V. WHAT CONSTITUTES “DISABILITY” UNDER THE CODE?
A prerequisite for a claim of discrimination is that the applicant must establish on a
balance of probabilities that s/he had a disability at the time of the alleged discriminatory
treatment.
Disability is defined at section 10(1) of the Code as:
(a) any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness and,
without limiting the generality of the foregoing, includes diabetes
mellitus, epilepsy, a brain injury, any degree of paralysis, amputation,
lack of physical co-ordination, blindness or visual impediment,
deafness or hearing impediment, muteness or speech impediment, or
physical reliance on a guide dog or other animal or on a wheelchair or
other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes
involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under
the insurance plan established under the Workplace Safety and
Insurance Act, 1997.A disability can be either permanent (e.g., a visual or mobility disability), or temporary
(e.g., a treatable illness or temporary disability which is the result of an accident).
The landmark Supreme Court of Canada decision in Québec (Commission des droits de
la personne et des droits de la jeunesse) v. Montréal (City)) (known as Mercier)
broadened the definition of “disability.”^34 In that case the three complainants were
denied employment after pre-employment screening revealed medical conditions. All
three complainants were at the time asymptomatic. The employers decided that since
there was no medical evidence of a functional limitation, the complainants were not
(^34) Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) [2000] 1
S.C.R. 665 [Mercier].