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Here I will list case law from the courts that have settled specific matters, which are now precedents.
Below are decisions of the Supreme Court of Canada as to the definition of total disability, forced medical treatment as unconstitutional and the rights of the social benefits tribunal in desiding constitional matters.
How do courts interpret the definition of total disability?
The Supreme Court of Canada in the 1983 case Paul Revere vs. Sucharov adopted the following interpretation which has been followed by courts across Canada :
“The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.”
Basically it states that the momment a reasonable person (YOU) realizes that returning to his/her employment or any other employment that my exacerbate the persons disability or cause death, the person is concidered totally disabled within the meaning of health or accident insurance policies. This means your employers accident insurance company, the ODSPA ( Ontario Disability Support Program Act) and the CPPDA (Canada Pension Plan Disability Act). You must have your doctor and or your social worker or psychiatrist determine your disabilities.
Forced Medical Treatment and our Right of Autonomy
Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 Below are the main points of the decision.
"7 Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment.
75 The right to refuse unwanted medical treatment is fundamental to a person's dignity and autonomy. This right is equally important in the context of treatment for mental illness: see Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), per Robins J.A., at p. 88:
Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects. Unwarranted findings of incapacity severely infringe upon a person's right to self-determination.
76 The legislative mandate of the Board is to adjudicate solely upon a patient's capacity. The Board's conception of the patient's best interests is irrelevant to that determination. As the reviewing judge observed, "[a] competent patient has the absolute entitlement to make decisions that any reasonable person would deem foolish" (para. 13). This point was aptly stated by Quinn J. in Koch (Re) (1997), 33 O.R. (3d) 485 (Gen. Div.), at p. 521:
The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake. In this case, the only issue before the Board was whether Professor Starson was capable of making a decision on the suggested medical treatment. The wisdom of his decision has no bearing on this determination.
77 The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the Act. At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions.
Professor D. N. Weisstub, in his Enquiry on Mental Competency: Final Report (1990), at p. 116 ("Weisstub Report"), notes the historical failure to respect this presumption:
"The tendency to conflate mental illness with lack of capacity, which occurs to an even greater extent when involuntary commitment is involved, has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group."
Alcoholism and Drug Addiction are Disabilities
In a unanimous ruling in September 2010, the Court of Appeal for Ontario has held that denying disability benefits to those who are severely disabled by alcoholism or drug addiction is discriminatory: Director (Ontario Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.
In a previous related ruling, Mr. Tranchemontagne argued before the Supreme Court of Canada that the Social Benefits Tribunal (SBT), a body that adjudicates ODSP appeals, should be entitled to determine whether its enabling legislation violates the Ontario Human Rights Code. The Supreme Court agreed, which paved the way for the SBT to find that denying disability benefits to alcoholics violates the Code, a decision which has now been upheld by the Ontario Court of Appeal.
Superior Court of Justice affirms ability of terminated employees to seek Human Rights Code damages in wrongful dismissal actions.
A recent endorsement by Justice Echlin of the Superior Court of Justice has affirmed that disabled employees who fail to receive appropriate workplace accommodations should be permitted to pursue wrongful dismissal and human rights damages in the Superior Court of Justice, even when these two claims relate to the same set of facts: Anderson v. Tasco Distributors, 2011 ONSC 269.
Normally, a party is not permitted to commence an action in the Superior Court of Justice when the claim is based solely on an infringement of the Ontario Human Rights Code (“the Code”). In these circumstances, the party must bring an application to the Human Rights Tribunal of Ontario.
However, section 46.1 of the Code allows a party to obtain damages for a breach of the Code in a civil action, when the action is not based solely on a breach of the Code.
In the Anderson v. Tasco Distributors case, the defendant employer brought a motion to strike out the plaintiff’s Statement of Claim on the grounds that the court had no jurisdiction over allegations relating to an alleged failure to accommodate the plaintiff’s disability, among other grounds. In his decision on the motion, Justice Echlin refused to strike out the plaintiff’s claim and affirmed that the plaintiff was entitled to bring the claim even though the breach of the Human Rights Code and the civil claim for wrongful dismissal damages related to the same set of facts. Echlin J. took no issue with the fact that the same set of facts gave rise to all of the plaintiff’s claims.
Justice Echlin’s endorsement appears to signal an increased willingness to allow claims for human rights damages in civil proceedings, even where the alleged human rights breach and the civil claim are inextricably linked.
