Continuing on this week’s topic of administrative law, I’d like to talk about the Human Rights Code* and administrative tribunals.

Section 17 of the Ontario Human Rights Code provides the following:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

While the foregoing paragraphs may seem confusing, it boils down to this: persons with disability are entitled to accommodation, unless such accommodation will cause undue hardship on the service provider.

In modern Canadian law, it’s long been settled that administrative tribunals, in making their decisions, are bound by the human rights legislation.^ This principled approach applies to both the procedure of the tribunals and the substantive decision-making.

Procedurally speaking, the tribunals are required to provide accommodation for persons with disabilities. This may include providing barrier-free hearing rooms, telephone or video conference facilities, and frequent breaks.

In rendering a decision, the tribunal must factor in the person’s disabilities. For example, if a tenant suffers from mental illness and occasionally makes loud noise involuntarily, the tribunal adjudicating the matter will have to decide whether it would be reasonable for the landlord to provide accommodation (i.e. to tolerate the noise) without undue hardship.

*R.S.O. 1990, c. H.19

^Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27

+Walmer Developments v. Wolch (2003), 67 O.R. (3d) 246