Difference between revisions of "BC Human Rights Code (6:III)"

Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a: “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life. Please refer to Boyce v New Westminister (City) (1994), 24 CHRR D/441 at para 50. See Beckett v. Strata Plan NW 2603, 2016 BCHRT 27 at para 120 for a more recent case that refers to Boyce v New Westminister (City)’s definition of physical disability. In Morris v BC Rail, 2003 BCHRT 14, at para 214, the Tribunal set out the following three aspects for assessing whether an individual has a physical or mental disability:*the individual’s physical or mental impairment, if any;

The protection of the HRC extends to those who are perceived to have a disability or to be at risk of becoming disabled in the future. As such, the Tribunal has rejected the application of strict criteria to determine what constitutes a physical or mental disability. This has led to a  somewhat expansive definition. For example, protection has been specifically applied to persons with AIDS, persons who are HIV positive, and persons believed to be HIV positive, all of whom are considered to have a physical disability. Please refer to ''McDonald v. Schuster Real  Estate'', 2005 BCHRT 177 at para 24 and ''J v London Life Insurance Co'' (1999), 36 CHRR D/43 (BCHRT) at para 42.

As noted above, protection from discrimination due to physical disability, extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''J v London Life Insurance Co'' at para 46, for example, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues.

Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly, there is a duty to accommodate, meaning that all efforts must be taken to accommodate the group or person to the point of undue hardship. Examples include installing wheelchair access and allowing workers days off on religious holidays. Please refer to ''Ferguson v Kimpton'', 2006 BCHRT 62 at para 68.  

An employer’s duty to accommodate involves a substantive aspect as well as a procedural aspect. For instance, an employer who has exhausted  all reasonable means of accommodation short of incurring undue hardship would have met their substantive duty to accommodate. What constitutes  reasonable measures is a question of fact and will differ from case to case. However, the employer’s conduct may still be found to have failed  to comply with the procedural aspect of the duty to accommodate if they treat the complainant unfairly while fulfilling their substantive  duty. Please refer to ''British Columbia (Public Service Employees Relations Commission) v British Columbia Government and Service Employees  Union (BCGSEU)'', [1999] 3 SCR 3 (“Meiorin”), at para 65-66.