People with mental health disabilities or addictions have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world. In recognition of this, the Supreme Court of Canada has said:
There is no question but that the mentally ill in our society have suffered from historical disadvantage, have been negatively stereotyped and are generally subject to social prejudice.
Despite the prevalence of negative attitudes, prejudice, stereotyping, ignorance and misunderstanding about people with psychosocial disabilities, the reality is that many people have a mental health or addiction disability, or will develop one at some point in their lives. Research estimates that almost one in five Canadian adults will experience a mental illness or addiction.
Because of the extreme stigma around certain types of mental health disabilities and addictions, many people may be afraid to disclose their disability to others. They may worry about being labelled, experiencing negative attitudes from others, losing their jobs or housing, or experiencing unequal treatment in services after disclosing a mental health issue or addiction. Fear of discrimination can also result in people not seeking support for a mental health issue or addiction.
A person’s experience may be complicated further when discrimination based on a mental health disability or addiction intersects with discrimination based on other Code grounds, such as race, sex, sexual orientation, age or another type of disability, etc. People with psychosocial disabilities are also more likely to have low incomes than people without psychosocial disabilities, and many people live in chronic poverty.
The Ontario Human Rights Code (the Code) protects people in Ontario with mental health disabilities and addictions from discrimination and harassment under the ground
of “disability.” This protection extends to five “social areas:”
- When receiving goods, services and using facilities. “Services” is a broad category and can include privately or publicly owned or operated services including insurance, schools, restaurants, policing, health care, shopping malls, etc.
- In housing, including private rental housing, co-operative housing, social housing and supportive or assisted housing.
- When entering into contracts with others, including the offer, acceptance, price or even rejection of a contract.
- In employment. 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.
People with mental health issues and addictions are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.
Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code. Employers, housing providers, service providers and other responsible parties must make sure they maintain accessible, inclusive, discrimination and harassment-free environments that respect human rights.
The Ontario Human Rights Commission (OHRC) is an independent statutory body whose mission is to promote, protect and advance human rights across the province
as set out in the Code. To do this, the OHRC identifies and monitors systemic human rights trends, develops policies, provides public education, does research, conducts public interest inquiries, and uses its legal powers to pursue human rights remedies that are in the public interest.
The OHRC’s policies reflect its interpretation of the Code, and set out standards, guidelines and best practice examples for how individuals, service providers, housing providers, employers and others should act to ensure equality for all Ontarians. The OHRC’s Policy on preventing discrimination based on mental health disabilities and addictions provides practical guidance on the legal rights and responsibilities set out in the Code as they relate to mental health and addiction issues. In particular, the policy addresses:
- people’s rights under the Code, particularly at work, in rental housing, and when receiving services
- the right to be free from reprisal (“payback”) for exercising one’s rights under the Code
- different forms of discrimination (e.g. profiling based on mental health, harassment, poisoned environment, systemic discrimination)
- the principles of accommodation (respect for dignity, individualization, integration and full participation)
- how the duty to accommodate applies to people with mental health or addiction disabilities
- duties and responsibilities in the accommodation process (e.g. the duty to inquire about accommodation needs, medical information to be provided, confidentiality, treatment)
- the considerations in assessing whether the test for undue hardship has been met (costs, outside sources of funding, health and safety considerations)
- other possible limits on the duty to accommodate
- how to balance the right of someone with a mental health issue or addiction to be free from discrimination where this may conflict with the rights of others
- people’s rights to be free from discrimination within programs that are targeted to people with psychosocial disabilities
- how consent and capacity issues may relate to people’s rights under the Code
- organizations’ responsibilities to prevent and eliminate discrimination, and how they can create environments that are inclusive and free from discrimination.
The ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employers, housing providers, service providers and other responsible parties covered by the Code. It is not acceptable to choose to stay unaware of discrimination or harassment of a person with a mental health disability or addiction, whether or not a human rights claim has been made.
The OHRC’s Policy on preventing discrimination based on mental health disabilities and addictions is intended to provide clear, user-friendly guidance on how to assess, handle and resolve human rights matters related to mental health and/or addictions. All of society benefits when people with mental health or addiction disabilities are given equal opportunity to take part at all levels.
 R. v. Swain,  S.C.R. 933 at 994. This point was also made by the Supreme Court of Canada in Battlefords and District Co-operative Ltd. v. Gibbs,  3 S.C.R. 566, which recognized “the particular historical disadvantage faced by persons with mental disabilities” (at para. 31).
 A “psychosocial disability” refers to both mental health issues and addictions. The World Network of Users and Survivors of Psychiatry (WNUSP) has adopted this term as a move away from a model of individual pathology, noting: “The psychological component refers to ways of thinking and processing our experiences and our perception of the world around us. The social/cultural component refers to societal and cultural limits for behaviour that interact with those psychological differences/madness as well as the stigma that the society attaches to labelling us as disabled.” World Network of Users and Survivors of Psychiatry, Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities, (February 2008), available online at: www.un.org/disabilities/documents/COP/WNUSP%20CRPD%20Manual.doc at 9 (Retrieved: January 7, 2014).
 Offord DR, et al. “One-year prevalence of psychiatric disorder in Ontarians 15 to 64 years of age,”
Can J Psychiatry 1996; 41: 559-563.
 A person is stigmatized when they “possess an attribute that marks them as different and leads them to be devalued in the eyes of others” (see Brenda Major and Laurie T. O’Brien, “The social psychology of stigma,” Annu. Rev. Psychol. 2005 56:393-421 at 395). Inherent in this is the idea that people are seen as “deviant” from what society has deemed as the “norm” (see Schur, Edwin M. 1971. Labelling Deviant Behaviour: Its sociological implications. New York: Harper & Row, Publishers, as cited by the Centre for Addiction and Mental Health, The Stigma of Substance Abuse: A Review of the Literature (18 August 1999).
Available online at: www.camh.ca/en/education/Documents/www.camh.net/education/
Resources_communities_organizations/stigma_subabuse_litreview99.pdf. See also G. Scrambler, (1988), “Stigma and disease: changing paradigms,” Lancet 352 (9133), 1054-1055; Link, B.G. and Phelan, J.C. (2001) “Conceptualizing stigma,” Annual Review of Sociology, 27, 363-385; Corrigan P.W. & Penn D.L. 1999, “Lessons from social psychology on discrediting psychiatric stigma,” American Psychologist 54 (9), 765 – 776; Julio Arboleda-Florez, “Considerations on the Stigma of Mental Illness,” The Canadian Journal of Psychiatry, November 2003, at 3; Liz Sayce, “Stigma, discrimination and social exclusion: What’s in a word,” Journal of Mental Health, 1998, 7, 4, 331-343; Neasa Martin & Valerie Johnston, A Time for Action: Tackling Stigma and Discrimination: Report to the Mental Health Commission of Canada, (Ottawa: Mental Health Commission of Canada, 2007).