The Human Rights Code (Code) guarantees the right to equal treatment with respect
to services without discrimination on the basis of prohibited grounds including
disability. Education is considered to be a service under the Code. The Code has
primacy over other Acts or regulations; this means that if another Act (e.g. Education
Act) conflicts with the Code, the Code applies unless there is a specific exception.
The Code’s definition of disability includes:
- 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.
Subsection 10(3) of the Code also guarantees the right to equal treatment without
discrimination on the basis of past, present or perceived disabilities.
The Code also precludes “constructive discrimination” under section 10(1); this refers
to the existence of a neutral requirement, qualification or factor that excludes or
disadvantages a group of persons protected under the Code.
Under subsection 17(1), the Code provides that a person’s right to equal treatment
without discrimination is not infringed if the person is incapable of performing the
essential duties or requirements to exercise that right. However, subsection 17(2) of
the Code creates the undue hardship standard; a person will not be considered
incapable unless the party responsible for the accommodation can demonstrate
through the provision of objective, direct, and quantifiable evidence where applicable
that the accommodation would cause undue hardship. In determining undue
hardship, the relevant considerations are costs, outside sources of funding, and health
and safety. Business inconvenience, third-party preferences, impact on morale and
collective agreements are not relevant considerations.