4.1 Mental health disability
Defining disability is a complex, evolving matter.[26] Section 10(1) of the Code provides a broad definition of disability, which covers mental health disabilities under subsection (b) a “condition of mental impairment” and (d) “mental disorder.” Past and perceived disabilities are also protected. The Code does not list all the conditions that could be considered a disability. It is a principle of human rights law that the Code be given a broad, purposive and contextual interpretation to advance the goal of eliminating discrimination. Because of this, the OHRC takes an expansive and flexible approach to defining psychiatric disabilities and addictions that are protected by the Code.
It is not possible or appropriate to provide an exhaustive list of mental health or addiction disabilities in this policy. Many impairments have been recognized as disabilities under the Code, including anxiety, panic attacks, depression, schizophrenia, alcohol dependence, and addictions to illegal drugs. Human rights law is constantly developing, and certain conditions, characteristics or experiences that are disputed as disabilities today may come to be commonly accepted due to changes in the law reflecting medical, social or ideological advancements.
The United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) recognizes that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”[27] The definition includes, but is not limited to, people who have “mental impairments.”[28]
This approach, often called the “social approach” to disability, is also reflected in Supreme Court of Canada decisions. In a landmark human rights case, the Court used an equality-based framework of disability that took into account evolving biomedical, social and technological developments, and emphasized human dignity, respect and the right to equality. The Court made it clear that disability must be interpreted to include its subjective component, as discrimination may be based as much on perceptions, myths and stereotypes, as on the existence of actual functional limitations. The Court said:
…[A] “handicap” may be the result of a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of all these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a “handicap” for the purposes of the Charter.[29]
The focus should be on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or mental health status, the presence of an ailment, or the cause or origin of the disability.
Disabilities may be temporary, sporadic or permanent.[30] In many cases, they may not be visible to the average onlooker. People’s experience of disability may result from bodily or mental impairments, or from limitations arising from impairments that affect people’s ability to function in certain areas of living. From a functional or medical perspective, for example, mental health disabilities or addictions may be characterized by “alterations in thinking, mood or behaviour – or some combination thereof – associated with significant distress and impaired functioning.”[31] However, people may not experience any limitations even when they have a medical diagnosis or experience impairment.[32]
Disabilities are also socially constructed.[33] Attitudes of society and its members often contribute to the idea or perception of a mental health or addiction disability; people may be treated as having a disability due to whatever impairment or limitation is perceived to exist. Some disabilities may actually result from the barriers that exist in society, such as attitudinal barriers like stigma or stereotypes, or the social, economic or cultural disadvantages resulting from discrimination and exclusion.[34]
Example: A human rights tribunal found that a person with multiple physical disabilities was discriminated against when she was denied a first floor apartment that would have accommodated her. Her physical disability prevented her from cleaning and maintaining her apartment. Her landlord assumed that this was due to mental health issues and that the building was not appropriate for her because of her physical and perceived mental health issues. He thought that she should instead live in a long-term care home. The Human Rights Tribunal of Ontario (HRTO) rejected this assumption and said that the landlord imposed a “socially constructed” disability on her.[35]
A psychiatric or addiction disability may also be the result of combinations of impairments and environmental barriers, such as attitudinal barriers, inaccessible information, inaccessible communication or other barriers that affect people’s full participation in society.
Example: A person with a severe mental health issue who was homeless applied for supportive housing and went for an assessment. The application form was very technical and long. Due to factors relating to his disability and social situation, he didn’t understand and couldn’t answer the many questions. Because of this, the housing provider denied the housing, instead of offering to help him answer the questions. In this case, barriers in communication and lack of accommodation contributed to his experience of disability.
Human rights decision-makers and organizations should consider how people with mental health issues or addictions subjectively define their own experiences and related needs, as part of understanding someone’s disability for the purposes of the Code.[36] At the same time, when determining if someone has had their rights violated under the Code, a human rights decision-maker may find it reasonable for an employer, service or housing provider to seek out some objective information about the person’s disability or related needs. This could include information about their disability and limitations from a third party, such as a medical professional.
4.2 Addiction
Drug and alcohol addictions are disabilities under the Code.[37] There is often significant cross-over between addictions and mental health issues, with many people experiencing both.[38] People with addiction disabilities have the same right to be free from discrimination as other people under the Code.
People with addictions may face unique experiences of marginalization and disadvantage. These may be due to extreme stigma, lack of societal understanding, stereotyping and criminalization of their addictions – for example, where these involve illegal substances. The Ontario Appeal Court has endorsed the view that:
Addiction is a disability that carries with it great social stigma and that this stigmatization is compounded where an addicted person is also part of another stigmatized group, such as those on social assistance.[39]
From a medical perspective, an addiction may be defined as:
A primary, chronic disease, characterized by impaired control over the use of a psychoactive substance and/or behaviour. Clinically, the manifestations occur along biological, psychological, sociological and spiritual dimensions. Common features are change in mood, relief from negative emotions, provision of pleasure, pre-occupation with the use of substance(s) or ritualistic behaviour(s); and continued use of the substance(s) and/or engagement in behaviour(s) despite adverse physical, psychological and/or social consequences. Like other chronic diseases, it can be progressive, relapsing and fatal.[40]
Alcohol or drug addictions are well-recognized as disabilities within the meaning of human rights legislation.[41] Casual (or recreational) use of substances is not defined as a disability unless people are treated adversely because they are perceived to have addictions, or be “substance abusers.”[42]
Some addictive behaviours are disputed as to whether they are “disabilities” protected by human rights law, or there is very little case law about them (for example, nicotine addiction/dependence, and problem or pathological gambling[43]). Disputes appear to be based on whether people can voluntarily overcome their addiction, and whether the person is subjected to stereotyping or is part of a group suffering disadvantage in society.[44] There is also debate about how best to accommodate certain addictions, particularly if engaging in the addiction causes a risk of harm to the person or to others.[45]
[26] Mental health and addiction issues have been defined differently depending on people’s subjective experiences, different legislation, programs and services, the historical, social and political context, and on the theoretical model used.
[27] From the Preamble to the United Nations’ Convention on the Rights of Persons with Disabilities, (2006), 13 December 2006, U.N.T.S. vol. 2515, p.3 [CRPD], (entered into force 3 May 2008, accession by Canada 11 March 2010). Available online at: www.un.org/disabilities/documents/convention/convention_accessible_pdf.pdf
[28] See Article 1 of the CRPD, ibid.
[29] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 at para. 79 [“Mercier”].
[30] The tribunal in Wali v. Jace Holdings Ltd., 2012 BCHRT 389 (CanLII) stated at para. 82: “It is not necessary that a disability be permanent in order to constitute a disability for the purposes of the Code. The Code's protection also extends to persons who suffer from temporarily disabling medical conditions: Goode v. Interior Health Authority, 2010 BCHRT 95 (CanLII). Whether a temporary condition constitutes a disability is a question of fact in each case.”
[31] These are defined as “mental illnesses” in The Human Face of Mental Health and Mental Illness in Canada, Government of Canada, 2006, at page 2, available online at: www.phac-aspc.gc.ca/publicat/human humain06/pdf/human_face_e.pdf.
[32] In Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, a case that involved a challenge to the Canada Pension Plan disability pension which arose under s. 15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada rejected a notion of disability which would focus on impairment or functional limitation. The Court said (at para. 29):
The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called 'disabled' individual may not be impaired or limited in any way at all.
[33] Social constructs are the product of social processes that seek to create differences between groups. These social processes may be based on real characteristics, or perceptions of difference. These can have the effect of marginalizing some in society. For example, characteristics of human nature that have been thought to deviate from the “norm” and have been assigned inferior value have sometimes been labelled by society as “mental disabilities” or “mental illnesses” depending on the social and political context. For example, in North America, being gay, lesbian or bisexual was considered a mental illness until it was delisted from the compendium of mental illnesses, the Diagnostic and Statistical Manual of Mental Disorders (DSM), in the 1970s.
[34] In Granovsky v. Canada (Minister of Employment and Immigration), supra, note 32, the Supreme Court of Canada recognized that the primary focus of the disability analysis in the Charter context is on the inappropriate legislative or administrative response (or lack thereof) of the State (at para. 39). The Court said (at para. 33):
Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfillment in a world relentlessly oriented to the able-bodied. [Emphasis added.]
Although in Granovsky the focus was on State action, similar principles apply to organizations responsible for accommodation under human rights law: Office for Disability Issues, Human Resources Development Canada, Government of Canada, Defining Disability: A complex issue, Her Majesty the Queen in Right of Canada, 2003 at p. 39.
[35] Devoe v. Haran, 2012 HRTO 1507 (CanLII).
[36] See, for example, Dawson v. Canada Post Corp. [2008] C.H.R.D. No. 41 at paras. 90-98 (QL).
[37] Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (Ont. C.A.).
[38] A large US epidemiological study found that 37% of people with an alcohol disorder had at least one mental disorder and 21.5% had another drug dependence disorder. For people with a lifetime history of drug abuse dependence, 53.1% also had a mental disorder: Darrel A. Regier, et al., “Comorbidity of Mental Disorders with Alcohol and Other Drug Abuse: Results From the Epidemiologic Catchment Area (ECA) Study,” (1990) 264:19 J.A.M.A. 2511.
[39] Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 126 (CanLII).
[40] This definition was developed by the Canadian Society of Addiction Medicine and used by the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (CanLII), [2011] 3 SCR 134 at para. 101. The medical literature differentiates between substance abuse and substance dependence. Substance dependence is recognized as generally more severe, as the criteria involve tolerance, withdrawal or a pattern of compulsive or uncontrolled use.
[41] In Entrop v. Imperial Oil, supra, note 37 at para. 89, the Ontario Court of Appeal accepted the finding of a Board of Inquiry that drug abuse and alcohol abuse are "each a handicap" [now referred to as “disability”] and that each is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning." The Court also accepted that drug dependence and alcohol dependence are each “handicaps” entitled to protection under the Code.
See also Mainland Sawmills v. Industrial Wood and Allied Workers of Canada, Local 2171 (Kandola Grievance), [2002] B.C.C.A.A.A. No. 69 at para. 69 (QL), in which it was found that “alcohol and drug addiction are illnesses and are physical and mental disabilities for the purposes of the Human Rights Code. There are no reasons to consider them any less an illness or disability than any other serious affliction.”
[42] Entrop v. Imperial Oil Limited, ibid. at para. 92; Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., 2007 ABCA 426 (CanLII); Chornyj v. Weyerhaeuser Company Limited, 2007 CanLII 65618 (ON SCDC).
[43] The issue of whether or not a gambling addiction is a disability has not been determined by the Human Rights Tribunal of Ontario. See Mustafa v. Mississauga (City), 2010 HRTO 2477 (CanLII) and Sterling v. City of London, Community Services, 2013 HRTO 1360 (CanLII) for two cases where the issue was raised, but did not need to be decided by the HRTO.
[44] The case law on whether nicotine addiction constitutes a disability is still inconclusive. In McNeill v. Ontario Ministry of the Solicitor General and Correctional Services, [1998] O.J. No. 2288 (Ont. Ct. J. – Gen Div.), the Ontario Court of Justice dismissed a Charter challenge to a smoking ban in a detention centre because it ruled that smokers did not have a “mental or physical disability”:
Addiction to nicotine is a temporary condition which many people voluntarily overcome, albeit with varying degrees of difficulty related to the strength of their will to discontinue smoking. It can hardly be compared with the disability of deafness under review in Eldridge. Smokers are not part of a group “suffering social, political and legal disadvantage in our society” [para 32].
In Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62 (QL), addiction to nicotine was determined to be a disability in part based on scientific evidence introduced that showed how the claimant’s functioning was impaired. In Club Pro Adult Entertainment Inc. v. Ontario (Attorney General), 2006 CanLII 42254 (Ont. Sup. Ct.), a Charter challenge to the Smoke-Free Ontario Act failed. The Court found that although it was not “plain and obvious that smoking is not a disability within the meaning of s. 15(1) of the Charter,” it was “plain and obvious that the plaintiffs cannot succeed. The ability to smoke in indoor public places is not an interest that engages human dignity as contemplated by s. 15.” People who smoke were not found to be a group that has suffered pre-existing disadvantage, stereotyping or prejudice (see paras. 222 and 228).
[45] See the section on “Undue hardship” for more detail.