E. Understanding of “Disability” in Jurisprudence and Legislation
There is no one legal definition in Canada either of disability in general or of specific
disabilities. Indeed, the Supreme Court of Canada has stated that disability should not be
confined within a narrow definition. Rather, the Court stated that it is more appropriate to
leave room for flexibility and propose a series of guidelines that will facilitate
interpretation.^24
The Supreme Court of Canada has accepted a “social model” of disability, as
distinguished from a “medical model”. See section 1.3 above. In Mercier^25 , Justice
L’Heureux-Dubé writing for the Court made it clear that disability manifests not only as a
physical limitation, but also as a social construct that must be interpreted broadly:
[b]y placing the emphasis on human dignity, respect and the right to equality rather
than a simple biomedical condition, this approach recognizes that the attitudes of
society and its members often contribute to the idea or perception of a
‘handicap’[the term used in the Quebec statute at issue]. In fact, a person may
have no limitations in everyday activities other than those created by prejudice and
stereotypes....Thus, a ‘handicap’ may be the result of a physical limitation, an
ailment, a social construct, a perceived limitation or a combination of all of these
factors.The focus of the social model inquiry is on the effects of a differential treatment, rule,
preference, or exclusion experienced by the person, and not on proof of physical
limitations or the presence of impairment.
The Supreme Court expanded upon this model in Granovsky,^26 stating that there are
three aspects to disability: physical or mental impairments; functional limitations, whether
real or perceived, and the “problematic response of society to th[e individual’s] condition.
A proper analysis necessitates unbundling the impairment from the reaction of society to
the impairment, and a recognition that much discrimination is socially constructed.”
24 Mercier, supra note 7 at para 76.
25 Ibid. at paras 77 and 79.
26 Granovsky, supra note 9 at paras 29-30.