until the Chinese beat them out.
38:52
Donna J, Jodhan, LLB, ACSP, MBA: I am so pleased to see and hear that you are still very much involved in,
38:58
you know, disability rights law.
39:00
And I, I want to thank you again for having taken my case or our case.
39:05
I, I don't like to refer to it as my case.
39:08
It's a team case. And, you know.
39:11
David Baker: Well, you were kind enough to let me in on it.
39:14
So that's very, very generous of you.
39:17
Donna J, Jodhan, LLB, ACSP, MBA: And you know where to find me.
39:18
If there is anything you think I can do to help in any way.
39:23
David Baker: Well, you know, if you want to help organize the artificial intelligence case
39:29
internationally. I'm sure your assistance would be most welcome.
39:33
In the meantime we go on with the cases that are on our plate at the moment,
39:39
but it is in development.
39:42
It is under discussion with important centers around the world,
39:46
and I'm looking forward to it.
39:49
Donna J, Jodhan, LLB, ACSP, MBA: So if ever you need my assistance, you know where to find me,
39:53
and I'm ready and willing.
39:55
David Baker: I'll call me. When you've solved the problem of artificial intelligence and discrimination
40:00
based on disability, and then I can retire.
40:02
How's that?
40:03
Donna J, Jodhan, LLB, ACSP, MBA: No, you won't be. You won't be retiring yet.
40:07
We need to keep you around.
40:08
But seriously, if there's anything I could do in any way to help,
40:12
you know where to find me.
40:14
David Baker: On we go. Thanks, Donna.
40:16
Donna J, Jodhan, LLB, ACSP, MBA: Thank you. David. And if ever you wanted to come back and talk about anything,
40:20
please contact me.
40:23
David Baker: I'm all talked out.
40:25
Donna J, Jodhan, LLB, ACSP, MBA: Enjoy your dinner, sir.
40:27
David Baker: Thank you. Take care. Bye now.
40:29
Donna J, Jodhan, LLB, ACSP, MBA: Bye. Bye now. Bye.
40:32
Podcast Commentator: Donna wants to hear from you and invites you to write to her at Donna at gmail.com.
40:38
Until next time.