April 16, 2003by Israel Foulon LLP
Question: Is gambling considered to be a disability? What has occurred where employees have used gambling as a defence for their actions?
Answer: Ontario ’s Human Rights Code adopts a very expansive definition of “handicap” which encompasses physical, psychological and mental conditions. Although the definition of “handicap” in the code does not specify “gambling,” the list is not exhaustive and therefore other conditions can also be considered a disability.
Substance dependence, including alcoholism and drug abuse, has been recognized as a form of disability. But there has been no explicit decision or policy in which the Ontario Human Rights Commission has ruled a gambling addiction can be categorized as a disability.
Nonetheless the conditions which can be considered a disability are not closed and, therefore, it is still open to the commission to find an addiction to gambling constitutes a disability within the meaning of the code. Many academics have argued a severe gambling addiction would be a considered a disability as it is analogous to a dependence on alcohol or drugs.
Therefore if an employee could establish he was addicted to gambling, and his addiction to gambling was a disability, an employer would have the same duty to accommodate this form of disability as it would for any other disability.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today