IV. Conceptual Approaches to Disability and their Legal Application

///IV. Conceptual Approaches to Disability and their Legal Application
IV. Conceptual Approaches to Disability and their Legal Application2017-03-03T18:35:38+00:00
A. Introduction

As noted earlier, during the last forty years, there has been a rapid evolution of thought about the nature and meaning of “disability”. Today, there exist multiple competing perspectives and the notion of “disability” is the subject of wide-ranging and complex discussion and controversy.

It is not the purpose of this Paper to fully canvass all of these perspectives and debates; given the complexity and multiplicity of the issues, that would require a very lengthy document. This portion of the Paper will provide highlights of some aspects of these concepts and debates, insofar as they are relevant to the development and understanding of legal definitions of disability, and the approach to be taken in this Project.

Scholars have categorized concepts of disability in various ways. Generally, the axis of differentiation has revolved around the role of ‘impairment’ in the experience of disability. Many scholars therefore categorize conceptual approaches to disability into two broad groupings: one focussed on impairment and the other on the social construction of disability. This is the fundamental distinction. However, based on a review of concepts of disability as they are revealed in statutory definitions of disability and the accompanying caselaw, it may be helpful to further breakdown these two categories. The LCO has therefore categorized legal definitions of disability in Ontario into four conceptual approaches:

  • Bio-medical approach: A pure impairment model;
  • Functional limitations approach: A modified impairment model which takes into account some aspects of how the experience of impairment is affected by the environment;
  • Human rights model: A modified social model which recognizes the impact of impairment on the experience of disability, and situates its analysis in a recognition of persons with disabilities as a oppressed group: this is primarily located in human rights legislation; and
  • Social model: A pure social model.

    Recently, there is some movement towards the development of a mixed model, although this has not yet been reflected in legal structures.

    The four categories here identified are similar to the categorization adopted by the federal government in its analysis of definitions of disability, and therefore allows comparisons across jurisdictions.[50] It should be noted that, not infrequently, laws combine multiple approaches into a single definition.

    Each of these conceptual approaches to disability will be described below, together with examples of how these approaches have been implemented in law and public policy.

    B. Bio-Medical Approach

    1. The Approach: Impairment and Disability

    To a substantial degree, debates about the nature of disability turn on the role of physical, mental, sensory, cognitive or intellectual impairments in disabling individuals, versus the role of societal attitudes and structures.

    Popular understandings of the nature of disability, as well as many policy and legal frameworks centre on the notion of disability as resulting from physical, sensory, psychiatric, cognitive or intellectual impairment.[51] That is, disability is intrinsic to the individual who experiences it.[52] In this model, impairments are dysfunctions that have the effect of excluding persons with disabilities from important social roles and obligations, leaving them dependent on family members and society. As such, disability is an individual tragedy, and a burden on family and society.

    This bio-medical conception of disability was the dominant policy model for understanding disability until the last few decades of the 20th century, and remains ascendant in the popular understanding of disability

    Under this approach, the most appropriate policy response to disability is medical and rehabilitative. The aim is to overcome, or at least minimize, the negative consequences of individual disability. Individuals with disabilities may therefore become the focus of intensive and sometimes coercive expert attention focused on accurately identifying and “fixing” the impairment causing the disability.

    The focus on “fixing” persons with disabilities may lead to assumptions that persons with disabilities are defective and abnormal, and therefore in some way inferior to, and less worthy of consideration than persons who do not have a disability.

    2. Statutory Definitions Using the Bio-Medical Approach

    Under the bio-medical approach, expertise regarding the nature, causes and responses to disability resides with medical and rehabilitative professionals. This approach defers to these professionals in identifying who has a disability and prescribing appropriate rehabilitative or other strategies for addressing the disability.

    While statutes now rarely use lists of bio-medical conditions in defining disability, it is still common for statutes to defer the determination of disability entirely to medical professionals without other definition, an approach that implicitly incorporates a bio-medical model of disability, by leaving determinations about eligibility for important programs, benefits and services to the discretion of individual medical practitioners.

    For example, the Homes for the Aged and Rest Homes Act provides special evidentiary procedures for persons who are unable to attend a hearing because of age, infirmity or physical disability. It provides no definition of “physical disability”, but requires certification by a medical practitioner.[53]

    Other statutes require medical practitioners to certify that the person in question has the asserted limitation or impairment. For the purposes of defining eligibility for specialized day nursery programs, the Day Nurseries Act includes a functional definition of a “handicapped child”, but requires medical certification:

    “handicapped child” means a child who has a physical or mental impairment that is likely to continue for a prolonged period of time and who as a result thereof is limited in activities pertaining to normal living as verified by objective psychological or medical findings and includes a child with a developmental disability.[54]

    Certification may be provided by a member of the College of Physicians and Surgeons of Ontario, a member of the College of Psychologists of Ontario, a member of the College of Optometrists of Ontario, or a member of the College of Nurses of Ontario who holds an extended certificate of registration.

    Specialized transit programs very commonly require medical certification of a mobility-related impairment. Kingston Access Bus, for example, provides specialized transit services for “individuals with physical disabilities regardless of age who, due to a mobility impairment, are unable to use conventional transit facilities”. Applicants for this service must have their physicians fill out and certify the application form, detailing the type and severity of the mobility-related impairment. [55]

    Other statutes do not explicitly require medical verification of disability, but in practice determinations regarding eligibility rely heavily on information provided by medical practitioners. For example, Regulation 181/98 under the Education Act sets out the process for the identification and placement of exceptional pupils. Regulation 181 does not require parents to provide professional certification of their child’s exceptionality, specifying only that the Identification, Placement and Review Committee must consider any educational, health or psychological assessment placed before them, as well as information submitted by parents.[56] In practice, the accommodation process under the Education Act may be heavily weighted towards professionals.[57]

    There is considerable literature on the power that this model gives medical practitioners over the lives of persons with disabilities. Medical diagnoses become key to accessing rights and disability-related supports and benefits. Persons with disabilities are expected to defer to medical professionals, and may be labeled as non-cooperative and unreasonable if they fail to do so. As medical professionals become the gatekeepers of scarce resources, persons with disabilities who are not “model patients” are at risk of being dismissed or disbelieved. This reliance on medical and health professionals has been critiqued as placing persons with disabilities in a position of dependence, and giving professionals excessive power to label, evaluate and define persons with disabilities.[58]

    3. Learning from Examples

    i. Environmental Sensitivities

    Some of the limitations of a legal approach to disability based on a bio-medical approach are revealed by examining the treatment in law of persons with environmental sensitivities.

    Medical consensus regarding diagnostic criteria and causation for the condition known as environmental sensitivity is still developing. The clinical picture is complex: there is no single, simple condition with a universal cause.[59] The lack of a universally acknowledged bio-medical description and causation for environmental sensitivities has led to difficulties for persons living with this condition in having their experiences recognized as a form of disability and in obtaining appropriate accommodations. Environmental sensitivities may be dismissed as a fabrication or as being “all in their heads”.

    Legally, the lack of an agreed-upon bio-medical foundation for environmental sensitivities is not necessarily an overwhelming barrier under human rights statutes, which are less preoccupied with the cause of limitations than with demonstrated accommodation needs.[60] However, as a practical matter, it may create significant difficulties in legal regimes that require scientifically verifiable evidence regarding diagnosis and causation.[61] Where access to rights or benefits depends on the ability to provide expert medical verification of impairment (for example, in accessing disability benefits), the lack of widespread medical recognition and knowledge about environmental sensitivities can create a significant barrier for these individuals.[62]

    ii. Genetic Information

    Rapid scientific advances in the field of genetics and genetic testing have raised complex legal issues that we have only recently begun to examine in-depth. Genetic information can provide valuable information, but contrary to popular understandings, only in rare circumstances can genetic testing provide clear predictions about future health conditions. Genetic testing may reveal only an increased chance of developing a particular disorder. Some conditions may be curable, or may be preventable through diet or environment. That is, genetic information does not indicate current impairment, and it cannot predict with certainty further impairment; in most cases, genetic information is limited to indicating increased risk for future impairment.

    Although genetic information is not necessarily associated with impairment, its use in decision-making may lead to disadvantage. Concerns have been raised regarding the potential for genetic discrimination, particularly in the fields of insurance or employment.[63] Some American states have passed legislative measures to prevent discrimination on the basis of genetic susceptibility.[64] In Canada, the question has been raised as to whether the current human rights regime can provide protection against discrimination on the basis of genetic information.

    The most likely avenue for protection would be a claim of discrimination on the basis of disability. It is not clear, however, whether genetic information would fall within the scope of the definition of disability under the Human Rights Code, or if it is in fact desirable that it be so included.[65] Persons whose genetic information indicates a susceptibility to a particular medical condition are not experiencing any physical limitations or impairments, and may never do so. It is only at the point where genetic information is shared with decision-makers that these individuals are at risk of experiencing disadvantage related to their genetic information. However, human rights caselaw has adopted an approach to disability that focuses less on the impairment than on the effects of exclusion; a perceived disability is also protected under human rights law. Under this approach, genetic information could fall within the scope of “disability” under the Ontario Human Rights Code.[66]

    Some have suggested that to include genetic information as a disability under human rights statutes may suggest that such information is more powerful and has more predictive value than is actually the case. From this perspective, the most appropriate legislative response may not be disability-related, but focused on privacy, and the appropriate collection and use of information.[67]

    C. The Functional Limitations Approach

    1. The Approach: A Modified Impairment Focus

    The functional limitations approach is generally considered as a variant on the bio-medical approach. However, since it has been extremely influential in the development of legislation and public policy, and has some significant implications for policy development, it is worthwhile to consider it separately.

    In this approach, disability is identified, not so much in terms of an underlying medical condition, but by considering the functional limitations caused by impairments. For example, a person may have an underlying medical condition of diabetes. So long as this medical condition has no impact on the person’s activities, there is no “disability”. However, if the diabetes leads to deteriorating eyesight, which limits the individual’s ability to access transportation or perform his or her job functions, these functional limitations result in a disability. Functional limitations are associated with the person’s ability to appropriately engage in key social roles, such as employment or caring for family members.

    Thus, the functional limitations approach, while firmly maintaining the role of impairment in causing disability, recognizes that disability may be influenced by social factors, such as the roles that the individual inhabits, how he or she responds to impairment, and whether the environment is designed in a way that magnifies or minimizes the effects of the impairment.

    The functional limitations approach has been, and continues to be, immensely influential in both law and public policy.

    2. WHO International Classification of Impairments, Disabilities and Handicaps

    The World Health Organization (WHO), through its responsibilities for monitoring health, developing policy options, and setting norms and standards, has had an important role in shaping approaches to disability. The WHO has produced two important classification systems related to impairment and disability, the 1980 International Classification of Impairments, Disabilities and Handicaps, and the 2001 International Classification of Functioning, Disability and Health.[68]

    The WHO’s 1980 International Classification of Impairments, Disabilities and Handicaps (ICIDH) was the first major classification system to focus specifically on disability and was extremely influential in the development of policy approaches to disability world-wide, including in Canada. The ICIDH adopted a three-pronged definition of disability as consisting of:

    1. Impairment: any loss or abnormality of psychological, physiological, or anatomical structure or function.

    2. Disability: a restriction or lack (resulting from an impairment) of ability to perform an activity in a manner or within the range considered normal for a human being.

    3. Handicap: a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfillment of a role that is normal (depending on age, sex and social and cultural factors) for that individual.

    The ICIDH essentially adopted a functional limitations perspective as its basic approach to disability. Disability was caused by impairment and manifested in an inability to perform one or more activities in a “normal” range. However, the ICIDH’s use of the term “handicap” did allow for consideration of the role of social factors in determining the consequences of disablement.

    The ICIDH was widely criticized by disability activists and others for its reliance on medical definitions and the ableist assumptions underlying the use of a standard of “normalcy”. As well, the assumption that disability is always caused by some kind of impairment resulted in a focus on medical and rehabilitative responses to disability, ignoring the importance of legislative, policy and environmental changes in removing disabling barriers. The ICIDH model was seen as placing persons with disabilities in roles as victims and dependents, reliant on others for care or ‘charity’.[69]

    The WHO has since developed a new framework for addressing disability-related issues, the International Classification of Functioning, which adopts a mixed model of disability. This framework is discussed later in this Paper.

    3. Statutory Definitions Based on a Functional Limitations Model

    The functional limitations perspective is the most common statutory approach to defining disability. Functional definitions of disability are appealing in the legal sphere in that they provide clear, easily applied statutory criteria for program eligibility and the distribution of benefits. However, they retain the emphasis on disability as arising from individual impairment rather than societal barriers, and therefore reinforce the idea that individuals with disabilities require individual remediation rather than inclusion through the removal of physical, attitudinal, or policy-based barriers.

    The specific statutory functional requirements related to disability vary depending on the scope and purpose of the statutory program at issue. The following are a few examples of the way in which Ontario statutes have incorporated a functional approach.

    The Highway Traffic Act combines bio-medical and functional approaches. It defines “person with a disability” for the purposes of determining eligibility for a disabled parking permit by providing a lengthy list of functional limitations and biomedical conditions, including inability to walk without assistance from another individual or some kind of assistive device; dependence on portable oxygen; visual acuity below a defined standard; or cardiovascular disease of a defined extent.[70]

    The new Developmental Disabilities Act, 2008 provides a good example of a classic functional approach to defining disability. This statute replaces the older Developmental Services Act and provides a framework for how persons with intellectual or developmental disabilities apply for and receive government-funded services and supports.[71] It defines “developmental disability” as follows:

    3. (1) A person has a developmental disability for the purposes of this Act if the person has the prescribed significant limitations in cognitive functioning and adaptive functioning and those limitations,

    (a) originated before the person reached 18 years of age;

    (b) are likely to be life-long in nature; and

    (c) affect areas of major life activity, such as personal care, language skills, learning abilities, the capacity to live independently as an adult or any other prescribed activity.

    (2) In subsection (1),

    “adaptive functioning” means a person’s capacity to gain personal independence, based on the person’s ability to learn and apply conceptual, social and practical skills in his or her everyday life; (“fonctionnement adaptatif”)

    “cognitive functioning” means a person’s intellectual capacity, including the capacity to reason, organize, plan, make judgments and identify consequences

    The Education Act uses a somewhat circular approach in its definition of “exceptional pupils” who are entitled to special education services. “Exceptional pupils” are those

    whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee … of the board[72]

    That is, pupils who are eligible for placement are those whose level of functioning demonstrates a need for such a placement. The functional limitation is a need for the service provided, when linked to certain types of “exceptionalities”. The Ministry of Education has developed detailed guidelines outlining the types of impairments that fall within the definition.[73]

    Statutes often require that the disability be “severe” or “substantial”. Under the ODSP, the family of a child with a “severe disability” is eligible for additional assistance.[74] Under the Day Nurseries Act, in order to be eligible for reduced day nursery fees, a person with a disability must demonstrate, in addition to other requirements, that he or she has a “substantial” mental or physical impairment.[75]

    Statutory definitions of disability may combine a number of approaches. The definition adopted under the Ontario Disability Support Programs Act[76] to determine eligibility for program benefits is an example of a hybrid approach to defining disability. It is particularly important because a number of other statutes, provide that persons who are eligible for ODSP also thereby meet the criteria for their programs.[77] The definition states that:

    4(1) A person is a person with a disability for the purposes of this Part if,

    (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

    (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

    (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.

    This definition combines three elements: first, limitations aimed at restricting the definition to persons who have “serious” disabilities as demonstrated by their “substantial” nature and length in duration; second, a functional limitations requirement; and third, a requirement for medical verification that links the definition to a bio-medical approach.

    4. Learning from Examples

    i. Temporary Medical Conditions

    Temporary medical conditions, whether grave (such as, for example, cancer) or relatively minor (such as a broken limb) have sometimes been regarded as disabilities, and sometimes not. Generally, functional limitations approaches exclude persons with temporary conditions, on the basis that such conditions do not create ongoing limitations in life’s important activities.

    Thus, many statutes exclude persons with temporary or episodic disabilities by requiring that the disability be “continuous” or “prolonged” or have lasted for a defined period of time. The definition of “person with a disability” under the Ontario Disability Support Program Act, 1997 requires in part that “the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more”.[78] The provisions of the Retail Sales Act related to retail sales tax rebates for persons with disabilities or their caregivers who purchase accessible vehicles require that the disability be permanent.[79] The Day Nurseries Act defines “handicapped child” in part as a child who has a mental or physical impairment “that is likely to continue for a prolonged period of time”.[80]

    Through the 1980s and 1990s, human rights regimes excluded many medical conditions from the definition of disability because they were impermanent, even if they resulted in significant loss or disadvantage for the person who experienced them. For example, a 1986 decision by the British Columbia Human Rights Tribunal dismissed the complaint of a woman whose employment was terminated after a fall resulted in a temporary bout of sciatica and several days’ absence from work. The Tribunal found that the employee had experienced a temporary injury, and that this did not constitute a physical disability.[81] An Ontario Board of Inquiry took a similar approach in Ouimette v. Lily Cups, a case which lead to a de facto adoption of a functional limitations test for disability under Ontario’s human rights statute.[82] The Newfoundland Court of Appeal endorsed this approach in Woolworth v. Human Rights Commission of Newfoundland, stating that “if the incapacity is of short duration it may be so temporary that it is not addressed by the Code as there is no disability under the Code”.[83]

    Later human rights caselaw rejected this approach in favour of a broader conception of disability, which focused less on the duration of a particular condition than its impact on the life of the person experiencing it. For example, in Clark v. Country Garden Florists, the Newfoundland Board of Inquiry extended the protection of the Code to a person dismissed as a result of an absence resulting from a broken foot.[84] In another case, an Ontario Board of Inquiry upheld the complaint of a woman dismissed because she was absent due to medically-indicated breast-reduction surgery.[85]

    A similar tension between concepts of disability can be seen in decisions under the Ontario Disability Support Program Act. For example, in Lloyd v. Ontario (Director of Disability Support Program), the Social Benefits Tribunal rejected the application of a woman who experienced chronic, but intermittent, arthritis, on the basis that temporary conditions by their nature were not “substantial” within the meaning of the Act. The Ontario Divisional Court rejected this approach, stating that an impairment may be “substantial” even if sometimes the person is not impaired at all.[86]

    ii. Capacity and Competency

    The functional limitations approach has continued to dominate Ontario’s legal approaches to capacity and competency. Legal capacity – or the lack of it – determines the ability of individuals to make fundamental decisions on their own behalf – including decisions regarding marriage, the management and disposition of their property, health care and personal care. The lack of legal capacity also impacts on the ability of a person to access the legal system, for example, to give evidence or to carry on a legal action on their own behalf.

    Because loss of legal capacity has such extreme and serious consequences, the standards and processes for assessing legal capacity raise complex and contested medico-legal issues, and have been the subject of considerable debate and study.

    In Ontario, tests for legal capacity are set out in the Substitute Decisions Act and the Health Care Consent Act. Both statutes adopt a two part test for capacity:[87]

    Does the person have the ability to understand the information that is relevant to making the decision in question?
    Does the person have the ability to appreciate the reasonably foreseeable consequences of this particular decision, or of not making a decision?

    The Mental Health Act sets out a similar test for mental competency: does the patient have the ability to understand the nature of the illness for which treatment is proposed and the treatment recommended; and does the patient have the ability to appreciate the consequences of giving or withholding consent?[88]

    The Rules under the Court of Justice Act adopt the definition of capacity under the Substitute Decisions Act for determining where it is necessary to appoint or recognize a litigation guardian.[89]

    The issue of capacity also arises in the context of wills and estates, although in this case, capacity is defined through the common law, rather than by statute. A will drafted when the testator did not have testamentary capacity will be invalid. The test for testamentary capacity is similar to that set out in the Substitute Decisions Act and the Health Care Consent Act. To briefly summarize the test, the testator must be sufficiently clear in his understanding and memory to know, on his or her own, and in a general way, the nature and effect of the act of making the will and of the particular provisions that are being made, the nature and extent of the property in question, the logical beneficiaries of the will and the kinds of claims there may be on the estate.[90]

    Mental capacity is also required under Ontario’s Marriage Act, although the statute does not provide a definition of mental capacity.[91] The standard for mental capacity to marry is different from, and lower than, the standard for testamentary capacity.[92]

    The Health Care Consents Act and the Substitute Decisions Act create a presumption of capacity.[93] The test is not whether the person in question actually understands the issues at hand, but whether he or she has the ability to do so. The focus is on the ability to understand certain types of information and to make specific types of decisions.

    Capacity is to be assessed with respect to a particular decision, and not globally. There is no single, universally accepted test for assessing capacity. Capacity may be assessed through different persons or processes depending on the nature of the decision at issue and the legislation at play.

    The tests for capacity and competency may therefore be considered as functional in their approach to mental disability. At issue is not the underlying impairment, but the effect on the individual’s ability to understand certain types of information and make certain kinds of decisions. The test does not consider environmental or social factors as they may impact on the ability to carry out the functions in question.

    Current processes for capacity assessment have been the subject of considerable concern and criticism. One criticism is that methods for assessing capacity may pay insufficient attention to the interactional environment on capacity: how one performs and interacts is a function, not only of one’s biomedical status, but of how one is treated and perceived. As well, many have criticized the “all or nothing” effect of the current system, which does not recognize the variations among individuals, and may unnecessarily strip autonomy away from individuals. There is also concern that current structures around capacity assessment in Ontario do not provide sufficient training or monitoring for assessors.[94]

    Interestingly, the new United Nations Convention on the Rights of Persons with Disabilities sets out a principle of supported decision-making, in which the key question becomes, not whether a person has capacity to make decisions, but how that person can be involved in decisions regarding him or herself, regardless of capacity.[95] The province of British Columbia has taken a leading role in incorporating the principles of supported decision-making into practice under its legislation.[96]

    D. The Social Approach

    1. The Approach: Environmental Barriers and the Creation of Disability

    The bio-medical approach to disability (and with it the functional limitations model), has been widely critiqued for failing to take into account the effect of social attitudes and structures in disabling individuals. A person with a mobility impairment is not prevented from fully participating in society by the impairment, but by the failure of policy makers, planners and builders to take into account the existence of persons with mobility impairments and to create accessible transportation, buildings and services. Persons with epilepsy are not excluded from employment so much by their medical condition as by the fears, myths and lack of information that lead potential employers to close their minds against their applications. From this perspective, disability is less an individual issue than it is a societal one. For this reason, this perspective is frequently referred to as the “social model” of disability.[97]

    This perspective has had a profound impact on disability theory and public policy over the past thirty years, and is now the dominant approach among scholars and activists.

    Under the social approach, disability is best addressed by a concerted effort to remove the socially constructed barriers that disable individuals, and to develop a society that is inclusive and respectful of persons across a wide spectrum of differences. This involves a radical shift in policy approaches from the bio-medical approach.[98]

    If disability is seen as the result of socially constructed barriers, then persons with disabilities can be considered members of an oppressed group, similar to women, racialized persons, or members of the LGBT community, for example. Therefore, inherent in an understanding of disability as a social construction is a call to advocacy and social change.

    There are many variants of the social model, and there continues to be significant debate about how to theorize the role of impairment in disability.

    Some feminist commentators and others have argued that the social model of disability takes insufficient account of the actual experience of impairment and the way that impairment itself, apart from societal reactions, can have a profound impact on lived experience. These writers emphasize the importance of an “embodied” understanding of the experience of disability.[99] Different types of impairments will have different implications for health and individual capacity. Stereotypes, social attitudes and barriers will also differ depending on the type of impairment. The experiences of a person who is, for example, Deaf, deafened or hard of hearing will differ considerably from those of persons with a learning disability, or cerebral palsy or bipolar disorder.

    The social approach has also been criticized for failing to sufficiently incorporate the experiences of persons with non-physical disabilities, particularly persons with psychiatric, developmental and cognitive disabilities. Mental health survivors, for example, may point to the historical practice of labeling certain types of refusal to conform to social norms (such as homosexuality, or refusal to comply with gender norms) as mental illness and argue that “barrier removal” is an inadequate response to such dynamics. It has also been pointed out that the social approach has been slower to benefit persons with cognitive and developmental disabilities and to confront the profound devaluation of their worth in a society focused on production and profit.[100]

    Recently, some have argued that the dichotomy between impairment and social construction is false and misleading. Illness, frailty and impairment is part of the human condition. We are all in some way impaired and the aging process is likely to result in increased impairments for most of us. However, not everyone with an impairment experiences oppression because of that impairment: only some of us will be additionally disabled by societal processes.[101]

    Further, any single model of the experience of disability runs the risk of obscuring the profound variations in the experiences of persons with disabilities, depending not only on the kind of impairment they have, but also on gender, socio-economic status, racialization, sexual orientation, age and other characteristics.[102]

    2. Learning from Example

    i. Obesity

    The caselaw around obesity as a disability has been markedly inconsistent, reflecting the difficulty that courts and tribunals have had approaching conditions which may create social disadvantages, but are not necessarily the result of a bio-medical impairment.[103]

    The long-running McKay-Panos case[104] demonstrates the difficulties courts and tribunals have had in addressing these issues. The complainant alleged that she faced an undue obstacle in air travel due to her disability (obesity), and sought accommodation. The medical evidence in this case was that the complainant was morbidly obese; however, there was no medical evidence as to the cause of her obesity. The Canadian Transportation Agency dismissed her application on the grounds that she was not disabled. There were divided opinions as to the appropriateness of applying the WHO’s recently developed “biopsychosocial” model in determining whether an individual had a disability for the purposes of the Canada Transportation Act, and as to the relative roles of impairment versus activity and participation limitations in determining the existence of a disability.

    The Federal Court of Appeal overturned the decision of the Agency and found that McKay-Panos did in fact have a disability for the purposes of the Act. The Court ruled that determinations as to the existence of a disability must take into account the obstacles faced by the person in question. The Court stated that “it would take very clear words to hold that the existence of a disability is to be determined without regard for context. Arguably, no disability exists in the abstract.”[105]

    ii. Infertility

    Infertility raises analytical difficulties of an opposite nature to those raised by obesity: there is clearly a bio-medical condition and a functional impairment, but the degree to which this may be considered to create social disadvantage is a matter of debate.

    In one of a handful of decisions where superior courts have considered the meaning of the term “disability” under the equality rights provisions of the Charter of Rights and Freedoms, the Nova Scotia Court of Appeal held that medical infertility is a disability under the Charter.[106] The claimants in this case challenged the failure of their province’s health insurance plan to provide coverage for fertility treatments. The Court’s decision moved quickly from the determination that the policy in question drew a distinction based on the personal characteristic of infertility to the determination that persons who are unable to procreate are disabled:[107]

    [I]nfertile people can be classified as physically disabled. True, the disability is not obvious to the eye – they need no ramp or seeing eye dog. Nevertheless, they have a personal characteristic – the inability to have a child – on the basis of which a distinction can be drawn and has in fact been drawn. We must take a “flexible and nuanced approach”. We must make a comparison of the infertile with the conditions of others in the social and political setting in which this claim arises. As long as the indicia of discrimination exist when the distinction is drawn … there is disability here sufficient to meet the requirements of s. 15(1) either as an enumerated or an analogous ground.

    A more recent decision by the Canadian Human Rights Tribunal adopted a slightly different approach to a similar issue. The Tribunal ruled that the refusal of the complainant’s employer, the Canadian Forces, to fund treatment for male factor infertility discriminated on the basis of disability (as well as sex). The Tribunal referenced expert evidence that “most people are ‘hardwired’ to want to have children” and that infertility has a significant psychological impact, as well as the inclusion of infertility in the WHO’s classification system.[108]

    The decision in Cameron has been criticized for its unexamined adoption of a medical model of disability, whereby a serious physical impairment is by definition a disability. In making the determination that infertility is a disability, the decision does not examine the social attitudes surrounding childbearing and infertility, or the existence of historical disadvantages for the infertile, or the particular gendered aspects of infertility. Some have argued that women who claim a reproductive disability have appropriated a disability rights discourse in order to gain access to medical technology, and share little in common with women with disabilities whose disabilities have shaped their access to employment, education, living arrangements and social relations, such that their disability becomes a fundamental part of how they experience the world.[109]

    E. The Human Rights Approach

    1. The Approach: Equality and Dignity for Persons with Disabilities

    The human rights approach to disability is a variant on the social approach. The human rights approach recognizes persons with disabilities as a disadvantaged group, parallel to racialized, LGBT persons, women and other disadvantaged groups, and emphasizes the role of social attitudes and facially neutral systems in creating and perpetuating that disadvantage. The role of impairment in disability is recognized insofar as it is necessary to design accommodations to permit persons with disabilities to achieve equality.[110]

    The aim of the human rights approach is to achieve equality and inclusion for persons with disabilities through the removal of barriers and the creation of a climate of respect and understanding. There is an emphasis on the fundamental and inalienable dignity, value and contribution of all persons, regardless of disability.[111]

    2. United Nations International Convention on the Rights of Persons with Disabilities

    Very recently, the United Nations adopted the International Convention on the Rights of Persons with Disabilities (ICRPD).[112] Canada has not yet ratified the ICRPD, but is expected to do so. The ICRPD is likely to have a significant impact on policy makers in Canada, and on approaches to domestic human rights statutes.

    The purpose of the ICRPD is to promote, protect and ensure the equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent worth and dignity. A key principle of the ICRPD is respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.

    The ICRPD adopts an expansive approach to disability, recognizing that:

    disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.

    The ICRPD explicitly includes in its scope those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. It recognizes the diversity among persons with disabilities.

    3. A Case Study in the Evolution of the Conceptions of Disability

    All three of the Ontario statutes which have as part of their stated purpose the removal of barriers for persons with disabilities use the same definition, which was first incorporated in the Ontario Human Rights Code:[113]

    s. 10(1) “disability” means,

    (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

    (b) a condition of mental impairment or a developmental disability,

    (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

    (d) a mental disorder, or

    (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

    The Code goes on to specifically include past and perceived disabilities. This is a fairly broad definition of “disability” in that it includes physical, sensory, psychiatric, learning, developmental and acquired disabilities, includes “any degree” of physical disability, and includes perceived disabilities, thereby acknowledging at least to some degree the role of social attitudes in disabling individuals. However, the lengthy listing of medical conditions seems to indicate a bio-medical approach to disability.

    This bio-medical definitional approach is interesting, given that the objectives of these statutes are to remove barriers to persons with disabilities, thereby firmly situating them in a social approach to disability. There may therefore be some inherent tension between the purposes of these statutes and the definition of disability adopted.

    The bio-medical aspects of this definition may reflect the fact that in the Code this definition serves a dual purpose: it defines disability for the purpose of requiring the identification and removal of barriers, but it also does so for the purpose of determining who is able to access the mechanisms set out under the Code for seeking redress for discrimination. Persons who are not determined to be disabled within the meaning of section 10(1) of the Code do not fall within its jurisdiction, and cannot file an application (or prior to recent amendments, a complaint) alleging discrimination in the areas of employment, housing, services or contracts. There is therefore significant caselaw interpreting “disability” under the Code.

    One of the most influential decisions in this respect was that of the Human Rights Board of Inquiry in Ouimette v. Lily Cups Ltd.[114] In this 1990 decision, the Board of Inquiry dismissed a complaint based on disability brought by a woman whose employment had been terminated because of absenteeism during her probation period, her absences being due to multiple relatively minor ailments – asthma and a bout of the flu. The Board of Inquiry found that the complainant did not have a “disability” within the meaning of the Code. In order to fall within the ambit of the Code, complainants were required to demonstrate that their impairment was long-lasting, severe and impacted on one of life’s important functions – essentially a functional limitations test. A functional limitations approach became the basis of Ontario’s human rights approach to defining disability throughout the 1990s.

    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)[115] marked a significant shift in the approach to defining disability in human rights law. This case involved a complainant who had a bio-medical impairment (scoliosis), which caused her no functional limitations in her employment, but which nonetheless resulted in the denial of her employment application. The Quebec Commission dismissed the complaint on the ground that the complainant did not have a “handicap”. The Supreme Court of Canada ruled that a broad approach to disability should be adopted, one which recognized the socio-political dimensions of the term. The emphasis should be on the right to equality, human dignity and respect, rather than on the presence or absence of a bio-medical condition. A disability may exist without proof of physical limitations: the emphasis should be on the effects of the distinction, exclusion or preference rather than on the precise cause or origin of the disability.

    Following this decision, the Ontario Human Rights Commission reinterpreted the definitional provisions of the Code in its Policy and Guidelines on Disability and the Duty to Accommodate, adopting a broad social constructionist approach:

    “Disability” should be interpreted in broad terms … Even minor illnesses or infirmities can be “disabilities”, if a person can show that she was treated unfairly because of the perception of a disability. Conversely, a person with an ailment who cannot show she was treated unequally because of a perceived or actual disability will be unable to meet even the prima facie test for discrimination. It will always be critical to assess the context of the differential treatment in order to determine whether discrimination has taken place, and whether the ground of disability is engaged. .. The focus is on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or the presence of an ailment.

    This significant transformation in the approach to disability was followed by a substantial increase in the number of disability-related complaints that the Ontario Human Rights Commission received and dealt with.[116]

    4. Learning from Examples: Addictions

    Approaches to addiction as a disability are inconsistent between various Ontario government programs and policies. Human rights approaches have generally included addictions as a form of disability. However, persons with addictions have been excluded from protections extended to persons with disabilities under other laws.

    Drug and alcohol addictions are considered disabilities under human rights statutes, although the law regarding the nature and scope of the duty to accommodate addictions remains in flux.[117] The Ontario Human Rights Commission’s Policy on Drug and Alcohol Testing[118] states that:

    The Code adopts an expansive definition of the term “handicap” which encompasses physical, psychological and mental conditions. Severe substance abuse is classified as a form of substance dependence9, which has been recognized as a form of disability. Examples include alcoholism and the abuse of legal drugs (e.g. over the counter drugs) or illicit drugs. These types of abuse and dependence therefore constitute a disability within the meaning of the Code.

    However, addiction has not until very recently been considered a disability for the purposes of eligibility for social assistance under the Ontario Disability Support Program. The Ontario Disability Support Program Act states that:[119]

    s. 5(2) A person is not eligible for income support if,

    (a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

    (b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations; and

    (c) the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility.

    That is, persons who are disabled exclusively by addictions could seek social assistance through the Ontario Works Program, but were not eligible for the supports available to other persons with disabilities through the Ontario Disability Support Program. This restriction has been the subject of a long-running court challenge. Very recently, the Ontario Superior Court of Justice ruled that the exclusion from ODSP benefits of persons who are disabled solely by their addictions is inconsistent with the Ontario Human Rights Code, and that persons with addictions are persons with a disability who are entitled to benefits under the ODSP.[120]

    To some degree, the difference in approaches to addictions may reflect perceptions these conditions involve a degree of voluntariness that is not involved in other types of disability – that is, there is no true impairment. The Ontario Court of Justice referenced this element in dismissing a Charter challenge to smoking bans in prisons. Smokers, the Court ruled, did not have a “mental or physical disability”, as

    Addiction to nicotine is a temporary condition which can be voluntarily overcome… It can hardly be compared with the disability of deafness under review in Eldridge.

    Similarly, in Tranchemontagne, the government had argued in part that persons with addictions were uniformly capable of employment, and would benefit from the lower social assistance rates available through Ontario Works because this would limit the amount of money available to spend on their addiction. The exclusion of persons with addictions from the purview of the ODSP therefore did not injure their dignity interests.

    In the smoking ban decision, the Court ultimately placed more importance on weighing the degree of disadvantage and marginalization associated with a condition in determining whether it is a disability. Smokers, the Court ruled, “are not part of a group ‘suffering social, political and legal disadvantage in our society’, unlike persons with addictions to alcohol, whose addiction interferes with their effective physical, social and psychological functioning.”[121] In Tranchemontagne, the Court concluded that the exclusion of persons with addictions from ODSP was based on stereotypes and prejudicial views about addiction, and essentially denied their human worth. [122]

    F. Mixed Models

    In recent years, there has been a movement towards a multi-dimensional approach to disability, aimed at incorporating the insights of both impairment based models and those that adopt the social approach. The most prominent and influential of these is the WHO’s recent International Classification of Functioning, Disability and Health, which replaces the International Classification of Impairments, Disability and Handicaps.

    1. WHO International Classification of Functioning, Disability and Health

    The WHO made a significant shift in approach to disability with the 2001 International Classification of Functioning, Disability and Health (ICF). The ICF is intended to provide a standard framework for the description of health and health-related states and to provide a tool for measuring function in society, regardless of the reason for a person’s impairments.

    The ICF approaches the notion of disability in a manner considerably more nuanced than its predecessor, attempting to synthesize the biomedical and social models of disability. The WHO describes the conceptual approach underlying the ICF as follows:

    ICF puts the notions of “health” and “disability” in a new light. It acknowledges that every human being can experience a decrement in health and thereby experience some degree of disability. This is not something that only happens to a minority of humanity. The ICF thus ‘mainstreams’ the experience of disability and recognises it as a universal human experience. By shifting the focus from cause to impact it places all health conditions on an equal footing allowing them to be compared using a common metric – the ruler of health and disability. Furthermore ICF takes into account the social aspects of disability and does not see disability only as a ‘medical’ or ‘biological’ dysfunction. By including Contextual Factors, in which environmental factors are listed ICF allows us to record the impact of the environment on the person’s functioning.[123]

    The WHO calls this a “biopsychosocial model” of disability.

    The ICF has generally been welcomed as a significant advance on the ICIDH. However, some have criticized its retention of individualistic medical notions of disability and its causes as unnecessarily limiting the scope of disability and perpetuating the biomedical culture.[124] Concerns have also been raised regarding the attempt to integrate the medical and social models, on the basis that the social model is a paradigm, the application of which shifts the entire framework for social policy, and therefore cannot be implemented on a piecemeal basis.[125]

    2. Statistics Canada Measures of Disability

    Governments regularly attempt to measure the incidence and impact of disability in the populace. The information gathered provides a basis for policy and program development, as well as a basis for scholarly research. What is not measured will likely not be addressed; therefore, the approach to the measurement of disability has an important impact on the wellbeing of persons with disabilities.

    In 1986, Statistics Canada carried out the Health and Activity Limitations Survey (HALS). This was a post-censal disability survey aimed at identifying the numbers and distribution of persons with disabilities in Canada, and the barriers that they faced. HALS was run a second time in 1991. HALS was based on the WHO’s ICIDH, and defined disability as a limitation in daily activities resulting from an impairment associated with physical or mental conditions or health problems – that is, a functional limitations approach to disability.

    Also of some relevance is the National Population Health Survey, a longitudinal study commenced in 1994. It does not deal directly with disability issues, but is of interest as it seeks to measure the health of Canadians, the relationship between health and activity limitations and some of the determinants of health. It is based on the Health Utility Index, a measure of functional ability that includes vision, hearing, speech, mobility, dexterity, cognition, emotion and pain/discomfort.[126]

    The Government of Canada has more recently shifted away from these functional approaches in its statistical measurements, adopting the WHO’s newer “biopsychosocial model” of disability. Statistics Canada’s most recent and thorough exploration of the experience of people with disabilities in Canada was the Participation and Activity Limitation Survey (PALS). PALS was initially conducted in 2001; a second survey was completed in 2006. The intent of PALS was to develop a comprehensive national picture of many of the ways in which disability affects the lives of Canadians with disabilities. In designing the PALS survey, Statistics Canada took into account the criticisms of the ICIDH (and therefore the HALS) approach to disability, in particular its focus on disability as linearly caused by a disease or trauma, and its failure to recognize environmental factors in the causation and experience of disability.

    PALS therefore adopted the WHO’s 2001 ICF framework. It views disability as the interrelationship between body functions, activities and social participation, while recognizing that the environment provides either barriers or facilitators. A person is considered to have a disability if they have “a physical or mental condition or a health problem that restricts their ability to perform activities that are normal for their age in Canadian society”. Under PALS, persons with disabilities are those who report difficulty with daily living activities, or who indicate that a physical or mental condition or a health problem reduces the kind or amount of activity that they can do. Survey responses to PALS therefore reflect the perceptions of participants and are subjective – obviously, a different approach from that of many government programs, which require independent professional assessment or other criteria to verify disability. [127]

    PALS categorizes disability by type; the categories are different for children and adults because of the different experiences of these groups. Types of disabilities among children include chronic, delay, developmental, dexterity, hearing, learning, mobility, psychological, seeing and speech. The disability types for adults are agility, developmental, hearing, learning, memory, mobility, pain, psychological, seeing and speech. PALS also attempted to classify disabilities by their severity.

    The PALS approach to identifying disability is now the standard for all Statistics Canada social surveys, whether they are dealing with Aboriginal issues, labour, health or education.

    3. Developing a Mixed Model: Gender Identity

    The law has not yet developed a consistent approach for addressing issues experienced by transgendered persons and related to gender identity. Part of the difficulty arises because the law has not recognized the transgendered community as one with unique experiences and challenges. For example, none of Canada’s human rights statutes includes gender identity as a distinct source of discrimination and ground of protection.[128] Transgendered persons seeking protection from discrimination have therefore had to fit their experiences into existing human rights grounds: sex and/or disability.

    Human rights tribunals and courts have, over the past ten years, consistently recognized that discrimination on the basis of gender identity, for example, in the provision of services such as access to sex-specific facilities, can be understood as a form of sex discrimination.[129] In 2000, the Ontario Human Rights Commission, in its Policy on Discrimination and Harassment because of Gender Identity, recognized discrimination on the basis of gender identity as a form of sex discrimination and indicated that it would receive and deal with human rights complaints on that basis.[130]

    However, complaints regarding discrimination based on gender identity have also frequently been dealt with under the ground of disability, on the basis that the American Psychiatric Association has recognized Gender Identity Disorder as a psychiatric disorder with recognized diagnostic criteria and a set of treatment options that includes sex reassignment surgery. Most human rights complaints brought by transgendered persons are dealt with on the basis of both sex and disability. In a recent decision, the Human Rights Tribunal of Ontario stated that the grounds of sex and disability intersect with respect to transsexuals:

    While GID is the medical condition that constitutes a disability, the transition itself is a highly personal and sensitive decision that requires tremendous sacrifice and courage, and it falls clearly within the ground of sex. However, the transition also requires specialized medical care, in recognition of the physical and psychological aspects involved. Thus, the two grounds under the Code are necessarily intersectional… The danger in adopting the single axis of disability in this instance is that it negates the importance of the discrimination based on sex, and falls back to the bio-medical model of disability discourse, ignoring the social importance of their incomplete transitions to these complainant’s lives, and thus negating the importance of their transsexuality to their own personhood.[131]

    Despite the regular use of the ground of disability in addressing the rights of transgendered persons, this medicalization of the identities of transgendered persons is a source of criticism.[132] It is argued that transgendered persons should be able to receive accommodation and health-related treatments without the negative stereotyping of a psychiatric diagnosis. That is, there is an attempt to move from a disability-rights based analysis to one which recognizes the unique forms of oppression experienced by transgendered persons and a develops a rights-based analysis specific to their circumstances, which would remove the gatekeeping power that the medical profession currently has over transgendered persons. [133]

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