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.

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.

Some statutes add to the definition addiction to drugs or alcohol, or a past such addiction. 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, the Ontario appellate court stated, was whether the employer believed that the medical status of the employee may have impeded its business purpose which motivated it to take action. It is this perception and subsequent response to it that brings into play the Code's protection, provided that there is shown a fundamental impairment which limits the applicant's ability to do that which others can normally do:

 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.

It may not be necessary 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: ...

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

Employer Aware

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

This being said, if it is shown that 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

Examples of Findings of Disability

The B.C. Human Rights Tribunal found adverse treatment due to a height requirement imposed on an applicant for a sales clerk position. She was 4’9” and was successful in her complaint. ⁹ Similarly adverse treatment due to AIDS and HIV positive showed liability, ¹⁰ as was the case for the issue of depression, ¹¹ a speech impediment, ¹² colour blindness ¹³ a hysterectomy, ¹⁴ hypertension, ¹⁵ heart issues, ¹⁶ and cancer. ¹⁷

Under the Ontario Code, a person suffering from temporary injuries for which benefits were claimed or received under the Workplace Safety and Insurance Act has been determined to meet the statutory test. ¹⁸

Onus

The onus on proving discrimination on a balance of probabilities remains on the claimant throughout the process.¹⁹If 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 ²⁰.

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.

Other Statutes Interpreting Disability

The determination of a human rights breach is not one which is exclusively limited to the human rights tribunal. ^{21 22}Such a statue is fundamental law and may be interpreted by other administrative bodies.²³There 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. ²⁴This is no longer the case. This cannot be done ²⁵.

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.