The Ontario Human Rights Code (the “Code”) states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The Code aims at creating a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and feels able to contribute to the community.
Section 1 of the Code affirms the right to equal treatment in services without discrimination because of disability. Services include the provision of education. This protection covers publicly funded elementary and secondary schools, private schools, and colleges and universities (both public and private). It also includes special schools which exist in the province such as hospital schools, care and treatment centres, and schools in correctional facilities, as well as provincial schools which are residential schools geared to specific exceptionalities, for examples blind and deaf, deafened and hard of hearing students.
Section 10(1) of the Code provides a broad definition of the term “disability”, as follows:
- 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,
- a condition of mental impairment or a developmental disability,
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
- a mental disorder, or
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")
It is the Commission’s policy position that “disability” should be interpreted broadly. It includes present and past conditions, as well as perceived disabilities.
The Code also makes it clear that discrimination includes constructive discrimination, in which a requirement, qualification or factor that appears neutral has the effect of excluding or disadvantaging a group protected under the Code.
Section 17 of the Code sets out the duty to accommodate. It is not discriminatory to refuse a service because a person is incapable of fulfilling the essential requirements of exercising the right. However, a person will only be considered incapable if the needs of the person cannot be accommodated without undue hardship.
The Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (“Disability Policy”), released in March 2001, sets out the Commission’s key policy positions in this area, including:
- a definition of disability that recognizes the impact of social handicapping;
- an emphasis on the right of persons with disabilities to integration and full participation;
- recognition of the central importance of design by inclusion, and barrier removal for persons with disabilities;
- reaffirmation of the importance of respect for the dignity of persons with disabilities;
- recognition that persons with disabilities are individuals first, and should be considered, assessed, and accommodated on an individual basis;
- the principle that accommodation is a responsibility shared by all parties to the process; and
- a reaffirmation of the high standard of undue hardship set by the OHRC in 1989.
These principles, and the whole of the Disability Policy, form the basis of the OHRC’s approach to issues of disability and the duty to accommodate. It was not the intent of the Commission’s consultation, nor is it the intent of this Report, to re-evaluate or reconsider these principles. Rather, it is the Commission’s aim, both in this Report and in the forthcoming Guidelines on Accessible Education, to clarify the application of these principles in the education sector.
Human Rights Code, R.S.O. 1990, c. H-19.
Ibid., s. 11.
 Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (March 2001), available online at www.ohrc.on.ca.
 Social handicapping can be described as society’s response to a real or perceived disability, and may be based as much on perceptions, myths and stereotypes, as on the existence of actual functional limitations.
 Commission policies and guidelines are approved statements setting out the Commission’s interpretation of specific provisions of the Code. They are important because the public has a right to expect that the Commission will deal with cases in a way that is consistent with its published policies.