[2] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey, 2006: Analytical Report (Ottawa: Minister of Industry, 2007) at page 11 and following.
[3] R.S.O. 1990, c. H.19.
[4] O. Reg. 350/06, Section 3.8, Barrier-Free Design.
[5] For example, in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada ruled that the failure to provide sign language interpretation to Deaf patients seeking hospital services violated equality rights under the Charter of Rights and Freedoms. In Battlefords District Cooperatives v. Gibbs, [1996] 3 S.C.R. 566, the Supreme Court of Canada ruled that employer-sponsored benefit programs that provided lesser benefits to persons with mental disabilities than to persons with physical disabilities violated human rights laws. Recently, the Human Rights Tribunal of Ontario required the Toronto Transit Commission to provide stop announcements on both subway and bus services, in order to accommodate the needs of visually impaired passengers (Lepofsky v. Toronto Transit Commission, 2005 HRTO 36; 2007 HRTO 23).
[6] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
[7] Developmental Disabilities Act, 2008, S.O. 2008, c. 14, not yet proclaimed in force.
[8] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106.
[9] According to the PALS 2006 survey data, approximately one-quarter of Ontario parents of children with a disability indicated that their children were not receiving the necessary special education supports. Parents of children with unmet accommodation needs were significantly more likely to report that their child was struggling academically. See Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey, 2006: A Profile of Education for Children with Disabilities in Canada (Ottawa: Minister of Industry, 2007) at pages 14 and 22.
[10] PALS 2006 data indicated that 51 per cent of Canadians with disabilities were employed at the time of the survey, as compared to 75 per cent of their non-disabled peers. Labour force participation for persons with disabilities is lower across all age groups. Persons with disabilities were also more likely to be employed in part-time or precarious work. See Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey, 2006: Labour Force Experience of Persons with Disabilities in Canada (Ottawa: Minister of Industry, 2007)
[11] The average income for an Ontarian with a disability in 2006, based on PALS data, was $25,304, as compared to $38,358 for an Ontarian without a disability: Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey, 2006: Tables (Part V) (Ottawa: Minister of Industry, 2007) at Table 1.3.
[12] Statistics Canada, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems, 2004 (Ottawa: Minister of Industry, 2009) at pages 8, 10. Persons with activity limitations also tend to be less satisfied with police responses, feel less secure, and have a less favourable perception of the criminal justice system than those without such limitations.
[13] See R. v. Kapp, 2008 SCC 41, for the Supreme Court of Canada’s most recent restatement of the section 15(1) test, and an important decision regarding the interpretation of section 15(2), in the context of the federal government’s Aboriginal Fisheries Strategy. The Court ruled that a distinction in a government program based on an enumerated or analogous ground will not constitute discrimination if it has an ameliorative or remedial purpose (although this need not be its sole purpose), and it targets a disadvantaged group identified by enumerated or analogous grounds. The legislative goal of a program will by the paramount consideration in determining whether it falls within the ambit of section 15(2).
[14] The most important of these cases was Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, which affirmed the duty of hospitals to provide Deaf patients with sign language interpretation, in order to ensure equal access to public services.
[15] R.S.O. 1990, c. H.19.
[16] Section 29 of the Code gives the Ontario Human Rights Commission broad powers to promote and advance human rights and to promote the elimination of discriminatory practices by, for example, developing policies and public education campaigns, undertaking enquiries, directing and encouraging research, and reviewing policies, programs and statutes. Part IV of the Code sets out the mechanism whereby applications may be brought to the Human Rights Tribunal of Ontario regarding allegations of discriminatory treatment.
[17] Statistics regarding human rights complaints from 1999 – 2008 can be accessed through the Annual Reports of the Ontario Human Rights Commission, available online at http://www.ohrc.on.ca/en/resources/annualreports.
[18] Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32.
[19] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
[20] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B.
[21] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.
[22] R.S.O. 1990, c. E.2, s. 8(3).
[23] R.R.O. 1990, Reg. 581.
[24] Retail Sales Tax Act, R.S.O. 1990, c. R.31, s.7(1), R.R.O. 1990, Reg. 1012, s. 2(3).
[25] Ontario Disability Support Program Act, 1997, O. Reg. 222/98
[26] Child and Family Services Act, R.S.O. 1990, c. C.11.
[27] Day Nurseries Act, R.R.O., 1990, Reg. 262.
[28] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, O. Reg. 224/98 Assistance for Children with Severe Disabilities.
[29] R.S.O. 1990, c. L.8, s. 40.
[30] R.R.O. 1990, Reg. 194, Rules of Civil Procedure, Rule 7.
[31] R.S.O. 1990, c. E.23, s. 14.
[32] Marriage Act, R.S.O. 1990, c. M.3, s.7.
[33] S.O. 1996, c. 2, Schedule A.
[34] S.O. 1992, c. 30.
[35] R.S.O. 1990. c.M.7.
[36] See, for example, the discussion in C. Barnes, G. Mercer and T. Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) at pp. 17-18.
[37] There is a significant body of work on the diversity of cultural attitudes to disability. An influential starting point is B. Ingstad and S. Whyte, eds. Disability and Culture (Berkeley: University of California Press, 1995).
[38] Consumer Protection Act, 2002¸S.O. 2002, c. 30, Sched. A, s. 15(1).
[39] Election Act, R.S.O. 1990, c. E.6, s. 24(1.1).
[40] Building Code Act, 1992, O. Reg. 350/06, s. 2.2.1.1.
[41] Charitable Institutions Act, R.S.O. 1990, c. C.9, s. 9.11(9).
[42] As a result, the Ontario Courts have issued a series of decisions reminding the Social Benefits Tribunal that the term “persons with disabilities” must be interpreted in a purposive manner, consistent with the aims of the statute: see, for example, Ontario (Director of Disability Support Program) v. Gallier, 2000 CarswellOnt 4559, [2000] O.J. No. 4541 (Ont. Div. Ct. Nov 09, 2000); Gray v. Ontario Director of Disability Support Program) 212 D.L.R. (4th) 353, 158 O.A.C. 244 (Ont. C.A. Apr 25, 2002); Sandiford v. Ontario Director of Disability Support Program) 195 O.A.C. 143 (Ont. Div. Ct. Jan 21, 2005).
[43] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.
[44] The decision of the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 is discussed at greater length in section IV.E.3.Shortly after that decision, the Federal Court of Appeal took a rather different approach when interpreting the term “disability” under s. 42(2) of the Canada Pension Plan in Villani v. Canada (Attorney General) [2001] F.C.J. No. 1217 (FCA). That definition requires that a disability be “severe and prolonged”. The Court emphasized that, given its remedial purpose, the legislation must be given a large and purposive interpretation. While the real life impact of a medical condition, including the applicant’s education, employment experience and ability to carry out the activities of everyday life must be considered, so must also medical evidence and evidence of employment efforts and probabilities.
[45] Ontario Human Rights Commission, The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities (Toronto: Ontario Human Rights Commission, 2003) at page 35. Available online at http://www.ohrc.on.ca/en/resources/discussion_consultation/ ConsultEduDisablty2.
[46] Available online at www.socialunion.gc.ca/pwd/union/unison_e.html.
[47] Human Resources Development Canada, Advancing the Inclusion of Persons with Disabilities (Ottawa: December 2002).
[48] Human Resources Development Canada, Defining Disability: A Complex Issue (Ottawa: 2003).
[49] Human Resources Development Canada, Defining Disability: A Complex Issue (Ottawa: 2003) at 44.
[50] When the federal government re-examined the approach to disability in federal legislation and programs, it categorized conceptual models into three perspectives: impairment, functional limitations, ecological and, as a subset within the ecological model, the human rights perspective. See Office for Disability Issues, Human Resources Development Canada, Defining Disability: A Complex Issue (Ottawa: Human Resources Development Canada, 2003). Statistics Canada adopted this categorization in analyzing definitions of disability for the purposes of developing a new approach for the PALS survey, but elevated the human rights model into a fourth perspective: Human Resources Development Canada, Disability in Canada: A 2001 Profile (Ottawa: Human Resources Development Canada, 2003) at page 42.
[51] The bio-medical model of disability has been exhaustively described and critiqued by disability theorists. A thorough and readable overview of the discussion may be found in C. Barnes and G. Mercer, Disability (Cambridge: Polity Press, 2003).
[52] For this reason, this model has sometimes been described as the “individual” or the “personal tragedy” model.
[53] Homes for the Aged and Rest Homes Act, R.S.O. 1990, c. H.13, s. 19.2(10).
[54] Day Nurseries Act, R.R.O. 1990, Reg. 262, s. 1.
[55] Information regarding the Kingston Access Bus service and its eligibility requirements may be found online at www.kingston.org/kas.
[56] O.Reg. 181/98, Identification and Placement of Exceptional Pupils, s. 15.
[57] Ontario Human Rights Commission, The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities (Toronto: Ontario Human Rights Commission, 2003) at 35. Also available online at http://www.ohrc.on.ca/en/resources/discussion_consultation/ ConsultEduDisablty2.
[58] See the discussion in C. Barnes, G. Mercer and T. Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) at page 56 and following. Also see J. Swain, S. French and C. Cameron, “Practice: Are Professionals Parasites?” in Controversial Issues in a Disabling Society Philadelphia: Open University Press, 2003) at pages 131- 140.
[59] For a recent overview, see M. Sears, The Medical Perspective on Environmental Sensitivities (Canadian Human Rights Commission: May 2007).
[60] For example, in a decision under Alberta’s human rights statute, the Alberta Court of Queen’s Bench determined that it was not necessary for the cause of the complainant’s sensitivity to scents and perfumes to be diagnosed in order for it to be determined that she had a disability: Brewer v. Fraser Miller Casgrain LLP [2006] A.J. No. 265 (Alta Q.B.).
[61] C. Wilkie and D. Baker, Accommodation for Environmental Sensitivities: A Legal Perspective (Canadian Human Rights Commission: May 2007) at pages 9-11, available online at http://www.chrc-ccdp.ca/pdf/legal_sensitivity_en.pdf.
[62] For example, in Macdonald v. SunLife Assurance Company [2006] I.L.R. I-4471 (P.E.I. Supreme Court – Appeal Division) a claim for disability benefits was dismissed on the basis of competing medical evidence as to whether the claimant met the diagnostic criteria for environmental sensitivities and the degree to which her recurrent symptoms impaired her ability to function. In Wachal v. Manitoba Pool Elevators, [2000] C.H.R.D. No. 4 (C.H.R.T.), a human rights complaint was dismissed because there was insufficient evidence to link the complainant’s disability with her absences.
[63] Concerns have been acknowledged by both the Ontario Human Rights Commission (Human Rights Issues In Insurance: Consultation Report, Toronto: 2001, at page 8) and Ontario’s Information and Privacy Commissioner (Annual Report, 2000).
[64] New York and New Jersey prohibits employment discrimination based on specific genetic traits, such as sickle cell anemia, Tay-Sachs or cystic fibrosis traits: New York Civil Rights Law, s. 48; New Jersey Civil Rights Law, s. 10. New Jersey also prohibits employers from refusing to hire, requiring to retire or dismissing an employee on the basis of that individual’s genetic information: New Jersey Civil Rights Law, s. 10. Texas prohibits employers from discharging or refusing to hire employees on the basis that the individual refuses to submit to genetic testing, and where the individual agrees to submit to genetic testing, the results cannot be the basis for discrimination: Texis Labor Code, s. 21.402.
[65] See D. Thable, “With Great Knowledge Comes Great Responsibilities: An Examination of Genetic Discrimination in Canada”, (2006) 14 Health Law Review No. 3, 22-31; S. Labman, “Genetic Prophecies: The Future of the Canadian Workplace”, (2004) 30 Manitoba Law Journal 227-247; T. Lemmens, “Genetics and Insurance Discrimination: Comparative Legislative, Regulatory and Policy Developments and Canadian Options”, (2003) Health Law Journal 41-86.
[66] D. Thable, “With Great Knowledge Comes Great Responsibilities: An Examination of Genetic Discrimination in Canada”, (2006) 14 Health Law Review No. 3, 22-31 at para. 8-14;
[67] T. Lemmens, “Genetics and Insurance Discrimination: Comparative Legislative, Regulatory and Policy Developments and Canadian Options”, (2003) Health Law Journal 41-86 at para.111.
[68] Available online at http://www.who.int/classifications/icf/en.
[69] For an overview of the criticisms of the ICIDH see C. Barnes, G. Mercer and T. Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) at pages 22-27.
[70] Highway Traffic Act, R.R.O. 1990, Reg. 581, s. 1.
[71] Not yet in force; replaces the Developmental Services Act, R.S.O. 1990, c. D.11.
[72] Education Act, R.S.O. 1990, c. E.2, s. 1.
[73] See Ministry of Education, Standards for School Board’s Special Education Plans (Ontario:2000), Appendix D, available online at www.edu.gov.on.ca/eng/general/elemsec/speced/ guide/resource/iepresguide.pdf
[74] Ontario Disability Support Program Act, 1997, O. Reg. 224/98.
[75] Day Nurseries Act, R.R.O. 1990, Reg. 262, s. 66.5(2).
[76] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B.
[77] For example, persons who are in receipt of ODSP benefits are eligible for a specific rent scale under the Social Housing Reform Act, 2000, O. Reg. 298/01, Table 5, and for subsidization of child care costs under the Day Nurseries Act, R.R.O. 1990, Reg. 262, s. 66.2. Receipt of ODSP also makes an individual a “qualifying employee” for the purposes of the workplace accessibility tax incentive under the Corporations Tax Act, R.S.O. 1990, c. C.40, s. 13.3.
[78] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, s. 4(1).
[79] Retail Sales Act, R.R.O. 1990, Reg. 1012, s. 10.
[80] Day Nurseries Act, R.R.O. 1990, Reg. 262, s. 1.
[81] Nielson v. Sandman Four Limited (1986), 7 C.H.R.R. D/3229.
[82] (1990) 12 C.H.R.R. D/19 (Ont. BOI). This decision is discussed at greater length at section IV.E.3.
[83] Woolworth Canada v. Human Rights Commission of Newfoundland (1995), 25 C.H.R.R. D/227, at 31.
[84] Clarke v. Country Garden Florists (1996), 26 C.H.R.R. D/24 (Nfld. Bd. Inq.).
[85] Bielecky v. Young, McNamara (1992), 20 C.H.R.R. D/215 (Ont. Bd. Inq.)
[86] Lloyd v. Ontario (Director, Disability Support Program), (1997) 223 O.A.C. 385 (Ont. Div.Crt).
[87] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, 4(1); Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6, 45.
[88] Mental Health Act, R.S.O. 1990, c. M.7, s. 20(1.1).
[89] Courts of Justice Act, RRO 1990, Reg. 194, s. 1.03.
[90] The primary case setting out the test for testamentary capacity is Banks v. Goodfellow (1870) LR. 5 Q.B. 549 (Eng. Q.B.).
[91] Section 7 of the Marriage Act, R.S.O. 1990, c. M.3, states that “No person shall issue a licence to or solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.”
[92] See, for example, Re McElroy, (1979), 22 O.R. (2d) 381 (Surr. Ct.), in which the deceased was found to have had capacity to marry, despite his lack of testamentary capacity. The Court found that the deceased at all times prior to and at the date of the marriage understood the duties and responsibilities which marriage created, and was mentally capable of understanding the contract he was entering into.
[93] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A , s. 4(2); Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 2.
[94] Originally, there was an intention to create a comprehensive system around capacity assessment that would include standards for assessors, peer review, quality assurance practices discipline procedures, a code of ethics, and continuing education. Due to a change of government, this was not implemented. The current training program for capacity assessors requires only a single day. See J. Wahl, “Capacity and Capacity Assessment in Ontario”, (May 2009), Paper prepared for the Canadian Bar Association’s 2009 Conference on Elder Law at pages 16-17.
[95] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106, Article 12.
[96] The Representation Agreement Act allows individuals to enter into representation agreements with support networks without first demonstrating that they meet the test for legal capacity. R.S.B.C. 1996, c. 405.
[97] This model is generally traced back to the 1976 manifesto of the British Union of the Physically Impaired Against Segregation (UPIAS), Fundamental Principles of Disability.
[98] The implications of this shift are considered in a Canadian context in J. Bickenbach, Physical Disability and Social Policy (Toronto: University of Toronto Press, 1993).
[99] For an overview of this critique, see T. Siebers, “Disability in Theory: From Social Constructionism to the New Realism of the Body” in L. Davis, ed., The Disability Studies Reader, 2nd ed. (Routledge: New York, 2007) at page 173 and following.
[100] C. Barnes and G. Mercer, Disability (Cambridge: Polity Press, 2003) at pages 69-70.
[101] See, for example, T. Shakespeare and N. Watson, “The Social Model of Disability: An Outdated Ideology?” in Research in Social Science and Disability, Vol. 2 (2001).
[102] There is extensive scholarship in the area of gender and disability, and growing bodies of literature in the areas of race, sexual orientation, and age and disability. An overview of the issues is provided by A. Vernon, “Multiple Oppression and the Disabled People’s Movement” in T. Shakespeare, ed., The Disability Reader: Social Science Perspectives (London: Continuum, 1998) at page 201.
[103] In a 1991 decision, an Ontario Board of Inquiry ruled that a complainant’s obesity was not a handicap within the meaning of the Ontario Human Rights Code, stating that obesity would only fall within the Code’s protections where it was caused by an illness, was an ongoing condition effectively beyond the individual’s control and limited or was perceived to limit that person’s abilities: Ontario (Human Rights Commission) v. Vogue Shoes (1991), 14 C.H.R.R. D/425. In Saskatchewan, the Court of Appeal found that obesity was not a disability within the protection of human rights statutes as it was not caused by a bodily injury, defect or illness: St. Paul Lutheran Home of Melville v. Davison (1993), 19 C.H.R.R. D/437. However, in British Columbia, a complainant who was denied employment because he was “too big and too heavy” was found to have been discriminated against on the basis of perceived disability: Rogal v. Dalgliesh (2000), 37 C.H.R.R. D/178 (BCHRT).
[104] McKay Panos v. Air Canada, Canadian Transportation Agency, Decision 646-AT-A-2001 (December 12, 2001); [2006] F.C.J. No. 28 (FCA).
[105] McKay-Panos v. Air Canada, see above, at para. 40.
[106] Cameron v. Nova Scotia (Attorney General), 172 N.S.R. (2d) 227 (N.S.S.C.).
[107] Cameron v. Nova Scotia (Attorney General), 172 N.S.R. (2d) 227 (N.S.S.C.), at para. 175
[108] Buffet v. Canadian Forces, [2006] C.H.R.D. No. 41, 58 C.H.R.R. D/435 (Sept. 2006) at 104.
[109] D. Gilbert and D. Majury, “Infertility and the Parameters of Discrimination Discourse”, in D. Pothier and R. Devlin eds., Critical Disability Theory: Essays in Philosophy, Politics, Policy and Law, (UBC Press: 2006).
[110] The scope, purposes and limits of the duty to accommodate in the context of disability themselves raise complex issues, which have been the subject of considerable caselaw and debate, and will be dealt with more fully in the LCO’s forthcoming Discussion Paper.
[111] For a comprehensive articulation of this approach, see the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (2000), available online at www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2.
[112] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106.
[113] R.S.O. 1990, c. H.19.
[114] (1990) 12 C.H.R.R. D/19 (Ont. BOI).
[115] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665..
[116] For the fiscal year 1999-2000, just prior to the implementation of the Policy and Guidelines on Disability and the Duty to Accommodate, the Ontario Human Rights Commission received 702 complaints citing the ground of disability, making up 37 per cent of the 1861 complaints received. In the fiscal year 2001-2002, the Commission received 1183 complaints citing disability as a ground, making up 49 per cent of complaints received. By the fiscal year 2006-2007, disability was cited in 56 per cent of all complaints filed. Statistics regarding human rights complaints from 1999 – 2008 can be accessed through the Annual Reports of the Ontario Human Rights Commission, available online at http://www.ohrc.on.ca/en/resources/annualreports.
[117] The landmark case in Ontario remains the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Limited [2000] (189 D.L.R. 4th) 14, (Ont. C.A.). In that case, Imperial Oil’s mandatory disclosure, testing and accommodation regime for persons with current or past addictions was found to violate the rights of persons with disabilities under the Ontario Human Rights Code. The Alberta courts have followed a different avenue, with a recent Court of Appeal decision upholding an employer’s pre-employment drug testing policy: Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., 289 D.L.R.(4th) 95, [2007] A.J. No. 1460.
[118] Ontario Human Rights Commission: Toronto, 2000, available online at http://www.ohrc.on.ca/en/resources/Policies/PolicyDrugAlch.
[119] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B..
[120] In Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14, the Supreme Court of Canada ruled that the Social Benefits Tribunal had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, and remitted to the Social Benefits Tribunal for a ruling on the applicability of s. 5(2) of the ODSPA. In Ontario (Director, Disability Support Program) v. Tranchemontagne, 2009 CanLii 18295 (Ont. S.C.J.), the Court upheld the finding of the Social Benefits Tribunal that the exclusion of persons disabled solely by addiction from the Ontario Disability Support Program was inconsistent with the Ontario Human Rights Code.
[121] McNeill v. Ontario (Ministry of the Solicitor General & Correctional Services), [1998] O.J. No. 2288 (Ont.Ct. of Justice).
[122] Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14, at para. 66, 67 and 74.
[123] World Health Organization, Towards a Common Language for Functioning, Disability and Health (Geneva: 2002) at 3.
[124] M.A. McColl et al., “Disability Policy Making: Evaluating the Evidence Base” in D. Pothier and R. Devlin, eds., Critical Disability Theory, Essays in Philosophy, Politics, Policy and Law (UBC Press: 2006) at pages 27-28 and C. Barnes, G. Mercer and T. Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999) at page 27.
[125] Dave Gibbs, “Social Model Services: An Oxymoron?” in Disability Policy and Practice: Applying the Social Model (University of Leeds: The Disability Press, 2004) at pp. 152-153.
[126] For an overview of this Survey, see Statistics Canada, National Population Health Survey Overview, 1996-97 (Ottawa: Ministry of Industry, 1998).
[127] Human Resources Development Canada, Disability in Canada (Ottawa: 2001) at pages 42 and following.
[128] In one of the earliest human rights cases related to gender identity, an attempt to add gender identity to a human rights complaint as a distinct analogous ground of discrimination was rejected by the British Columbia Human Rights Tribunal: Sheridan v. Sanctuary Investments (No. 2), (1998), 33 C.H.R.R. D/464.
[129] See, for example, decisions in Sheridan v. Sanctuary Investments Ltd. (No. 3), (1999), 33 C.H.R.R. D/467 (BCHRT); Ferris v. O.T.E.U. Local 15, (1999), 36 C.H.R.R. C.329 (BCHRT); Mamela v. Vancouver Lesbian Connection (1999) 36 C.H.R.R. D/318 (BCHRT); Attorney General of Canada v. Canadian Human Rights Commission (2003), 46 C.H.R.R. D/196 (FCT); Forrester v. Peel (Regional Municipality) Police Services Board [2006] O.H.R.T.D. No. 13.
[130] Ontario Human Rights Commission, Policy on Discrimination and Harassment because of Gender Identity (Toronto: 2000), available online at http://www.ohrc.on.ca/en/resources/Policies/ PolicyGenderIdent.
[131] Hogan v. Ontario (Minister of Health and Long-Term Care) (2006) 58 C.H.R.R. D/317 (HRTO), at para. 431-432.
[132] There is, for example, an advocacy movement that seeks to have Gender Identity Disorder removed from the APA’s DSM, on the basis that “… diagnosing normal variants of human gender identity and expression as psychiatric disorders encourages an adversarial relationship between psychiatry and sex and gender minorities. We also urge the APA to state that these diagnoses are misused by some people outside of psychiatry who wish to deny civil rights to trans and gender-variant people.” (GID Reform Now, online at www.gidreformnow.com, accessed May 20, 2009.)
[133] These are complex issues and subject to ongoing debate. For a somewhat dated overview based on consultation with Ontario’s transgendered community, see the Ontario Human Rights Commission’s Discussion Paper: Towards a Commission Policy on Gender Identity (Toronto: 1999), available online at: http://www.ohrc.on.ca/en/resources/discussion_consultation/ genderidentity. The British Government Policy on Transsexual People stated that “It is not a mental illness. It is a condition considered in itself to be free of other pathology (though transsexual people can suffer depression or illnesses like anyone else).” (Department of Constitutional Affairs, 2002, Available online at http://www.dca.gov.uk/constitution/transsex/ policy.htm.)
| Previous | |
| First Page | |
| Table of Contents | |