Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals, 2025, Malenfant

[Dolphin]

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Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals

The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities. This paper explores the intersection of such skepticism with the social benefits adjudication...

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Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals​

Authors​

Pascale Malenfant, McGill University Faculty of Law

Keywords​

disability, hidden disability, health law, social benefits, administrative law, ideal victim

Abstract​

The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities.

This paper explores the intersection of such skepticism with the social benefits adjudication processes in Ontario and Quebec.

In drawing parallels to feminist critiques of the “ideal victim” in sexual assault cases, it argues that the tribunals’ biased framework for believability is based on a claimant’s conformity to stereotypical expectations of what an “ideal” claimant with a hidden disability looks like.

By comparatively examining 10 years worth of Ontario and Quebec tribunal decisions featuring claimants with CFS, this study highlights how those with hidden disabilities are evaluated based on visible manifestations of their disability/emotion, medical/expert evidence, and the apparent credibility of themselves or others as witnesses.

This research not only addresses a significant gap in the literature but also calls for reforms in the legal treatment of hidden disabilities, advocating for a shift away from entrenched stereotypes towards a more inclusive and equitable system.

Le phénomène du scepticisme envers les personnes handicapées, en particulier en ce qui concerne les handicaps « cachés » comme le syndrome de fatigue chronique (SFC), a favorisé une culture du doute dans les milieux médicaux, juridiques et publics. Le présent article explore l’intersection entre ce scepticisme et les processus d’évaluation des prestations sociales en Ontario et au Québec. En établissant un parallèle avec les critiques féministes de la « victime idéale » dans les affaires d’agression sexuelle, il soutient que le cadre biaisé des tribunaux en matière de crédibilité repose sur la conformité du demandeur aux attentes stéréotypées concernant l’apparence d’un demandeur « idéal » ayant un handicap caché. Par un examen comparatif des décisions rendues par les tribunaux de l’Ontario et du Québec au cours des dix dernières années concernant des demandeurs atteints du SFC, cette étude met en évidence la manière dont les personnes atteintes d’un handicap caché sont évaluées en fonction des manifestations visibles de leur handicap/de leurs émotions, de témoignages de médecins/d’experts et de la crédibilité apparente d’elles-mêmes ou d’autres personnes à titre de témoins. Cette recherche ne souligne pas seulement une lacune importante dans la littérature, mais appelle également à une réforme du traitement juridique des handicaps cachés, en préconisant l’abandon des stéréotypes bien ancrés au profit d’un système plus inclusif et plus équitable

Pascale Malenfant, "Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals" (2025) 48:2 Dal LJ.

 

[Utsikt]

I think this is a great example of how the softer sciences can contribute to the field of ME/CFS. It shines light on some of the barriers and systemic discrimination pwME/CFS face, and could e.g. be used to build a case for earmarked funding and educational programmes among the people that work in the various systems. Although I’m not sure there are many I would trust with that task..

The introduction is worth reading on its own if you want to become more familiar with the topics.

Edit: this is just an overview of the intro, not the review of the cases.

The first section discusses ME/CFS as a hidden disability. While this is just an intro to set up the other discussions, I think it could have benefitted from a brief mention of the active works that’s being done to continue the oppression of pwME/CFS.

The paper implies that the psychosomatisation of ME/CFS is due to ignorance. That couldn’t be further from the truth - it’s a narrative that’s being sustained through active and relentless work by the BPS lobby. We are not just fighting the disadvantage of having a non-conforming disability.

The second section is about the disability con:

The disability con refers to the general moral panic that benefits claimants attempt to cheat the system by exaggerating or fabricating their disability.29

The disability con is similar to the myth of the ideal rape victim—which has historically determined which claimants of sexual assault are to be believed based on their perceived propriety—and are both apparent products of the “just world” hypothesis. Within the idea of the “just world,” being disabled or a victim of sexual assault are not necessarily viewed as out of the control of the individuals in question, but rather the result of their own inherent negative characteristics or blameworthy behaviour.

Thus, just as society may feel that certain rape victims do not deserve justice due to their own actions, this same society may be less inclined to believe that people with certain disabilities deserve financial support or accommodations.

This is the first time I’m hearing the name «just world», but it’s a familiar concept. It ties nicely into the BPS mind over matter-narrative where you just have to do things correctly to get better.

The paper cites sources showing that disability fraud is the exception and not the norm - as would be expected by most people that are actually disabled.

This quote by Wendell stands out:

Suspicion surrounds people with chronic illnesses—suspicion about how ill/disabled we really are, how or why we became ill, whether we are doing everything possible to get well, and how mismanaging our lives, minds, or souls may be contributing to our continuing illness… Suspicion comes from medical professionals, friends, relatives, co-workers, and, understandably, from other people with disabilities.37

The third section provides historical context for the concept of the ideal rape victim.

 

[Chandelier]

I think this is a great example of how the softer sciences can contribute to the field of ME/CFS.

Very interesting, thanks for the analysis!

 

[Utsikt]

It’s difficult to give a summary of the reviews of the cases, but it’s written in plain language so anyone can follow it if they have the capacity to read it.

I want to highlight this, though. For context, it’s for an application for permanent disability benefits:

However, the most significant difference between the Ontario and Quebec approach was the latter’s omnipresent focus on whether the claimant had exhausted every possible treatment that would render it “probable” that the individual could one day have the capacity to hold, on a regular basis, a truly gainful occupation.115 In some decisions, even where only one or two “more specialized” doctors out of several suggested a possible trial-stage medical treatment the complainant could explore, the complainant’s appeal would be denied.

(…)

Where this approach becomes problematic is when claimants may have reasoned explanations for not engaging in a certain treatment, though their physicians are insistent on their own views of what they believe is best.

For instance, in one Quebec case, the tribunal dismissed a claimant’s appeal on the basis that he had not tried a certain form of experimental medication to treat the chronic pain associated with his CFS. However, this medication that had not yet been approved by Health Canada was akin to one he and several family members had previously had bad reactions to.

Though the tribunal noted that a claimant “is free to choose whether or not to take a drug,” it stated directly afterwards that adjudicators are also entitled to conclude that the claimant’s current treatment has not yet reached the point of exhaustion on that basis.

In this case, the tribunal is essentially forcing a patient to try an unproven treatment that is not approved by the health authorities for the condition, in order to get their benefits. A person without any medical training, is for all intents and purposes practicing medicine. Not only that, they are using force.

It is also clear from the later analysis that pwME/CFS apparently are not allowed to live in any way, because that means that they could technically do some paid work. It seems like the tribunals believe that the time you’re not working is worthless, so everyone should be willing to sacrifice all of their quality of life and functional capacity during the rest of the day for any amount of work.

Ontario did better (the benefits gets revisited over time there so it’s not for lifelong benefits):

A number of decisions acknowledge that even though claimants may have some ability for activity in certain areas of their lives, their condition would still make it too difficult to perform the tasks associated with conventional (and most commonly available) employment due to the unreliability of their disability, their education, or work experience.142

 

[rvallee]

This is the first time I’m hearing the name «just world», but it’s a familiar concept. It ties nicely into the BPS mind over matter-narrative where you just have to do things correctly to get better.

https://en.wikipedia.org/wiki/Just-world_fallacy:

The just-world fallacy, or just-world hypothesis, is the cognitive bias that assumes that "people get what they deserve" – that actions will necessarily have morally fair and fitting consequences for the actor.

It definitely plays a huge role in the overt discrimination against us, and in general in attitudes towards disability. It probably explains why medical research is so under-funded and disability support is so heavily restricted, people think of themselves as good and "hard-working" enough that they don't need either.

So many medical professionals who know of this illness genuinely cannot conceive that it could apply to them. They are good. They work hard. They make effort. They are dedicated. These things only happen to people who behave badly, or whatever.

 

[Sean]

If there is any idea whose validity history has completely shredded beyond all debate, it is the just world.