The OHRC has addressed the issue of discrimination based on mental health disabilities in its past and current work. The following is a brief summary of the key initiatives that the OHRC has undertaken to date:
Past Caseload
Prior to July 2008,[5] the OHRC received, mediated and investigated multiple complaints involving mental health disabilities and addictions. An analysis of a sample of 70 cases investigated between 2000 and 2008 revealed that most people alleging discrimination based on a mental health disability complained about actions taken by their employers.
Human rights and mental health case law
The OHRC was a party or intervened in several significant cases heard at the Human Rights Tribunal of Ontario (Tribunal) or in higher courts. Recently, in ADGA Group Consultants v. Lane, the Ontario Divisional Court re-affirmed an employer’s duty to accommodate an employee with a mental illness.[6] The Court upheld a Tribunal decision that the complainant was discriminated against based on his bi-polar disorder when his employer failed to accommodate him and terminated his employment.
In Entrop vs. Imperial Oil Ltd.,[7] the Tribunal and the Ontario Court of Appeal confirmed that alcoholism was a disability. In addition, it was confirmed that the company’s drug and alcohol testing policy was discriminatory, and that requiring employees to disclose an ongoing or previous substance abuse problem constitutes direct discrimination under the Code. A recent Ontario Court of Appeal decision affirms that random testing of employees for drug and alcohol impairment, absent reasonable cause, is a violation of employees’ rights to privacy and intrudes on their dignity.[8]
Current active cases
Notable active cases at the Tribunal that involve the OHRC as a party include an application about the restrictive nature of the special diet allowance under the Ontario Disability Support Program, which affects people with mental health disabilities, and one regarding a police service’s unequal treatment of someone with a mental illness.
Police Mental Health Record Checks
In 2008, the OHRC initiated a consultation regarding police records of apprehensions of individuals under the Mental Health Act. When apprehensions are recorded on police records and provided to employment or volunteer agencies as part of a background check, it can seriously undermine both the privacy and the ability of people with mental health disabilities to access meaningful work opportunities. The OHRC will be continuing its work on this issue by developing a policy on mental health and police record checks.
Housing
The OHRC has identified the lack of affordable housing for people with mental health issues as a serious concern. In its consultation report, Right At Home, the OHRC made recommendations to government and others to increase supportive housing opportunities. The OHRC has also released its housing policy, the Policy on Human Rights and Rental Housing, which outlines the steps that housing providers should take to ensure that they do not discriminate against people with mental health disabilities. It contains a section on discriminatory opposition to affordable housing (“Not-in-my-backyard” or “NIMBYism”), which negatively impacts people with mental health disabilities.
The OHRC has been actively working with municipalities and the Ministry of Municipal Affairs and Housing to provide education to challenge NIMBYism. The OHRC has intervened in legal cases that challenge practices or municipal by-laws that have the potential to exclude people with mental health disabilities from living in the neighbourhood of their choice.
Employment
As noted above, the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate outlines the responsibilities of employers to accommodate the needs of people with mental health disabilities and addictions. In addition, the OHRC’s guide for employers, Human Rights at Work, provides practical guidance to employers with respect to employees who may have or may develop mental health disabilities or addictions.
Public Education
The OHRC has been actively commenting on human rights concerns as they affect people with mental health issues, particularly in areas that intersect with its current work. Recent concerns were raised, for example, about jury selection and police mental health record checks, and proposals to keep supportive housing for people with mental health disabilities out of particular neighbourhoods. The OHRC has also been involved in raising awareness about human rights in the two provincial mental health consultations conducted by the legislature’s Select Committee on Mental Health and Addictions and the Minister of Health and Long-Term Care’s Advisory Group on Mental Health and Addictions.
[5] Amendments to the Human Rights Code, which took effect on June 30 2008, created three pillars in the human rights system. After the enactment of the Human Rights Code Amendment Act, 2006, the OHRC no longer accepted human rights complaints. All new applications complaining about discrimination are now filed directly with the Human Rights Tribunal of Ontario. The OHRC became more focused on proactive measures to prevent and address discrimination using its functions of public education, policy development, research and analysis, inquiry powers, and legal intervention. The Human Rights Legal Support Centre was also created to provide assistance for applicants in the system.
[6] ADGA Group Consultants Inc. v. Lane. (2008), CanLII 39605 (ON S.C.D.C.)
[7] Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3rd) 18 (C.A.)
[8] Imperial Oil v. Communications, Energy & Paperworkers Union of Canada, Local 900. (2009), (ON.C.A. 420)