6.1 Ontario Human Rights Code
Under the Code, people with mental health disabilities and addictions are protected from discrimination and harassment based on disability in five “social areas”:
- When receiving goods, services and using facilities (section 1). “Services” is a broad category and can include privately or publicly owned or operated services such as insurance, schools, restaurants, policing, health care, shopping malls, etc. Harassment based on a mental health or addiction disability is a form of discrimination, and is therefore also prohibited in services.
- In housing (section 2). This includes private rental housing, co-operative housing, social housing and supportive or assisted housing.
- When entering into a contract with others. This includes the offer, acceptance, price or even rejecting a contract (section 3)
- In employment (section 5). Employment includes full-time and part-time work, volunteer work, student internships, special employment programs, probationary employment, and temporary or contract work.
- When joining or belonging to a union, professional association or other vocational association. This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, etc. (section 6).
It is well-established that people with mental health disabilities are entitled to the same level of protection as people with physical disabilities. To this end, the Ontario Court of Appeal said:
Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments.
In one case, the Supreme Court of Canada struck down an insurance plan for employees with disabilities that limited benefits for mental disabilities to a lower level than for physical disabilities.
Section 9 of the Code prohibits both direct and indirect discrimination. Section 11 states that discrimination includes constructive or adverse effect discrimination, in which a requirement, policy, standard, qualification, rule or factor that appears neutral has the effect of excluding or disadvantaging a group protected under the Code.
People with mental health issues or addictions are also covered by the Code under section 8 if they experience reprisal or are threatened with reprisal for trying to exercise their human rights.
People are also protected from discrimination based on their association with someone with a mental health disability or addiction (Section 12). This could apply to friends, family or others – for example, someone advocating on behalf of someone with an addiction issue or mental health disability.
A fundamental aspect of the Code is that it has primacy over all other provincial laws in Ontario, unless the law specifically states that it operates notwithstanding the Code. This means that where a law conflicts with the Code, the Code will prevail, unless the law says otherwise (section 47).
6.1.2 Defences and exceptions
The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. An organization that wishes to rely on these defences and exceptions must show it meets all of the requirements of the relevant section.
Where discrimination results from requirements, qualifications or factors that may appear neutral, but that have an adverse effect on people identified by Code grounds, section 11 allows the person or organization responsible to show that the requirement, qualification or factor is reasonable and bona fide. They must also show that the needs of the person or group affected cannot be accommodated without undue hardship.
Section 14 of the Code protects “special programs” that are designed to address the historical disadvantage experienced by people identified by the Code. As a result, it is likely not discriminatory to implement programs designed specifically to assist people with psychosocial disabilities, as long as an organization can show that the program is:
- designed to relieve hardship or economic disadvantage
- designed to help the disadvantaged group to achieve or try to achieve equal opportunity, or
- likely to help eliminate discrimination.
Section 17 sets out the duty to accommodate people with disabilities. It is not discriminatory to refuse a service, housing or a job because the person is incapable of fulfilling the essential requirements. However, a person will only be considered incapable if their disability-related needs cannot be accommodated without undue hardship.
Under section 18 of the Code, organizations such as charities, schools, social clubs, sororities or fraternities that want to limit their right of membership and involvement to people with psychosocial disabilities can do this on the condition that they serve mostly people from this group.
Example: Students at a university set up a club that provides social, networking and education opportunities for students with disabilities who experience severe anxiety and depression. They restrict their membership to people of this group under section 18 of the Code.
Section 24 states that a religious, philanthropic, educational, fraternal or social institution or organization that mostly serves the interests of people identified by certain Code grounds can give hiring preference to people from that group, as long as the qualification is reasonable and legitimate (bona fide), given the nature of the employment.
Example: A community mental health organization hires peer support workers to help their clients navigate the mental health system. A core requirement of the job is for employees to have experienced a mental health disability.
6.2 Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees people’s civil, political and equality rights in the policies, practices and legislation of all levels of government. Certain rights may particularly apply to people with psychosocial disabilities in certain circumstances, due to legislation and policies that focus on these groups. Human rights legislation in Canada is subject to and must be considered in light of the Charter.
Under section 7 of the Charter, all people have the right to life, liberty and security of the person. Section 9 protects people against being detained or imprisoned arbitrarily, or with no good reason, and section 10 outlines a person’s rights upon arrest or detention. These rights must be respected by organizations that carry out government policies, like police or hospitals, that may seek to detain people with mental health disabilities.
Section 15 guarantees the right to equal protection under the law and equal benefit of the law, without discrimination based on mental or physical disability, among other grounds. This equality rights guarantee is similar to the purpose of the Code. Governments must not infringe Charter rights unless violations can be justified under section 1, which considers whether the Charter violation is reasonable in the circumstances.
6.3 Accessibility for Ontarians with Disabilities Act
The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) addresses the right to equal opportunity and inclusion for people with disabilities, including mental health disabilities. The AODA's goal is to make Ontario fully accessible by 2025. It introduces a series of standards (customer service, transportation, built environment, employment and information and communications) that public and private organizations must implement within certain timelines.
The AODA is an important piece of legislation for improving accessibility in the lives of people with disabilities. It complements the Ontario Human Rights Code, which has primacy over the AODA. The development and implementation of standards under the AODA must have regard for the Code, related human rights principles and case law, including issues faced by people with psychosocial disabilities. Compliance with the AODA does not necessarily mean compliance with the Code. Responsible organizations must follow both.
6.4 Convention on the Rights of Persons with Disabilities
In 2010, Canada ratified the United Nations’ Convention on the Rights of Persons with Disabilities, (CRPD), an international treaty designed to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
The CRPD moves away from considering people with disabilities as recipients of charity towards being holders of rights. It emphasizes non-discrimination, legal equality and inclusion. Countries that have ratified or signed their acceptance to the CRPD are known as “States Parties.”
International treaties and conventions are not part of Canadian law unless they have become part of legislation. However, the Supreme Court of Canada has stated that international law helps give meaning and context to Canadian law. The Court said that domestic law (which includes the Code and the Charter) should be interpreted to be consistent with Canada’s international commitments. The CRPD is an important human rights tool that puts positive obligations on Canada to make sure that people with disabilities have equal opportunity in all areas of life. To meet the obligations under the CRPD, Canada and Ontario should make sure that adequate and appropriate community supports and accommodations are in place to allow for equal opportunities for people with disabilities, and should evaluate legislation, standards, programs and practices to make sure rights are respected.
All of the articles in the CRPD are relevant to the lives of people with psychosocial disabilities, but some apply particularly to the issues raised in the consultation. These include rights to:
- equality and non-discrimination (Article 5)
- accessibility (Article 9)
- equal recognition before the law (Article 12)
- liberty and security of the person (Article 14)
- live independently and be included in the community (Article 19)
- health, habilitation and rehabilitation (Articles 25 and 26)
- an adequate standard of living and social protection (Article 28).
Canada has not signed the Optional Protocol of the CRPD, which means that people cannot complain directly to the UN Committee on the Rights of Persons with Disabilities. However, there are reporting requirements for the CRPD. The Canadian Association of Statutory Human Rights Agencies (CASHRA) has called on all levels of government to fulfill their obligations. This includes consulting and involving persons with disabilities and representative organizations to monitor the CRPD’s implementation, identifying initiatives and developing plans to show how they will address CRPD rights and obligations.
 See Haykin v. Roth, 2009 HRTO 2017 (CanLII) confirming that harassment in services is prohibited under the Code.
 See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (CanLII); ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Ont. Div. Ct.) and Osvald v. Videocomm Technologies, 2010 HRTO 770 (CanLII) at paras. 34 and 54.
 Fleming v. Reid, 1991 CanLII 2728 at IV (Ont. C.A.).
 Gibbs v. Battlefords and Dist. Co-operative Ltd., supra, note 1. See also Moore v. Canada (Attorney General),  F.C.J. No. 18, 2005 FC 13 (CanLII) at para. 33, in which it was stated: “If Moore had had an obvious physical disability, it is highly doubtful that there would even have been a termination of employment much less a dismissed complaint. Consistent with the purpose of the Canadian Human Rights Act and section 3, the same rights and respect are to be accorded those with mental disabilities as those with other forms of disability. For the purposes of the Act, a disability is a disability, whether mental or physical.”
 See subsection 13.4 on “The legal test” for more information.
 See section 11 on “Reprisal” for more information.
 See, for example, Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032 (CanLII) (discrimination because of association with a person who had filed a disability discrimination claim); Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII) (dismissal of an employee because her husband was HIV-positive); Barclay v. Royal Canadian Legion, Branch 12, (1997) 31 C.H.R.R. D/486 (Ont. Bd. Inq.) (punishment of a member because she objected to racist comments about Black and Aboriginal people); and Jahn v. Johnstone (September 16, 1977), No. 82, Eberts (Ont. Bd. Inq.) (eviction of a tenant because of the race of the tenant’s dinner guest).
 See section 12 on “Mental health and addictions programs, laws and policies” and “Special programs” for more information.
 See section 14 on “Undue hardship” for more information. See also British Columbia (Public Service Employee Relations Comm.) v. BCGSEU,  3 S.C.R. 3 [“Meiorin”].
 Section 52 of the Charter acts to make sure that any law that is inconsistent with the Charter is, to the extent of the inconsistency, of no force or effect.
 Under section 7 of the Charter, people cannot be deprived of these rights except according to the principles of fundamental justice. This section was used, for example, to advance the current understanding of the rights of people with mental capacity to refuse to consent to treatment.
 An Ontario court has confirmed that rights under the Mental Health Act, R.S.O. 1990, c. M. 7 must be taken to conform to similar rights under sections 9 and 10(b) of the Charter: R. v. Webers, 1994 CanLII 7552 (Ont. Ct. J.(Gen. Div.) at para. 31. The Court cited with approval a Review Board decision that noted “…the Mental Health Act is replete with procedural safeguards. The safeguards have been implemented in recognition of the fact that a patient who is detained under the authority of the Mental Health Act or who loses control over his or her own treatment or assets has been deprived of their liberty, autonomy or right to self-determination no less than an individual who has been imprisoned.”
 Accessibility for Ontarians with Disabilities Act, 2005 S.O. 2005, c. 11.
 Letter from OHRC Chief Commissioner Barbara Hall to Charles Beer, AODA Review (October 30, 2009) regarding: Submission to the AODA review, online: Ontario Human Rights Commission www.ohrc.on.ca/en/resources/news/beer/view. In an independent review of the AODA in 2010, the reviewer, Charles Beer, heard from community stakeholders that the roll-out of the standards must be accompanied by substantial government investment to change the attitudinal barriers that limit opportunities for people with mental health and other disabilities. Charles Beer, Charting a Path Forward: Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act, 2005 (2010), online: Ministry of Community Social Services. www.mcss.gov.on.ca/documents/en/mcss/accessibility/Charles%20Beer/Charles%20Beer.pdf.
The OHRC has prepared an eLearning video to help organizations understand the relationship between the AODA and the Human Rights Code. Working Together: The Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act: www.ohrc.on.ca/en/learning/working-together-ontario-human-rights-code-and-accessibility-ontarians-disabilities-act.
 CRPD, supra, note 27, Article 1.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817 at para. 69.
 Baker, ibid at para. 70; The UN has said that ratifying the CRPD creates a “strong interpretive preference in favour of the Convention. This means that the judiciary will apply domestic law and interpret legislation in a way that is as consistent as possible with the Convention.” UN, From Exclusion to Equality: Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (Geneva: United Nations, 2007) at 107.