[1] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey, 2006: Analytical Report (Ottawa: Minister of Industry, 2007) at page 9. As is described in more detail later in the Paper, PALS uses a definition of disability based on the “biopsychosocial approach to disability” adopted by the World Health Organization in its International Classification of Functioning, Disability and Health.

[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 Discr