A small courtesy, a huge legal battle

By Michael Rappaport

Bus drivers in Toronto must call out every stop along their routes now. Sounds like a small courtesy? Actually, it’s the result of a 12-year long battle – one, which is still being waged in other municipalities across Ontario.

Leading the charge was David Lepofsky – a blind, disability rights advocate and an appeals lawyer with the Crown Law Office (criminal) – and the recipient of the “2008 Tom Marshall Award of Excellence for Public Sector Lawyers” on April 7.

Lepofsky’s remarkable string of victories in the fight for the rights of the disabled began when he was still an articling student in 1982. In the midst of preparing for Bar exams, Lepofsky appeared before the committee drafting the Charter, representing the Canadian National Institute for the Blind, where he argued for disabled people to be protected by the equal rights provision.

“I was called on Wednesday afternoon to appear before the Charter committee on Friday, with less than 36 hours to prepare,” Lepofsky recalls in an interview with The Lawyers Weekly. “What many people don’t realize, is that [equality for the disabled] was the only right added to the Charter in the parliamentary debates.”

Blind in one eye at birth, partially blind in the other, his vision in his good eye deteriorated and he was totally blind by the time he started law school at Osgoode Hall at York University in Toronto. Where today he has software to read text aloud, back then he relied on assistants to read lecture notes and legal texts to him.

After graduating from Osgoode in ’79, Lepofsky did an LL.M at Harvard University (81-82) where there were six other visually impaired students. “First time I’ve ever been confused with other people,” Lepofsky remarks. “That for me was a treat, not being the one and only in my class.”

Another change that Lepofsky appreciated while living in Boston was that subway drivers announced all the stations. “Over the years, I often thought it was ridiculous that drivers in Toronto didn’t do likewise,” Lepofsky says. Finally, in 1994, he wrote a letter to the Toronto Transit Commission (TTC) to request that subway drivers call the stops.

Initially, the TTC rejected Lepofsky’s request out of hand. So he complained to the Ontario Human Rights Commission (OHRC) and the CBC. The TTC caved in and agreed in principle to his request, but in practice the subway drivers were so nonchalant about this new responsibility that they could not be relied upon.

“When I got on the subway in the morning, I never knew, whether I was going to hear my destination called or not,” Lepofsky says with exasperation. He spent years writing letters, until finally in 1988, he said to himself “enough is enough” and filed a complaint with the OHRC.

Seven years later in 2005, the Human Rights Tribunal in Ontario ordered the TTC to announce subway stops. Emboldened by this result, Lepofsky sought to have it apply to bus drivers, which sparked a second legal battle. Two years later in 2007, the Tribunal again ruled in Lepofsky’s favour.

“We blind folks don’t drive, the TTC is our car,” Lepofsky says, underscoring the importance of accessible public transit for the disabled. Regrettably, transit authorities in cities like Sarnia and London continue to resist complying fully with these rulings.

Lepofsky now refers to the entire affair as his “little spat with the TTC.” He has too much work to do on behalf of the disabled to bear grudges. He was instrumental in advocating for the Ontario with Disabilities Act (2001) and the Accessibility for Ontarians with Disability Act (2005) and is the founding president of the Canadian Association for Visually Impaired Lawyers which has about 50 members.

What is perhaps most noteworthy is that all of Lepofsky’s victories on behalf of the disabled over the past 30 years were achieved in his spare time, while burdened with a heavy caseload at work.

At the award reception hosted by the Ontario Bar Association, Lepofsky thanked his wife Jill for all the support she provided throughout his legal travails.

Lepofsky recounted how he met his wife five years ago on Jdate, a website for Jewish singles. “She was my first date,” Lepofsky said. “It was a good investment,” he quipped. Striking a more emotional note, he continued:

“No matter how frustrating the cause can sometimes be, I am blessed that every day is greeted with a sparkling smile[…] I get the award, she deserves the medal.”

Love, too, is blind.