The OHRC’s previous work on disability has addressed discrimination against persons with mental disabilities and/or addictions. The OHRC’s Policy and guidelines on disability and the duty to accommodate (Disability Policy)[16] recognizes that people with mental disabilities face a high degree of stigmatization and significant barriers to employment opportunities. The present policy builds on the principles of the Disability Policy and other OHRC policies, and applies the same principles to scenarios involving people with mental health issues and/or addictions.[17]
Participants in the OHRC’s mental health consultation described how people with psychosocial disabilities face many barriers that prevent equal opportunity and equitable treatment in rental housing, employment, and many different types of services. The OHRC heard that practical guidance is needed to help people with psychosocial disabilities understand their rights, and to help organizations understand how to meet their responsibilities under the Code to respect these rights.
Based on this input, this policy was developed to provide more information to individuals, employers, housing providers, service providers, government and others to address:
- people’s rights under the Code at work, in rental housing, and when receiving services
- how the duty to accommodate applies to people with mental health or addiction disabilities
- how to balance the right of someone with a mental health issue or addiction to be free from discrimination where this may conflict with the rights of others
- people’s rights to be free from discrimination within programs that are targeted to people with psychosocial disabilities
- how consent and capacity issues may relate to people’s rights under the Code
- organizations’ responsibilities to prevent and eliminate discrimination, and how they can create environments that are inclusive and free from discrimination.
The OHRC chose to focus on mental health and addictions as a subset of disability because of the unique issues that people from these groups face. For example, people often face specific stereotypes based on perceptions that they pose a risk and that they are responsible for their disabilities.[18] People are subject to unique laws that may restrict their rights and freedoms if they experience difficulty with decision-making ability or they are deemed to require psychiatric institutionalization. People with psychosocial disabilities are disproportionately represented among people with low incomes.[19] Because of these and other factors, people may experience particular social disadvantage and significant barriers in housing, employment and services.
At the same time, the information in this policy may apply to discrimination based on other types of disabilities (including learning disabilities, cognitive disabilities, intellectual disabilities and sensory disabilities). It can also be useful where these disabilities and other Code grounds (such as sex, race and gender identity) overlap with mental health disabilities or addictions.[20]
Section 30 of the Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code. They are important because they represent the OHRC’s interpretation of the Code at the time of publication.[21] Also, they advance a progressive understanding of the rights set out in the Code.
Section 45.5 of the Code states that the Human Rights Tribunal of Ontario (HRTO) may consider policies approved by the OHRC in a human rights proceeding before the HRTO. Where a party or an intervenor in a proceeding requests it, the HRTO shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and intervenors are encouraged to bring the policy to the HRTO’s attention for consideration.
Section 45.6 of the Code states that if a final decision or order of the HRTO is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervenor, the OHRC may apply to the HRTO to have the HRTO state a case to the Divisional Court to address this inconsistency.
OHRC policies are subject to decisions of the Superior Courts interpreting the Code. OHRC policies have been given great deference by the courts and the HRTO,[22] applied to the facts of the case before the court or the HRTO, and quoted in the decisions of these bodies.[23]
[16] Ontario Human Rights Commission, Policy and guidelines on disability and the duty to accommodate, available online at: www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate.
[17] This policy does not directly address issues around drug and alcohol testing. For more information about the human rights implications of drug and alcohol testing, see Ontario Human Rights Commission, Policy on drug and alcohol testing, available online at: www.ohrc.on.ca/en/policy-drug-and-alcohol-testing.
[18] According to a 2008 Ipsos Reid poll of over 1,000 Canadians, almost half (46%) of respondents felt that the term “mental illness” is used as an excuse for bad behaviour: see CMA, 8th Annual National Report Card on Health Care (2008), supra, note 7 at 4; The Stigma of Substance Abuse: A Review of the Literature, supra, note 4; Canadian Mental Health Association, Ontario, Violence and Mental Health: Unpacking a Complex Issue: A Discussion Paper (September 2011), available online at: www.ontario.cmha.ca/backgrounders.asp?cID=1081747.
[19] Statistics Canada data from its 2006 Participation and Activity Limitation Survey (PALS) shows that 26.8% of people in Ontario who self-identified as having “emotional” disabilities live with low incomes compared to people with other types of disabilities (10.0%). “Emotional disabilities” are defined as emotional, psychological or psychiatric conditions that have lasted, or were expected to last, six months or more. These include phobias, depression, schizophrenia, drinking or drug problems and others. “Low income” is defined as a “member of low income economic family or low income unattached individual (after tax).” The survey is available online at: www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=89-628-X&CHROPG=1&lang=eng.
[20] See the section on “Intersecting grounds” for more detail.
[21] Note that case law developments, legislative amendments, and/or changes in the OHRC’s own policy positions that take place after a document’s publication date will not be reflected in that document. For more information, please contact the OHRC.
[22] In Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 at para. 53 (Ont. Bd. Inq.), the Tribunal applied the United States Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (4th Cir. 1971) to conclude that OHRC policy statements should be given “great deference” if they are consistent with Code values and are formed in a way that is consistent with the legislative history of the Code itself. This latter requirement was interpreted to mean that they were formed through a process of public consultation.
[23] For example, the Ontario Superior Court of Justice quoted at length excerpts from the OHRC’s published policy work in the area of mandatory retirement and stated that the OHRC’s efforts led to a “sea change” in the attitude to mandatory retirement in Ontario. The OHRC’s policy work on mandatory retirement heightened public awareness of this issue and was at least partially responsible for the Ontario government’s decision to pass legislation amending the Code to prohibit age discrimination in employment after age 65, subject to limited exceptions. This amendment, which became effective December 2006, made mandatory retirement policies illegal for most employers in Ontario: Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General) (2008), 92 O.R. (3d) 16 at para. 45 (Sup.Ct.). See also Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (CanLII) and Eagleson Co-Operative Homes, Inc. v. Théberge, 2006 CanLII 29987 (Ont. Div. Ct.) in which both the HRTO and the Divisional Court applied the OHRC’s Policy and guidelines on disability and the duty to accommodate, supra, note 16.