What is a Disability: Guidance for the Workplace

disabilityAs an employer, you’re committed to creating a workplace free from discrimination. You understand the scope and purpose of Canadian human rights laws, and you have policies and processes in place to enable tolerant and respectful employment relationships.

But for even the most diligent business owners, there can still be questions about how human rights laws apply in practice.

The Ontario case of Mou v. MHPM

A recent decision out of Ontario (which received significant media attention) addressed one of these questions when it considered the meaning of “disability” under the Ontario Human Rights Code.

Like the British Columbia Human Rights Code, Ontario’s human rights legislation prohibits discrimination in employment based on a person’s disability. In Mou v. MHPM Project Leaders, the Ontario Human Rights Tribunal was asked to decide whether “disability” includes a miscarriage. The employee in that case argued that her employer fired her, in part, due to her absence from work after suffering a miscarriage.

The Tribunal’s task in Mou was to decide whether the employee’s claim could proceed to a full hearing of whether workplace discrimination had in fact occurred. To do so, it had to determine whether her miscarriage was a disability, based on the language of the Ontario Code itself (which is more extensive than our BC equivalent) and previous court and Tribunal decisions.

Ultimately, the Tribunal concluded that a miscarriage was a disability under the Ontario Code and offered the following guidance for understanding what constitutes a disability under human rights laws:

  • When deciding what constitutes a disability, it is necessary to consider the broader context.
  • Although the definition of disability should be broadly interpreted, it should not be so broadly interpreted that it is rendered meaningless.
  • Common illnesses which are temporary or transitory (such as the flu or gastroenteritis) are not disabilities.
  • Based on the wording in section 10(3) of the Ontario Code, a condition need not be permanent or persist in order to constitute a disability.

In characterizing a miscarriage as a disability, the Tribunal stated:

It…is not a common ailment, and it is certainly not transitory. It is clear from the [employee’s] testimony that she continues to experience significant emotional distress from the miscarriage even today.

bcWhat Would BC Do?

The Mou decision has generally been lauded as a positive legal development in the area of Canadian human rights. What is not clear is whether the BC Human Rights Tribunal would necessarily come to the same conclusion as its Ontario counterpart.

While both provinces identify disability as a “protected ground” under their respective human rights codes, where Ontario differs is by providing additional legislative guidance on the meaning of the term disability. By contrast, the BC Code does not define “disability”, leaving it to adjudicators to give the term its meaning. And a recent BC human rights ruling suggests that our Human Rights Tribunal may not take the same view of miscarriage as that found in the Mou decision.

In Li v. Aluma Systems Inc. et al, the BC Tribunal considered the test for a physical disability and confirmed that, to constitute a disability under BC human rights laws, a condition should entail a certain measure of “severity, permanence and/or persistence”, and “impair a person’s ability to carry out the normal functions of life”. In Mr. Li’s case, the Tribunal concluded that his hand injury was “transitory and not permanent in nature” and

…lacked the severity, or permanence or persistence which would qualify it as a physical disability within the meaning of the Code.

In other words, BC and Ontario do not appear to see eye to eye when it comes to the duration of a “disability”. The Ontario Tribunal has interpreted the Ontario Code to mean that a condition need not be permanent or persist to be a disability, whereas the BC Tribunal has explicitly stated that permanence and persistence are key indicators of whether a disability exists.

Implications for BC Employers

So, how will the Mou decision affect BC employers if a similar claim is made under the BC Code? While we can’t predict the future, we can offer a few educated guesses about how the BC Tribunal might treat such a claim:

  1. They will consider the specific circumstances of the employee’s miscarriage to determine whether the “severity, permanence and/or persistence” test is met. If other jurisdictions follow Ontario’s lead in Mou, BC may be more inclined to do so as well, relying on its commitment to a “case-by-case analysis” of disability claims.
  2. BC may sidestep the disability question altogether, and rule that a miscarriage is protected under the ground of sex, an argument alluded to by the Ontario Tribunal in Mou.

Regardless, we encourage all BC employers to stay aware of their human rights obligations, and to respond mindfully and cautiously to any disability-related issues in the workplace. When in doubt, consult your employment lawyer!

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