Administrative statutory remedy

For a fulsome review of the human rights process, duty to accommodate and remedies, please refer to the Employment Law Human Rights site.

Defining a Disability

Most Canadian jurisdictions define a physical or mental disability by the relevant human rights statute. British Columbia is unique in allowing case law to define these terms. Generally, the legislated definitions are similar, with however, certain exceptions.

Ontario, for example, includes in its definition, a person who has received Workers Compensation benefits. The Canadian Human Rights Act includes disfigurement, as does the Nunavut statute, in its definition.

Some statutes add to the definition addiction to drugs or alcohol, or a past such addiction. The Ontario Code adds specifically to its definition that the statute applies not only to an existing disability, but also a past disability and to perceived disability, past or present.

The case law has determined such an expanded definition is not required, as the statute will be interpreted in such a manner to include such related issues.

The concept of drug and alcohol addiction as a disability is well-founded in law, regardless of a statutory definition, as is the application of the human rights protections to perceived, past or present disabilities, as is noted below. It is clear that an addiction to drugs or alcohol will be considered a disability. ¹

The Supreme Court of Canada ² considered the meaning of the word “handicap” in the Quebec Charter of Human Rights and Freedoms, a term which was undefined in the Charter itself.

The definition has been interpreted very liberally, to include “any degree of physical disability” and the actual or perceived possibility that a person may be disabled or may in the future have a defined disability. ³

Even if the medical issue is temporary in nature, it may still be within the definition. ⁴

The important issue is whether the employer believes that the medical status of the employee may impede its business purpose which motivated it to take action:

 There must be some inability to do something others can normally do and substantial ongoing limits on one’s activities: Bielecky v. Young, MacNamara (1992), 1992 CanLII 14291 (ON HRT), 20 C.H.R.R. D/215.  It is not the precise nature of the disability or the duration of work absence which defines whether a disability is covered under the Code.  A work injury may not be severe or long-term; yet the employer may think that it will interfere with business operations and profitability and, on that basis, dismiss the employee.  It is this perception and consequent treatment which defines the injury as a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.

A critical question remains whether the employer’s decision to take adverse action was “influenced” by the disability.

It must be established that the employer knew or ought to have known that the applicant suffered from a disability. ⁵ The employee has an obligation to bring to the attention of the employer relevant facts relating to his disability. ⁶ However, if the employer has reasonable suspicions, it has an obligation to make further inquiries before it acts. ⁷

This is not the case for adverse effect discrimination, For example, an employer policy which mandates termination due to a condition of alcoholism, the employer need not know of the employee’s disability. Such is the case with any apparent neutral policy which applies to all employees, yet adversely impacts certain persons. ⁸

There is no need to show a functional impairment caused by the medical issue. A disability may nonetheless be found. This issue was addressed by the Supreme Court in the Montreal decision:

48               Whatever the wording of the definitions used in human rights legislation, Canadian courts tend to consider not only the objective basis for certain exclusionary practices (i.e. the actual existence of functional limitations), but also the subjective and erroneous perceptions regarding the existence of such limitations. Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: Labelle v. Air Canada (1983), 1982 CanLII 4862 (CHRT), 4 C.H.R.R. D/1311 (Can. Trib.); De Jong v. Horlacher Holdings Ltd. (1989), 1989 CanLII 9045 (BC HRT), 10 C.H.R.R. D/6283 (B.C.H.R.C.); Matlock v. Canora Holdings Ltd. (1983), 1983 CanLII 4686 (BC HRT), 4 C.H.R.R. D/1576 (B.C. Bd. Inq.); St. Thomas v. Canada (Armed Forces) (1991), 1991 CanLII 765 (CHRT), 14 C.H.R.R. D/301 (Can. Trib.); Davison v. St. Paul Lutheran Home of Melville, Saskatchewan (1992), 1991 CanLII 7915 (SK HRT), 15 C.H.R.R. D/81 (Sask. H.R.C.); Thwaites v. Canada (Armed Forces) (1993), 1993 CanLII 342 (CHRT), 19 C.H.R.R. D/259 (Can. Trib.).

The onus on proving discrimination on a balance of probabilities remains on the claimant throughout the process.⁹If a claimant proves discrimination on a balance of probabilities, and the responding party fails to provide a statutory defence, such as accommodation to the point of undue hardship justification, or an exemption, then a violation of the human rights statute has been proven.

The accepted standard of proving a prima facie case of discrimination applies this test:

1. That she had a disability or was perceived to have a disability;
2. That the disability affected or was perceived to affect her ability to perform her work;
3. That she was treated in an adverse way; and
4. That it is reasonable to infer from the evidence that her disability or perceived disability was a factor in that adverse treatment ¹⁰.

The Tribunal also noted that:

anytime an employer terminates an employee’s employment due to an absenteeism related to disability, a prima facie case of discrimination on the basis of disability will be established.

The question has arisen as to whether a finding made by the workers’ compensation tribunal as to the physical ability of a worker to return to work still nonetheless allows the worker the right to present a complaint of discrimination due to physical or mental disability under the relevant human rights statute. That is, but one example, of a human rights issue which may be argued due to a workers’ compensation application.

The determination of a human rights breach is not one which is exclusively limited to the human rights tribunal. ^{11 12}Such a statue is fundamental law and may be interpreted by other administrative bodies.¹³There must be words in the statute which allow for the converse interpretation.

The issue of concurrent jurisdictions dealing with the same issue is now settled law.  The proposition that one tribunal, such as the human rights regime, might consider a similar, if not the same issue, which was before the workers’ compensation tribunal was at one time debated. ¹⁴This is no longer the case. This cannot be done ¹⁵.

There do remain Charter or human rights challenges which may be made in the chosen forum, typically that of the workers’ compensation application where such board has jurisdiction. This is distinct from a direct constitutional issue which may sought by direct declaratory action.

There is a fundamental difference between the issue to be decided by the workers’ compensation regime and that of the human rights. The former rules only on work related accidents. The latter deals with all disability issues no matter the origin.

For that reason, an employee who has presented a workers’ compensation claim and has failed to show a proper context for such recovery ¹⁶due to a lack of jurisdiction will nonetheless be entitled to proper accommodation under the human rights process.  This should not be startling proposition but many employers examine their obligations through a one dimensional lens.

There are other distinctions of a similar calibre between the two processes.

The human rights statute and the workers’ compensation process may each apply concurrently to such an issue as a return to work following a workplace injury. The choice of jurisdiction must be determined. If the issue lies within the jurisdiction of the workers’ compensation, the human rights issue or Charter issue must be raised in the context of the workers’ compensation application.

The workers’ compensation process is fundamentally different from that of the human rights issue, apart from the starting point of a workplace injury.

Ontario’s workers’ compensation legislation is typical of the statutes across Canada which require a specific number of employees and a set time period of employment, such as 20 employees and one year to allow for re-employment obligation. The obligation to re-employ, when applicable, is not applicable once two years have passed from the work-related injury.

There is no actual reinstatement remedy under this process where the employer has failed in this obligation. There is financial compensation mandated but this is a far different form of relief when contrasted to the dramatic lost income and reinstatement remedies under the human rights process.

Certain workers’ compensation statutes offer a test of the employer’s obligation to re-employ which is not based on the test of “undue hardship” but rather “suitable employment”.

New Brunswick, Yukon, N.W.T., Quebec all use this standard of “suitable employment”.

P.E.I., Nova Scotia, Manitoba and Ontario use the test of “undue hardship” as required by human rights law. P.E.I.’s statute requires the worker be given the “first available suitable work” which implies that the accommodation is not immediate.

It is very much in debate as to whether these provisions show compliance with Charter values and human rights statutes. Ironically, a worker’s position may be well improved by his assertion that his disability was not work related, particularly where there exists disability insurance to provide immediate financial solace.

Again, the propriety of these issues may be raised in only one forum. If there is no jurisdictional eligibility for workers’ compensation benefits and the employer has failed to offer proper accommodation, the human rights process should be pursued.

1. Halliday v Toen
2. in its May 2000 decision in Quebec v Montreal
3. As was noted in Vitrecik, This decision was confirmed on review by the Divisional Court in October of 2012
4. Hill v Spectrum OHRT at par 25 ; and as stated by the Ontario Court of Appeal in its 2000 of Entrop v Imperial Oil, then interpreting the word “handicap” as opposed to the present vocabulary of “disability”:
5. Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14, para. 34-35. The case arose from a duty to accommodate but it applies also to direct adverse action. Mager v. Louisiana – Pacific Canada Ltd., [1998] B.C.H.R.T.D. No. 36 Q.L. at para 47
6. Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.). 
7. Willems-Wilson v. Allbright Drycleaners, [1997] B.C.H.R.T.D. No. 26 (Q.L.); Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37; and Sylvester v. B.C. Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14; Gardiner v. Ministry of Attorney General, 2003 BCHRT 41
8. Alberta Court of Appeal Telecommunication Workers Union v Telus 2014 ABCA 154 
9. As confirmed by the Ontario Court of Appeal in Ontario v Tranchemontagne, a decision of September 2009. 
10. in Senyk v WFG Agency in 2008;and as considered in the 2008 B.C. Court of Appeal decision of B.C. v B.C. Government and Services Employees Union
11. Tranchemontagne v Ontario SCC The issue arose as to whether the Ontario Disability Support Act was in violation of the Human Rights Code due to its refusal to award disability sums to those persons suffering from drug dependency; British Columbia v Figliola SCC as to the issue of the WC Board to interpret the human rights statute.
12. B.C. amended its statute by denying the right of WCAT to apply human rights legislation. The Administrative Tribunals Act s. 245.1 (r)
13. The Ontario Code specifically provides for same result.
14. Seberras v Workplace Safety and Insurance Board; Snow v Honda 
15. B.C. (WCB) v Figliola SCC 
16. Such as in the instant case, a pre-existing physical disability which was not covered by the workers’ compensation scheme, Paris v Bramic Creative (Aterman)