Perceived Disability and Your Rights Under the Ontario Human Rights Code

When people think of disability discrimination, they often assume it only applies to individuals with a formal medical diagnosis. However, under the Ontario Human Rights Code, the definition of disability is intentionally broad and inclusive. It also protects people who are discriminated against because of a perceived disability—that is, when someone is treated unfairly based on the assumption that they have a physical or mental condition, even if they do not.

This legal principle plays a vital role in cases involving body shaming, mental health stigma, or incorrect assumptions about a person’s physical or cognitive abilities.

What Is a Perceived Disability?

The Human Rights Code protects individuals in employment, housing, services, contracts, and other areas from discrimination based on both actual and perceived disabilities.

According to Section 10(1) of the Code, disability includes:

“...any degree of physical disability, infirmity, malformation or disfigurement... and conditions that are perceived to exist.”

The Ontario Human Rights Commission (OHRC) further explains that:

“The fact that someone is believed to have a disability—even if they do not—can be enough to trigger protection under the Code.”

This means that even if an employee has no health issue, if an employer assumes they are unfit for work due to their appearance, weight, mental health, or other perceived traits, and treats them adversely, that may amount to discrimination.

Legal Principles: Protection from Ableism and Stereotypes

The OHRC emphasizes that:

• Ableism refers to attitudes and actions that devalue or limit people with (actual or perceived) disabilities.

• The law protects people from discrimination based on present, past, future, or perceived disabilities.

• Discrimination can arise not only from overt acts but also from stereotypes, stigma, and social assumptions.

This protection recognizes the reality that people may face barriers because of how others perceive or react to them, not just because of any actual diagnosis.

Key Case Law: Perceived Disability

Here are several leading cases that demonstrate how perceived disability is addressed under Ontario law:

Fernandes v. Tomas, 2014 HRTO 1452

In this case, the Human Rights Tribunal of Ontario found that the respondent’s conduct—mocking and publicly humiliating the applicant based on assumptions about her physical condition—constituted discrimination under the Ontario Human Rights Code. Even without a confirmed diagnosis, the Tribunal held that the employer's behaviour was rooted in a perceived disability, making it discriminatory.

Turner v. Canada (Attorney General), 2012 FCA 159

In this case, the Federal Court of Appeal addressed the issue of perceived disability as a ground of discrimination under the Canadian Human Rights Act. The applicant, Mr. Turner, alleged that he was discriminated against during hiring processes by the Canada Border Services Agency, in part due to a perception that he was disabled because of his weight.

The Court found that Mr. Turner had clearly raised the issue of perceived disability throughout the proceedings. However, the Canadian Human Rights Tribunal failed to address this argument in its decision. The Court ruled that this omission rendered the Tribunal’s decision unreasonable, emphasizing that when an issue is squarely raised and could affect the outcome, the Tribunal has a duty to consider it explicitly.

This case affirms that discrimination based on perceived disability is a valid ground under human rights law and must be taken seriously in tribunal and court proceedings.

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City of), 2000 SCC 27

In this case, the Supreme Court of Canada held that disability under human rights law includes not only actual impairments but also perceived disabilities. The case involved individuals who were denied employment due to medical conditions that did not result in functional limitations, but which employers believed could develop into disabilities. The Court emphasized that discrimination can arise from stereotypes, assumptions, or fear of potential disability, even if no real impairment exists.

This decision established that perceived disability is a protected ground under Canadian human rights legislation. It underscored the importance of interpreting human rights statutes liberally and purposively, focusing on the social consequences of differential treatment rather than just the existence of a physical or mental condition. The ruling significantly broadened protections for individuals facing discriminatory treatment based on how they are perceived, rather than their actual health status.

Common Examples of Perceived Disability in the Workplace

• Body shaming based on assumptions about fitness or health

• Mental health stigma, such as being labeled "unstable" or "too emotional"

• Speech or communication differences wrongly interpreted as incompetence

• Fatigue or temporary illness misread as a sign of incapacity or unreliability

Why This Matters for Employees and Job Seekers

The human rights protections in Ontario do not depend on a diagnosis. If an employer, landlord, or service provider treats you as if you have a disability, and that treatment is harmful or discriminatory, you may have a valid legal claim.

You are protected whether:

• You actually have a disability,

• You had one in the past,

• You may develop one in the future, or

• Someone thinks you have a disability, even if you do not.

What Can You Do If You’ve Been Affected?

1. Document everything: Keep records of emails, comments, or actions showing unfair treatment.

2. Seek legal advice: Discrimination based on perception can be subtle. A legal professional can assess your situation.

3. Act promptly: Complaints to the Human Rights Tribunal of Ontario (HRTO) must usually be filed within one year of the incident.

We Can Help

At Apuntar Legal Services, we understand how damaging stereotypes and assumptions can be in the workplace and in everyday life. If you believe you’ve experienced discrimination based on a perceived disability, reach out for a confidential consultation.

We can help you navigate the complaint process, gather evidence, and advocate for your rights.