There are different types of programs, laws and policies that target, serve or benefit people with disabilities, including mental health disabilities or addictions. These include programs, laws and policies that:
- promote equality and remove barriers (e.g. the AODA, special programs under s. 14 of the Code)
- provide particular supports, accommodations or benefits (e.g. Ontario Disability Support Program benefits, special interest organizations)
- restrict people’s activities or participation in society (e.g. laws relating to legal capacity or competency may restrict the activities of persons with psychiatric disabilities in society).
All of these different programs, laws and policies are subject to the Code. Even if limiting a program, membership or employment to only people with psychosocial disabilities is intended to address inequality or hardship, the organization still has a legal responsibility to prevent, respond to and eliminate discrimination.
Measures that apply distinctly to people with psychosocial disabilities must ensure equality, respond to people’s individualized needs and uphold people’s dignity. They should never be used as a way to continue inequality, segregation or exploitation.
Specific issues have arisen around assessments and care within the health care system. Health care services, just like any other service, are covered by the Code. Actions and conduct by medical professionals, and legislation that applies to health care for people with mental health or addiction disabilities, must uphold people’s rights to be free from discrimination.
Both the selection process of a service and the criteria used to select service users are open to scrutiny under human rights legislation. Criteria that are under-inclusive, and that deny benefits to people with specific disabilities, while they are available to other people with disabilities or people without disabilities, have been found to be discriminatory in certain circumstances. This has been shown in challenges to large-scale government benefit programs. In these cases, a human rights decision-maker may consider whether the exclusion of the claimants was based on Code-related grounds or whether the grounds factored into the government’s decision.
Organizations should carefully consider selection criteria to make sure these reflect the underlying purpose of the program or service and are not unjustifiably screening out people based on a mental health issue or addiction, or other Code grounds.
Example: The Ontario Disability Support Program is a social assistance program designed to assist people with a disability who have low socio-economic status. It is distinct from Ontario Works, the Ontario government’s general social assistance program, in that recipients must also have a disability to qualify. If a person meets the required criteria, they are then eligible for specific financial and employment support benefits offered by ODSP. The program was successfully challenged because it specifically excluded people whose impairments resulted solely from drug and alcohol addiction. The Ontario Court of Appeal found that it was well-known that addicts and welfare recipients are subject to stigma and prejudice, and that there was no obvious explanation for why this group was left ineligible for benefits under the legislation. This was sufficient to create an inference that the legislation discriminated by “perpetuating prejudice and disadvantage and by stereotyping through depriving the respondents of benefits available to other people because of their specific disability.”
Disagreements may occur about medical decisions, including medical diagnoses, the administering (or lack of administering) of a particular drug, inclusion in a particular medical program, or making decisions to apprehend people under the Mental Health Act. These decisions are made by doctors, other health care providers and, in the case of mental health apprehensions, police acting under mental health legislation. General allegations about whether a person has received an appropriate standard of medical care for a disability or has been properly assessed have been found not to fall under human rights legislation. Instead, there must be some basis to support an allegation that proper treatment was not provided because of a person’s psychosocial disability or medical condition or that the person was not accommodated in receiving medical services to the point of undue hardship. Tribunals have held that disagreeing with a medical decision or an apprehension under the Mental Health Act is not enough, even if the decision is proven to be wrong. There must be an additional indicator of discrimination to support an allegation.
However, where there is different treatment that has an adverse effect based on a real or perceived psychosocial disability, a health care provider fails to accommodate the patient’s disability-related needs up to the point of undue hardship, or the conduct or practice has a disproportionate impact on people with psychosocial disabilities, this may fall within the jurisdiction of the Code.
When people with psychiatric disabilities are unwell and subject to restrictions on their autonomy, they are in a very vulnerable position. People may not feel they can object to behaviour or actions that may be discriminatory. To comply with legislation such as the Code and the AODA, health care service providers and others serving people with mental health issues or addictions (such as police) should develop human rights policies and complaint procedures to make sure people understand their rights and responsibilities.
12.1 Special programs
Section 14 of the Code allows for programs to be set up that are designed to help people who experience hardship, economic disadvantage, inequality or discrimination, and protects these programs from challenge by people who do not experience the same disadvantage.
Programs with well-designed criteria that assist people with mental health issues or addictions can be a good way to ensure substantive equality. The OHRC encourages organizations to develop and use special programs where hardship or disadvantage exist. Some examples of the types of special programs that can alleviate historical disadvantage for people with psychosocial disabilities include:
- hiring and training – special programs that address under-representation of persons with psychosocial disabilities in an organization, profession or job category
- housing – programs that help people with psychosocial disabilities who have historically had difficulty finding housing
- health – special strategies to improve health outcomes for people with psychiatric and addiction disabilities
- education – initiatives that support people with psychosocial disabilities in school, vocational training or support in gaining admittance to programs they have been historically excluded from
- consumer/survivor initiatives – businesses and support services that are run for and by consumer/survivors, often with government funding
- advocacy – initiatives that help people with psychosocial disabilities to access their legal rights and entitlements.
To meet the requirements of a special program, any restrictions or exclusions within the program must be rationally connected to the purpose of the program, and should be supported by objective evidence. Eligibility criteria that are not clearly related to the purpose of the program and that adversely affect people based on Code grounds will likely violate people’s human rights.
Therefore, if a program excludes someone with a psychosocial disability who has needs that the program was designed to benefit, the program provider would have to show that this is justified because it relates to the underlying purpose of the program.
Example: Based on a wealth of research showing the high rates of homelessness for people with “severe mental health issues,” the government decides to provide funding to agencies to set up affordable housing programs that provide housing and support for people in this group. One housing agency decides to exclude people who have substance addictions (either as their sole disability, or along with another mental health issue). If this exclusion was challenged, the housing provider would have to justify why this restriction is relevant to the purpose of the program. Otherwise, the program could be found to violate the Code.
Special programs cannot internally discriminate against the people they are meant to serve. Special programs must meet the same non-discrimination standard as other services that are not special programs. If someone has a disadvantage that a program was designed to benefit, but is excluded from the program, the program could be found to be discriminatory.
 Adapted from the Law Commission of Ontario, The law as it affects persons with disabilities. Preliminary consultation paper: Approaches to defining disability (2009) at 6-8, online: Law Commission of Ontario www.lco-cdo.org/en/disabilities-threshold-paper.
 J and J obo R v. B.C. (Ministry of Children and Family Development) and Havens (No. 2), 2009 BCHRT 61 (CanLII), para 256; Berg (University of British Columbia v. Berg,  2. S.C.R. 353.
 J and J obo R v. B.C., ibid.; Ball v. Ontario (Minister of Community and Social Services), 2010
HRTO 360; Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010, supra, note 39.
 El Jamal v. Ontario (Minister of Health and Long-Term Care), 2011 HRTO 1952, at para 21.
 In J and J obo R v. B.C., supra, note 153 at paras. 299-300, the applicant had a developmental disability and had applied for community living services to adults and children with developmental disabilities. These services were mandated by the BC Community Living Authority Act, SBC 2004, c. 60.
The BC Human Rights Tribunal determined that in denying the applicant the service, the respondents chose to adopt a narrower definition of “developmental disability” than was reasonably available. In doing so, they imported criteria that were not stated in the legislation or created by regulation. This was discriminatory.
 Ontario (Disability Support Program) v. Tranchemontagne, 2010, supra, note 39 at para. 121.
 See Kline v. Ontario (Community Safety and Correctional Services) 2012 HRTO 1167 (CanLII); Wilson v. Dixie Road Medical Association, 2011 HRTO 1607 (CanLII); TenBruggencate v. Elgin (County), 2010 HRTO 1467 (CanLII); J.M. v. St. Joseph’s Health Centre, 2012 HRTO 239 (CanLII); Egan v. Kennedy, 2006 BCHRT 15; and Sparks v. Vancouver Coastal Health Authority (2006), 58 C.H.R.R. D/268, 2006 BCHRT 575. In Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph, 2010 HRTO 2112 (CanLII), the HRTO stated that it is not an appeal mechanism for decisions around mental health assessments and it is the Consent and Capacity Board and the College of Physicians and Surgeons where a person can raise concerns about the appropriateness or correctness of medical assessments and decisions.
 Wilson v. Dixie Road Medical Association, ibid. at para. 13; Egan v. Kennedy, ibid.; Marshall v. Durham Regional Police Services, 2013 HRTO 2029 (CanLII).
 See, for example, Sparks v. Vancouver Coastal Health Authority, supra, note 158 in which the Tribunal stated at para. 17: “most if not all decisions relating to persons apprehended and detained under the relevant provisions of the Mental Health Act will have some connection with mental disability, real or perceived. That is not sufficient to ground a human rights complaint. A complainant alleging discrimination in this context must allege that they were in some way adversely treated because of their mental disability, real or perceived.” See also, S.D. v. Grand River Hospital, 2011 HRTO 2165 at para. 18.
 For more information about special programs, see the OHRC’s Special programs and the Ontario Human Rights Code: A self-help guide, available online at: www.ohrc.on.ca/en/special-programs-and-ontario-human-rights-code-self-help-guide.
 In Ontario (Human Rights Commission) v. Ontario (1994), 19 O.R. (3d) 387 (C.A.), the Ontario Court of Appeal stated: “Special programs aimed at assisting a disadvantaged individual or group should be designed so that restrictions within the program are rationally connected to the program. Otherwise, the provider of the program will be promoting the very inequality and unfairness it seeks to alleviate.” See also Ball v. Ontario, supra, note 154 at para. 121.
 Ball, ibid.; XY v. Ontario (Government and Consumer Services) (2012) HRTO 726 at paras. 264-66 (CanLII); and A.T. and V.T. v. The General Manager of O.H.I.P, (2010) ONSC 2398 (CanLII).