Most Canadian jurisdictions define a physical or mental disability by the relevant human rights statute. British Columbia is unique in allowing case law to define these terms. Generally, the legislated definitions are similar, with however, certain exceptions.

Ontario, for example, includes in its definition, a person who has received Workers Compensation benefits. The Canadian Human Rights Act includes disfigurement, as does the Nunavut statute, in its definition.

The Ontario Code adds specifically to its definition that the statute applies not only to an existing disability, but also a past disability and to perceived disability, past or present.

The case law has determined such an expanded definition is not required, as the statute will be interpreted in such a manner to include such related issues.

Some statutes add to the definition addiction to drugs or alcohol, or a past such addiction. The concept of drug and alcohol addiction as a disability is well-founded in law, regardless of a statutory definition, as is the application of the human rights protections to perceived, past or present disabilities, as is noted below. It is clear that an addiction to drugs or alcohol will be considered a disability. ¹

The Supreme Court of Canada ² considered the meaning of the word “handicap” in the Quebec Charter of Human Rights and Freedoms, a term which was undefined in the Charter itself.

The definition has been interpreted very liberally, to include “any degree of physical disability” and the actual or perceived possibility that a person may be disabled or may in the future have a defined disability. ³

Even if the medical issue is temporary in nature, it may still be within the definition. ⁴

The Divisional Court has recently reinforced this principle in Bokhari v Top Medical Transportation Services. In that case, the applicant suffered an ankle injury and sought a brief medical leave. His employment was terminated shortly thereafter. The Human Rights Tribunal dismissed his application at a preliminary stage, finding that the injury was merely a “transitory” condition and therefore not a disability. ⁵

On judicial review, the Divisional Court rejected this reasoning. It held that the Tribunal had improperly adopted a narrow, biomedical approach to disability and had failed to apply the required contextual and socio-political analysis mandated by Supreme Court jurisprudence. The Court confirmed that even a short-term or seemingly minor injury may constitute a disability, depending on its impact and the surrounding circumstances. The issue cannot be determined in the abstract or at a preliminary stage without a proper evidentiary record.

The important issue is, the Ontario appellate court stated, was whether the employer believed that the medical status of the employee may have impeded its business purpose which motivated it to take action. It is this perception and subsequent response to it that brings into play the Code’s protection, provided that there is shown a fundamental impairment which limits the applicant’s ability to do that which others can normally do:

There must be some inability to do something others can normally do and substantial ongoing limits on one’s activities: Bielecky v. Young, MacNamara (1992), 1992 CanLII 14291 (ON HRT), 20 C.H.R.R. D/215. It is not the precise nature of the disability or the duration of work absence which defines whether a disability is covered under the Code. A work injury may not be severe or long-term; yet the employer may think that it will interfere with business operations and profitability and, on that basis, dismiss the employee. It is this perception and consequent treatment which defines the injury as a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.

The reasoning in Bokhari is entirely consistent with this line of authority. It emphasizes that the focus must remain on the effect of the condition and the employer’s response to it, rather than on rigid categorizations such as whether the condition is temporary or minor. By attempting to exclude “transitory” injuries at the outset, the Tribunal risked undermining the broad, remedial purpose of the Code.

It may not be necessary to show a functional impairment caused by the medical issue. A disability may nonetheless be found. This issue was addressed by the Supreme Court in the Montreal decision:

Because the Charter must be interpreted in light of the Canadian Charter and other human rights legislation, we are faced with the question of whether the ground of discrimination found in s. 15(1) of the Canadian Charter and in other human rights statutes includes disabilities which do not give rise to any functional limitation.

48 Whatever the wording of the definitions used in human rights legislation, Canadian courts tend to consider not only the objective basis for certain exclusionary practices (i.e. the actual existence of functional limitations), but also the subjective and erroneous perceptions regarding the existence of such limitations. Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: …

A critical question remains whether the employer’s decision to take adverse action was “influenced” by the disability.

The Bokhari decision adds a further dimension to this analysis by confirming that such issues should not be prematurely determined through procedural screening. Where there is an arguable basis that a condition—whether temporary, perceived, or minor—may constitute a disability, the applicant is entitled to proceed and develop a full factual record.