1. Introduction

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions… This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw…[People with disabilities]… have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms…^[1]

In Canada and across the world, people with disabilities have long-experienced abuse, neglect, exclusion, marginalization and discrimination. For example, from the late 1800s, Canadian immigration laws prohibited people who were perceived to have intellectual or developmental disabilities from entering the country. Up until 1967, when the Immigration Act was amended, people with disabilities continued to be in the “undesirable” class of potential immigrants to Canada.^[2] And, despite changes to the federal legislation, there are ongoing barriers for people with disabilities who wish to immigrate to Canada.^[3]

People with disabilities were also subjected to involuntary sterilization. In the late 1920s and early 1930s, Alberta and British Columbia introduced sexual sterilization legislation. Alberta sterilized over 2,800 people with mental health and physical disabilities from 1929 until the law was repealed in 1972, with several hundred sterilizations occurring from the 1960s until 1972, often without the knowledge or consent of people or their parents.^[4]

People with disabilities have also experienced a long history of inappropriate and harmful institutionalization, seclusion and restraint. Although most Canadian provinces began a process of deinstitutionalization from the 1960s onward, many people with disabilities continue to struggle to find adequate and suitable living opportunities in the community, due to under-resourced supportive living options, a chronic shortage of spaces in group homes, or a failure to recognize their ability to live independently.^[5]

While there have been some significant gains^[6] for people with disabilities in recent years, the historical disadvantage experienced by people with disabilities continues to be felt today, and serious barriers to equality continue to exist throughout society. “Disability” continues to be the most frequently cited ground of discrimination under the Ontario Human Rights Code^[7] (the Code) in human rights claims made to the Human Rights Tribunal of Ontario (HRTO).^[8] Statistics Canada reports that Ontarians with disabilities continue to have lower educational achievement levels, a higher unemployment rate, are more likely to have low income status, and are less likely to live in adequate, affordable housing than people without disabilities.^[9] It is clear that people with disabilities continue to experience difficulties accessing employment, housing and various services throughout Ontario. For example, many people with disabilities are denied employment opportunities, often due to negative assumptions about their skill level and competence. Where they are employed, people with disabilities continue to struggle in many instances for their right to workplace accommodation of needs related to their disability. And there are many examples of people with disabilities being denied fair wages in the employment opportunities that are available to them.^[10]

In 2001, the Ontario Human Rights Commission (the OHRC) published its Policy and Guidelines on Disability and the Duty to Accommodate (the 2001 Disability Policy). That policy detailed a rigorous standard for interpreting “undue hardship” under the Code; it set out three principles of accommodation: respect for dignity, individualized accommodation, and integration and full participation; and it outlined the duties and responsibilities of everyone involved in the accommodation process. It also broke new ground when it advanced the position that an employer’s duty to accommodate included a responsibility to consider alternative work arrangements for people with disabilities.^[11] The policy received the Government of Ontario’s Amethyst Award in 2002 for excellence in public service. It has been cited and followed by many human rights legal decision-makers^[12] and has guided countless employers, housing providers and service-providers across Ontario in their day-to-day operations.

Since the release of the 2001 Disability Policy, there have been many important developments in the area of disability law and studies. There have been several important legal decisions, including from the Supreme Court of Canada, with respect to the ground of disability and the duty to accommodate. These decisions have assisted the OHRC in its evolving understanding of equality for people with disabilities. The Policy on ableism and discrimination based on disability (2016) updates the OHRC’s 2001 Disability Policy to take into account current social science research, case law, legislation and international human rights obligations. It looks at how disability and the duty to accommodate play out across all of the social areas covered by the Code, with a particular emphasis on employment, services and housing.^[13]

This policy will help organizations:

• understand their rights and obligations under the Code
• design their facilities, policies and procedures inclusively
• respond to accommodation requests
• address complaints related to disability
• find further resources.

Statistics Canada’s 2012 Canadian Survey on Disability provides a recent profile of Canadians with disabilities, aged 15 years and older.^[14] According to the survey, 14% of Canadians reported that they have a disability that limits them in their daily activities (approximately 3.8 million Canadians). In Ontario, the prevalence of disability is slightly higher than the national average at 15.4%.^[15] The average age of disability onset is in the early 40s, and the prevalence of disability increases steadily with advancing age.^[16]

The Code protects people from discrimination and harassment under the ground of “disability” in the “social areas” of employment, services, goods, facilities, housing, contracts and membership in trade and vocational associations. This means that people with disabilities have the right to equal treatment, which includes the right to accessible workplaces, schools, public transit, health and social services, restaurants, shops and housing, among other areas. The Preamble to the Code emphasizes the importance of creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person can contribute fully to the development and well-being of the community.