disability in that a person may have no functional limitations other than those created by
prejudice, stigma and stereotype.^39 It recognizes that social attitudes alone can
constitute disability and, in doing so, advances the goal of inclusion.^40
A recent Tribunal decision in J.L. v. York Region District School Board is illustrative.^41
At issue in the decision was whether pes planus (flat feet) could constitute a disability
under the Code. The Tribunal cited Mercier and focused its analysis on whether pes
planus created an obstacle to full participation in society. The Tribunal found that
according to the medical literature in the majority of cases pes planus causes no
functional limitations and presents no obstacles to participation in society. However in
limited cases it could become very painful and require surgery, causing functional
limitations for the affected person. In these limited cases pes planus could, therefore,
constitute a disability pursuant to the Code.
In many cases, respondents will not challenge the fact that the applicant has a disability.
However, in some cases it will be important to present evidence demonstrating the
presence of a disability. In J.L., once the Tribunal had determined that pes planus
could, as a general matter, constitute a disability under the Code, it then proceeded to
analyze whether the applicants could establish that in their individual circumstances the
condition was a disability. The Tribunal concluded that they could not since there was
no evidence that the applicants could not walk to school or would experience pain
because of their condition. The applicants had not produced medical evidence to
support their claim that the respondent school board should have bussed them to
school.^42 Medical evidence will also, likely, be necessary when pleading a new or
emerging disability that is controversial or not well known.
(^39) See generally Jerome E. Bickenbach, Physical Disability and Social Policy (Toronto: University of
Toronto Press, 1993). 40
Ena Chadha, “The Social Phenomenon of Handicapping” in Elizabeth Sheehy, ed, Adding Feminism to
Law: The Contributions of Justice Claire L'Heureux 41 -Dubé (Toronto: Irwin Law, 2004) 209-227.
42 J.L. v. York Region District School Board, 2013 HRTO 948 (CanLII).^
Ibid., at paras. 17-20.