Is having the flu a “disability” under the Ontario Human Rights Code? According to a decision from the Human Rights Tribunal of Ontario, the body responsible for enforcing Ontario’s Human Rights Code, the answer is no.
In the case of Burgess v. College of Massage Therapists of Ontario , 2013 HRTO 1960 (CanLII), HRTO Vice-Chair Eric Whist ruled that an individual who had her temporary employment contract terminated after she failed to attend a mandatory training program because she came down with the flu was not discriminated against on the basis of having a “disability.”
Facts
At the hearing the applicant, who was self-represented, testified that the only reason that she was unable to attend the respondent employer’s mandatory training was that she had come down with strep throat, for which she was prescribed penicillin by her doctor. According to the decision, the applicant testified that she was out of commission for about five days.
Decision of the Human Rights Tribunal of Ontario
In resolving that the applicant was not discriminated against by the College, Vice-Chair Whist was required to look at the definition of “disability” contained within the Ontario Human Rights Code.
”Disability” is defined within section 10 of the Code:
“disability” means… any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
Although Vice-Chair Whist affirmed the principle that human rights’ legislation is to be interpreted broadly, he further noted, citing the 1990 decision of Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19, that “to consider commonplace, temporary illnesses as disabilities would have the effect of trivializing the Code’s protections.”
With respect to the applicant’s specific case, Vice-Chair Whist added, “short term common ailments that can and are routinely experienced by just about everyone... do not constitute a disability under the Code.”
Takeaways for Employees
The takeaway for employees from this case is that not all ailments will be regarded by the Human Rights Tribunal as a “disability.” Employers can legally discriminate against employees, it would appear, because they were sick on a given day.
Before taking any decisions on whether an employer’s actions constitute legal discrimination that what merit commencing a human rights’ case or a lawsuit it may make sense to seek professional legal advice. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you. To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
Takeaways for Employers
The takeaway for employers is that not everything that happens to an employee constitutes a “disability” that attracts the protections of Ontario’s Human Rights Code. From time-to-time, things will come up that simply do not warrant accommodation under that law.
However, figuring out which situations do call for accommodation and which do not can be difficult. Getting it wrong can be very expensive. Accordingly, before taking any decisions with respect to accommodating or not accommodating an employee’s illness or disability, employers would be wise to seek professional legal advice on the issue. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization. To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
I'm curious - the definition of a disability you quoted above would seem to eliminate any non-physical disorder, such as a mental health diagnosis. Does the Human Rights tribunal recognize any non-physical disabilities?
ReplyDeleteIt certainly does. The definition included in the post was only part of the definition of disability contained within the Code. The full definition is as follows:
Delete“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;