frustration and disillusion from not being able to make one’s choices or needs
understood that the person exhibits “aggressive behaviours”.
These types of behaviours can also be the result of misuse or overuse of
medication, among other things.
A breach of the Code could be established from this failure in the duty to
accommodate. However, it is sometimes difficult to distinguish the duty to
accommodate from a quality of care issue. In a decision of the HRTO^49 , the
Associate Chair, David Wright concluded that the applicant did not make out a
claim of discrimination and failure to accommodate in her allegations that she
was not provided with appropriate medical care. At paragraph 28 of the decision,
he states:
To trigger the duty to accommodate, an applicant must show that there
has been direct or indirect discrimination on the basis of one of the
Code grounds. The mere assertion that the applicant’s medical needs
have not been properly met does not allege Code-based
discrimination or suggest a violation of any duty to accommodate. The
allegations of discrimination and failure to accommodate related to the
manner in which medical services were delivered to the applicant have
no reasonable prospect of success.
For more information on advising persons with disabilities on their rights under
the Ontario Human Rights Code and filing applications at the HRTO, please see
Chapter 3 “Human Rights and Disability Law” in this Disability Law Primer.
VIII. Issues of Capacity to Instruct Counsel
When taking on cases for clients who have been labelled with an intellectual
disability, the questions of whether the client has the capacity to instruct counsel
may arise.
(^49) Barber v. South East Community Care Access Centre, 2013 HRTO 60 (CanLII),
<http://canlii.ca/t/fvm51