Section 10 (1) of the Code defines “disability” as follows:
“because of disability” means for the reason that the person has or has had, or is believed to have or have had,
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
- a condition of mental impairment or a developmental disability,
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
- a mental disorder, or
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997
“Disability” should be interpreted in broad terms. It includes both present and past conditions, as well as a subjective component based on perception of disability. Although sections 10(a) to (e) set out various types of conditions, it is clear that they are merely illustrative and not exhaustive. Protection for persons with disabilities under this subsection explicitly includes mental illness,[8] developmental disabilities and learning disabilities. Even minor illnesses or infirmities can be “disabilities,” if a person can show that she was treated unfairly because of the perception of a disability.[9] Conversely, persons with an ailment who cannot show they were treated unequally because of a perceived or actual disability will be unable to meet even the prima facie test for discrimination. It will always be critical to assess the context of the differential treatment to determine whether discrimination has taken place, and whether the ground of disability is engaged.
The Supreme Court of Canada has shed new light on the approach to be taken in understanding disability. In Mercier,[10] a case arising in Quebec, the Supreme Court made it clear that disability must be interpreted to include its subjective component, since discrimination may be based as much on perceptions, myths and stereotypes as on the existence of actual functional limitations.
In Mercier, the complainants were denied employment or dismissed when it was discovered that they had medical conditions. However, their conditions did not result in any functional limitations. The employers argued that since the conditions did not give rise to any functional limitations, they could not be “disabilities” under Quebec’s human rights law. The Supreme Court of Canada disagreed.
The Court chose not to create an exhaustive definition of disability. Instead, it opted for an equality-based framework that takes into account evolving biomedical, social and technological developments. This includes a socio-political dimension that emphasizes human dignity, respect and the right to equality. Thus, a disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors. The focus is on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or the presence of an ailment.
Another Supreme Court of Canada decision[11] has since confirmed that “social handicapping,” i.e., society’s response to a real or perceived disability, should be the focus of the discrimination analysis.
This approach is consistent with the Code, which includes past, present and perceived conditions. It affords a broad and liberal interpretation and promotes the objectives of the Code.
The nature or degree of certain disabilities might render them “non-evident” to others. Chronic fatigue syndrome and back pain, for example, are not apparent conditions. Other disabilities might remain hidden because they are episodic. Epilepsy is one example. Similarly, environmental sensitivities can flare up from one day to the next, resulting in significant impairment to a person’s health and capacity to function, while at other times, this disability may be entirely non-evident. Other examples might include:
Other disabilities may become apparent based on the nature of the interaction, such as when there is a need for oral communication with a person who is deaf, or there is a need for written communication with a person who has a learning disability. A disability might become apparent over time through extended interaction. It might only become known when a disability accommodation is requested, or the disability might remain “non-evident” because the individual chooses not to divulge it for personal reasons.
Regardless of whether a disability is evident or non-evident, a great deal of discrimination faced by persons with disabilities is underpinned by social constructs of “normality” which in turn tend to reinforce obstacles to integration rather than encourage ways to ensure full participation. Because these disabilities are not “seen,” many of them are not well understood in society. This can lead to stereotypes, stigma and prejudice.
Although mental disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Over the years, many employers have expressed the need for specific guidance on the issue of mental disability. Section 10 of the Code expressly includes mental disabilities. Persons with mental disabilities face a high degree of stigmatization and significant barriers to employment opportunities.[12] Stigmatization can foster a climate that exacerbates stress, and may trigger or worsen the person’s condition. It may also mean that someone who has a problem and needs help may not seek it, for fear of being labelled.
The Supreme Court of Canada has recognized the distinct disadvantage and negative stereotyping faced by persons with mental disabilities, and has held that discrimination against individuals with mental disabilities is unlawful. In Gibbs v Battlefords,[13] the Court struck down an insurance plan for employees with disabilities that limited benefits for mental disabilities to a lower level than for physical disabilities. It is therefore the OHRC’s position that such distinctions are prima facie discriminatory.
[8] Mental illness has been described as “significant clinical patterns of behaviour or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions). At the root of this impairment are symptoms of biological, psychological or behavioural dysfunction, or a combination of these.” See Canadian Psychiatric Association, Mental Illness and Work,(brochure), online:Canadian Psychiatric Association homepage http://cpa.medical.org/MIAW/MIAW.asp at pg. 1
[9] The Code’s definition of “disability” includes perceived disability.
[10] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000
SCC 27 (3 May 2000), online: Supreme Court of Canada <http://www.lexum.umontreal.ca/cscscc/
en/index.html> [hereinafter “Mercier”].
[11] Granovsky, supra note 4.
[12] Mental Illness and Work, supra note 8.
[13] Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.).