Discrimination on the Basis of Disability

I. General Principles Regarding the Definition of Disability for Human Rights Purposes

• Broad Interpretation of “Disability”

Consistent with the purposes of human rights legislation, courts, human rights tribunals and arbitrators will give a broad, liberal interpretation of “disability”, and have found a wide variety of physical and mental conditions to constitute disabilities.

An Ontario arbitration award demonstrates just how broad that definition may be. In that case, a lab research assistant became deeply affected by performing experiments on live rats and developed stress, anxiety, nausea, and insomnia. When the Union grieved the Employer’s failure to accommodate him, the parties sought a preliminary determination as to whether the grievor’s condition amounted to a disability. The arbitrator found that it did, despite the absence of a diagnosed illness and the likelihood that personal beliefs were a contributing factor, because it was the “medical conditions” of anxiety and stress that prevented the grievor from performing the job, finding the cause of the stress was irrelevant.

She distinguished between the current case and those where an employee simply disliked her job and/or working cinditions to the point that her health was affected, holding that the current case went beyond mere aversion to duties. University of Western Ontario Faculty Association v. University of Western Ontario (2008) OLAA #92 (QL)

Where a worker was continually sexually harassed by her supervisor, and developed depression as a result, the employer was required, IN ADDITION to the usual harassment remedies, to accommodate the grievor by transferring her to another facility.
Canada Post Corp v. CUPW (Racky) (2003) CLAD #624 (QL)

• General Criteria

The characterization of a specific condition as a disability will depend on the facts of each case. In general, the concept of disability for human rights purposes indicates a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: Nahal v. Globe Foundry ltd. (1993), 21 CHRR D/136(BCCHR); Ivision v. Bodner (1994), 26 CHRR D/505 (BCCHR); Wilson v. Douglas Care Manor Ltd. (1992), 21 CHRR D/74 (BCHHR); Ouimette v. Lily Cups Ltd. (1990), 12 CHRRD/19 (Ont. Bd. Inq.); Handfield v. North Thompson School District(1995), 25 CHRR D/452 (BCCHR)

• A worker need NOT prove an actual functional inability to perform a job as a precondition to invoking a disability-based discrimination claim. As stated in the Supreme Court of Canada’s Quebec (Commission des Droits de la Personne…) decision, the concept of “handicap” in Quebec human rights legislation includes perceived disability.

That reasoning has been adopted across Canada , such that it is recognized that the concept of “disability” for human rights purposes includes a subjective component based on attitudes or preconceptions of others, as well as the objective componanet of medical evidence. This principle has been expressed in a variety of ways:

 a. a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of these things: Quebec (Comm . des droits de la personne et des droits de la juenese) et Mercier c. Montréal (Ville) (2000) 37 CHRRD/271 (SCC)

 b. a socially constructed disability located in society, rather than the individual: Granowsky v. Canada (Minister of Employment and Immigration) (2000) 1 SCR 703

 c. an employers perception that an employee is disabled: Tanchak v. Locke Property Management Ltd. (1977) BCHR No. 27

 d. stress and irritability, which are caused by an employers failure to accommodate an employee’s physical disability: (Koeppel v. Department of National Defence, unreported decision of R. McInnes of the Canadian Human Rights Tribunal, dated April 19, 1997)

 e. absence from work due to disability: (see section on excessive absenteeism)

• Human rights legislation was never intended to include protection for “normal ailments” where the effects had no permanence or impairment, as per Evans v. Health Care Corperation of St. John’s (2003) Nfld and PEIR 1 Lab.Ct.Ap.

II. Physical Disabilities-Examples

1. Carpal tunnel syndrome (Lilydale Co-operative, June 6, 1995, Korbin 146);

2. Fibromyalgia (Kami Holdings, July 26, 1996, Jackson);

3. Restriction on lifting (Canada Safeway Ltd. v. United Food and Commercial Workers L.373A (1999) 77LAC (4th) 152);

4. Any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or on a wheelchair or other remedial appliance or device (Ouimette v. Lily Cups Ltd. (1990) 12 CHRR D/19 (Ont. Bd. Inq.));

5. Diabetes/insulin dependence (McKenzie v. Quinette Coal Limited (1986), 8 CHRR D/3762 (BCCHR));

6. Allegies and asthma (Morgach v. Ottawa (City) (No. 2) (1989), 11 CHRRD/80 (Ont. Bd. Inq.)

7. Acne (De Jong and Horlacher Holdings Ltd. Doing business as “Family Tree Restaurant” (1984) 10 CHRRD/6283 (BCHRC)); (Note: The BCHRT found that the fact that customers complained about the acne was irrelevant since customer preference cannot justify discrimination.)

8. Chronic thyroid condition (Morrison v. O’Leary Associates and Tom O’Leary (1990) 15 CHRR D/237 (N.S. Bd. of Inq.));

9. Chronic fatigue syndrome (Brimacombe v. Northland Road Services Ltd. (1998) 33 CHRR D/53 (BCHRT));

10. Sleep apnea (LL v. Treasury Board (2009) CPSLRB#113 (QL));

11. Migraine headaches (London Civic Employees, CUPE L.107 v. Corporation of Town of Ingersoll (2003) OLAA, No. 554 (QL));

12. Severe Headaches (Desormeaux v. Corporation of the City of Ottawa (2005) 54 CHR D/462 (Fed. Court of Appeal resolved the decision of the Canadian Human Rights Tribunal));

13. Amotropic Lateral Sclerosis (“ALS”) (MacRae v. International Forest Products Ltd. (No. 2) (2005) 54 CHRR D/223);

14. Soft tissue injuries (Marchand v. 3010497 Nova Scotia Ltd., unreported decision of Cusack of N.S. Bd. Inq., dated April 20, 2006);

15. Chronic back problems (Ingenthron v. Overwaitea Food Group (2006) 58 CHRRD/230, 2006 BCHRT 556);

16. Crohn’s disease (Lowe v. William L. Rutherford CHRR 07-465, (2007) BCHRT, Junker);

17. Skin condition which made it impossible for restaurant worker to tolerate frequent hand-washing (Datt v. McDonald’s Restaurants of Canada Ltd (No.3) CHRR Doc. 07-453, (2007) BCHRT, Parrack);

18. Chronic back pain due to degenerative disc disease (Cotteau v. R.Ellis Chevrolet Oldsmobile Ltd. CHRR Doc 07-472 NSB1);

19. Diabetic retinopathy (Halliday v. H.P. & A. Sales Ltd. (No 2) (2006) 57 CHRRD/316);

20. Hepatitis C (Thiessen v. Charko Investments Ltd dba LA Weight Loss (2006) 57 CHRRD/108, 206 BCHRT 313);

21. Obesity (Rogal v. Dalgleish (2000) 37 CHRRD/178 BCHRT; Hamlyn v. Cominco Ltd. (1989) 11 CHRRD/333 BCCHR; Dunlop v. Find (No.4) (2009) BCHRT 277);

22. Height (Fiset v. Gamble (1992) 18 CHRRD/81 (BCCHR));

23. Speech Impediment (O’Connor v. Town Taxi (1987) Ltd (2000) BCHRT9; Mathews v. Memorial University of Newfoundland (1991) 15 CHRRD/399 (Nfld. Brd. Inq.) aff’d (1994) W.J. #446 (Nfld. S.C.));

24. Colour blindness (Bicknell v. Air Canada (1984) 5 CHRRD/1992 (Cdn.H.Rts.Trib));

25. Temporal lobe epilepsy (Audet v. Canadian National Railway Co. (May 16, 2006) CHRR Doc 06-296, 2006 CHRT 25);

26. Tendonitis in arm and shoulders (United Food and Commercial Workers, L. 1400 v. Westfair Food Ltd. (2007) S.J. #95 (QL) (Saskatchewan Court of Appeal));

27. Back condition and hemorrhoids (Innes v. Re-Con Building Products (2006) 56 CHRRD/313, 2006 BCHRT 99);

28. Guillain-Barré syndrome (Hall v. BC Ministry of the Environment (No.1) (2008) CHRR Doc. 08-005, (2008) BCHRT 514).

III. Episodic Disabilities-Examples (also called intermittent, invisible, chronic, or degenerative disabilities)

1. Cancer

2. Lupus

3. HIV and AIDS (Thwaites v. Canada Armed Forces (1993) 19 CHRRD/259, aff’d 21 CHRRD/224 (F.C.T.D))

4. On-going anxio-depressive state which episodically intensifies physical symptoms (CUPE L.503 v. The City of Ottawa (2005) OLLA #503 (QL))

(After considering extensive medical evidence, the board found that the greivor suffered from a disability in the form of an ongoing anxio-depressive state that intensified physical symptoms when the grievor experienced periods of stress; the intersection of situational stress and her anxio-depressive state had the probable effect of augmenting or intensifying numerous physical conditions…)

IV. Addictions (often considered both a physical and mental disability)-Examples

1. Drug dependence (on the basis that addictions are a primary, chronic, neurological disease, and that a person with a chemical dependency is never really “cured”, although he can be in a long-lasting remission). Das v. University of Saskatchewan, March 25/09 decision of Pindala of SHRT, CHRR Doc 09-0566;

2. Alcoholism (City of Hamilton v. CUPE L. 5167, unreported decision of arbitrator Sturdykowski dated June 11, 2010));

3. Nicotine addiction and withdrawal from nicotine addiction (United Steelworkers of America, L.9705 and 480 v. Cominco Ltd., unreported award of BC arbitor Dalton Larson, dated February 29, 2000);

4. Gambling (Manitoba Government and General Employees Union v. Government of Manitoba, unreported award of arbitrator W. Hamilton, dated May 30, 2005);

5. Addiction to viewing Internet pornography, due to underlying psychotic and obsessive/compulsive disorders related to a condition of paranoid schizophrenia (CUPE L.10 v. City of London, unreported award of W. Marcotte, dated October 5, 2001).

V. Mental Disabilities-Examples

1. Bipolar disorder: (Oak Bay Marina, infra; Shuswap Lake General Hospital and BCNU (Lockie Grievance), infra);

2. Severe depressive disorders: (Berg v. University of British Columbia, (1997) BCCHRD No. 21 (QL); Rafuse v. BC (Ministry of Tourism and Ministry Responsible for Culture) (2000) BCHRT No. 42, see esp. paras 102-04; Willems-Wilson v. Allbright Drycleaners Ltd., (1997) BCHRT D/26 (QL));

3. Post-traumatic stress disorder: (Gardiner v. Ministry of the Attorney-General, April 1, 2003 decision of A. Mohammed of the BCHRT);

4. Post-traumatic mood and panic disorders:(Mager v. Louisiana – Pacific Canada Ltd., (1998) BCHRT D/36 (QL); Toronto Transit Commisssion and Amalgamated Transit Union, L. 113 (Johnson Grievance), (2001) OLAA No. 22 (QL) (Springdate); Pirelli Cables Inc. and United Steelworkers of America, L.2952 (Church Grievance), (1999) BCCAAA No. 473 (QL) (Mcphillips));

5. Panic anxiety disorder: (Sansome v. Dodd (dba “Portside Paul’s Fish and Chips”) (1991), 15 CHRR D/393, (1991) BCCHR D/17 (QL); Silzer v. Chaparral Industries (86) Inc. (1994), (1994), 20 CHRR D/155 (BCCHR); Cameron v. Fletcher Challenge Canada Ltd. (1995), 24 CHRR D/506 (BCCHR));

6. Paranoid schizophrenia with obsessive-compulsive symptoms: (City of London v. Cupe L.101, (2001) OLAA No. 685 9 (QL) (Marcotte));

7. Kleptomania (recurrent failure to resist the impulse to steal objects not needed for personal use or for monetary value): (Canadian National Railway Co. and CAW- Canada (1994), 43 LAC (4th) 129 (Picher));

8. Dyslexia (a reading disability in which the ability to comprehend written symbols and words is impaired):(Gill v. Canada (Public Service Commission) (1996), 25 CHRR D/439 (F.C.T.D.) Arnold v. Canada (Human Rights Commission) (1997) 1 F.C. 582 (T.D.); Green v. Canada (Public Service Commission) (1998) CHRD No. 5 (QL); aff`d, (2000) F.C.J. 778 (QL) (T.D.));

9. Auditory Linguistic processing and retention (memory) problems: (British Columbia Public School Employer`s Assn. and BCTF (Coutts Grienence) (1998) 78 L.A.C. (4th) 289 (Jackson));

10. “Mental deficiency” based NOT on expert evidence, but on the complainant’s academic records, own testimoy, and the panels’ observations of him during the hearing: (Gillingham v. Westminster Guard and Patrol Ltd. (1990) BCCHR D/23 (4th); World’s Bigger Book Store and Retail, Wholesale Canada, Division of USWA, L.414 (1999) 83 L.A.C. (4th) 1 (Brunner));

11. Epilepsy and seizures due to frontal lobe brain injury: (Emerick v. 835372 Alberta Ltd. dba Sooke Esso, and Gloria Watke (2007) 59 CHRDD/400);

12. Autism:(Wonnacott v. Prince Edward Island (Dept. of Social Services and Seniors) (2007) CHRR Doc. 07-386);

13. Cognitive Problems, principally short-term memory lapses, combined with multiple physical disabilities: (Wutke v. Mageria Holdings Ltd. (2006) 57 CHRRD/56

14. Stress-related disorders (Re Sault Area Hospitals (2001), 94 LAC (4th) 230(Whitaker); Ram v. McDonald’s Restaurants of Canada ltd. (1991), 16 CHRRD/70 (BCCHR); see also BG Gas Utility Ltd. OPEIU L.378, (2002) BCCAAA No.20 (Blasina)) for an interesting discussion of the distinction between stress as a basis for sick leave and receipt of “disability benefits” under a collective agreement and stress as a manifestation of a “disability” under the the BC Human Rights Code;

15. Fear of flying: (NAV Canada v. IBEW (2001) CLAD #497 (Chertkow));

16. Gender identity disorder: (Kavanaugh v. Canada Attorney-General (2001) CHRD #21));

17. Asperger’s Syndrome: (BM v. The Croporation of the city of Cambridge (2010) 70 CHRRD/383, 2010 HRTO 1104).

VI. Examples of Temporary Conditions That Have Been Found to be Disabilities:

1. Heart attack (although episodic, the protection is based upon the employer’s perception that the heart attack will be an ongoing source of impairment) (Ouimette v. Lily Cups ltd. (1990) 12 CHRR D/19 (Ont. Bd. Inq.));

2. Hysterectomy: (Wilson v. Douglas Care Manor Ltd., supra);

3. Knee injury: (Boyce v. New Westminster (City) (1994), 24 CHRR D/441 (BCCHR));

4. Sprained thumb and wrist: (Gariano v. Fluor Constructors Canada Ltd., unreported decision of Coley-Urquhart of the Alta. H.R.T., dated May 30, 2006);

5. Osteoarthritis requiring hip surgery: (CAW Canada v. Via Rail Canada unreported award of arbitrator M. Picher dated April 22, 2005);

6. Broken foot: (Clarke v. Country Garden Florists (1996) NHRBID #3(QL));

7. Appendicitis: (Masters v. Willow Butte Cattle Co. Led. (2002) 42 CHRRD/321);

8. Intermittent lower back pain: (Amalgamated Transit Union, L. 1572 v. Mississauga (City) (2005) O.L.A.A. #2861 (QL));
But note that the opposite was held in Newfoundland and Labrador (Minister of Justice v. Critch (2007) N.J. #37 (QL));

9. Viral pneumonia (Schmidt v. City Furniture and another (2010) BCHRT 321)

VII. Examples of Conditions That Have Not Been Accepted as a Disability:

1. An example of a “condition” that was NOT accepted as a disability occurred when a City of Brampton employee, who had vocally opposed a City requirement for employees in his job to drive “Smart Cars”, claimed that he had a disability that would prevent him from driving the car.

When he experienced a panic attack at the thought of driving the car, he was offered a process of “acclimitization”, which he refused, saying he was not interested in getting over his apprehension.

The grievor’s doctor said the grievor had a permanent medical condition, an anxiety to driving a Smart Car, and his psychologist characterized his anxiety as “normal”.

In these circumstances, the arbitatrator found the city’s request for an Independent Medical Exam reasonable and granted it, having found that the evidentiary foundation for the existence of a disability was lacking. CUPE L.831 v. City of Brampton (2008) QLAA #359 (QL).

2. Another such example occurred when an ambulance paramedic asked to be provided with a full hood respirator, rather than a mere protective mask, in order to accommodate his skin condition, which caused him to wear a full beard, rather than irritate his skin by shaving. A specialists’s conclusion that the paramedic had a minor skin condition due to “razor rash” caused the BCHRT to find that he did NOT have a disability. (Wheatley v. Emergency Health Services Comm. (No.3) March 16,2009 decision of Tyshynski, of BCHRT, CHRR Doc. 09-0397, (2009) BCHRT 106)

NOTE: One of the most important points to keep in mind is that the existence of a disability and the particular accommodation sought, will have to be proven by medical evidence.

©Conni Kilfoil, Equality Representative, Canadian Union of Public Employees