I. UNDERSTANDING, DEFINING, AND DESCRIBING DISABILITIES
“Disability” is a complex concept. While this paper provides basic information about
disabilities and how disabilities are treated in law, the concept of disability, as well as
relevant legislation and jurisprudence, are ever-evolving. A lawyer’s best assets in
representing clients with disabilities are to keep an open mind and be willing to learn.
When in doubt, lawyers should ask clients what living with a disability means for them.
A. Understanding Disability
Disabilities traditionally were regarded as being divisible into two categories: physical
disabilities (e.g., paraplegia and arthritis) and mental disabilities (e.g. schizophrenia and
depression). It has more recently been understood that many disabilities have both a
“physical” and a “mental” component, and that these components are not easily
separated or differentiated. Some disabilities involve multiple components, such as
physiological, psychological, cognitive, sensory, neurochemical, etc. For example,
acquired brain injuries may affect both mobility and emotional functioning. Multiple
sclerosis may affect memory as well as mobility.
Legal recognition of disabilities is dynamic. Previously unrecognized disabilities are being
identified and distinguished from others. For example chronic fatigue syndrome,^2 chronic
pain syndrome,^3 fibromyalgia and environmental sensitivities^4 have more recently been
considered disabilities in law. There are also conditions that are recognized as disabilities
by health care practitioners but are not recognized as disabilities in law. Similarly, the law
recognizes some disabilities which health care practitioners do not.
Some disabilities are highly visible while others may not be apparent from a person’s
appearance. The Ontario Human Rights Commission refers to the latter disabilities as
2 Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39.
3 Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v.
Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54,at para. 1; Jeffrey v. Dofasco Inc.,2004 HRTO 5 (CanLII) at
paras. 186-192.
4 Guibord v. Canada, [1997] 2 F.C. 17.