The consequence of not being provided with accommodation will be for
persons with disabilities, some form of social exclusion, which is a
condition of inequality....When respondents allege undue hardship they
are, concomitantly, also alleging that the social exclusion of a person with
a disability is warranted in the circumstances.^17Substantive equality promises the full inclusion of persons with disabilities in social,
work and community life.^18 It can help shape new positive social attitudes about
persons with disabilities. Pentney argues, “(e)quality law seeks to protect and promote
belonging; to allow others in to the fold, and to encourage and cement our bounds of
community.”^19 The core value of inclusion should guide the interpretation of equality
protections for persons with disabilities. Inclusion is a primary goal of equality
protections and is central to the pursuit of equality, independence and full participation
in social, work and community life. Equality rights must protect against the multifarious
effects of exclusion and facilitate a sense of belonging. Equality protections must be
forward thinking, fostering a sense of belonging in the universal community.^20
III. OVERVIEW OF CANADIAN HUMAN RIGHTS SYSTEM
(^17) Bill Holder, “Accommodation of Disability in Ontario” (Toronto: ARCH Disability Law Centre, 2003),
online: ARCH http://www.archdisabilitylaw.ca/publications/CLE_DisabilityLawPrimer.asp at 25
[emphasis added]. 18
Lepofsky, supra note 16. Lepofsky maintained that the goal of equality to people with disabilities “...is
to ensure persons with disabilities full participation and inclusion in all rights, benefits, burdens and
obligations available in society.” [emphasis added]. 19
W. Pentney, “Belonging: The Promise of Community -- Continuity and Change in Equality Law 1995-
96” (1996), 25 C.H.R.R. C/6. 20
Isabel Grant & Judith Mosoff, “Disability and Performance Standards Under the Ontario Human Rights
Code” (2002) 1 JL & Equality 205. At para. 7, Grant and Mosoff claimed that equality theory “focuses on
enhancing the participation of persons with disabilities....”.W. Pentney, “Belonging: The Promise of
Community -- Continuity and Change in Equality Law 1995-96” (1996), 25 C.H.R.R. C/6.Pentney stated:
“Yet we know that communities are built in two ways: by welcoming and by keeping out. ... The core
value of “inclusion” should guide the interpretation of equality protections for persons with
disabilities.”Errol Mendes, “Taking Equality into the 21st Century: Establishing the Concept of Equal
Human Dignity” (2000) 12 NJCL 3 at 20. Mendes quoted Immanuel Kant in ascertaining that inherent
human dignity “signifies a kind of intrinsic worth that belongs equally to all human being as such,
constituted by certain intrinsically valuable aspects of being human”. David Lepofsky, “The Charter’s
Guarantee of Equality to People with Disabilities – How Well is it Working?’ (1998) 16 Windsor YB Access
Just 155.Lepofsky stated that the “intrinsic” value of persons with disabilities is often overlooked.Their
identity is viewed as “defective.”At 172 Lepofsky submitted that the aim of equality theory is to have
people “fairly and accurately judged on their individual ability, based on what they can do in a barrier free
context, and not on what they cannot do or on what others think they cannot do”.