To date, this is the approach that Canadian courts and tribunals have taken with
respect to the CRPD. For example, the Ontario Superior Court ruled that
the affected individual should be provided with the support required to
exercise their legal capacity, and should not be considered incompetent
to make decisions merely because of their disability. (See the United
Nations Convention on the Rights of Persons with Disabilities.)^76
The Human Rights Tribunal of Ontario has cited the CRPD as an authoritative source
for interpreting provisions of Ontario’s Human Rights Code. In a 2011 case, the
Tribunal referred to Article 13 of the CRPD to support an interpretation of the Human
Rights Code that allowed the Tribunal to appoint a litigation guardian for a person with
an intellectual disability who would otherwise be barred from bringing a human rights
application. This interpretation facilitated access to the Tribunal’s process in
accordance with the CRPD obligation to ensure effective access to justice for people
with disabilities.^77 In another 2011 case the Tribunal dealt with three models of
disability (the medical, social/independent living and economic models) and then
stressed that the social/independent living model is the model preferred by the CRPD
and the Human Rights Tribunal of Ontario.^78
In January 2008, before Canada had ratified the CRPD, the Human Rights Tribunal of
Quebec precociously quoted two passages from the CRPD, saying that “the Tribunal is
always concerned with ensuring that its jurisprudence is in tune with international law,
and considers it highly relevant to cite here a few passages from the [CRPD], which can
but shed light on the dispute in this case.”^79
In June 2010, the Federal Court made a brief mention of the CRPD, creating a
comparison between the CRPD and the UN Convention on the Rights of the Child:
It is clear that Article 1 of the Convention on the Rights of Persons with
Disabilities is an inclusive definition which can be expanded; however,
(^76) Cole v Cole, 2011 ONSC 4090 at para 6 [Cole].
(^77) Yuill v Canadian Union of Public Employees, 2011 HRTO 126 [Yuill].
(^78) Hinze v Great Blue Heron Casino, 2011 HRTO 93 [Hinze].
(^79) Commission des droits de la personne et des droits de la jeunesse c. Coopérative d'habitation L'Escale
de Montréal, 2008 QCTDP 1 [L’Escale de Montréal].