The review below presumes an otherwise valid and enforceable term of employment. The issue of whether an employer policy document forms a contract term is reviewed in detail here.

The Supreme Court of Canada in its 1989 decision ¹ reviewed the terms of the company’s short term disability plan as it impacted pregnant employees. The plan excluded the entitlement of pregnant women to medical benefits as well as pregnant women suffering from non-pregnancy related medical issues.

The issue, as to whether the plan discriminated against pregnant women, was readily resolved in the womens’ favour. The policy term was determined to be unenforceable.

The Ontario Divisional Court ² in 1998 considered a similar issue on appeal from a Board of Inquiry, ³ in which the employer denied a sick leave request, asserting that the applicant was considered to be on maternity leave and that it did not provide sick leave benefits to anyone on an unpaid leave. The Court agreed that the denial of access to sick leave benefits was adverse treatment due to pregnancy.

The Supreme Court of Canada, ⁴ in an October 1996 decision considered again a policy term which was alleged to be a violation of the Saskatchewan Human Rights Code.

The questioned policy allowed for benefits to a maximum of two years, which, in the case of a mental disability, mandated that the insured be treated as a resident in a mental health institution. A physical impairment had no such comparable restriction. The term was held unenforceable.

The Court noted that human rights legislation is “of a special nature, not quite constitutional but certainly more than ordinary” referring to the prior decision of the Supreme Court. ⁵

Sopinka J. observed that human rights legislation is the “final refuge of the vulnerable” and hence must be interpreted liberally. The Court agreed with the analysis that the correct analysis the benefits received by the mentally disabled with those received by the physically disabled. The clause was struck.

The Saskatchewan Court of Appeal considered in its 2004 decision ⁶ the argument that certain terms of the government’s Disability Insurance Plan violated the Human Rights Code.

The issue was the denial of benefits due to chronic alcoholism, and requiring that the insured be under “active treatment for rehabilitation under the supervision of a physician and with the approval of his participating employer”. It was only alcoholics who were so mandated. The clause was struck.

The Divisional Court in Ontario ⁷ considered a provision in the collective agreement which provided for a re-qualification period for short term disability benefits which distinguished between workers with disabilities who were able to work part-time but not regular work weeks.

The arbitrator, as upheld by Divisional Court, found this provision was discriminatory as it created a distinction between two classes of disabled employees and hence treated disabled employees who were not capable of working at all but return to work full-time and those who were able to work part-time and might never have been able to satisfy the requalification provision.

The Ontario Court of Appeal ⁸ in its 1999 decision reversed the Divisional Court and found that the provisions of the collective agreement which denied the right of employees to accumulate seniority credits while on disability violated the Human Rights Code.

To the same effect is the 2013 decision of the Human Rights Tribunal of Ontario ⁹ The employer had delayed the applicant’s participation in the RRSP and benefit program following her return to work due to a disability. The Tribunal ordered compensation for the lost benefits, and payment of the sum of $15,000 for injured feelings.