In order to analyze legal approaches to defining disability, it is helpful first to consider the broad legal landscape surrounding disability in Ontario, and the nature and purposes of the laws which affect persons with disabilities.


Ontario laws affecting persons with disabilities are subject to, and must be understood through the prism of the Canadian Charter of Rights and Freedoms. Section 15 of the Charter, which came into force in 1985, guarantees the right to equality before and under the law, and to equal protection and benefit of the law, without discrimination based on, among other grounds, physical or mental disability (terms which the Charter does not define). Section 15(2) protects laws, programs or activities that have as their object the improvement of the condition of persons or groups that have experienced disadvantage based on a number of grounds, including mental or physical disability.[13] The Charter’s equality rights provisions have been very important in advancing the rights of persons with disabilities, articulating the right to inclusion and participation, and advancing the principle of accommodation.[14]


International policy frameworks and covenants also have a significant influence on Canadian policy approaches. As is discussed later in this Paper, the work of the World Health Organization (WHO) related to impairment and disability has been extremely influential in Canada, and the new United Nations International Convention on the Rights of Persons with Disabilities is expected to have a significant impact on disability policy at both the federal and provincial levels.


Ontario has a very wide array of laws that affect persons with disabilities. Some have disability-related issues as a central concern, while others deal with disability only tangentially. These laws touch on a broad range of issues, including transportation, education, employment accommodation, income-support and security, assistive devices and the administration of justice.


It should be noted that many laws that do not deal explicitly with disability nevertheless have a significant and disparate impact on persons with disabilities. Laws that ignore the existence of persons of disabilities, and thereby fail to take into account the experiences and circumstances of persons with disabilities, may create barriers. For example, laws related to divorce, support and child custody do not make explicit reference to disability-related issues. However, where decision-makers rely on stereotypes about the capacity of persons with disabilities to act as parents, or fail to take into account the needs of persons with disabilities in making decisions related to division of property, support or the matrimonial home, persons with disabilities may be disadvantaged. Laws that require members of the public to provide information and complete forms to access programs and benefits and do not take into account the needs of persons with communications or intellectual disabilities may unintentionally create barriers to access.


Ontario’s laws relating to disability serve a range of purposes, and as these purposes affect the approach to disability within each statute, it is important to distinguish them. For the purposes of this analysis, Ontario’s disability-related laws can be separated into three broad categories: laws promoting the removal of barriers for persons with disabilities; laws that provide access to benefits, supports and accommodations for persons with disabilities; and laws that restrict the roles, activities or decisions of persons with disabilities.


1. Laws Promoting The Removal Of Barriers For Persons With Disabilities  

These statutes are unique in that they have as their central purposes the recognition of persons with disabilities as a group that has experienced disadvantage and the removal of barriers in order to achieve full equality and participation for persons with disabilities. These laws require organizations and individuals to take proactive steps across a range of areas to achieve equality and inclusion for persons with disabilities. There are only three Ontario statutes that fall into this category. The oldest of these is the Ontario Human Rights Code,[15] which has included disability (originally referred to as “handicap”) as a protected ground since 1982. Under the Code, persons with disabilities have the right to equal treatment without discrimination in the areas of employment; housing accommodation; goods, services and facilities; contracts; and unions and other professional associations. The Code provides for both proactive and reactive mechanisms for ensuring these rights.[16] It is worth noting that in recent years, disability has been the most frequently cited ground of the Code in complaints of discrimination, cited in more than half of all complaints to the Ontario Human Rights Commission (prior to the very recent changes to the enforcement mechanisms under the Code).[17]


More recently, the government passed the Ontarians with Disabilities Act (ODA)[18] and subsequently the Accessibility for Ontarians with Disabilities Act (AODA).[19] The latter is considerably broader in scope than the former, but both have as their aim the systematic removal of physical, attitudinal, technological, informational or communications barriers for persons with disabilities. The ODA applies to the broader public sector, including transportation providers, education institutions and municipalities, and requires the development of accessibility plans. The AODA applies to the private as well as the public sector, and among other measures sets out a process for the development of accessibility standards for specific industries, economic sectors, or classes of persons or organizations.


2. Laws That Provide Access To Benefits, Supports And Accommodations For Persons With Disabilities

There are numerous Ontario laws that recognize the unique circumstances of persons with disabilities, either as a broad group or in terms of specific types of disabilities, and provide access to supports, benefits and accommodations aimed at ameliorating disadvantage, providing supports or enhancing opportunities. Some of these have disability-related needs as a core focus, while others address the populace at large but provide specific accommodations or supports for persons with disabilities.


For example, the disadvantage that persons with disabilities face in securing and maintaining employment and the resultant levels of low income among persons with disabilities are addressed in part in Ontario by income support programs, the two most important of these being the Ontario Disability Support Program (ODSP) (provided under the Ontario Disability Support Program Act[20]), which provides a separate social assistance program for persons with disabilities who fall within the specified eligibility requirements, and the Workplace Safety Insurance program, which provides income and re-employment supports for persons who experience temporary or permanent disabilities due to workplace accidents.[21]


There are numerous statutes entitling persons with disabilities to adapted programming or policies in order to ensure equal opportunity to participate and benefit from government programs. Perhaps the most important of these is the provision under the Education Act[22] for individualized supports, teaching methodologies and programming for “exceptional pupils”. Other examples include municipal bylaws or policies providing for specialized transit services for persons whose disabilities prevent them from using general transit services, and the provision for “disabled parking permits” under the Highway Traffic Act, to ensure that persons with mobility-related disabilities are able to park their vehicles within a reasonable distance of their destinations.[23]


The Ontario government also provides benefits related to specific needs of persons with disabilities. For example, Ontario’s retail sales tax is waived for the purchase of certain types of assistive devices,[24] and Ontario funds a home and vehicle modification program[25].


There are numerous services and supports targeted at children with disabilities, including child development services through the Child and Family Services Act,[26] day nursery programs for children with disabilities through the Day Nurseries Act,[27] respite care for families of children with disabilities and a Child Disability Benefit for families caring for a child with a severe or prolonged physical or mental disability.[28]


3. Laws That Restrict The Roles, Activities Or Decisions Of Persons With Disabilities

Laws frequently identify disability as a consideration for permitting participation in various roles or decisions. Most often, this applies to psychiatric, cognitive or intellectual disabilities, and is dealt with as an issue of “capacity” or “competency”. Lack of “capacity” may, for example, be a reason for suspending the license of a lawyer under the Law Society Act[29] or for appointing a litigation guardian under the Courts of Justice Act.[30] Under the Evidence Act, persons who are found to lack mental competency may not have their evidence form the basis of a legal decision unless it is otherwise corroborated, a measure which may have serious consequences for the ability of persons with mental disabilities to seek redress, for example, where they have been abused or exploited.[31]


Even more seriously, the possession of legal capacity determines whether a person with a disability can make decisions about some of the most fundamental aspects of his or her life. Possession of the requisite mental capacity is required in order to marry[32] or to make a valid will. As well, statutory regimes set up complex substitute decision-making mechanisms for circumstances where individuals are determined to not have the legal capacity to make decisions regarding health care, personal care and management of property. The Health Care Consent Act, 1996[33] sets out procedures and requirements for consent to medical treatment, admission to care facilities, and personal assistance services where a person has lost “capacity”. The Substitute Decisions Act, 1992[34] creates procedures for making decisions about property or personal