According to Health Canada, mental illness[1] affects one in five Canadians in their lifetime. Despite the prevalence of mental health disabilities[2] in the general population, people with mental health disabilities and addictions face multiple discriminatory barriers, both individual and institutional, to full participation in society. These barriers result largely from negative societal attitudes about mental health and psychiatric disabilities. They have contributed to experiences of systemic inequality, including poverty, lack of access to appropriate treatment and support services, and difficulties obtaining employment and housing. Discrimination can compound the effects of living with mental health disabilities by making it harder to seek treatment, exacerbating or triggering mental health disabilities and addictions, and making it more difficult to recover by limiting available supports.
The Ontario Human Rights Commission (OHRC) has serious concerns about the degree to which people with mental health disabilities experience discrimination. In its former complaint processing capacity, the OHRC received complaints each year alleging that people had been discriminated against because of mental health disabilities. The OHRC has also conducted consultations in which it has heard about the need to promote and protect the human rights of people with mental health disabilities, including consultations on disability and the duty to accommodate, discrimination in rental housing, and mental health and police record checks.
Based on these concerns, the OHRC is developing a human rights mental health strategy to guide its activity in addressing systemic areas of discrimination affecting people with mental health disabilities. In September 2009, the OHRC started meeting with individuals and organizations in the field regarding human rights concerns faced by people with mental health disabilities. This second stage of consultation is aimed at soliciting your views to identify key approaches, issues and projects in these areas.
The purpose of this consultation document is to:
Section 29 of the Code gives the OHRC a broad mandate for dealing with issues of discrimination. It is the role of the OHRC to promote an understanding of and compliance with the Code through several functions:
The OHRC wants to know how it can best use its mandate to address issues of discrimination against people with mental health disabilities.
[1] Although definitions of mental illness vary, Health Canada indicates that mental illnesses are characterized by alterations in thinking, mood or behaviour (or some combination thereof) associated with significant distress and impaired functioning over an extended period of time. Health Canada, A Report on Mental Illnesses in Canada (Ottawa: Health Canada, 2002), at 16.
[2] The OHRC is aware of the lack of consensus around terms describing mental health issues and people experiencing them. Differences in terminology are based in differences in ideologies in how to conceptualize mental health and the relationship between the mental health system and those who use or do not use it. Many terms are criticized as being inadequate and stigmatizing by those experiencing mental health issues. Labels for people with mental health issues can stigmatize people when they reduce individual identities to a medical “problem.” Where possible, people should be referred to by the term they use to self-identify.
However, recognizing that a diversity of experience exists among individuals with experiences of mental health issues, and the fluidity of language, in the context of this paper, the OHRC will use the terms “mental health disability” and “people with mental health disabilities”. Participants thus far in the consultation have identified that the OHRC should consider using terms that reflect health, avoid medicalized definitions, reflect domestic and international protections for people with disabilities, apply to people who may or may not seek treatment, and are adopted by the consumer survivor movement. In its guide, “A Way with Words and Images: Suggestions for the portrayal of people with disabilities,” The Government of Canada has recommended using the term “mental health disabilities” (Ottawa: Human Resources and Development Canada, 2006).
International, federal and provincial human rights legislation prohibit discrimination against persons with mental health disabilities.[3] In Ontario, human rights protections for people with mental health disabilities and addictions are grounded in the Ontario Human Rights Code. People with mental health issues are covered under the ground of “disability” in the Code. People with mental health disabilities and addictions are protected from discrimination and harassment in the areas of employment, accommodation (housing), goods, services and facilities, contracts, and membership in trade, union or occupational associations. This includes people who have a disability or are believed to have or have had a disability [section 10(3)].
The OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate (Policy) sets out guiding principles on disability and the duty to accommodate, which can be applied to employment, services, housing and other social areas. The Policy explicitly recognizes the unique challenges faced by people with non-evident disabilities, such as mental health disabilities. It follows the Supreme Court of Canada’s decisions that make it clear that discrimination because of disability may be based on myths, perceptions and stereotypes as well as actual functional limitations.[4]
[3] For example, Canada has signed the Declaration of the Rights of Disabled Persons, and the United Nations’ Convention on the Rights of Persons with Disabilities. The latter is a legally binding convention that provides for non-discrimination to allow for the civil, political, economic, social and cultural rights of people with disabilities. In addition, the international community has adopted the UN General Assembly resolution, Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. Domestically, the Canadian Charter of Rights and Freedoms outlines equality protections under section 15, which provides for the right to be free from discrimination on the basis of mental and physical disability, among other grounds.
[4] 8attlefords and District Co-operative Ltd. v. Gibbs, [1996J 3 S.C.R. 566. para. 31.; Quebec (Commission des droits de la personne et des droits de jeuness) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de las jeuness) v. Boisbriand (City) (3 May 2000) SCC 27. [Mercier}, para.77
The OHRC has addressed the issue of discrimination based on mental health disabilities in its past and current work. The following is a brief summary of the key initiatives that the OHRC has undertaken to date:
Prior to July 2008,[5] the OHRC received, mediated and investigated multiple complaints involving mental health disabilities and addictions. An analysis of a sample of 70 cases investigated between 2000 and 2008 revealed that most people alleging discrimination based on a mental health disability complained about actions taken by their employers.
The OHRC was a party or intervened in several significant cases heard at the Human Rights Tribunal of Ontario (Tribunal) or in higher courts. Recently, in ADGA Group Consultants v. Lane, the Ontario Divisional Court re-affirmed an employer’s duty to accommodate an employee with a mental illness.[6] The Court upheld a Tribunal decision that the complainant was discriminated against based on his bi-polar disorder when his employer failed to accommodate him and terminated his employment.
In Entrop vs. Imperial Oil Ltd.,[7] the Tribunal and the Ontario Court of Appeal confirmed that alcoholism was a disability. In addition, it was confirmed that the company’s drug and alcohol testing policy was discriminatory, and that requiring employees to disclose an ongoing or previous substance abuse problem constitutes direct discrimination under the Code. A recent Ontario Court of Appeal decision affirms that random testing of employees for drug and alcohol impairment, absent reasonable cause, is a violation of employees’ rights to privacy and intrudes on their dignity.[8]
Notable active cases at the Tribunal that involve the OHRC as a party include an application about the restrictive nature of the special diet allowance under the Ontario Disability Support Program, which affects people with mental health disabilities, and one regarding a police service’s unequal treatment of someone with a mental illness.
In 2008, the OHRC initiated a consultation regarding police records of apprehensions of individuals under the Mental Health Act. When apprehensions are recorded on police records and provided to employment or volunteer agencies as part of a background check, it can seriously undermine both the privacy and the ability of people with mental health disabilities to access meaningful work opportunities. The OHRC will be continuing its work on this issue by developing a policy on mental health and police record checks.
The OHRC has identified the lack of affordable housing for people with mental health issues as a serious concern. In its consultation report, Right At Home, the OHRC made recommendations to government and others to increase supportive housing opportunities. The OHRC has also released its housing policy, the Policy on Human Rights and Rental Housing, which outlines the steps that housing providers should take to ensure that they do not discriminate against people with mental health disabilities. It contains a section on discriminatory opposition to affordable housing (“Not-in-my-backyard” or “NIMBYism”), which negatively impacts people with mental health disabilities.
The OHRC has been actively working with municipalities and the Ministry of Municipal Affairs and Housing to provide education to challenge NIMBYism. The OHRC has intervened in legal cases that challenge practices or municipal by-laws that have the potential to exclude people with mental health disabilities from living in the neighbourhood of their choice.
As noted above, the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate outlines the responsibilities of employers to accommodate the needs of people with mental health disabilities and addictions. In addition, the OHRC’s guide for employers, Human Rights at Work, provides practical guidance to employers with respect to employees who may have or may develop mental health disabilities or addictions.
The OHRC has been actively commenting on human rights concerns as they affect people with mental health issues, particularly in areas that intersect with its current work. Recent concerns were raised, for example, about jury selection and police mental health record checks, and proposals to keep supportive housing for people with mental health disabilities out of particular neighbourhoods. The OHRC has also been involved in raising awareness about human rights in the two provincial mental health consultations conducted by the legislature’s Select Committee on Mental Health and Addictions and the Minister of Health and Long-Term Care’s Advisory Group on Mental Health and Addictions.
[5] Amendments to the Human Rights Code, which took effect on June 30 2008, created three pillars in the human rights system. After the enactment of the Human Rights Code Amendment Act, 2006, the OHRC no longer accepted human rights complaints. All new applications complaining about discrimination are now filed directly with the Human Rights Tribunal of Ontario. The OHRC became more focused on proactive measures to prevent and address discrimination using its functions of public education, policy development, research and analysis, inquiry powers, and legal intervention. The Human Rights Legal Support Centre was also created to provide assistance for applicants in the system.
[6] ADGA Group Consultants Inc. v. Lane. (2008), CanLII 39605 (ON S.C.D.C.)
[7] Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3rd) 18 (C.A.)
[8] Imperial Oil v. Communications, Energy & Paperworkers Union of Canada, Local 900. (2009), (ON.C.A. 420)
From the people and organizations it has met with thus far, the OHRC has heard that numerous issues intersect with one another, posing considerable human rights concerns for people with mental health disabilities and addictions. Participants described a “domino effect”, whereby barriers in one area (such as education or employment), lead to barriers in other areas (such as housing). All of these barriers contribute to experiences of poverty. These issues are compounded for individuals who may already experience discrimination because of their race, sex, sexual orientation, citizenship, disability status, gender identity, age, ethnic origin, or because they are receiving social assistance.
Areas of concern identified by participants included the following:
Participants in the consultation suggested the following approaches, which they believe are important to the development of any human rights mental health strategy. The OHRC will consider incorporating these principles into its strategy.
Given the number of issues that were identified by participants, the OHRC may consider developing interventions to address issues in some or all of the following areas:
The OHRC welcomes your feedback related to the areas of concern identified and/or specific interventions that it should consider undertaking.
Please feel free to comment on any of the information provided in this paper, or on the questions identified below:
Within the Areas of Concern identified above, are there priority areas that the OHRC should consider in its strategy?
Within the Areas of Concern identified above, are there priority initiatives that the OHRC should consider undertaking?
Written comments can be mailed, faxed or e-mailed to the OHRC at the following address:
Ontario Human Rights Commission
Human Rights Mental Health Consultation
Policy, Education, Monitoring and Outreach Branch
180 Dundas Street West, 8th Floor
Toronto, Ontario
M7A 2R9
Fax #: (416) 314-4533
E-mail: consultations@ohrc.on.ca
Your written comments should be provided to the OHRC no later than December 24, 2009.
Please provide contact details, including your name, organization (if applicable), address, phone number, and e-mail address.
Information provided during the consultation is subject to the requirements of the Freedom of Information and Protection of Privacy Act. The information obtained during the consultation may form part of a report that may be made public. Personal information will be used for the purposes of this project only, and will remain confidential. Anonymous submissions will not be considered.
Please limit your comments to a maximum of eight (8) pages.
Should you have any questions about the consultation process, you may contact the OHRC by telephone at:
(416) 314-4507, or 1-800-387-9080 (Follow the instructions to speak to staff about public education).
TTY contact information: (416) 326-0603 or 1-800-308-55