III. Evolving Legal Approaches to Disability: Context and Considerations

///III. Evolving Legal Approaches to Disability: Context and Considerations
III. Evolving Legal Approaches to Disability: Context and Considerations2017-03-03T18:35:38+00:00
As is outlined in detail in Section IV, since the 1960s, concepts of disability have been in rapid flux. This section provides some context for understanding and assessing the evolving debates about legal notions of disability.

A. Background

The meaning of “disability” may seem obvious, a matter of “common sense”. However, a historical review demonstrates that disability has been understood from a variety of perspectives over time and across cultures. For example, until fairly recently in European history, disability was understood from a predominantly religious perspective. Disability was seen as a sign of divine judgment or as a result of the action of supernatural powers. In particular, mental illness was explained in terms of demonic forces.[36] Conceptions of disability are shaped by cultural and economic forces.[37]

For most of the 20th century, there was a broad consensus among the general populace, academics, legislators and policy communities about the nature of disability – that it was a bio-medical issue, rooted in individual tragedies, and best addressed through charity and, where possible, treatment and rehabilitation. Definitions of disability were therefore not controversial: the issue was one of “common-sense”.

Beginning in the late 1960s, this consensus has fragmented, as activists and academics have introduced new approaches to disability that have challenged common understandings. The area is now one of complex and ongoing debate and discussion: there is no longer any single commonly-accepted conception.

This debate is visible in many arenas and on many levels – not just in academic debate, but in ongoing tensions, debates and developments in public policy and the law. The World Health Organization, for example, developed new classification systems for disability in 1980 and again in 2001, and these classification systems are the subject of ongoing discussion and advocacy. Statistics Canada has recently revised the definition of disability that it uses for gathering information related to disability. And not surprisingly, there has been considerable development and fragmentation in the law’s approach to the understanding and definition of disability.

B. Some Considerations Regarding Legal Definitions of Disability

When assessing legal approaches to disability, it is helpful to consider the context in which definitions are developed and interpreted, including the scope of the statutes in question, the role of definitions in statutory schemes related to persons with disabilities, and the circumstances that give rise to caselaw related to definitions of disability.

1. Statutory Definitions of Disability

Not infrequently, statutes and regulations referencing the term “disability” provide no definition of the term: the determination of who is and is not disabled for the purpose of the statute is left to the decision-maker’s interpretation, and is generally decided on a case by case basis. For example, the Consumer Protection Act takes a consumer’s disability into account in determining whether a consumer was unable to reasonably protect his or her interests and was subject to an unconscionable representation, but provides no guidance to interpreting what is meant by “disability”.[38] The Elections Act permits accommodations to voting procedures to facilitate access for “persons with disabilities” but does not define the term.[39]

Where definitions of disability exist in Ontario statutes, there is considerable variance in approach and no discernible consistent principles underlying the selection of statutory approaches to definitions, as is further detailed later in this Paper. Given the current lack of a unified conceptual approach to disability, perhaps this should not be surprising.

Of course, given that programs and statutes addressing disability vary widely in their purposes, it is inevitable that there will be some variance in their scope. As an example, statutes commonly restrict the scope of the term “disability” to certain specified types of disability, as a reflection of their purposes. The objective of the Ontario Building Code, insofar as it deals with disability issues, relates to the accessibility of the built environment; its definition of disability is therefore limited to persons with a “physical or sensory disability” (although it could be argued that persons with, for example, cognitive or developmental disabilities could also benefit from specialized accessibility features).[40] Similarly, special procedures may be instituted to take the evidence of persons who are unable to attend a hearing under the Charitable Institutions Act due to “age, infirmity or physical disability”.[41]

When considering legal approaches to defining “disability”, it is always helpful to keep in mind that most statutes dealing with disability fall into the category of those providing benefits, supports and accommodation for persons with disabilities. Maintaining the scope and integrity of the program is a key concern. Definitions of disability in such statutes generally operate as determinants of eligibility for programs and services, and there is therefore a perceived need to ensure that definitions provide a clear and easily administered mechanism for allocating services and determining eligibility. This influences both the legislative definition and the caselaw that develops around the terms. For example, judicial decisions regarding the definition of “disability” under the Ontario Disability Support Program Act generally arise from situations in which the Ministry of Community and Social Services, and subsequently the Social Benefits Tribunal, have denied social assistance benefits to applicants on the grounds that the alleged impairment is insufficiently substantial, does not have a sufficient impact on life functions, or has not been adequately verified. Individuals are seeking the label of “disability” in order to access benefits and supports, while institutions are withholding the label in order to maintain program standards.[42] A similar dynamic is often at play in human rights caselaw, where the label of “disability” is essential to obtain the opportunity to obtain redress for the loss of employment or access to important services.

2. Caselaw and Interpretation

Not surprisingly, there is considerable case law interpreting “disability”, “handicap” and related terms. However, the caselaw, like the statutory provisions, reveals a fragmented approach to the term “disability”. A review of caselaw and legal commentary relating to the definition of disability reveals ongoing dispute and evolution. As is outlined later in this Paper, conditions such as obesity, addictions, infertility and temporary medical conditions are in some cases considered disabilities and in others not, indicating ongoing tensions between the various conceptual approaches to disability.

Much of the caselaw has developed under human rights statutes. However, it is important to recall that, given the purpose and quasi-constitutional status of these statutes, courts and tribunals interpret their provisions in a broad, liberal and purposive manner, which is not generally the approach applied to the eligibility provisions of other statutes. For example, the Supreme Court of Canada took a very broad approach to the definition of disability under Quebec’s human rights statute,[43] but a subsequent Federal Court of Appeal decision took a narrower approach when interpreting the definition of disability that functions to determine eligibility for certain Canada Pension Plan benefits.[44] A review of human rights caselaw may not provide a full sense of the ways in which courts and tribunals have approached the notion of disability.

The circumstances giving rise to caselaw are not necessarily representative of the full spectrum of circumstances under which persons with impairments and/or disabilities may be affected by the law. For example, decisions regarding “mental competency” and “capacity” arise in complex circumstances, frequently from situations where family members are in conflict with each other and seek declarations which may be contested by the person alleged to be incapable or incompetent. Human rights cases most frequently arise in the context of employment and relatively rarely in the context of rental housing: this does not necessarily reflect the relative incidence of discrimination in the respective social areas, but rather the fact that employment discrimination is more susceptible to effective remedies through damages and reinstatement than is loss of an opportunity to rent an apartment.

As the discussion later in the Paper regarding the evolution of the approach to the term “disability” under human rights statutes reveals, very different interpretive approaches can be taken to the same statutory wording, with quite different results and a significant effect on the rights and opportunities of persons with disabilities. In that case, evolving conceptions of disability had a significant impact on the interpretation of the term “disability” in human rights statutes, and thereby on the ability of persons with a range of conditions and impairments to seek redress under those statutes.

As well, given that many statutory definitions of disability operate to manage access to government programs, extra-legal administrative requirements may have a practical effect on the way in which definitions are applied to persons seeking assistance. For example, during its 2002 public consultations on Ontario’s special education system, the Ontario Human Rights Commission heard that, because of the way that funding for students with disabilities was structured and allocated, school boards would sometimes inappropriately over-label or over-identify students’ disability-related needs, in order to generate higher funding levels.[45]

C. Policy Approaches to Legal Definitions of Disability

Despite vigorous debate and considerable evolution in academic, advocacy and policy approaches to disability, until recently relatively little attention has been paid to legislative definitions of disability. However, the federal government has recently recognized the lack of a coherent approach to legislative definitions of disability as a potential source of concern.

When, in 1998, the federal, provincial and territorial ministers responsible for social development released In Unison: A Canadian Approach to Disability Issues,[46] describing their vision and long-term policy directions for promoting the full inclusion of persons with disabilities in Canadian society, that document did not consider legislative definitions of disability, or adopt any particular definition, although it recognized the importance of the most relevant international definition, the World Health Organization’s International Classification of Impairments, Disabilities and Handicaps. The Report did note that most Canadians experience some form of functional incapacity or limitation as a normal part of aging, and that Canadians with disabilities are a diverse group.

However, in 2002, when the Government of Canada released Advancing the Inclusion of Persons with Disabilities, its first comprehensive report on disability in Canada,[47] it acknowledged the difficulties inherent in defining “disability”, particularly in the legislative context where definitions of disability also serve as eligibility criteria for important government programs, such as the Canada Pension Plan, the Employment Equity Act, and the Veterans Disability Pension. The Report reviewed several approaches to disability, and concluded that no single definition could cover all aspects of disability.

As a follow-up to Advancing the Inclusion of Persons with Disabilities, the Government of Canada conducted a study of the definitions used in federal government legislation and programs, and developed a synthesis document, Defining Disability: A Complex Issue, which was released in 2003.[48] This document provided a review of, and a framework for understanding, disability definitions in key federal government programs and legislation.

The Report concluded that while no single definition of disability existed at the federal level, this might not be as problematic as at first it might appear:
Disability is a multi-dimensional concept with both objective and subjective characteristics. A single harmonized “operational” definition of disability across federal programs may not be desirable or achievable. And, the scope of solutions to address the broader issues identified go beyond definitions.[49]

The Report further concluded that, while definitions of disability may operate as eligibility criteria for programs, eligibility criteria ought not to be conflated with definitions. Differences in eligibility criteria may reflect attempts to address the different circumstances and needs of persons with disabilities. Different programs have different objectives and purposes, some disability related, and others not. Therefore, the Report did not advocate for the development of a harmonized approach to the definition of disability at the federal level.

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