Perceived Disabilities

The Ontario Human Rights Code protects past, present and perceived disabilities. In other words, the Code protects against discrimination based on the perception that a disability exists (i.e., an assumption). For example, if someone mistakenly believed a disability existed on the basis of someone’s height.

The inclusion of a perceived disability within the ground of disability provides a subjective component which was confirmed in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City). The Supreme Court of Canada heard three cases together that involve the interpretation of s. 10 of the Quebec Charter of Rights and Freedoms (“Quebec Charter”). In each case, the employee or candidate for employment had physical anomalies which did not result in any functional limitations that would hinder the relevant employment. Nonetheless, these individuals were denied employment on the basis of the physical anomalies (perceived to be disabilities). In particular, two had spinal abnormalities (which differed) and the other Crohn’s disease among other medical conditions. The Court stated the following (at para. 81):

“It is important to note that a [disability] may exist even without proof of physical limitations or the presence of an ailment. The [disability] may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the [disability], the cause and origin of the handicap are immaterial. Further, the Quebec Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a [disability] in the future.”

The Federal Court of Appeal addressed the matter of a perceived disability in Turner v. Canada (Attorney General), 2012 FCA 159 (CanLII). In this case, the Court addressed the failure of the Canadian Human Rights Tribunal to consider the perceived disability of the Applicant. The Tribunal only considered the present ground of race, rather than the perceived disability on the basis of weight which was alleged.

The Human Rights Tribunal of Ontario addressed the matter in Fernandes v. Tomas, 2014 HRTO 1452 (CanLII), where they considered the Applicant’s allegation of a perceived disability. In this case the allegation was based on comments made by a Manager regarding use of the washroom which was made publicly and caused humiliation and embarrassment on account of the connection to a perceived disability.

As the law currently stands, the protections afforded by human rights law Federally and in Ontario include the perception of a disability as well as any anticipated future disability which presents itself.