Part II – Interpretation and application

Definitions

Age

You have the right to be free from discrimination based on age if you are at least 18 years old.[19]

In services, goods, facilities, contracts and membership in unions, you can file a claim as long as you are at least 18, except for services related to liquor and tobacco for which the minimum age is 19.

Parents or guardians can file for their minor children. For example, where a child with a disability is not receiving the support and assistance she needs to access education services, her parents can make a claim on her behalf.

“Golden age specials” or “seniors’ discounts” for persons over age 65 are permissible.

In housing, you must be 18 years old, unless you have formally withdrawn from the legal control of your parents. In that case, you are protected if you are 16 or 17 years old.

Refusing to sell or lease living accommodation to families with children under age 18 is not allowed.

Disability

The Code does not list all the conditions that may be considered a disability.[20] “Disability” should be interpreted in broad terms. It includes both present and past conditions, instances where a person is perceived or “seen” to have a disability, as well as a perception that a -person may develop a disability in the future. For example, if an employer does not hire a job applicant because she thinks he has a mental disorder, the job applicant can make a human rights claim that he was discriminated against based on disability. It does not matter that the job applicant does not, in fact, have a mental disorder since the employer perceives or sees him to have a disability.

The Code clearly protects people against discrimination based on mental, developmental and learning disabilities. Students with disabilities have the right to be free from discrimination in school.[21]

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. Discrimination may also be based on perceptions, myths and stereotypes about a disability. Even minor illnesses or infirmities can be “disabilities” if a person can show that they were treated unfairly because of the perception of a disability.

Disabilities that are not obvious to the average observer (also known as non-evident disabilities) are also protected. Examples of non-evident disabilities include chronic fatigue syndrome, back pain, and  certain forms of mental illness. Other disabilities may remain hidden because they only flare up occasionally (such as epilepsy or environmental sensitivities).

If you have claimed or received benefits under the Workplace Safety and Insurance Act, this would be considered a disability. You do not have to prove that your condition is a disability.

If you have a disability that requires accommodation at work, you must provide enough information to allow your employer to help you. This should include information from a qualified professional confirming that you have a disability and stating the assistance you need. For example, you do not want to tell your employer about your heart condition, but you need certain parts of your job changed to accommodate this disability. When your employer asks for proof, you can ask your doctor for a letter saying that you have a medical condition (without being specific) that does not allow you to do certain things, such as climb stairs or lift heavy objects.

Equal

“Equal” means achieving equal outcomes and substantive equality. Sometimes this means treating people the same way, but it may also mean treating people differently. For example, building a ramp for a person with a disability is not “equal treatment” in the strict sense because a ramp is something built especially for persons with disabilities; but it is a requirement for a person who uses a wheelchair to have equal access to a building.

“Equal” means that when you have been discriminated against because of a ground in the Code, you are entitled to the Code’s protection. You do not actually have to prove that you are racialized or gay or that you have a disability, etc., as long as you can show that the treatment was because of a ground in the Code.

For example, two women are dancing together in a bar and the owner interrupts them and asks them to leave. This happens after one of the women overhears the owner say, “I don’t want people to think this is a gay bar.” Even if the women are not lesbians, they are able to make a human rights claim because they can show that they have been discriminated against because of their perceived sexual orientation.

Family status

This definition includes both biological and adoptive parents, as well as someone who acts in the position of a parent to a child, such as a legal guardian.[22]

Human rights protections for family status include protection against discrimination based on the particular identity of a family member.[23] For example, it would be discrimination for an employer to take negative actions towards an employee because of personal animosity towards that person’s child.

This ground is often raised in human rights claims involving housing, when landlords or property managers limit a housing development or apartment to adults only or show a preference for married couples over single parents. This is discrimination and is not allowed under the Code.

This may also be the ground of discrimination when a woman is refused housing or other services or facilities because she is a lone parent or because she is breastfeeding [24]

Group insurance

You are protected from discrimination in the terms of your group insurance plan. This is usually but not always in relation to employment.

However, an insurance company can make a reasonable preference, distinction or exclusion because of age, sex, marital status, family status or disability.[25] For example, auto insurance companies classify young males differently than other persons based on their age and sex. This differential treatment has been found to be reasonable and genuine because statistics show that young males are involved in proportionally more (and more serious) accidents than other drivers and because there is no other practical alternative to this type of classification.

Harassment

Harassment means statements or actions that are not welcome. The other person may know this because you told them that the behaviour is not welcome. Or the conduct may be so distressing that an objective person would agree that the behaviour was unwelcome.

Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually required. However, one incident may be enough to support a finding of harassment where the incident creates a poisoned environment.

Marital status

Marital status includes being married or in a common-law relationship. Partnerships can be either same-sex or opposite sex. Marital status also includes being single, widowed, divorced or separated. For example, you cannot be refused employment because you may or may not be married.

Human rights protections for marital status include protection against discrimination based on the identity of a person’s spouse.[26] For example, it would be discrimination if an employer takes negative actions towards an employee because of personal animosity towards that person’s spouse.

Record of offences

This ground only applies to employment situations.

You cannot be discriminated against in your job because of:

• pardoned offences under federal law, such as the Criminal Code
• convictions under provincial law, such as the Highway Traffic Act.

This protection does not apply to offences where there has only been a charge. It only applies to convictions.

When you apply for a job, you cannot be asked whether you have any kind of criminal record. However, you can be asked if you have been convicted of a federal offence for which you have not received a pardon. You can also be asked during an interview whether you are bondable or have a driver’s licence, but only where it is an essential requirement for the job.

Services

Examples of services include:

• stores, restaurants and bars
• hospitals and health services
• schools, universities and colleges
• public places, amenities and utilities such as recreation centres, public washrooms, shopping malls and parks
• services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit
• services provided by insurance companies
• classified ads in a newspaper.

Under the Code, services do not include a levy, fee, tax or periodic payment imposed by law.

Spouse

“Spouse” is a person married to or in a common-law relationship with another person.

This definition includes both same-sex and opposite-sex partnerships.