Acknowledgements

The authors wish to acknowledge the tremendous support provided by Miha Dinca, Leanna Yue and Mark Pioro in the research and preparation of this chapter. Our research has been supported generously with research funding from SSHRC.

I. Introduction

This chapter surveys laws and policies in Canada that affect the rights of persons with disabilities. It does so as part of a broader project of international disability rights monitoring, and is guided by DRPI’s National Law and Policy Monitoring Template. ¹ The Template is based on the United Nations Convention on the Rights of Persons with Disabilities. ² Its purpose is to monitor human rights for people with disabilities at the systemic level, that is, at the level of existing laws, policies, and programs, and to identify and draw attention to the most critical gaps and deficiencies in the legislative and policy framework. ³ It provides headings and questions based on the articles in the Convention, arranged by category of rights (civil, political, economic, social and cultural) and human rights principles (dignity; autonomy; participation, inclusion and accessibility; non-discrimination and equality; and respect for difference).

Note #1

(Toronto: DRPI, 2008) [Template].

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Note #2

30 March 2007, 2515 UNTS 3 [Convention].

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Note #3

Supra note 1 at 2.

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Providing an extensive review of disability law and policy in Canada is a large task. This is due to the division of law-making power among federal and provincial legislatures, and the functioning of three distinct branches of government: legislative, executive, and judiciary. Also, measures affecting persons with disabilities are numerous and complex. ⁴ Some of these measures directly target some or all persons with disabilities while others are of general application and affect persons with disabilities, sometimes differently or disproportionately compared with persons who do not have disabilities. ⁵ Likewise, some laws and policies deal with broad human rights principles, and others are specific to certain sectors of society. In focusing on describing these sources, this chapter is unable to engage in the subsequent steps of disability rights monitoring. These next steps include evaluating the operation of the law on the ground, and drawing conclusions on whether norms of the Convention have successfully been implemented in Canada.

Note #4

See Law Commission of Ontario, Principles for the Law as It Affects Persons with Disabilities: Background Paper(Toronto: Law Commission of Ontario, March 2012) at 3.

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Note #5

Ibid.

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This chapter first briefly outlines the Canadian social and legal landscape with respect to disability. It then examines Canadian law and policy under specific parts of the Template, namely: access to justice and equal recognition before the law; education; health, habilitation and rehabilitation; and work. It discusses the most important law and policy instruments from the following Canadian jurisdictions: federal, British Columbia (BC), Manitoba, Ontario, Quebec, and Newfoundland and Labrador. Its analysis thus reflects the geographic and cultural diversity of law and policy in Canada.

General Statistics and Issues Faced by Persons with Disabilities in Canada

Over 4.4 million Canadians, or about one in seven, had a disability in 2006. ⁶ The disability rate increases with age, and although boys are more likely than girls to have disabilities when younger, women are generally more likely than men to have disabilities as they age. ⁷ The 2010 Federal Disability Report states that persons with disabilities “are over-represented within the low-income population” in Canada, with 14.2% of adults with disabilities living in low-income families compared to 10.1% of adults without disabilities. ⁸ This is because persons with disabilities are less likely than persons without disabilities to obtain a high school diploma, and are more likely to live alone. ⁹ The employment and unemployment rates for working-age adults with disabilities are 53.5% and 10.4%, respectively, compared to 75.1% and 6.8% for working-age adults without disabilities. ¹⁰ Income for working-age adults with disabilities decreases as severity of disability increases and those with developmental disabilities have the lowest average employment income. ¹¹ 26.1% of persons with disabilities who are unemployed believe that they were refused jobs due to their disability. ¹² Persons with disabilities are also more likely to live in “inadequate homes” than persons without disabilities (9.9% compared to 6.4%). ¹³ 5.0% of adults with disabilities do not have a needed accessibility feature (e.g. widened hallways or doorways, ramps or visual alarms) for their home. ¹⁴

Note #6

Human Resources and Skills Development Canada, Disability in Canada: A 2006 Profile, (Gatineau: Publishing Services, 2011) at 5.

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Note #7

Ibid. at 6, 7, 10, 16, 20, 25-26, 34-35, 39-41.

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Note #8

Human Resources and Skills Development Canada, 2010 Federal Disability Report, (Gatineau: Publications Services, 2010) at 7-9 (a low-income family is one in which the proportion of their income that they spend on key necessities, such as food, shelter and clothing, is 20 percentage points more than the average family, adjusted for family size and community size at 8)..

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Note #9

Ibid at 7.

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Note #10

Ibid at 43, 46.

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Note #11

Ibid at 9. 

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Note #12

Ibid at 51.

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Note #13

Ibid at 12 (inadequate homes are defined as homes that are in need of major repairs). 

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Note #14

Ibid.

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Access to appropriate and necessary health care is vital in ensuring the well-being of persons with disabilities. ¹⁵ Between 2005 and 2006, 14.8% of adults with disabilities were unable to obtain the necessary health care or social services, most commonly due to “substantial out-of-pocket costs” and because many adults with severe disabilities do not know where or how to obtain such health care. ¹⁶ Around 12.9% of adults with disabilities were unable to take required medication, or had to take less at least once during 2005 and 2006 because of the cost of medication. ¹⁷

Note #15

Ibid at 24.

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Note #16

Ibid at 18.

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Note #17

Ibid at 22.

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Families who have children with disabilities face many barriers to ensuring that their children receive proper education. These barriers include costs …, perceptions that children with disabilities are not career-oriented and the notion that it is difficult to educate children with disabilities in a mainstream education system. ¹⁸ The extent of classroom participation by children with disabilities decreases as severity of disability increases. ¹⁹ Aids and devices are necessary to ensure that children with disabilities are able to participate fully in school. ²⁰ However, 17.9% of children with disabilities do not receive the required aids and devices at school, primarily due to a lack of funding in the school system. ²¹

Note #18

Ibid at 27.

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Note #19

Ibid at 29.

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Note #20

Ibid at 30.

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Note #21

Ibid.

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Participation in the community, political life and cultural activities are important for fully enriched lives. ²² Between 2005 and 2006, 34.4% of persons with disabilities participated in volunteer activities; however, this rate decreases with increasing severity of disability. ²³ Interestingly, in 2008, the overall voter participation rate for the federal election was 75.8% for adults with disabilities, compared to 72.0% for adults without disabilities. ²⁴

Note #22

Ibid at 54.

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Note #23

Ibid.

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Note #24

Ibid at 56.

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United Nations Convention on the Rights of Persons with Disabilities

Canada was one of the first countries to sign the Convention. ²⁵ It entered into force on May 3, 2008. ²⁶ Canada ratified the Convention on March 11, 2010. ²⁷ Prior to ratification, the federal and provincial governments aimed to ensure that laws, policies and programs in Canada were consistent with the Convention. ²⁸ The federal government also participated in community and public consultations. ²⁹ Canada did not sign the Optional Protocol to the Convention on the Rights of Persons with Disabilities,³⁰ which allows individuals or groups to make complaints concerning alleged violations of the provisions of the Convention by State Parties. ³¹ The remainder of this introduction describes Canada’s legal system generally as it is relevant to persons with disabilities.

Note #25

Human Resources and Skills Development Canada, United Nations Convention on the Rights of Persons with Disabilities: National Stakeholder Consultations Report, (Gatineau: Publishing Services, 2011) at 1 [Consultations Report]. 

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Note #26

United Nations, Convention on the Rights of Persons with Disabilities

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Note #27

Consultations Report, supra note 25 at 1

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Note #28

Consultations Report, supra note 25 at 6.

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Note #29

Ibid at 7.

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Note #30

2515 UNTS 3, 30 March 2007.

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Note #31

Consultations Report, supra note 25 at 7.

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National Legal Landscape on Disability

Canada is a federal state that operates under constitutional supremacy, meaning that The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. ³² The human rights of all Canadians (including persons with disabilities) are protected through two main legal regimes: (1) the Canadian Charter of Rights and Freedoms ³³ (which is entrenched in the Constitution Act, 1982), and (2) federal and provincial/territorial human rights legislation. These regimes provide a broad guarantee to equality, prohibiting discrimination on a number of grounds, including disability.

Note #32

Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 

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Note #33

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ibid [Charter]. 

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The Charter is a constitutional document, and applies to federal and provincial governments and matters within their legislative authority. ³⁴ In unclear situations, courts determine whether an entity is a government actor, or whether an act is governmental for the purpose of deciding if the Charter applies. ³⁵ The Charter will notapply in cases of civil litigation with private parties where no act of government is relied upon to support the action. ³⁶ Such a litigant can, however, argue that the common law is inconsistent with Charter values and should be modified. ³⁷

Note #34

Ibid, s 32. 

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Note #35

McKinney v University of Guelph, [1990] 3 SCR 229 at paras 221, 230. 

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Note #36

Retail, Wholesale and Department Store Union, Local 580 [RWDSU] v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 39. 

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Note #37

Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at paras 95-98. 

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Section 15(1) of the Charter states,

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ³⁸

In a s 15(1) challenge, a court is to apply the following two-staged test:

(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? ³⁹

The purpose of section 15 has been described as preventing

the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. ⁴⁰

Section 15(1) promotes substantive rather than formal equality, a concept that rejects the mere presence or absence of difference as an answer to differential treatment but rather focuses on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. ⁴¹

Note #38

Supra note 33.

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Note #39

R v Kapp, [2008] 2 SCR 483 at para 17.

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Note #40

Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 51.

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Note #41

Withler v. Canada (Attorney General), [2011] 1 SCR 396.

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The Supreme Court of Canada has recognized that the history of disabled persons in Canada is largely one of exclusion and marginalization and because of this, persons with disabilities face persistent social and economic disadvantage. ⁴² The recognition of this wider historical context informs a court’s inquiry into disability discrimination claims made under section 15(1). ⁴³ The Supreme Court has also stated generally that in analysing differential treatment based on disability, it is,

useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely, the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks. ⁴⁴

Note #42

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 56.

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Note #43

Ibid at para 55. 

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Note #44

Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 SCR 703.

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While s 15(1) of the Charter aims at preventing governments from engaging in discrimination, s 15(2) enables governments to actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. ⁴⁵ Section 15(2) states that

any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of … mental or physical disability

is not precluded by s 15(1). ⁴⁶ The Supreme Court of Canada has recognized that legislatures need to treat different individuals and groups in different ways in order to govern effectively and that accommodating differences, which is the essence of true equality, frequently requires distinctions to be made. ⁴⁷

Note #45

R v Kapp, supra note 39 at para 16. 

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Note #46

Supra note 33.

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Note #47

Law Society British Columbia v Andrews, [1989] 1 SCR 143 at para 31.

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If a law does not fall under the ambit of s 15(2) and is found to violate s 15(1), a court will consider under s 1 of the Charter whether the measure in question is a reasonable limit[] prescribed by law as can be demonstrably justified in a free and democratic society.⁴⁸ Where a Charter violation is not justified under section 1, a court of competent jurisdiction is allowed to give such remedy as the court considers appropriate and just in the circumstances. ⁴⁹ However, a breach of a Charterright does not necessarily entitle the victim to a remedy. ⁵⁰

Note #48

Supra note 33.

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Note #49

Supra note 33, s 24(1).

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Note #50

R v Waller, 89 BCAC 257 at paras 17-18. 

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While the Charter applies only to governmental action, human rights legislation applies to both the public and private sector. Enacted at the federal and provincial/territorial levels, this legislation prohibits discrimination on several grounds (including disability) in various social spheres, such as employment and the provision of services to the public. ⁵¹ The legislation is enforced through a complaints mechanism. Individuals or groups that encounter discrimination can file a complaint, at no charge, describing the harm they have experienced. ⁵² Complaints may be investigated, ⁵³ settled through mediation, ⁵⁴ or adjudicated before a panel. ⁵⁵ Where a complaint resolved by adjudication and discrimination has been found, the panel may provide remedies including compensation or an order to redress or prevent discrimination. ⁵⁶

Note #51

Canadian Human Rights Act, RSC 1985, c H-6, ss 5-14.1 [CHRA]; Human Rights Code, RSBC 1996, c 210, ss 7-14 [BC HRC]; The Human Rights Code, SM 1987-88, c 45, ss 9-19 [MHRC]; Human Rights Act, 2010, SNL 2010, c H-13.1, ss 9-17, 19, 21 [HRA]; Human Rights Code, RSO 1990, c H.19, ss 1-6 [OHRC]; Charter of Human Rights and Freedoms, RSQ, c C-12, ss 10-19 [Québec Charter].

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Note #52

See e.g. CHRA, ibid, s 40; BC HRC, ibid, s 21; MHRC, ibid, s 22. 

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Note #53

See e.g. CHRA, ibid, ss 43, 44; MHRC, ibid, ss 26-8; OHRC, supra note 51, s 44; HRA, supra note 51, ss 27-9; Québec Charter, supra note 51, s. 62.

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Note #54

See e.g. CHRA, ibid, ss 47, 48; BC HRC, supra note 51, s 27.6; MHRC, ibid, s 29(2); HRA, ibid, s 26; Québec Charter, ibid, s. 62.

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Note #55

See e.g. CHRA, ibid, s 53; BC HRC, ibid, s 37; MHRC, ibid, s 29(3); OHRC, supranote 51, s 45.2; HRA, ibid, Part V; Québec Charter, ibid, s. 80.

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Note #56

CHRA, ibid, ss 49(2), 50, 53. BC HRC, ibid, s 37; MHRC, ibid., s 43(2); OHRC, ibid, ss 34(1), 45.2; HRA, ibid, ss 35, 39; Québec Charter, ibid, s 49.

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Canada has developed a rich jurisprudence establishing key human rights principles. Of particular importance to persons with disabilities is the duty to accommodate. This principle requires governments and the private sector to restructure their policies, practices and standards to include the needs of persons with disabilities. ⁵⁷ For example, urban transportation systems must accommodate persons who use wheelchairs or other mobility aids. ⁵⁸ The duty to accommodate does not apply to those situations where the accommodation required would cause undue hardship such as extreme cost, significant business disruption or serious safety risks. ⁵⁹ Special programs to prevent disadvantage or relieve hardship are not considered discriminatory, but the requirements and implementation of such programs differ depending on jurisdiction. ⁶⁰

Note #57

See generally Canadian Human Rights Commission, Duty to Accommodate Frequently Asked Questions & Answers, CHRC [Duty to Accommodate FAQ].

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Note #58

David Baker & Sarah Godwin, ALL ABOARD!: The Supreme Court of Canada Confirms that Canadians with Disabilities Have Substantive Equality Rights (2008) 71 Sask L Rev 39 at 56-57.

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Note #59

Duty to Accommodate FAQ, supra note 57.

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Note #60

CHRA, supra note 51, s 16; BC HRC, supra note 51, s 42; MHRC, supranote 51, s 11; HRA, supranote 51, s 8; OHRC, supranote 51, s 14; Québec Charter, supra note 51, ss 86-92. 

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II. Equal Recognition before the Law and Access to Justice

Equal Recognition before the Law

Under article 12 of the Convention, persons with disabilities must be recognized as persons before the law ⁶¹ and enjoy legal capacity on an equal basis with others in all aspects of life. ⁶² State Parties must provide support to persons with disabilities to exercise their legal capacity, and implement safeguards to prevent abuse of the support provided. ⁶³ They must also take measures to ensure that persons with disabilities have an equal right to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit and that they are not arbitrarily deprived of their property. ⁶⁴

Note #61

Supra note 2, art 12(1).

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Note #62

Ibid, art 12(2). 

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Note #61

Supra note 2, art 12(1).

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Note #63

Ibid, arts 12(3), 12(4).

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Note #64

Ibid, art 12(5).

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A survey of Canadian law reveals many examples of legislative provisions relating to civil capacity and incapacity. For example, in BC, adults are presumed capable of

making decisions about personal care, health care and legal matters and about the routine management of the adult’s financial affairs. ⁶⁵

An adult is also presumed capable of making a representation agreement which allows the adult to name an individual to help make decisions regarding various matters, such as the routine management of financial affairs and obtaining legal services. ⁶⁶ The Civil Code of Québec states that every human being possesses juridical personality and has the full enjoyment of civil rights ⁶⁷ and that every person is fully able to exercise his civil rights. ⁶⁸ More generally, the Québec Charter of Human Rights and Freedoms states,

Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. ⁶⁹

Note #65

Representation Agreement Act, RSBC 1996, c 405, s 3(1)(b) [RAA].

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Note #66

Ibid, ss 3(1)(a), 5, 7.

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Note #67

art 1 CCQ.

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Note #68

art 4 CCQ.

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Note #69

Supra note 51, s 6.

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In Manitoba and Ontario, a person is incapable of managing property where the person

is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. ⁷⁰

A capable person may appoint a substitute decision-maker under a power of attorney. ⁷¹ Where it is believed that a person is incapable of managing property, an individual can apply ⁷² or be appointed as a guardian of the incapable person’s property. ⁷³

Note #70

The Vulnerable Persons Living with a Mental Disability Act, SM 1993, c 29, s 81 [VPA]; Substitute Decisions Act, 1992, SO 1992, c 30, s 6 [SDA]. The Newfoundland statute contains a definition for mentally disabled personwith similar effect. See Mentally Disabled Persons’ Estates Act, RSNL 1990, c M-10, s 2(f) [MDPEA].

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Note #71

See e.g. The Powers of Attorney Act, CCSM c P97, s 10; Ontario, Ministry of the Attorney General, A Guide to the Substitute Decisions Act, (Ontario: Publications Ontario, 2000) at 4-5 [Ontario, A Guide to the SDA].

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Note #72

See e.g. VPA, supra note 70, s 82(1).

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Note #73

See e.g. Ontario, A Guide to the SDA, supra note 71 at 4-5; MDPEA, supra note 70, s 3(1) (a court is also entitled to make a declaration that a person is incapable of managing his or her affairs without making a declaration of mental disability, see s 17(1)); art 258 CCQ (in Québec, similarly, a tutor, curator, or adviser may be appointed).

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The relevant statutes also lay out the duties and powers of the substitute decision-maker. They are those of a fiduciary, meaning their powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith for the benefit of the person with a disability. ⁷⁴ A breach of duty may not lead to liability if, in BC, the representative complies with the relevant statute, ⁷⁵ and in Manitoba and Ontario, if the representative acted honestly, reasonably and diligently. ⁷⁶ A decision-maker must encourage the participation of the person with a disability in the making of a decision. ⁷⁷ In all five provinces, there are provisions regarding the termination of a decision-maker, which typically occurs when an agreement ends or a decision-maker is discharged. ⁷⁸ The duties and powers of a substitute decision-maker in Québec depend on whether a tutor, curator or adviser is appointed, and are laid out in Chapter III of Title Four of the Civil Code of Québec. ⁷⁹The provinces have similar regimes for addressing the appointment, obligations and rules regarding decision-makers for personal and/or health care. ⁸⁰

Note #74

VPA, supra note 70, s 99; SDA, supra note 70, s 32(1). For a similarly worded statute, see RAA, supra note 65, s 16(1). Newfoundland’s MDPEAdoes not explicitly set out the requirements regarding good faith or integrity. These would be prescribed by the common law (see Vincent v. Kirkpatrick, 238 Nfld & PEIR 342 at para 34 (NLSC – TD).

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Note #75

RAA, ibid, s 23(1).

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Note #76

VPA, supra note 70, s 107(2); SDA, supra note 70, s 33(2).

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Note #77

See e.g. RAA, supra note 65, s 16(2); VPA, ibid, s 103; SDA, ibid, s 32(3). 

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Note #78

RAA, ibid, ss 27-29; VPA, ibid, ss 92(6), 130(1), 136; SDA, ibid, ss 12, 20, 28; MDPEA, supra note 70, s 19; arts 295-297 CCQ.

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Note #79

arts 256-297 CCQ.

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Note #80

RAA, supra note 65, s 2(a), VPA, supra note 70, Division 3; SDA, supranote 70, Part II; Advance Health Care Directives Act, SNL 1995, c A-4.1, s 3; arts 11-25 CCQ; An Act respecting health services and social services, RSQ, c S-4.2, ss 9, 10. 

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Access to Justice

Under article 13 of the Convention, State Parties are required to ensure

effective access to justice for persons with disabilities on an equal basis with others

through appropriate accommodations in order for persons with disabilities to participate directly and indirectly in all legal proceedings. ⁸¹ To carry out this obligation, State Parties are to provide appropriate training for those who work in the field of the administration of justice. ⁸² Corollary obligations include ensuring that accommodation is not seen as discriminatory, and that women and children with disabilities have full and equal enjoyment of all human rights and fundamental freedoms. ⁸³ Finally, access to justice obligations would not be fulfilled unless persons with disabilities were able to obtain an effective remedy for a human rights violation through a competent authority provided by the legal system of the state. ⁸⁴

Note #81

Supra note 2, art 13(1).

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Note #82

Ibid, art 13(2). 

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Note #83

Ibid, arts 5(4), 6(1), 7(1).

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Note #84

Ibid, art 4(1)(e). 

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There are various accommodations federally and provincially that enable persons with mental or physical disabilities to participate in legal proceedings both directly and indirectly. A litigation guardian may bring or answer a proceeding on behalf of a person under a disability, whose definition includes minors and those who are mentally incompetent or incapable. ⁸⁵ A court can remove, appoint or substitute a litigation guardian if it is in the best interests of the person with a disability. ⁸⁶ In claims involving a person under a disability, the court must approve a settlement before it is binding. ⁸⁷

Note #85

Supreme Court Civil Rules, BC Reg 168/2009, s 20-2(2) [SCCR]; Court of Queen’s Bench Rules, Man Reg 553/88, ss 1.03, 7.01 [CQBR]; Rules of Civil Procedure, RRO 1990, Reg 194, ss 1.03(1), 7.01(1) [RCP]; Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D, ss 1.03(o), 8.01(1) [RSC]. In Ontario, a litigation guardian may be appointed where a person under a disability is not a party, but nonetheless requires separate representation (see RCP, s 7.04(3)). Québec has a distinct but generally similar regime for the protection of the interests of individuals without full legal capacity (see Title Four CCQ).

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Note #86

SCCR, ibid, s 20-2(11); RSC, ibid, s 8.02(4); CQBR, ibid, s 7.06(2); RCP, ibid, s 7.06(2).

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Note #87

SCCR, ibid, s 20-2(17); CBQR, ibid, 7.08(1); RCP, ibid, s 7.08(1); RSC, ibid, s 8.06. 

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In Ontario, the Human Rights Legal Support Centre provides advice and assistance, legal and otherwiseregarding the making of an application to the Human Rights Tribunal. ⁸⁸ The Centre was implemented as a result of the Ontario government’s decision to remove the default public investigation and prosecution of human rights complaints and to leave it to victims to investigate and bring their cases privately before the Tribunal. ⁸⁹ In contrast, in Newfoundland, the Human Rights Commission is required to

co-operate with and help a person, an organization or a group concerned with human rights, whether within or outside the province. ⁹⁰

Note #88

OHRC, supra note 51, s 45.13(1).

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Note #89

See AODA Alliance, AODA Alliance Calls on Independent Review of Ontario’s Human Rights Enforcement to Hold Open, Accessible, Public Hearings (17 November 2011).

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Note #90

HRA, supra note 51, s 23(f).

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There are a variety of other provisions that assist persons with disabilities to take part directly or indirectly in various legal proceedings. Section 14 of the Charterstates that a party or witness to any proceeding who is deaf has the right to the assistance of an interpreter.⁹¹ Under the Canada Evidence Act, where a witness has a physical or mental disability and has difficulty communicating, the court may permit him or her to give evidence by any means that enables the evidence to be intelligible, provided that he or she has the necessary capacity. ⁹² The Act also states that a person whose mental capacity to testify as a witness is challenged may testify if he or she can communicate the evidence and promises to tell the truth. ⁹³ In 2012 a majority of the Supreme Court of Canada held that the individual need not explain that he or she understands the duty to tell the truth. ⁹⁴

Note #91

Supra note 33. The Supreme Court of Canada emphasized the importance of this right in R v Tran, [1994] 2 SCR 951 at paras 38-39, saying it goes to the very integrity of the administration of criminal justice in this country.

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Note #92

RSC 1985, c C-5, s 6. 

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Note #93

Ibid, s 16.

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Note #94

R. v. D.A.I., 2012 SCC 5 at para 23.

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The Criminal Code provides for supports and accommodations for disabled witnesses and jurors. ⁹⁵Unique to Ontario is the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), which applies to

every person or organization in the public and private sectors of the Province of Ontario, including the Legislative Assembly of Ontario. ⁹⁶

The Accessibility Standards for Customer Serviceregulation states that service provides must provide for training about the provision of services to persons with disabilities.  ⁹⁷ The Ontario Courts Accessibility Committee was developed in 2007 with the goal of making Ontario’s courts more accessible to persons with disabilities. ⁹⁸ The Rules of Professional Conduct for lawyers in Ontario contains an example of rule-making by a professional licensing body that serves to promote the rights of persons with disabilities. Rule 2.02(6) states that when working with a client under a disability, licensees are to as far as reasonably possible, maintain a normal lawyer and client relationship. ⁹⁹

Note #95

RSC 1985, c C-46, ss 486.1(1), 627.

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Note #96

SO 2005, c 11, s 4 [AODA].

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Note #97

O Reg 429/07, s 6(1).

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Note #98

Justice Susan Lang & Ann Merritt, A Message from the Ontario Courts Accessibility Committee Chairs (8 July 2011), available online at the Ontario Ministry of the Attorney General.

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Note #99

Law Society of Upper Canada, Rules of Professional Conduct (22 September 2011). The Law Society of Upper Canada’s Paralegal Rules of Conduct(22 September 2011), s 3.02(7) contains an almost identical rule.

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Equal Rights to Human Rights and Fundamental Freedoms

Section 28 of the Charter guarantees the rights and freedoms within the Charter equally to male and female persons. Under the Québec Charter,

Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights. ¹⁰⁰

The rights in the Québec Charter are also guaranteed equally to women and men. ¹⁰¹

Note #100

Supra note 51, s 23.

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Note #101

Ibid, s 50.1. 

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Right to Life, Liberty and Security of the Person

The Convention also requires State Parties to ensure that persons with disabilities have the right to life, liberty and security of the person on an equal basis with others, that they are not deprived of this right arbitrarily or unlawfully, and if liberty is deprived, it is on an equal basis with others and is in compliance with international human rights law and the Convention. ¹⁰² These rights also include freedom from torture or cruel, inhuman or degrading treatment or punishment and freedom from exploitation, violence and abuse. ¹⁰³ Finally, State Parties must ensure that persons with disabilities have liberty of movement and freedom to choose a residence and nationality on an equal basis with others. ¹⁰⁴

Note #102

Convention, supra note 2, arts 10, 14.

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Note #103

Ibid, arts 15, 16.

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Note #104

Ibid, art 18.

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Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ¹⁰⁵

As section 7 includes everyone, persons with disabilities are protected on an equal basis with persons without disabilities. Section 7 is not limited to criminal or penal matters. ¹⁰⁶ In R v Malmo-Levine; R v Caine, the Court stated that a principle of fundamental justice under section 7 is

a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. ¹⁰⁷

The Quebec Charter employs similar language, stating that

Every human being has a right to life, and to personal security, inviolability and freedom

and

No one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure. ¹⁰⁸

Note #105

Supra note 33.

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Note #106

Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307 at para 45 [Blencoe].

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Note #107

2003 SCC 74, [2003] 3 SCR 571 at para 113.

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Note #108

Supra note 51, ss 1, 24.

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The liberty interest in section 7 is engaged

where state compulsions or prohibitions affect important and fundamental life choices

and is not limited

to mere freedom from physical restraint. ¹⁰⁹

However, this personal autonomy has been found not to be synonymous with unconstrained freedom. ¹¹⁰ In the Supreme Court of Canada decision in R v Morgentaler, the plurality judgment of Beetz J held that security of the person under section 7 includes

a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. ¹¹¹

The concurring judgment of Wilson J held that the right to liberty grants the individual a degree of autonomy in making decisions of fundamental personal importance. ¹¹²  In Rodriguez v British Columbia (Attorney General), the Supreme Court interpreted the judgments in Morgentaler as holding that

personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. ¹¹³

In Rodriguez, the applicant had Lou Gehrig’s disease, and wanted the choice to end her life when she would no longer be able to enjoy it, with the assistance of a physician. ¹¹⁴ The applicant asked that the prohibition of assisted suicide in the Criminal Code be declared invalid on the ground that it violated her section 7, 12 ¹¹⁵ and 15(1) Charter rights. ¹¹⁶ In discussing section 7, the Court stated that

security of the person, by its nature, cannot encompass a right to take action that will end one’s life as security of the person is intrinsically concerned with the well-being of the living person

and

human life is seen to have a deep intrinsic value of its own. ¹¹⁷

The Court concluded that the assisted suicide provision did not violate any principle of fundamental justice ¹¹⁸because

human life must be respected and we must be careful not to undermine the institutions that protect it. ¹¹⁹

Note #109

Blencoe, supra note 106 at para 49.

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Note #110

Ibid at para 54.

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Note #111

[1988] 1 SCR 30 at para 87.

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Note #112

Ibid, at para 230.

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Note #113

[1993] 3 SCR 519 at para 136 [Rodriguez].

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Note #114

Ibid at paras 1-2. 

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Note #115

That is, the right not to be subjected to any cruel and unusual treatment or punishment (supra note 33).

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Note #116

Rodriguez, supra note 113 at para 3.

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Note #117

Ibid at para 129. 

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Note #118

Ibid at para 175.

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Note #119

Ibid at para 173.

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Under Part XX.1, section 672.54 of the Criminal Code, an accused who has been found not criminally responsible (NCR) may be discharged absolutely, discharged with conditions or detained in custody in a hospitaldepending on

the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. ¹²⁰

The disposition made must be the least onerous and least restrictive to the accused. ¹²¹ The Supreme Court of Canada has explained that throughout the NCR process,

the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused. ¹²²

The Court concluded that the NCR scheme does not violate section 7 of the Charter. ¹²³ Sections 8-14 of the Charter detail specific deprivations of the right set out in section 7, including the right to be free from unreasonable search and seizure and the right not to be arbitrarily detained or arrested. ¹²⁴

Note #120

Supra note 95.

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Note #121

Ibid.

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Note #122

Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 at para 43.

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Note #123

Ibid at para 73.

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Note #124

See Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 SCR 486 at para 27.

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Freedom from Exploitation, Violence and Abuse

The Criminal Code prohibits the sexual exploitation of a person with a disability. ¹²⁵ The offence is made out where someone in a relationship of authority or dependency has sexual contact with a person who has a disability and there is no consent. ¹²⁶ Under section 215(1)(c), everyone is under a legal duty

to provide necessaries of life to a person under his charge if that person … is unable, by reason of … mental disorder … to provide himself with the necessaries of life. ¹²⁷

Other provisions in the Criminal Code that are of more general application also address exploitation, violence and abuse against persons with disabilities. These include, for example, the criminal negligence, abandoning child, and child pornography provisions. ¹²⁸

Note #125

Supra note 95, s 153.1.

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Note #126

Ibid, s 153.1(1).

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Note #127

Ibid.

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Note #128

Ibid, ss 163.1, 218-221.

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In BC, the Adult Guardianship Act provides support and assistance to

adults who are abused or neglected and who are unable to seek support and assistance

due to physical restraint or a physical handicap. ¹²⁹Community care facilities (defined as premises in which a person provides care to three or more persons who are not related by blood or marriage) are governed by the regulations of the Community Care and Assisted Living Act. ¹³⁰ A licensee of a community care facility must ensure that a person in care is not subjected to financial abuse, emotional abuse, physical abuse, sexual abuse or neglect. ¹³¹ Legislation in other provinces similarly protects persons with disabilities against abuse or neglect. ¹³² Statutes of more general application, such as those that protect persons from family violence, may be applicable in preventing exploitation, violence and abuse of persons with disabilities. ¹³³

Note #129

RSBC 1996, c 6, s 44.

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Note #130

SBC 2002, c 75, s 1; BC Reg 96/2009.

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Note #131

BC Reg 96.2009, ibid, s 52.

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Note #132

See e.g. VPA, supra note 70, ss 20.1, 20.2; Protection for Persons in Care Act, CCSM c P144, s 2; Long-Term Care Homes Act, 2007, SO 2007, c 8, s 19(1), 20; Neglected Adults Welfare Act, RSNL 1990, c N-3 (to be replaced by Bill 1, An Act Respecting the Protection of Adults, 4th Sess, 46th General Assembly, Newfoundland and Labrador, 2011 (assented to May 31, 2011), SNL 2011, cA-4.01).

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Note #133

See e.g. The Domestic Violence and Stalking Act, SM 1998, c 41. 

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Freedom of Movement and Nationality

The Charter provides that

Every citizen of Canada has the right to enter, remain in and leave Canada. ¹³⁴

Every citizen and permanent resident of Canada also has the right to move to and take up residence in any province as well as to pursue the gaining of a livelihood in any province. ¹³⁵ The Supreme Court of Canada has ruled that

[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. ¹³⁶

Under section 38(1)(c) of the Immigration and Refugee Protection Act, a foreign national will generally be inadmissible to Canada on health grounds if his or her health condition might reasonably be expected to cause excessive demand on health or social services. ¹³⁷ An individualized assessment must be made where

the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services. ¹³⁸

Note #134

Supra note 33, s 6(1).

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Note #135

Ibid, s 6(2). 

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Note #136

Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at para 24.

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Note #137

SC 2001, c 27.

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Note #138

Hilewitz v Canada (Minister of Citizenship and Immigration); De Jong v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 706 at para 55.

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III. Education

Inclusive Education System with Accommodation

Article 24 of the Convention requires State Parties to recognize the right of persons with disabilities to education without discrimination. In particular, State Parties must ensure that persons with disabilities are not excluded from the general education system and have access to an inclusive, quality and free primary and secondary education on an equal basis with others. ¹³⁹ There must also be reasonable accommodation and support measures provided to persons with disabilities in an environment that maximize[s] academic and social development to ensure an effective education. ¹⁴⁰

Note #139

Convention, supra note 2, arts 24(2)(a), 24(2)(b).

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Note #140

Ibid, arts 24(2)(c), 24(2)(d).

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Education is a service under human rights legislation. ¹⁴¹ Also, the Charter applies to the public education system. ¹⁴² Thus, any potentially discriminatory action taken by a school or school board is reviewable through the human rights complaints process or through Charterlitigation. In addition, legislation ¹⁴³ and policy ¹⁴⁴ specific to education sets out the right of every child between certain ages to free education, ¹⁴⁵ and aims to accommodate students with disabilities. The BC Supreme Court has stated that all students are entitled to an appropriate educational program and that a specialized, varied and dynamic program might be necessary. ¹⁴⁶ The Special Education Policy in that province states:

All students should have equitable access to learning, opportunities for achievement, and the pursuit of excellence in all aspects of their educational programs. ¹⁴⁷

BC aims for an inclusive education system which does not necessarily mean full integration in regular classrooms, but includes meaningful participation and the promotion of interaction with others. ¹⁴⁸ School boards may also make use of resource rooms, self-contained classes, community-based programs, or specialized settings. ¹⁴⁹ Students will only be placed in a setting other than

a neighbourhood school classroom with age and grade peers

where the school board

has made all reasonable efforts to integrate the student, and it is clear that a combination of education in such classes and supplementary support cannot meet their education or social needs, or when there is clear evidence that partial or full placement in another setting is the only option after considering their educational needs or the educational needs of others. ¹⁵⁰

An Individual Education Plan is to be developed for students with special needs, which must be reviewed every year. ¹⁵¹

Note #141

Jaffer v York University(2010), 268 OAC 338 (CA) at para 36 [Jaffer]. 

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Note #142

See e.g. Wynberg v Ontario (2006), 82 OR (3d) 561 (CA).

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Note #143

School Act, RSBC 1996, c 412; The Public Schools Act, RSM 1987, c P250 [PSA]; The Education Administration Act, RSM 1987, c E10; Schools Act, 1997, SNL 1997, c S-12.2; Education Act, RSO 1990, c E.2; Education Act, RSQ, c I-13.3 [Québec Education Act].

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Note #144

See e.g. British Columbia Ministry of Education, School Act Ministerial Orders; British Columbia Ministry of Education, Special Education Services: A Manual of Policies, Procedures and Guidelines, (British Columbia: Ministry of Education, 2011) [BC Special Education Services]; Manitoba Education, Citizenship and Youth, Appropriate Educational Programming in Manitoba: Standards for Student Services(Winnipeg: Minister of Education, Citizenship and Youth, 2006)[Manitoba Educational Programming]; Newfoundland Labrador Department of Education, Inclusive School Culture, online: [“Inclusive School Culture”]; Ontario Ministry of Education, Special Education; 

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Note #145

BC School Act, supra note 143, ss 2(1), 75(1); PSA, supra note 143, s 259(1); Schools Act, supra note 143, s 3(1); Education Act, supra note 143, ss 32-33; Québec Education Act, supra note 143, s 1.

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Note #146

Hewko (guardian ad litem of) v British Columbia(2006), 153 ACWS (3d) 367 at para 275.

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Note #147

BC Special Education Services, supra note 144 at 1. 

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Note #148

Ibid at 2.

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Note #149

Ibid.

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Note #150

Ibid at 2-3.

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Note #151

Ibid at 3.

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In Manitoba, school boards are required to ensure that

as far as reasonably practicable, appropriate educational programming is available to a pupil in a regular class of his or her peers. ¹⁵²

Manitoba endorses inclusive education to allow

every individual to feel accepted, valued and safe. ¹⁵³

School divisions are required to provide reasonable accommodation for all students. ¹⁵⁴ A pupil may be referred to a specialized assessment which may identify

other methods of differentiated instruction and adaptations that can be used to assist the pupil in meeting the expected learning outcomes, ¹⁵⁵

and if those adaptations are insufficient, an individual education plan is to be prepared, setting out the learning outcomes that can be reasonably expected and what the pupil requires to meet those outcomes. ¹⁵⁶ School divisions are also required to

make reasonable efforts to plan with community agencies, organizations and associations, other education authorities, and regional health and children’s services authorities to support appropriate educational programming for students. ¹⁵⁷

Note #152

Appropriate Educational Programming Regulation, Man Reg 155/2005, s 2(2). 

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Note #153

Manitoba Educational Programming, supra note 144 at 1. 

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Note #154

Ibid at 9.

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Note #155

Appropriate Educational Programming Regulation, supra note 152,s 4(5)(a).

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Note #156

Ibid, ss 4(1), 4(2), 4(5), 5. 

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Note #157

Manitoba Educational Programming, supra note 144 at 21. 

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Newfoundland supports an inclusive school culture, meaning that

everyone in the school … should feel that they belong, realize their potential, and contribute to the life of the school. ¹⁵⁸

65 schools have entered the Inclusive Schools Initiative since 2008, which supports the learning of inclusive practices, differentiated instruction, and co-teaching methods for educators. ¹⁵⁹ However, inclusive education

does not mean that every student is required or expected to be in the regular classroom 100% of the time. ¹⁶⁰

Students will start out in the regular classroom and the learning needs of students will be accommodated through Instruction Resource Teachers and Classroom/Subject Teachers. ¹⁶¹

Note #158

Inclusive School Culture, supra note 144. 

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Note #159

Ibid.

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Note #160

Ibid.

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Note #161

Ibid.

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In Ontario, school boards must provide special education programs and services for exceptional pupils. ¹⁶² The Minister must also ensure that all exceptional pupils in Ontario have appropriate special education services without payment of fees. ¹⁶³ Where a program is not feasible within the public school system, the Minister does not fail to comply with this provision. ¹⁶⁴ As well, where there are alternative programs, the Minister is not required to provide any specific program but only to ensure that appropriate special education programs and services are available. ¹⁶⁵ An Individual Education Plan must be developed for each exceptional student, and should describe the program or services required by that student. ¹⁶⁶

Note #162

Education Act, supra note 143 s 170(1)(7).

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Note #163

Ibid s 8(3).

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Note #164

Wynberg v Ontario, supranote 142 at paras 122, 126.

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Note #165

Ibid at para 129.

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Note #166

Special Education, supranote 144.

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In Québec, an individualized education plan must be developed for handicapped students. ¹⁶⁷ Every school board must have an advisory committee on services for handicapped students which helps create policies on how to organize the provision of educational services required by these students. ¹⁶⁸ The school board must then put these policies into place to ensure that the needs of handicapped students are met and to encourage integration into a regular classroom where possible. ¹⁶⁹ Under An Act to Secure Handicapped Persons in the Exercise of Their Rights with a View to Achieving Social, School and Workplace Integration (SSWI), every handicapped person can apply to the Office des personnes handicapées du Québec for a service program to assist in his or her education, school integration or rehabilitation. ¹⁷⁰

Note #167

Québec Education Act, supra note 143, s 96.14.

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Note #168

Ibid, ss 185, 187(1).

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Note #169

Ibid, s 235.

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Note #170

RSQ, c E-20.1, ss 45, 50 [SSWI].

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In Eaton v Brant County Board of Education, the Supreme Court of Canada recognized that disability, as an enumerated ground of discrimination in section 15 of the Charter, is different from the other grounds because it varies depending on the individual and the context. ¹⁷¹This creates a difference dilemma because segregation can either be protective or violative of equality depending on the specific individual. ¹⁷² The Court held that

[w]hile integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality. ¹⁷³

Therefore, when the integrated setting is unable to meet a child’s needs, a special education placement outside of this setting will be required for accommodation. ¹⁷⁴ Moreover, accommodation must be in the child’s best interests and considerations of equality must be examined from the child’s point of view. ¹⁷⁵ In that case, the Court found it important that the tribunal whose decision it was reviewing had held that integration resulted in the child being isolated in a disserving and potentially insidious way. ¹⁷⁶

Note #171

[1997] 1 SCR 241 at para 69 [Eaton].

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Note #172

Ibid.

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Note #173

Ibid.

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Note #174

Ibid at para 77

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Note #175

Ibid.

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Note #176

Ibid at para 75. 

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Delivery of Education in Appropriate Languages and Modes

State Parties are required to

enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. ¹⁷⁷

Therefore, State Parties must ensure that education is delivered in an appropriate manner by facilitating the learning of Braille, sign language, alternative script, and augmentative and alternate modes and means of communication. ¹⁷⁸ In BC, there are a variety of services available to meet the diverse needs of students who require different supports to learn. ¹⁷⁹ School districts may offer speech-language pathology services, which support students who have difficulties in oral communication. ¹⁸⁰ They are also encouraged to obtain an occupational therapist or physiotherapist where students require one for the purpose of learning. ¹⁸¹ In addition, distributed learning is available as

an alternative to classroom-based instruction for Kindergarten to Grade 12 students, including those with special needs. ¹⁸²

Note #177

Convention, supra note 2, art 24(3).

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Note #178

Ibid.

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Note #179

BC Special Education Services, supra note 144 Ibid at 23-39.

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Note #180

Ibid at 31.

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Note #181

Ibid at 34.

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Note #182

Ibid at 38. 

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In Manitoba, a team of education consultants work with schools to provide the necessary supports to students who are blind or visually impaired. ¹⁸³ The consultants determine needs for special equipment, and then work with schools to obtain the recommended equipment. ¹⁸⁴ Reading materials in audio, Braille, large print and electronic text can be obtained from Manitoba Education Alternate Format Services. ¹⁸⁵ The development of an Individual Education Plan plays a large role in ensuring the student receives the necessary supports for learning. ¹⁸⁶ In Newfoundland, a student with an exceptionality is defined as a student with certain strengths or needs, which may be cognitive, emotional, behavioural, medical, social or physical. ¹⁸⁷ The Department of Education provides various supports and services for students with an exceptionality. General services include alternate format materials, assistive technology, home tutoring, special transportation and a student assistant. ¹⁸⁸

Note #183

Manitoba Education, Manitoba Education Services for Students Who Are Blind or Visually Impaired, at 5.

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Note #184

Ibid at 9.

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Note #185

Ibid at 11.

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Note #186

Ibid at 4.

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Note #187

Newfoundland Labrador Department of Education, Disabilities, Exceptionalities and Services.

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Note #188

Newfoundland Labrador Department of Education, General Services.

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In Ontario, a student who, because of a visual and/or auditory handicap (that has been certified by a medical practitioner) requires a special educational program, may be admitted to an Ontario School for the Blind or an Ontario School for the Deaf without the payment of fees. ¹⁸⁹ An Ontario court has found that

once an auditory handicap is established, the placement will follow unless the Committee is satisfied that the applicant would not be able to benefit from the placement. ¹⁹⁰

A teacher may use American Sign Language or Québec Sign Language to communicate with a student in the classroom. ¹⁹¹ For students where an Individual Education Plan is developed, it will specify the

appropriate accommodations, program modifications and/or alternative programs as well as specific instructional and assessment strategies. ¹⁹²

Note #189

Ontario Schools for the Blind and the Deaf, RRO 1990, Reg 296, ss 3(1), 9. 

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Note #190

Baggs (Litigation guardian of) v Ontario (Minister of Education) (2009), 251 OAC 230, at para 47 (Div Ct); Ontario Schools for the Blind and the Deaf, ibid, s 8(1).

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Note #191

Operation Of Schools – General, RRO 1990, Reg 298, s 32.

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Note #192

Ontario Ministry of Education, The Individual Education Plan Process.

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In Québec, students who have a profound intellectual impairment are provided with various educational, medical and physical rehabilitation services by the school. ¹⁹³ A school board can also enter into agreements with another school board, body or person to provide special educational services, literary services or population education services. ¹⁹⁴

Note #193

Québec Ministère de l’Éducation, du Loisir et du Sport, Education Program for Students With a Profound Intellectual Impairment, (Québec: Ministère de l’Éducation, du Loisir et du Sport, 2011), at 23.

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Note #194

Québec Education Act, supra note 143, s 213.

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Teachers and Training

To ensure effective learning, State Parties must take appropriate measures to employ teachers who are qualified in sign language and/or Braille and to train professionals and staff who work at all levels of education. ¹⁹⁵ In general, teachers in the various provinces must meet certification or licensing requirements in order to teach in the public school system. Particular certification is required for those working in specific roles with children with special needs. ¹⁹⁷ More general training is provided to other staff about working with students with special needs. ¹⁹⁸

Note #195

Convention, supra note 2, art 24(4). For example, training must involve disability awareness, modes of communication, as well as methods and materials to support persons with disabilities.

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Note #196

See e.g. PSA, supra note 143, s 91(1); Newfoundland Labrador Department of Education, Teacher Certification; Ontario Education Act, supra note 143, s 262; Québec Education Act, supra note 143, s 23.

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Note #197

See e.g. BC Special Education Services, supranote 144 at 25-29; Ontario Schools For The Blind And The Deaf, supra note 189, s 23; Operation Of Schools – General, supra note 191, s 19(6).

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Note #198

See e.g. BC Special Education Services, supranote 144 at 6-7; Manitoba Educational Programming, supra note 144 at 22; Inclusive Schools Culture, supra note 144.

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Access to General Tertiary Education, Vocational Training and Adult Education

State Parties to the Convention must ensure that persons with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning on an equal basis with others and that reasonable accommodation is provided. ¹⁹⁹ BC offers adult special education programs and services to assist persons with disabilities in post-secondary studies. ²⁰⁰ Support services may be technological, physical, or academic (e.g. materials in alternate formats). ²⁰¹ Classroom and exam supports (e.g. note taking, interpreter, extra time) are also available. ²⁰² A report submitted to the Newfoundland and Labrador Minister of Education in December 2004, recognized that many of the supports in the elementary and secondary school system do not follow students to the post-secondary level. ²⁰³ Individual post-secondary institutions may provide necessary accommodations, such as Memorial University, where the Glenn Roy Blundon Centre for Students with Disabilities

assist[s] students by facilitating access to information, services, and campus facilities in accordance with the university’s Academic Accommodation Policy for Students with Disabilities.²⁰⁴

Note #199

Convention, supra note 2, art 24(5). 

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Note #200

British Columbia Ministry of Advanced Education, Adult Special Education.

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Note #201

Ibid.

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Note #202

Ibid.

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Note #203

Wayne Ludlow & Cyril Farrell, What We Heard: A Report of Consultations on Public Post-Secondary Education in Newfoundland and Labrador (December 2004), at 31.

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Note #204

Memorial University, Glenn Roy Blundon Centre for Students with Disabilities. For examples of some accommodations provided to post-secondary students in Manitoba, see Manitoba Education, Services for the Blind/Visually Impaired and for Students with Print Disabilities.

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Under the Labour Market Agreement for Persons with Disabilities, funding has been provided to Ontario colleges and universities to assist them in making their programs and services accessible to persons with disabilities. ²⁰⁵ The Ontario Human Rights Commission has also found that post-secondary institutions

have developed a wide range of delivery methods and structures

and nearly all post-secondary institutions

appear to provide some specialized facilities, policies, equipment or services for students with disabilities. ²⁰⁶

Note #205

Ontario Ministry of Community and Social Services, Canada-Ontario Labour Market Agreement For Persons with Disabilities: 2010-11 Annual Report (Ministry of Community and Social Services, 2011), at 20-22 [Canada-Ontario Labour Market].

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Note #206

Ontario Human Rights Commission, Post-secondary Education.

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In Québec, with regard to university, college and secondary level educational institutions as well as organizations that provide vocational training, the Office des personnes handicapées du Québec must promote

the inclusion of elements dealing with the adaptation of interventions and services for handicapped persons and, at the request of such institutions or organizations, advise them in that regard. ²⁰⁷

Note #207

SSWI, supra note 170, s 25(e.1).

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Finally, other areas of law, such as income tax, have relevance to persons with disabilities in the sphere of education. Under the Income Tax Act, a medical expense credit may be claimed where an individual paid for tutoring services that are supplementary to the primary education of the patient who has a learning disability or mental impairment and has been certified by a medical practitioner as someone who, because of the disability or impairment, requires those services. ²⁰⁸ The Tax Court of Canada has found that this provision should be interpreted compassionately and in favour of the person claiming the credit. ²⁰⁹ For example, where parents register a child who has severe learning disabilities in a distance education school and hires a tutor to carry out and supplement these studies, the claimant is entitled to the credit. ²¹⁰ A medical expense credit may also be claimed for required care, or care and training at a school, institution or other place, by reason of physical or mental handicap. ²¹¹

Note #208

RSC 1985, c 1 (5th Supp), s 118.2(2)(l.91).

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Note #209

Hoare v Canada, [2007] 4 CTC 2283 at para 29.

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Note #210

Ibid at paras 2, 23-24, 33.

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Note #211

Income Tax Act, supranote 208, s 118.2(2)(e).

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IV. Health

Article 25 of the Convention requires State Parties to recognize

that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. ²¹²

Therefore, State Parties must ensure that persons with disabilities have access to gender-sensitive health services. ²¹³ Under the Canadian constitution, individual and public health are made largely matters of provincial legislative concern; ²¹⁴ hence, the legislation, policy and case law discussed will be primarily provincial. ²¹⁵

Note #212

Ibid.

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Note #213

Ibid.

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Note #214

Constitution Act, 1867(UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 92(7),(13) and (16).

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Note #215

See Martha Jackman, Constitutional Jurisdiction Over Health in Canada(2000) 8 Health LJ 95 at 110.

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Standard of Health Care

Under the Convention, State Parties must ensure that persons with disabilities have access to the

same range, quality and standard of free or affordable health care and programmes as provided to other persons. ²¹⁶

Ontario’s Excellent Care for All Act, 2010 was enacted to ensure that

health care organizations are responsive and accountable to the public, and focused on creating a positive patient experience and delivering high quality health care. ²¹⁷

The statute applies to every health care organization to ensure that a certain standard of health care is delivered in the province. ²¹⁸ In Québec, the purpose of An Act Respecting Health Services and Social Services is to increase the health and welfare of persons in Québec by ensuring that health and social services are available to them. ²¹⁹ It sets out the rights of all users of Québec’s health and social services, stating specifically that

Every person is entitled to receive, with continuity and in a personalized and safe manner, health services and social services which are scientifically, humanly and socially appropriate.

²²⁰

Note #216

Convention, supra note 2, art 25(a).

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Note #217

SO 2010, c 14, Preamble.

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Note #218

Ibid, Preamble, s 2.

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Note #219

RSQ, c S-4.2, ss 1-3. 

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Note #220

Ibid, s 5.

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There is little legislation governing the standard and quality of health care services and programmes provided to persons with disabilities. Complaints of inequality in the health care system have been made under section 15 of the Charter. A private entity that implements a specific governmental policy or program will fall under Charter scrutiny. ²²¹ When hospitals provide medically necessary services under provincial legislation, they are carrying out a specific governmental objective, and thus will be subject to Charter scrutiny. ²²² The Supreme Court of Canada has found that the failure to provide public funding for sign language interpreters to deaf persons receiving medical services was a violation of section 15(1) and was not a reasonable limit under section 1 of the Charter. ²²³

Note #221

Eldridge, supra note 42 paras 43-44 [Eldridge].

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Note #222

Ibid at paras 50-51.

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Note #223

Ibidat paras 80, 94-95.

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Specialized Health Services, Habilitation and Rehabilitation

The Convention requires State Parties to provide

health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons

. ²²⁴ Related, under article 26 of the Convention, State Parties must assist persons with disabilities to

attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects in life. ²²⁵

Therefore, State Parties must

organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes. ²²⁶

Article 26 requires that habilitation and rehabilitation programs be based on individualized assessments and begin at the earliest stage possible. ²²⁷

Note #224

Convention, supra note 2, art 25(b).

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Note #225

Ibid, art 26.

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Note #226

Ibid.

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Note #227

Ibid, art 26(1)(a).

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In BC, the Ministry of Children and Family Development offers a variety of individualized early childhood intervention programs for children

who show signs of, or are at risk of having, a developmental delay or disability. ²²⁸

The provision of these programs resulted in the case of Auton (Guardian ad litem of) v British Columbia (Attorney General), where the autistic infant claimants alleged that BC’s failure to fund Applied Behavioural Analysis or Intensive Behavioural Intervention therapy (ABA/IBI) was a violation of their section 15(1) Charterrights. ²²⁹ The Supreme Court of Canada found that the Canada Health Act,²³⁰ read in conjunction with BC’s Medicare Protection Act ²³¹ did not require funding for all medically required services. ²³² Funding is only required for core services provided by medical practitioners, and the province has discretion in terms of funding non-core services. ²³³ Therefore, since BC did not legislate funding for ABA/IBI therapy, there was no benefit provided by law that had to be implemented in a non-discriminatory manner. ²³⁴ A variety of programs are offered for children with disabilities in Manitoba, Ontario, and Newfoundland, including ABA and IBI for children diagnosed with autistic spectrum disorder (ASD). ²³⁵ As persons with disabilities reach adulthood, various services and programs in each province are offered that assist with living and participating in the community. ²³⁶ These include residential programs,²³⁷ day services,²³⁸ and home and other assisted living services. ²³⁹

Note #228

British Columbia Ministry of Children and Family Development, Early Childhood Intervention.

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Note #229

[2004] 3 SCR 657 at para 1.

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Note #230

RSC 1985, c C-6 [CHA].

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Note #231

RSBC 1996, c 286.

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Note #232

Auton, supra note 229 at para 35.

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Note #233

Ibid.

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Note #234

Ibid at paras 46-47. .

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Note #235

Manitoba Family Services and Consumer Affairs, Services for Persons with Disabilities; Newfoundland Department of Health and Community Services, Programs Funded through the Department of Health and Community Services; Ontario Ministry of Children and Youth Services, Special Needs.

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Note #236

See e.g. Community Living Authority Act, SBC 2004, c 60, s 2(1); Community Living British Columbia, Community Living British Columbia, [CLBC]; Manitoba Family Services and Consumer Affairs, What is the Vulnerable Persons Act?; Programs Funded through the Department of Health and Community Services, ibid; Services and Supports to Promote the Social Inclusion of Persons with Development Disabilities Act, 2008, SO 2008, c 14, ss 4, 13-14 [Services and Supports Act]; Ontario Ministry of Community and Social Services, About the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, [Ontario, About the Services]; Québec, SSWI, supra note 170, ss 1.1, 45.

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Note #237

See e.g. CLBC, ibid.; Services for Persons with Disabilities, supra note 235; Ontario, About the Services, ibid.

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Note #238

See e.g. Continuing Care Programs Regulation, BC Reg 146/95, Schedule, s 1; Services for Persons with Disabilities, ibid.; Ontario, About the Services, ibid.

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Note #239

See e.g. Continuing Care Programs Regulation, ibid; Programs Funded through the Department of Health and Community Services, supra note 235; Ontario, About the Services, ibid.

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Article 26(2) requires State Parties to promote initial and continued training for professionals and staff working in habilitation and rehabilitation services. In BC, the CLBC provides training and development policies and programs to its staff to ensure continuous learning. ²⁴⁰ Manitoba Family Services and Consumer Affairs provides various training workshops and professional development opportunities for staff employed in day and residential services under Community Living disABILITY Services, as well as to others who provide support services to persons with disabilities. ²⁴¹ In Ontario, the regulations under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 describe quality assurance measures for the services and programs funded under the legislation. ²⁴² For example, under section 7(4), each service agency must provide proper training to its staff, which addresses the health needs of persons with developmental disabilities who are receiving a service under that agency. The regulations under the AODA also requires every provider of goods or services to properly train members of their staff with regards to the provision of goods or services to persons with disabilities. ²⁴³ State Parties must also

promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities. ²⁴⁴

A variety of programs in the provinces aid persons with disabilities in obtaining assistive devices and technologies. ²⁴⁵

Note #240

CLBC, Job Seekers/Careers.

Return

Note #241

Manitoba Family Services and Consumer Affairs, Supporting Persons with Disabilities: The Online Training Calendar, Manitoba Family Services and Consumer Affairs.

Return

Note #242

Quality Assurance Measures, O Reg 299/10. 

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Note #243

Accessibility Standards for Customer Service, supranote 97, s 6.

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Note #244

Convention, supra note 2, art 26(3).

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Note #245

See e.g. British Columbia, Personal Supports; Ontario Ministry of Health and Long-Term Care, Assistive Devices Program; Curateur public Québec, Sources of Funding for Assistive Devices

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Accessibility of Health Services

Article 25 of the Convention requires that health services are provided

as close as possible to people’s own communities, including in rural areas. ²⁴⁶

Article 26(b) requires that habilitation and rehabilitation services are accessible to persons with disabilities as close to their own communities as possible. Telehealth, the federal government’s program for offering health services using telecommunication technology, is a major way of ensuring that those who live in rural communities have access to health care. ²⁴⁷ The Canadian Government report on access to health care in rural Canada warns, however, that

telehealth must not be a substitute for local expertise. ²⁴⁸

In the provinces, there are programs encouraging health professionals to practice in rural areas. ²⁴⁹ Also, regional branches of health-related government agencies are available to serve individuals throughout the provinces. ²⁵⁰

Note #246

Convention, supra note 2, art 25(c).

Return

Note #247

Health Canada, Just for You – Rural Canadians; see also Stephen Laurent, Rural Canada – Access to Health Care (Ottawa: Library of Parliament, 2002).

Return

Note #248

Rural Canada – Access to Health Care, ibid at 20.

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Note #249

See e.g. Province of British Columbia and British Columbia Medical Association and Medical Services Commission, Physician Master Agreement (1 November 2007), at 73; Health Canada, Canada Health Act – Annual Report 2009-2010, (Ottawa: Health Canada) at 63, 106; Manitoba Office of Rural and Northern Health, Manitoba’s Office of Rural and Northern Health.

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Note #250

See e.g. Manitoba Family Services and Consumer Affairs, Service Locations; Newfoundland Labrador Canada Department of Health and Community Services, Contact Information; Ontario Ministry of Children and Youth Services, Regional Offices.

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Quality of Health Care Professionals

Under the Convention, State Parties must require health professionals to

provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent. ²⁵¹

To accomplish this goal, State Parties are encouraged to raise awareness

of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care. ²⁵²

The Canadian Medical Association Code of Ethics applies to Canadian physicians, residents and medical students. ²⁵³ It requires physicians to practice medicine by treating

the patient with dignity and as a person worthy of respect

and to

[r]efuse to participate in or support practices that violate basic human rights. ²⁵⁴

In addition, when providing a medical service, physicians are prohibited from

discriminat[ing] against any patient on such grounds as… physical or mental disability. ²⁵⁵

Physicians also have a responsibility to

promote equitable access to health care resources. ²⁵⁶

The Code states that physicians should participate in

lifelong learning to maintain and improve … professional knowledge, skills and attitudes. ²⁵⁷

Physicians must also give patients the necessary information to make informed decisions about their health and they must answer questions to the best of their ability. ²⁵⁸ In doing so, physicians are required to

[m]ake every reasonable effort to communicate with … patients in such a way that information exchanged is understood. ²⁵⁹

Note #251

Convention, supra note 2, art 25(d).

Return

Note #252

Ibid.

Return

Note #253

Canadian Medical Association, CMA Code of Ethics, Ottawa: CMA, 2004, Introduction [Code].

Return

Note #254

Ibid, ss 2, 9.

Return

Note #255

Ibid, s 17.

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Note #256

Ibid, s 43.

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Note #257

Ibid, s 6.

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Note #258

Ibid, s 21.

Return

Note #259

Ibid, s 22.

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Similarly, legislation sets out the requirement to obtain informed consent. BC, Ontario and Québec have legislation regarding consent to medical care, wherein care cannot be provided without consent, with a few exceptions (e.g. emergency). ²⁶⁰ It is presumed that an individual is capable of providing consent to health care, from the age of majority in BC,²⁶¹ age 16 in Manitoba,²⁶² any age in Ontario,²⁶³ and 16 in Newfoundland. ²⁶⁴ As an example of a definition of capacity, Manitoba law states,

a person has capacity to make health care decisions if he or she is able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. ²⁶⁵

Where a person lacks capacity to consent to care, statutes set out the process for substitute decision-making. ²⁶⁶ In provinces without a statute on capacity or consent to health care, such as Newfoundland, similar common law norms govern consent and capacity. ²⁶⁷ The Supreme Court of Canada has held that courts’ parens patriae jurisdiction, that is, their power to make decisions in the best interests of minors and mentally incompetent individuals, can never be used to authorize non-therapeutic sterilization. ²⁶⁸

Note #260

Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 5 [BC HCCA]; Health Care Consent Act, 1996, SO 1996, c 2, Schedule A, s 10 [ON HCCA]; An Act Respecting Health Services and Social Services, RSQ, c S-4.2, s 9;arts 10, 11 CCQ.

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Note #261

BC HCCA, ibid., s 3.

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Note #262

The Health Care Directives Act, SM 1992, c 33, s 4(2).

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Note #263

ON HCCA, supra note 260, s 4(2).

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Note #264

Advance Health Care Directives Act, SNL 1995, c A-4.1, s 7.

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Note #265

The Health Care Directives Act, SM 1992, c 33, s 2. 

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Note #266

See e.g. RAA, supra note 65; VPA, supra note 70; SDA, supra note 70; Title Four CCQ. See also the discussion in Equal Recognition before the Law, above.

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Note #267

P.H. v Eastern Regional Integrated Health Authority, 80 R.F.L. (6th) 61 (SC (TD)).

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Note #268

E. (Mrs.) v. Eve, [1986] 2 SCR 388 at paras 86-7. 

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Provision of Health and Life Insurance

The Convention requires State Parties to prohibit discrimination against persons with disabilities with regard to health and life insurance where such insurance is permitted by national law. ²⁶⁹ Insurance is required to be provided in a fair and reasonable manner. ²⁷⁰ Canada has a health care system funded publicly by federal and provincial/territorial revenue. ²⁷¹ The Canada Health Act dictates the

criteria and conditions in respect of insured health services and extended health care services ²⁷²

that must be met by the provinces in order for them to receive transfer payments from the federal government. ²⁷³ The CHA requires medically necessary services to be covered by the provincial health insurance plan. ²⁷⁴ The determination of which services are medically necessary is made individually by the provinces. ²⁷⁵ Non-medically necessary health services that are not covered by the provincial health insurance plan are to be paid for directly or through an employment or private insurance plan. ²⁷⁶ The Canada Health Act – Annual Report 2009-2010 generally found that access to insured health services was provided on uniform terms and conditions as required under section 12 of the CHA. ²⁷⁷

Note #269

Convention, supra note 2, art 25(e).

Return

Note #270

Ibid.

Return

Note #271

Health Canada, Canada’s Health Care System.

Return

Note #272

CHA, supra note 230, s 4.

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Note #273

Ibid, s 5, 7.

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Note #274

Health Canada, Canada’s Health Care System, supra note 271.

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Note #275

Ibid.

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Note #276

Ibid.

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Note #277

Canada Health Act – Annual Report 2009-2010, supra note 249 at 15, 56, 63, 73, 106. 

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Each of the studied provinces allows some discrimination for the purposes of determining conditions in contracts for health insurance, life insurance or both. They allow this when the distinctions drawn are reasonable and bona fide ²⁷⁸ or made on good faith grounds. ²⁷⁹ The Supreme Court of Canada has held that a discriminatory practice is reasonable if

(a) it is based on a sound and accepted insurance practice; and (b) there is no practical alternative. ²⁸⁰

A sound practice is one adopted

for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. ²⁸¹

To be bona fide,

the practice must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code. ²⁸²

Whether there is a practical alternative depends on the facts of the case. ²⁸³

Note #278

OHRC, supra note 51, s 22. See also MHRC, supranote 51, s 15(2).

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Note #279

HRA, supra note 51, s 21(3)(a). See also Québec Charter, supra note 51, s 20.1 (allowing distinctions on the basis of health as a determination of risk factor); BC HRC, supranote 51, s 8(2)(b), (stating that discrimination on the basis of physical or mental disability or age does not violate the Code if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

Return

Note #280

Zurich Insurance Co v Ontario, [1992] 2 SCR 321 at para 23.

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Note #281

Ibid.

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Note #282

Ibid at para 24.

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Note #283

Ibid at para 23.

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Discriminatory Denial of Health Care or Health Services or Food and Fluids

Under the Convention, State Parties must prevent the discriminatory denial of health care, health services, or food and fluids on the basis of disability. ²⁸⁴ Canadian law is varied in determining if and when withholding or withdrawal of treatment is permitted. The Manitoba Court of Appeal found that

neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where, in his or her judgment, the patient is in an irreversible vegetative state. ²⁸⁵

The Court went on to say that the decision

is a judgment call for the doctor to make having regard to the patient’s history and condition and the doctor’s evaluation of the hopelessness of the case. ²⁸⁶

However, this case only answers the question of when treatment can be withheld and does not answer the question of whether withdrawing treatment should be treated the same way. ²⁸⁷ The Ontario Court of Appeal considered the removal of life support and the transfer to palliative care to be a treatment package that could not be separated because death is imminent when life support is removed. ²⁸⁸ Therefore, consent by the substitute decision-maker is required for the entire treatment package – the removal of life support and the transfer to palliative care. ²⁸⁹ As of April 2012, the case is before the Supreme Court of Canada. ²⁹⁰

Note #284

Convention, supra note 2, art 25(f).

Return

Note #285

Child and Family Services of Manitoba v R.L. (1997), 154 DLR (4th) 409 at para 17.

Return

Note #286

Ibid.

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Note #287

Golubchuk v Salvation Army Grace General(2008), 290 DLR (4th) 46 (QB) at para 25. 

Return

Note #288

Rasouli (Litigation guardian of ) v Sunnybrook Health Services Centre, 2011 ONCA 482 at paras 50-52. 

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Note #289

Ibid at para 58.

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Note #290

See Cuthbertson v Rasouli (Litigation Guardian), [2011] SCCA No 329 (QL).

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Under section 241 of the Criminal Code, aiding or abetting someone to commit suicide is an indictable offence and may lead to imprisonment for a term of not more than 14 years. ²⁹¹ The homicide provision also covers a form of assisted suicide. ²⁹² Further, section 14 prohibits any person from consenting to have death inflicted upon him or her. ²⁹³

Note #291

Criminal Code, supra note 95.

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Note #292

Ibid, s 222(5)(c).

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Note #293

Ibid. See also Rodriguez, supra note 113.

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V. Right to Work

Under article 27 of the Convention, State Parties recognize the right of persons with disabilities to work on an equal basis with others. State Parties are required to take measures to ensure, that persons with disabilities can earn a living

by work freely chosen or accepted in a labour market,

and that work environments are

open, inclusive and accessible to persons with disabilities. ²⁹⁴

In Canada, the primary source of law for protecting the rights of persons with disabilities in the employment area is federal and provincial human rights legislation. In addition, the federal and provincial governments have enacted legislation and developed policies to promote employment of persons with disabilities.

Note #294

Ibid, art 27(1).

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Prohibition of Discrimination, Protection of Rights and Accommodation

State Parties must ensure that discrimination on the basis of disability is prohibited in matters concerning employment,

including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions. ²⁹⁵

Also, State Parties must ensure that reasonable accommodation is provided to persons with disabilities. ²⁹⁶ Human rights statutes in Canada provide very broad protection from discrimination with respect to employment. ²⁹⁷ For example, the human rights legislation in Manitoba states that

No person shall discriminate with respect to any aspect of an employment or occupation (emphasis added). ²⁹⁸

The definition of any aspect includes the opportunity to participate or continue to participate in the employment; the customs, practices and conditions of the employment; training, advancement or promotion; seniority; any form of remuneration or other compensation received; and any other benefit, term or condition. ²⁹⁹

Note #295

Ibid, art 27(1)(a).

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Note #296

Ibid, art 27(1)(i).

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Note #297

CHRA, supra note 51; BC HRC, supra note 51; HRA, supra note 51; OHRC, supra note 51, s 5(1); Québec Charter, supra note 51, s 16. The prohibition also extends to employment agencies: see BC HRC, supra note 51, s13(2); MHRC, supra note 51, s 14(5); HRA, supranote 51, s 14(3); OHRC, supra note 51 s 23(4); Québec Charter, supra note 51, s 18.

Return

Note #298

MHRC, supra note 51, s 14.

Return

Note #299

Ibid, s 14(2).

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The federal, BC, Manitoba, Newfoundland and Ontario legislation all provide an exception affecting the above prohibition: where discrimination relates to a bona fideoccupational requirement or qualification (BFOR), it does not contravene the legislation. ³⁰⁰ In each case, to show a BFOR, statute and case law dictates that there must be accommodation to the point of undue hardship. ³⁰¹ Québec is the only jurisdiction which does explicitly incorporate this exception into its legislation. Once an employee has shown that something is prima faciediscriminatory on the ground of disability, the onus falls on the employer to show that it is a BFOR. ³⁰² The common law provides a test from the case of British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU) (Meiorin Grievance). ³⁰³ In this case, the Supreme Court of Canada set out the following three-step test for establishing that an employment standard is a BFOR:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. ³⁰⁴

Note #300

CHRA, supra note 51, ss 15(1)(a); BC HRC, supranote 51, s 13(4), MHRC, supra note 51, s 14(1); HRA, supra note 51, s 14(2); OHRC, supra note 51, ss 11(1), 17.

Return

Note #301

CHRA, supra note 51, s 15(2); Entrop v Imperial Oil Ltd (2000), 50 OR (3d) 18, 189 DLR (4th) 14 at paras 75, 77-85 (CA) [Entrop]; MHRC, supranote 51, s 9(1)(d), 12; Leonard v Newfoundland and Labrador (Human Rights Commission), 2011 NLTD(G) 48, 307 Nfld & PEIR 236 at para 46; OHRC, supra note 51, ss 11(2), 17(2), 17(3). 

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Note #302

Entrop, ibid at para 63.

Return

Note #303

[1999] 3 SCR 3 [Meiorin].

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Note #304

Ibid at para 54.

Return

Under the federal, BC, Manitoba, Ontario and Newfoundland statutes, employment advertisements cannot express any qualification or preference based on a prohibited ground of discrimination. ³⁰⁵ Québec prohibits distributing, publishing or publicly exhibiting a

notice, symbol or sign involving discrimination

or authorizing someone to do so. ³⁰⁶ The federal, Manitoba, Newfoundland and Ontario schemes also prohibit discrimination on application forms as well as through written or oral inquiries. ³⁰⁷ In Ontario, there is an exception allowing the asking of questions at a personal employment interview concerning a prohibited ground of discrimination, provided that discrimination on such a ground is permitted in the statute. ³⁰⁸ In Québec application forms and employment interviews cannot require information regarding any prohibited ground unless it is in regards to a type of employment specified in the statute or for an affirmative action program that exists at the time of the application. ³⁰⁹

Note #305

CHRA, supra note 51, s 8; BC HRC, supra note 51, s 11; MHRC, supra note 51, s 14(3); OHRC, supra note 51, s 23(1); HRA, supranote 51, s 14(5). 

Return

Note #306

Québec Charter, supra note 51, s 11.

Return

Note #307

CHRA, supra note 51, s 8; MHRC, supra note 51, s 14(4); HRA, supra note 51, s 14(5); OHRC, supra note 51, s 23(2). 

Return

Note #308

OHRC, ibid, s 23(3).

Return

Note #309

Québec Charter, supra note 51, ss 18.1, 20.

Return

Right to Just and Favourable Conditions of Work

In addition to the general prohibition of discrimination in employment, Canadian human rights legislation includes more specific rules that apply in the employment setting. The federal, BC, Newfoundland and Québec statutes have equal wage provisions. ³¹⁰ While the federal and BC legislation requires equal wages between the sexes, Newfoundland and Québec require equal wages generally where employees perform the same or similar work. ³¹¹ In the federal, BC, Manitoba and Newfoundland schemes, wages cannot be reduced to become compliant with the legislation. ³¹² In the federal, BC, Newfoundland and Québec statutes, there are exceptions to the equal wage requirement, for example, where there is a reasonable factor that justifies the difference. ³¹³ In contrast with equal pay legislation, under The Employment Standards Code in Manitoba, an employer may apply for a permit authorizing the employer to pay an employee less than minimum wage where a satisfactory arrangement between the employer and employee with a mental or physical disability is made. ³¹⁴ Before a permit can be issued, the employee’s ability to perform the work in the proposed arrangement must have been evaluated. ³¹⁵

Note #310

CHRA, supra note 297, s 11; BC HRC, supra note 297, s 12; HRA, supra note 297, s 16(1); Québec Charter, ibid, s 19.

Return

Note #311

HRA, ibid, s 16(1); Québec Charter, ibid.

Return

Note #312

CHRA, supra note 51, s 11(6); BC HRC, supra note 51, s 12(4); MHRC, supranote 51, s 14(12)(b); HRA, ibid,s 16(3).

Return

Note #313

CHRA, ibid, 11(4); BC HRC, ibid, s 12(3); HRA, supra note 297, s 16(1); Québec Charter, supra note 51, s 19.

Return

Note #314

SM 1998, c 29, s 85.

Return

Note #315

Employment Standards Regulation, Man Reg 6/2007, s 13(1).

Return

Human rights statutes in Canada protect against harassment. ³¹⁶ Although BC’s statute does not expressly prohibit harassment, the express prohibition against discrimination has been found to include harassment. ³¹⁷ The federal and Ontario schemes specifically prohibit sexual harassment, while Manitoba, Newfoundland and Ontario additionally expressly prohibit sexual solicitation. ³¹⁸ Manitoba’s harassment provision is unique as it states that knowingly permitting or failing to take reasonable steps to terminate harassment will also result in liability. ³¹⁹ Reprisal for filing a complaint or instituting a proceeding is generally prohibited in the federal, Manitoba and Ontario statutes. ³²⁰ Ontario’s occupational health and safety legislation requires that employers prepare policies with respect to workplace violence and harassment and implement the policies through programs. ³²¹ Manitoba’s WSHA scheme also requires employers to develop and implement policies to prevent harassment and workplace violence, and ensure that workers comply with the policies. ³²²

Note #316

CHRA, supra note 51, s 14(1)(c); BC HRC, supranote 51, s 13; MHRC, supra note 51, s 19(1)(a); HRA, supra note 51, s 17; OHRC, supra note 51, s 5(2); Québec Charter, supra note 51, s 10.1. 

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Note #317

British Columbia Ministry of the Attorney General, Human Rights in British Columbia.

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Note #318

CHRA, supra note 51, s 14(2); MHRC, supra note 51, ss 19(1), 19(2); HRA, supra note 51, s 18; OHRC, supra note 51, ss 7(2), 7(3).

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Note #319

MHRC, supra note 51, s 19(1)(b).

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Note #320

CHRA, supra note 51, s 14.1; MHRC, ibid, s 20; OHRC, supra note 51, s 8.

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Note #321

Occupational Health and Safety Act, RSO 1990, c O.1, ss 32.0.1, 32.0.2, 32.0.6, 32.0.7.

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Note #322

Workplace Safety and Health Regulation, Man Reg 217/2006, ss 10.1-10.3, 11.1-11.3.

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Promotion of Employment

State Parties are required to employ persons with disabilities in the public sector, and to promote employment in the private sector as well as opportunities for self-employment and entrepreneurship. ³²³ The federal government has enacted the Employment Equity Act, which has as its purpose

to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by … persons with disabilities. ³²⁴

The statute applies to private sector employers and to most public sector employers. ³²⁵ Every employer under the statute is required to implement employment equity by identifying and eliminating employment barriers, instituting positive policies and practices, and making reasonable accommodations to

ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer’s workforce that reflects their representation

in the Canadian workforce. ³²⁶ An employer is not required to take a measure that would cause undue hardship. ³²⁷ Employers are required to prepare an employment equity plan specifying measures to be taken and long term goals. Employers must then make all reasonable efforts to implement the plan and monitor its implementation on a regular basis. ³²⁹

Note #323

Convention, supra note 2, arts 27(1)(f), 27(1)(g), 27(1)(h).

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Note #324

SC 1995, c 44, s 2.

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Note #325

Ibid, s 4(1).

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Note #326

Ibid, s 5.

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Note #327

Ibid, s 6(a).

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Note #328

Ibid, s 10.

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Note #329

Ibid, s 12.

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The provinces also have initiatives in place to promote the employment of persons with disabilities. Some of these aim to raise awareness about the benefits of hiring persons with disabilities, and connect employers with persons with disabilities. ³³⁰ Other approaches are compulsory. In Ontario employers will soon be required to notify employees and the public about available disability accommodation, ³³¹ or in the case of a public body in Québec, to analyze its workforce and take other steps to promote disability employment equity. ³³²

Note #330

WorkAble Solutions BC, WorkAble Solutions ~ Taking action on employing persons with disabilities!; Manitoba Family Services and Labour, Hiring Someone with a Disability Is Good Business: And That’s the Bottom Line; Newfoundland Labrador Department of Advanced Education and Skills, Disability Policy Office; SSWI, supra note 170, s 25(g),

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Note #331

Integrated Accessibility Standards, O Reg 191/11, ss 21-25;

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Note #332

An Act Respecting Equal Access to Employment in Public Bodies, RSQ, c A-2.01, ss 3, 9, 13. For other Québec legislative provisions promoting disability employment equity, see Québec Charter, supra note 51, s 57;…; 

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Training, Guidance and Programmes

State Parties must promote the training and provision of programs in technical and vocational guidance, assistance in finding, obtaining, maintaining and returning to employment, as well as in professional rehabilitation and job retention. ³³³ The federal Opportunities Fund for Persons with Disabilities provided by Service Canada funds national, regional and local projects that assist persons with disabilities in finding and keeping employment or self-employment. ³³⁴ The federal government has also entered into agreements with the provinces, known as the Labour Market Agreements for Persons with Disabilities (LMAPD). ³³⁵ The agreements share the costs among the federal and provincial governments for the funding of programs and services that help persons with disabilities participate in the labour market. ³³⁶ These agreements allow the provinces to decide on the best approach to assist persons with disabilities in their respective jurisdictions. ³³⁷ The provinces are required to deliver employment programs within five priority areas: (1) education and training; (2) employment participation; (3) employment opportunities; (4) connecting employers and persons with disabilities; and (5) building knowledge. ³³⁸ Provincial programs offer a variety of employment-related services for persons with disabilities. These include vocational planning, job training and placement, and employment support. ³³⁹ Provincial funds have also been established to create and supplement services and programs that aid persons with disabilities in finding and maintaining employment and self-employment. ³⁴⁰

Note #333

Convention, supra note 2, arts 27(1)(d), 27(1)(e), 27(1)(k).

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Note #334

Service Canada, Opportunities Fund for Persons with Disabilities

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Note #335

Human Resources and Skills Development Canada, Labour Market Agreements for Persons with Disabilities.

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Note #336

Ibid.

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Note #337

Ibid.

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Note #338

Ibid.

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Note #339

British Columbia Ministry of Social Development, Employment Program for Persons with Disabilities; Manitoba Family Services and Consumer Affairs, marketAbilities Program; Manitoba Family Services and Consumer Affairs, Rewarding Work: Gateway to Opportunities; Newfoundland Labrador Department of Advanced Education and Skills, Employability Assistance for Persons with Disabilities; Canada-Ontario Labour Market, supra note 205 at 7; SSWI, supra note 170, ss 45-50.

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Note #340

See e.g. BC Ministry of Social Development, Minister’s Council on Employment for Persons with Disabilities; Rewarding Work: Gateway to Opportunities, ibid; Services and Supports, supra note 236; Disability Services Ontario, Community Participation Supports and Passport.

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Labour and Trade Union Rights

State Parties must ensure that persons with disabilities can exercise their labour and trade union rights on an equal basis with others. ³⁴¹ The federal and provincial human rights statutes generally prohibit discriminatory membership with reference to organizations. ³⁴² Depending on the jurisdiction, this prohibition may specifically include trade unions, employers’ organizations, occupational associations, professional associations, trade associations, employee organizations, self-governing professions, professional orders or associations of persons carrying on the same occupation.

Note #341

Convention, supra note 2, art 27(1)(c).

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Note #342

CHRA, supra note 51, s 9(1); BC HRC, supra note 51, s 14; MHRC, supranote 51, s 14(6); HRA, supra note 51, s 14(4); OHRC, supra note 51, s 6; Québec Charter, supra note 51, s 17.

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VI. Conclusion

This chapter has provided an overview of Canadian legislation, case law, and policy, guided by DRPI’s National Law and Policy Monitoring Template. It has covered the federal and a representative sample of provincial jurisdictions with respect to how Canada implements some of the major substantive norms of the Convention on the Rights of Persons with Disabilities. This analysis is only a starting point. This chapter has not attempted to complete the methodology set out in the Template by asking how Canadian law and policy instruments are functioning in practice, and how well they satisfy the articles of the Convention. It is in fact likely that simply stating the ideals of disability equity contained in Canadian law, paints an overly optimistic picture of life with a disability in Canada. Nonetheless, this chapter takes a step toward addressing larger issues. With a thematic presentation of sources of law and policy, one can proceed to seek input from community organizations and persons with disabilities about their experiences with these regimes, in order to identify gaps and strategies for improvement. The legal framework can also be compared with those in other countries, in order to learn from other approaches. In these ways, national law and policy, through reform and improved enforcement, can become better able to fulfill the requirements of the Convention, and to enrich society and the lives of persons with disabilities.