Equality and Justice
For People With Disabilities

Five Year Review of the Canadian Human Rights Tribunal Decisions: Cases Alleging Discrimination on the Basis of Disability

Published by on September 18, 2019

Five Year Review of the Canadian Human Rights Tribunal Decisions: Cases Alleging Discrimination on the Basis of Disability

Chloe Ilagan, University of Ottawa Law Student, 2021

Introduction to the Canadian Human Rights Commission and Tribunal

The Tribunal and Commission each play a role in the human rights complaint process. The Commission is the first point of contact for complaints under the Canadian Human Rights Act (CHRA). The CHRA protects against discrimination based on one or more of the prohibited grounds, such as disability, race, and sex. Examples of discriminatory practices can be found in sections 5-14 of the Act. If the Commission finds that a complaint is warranted, the case is referred to the Tribunal. The Tribunal is similar to a court of law, as the Tribunal hears evidence and decides whether discrimination has occurred under the Act. The Tribunal issues interim rulings and final decisions. Interim rulings are issued for preliminary or procedural matters that are not related to the merits of the complaint. Final decisions are issued by the Tribunal as to whether the discrimination occurred. 

This article examines decisions issued by the Tribunal. 

Findings

Between 2013—2018, the Tribunal issued decisions in 14 cases where the complainant claimed discrimination on the grounds of disability. 

Of the 8 cases regarding physical disabilities, the breakdown is: physical illness/disease (3), physical disabilities due to injuries (4), and an undisclosed physical disability (1).
Of the 7 cases regarding mental illness/addiction, the breakdown is: depression (3), anxiety (2), poly-substance abuse disorder (1), and an undisclosed mental illness (1).
One complainant had undisclosed mental and physical disabilities (1). 
The other disability was a sleep disorder (1). 
Note, some complainants had both mental and physical disabilities, while some reported multiple physical/mental disabilities. 

Complainant Profile: Legal Representation

Figure 3: In the 14 cases, 50% of the complainants (7) were self-represented at the Tribunal. 14% of complainants (2) were represented by their spouses, who were not lawyers, but acted as advocates. 36% of complainants (5) were represented by lawyers.

 

Complaint Profile: Nature of Discrimination 

Figure 4: 86% of complainants (12) claimed discrimination by their employer, contrary to Section 7 of the CHRA. 14% (2) claimed denial of goods, or services, contrary to Section 5, while 4% (1) alleged denial of accommodations, contrary to Section 6. Note: Total is greater than 14. 1 complainant alleged discrimination against a service provider who is also residential accommodation provider. 

Complaint Profile: Other Grounds of Discrimination

In 50% of cases (7), the complainant alleged discrimination due to disability and other prohibited grounds of discrimination: sex (3), family status (2), marital status (1), national/ethnic origin (1), race (1), religion (1), age (1), colour (1). 

Note: some complainants alleged discrimination on the grounds of multiple prohibited grounds, so totals are greater than 7.

Tribunal Decisions and Outcomes


When a complainant alleges discrimination, the complainant must establish a prima facie case of discrimination, meaning that they must prove that they were subject to differential treatment on the basis of their disability (See Hughes v Transport 2014, 2014 CHRT 19 at para 206). 

In 50% of cases (7), the Tribunal found that the complainant did not establish prima facie discrimination due to their disability. The Tribunal dismissed these complaints. 
However, if a prima facie case for discrimination is made, the burden then shifts to the Respondent to establish that the alleged discrimination did not occur, or the behavior was non-discriminatory or justified. (Hughes 2014 at para 207; see Section 15 of the Act). 

In 21% of cases (3), the Tribunal found that there was prima facie discrimination, but the Respondent established that their behavior was justified. The Tribunal dismissed these complaints. 
However, if the respondent does not discharge their burden, then the complaint is substantiated, and a remedy may be provided to the complainant. 

In 21% of cases (3), the Tribunal ruled that the complainant’s claim was substantiated, and the Tribunal ordered a remedy to the complainant. 
In the case of Ledoux v Gambler First Nation, 2018 CHRT 26, the complainant claimed discrimination due to disability under CHRA section 5 (denial of service), section 6 (denial of residential accommodations) and section 14.1 (retaliation against complainant). The Tribunal found that the complainant’s claim was substantiated under sections 6 and 14 and ordered remedies. The Tribunal found that there was no discrimination under section 5. 

All cases are available to the public from the Canadian Human Rights Tribunal database: https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/en/nav.do