Disability continues to be the most cited ground of discrimination in applications to the Human Rights Tribunal of Ontario. As our understanding of disability evolves, the need is greater than ever for practical guidance for employers, housing and service providers, and for people with disabilities themselves. That’s why in the past year the OHRC has done extensive work to update and clarify rights and responsibilities relating to disability.
Calling out ableism: updated policy looks at emerging issues
In September 2016, the OHRC launched its updated Policy on ableism and discrimination based on disability. The update reflects 15 years of important case law developments, new international human rights standards, and evolving social science research. We were honoured to launch the policy at the Annual General Meeting of ARCH Disability Law, which continues to be an important partner in advancing the rights of people with disabilities.
Highlights of this updated policy include:
- Current case law and best-practice examples from the employment, housing and service sectors
- An evolving legal definition of disability that reflects the changes in what is considered a disability. For example, conditions that were not previously recognized as disabilities in the past now are, such as multiple chemical sensitivities and food-related anaphylaxis
- The history of discrimination based on disability
- Discussion on ableism and underlying attitudes and beliefs that lead to discrimination.
The policy also looks at the unique experiences of people who face discrimination based on disability combined with other Code grounds, such as age, sex, sexual orientation, race, another type of disability, etc. And it clarifies what medical information can and can’t be asked for when a person makes an accommodation request, and clearly states that employers, housing and service providers have a duty to inquire if they think someone may need an accommodation based on a disability, even if the person hasn’t made a specific request.
Providing guidance to employers considering drug and alcohol testing
In October 2016, the OHRC launched an updated Policy on drug and alcohol testing. This policy offers guidance to Ontario employers and employees about drug and alcohol testing, and about the potential human rights concerns arising from testing.
Drug and alcohol testing policies and programs have human rights implications for people with addictions. Addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code. People with current, past or perceived addictions to drugs or alcohol are protected from discrimination in employment, services, housing and other social areas.
The policy lays out where testing policies and programs may discriminate and where they may be justified. It gives guidance on how to design them to respect human rights, where testing is necessary to achieve safety. It incorporates updated case law and research and it sets out user-friendly examples to advise people about their rights and help employers make informed decisions about drug and alcohol testing.
Clarifying the role of medical professionals in the accommodation process
In February 2017, the OHRC released its Policy statement on medical documentation to be provided when disability-related accommodation requests are made.
The statement provides an overview of the:
- Legal duty to accommodate people with disabilities, including mental health disabilities
- Role of medical professionals in the accommodation process
- Type and scope of medical information needed in the accommodation process.
Generally, the accommodation provider does not have the right to know a person’s confidential medical information (for example. the cause of the disability, diagnosis, symptoms or treatment) unless this information clearly relates to the accommodation being asked for, or the person’s needs are complex, challenging or unclear and more information is needed.
“The Ontario Human Rights Commission’s intervention in this case and York’s commitment to change have created a landmark precedent which will change the understanding of accessibility and (dis)ability when receiving university accommodations. All students go to school to invest in their future and to succeed, and I believe this change will help them achieve this goal to the best of their ability.”
- Navi Dhanota, Applicant in Dhanota v. York University
Seeing results: students who apply for government loans don’t need to reveal sensitive personal information
We wrote to the Ministry of Training, Colleges and Universities in April 2016, asking it to revise its policies so that students are only required to provide a medical certificate that verifies the existence of a disability, without having to disclose a specific diagnosis, when applying for bursaries and grants for students with disabilities. The MTCU revised its disability-related eligibility criteria identified in OSAP forms and guidelines to remove the requirement for disclosure of mental health diagnosis.
We are in the final stages of an inquiry into the policies at colleges and universities across Ontario to ensure that their medical documentation requirements comply with the Code. A final report will be released later this year.
Increasing independence for people who rely on home care:Cole v. Ontario (Health and Long-Term Care)
As part of a coalition of interveners, the OHRC reached an important settlement in the HRTO case of Ian Cole, a middle-aged man with a severe intellectual disability who lives in the community. To live in the community, Mr. Cole depends on the receipt of nursing services that are primarily funded by his local Community Care Access Centre (CCAC). The maximum funding is set out in a regulation and provided for nursing services to a maximum of four visits per day.
In 2012, Mr. Cole’s doctor determined that he needed five visits per day, but the CCAC denied based on the funding limit. Mr. Cole alleged discriminated against him and other people with complex disability-related needs because they are denied the level of services that they require to remain outside of institutional care.
In June 2016, the OHRC and other intervenors reached a settlement with the Ministry. The Ministry agreed to issue a memorandum to CCACs regarding service maximums in the regulation. The memorandum requires CCACs to consider the full range of service options based on client need and provide the necessary referrals to additional community support services or inter-professional resources in primary care practices for clients who are receiving or reaching the service maximums, to help them continue to live independently in the community.
The Ministry also agreed to consult with community representatives to address systemic reform within the home care and community services system for persons with intellectual disabilities.