There are three cases here with similar facts – they all relate to individuals who have health conditions that do not actually disable them functionally in performing their duties. Each of them either lost their job or was not hired because their prospective employer thinks that these conditions will cause them problems in the future, or at least that they could. Mercier doesn’t get a job as a gardener because she has minor scoliosis, which they think could result in back pain. The Troilo case is about a police officer that has Crohn's disease, and Hamon deals with a police officer that has a back condition. The Tribunal held that the purpose of the Canadian Human Rights Act is to protect people who are actually handicapped and as Mercier and Troilo are not they have no claim. However, Hamon was successful on the same basis. The Court of Appeal overturned the Tribunal's rulings against Mercier and Troilo which was appealed to the Supreme Court.
- Is a perceived disability an adequate ground to lead to a human rights claim?
Appeals dismissed, Court of Appeal judgment restored, Hamon's case sent to the Court of Appeal for a decision in light of this judgment.
The court agreed with the Court of Appeal; the definition is must be looked at in the context of the Quebec Charter of Human Rights and Freedoms. They make the point that the very definition of "disability" and "handicap" come from people’s perceptions and stereotypes, as is the case here. They also look to the Quebec Charter, where the term "person with a disability" was changed to "handicap" in an indication that the government was accepting the broadening concept of disability. They agree with Hamon’s Tribunal that there will be a problem when the onus shifts and the defendants try to show undue hardship, and therefore the appeals are allowed.
Perceived disabilities are protected under Canadian Human Rights legislation because perception is an implied part of "disability".