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Conducting Successful Advocacy

Editor's Note: Editor's Note: Robert J. Fenton is a litigation lawyer with McCarthy Tétrault, in Toronto. He is also President of the NFB:AE. The purpose of this article is to provide a teaching tool to blind and vision- impaired Canadians who are involved in personal advocacy initiatives. The content of this article should not be taken as a guide for resolving all personal advocacy problems. It is suggested that individuals should consult with their own legal counsel before they decide to commence legal proceedings against anyone.

Introduction

Personal advocacy is one of the most important vehicles available to blind and vision-impaired Canadians who face barriers to accessing goods and services on a daily basis. These barriers include: 1. Taxi drivers who deny access to blind people accompanied by their guide dogs; 2. Barriers to information access such as inaccessible web pages and the unavailability of certain documents in alternate formats; or 3. Attitudinal barriers such as misconceived ideas that members of the public may have about the capabilities or inabilities of blind and vision-impaired people.

In many cases, individuals find that involvement with the legal process is very intimidating. It is hoped that in the following paragraphs of this article, some of the fears about becoming involved in the legal process by laying complaint with the appropriate licensing body, human rights commission or other entities may be allayed. It should also be mentioned that laying a complaint should be considered the last resort. Individuals should be encouraged to attempt to resolve their concerns with the other party short of involving themselves in a protracted legal dispute.

An article like this is difficult to write without having a specific context in mind. During the course of this article and other articles which will follow in subsequent issues of the Canadian Blind Monitor, I will review with you certain techniques that a personal advocate should be aware of when they engage in the advocacy process. I have decided to use a situation where a blind person has been refused access to a taxi cab with their guide dog as the foundation for the series of articles which will be published on personal advocacy. This first article will provide an overview of the kind of process that an individual should expect to follow when they lay a complaint with a taxi licensing commission or a human rights commission. However, many of these techniques are equally applicable to other situations.

1: Denial of Access

People who are denied access to taxi cabs with their guide dogs usually react in one of two ways. One group will anger very quickly resulting in abusive or other equally unacceptable behaviour being directed at the taxi driver. Another group of individuals may decide to walk away from the incident and obtain another taxi cab. In my view, neither of these approaches are effective in educating the public about the access rights of blind people and the importance of such rights. Furthermore, neither approach discourages the taxi driver from denying access to other blind and vision-impaired people in the future.

If you are placed in a situation where you are denied access to a taxi cab because you are accompanied by a guide dog, I suggest you take the following steps: 1. Obtain the number of the taxi cab; 2. If possible, obtain the name of the driver; 3. Take note of the time and place of the incident; 4. Make sure that you inform the driver that a refusal to take you with your guide dog infringes human rights legislation, taxi licensing by-laws and guide dog access legislation; 5. If possible, write a detailed account of what was said between yourself and the driver as soon after the incident as possible. These notes will be of great assistance to you in later stages of the process; 6. If members of the public observed the incident, ask them if they would be prepared to be a witness on your behalf; 7. Keep as calm as possible. Nothing is gained by becoming aggressive or short tempered with the taxi driver. You will be perceived as being much more reasonable if you appear to be calm and in control. These factors are important when the taxi commission or the human rights commission decides to investigate the matter; 8. It is important not to be too passive. It is important that you stand your ground and clearly advise the driver that it is inappropriate for him or her to refuse you access to their vehicle because you are accompanied by a guide dog. If the individual raises objections such as their religion or an allergy to dogs, it is appropriate for you to advise the driver that you intend to bring this matter to the attention of the licensing commission and the driver may advance any defence based on religious beliefs or allergy when she or he speaks to the investigator. After all, it is up to the driver to prove that he or she has an allergy or a religion-based objection as a defence to the charge; 9. When you have gathered all of your information, call the complaints department at the licensing commission or the human rights commission and provide them with a brief report concerning the driver's refusal to take you in their taxi cab. I suggest that you provide the investigator to whom you speak with a written report of the events giving rise to your complaint. You should also offer to meet with the investigator to discuss the case if he or she believes that such a meeting would allow them to obtain further information. You should always appear to be cooperative and helpful.

Interview with Investigator

This issue will be covered in greater detail in the next issue of the Canadian Blind Monitor. For these purposes, it is important to note that the interview with the investigator is one of the most important stages that a complainant must go through after laying a complaint against a taxi driver. The individual's performance in the interview with the investigator will often determine whether or not the commission decides to take this case to a hearing.

In general terms, you should be prepared to forthrightly describe what happened on the day in question and, if possible, to identify the driver by reviewing a photograph or listening to a tape recording of the driver's voice. You should also provide the names and other contact information that you may have from members of the public who may have witnessed the incident. You should be prepared to provide proof that your dog is in fact a guide dog. This can be accomplished either by producing a provincial guide dog identification card or an identification card from a registered guide dog school which contains a photograph of yourself with your canine companion.

Preparation for the Hearing

This issue will be covered in more detail in a subsequent issue of the Canadian Blind Monitor. For our purposes now, I would like to provide the following general advice: 1. Before you appear in court, it is very important that you carefully review the notes that you prepared immediately after the incident took place. It is very likely that these notes will also be in the possession of the taxi driver and/or his legal counsel if they were given to the investigator during your interview. You should be prepared to answer very specific questions on the contents of these notes if this case proceeds to a hearing; 2. Once you have been informed that the case will be proceeding to a hearing, you should find out who the attorney is that is handling the case on behalf of the commission. You should attempt to arrange an interview with that individual prior to the court appearance so that you can inform them about the facts giving rise to your particular case. It is not uncommon for these attorneys to have lists of 20 or 30 cases to be argued on the same day that your case is scheduled to proceed. Your goal is to ensure that the attorney is as prepared as possible to argue your case effectively.

The Hearing

Again, this topic will be covered in more detail in subsequent issues of the Canadian Blind Monitor. In most cases, the hearing will be heard either before a Justice of the Peace, a Provincial Court Judge or an administrative commission such as a taxi commission or a human rights commission. For our purposes, it does not particularly matter which body you are appearing before since the rules of evidence that will govern the proceeding are similar in these kinds of cases.

When you appear in court, you should answer all questions forthrightly and honestly. It is important not to embellish or to exaggerate. The attorney who is handling the case on behalf of the commission will likely give you a brief rundown as to the types of questions that they will ask you in advance of your hearing. When you are asked a question, simply answer the question that you are asked and do not proceed onto another point. The attorney handling the case will lead you through your evidence based on the notes that they have been provided with from both the investigator and yourself.

When you are being examined by counsel for the driver or the driver him or herself, it is equally important to keep your answers brief and directly respond to the questions posed to you by the driver's lawyer. You should do so even though the answer to the question that they ask may be damaging to your case. You should leave it to the attorney handling the case on behalf of the commission to ask you follow-up questions in a process called re-examination to undo any damage that may have been caused to your case by the driver or his or her counsel.

Conclusion

In subsequent issues of the magazine, we will go over all of these topics in greater detail. In addition, we will discuss the important area of how members of the public can assist blind and vision-impaired people who witness a blind or vision-impaired person being refused service by a taxi driver while accompanied by a guide dog.