Epilepsy and the Human Rights Code
Edited by Kelly Park
I. The Human Rights Code
The 1990 Ontario
Human Rights Code (the "
Code") recognizes the dignity and worth of every individual and provides for equal rights and opportunities without discrimination. According to the
Code, each person, as part of the whole Canadian community, has a rich contribution to make to the development and well-being of our province.
The
Human Rights Code provides every person with the right to freedom from discrimination in the areas of: services, accommodation, contracts, employment and membership in vocational associations and trade unions. No person may be discriminated against on the grounds of: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability, the receipt of public assistance, or record of offenses.
The
Code prohibits harassment in accommodation and employment, as well as unwelcome sexual solicitation or advance.
The
Code recognizes various types of discrimination.
- Direct discrimination is considered to be the most obvious form of discrimination by a person acting on his or her own behalf, e.g., a landlord who refuses accommodation to a person because of that person's disability.
- Indirect discrimination occurs when a person causes another to act on his or her behalf and to discriminate against a person e.g., if a landlord instructs his or her superintendent not to take tenants with a certain disability.
- Discrimination because of association occurs when a person who associates with a member of a particular race, colour, disability, etc. is denied equal treatment because of that association.
- Constructive discrimination refers to rules, policies, and practices, which may not be intentionally and obviously discriminatory, but which have a discriminatory effect on a group of persons protected under the Code, e.g., if an employer requires that employees be clean shaven and he or she refuses to hire an applicant whose religion requires him to have a beard.
The Human Rights Code and Epilepsy
Discrimination "because of disability" is prohibited in all areas protected by the Ontario
Human Rights Code. The
Code defines disability as: any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. Some examples of physical disabilities are listed in the
Code, epilepsy being among these listed. Therefore, a person who has epilepsy is protected by law from all types of discrimination.
The
Code states that the rights of a disabled person are not infringed upon if the right is denied because the person is incapable of fulfilling essential duties or requirements because of the disability. For example, a person who has epilepsy may be denied a job if their disability makes them incapable of performing the essential duties of the job. This would be the case if a person applied for a job in a copy shop, and could not use a photocopier because of photosensitive epilepsy; using the photocopier is an essential duty of the job. However, photosensitive epilepsy would not prohibit a person from performing the essential duties of an accountant for example.
Filing a Complaint
When a person believes that he or she has been discriminated against or harassed in any of the areas and on any of the grounds covered by the
Human Rights Code, the person may make a formal complaint to the Ontario Human Rights Commission.
A Commission staff person is available to discuss the problem and is required to accept the complaint of any person who believes that his or her rights under the
Code have been violated. A complaint is not officially filed with the Commission until a
Human Rights Complaint Form has been completed and signed by the complainant and has been registered. Once the completed and signed complaint form has been received, the Commission will conduct an impartial investigation. It is important to note that the Commission has the discretion to refuse to deal with a complaint if the facts upon which the complaint is based occurred more than 6 months before the complaint was filed. A Fact Finding Conference is usually, but not always, held after the complaint has been served to the respondent and the respondent has had an opportunity to reply. Following this Conference, an opportunity is usually provided for a settlement discussion if the complainant, respondent and Commission staff feel it is appropriate. In many instances a settlement can be agreed upon. A case which can not be settled may be referred to the Human Rights Tribunal of Ontario. The Tribunal holds a hearing to, reviews the complaint, makes a decision and orders a settlement. That decision may be accepted by both parties or appealed. If appealed, the Divisional Court hears the appeal and makes a decision. If this decision is not accepted by both parties, and is appealed, the Supreme Court of Canada makes the final decision.
For further information about filing a complaint, contact:
Ontario Human Rights Commission
180 Dundas Street West, 8th Floor
Toronto, Ontario
Canada M7A 2R9
Toll Free: 1 800 387-9080
Telephone: 416 326-9511
Fax: 416 326-9510
E-mail: info@ohrc.on.ca
II. The Canadian Human Rights Act
As with the Ontario Human Rights Code, the 1985 Canadian Human Rights Act provides persons with disabilities with the right to be free from discriminatory practices, on the basis of disability, with respect to the following areas of social interaction: goods, services, and facilities; commercial premises and housing; employment; and employee organizations.
Filing a Complaint
If a person believes that he or she has been discriminated against on any of the prohibited grounds by a federally regulated employer, the person can file a complaint with the Canadian Human Rights Commission. The Commission has the discretion to refuse to deal with a complaint if the facts upon which the complaint is based occurred more than 12 months before the complaint was filed. A voluntary mediation may be followed for a fair settlement, but if either side chooses not to participate or if the mediation fails, an investigation will follow. If the Commission finds that there is evidence to support the complaint, they may refer the file to the Canadian Human Rights Tribunal, which will review the case and make a decision. The Tribunal's decision can be appealed to the Federal Court of Canada, and some complaints can be appealed all the way to the Supreme Court of Canada.
For further information about filing a complaint, contact:
Ontario Regional Office of the Canadian Human Rights Commission
Suite 1200, South Tower
175 Bloor Street East
Toronto, Ontario
Canada M4W 3R8
Toll Free: 1 800 999-6899
Telephone: 416 973-5527
Fax: 416 973-6184
E-mail: info.com@chrc-ccdp.ca
III. Advocacy
What's Advocacy?
Advocacy is the act of pleading for or defending another person. The purpose of advocacy is to empower vulnerable people and promote respect for their dignity, rights and freedoms.
Like others who have disabilities, people with epilepsy often face barriers to their basic human rights and freedoms. Employment, transportation, education, subsidized medication, insurance, driving issues, abuse, housing and isolation are just some of the many issues faced by people who have epilepsy.
Through advocacy, changes that empower people with epilepsy and protect their dignity and rights can happen. Such changes can take place at the governmental, legal, social, economic and institutional levels.
Types of Advocacy
i. Self Advocacy – When one person or a group of people speak or act on their own behalf in pursuit of their needs or interests, this is known as self advocacy. Self advocacy requires that people value themselves and believe that by speaking out, they can change their status in society.
ii. Citizen Advocacy – This is a one-to-one partnership, involving a vulnerable person (consumer) and an advocate (private citizen). The goals of citizen advocacy are to provide emotional support, friendship, and when appropriate, to speak for the consumer. It is a long-term relationship built on mutual respect, where the advocate functions as though their partner's interests were their own.
iii. Systemic Advocacy – Systemic advocacy is concerned with policy, procedure and reforms at the institutional level. It points out built-in problems with structures, policies and procedures in an institution which hinders the rights, freedoms and dignity of consumers.
iv. Legislative Advocacy- This is advocacy at the parliamentary level, involving both informing and lobbying members of parliament to pass laws which will protect the consumer.
Advocacy Committees
Epilepsy Ontario and Epilepsy Chapters are forming working groups which will serve the needs of people living with epilepsy across Ontario and help to resolve human rights issues.
Advocates perform a variety of functions, such as educating employers, lobbying governments and assisting clients with their day-to-day needs.
Some of the day-to-day barriers that people with epilepsy face include issues relating to education, housing, transportation, subsidized and/or cost of medications, insurance, employment, and isolation. Gender, race and age further complicate these issues. Even where a person lives can be a barrier – rural areas often have limited access to services provided in urban centres.
How You Can Help
Become a member and get involved through one of the local epilepsy chapters. Volunteers are needed to provide assistance with specific tasks, such as writing position papers and lobbying governments.
To become a member, or for further information about how you can help, contact your local chapter or telephone Epilepsy Ontario at 1-800-463-1119.
Epilepsy Ontario wishes to thank all Ontario chapters for their contributions to this brochure.
For further information, please visit our website at www.epilepsyontario.org.
Epilepsy Ontario
Suite 803
1 Promenade Circle
Thornhill, Ontario
Canada L4J 4P8
1 800 463-1119 Toll Free in Ontario
905 764-5099
416 229-2291
905 764-1231 Fax
E-mail: info@epilepsyontario.org
Canadian Business No. 11890 0844 RR 0001
Supported by the
Trillium Foundation
