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3. Prima facie discrimination because of disability

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Once a disability within the meaning of section 10 of the Code is established, the individual has the burden of showing a prima facie case of discrimination.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society’s failure to accommodate actual differences.

In some cases, it will be clear that discrimination has occurred. In others, a preliminary assessment tool may be helpful. The Supreme Court of Canada has suggested three broad inquiries to determine if discrimination has taken place:[14]

(1) Differential treatment
Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the complainant’s already disadvantaged position within Canadian society?

(2) An enumerated ground
Was the differential treatment based on an enumerated ground?

(3) Discrimination in a substantive sense
Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, a person? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that a person is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Given the clear historical disadvantage experienced by persons with disabilities, it is likely that most differential treatment because of disability will result in a finding of prima facie discrimination.[15] This would include not only unfair treatment because of disability, but also neutral factors or requirements that have an adverse impact on persons with disabilities. It would also include inappropriate responses, or a lack of response to the person’s condition or stated need for accommodation.

3.1 Discrimination and insurance

Discrimination may also take place where a term or condition of employment requires enrolment in a group insurance contract and an applicant does not qualify for the insurance plan because of disability. The term or condition of employment itself would be viewed as a violation of the Code.[16]

If an employee is excluded because of a disability from a benefit, pension, superannuation plan or fund or a contract of group insurance, an employer must compensate the employee an amount equivalent to the contribution that the employer would have otherwise made on behalf of an employee who does not have a disability.[17]

Compensation to employees takes on different forms, such as contributions to benefit premiums or accrual of vacation credits. Where employers, as a matter of course, pay a certain form of compensation to other employees who are absent from work, employees absent due to disability are also entitled to such compensation.[18]

[14] This was first articulated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, online: Supreme Court of Canada (date accessed: 4 August 2000) [hereinafter “Law”]. The approach has been affirmed in several subsequent cases, most notably two cases dealing with discrimination on the basis of disability: Mercier, supra note 10 and Granovsky, supra note 4.
[15] The facts of Granovsky, supra note 4 illustrate an exception to this general proposition. Where a scheme targets a particular group (for example, those who are less fortunate than the complainant), it is unlikely to be considered discriminatory to exclude more advantaged groups.
[16] Subsection 25(1) of the Code
[17] Subsection 25(4) of the Code.
[18] Conversely, in O.N.A. v. Orillia Soldiers Memorial Hospital (1999), 169 D.L.R. (4th) 489, leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 118, online: QL (SCCA) [hereinafter “Orillia”], nurses on unpaid leave of absence due to disability did not accumulate service after periods set out in the collective agreement, and the employer was not required to contribute premiums to employee benefit plans after the employees had received long-term disability payments for a specified time. The Ontario Court of Appeal held that there was no contravention of the Code because these nurses were not treated differently from those in the appropriate comparator group, namely employees who were not working for other reasons.

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