3. Legal framework

3.1 Ontario Human Rights Code

3.1.1 Protections

Under the Code, people with disabilities are protected from discrimination and harassment based on disability in five “social areas”:

• When receiving goods, services and using facilities (section 1). “Services” is a broad category and can include privately or publicly-owned or operated services such as insurance, schools, restaurants, policing, health care, shopping malls, etc. Harassment based on disability is a form of discrimination, and is therefore also prohibited in services.^[60]
• In housing (section 2). This includes private rental housing, co-operative housing, social housing, supportive or assisted housing, and condos.
• When entering into a contract with others. This includes the offer, acceptance, price or even rejecting a contract (section 3)
• In employment (section 5). Employment includes full-time and part-time work, volunteer work, student internships, special employment programs, probationary employment,^[61] and temporary or contract work.
• When joining or belonging to a union, professional association or other vocational association. This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, etc. (section 6).

Section 9 of the Code prohibits both direct and indirect discrimination. Section 11 states that discrimination includes constructive or adverse effect discrimination, where a requirement, policy, standard, qualification, rule or factor that appears neutral excludes or disadvantages a group protected under the Code.^[62]

People with disabilities are also covered by the Code under section 8 if they experience reprisal or are threatened with reprisal for trying to exercise their human rights.^[63]

People are also protected from discrimination based on their association with someone with a disability (Section 12). This could apply to friends, family or others – for example, someone advocating on behalf of someone with a disability.^[64]

A fundamental aspect of the Code is that it has primacy over all other provincial laws in Ontario, unless the law specifically states that it operates notwithstanding the Code. This means that where a law conflicts with the Code, the Code will prevail, unless the law says otherwise (section 47).^[65]

3.1.2 Defences and exceptions

The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. An organization that wishes to rely on these defences and exceptions must show it meets all of the requirements of the relevant section.

Where discrimination results from requirements, qualifications or factors that may appear neutral, but that have an adverse effect on people identified by Code grounds, section 11 allows the person or organization responsible to show that the requirement, qualification or factor is reasonable and bona fide. They must also show that the needs of the person or group affected cannot be accommodated without undue hardship.^[66]

Section 14 of the Code protects “special programs” that are designed to address the historical disadvantage experienced by people identified by the Code. As a result, it is likely not discriminatory to implement programs designed specifically to assist people with disabilities, as long as an organization can show that the program is:

• designed to relieve hardship or economic disadvantage
• designed to help the disadvantaged group to achieve or try to achieve equal opportunity, or
• likely to help eliminate discrimination.

Section 17 sets out the duty to accommodate people with disabilities. It is not discriminatory to refuse a service, housing or a job because the person is incapable of fulfilling the essential requirements. However, a person will only be considered incapable if their disability-related needs cannot be accommodated without undue hardship.

Under section 18 of the Code, organizations such as charities, schools, social clubs, sororities or fraternities that want to limit their right of membership and involvement to people with disabilities can do this on the condition that they serve mostly people from this group.

Example: Clients of a community centre set up a club that provides social, networking and education opportunities for youth with disabilities. They may restrict their membership to people of this group under section 18 of the Code.

Section 24(1)(a) states that a religious, philanthropic, educational, fraternal or social institution or organization that mostly serves the interests of people identified by certain Code grounds can give hiring preference to people from that group, as long as the qualification is reasonable and legitimate (bona fide), given the nature of the employment.

The Code also prohibits insurance services and employment benefit plans that discriminate based on disability, unless they meet the exceptions set out in sections 22 and 25.^[67]

3.2 Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (Charter) guarantees people’s civil, political and equality rights in the policies, practices and legislation of all levels of government. Certain rights may apply particularly to people with disabilities in certain circumstances, due to legislation and policies that focus on these groups. Human rights legislation in Canada is subject to and must be considered in light of the Charter.^[68]

Section 15 guarantees the right to equal protection under the law and equal benefit of the law, without discrimination based on disability, among other grounds.

Example: A woman with a vision disability was unable to access various federal government websites using screen reading technology, and was therefore unable to apply for jobs and access government information. The Federal Court of Appeal ruled that the inaccessibility of these websites violated the woman’s equality rights under section 15 of the Canadian Charter of Rights and Freedoms.^[69]

The equality rights guarantee in section 15 of the Charter is similar to the purpose of the Code. Governments must not infringe Charter rights unless violations can be justified under section 1, which considers whether the Charter violation is reasonable in the circumstances.

3.3 Accessibility for Ontarians with Disabilities Act

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA)^[70] aims to address the right to equal opportunity and inclusion for people with disabilities. The AODA's goal is to make Ontario fully accessible by 2025. It introduces a series of standards (customer service, transportation, built environment, employment and information and communications) that public and private organizations must implement within certain timelines.

The AODA is an important piece of legislation for improving accessibility in the lives of people with disabilities. It complements the Ontario Human Rights Code, which has primacy over the AODA. The development and implementation of standards under the AODA must have regard for the Code, related human rights principles, and case law.^[71] Compliance with the AODA does not necessarily mean compliance with the Code. Responsible organizations must follow both. For example, even where an organization meets all of its obligations under the AODA, it will still be responsible for making sure that discrimination and harassment based on disability do not take place in its operations, that it responds to individual accommodation requests, etc.

3.4 Convention on the Rights of Persons with Disabilities

In 2010, Canada ratified the United Nations’ Convention on the Rights of Persons with Disabilities, (CRPD), an international treaty designed to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”^[72]

The CRPD moves away from considering people with disabilities as recipients of charity towards being holders of rights. It emphasizes non-discrimination, legal equality and inclusion. Countries that have ratified or signed their acceptance to the CRPD are known as “States Parties.”

International treaties and conventions are not part of Canadian law unless they have been implemented through legislation.^[73] However, the Supreme Court of Canada has stated that international law helps give meaning and context to Canadian law. The Court said that domestic law (which includes the Code and the Charter) should be interpreted to be consistent with Canada’s international commitments.^[74]

The CRPD is an important human rights tool that puts positive obligations on Canada to make sure that people with disabilities have equal opportunity in all areas of life. To meet the obligations under the CRPD, Canada and Ontario should make sure that adequate and appropriate community supports and accommodations are in place to allow for equal opportunities for people with disabilities, and should evaluate legislation, standards, programs and practices to make sure rights are respected.

The CRPD includes rights to:

• equality and non-discrimination (Article 5)
• accessibility (Article 9)
• equal recognition before the law (Article 12)
• access to justice (Article 13)
• liberty and security of the person (Article 14)
• the protection of the integrity of the person (Article 17)
• live independently and be included in the community (Article 19)
• accessible information (Article 21)
• privacy (Article 22)
• education (Article 24)
• health, habilitation and rehabilitation (Articles 25 and 26)
• work and employment (Article 27)
• an adequate standard of living and social protection (Article 28)
• participation in political and public life (Article 29)
• participation in cultural life, recreation, leisure and sport (Article 30).

Canada has not signed the Optional Protocol of the CRPD, which means that people cannot complain directly to the UN Committee on the Rights of Persons with Disabilities. However, there are reporting requirements for the CRPD. The Canadian Association of Statutory Human Rights Agencies (CASHRA) has called on all levels of government to fulfill their obligations.^[75] This includes consulting and involving people with disabilities and representative organizations to monitor the CRPD’s implementation, identifying initiatives and developing plans to show how they will address CRPD rights and obligations.