Disability Discrimination Ultimate Guide
This is the ultimate guide to disability discrimination and a complete guide regarding suing for disability discrimination. In this Disability Discrimination Definite Guide, we'll talk about Ontario cases, Supreme Court cases, Human Rights Tribunal decisions, and decisions from other administrative tribunals regarding disability discrimination, protections available against disability harassment, and legal defence against disability claims. Continue reading to learn more.
Topics Will be Covered in the Disability Discrimination Definite Guide:
1. What is Disability Discrimination?
“Disability” is defined at section 10(1) of the Ontario Human Right Code (the Code) and includes physical and mental conditions as well as workplace injuries. The test for discrimination on the ground of disability requires an applicant to demonstrate (1) they are a person with a disability as defined by the Code, (2) they were subjected to differential or adverse treatment in employment; and (3) their disability was at least one factor in their treatment.
Section 17 of the Code is an interpretive provision which effectively creates a duty to accommodate on an employer to the point of undue hardship for a disabled employee who can still perform the essential duties of their job. Section 17 (2) specifies the factors relevant to undue hardship, being cost, outside sources of funding, if any, and health and safety requirements, if any. Business inconvenience is NOT a factor in the analysis.
While physical disability is often easier to comprehend, mental disability is more complex and may sometimes be invisible to the average onlookers. Section 10(1) of the Code provides a broad definition of disability, which covers mental health disabilities under subsection (b) a “condition of mental impairment” and (d) “mental disorder.”
Please click here to learn more about about the Ontario Human Rights Commission's Policy on preventing discrimination based on mental health disabilities and addictions.
Apart from physical and mental disabilities, addiction and severe substance abuse, such as alcoholism and drug abuses, is classified as a form of substance dependence, which has been recognized as a form of disability.
For instance, in Entrop v. Imperial Oil Limited, the Court of Appeal has held in para. 89 that substance abuse such as drug abuse and alcohol abuse is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning", and that "Drug dependence and alcohol dependence ... are severe forms of substance abuse", and as such "substance abusers are handicapped and entitled to the protection of the Code".
According to the Ontario Human Rights Commission's Drug or alcohol dependency and abuse as a disability:
1. The use of legal or illicit drugs or alcohol may fall within the protection of the Human Rights Code, where an individual's use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e.g. maladaptive patterns of substance use leading to significant impairment or distress, including:
(a) continued substance abuse resulting in a failure to perform essential duties at work;
(b) continued substance abuse in situations which are physically hazardous;
(c) continued substance abuse despite persistent social, legal or interpersonal problems caused or aggravated by the effects of the substance.
2. The Human Rights Code also protects individuals who has had a drug or alcohol dependency in the past, or is perceived as having an addiction or dependency due to drug or alcohol use, and be discriminated against accordingly.
Three most common types of disability discrimination:
Type 1: An employee was injured or suffered from a serious illness and was unable to return to work temporarily, claiming WSIB, STD, LTD; however, when the employee files a request to return to work after the treating physician deemed him or her fit to return to work, the employer denies the request and terminates the employee.
Type 2: An employee has been injured or suffers from an illness, resulting in an impairment that restricts his or her ability to be fully functioning at his or her job capacity, and when he or she requests accommodations, the employer fails to discharge the duty to accommodate and dismisses the employee.
Type 3: An employer refuses to promote or let go an employee based on the perception that the employee is addicted to drugs or alcohol, or that the employee has a history of addiction, without discharging the duty to investigate to determine whether that is true or whether the employee has overcome such dependency.
2. The Legal Test and the Consequence of a Finding of Disability Discrimination
Section 5 of the Human Right Code states that an employer cannot discriminate a person based on disability.
The Applicant must establish they have a characteristic protected from discrimination under the Code;
The Applicant must establish an adverse impact; and
The Applicant must establish the protected characteristic was a factor in the adverse impact.
(Misetich, at para. 43)
Once these factors are established, prima facie discrimination exists and the evidentiary burden shifts to the respondent employer to demonstrate that the employee cannot be accommodated to the point of undue hardship. The accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to their disabilities and then working with the employer to identify possible solutions to accommodate the personal circumstances of the disabled workers.
To learn more about the medical documentation required in Disability Cases, please read the following related blog post:
(b) All costs (Special or Pecuniary Damage) incurred as a result of the discrimination;
(c) An amount to cover “injury to dignity, feelings and self-respect”, often referred to as general damages. Depending on the manners of discrimination, this amount can range from a few hundred dollars to many thousands of dollars.
(d) Public interest remedies such as training of management and employees, posting of information regarding human rights, amendments to policies and procedures, etc.;
(e) Any other remedy required to ensure that an employer complies with the Code.
3. Disability Related STD and LTD, WSIB Claims
a. Short-Term Disability and Long-Term Disability Claims
- Employee statements are submitted by the claimant employee. Employee statements must be brief and precise in describing how the claimant's impairment prevents them from performing essential tasks, and a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job.
- Employer statements are submitted by the employers. Employers must submit a full description of the claimant's responsibilities, as well as information regarding the employer's ability to make reasonable accommodations to enable the disabled employee to continue working.
- Claims evaluators frequently look treating physicians' statements. Treating doctors are required to state the claimant's symptoms, diagnosis, suggested therapy, the claimant's involvement in treatment, and an evaluation of why the claimant is unable to work. Copies of evaluations and appointment records must also be included in the statement.
Please read this blog post if you want to learn more about the Medical Documentation in Disability Cases:
Please read this blog post if you want to learn more about the myth of the "2-Year" Rule in Disability Cases:
b. Disability Related WSIB Claims
i. WSIB Chronic Mental Stress and Traumatic Mental Stress Defined
Under Section 13 of the Workplace Safety and Insurance Act (WSIA), a worker is entitled to claim benefits for chronic mental stress and traumatic mental stress arising out of and in the course of the worker’s employment.
Pursuant to section 22 of the WISA, in order to receive WSIB benefits, you must file a claim as soon as possible, and no later than six months from the date of your accident. If you have an occupational disease, the six months runs from the date you discover the disease and that it is work-related.
Despite that, after a Section 31 application is heard by the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the deadline for submitting a WSIB claim is extended for six months after the Tribunal’s determination under section 31(1), pursuant to Section 31(4) of the WSIA, and in accordance to WSIAT Practice Direction: Right to Sue Applications.
Both the chronic mental stress policy and the traumatic mental stress policy contains two key criteria that an injured worker must meet before being compensated:
The injured worker needs to provide a DSM-5 diagnosis from a regulated health-care professional who is authorized to make such a diagnosis (this includes family physicians, nurse practitioners, psychologists and psychiatrists).
ii. WSIB Chronic Mental Stress Policy Explained
In addition to the two key criteria stated above, the chronic mental stress policy requires that an injured worker to prove that 1) a substantial work-related stressors exists, that 2) the event(s) or accident(s) occurred during the course of employment and that 3) causation must be proven.
Under the Workplace Safety and Insurance Act (WSIA), a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment. A worker is NOT entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.
According to WSIB disability related policy, a work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress.
Workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as workplace harassment, or conduct that a reasonable person would perceive as egregious or abusive.
Workplace harassment is generally considered to be a substantial work-related stressor. Workplace harassment is defined under the Policy as occurring when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
The Policy expressly states that “work-related stressor” includes multiple work-related stressors, as well as a cumulative series of work-related stressors.
iii. WSIB Traumatic Mental Stress Policy Explained
Similar to the chronic mental stress policy, the traumatic mental stress policy requires that, in addition to the two key criteria stated above, an injured worker to prove that one or more traumatic events occurred during the course of the worker’s employment, which triggered the traumatic mental stress.
According to WSIB, traumatic events include, but are not limited to:
witnessing a fatality or a horrific accident
being the target of physical violence
being the target of death threats
being the target of workplace harassment
Please read this blog post if you want to learn more about the Medical Documentation in WSIB Claims:
4. HRTO Substance Related Disorder Discrimination Claims
a. HRTO Protections Against Substance Related Disorder
Drug abuse, drug dependence and addictions are diseases, illnesses, malfunctions and
mental disorders, which can create mental impairment and result in mental disorder and physical disability.
As stated above in Entrop v. Imperial Oil Limited, severe alcohol or substance abuse, addiction and dependency are well-recognized as disabilities within the meaning of the Human Rights Code (the Code). Casual (or recreational) use of substances is not defined as a disability unless people are treated adversely because they are perceived to have issues of substance abuse, addiction or dependency, and be discriminated against.
Often the employee who claims disability related accommodation for substance related disorder needs to provide a DSM-5 diagnosis from a regulated health-care professional who is authorized to make such a diagnosis.
Click here to read a blog post on Medical Documentation in Disability Cases, titled A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
A DSM-5 diagnosis allows clinicians to specify how severe or how much of a problem the substance related disorder is.
b. Substance Use Disorders
A substance use disorder is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as drugs or alcohol. Symptoms can range from moderate to severe, with addiction being the most severe form.
Substance use disorders cover 11 different criteria:
Taking the substance in larger amounts or for longer than you're required to.
Unable to cut down or stop using the substance.
Spending a lot of time getting, using, or recovering from use of the substance.
Cravings and urges to use the substance.
Unable to perform essential duties or fulfill obligations at work, home, or school due to substance use.
Continuing to use, even when it causes problems in relationships.
Giving up important social, occupational, or recreational activities because of substance use.
Using substances repeatedly, even when doing so puts the user's personal safety in jeopardy (e.g. operating power tools, heavy equipment or driving under the influence of drugs or alcohol).
Continuing to use while knowing the existence of a physical or psychological condition that the substance may have caused or exacerbated.
Developing a drug tolerance against the substance.
Developing withdrawal symptoms, which can be relieved by taking more of the substance.
The severity of substance use disorders depends on how many symptoms are identified. Two or three symptoms indicate a mild substance use disorder; four or five symptoms indicate a moderate one, while six or more symptoms indicate a severe substance use disorder.
c. Substance Induced Disorders
Substance induced mental disorders develop in individuals who didn't have mental problems prior to substances uses. They include:
Substance-induced bipolar disorders and related problems
Substance-induced sleep disorders
Substance-induced sexual dysfunctions
Substance-induced neurocognitive disorders
Substance-induced disorder is a form of substance induced mental disorder, which includes depressive, anxiety, psychotic, or manic symptoms that occur as a physiological consequence of the abusive use of substances or medications. It may occur during active use, intoxication or withdrawal.
Many of the individuals who experience a substance use disorder during their lives will also experience substance induced disorder and vice versa.
5. Duty to Accommodate and Undue Hardship in Disability Cases
a. Duty to Accommodate Defined
When an employer seeks to dismiss an employee due to their disability, he or she is at risk of incurring significant human rights damages, unless it can demonstrate a bona fide operational requirement that prevents it from facilitating the employee’s continued employment.
Duty to accommodate has both a substantive and a procedural component:
- The substantive component considers the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation (BFOR). It is the employer who bears the onus to demonstrate that the employee's disability has been accommodated to the point of undue hardship.
The duty to accommodate is a shared responsibility between the employer and the disabled employee. The employer’s duty to make reasonable efforts to provide required accommodation is mirrored by the employee’s duty to make reasonable efforts to participate meaningfully in accommodation planning, and to make sincere efforts to return to work under modified conditions.
Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970.
As stated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, a court’s assessment of what constitutes reasonable measures with respect to the duty to accommodate is a question of fact that will vary with the circumstances of each case. Accommodation measures may mean that the form and function of the employee’s role in the organization requires change to protect the employee’s right to not be excluded from employment because of their disability. It is important that the employee understand that, while the threshold of undue hardship is a high one, the employee is not promised a ‘perfect’ scenario, and concessions may need to be made with respect to the forms of accommodation.
b. What Triggers the Duty to Accommodate a Disability?
The duty to accommodate arises when the employer is made aware that an employee has a disability that requires accommodation. This generally happens via a direct disclosure by the employee, the treating physician or another individual.
The duty to accommodate may also arise where the employer perceives (or reasonably ought to have perceived) the employee as having a disability that may require accommodation – even where no disclosure of disability and/or request for accommodation has been made.
Confirming a disability and the required accommodations should come from the employee’s treating practitioner, which can be a family doctor, specialist, midwife, etc. depending on the nature of the condition.
The employer IS NOT entitled to information related to a diagnosis or the specific treatment.
The employer is entitled to information regarding the effect of the condition on the employee’s ability to work, with or without accommodation, and must be given details of the necessary accommodation where it is required.
Click here to for a discussion of duty to accommodate in A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
c. What Constitutes Undue Hardship?
A number of factors are NOT to be considered, including:
Third party preferences, such as customers’ discomfort;
Only three factors will be considered:
(a) Costs will amount to undue hardship only where they are,
Shown to be related to the accommodation, and
So substantial that they would alter the very nature of the enterprise or so significant that they would substantially affect its viability;
Costs are likely to be absorbed more easily in a larger organization;
(b) Outside Sources of Funding will be taken into consideration where they are available to defray the costs of accommodation;
(c) Health and Safety Issues will be considered. An employer is not required to accommodate a disability by waiving health and safety standards if doing so would create liability under the Occupational Health and Safety Act. Health and safety risks will amount to undue hardship where the degree of risk remaining after accommodation has been made outweighs the benefits of enhancing equality for individuals with disabilities.
Employers have the onus of proving undue hardship. Specific facts and evidence must be relied upon – unsubstantiated assumptions, speculations and expectations will not be acceptable proof of undue hardship.
Click here to for a discussion of undue hardship in A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
6. Legal defences Against A Claim of Disability Discrimination
a. Bona Fide Occupational Requirement
A Bona Fide Occupational Requirement, or BFOR, is workplace job requirement that allows an employer to “justify" an otherwise prohibited ground under the Human Rights Code, if there is a legitimate reason that is connected to the ability to do the job.
In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, 1999 CanLII 652 (SCC), the Supreme Court has created a unified test, the Meiorin test, to determine if a violation of human rights legislation can be justified as a BFOR.
that the employer adopted the standard for a purpose rationally connected to the performance of the job;
that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
Click here for further reading regarding BFOR.
b. Frustration of Contract
i. Frustration of Contract Defined
Frustration of contract is the legal termination of a contract because of unforeseen circumstances that:
make the contract and its objectives virtually impossible to execute;
make the performance of the contractual obligations illegal; or
render the contract fundamentally different from its original intended character.
For an employer to end an employment arrangement due to frustration of contract, the circumstances must have been unforeseeable and occurred through no fault of either party to the contract. Furthermore, the burden of proof to demonstrate that a contract has been frustrated rests with the employer.
When a contract has been frustrated it can be terminated without liability to either party. This means that neither party is entitled to damages under contract law. In other words, a disabled or injured employee who have been terminated for contract frustration is NOT entitled to claim disability discrimination under the Human Rights Code. However, the employer is still OBLIGATED TO PAY the employee their minimum entitlements under the Employment Standards Act (ESA) (such as termination pay and severance pay) under the Ontario Regulation 288/01 – Termination and Severance of Employment (made pursuant to ESA).
A successful contract frustration defence hinges on the nature, expected length of illness, and the prospect of recovery. Frustrating a contract is only allowed in situations involving a permanent disability.
There is no set time period that an employee must be off from work for their contract to be considered frustrated. Courts will take into consideration how long an employee has been with a company as well as their position in it. Jurisprudence has established that a prolonged absence due to illness, standing alone, DOES NOT substantiate a claim that the employment contract has been frustrated.
Frustration of contract is largely addressed on a case-by-case basis. This is because the consequences of a frustrated contract are quite harsh to employees. Courts will also look to see if there is any reasonable chance the employee will be able to return to work in the foreseeable future.
If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer will not be able to claim frustration of contract and terminate employment on that basis.
Please the following blog post for an in-depth discussion of medical documentation in disability cases:
The following questions are factors that a Court might consider in the case-by-case analysis in a disability discrimination case where the frustration of contract defence has been raised by the Defendant Employer:
Is the employee temporarily or permanently disabled?
What are the prospects for medical recovery and return to work based on available medical documentations and other evidence?
Does the employment contract contemplate a lengthy period of absence by an employee?
Does the employment agreement provide sick leave, short-term disability and long-term disability benefits?
How long has the employee been off work or unable to work due to the injuries, disability or illnesses?
Is the disability related to a workplace injury (i.e. whether the employee entitles to disability related WSIB benefits)?
Can the employee perform the essential duties of their job? Can the employee be accommodated short of undue hardship?
Is continued employment impossible or would it radically alter the employment relationship?
Is there a need to terminate the employment relationship? Can a temporary replacement be hired, or can existing staff resources be utilized?
What position did the employee have in the business? How senior and integral was the employee to the business?
What evidence does the employer have at the time of termination establishing a permanent incapacity? The onus is on the employer to prove frustration of contract and cannot rely on post-termination evidence that is unrelated to pre-termination incapacity.
Has the employer itself induced or caused the frustrating event?
Are there any other specific facts of the case that ought to be considered?
Please the following blog post for an in-depth discussion of frustration of purpose:
ii. Recent Frustration of Contract Cases
1. Reasonable Prospect of Return to Work
Nagpal v IBM Canada Ltd., 2021 ONCA 274
IBM’s frustration claim was undermined by evidence in the form of ongoing correspondence from the employee’s legal counsel that clearly established the employee’s intention to return to work, and their willingness to provide ongoing medical updates as required. These letters served to demonstrate that there was no basis to find that the employee had resigned or abandoned his employment, and that there was some basis to find a reasonable prospect that the employee could eventually return to work. IBM was thus unable to satisfy its onus to establish that the contract of employment was frustrated, and it was liable to the employee for damages for wrongful dismissal.
Boucher v Black & McDonald Ltd., 2016 ONSC 7220 (Div Ct)
The plaintiff was a 46-year-old employee who went on long-term disability benefits in October 2011 and later advised the employer that she could return to work
by the end of 2013. The insurer agreed she was no longer disabled and they proposed a graduated return to work by November 11, 2013. However, on October 31, 2013, the employer terminated her employment due to “absence of several months.”
In the present case, there was a plan to return to work. Indeed, BML had been advised by October 13, 2013 that Boucher intended to return to work November 11, 2013. However, following the submission of the return to work plan, Boucher was terminated.
Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097
The plaintiff was a 45-year old Registered Orthotic Technician employed for approximately 20 years before he was terminated purportedly for frustration of contract. In August 2010, the employer said it could no longer accommodate the employee and put him on a leave of absence. In June 2012, the plaintiff sought a return to work, but was ultimately terminated in January 2013.
The Court held, in paragraph 180, that the plaintiff had been terminated and that the employer had not established frustration of contract due to the plaintiff’s disability. Specifically, the employer failed to show that there was no reasonable likelihood of the plaintiff being able to return to work within a reasonable timeframe around the time of termination.
2. Duty to Accommodate vs. Frustration of Contract
Sodexo Canada Ltd. v Canadian Union of Public Employees, Local 145, 2019 CanLII 72771 (ON LA)
In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act, the Arbitrator found that the employer had not established frustration because of its narrow approach to the consideration of accommodation options. In that case, the employer failed to consider if it could reintegrate the grievor via modifications to their former position and the use of assistive equipment, or if there were forms of work available at other worksites. As a result, the employer was found to have breached its procedural duty to accommodate the grievor; this was contrary to the Human Rights Code, warranting the award of compensatory damages.
Milloy v Complex Services Inc., 2017 ONSC 2923
The plaintiff had worked for more than 10 years with the defendant primarily as a table games dealer for a casi