Law, Disability & Social Change

There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC, Ontario, and Nova Scotia and that were rendered during the month of May, 2019. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (3L), Valeria Kuri (2L), and Deborah Willoughby (2L)

British Columbia

X.P. obo J.R. v. The Hospital and another (No. 2), 2019 BCHRT 96 

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This decision concerns a complaint filed on behalf of J.R, a person with mental and physical disabilities, by his mother, X.P. against a Correctional Center and a hospital. J.R. is a person with schizophrenia, a learning disability, and a hearing impairment. The complaint against the Correctional Center alleges it discriminated against J.R. on the basis of mental and physical disability in accommodation, service, or facility customarily available to the public contrary to s. 8 of the Human Rights Code. The Correctional Center denied discriminating against J.R. and has applied to have the complaint dismissed against it because it has no reasonable prospect of success:   RSBC 1996, c 210, s. 27(1)(c).

In 2015, J.R. was admitted to the Correctional Center and at the time, X.P says J.R. was psychotic and placed in segregation, his mental condition was not assessed, and that he was given medication that exacerbated symptoms of one of his mental disabilities. She also says that for the majority of the time J.R. spent in the Correctional Center in 2015, he was in segregation—which further exacerbated his symptoms—and he did not receive adequate medical treatment there. She also says he was beaten by guards because of his behaviour, which related to his disability, and that as a result, he required surgery resulting in life-long scars. The application to deny the whole complaint was denied because the Correctional Center did not submit any evidence that they did not discriminate against J.R. In fact, it did not provide any affidavit evidence or statements from anyone at the Correctional Center about what happened to J.R., while X.P. provided documentation that appeared to support her allegations of discrimination. The complaint alleging discrimination against J.R. that relates to assessments done by medical staff (and medications given to him), as well as the part of the complaint that alleges discrimination on the basis of J.R.’s hearing impairment and learning disability were dismissed. This was due to the fact that the Correctional Center argues they followed their policies and procedures.

K v. RMC Ready Mix and another, 2019 BCHRT 102

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This decision involves a complaint filed by K against RMC Ready Mix Ltd. [RMC] and Lafarge Canada Inc. [Lafarge] alleging discrimination on the basis of mental disability regarding employment contrary to s. 13 of the Human Rights Code[Code]. K alleged that the Respondents discriminated against him by requiring him to agree to random drug testing and other related terms as a precondition to returning to work after a medical leave of absence; and by terminating his employment rather than considering alternative accommodations for his addiction-related disability. The Respondents deny discriminating and apply to dismiss the complaint under ss. 27(1)(b), (c) and (d)(ii) of the Code. The tribunal did not dismiss the complaint.

K argued that he began employment with Lafarge in 2013 and that RMC is a wholly owned subsidiary of Lafarge, while the Respondents submitted that K is employed by RMC. Around mid-October 2017, K was diagnosed with bipolar disorder. K self-admitted to a hospital and subsequently took a medical leave of absence due to his disorder and drug use disorder. K was referred to the employee assistance program [EAP] by Lafarge and K voluntarily entered a treatment center until February 2018.

During his treatment period, K relapsed and attended a further detox program. Around April 2018, K began to connect with RMC for a return to work plan, and K provided documentation indicating he was cleared to work without restriction by May 15, 2018. On May 17, 2018, RMC responded to K’s inquiry about returning to work and advised him that he would need to submit to a drug test and sign an agreement to enable his return to work. The day before the meeting, RMC advised K by text message that he would be required to submit to random drug testing in a matter of hours. K missed the drug test and was advised that he would not be able to return to work until the drug test came back negative and scheduled another drug test for June 2018.

In the meantime, K’s disability benefits were cut as a result of his doctor confirming he was no longer disabled. K’s lawyer wrote to RMC on June 7, 2018 advising that K would not agree to proposed drug testing or the Agreement but was prepared to discuss suitable accommodations for return to work. On July 19, 2018, RMC terminated K’s employment for cause.

The tribunal declined to exercise its discretion to dismiss the complaint under s. 27(1)(b). At the same time, the tribunal was not persuaded that it was reasonably certain that the Respondents would succeed in establishing that the terms set out in the Agreement constituted a reasonable accommodation. Finally, the application to dismiss the complaint was denied.

Ontario

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Szajewski v. The Dominion of Canada General Insurance Company, 2019 HRTO 741

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This decision involves an application alleging that the respondent discriminated against the Applicant on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that following a motor vehicle accident in July 2016 her auto insurance provider failed to approve things that it should have had approved and failed to accommodate her disability. On April 27, 2017, the applicant was requested by her insurance provider to attend an in-person assessment. The applicant alleges that the insurance company did not provide transportation to and from this assessment. She also alleges that her hearing impairment requires her use of a recording device during the assessment. The company in which the insurance provider (Respondent) used to conduct the assessment refused the applicant’s use of such recording device. As a result, the applicant suggests she suffered discrimination because  her insurance claim was delayed, no explanation was provided on the Respondent’s inability to accommodate her disability, and there was not a fair process in adjudicating her claim.

The Tribunal found that the Application failed to identify any specific acts of discrimination within the meaning of the Code and did not point to any evidence to establish a link between her disability and the actions of the respondent (including confirming and providing transportation to and from the in-person assessment). The Tribunal held that it does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program.  The applicant’s allegations that she is entitled to statutory accident benefits (“SABS”) is not within the Tribunal’s jurisdiction and thus such claims must be brought before the License Appeal Tribunal Act, I999, S.O. 1999, c. 12. The tribunal dismissed the application.

Grey v. Peel Police Services Board, 2019 HRTO 770.

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This is an interim decision released by the Human Rights Tribunal of Ontario. This Application was filed on May 31, 2017, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability. The Application sets out 11 different allegations of harassment and discrimination based on interactions with the Peel Police Services from 2009 to 2016.  

In early June 2016, the Peel Police apprehended the applicant and transported her to Trillium Hospital after an incident in a parking lot. The applicant’s vehicle was towed away and she was put in “lockdown” for a week. The Tribunal held that a police apprehension under the Mental Health Act is not per se discriminatory ; it may be that it was reasonable for the police to bring the applicant to a mental health facility. The Tribunal could not find that the allegations, which occurred in June 2016, were outside the Tribunal’s jurisdiction. In sum, the Tribunal ordered (1) The Application to proceed regarding the incident alleged to have occurred in June 2016 and (2) The remainder of the allegations  be dismissed.

LaCombe v. Toronto Transit Commission, 2019 HRTO 792.

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The applicant filed an Application under the Human Rights Code, R.S.O, 1990, C. H. 19, alleging discrimination with respect to employment because of disability and age. The applicant was an employee of the respondent employer, Toronto Transit Commission (“TTC”), until his retirement in 2018. He was a member of the Union in which his position was subject to a Collective Agreement that provides long-term disability (“LTD”) benefits. The applicant had a stroke on June 29, 2012, which caused his disabilities. He claims that the respondent did not meet its obligation to accommodate his disability-related needs after January 2014. He wanted to work and the TTC did not find him work. As mentioned in paragraph 9 of the decision:

 Section 34(1) of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incidents to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The Tribunal relied on section 34(1) to dismiss the application on the basis that the delay in  applying was not made in good faith. The tribunal refused the applicants explanation that he was unaware that he could claim discrimination against the employer (respondent), by stating, “ignorance of one rights is not sufficient to establish a good faith explanation” (para 53).

Day v. Saini Energy Inc., 2019 HRTO 825.

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This Application alleges discrimination with respect to employment because of disability and sex, sexual harassment and sexual solicitation or advances, contrary to the Human Rights Code, R.S.O. 1990, c. H.19. Neither corporate nor individual respondent responded to the Application. The applicant worked for the corporate respondent as a cashier, earning minimum wage with hours ranging from 16 hours per week to full-time hours. Several years ago, the applicant was diagnosed with gallstones. She was told that there was no medical procedure that could be done at that time to address the condition. In October, 2016, the applicant required surgery for her medical condition and notified her employer that she would need five days off and would be returning to work after the time provided in a letter by her surgeon. Her employer acknowledged her request and did not schedule her to work the day prior to surgery or any other day after. About two weeks post surgery, the applicant received a termination letter via email stating that her employment had been terminated as she did not fit their corporate culture (para 20). The applicant was not given an opportunity to return to work after her surgery nor was h sgiven lieu pay of such notice.

The Tribunal found that from the medical documentation and oral evidence it was more probable than not that her disability and request for accommodation were factors in the respondent’s decisions to not schedule her for shifts and to terminate her employment. In sum, the tribunal found that the corporate respondent breached the Code by discriminating against her because of her disability. The tribunal ordered the respondent to pay the applicant $1,998.07 for compensation of lost income as well as $15,000 in general damages.

Gauthier v. Yonge Palace Guest House North York Centre, 2019 HRTO 840

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This Application involves allegations of discrimination with respect to accommodation on the basis of a disability, in violation of the Human Rights Code, R.S.O. 1990, c. H.19. The respondent did not file a response to the application. The applicant explained to the tribunal that he has a visual impairment and requires the use of a guide dog. The applicant stated that he reserved a room in the respondent’s guest house for two people on July 23 and 22, 2018 and that upon arrival, the applicant was denied entry into the room because he was accompanied by his guide dog. The applicant explained that this event was stressful for him. On basis of the facts that the respondent denied the applicant a room because he had his guide dog with him, the tribunal concluded that the respondent violated the rights of the applicant to equal treatment with respect to services, goods and facilities because of his disability, contrary to section 2(1) of the Code. The respondent was ordered to pay $5,000 to the applicant for injury to his dignity, feelings and self-respect.

Newman v. Ontario (Attorney General), 2019 HRTO 866.

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This is an Application filed on April 30, 2017, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19.  The applicant alleged discrimination in a series of job application processes, which took place between September 2015 and May 2016. He alleged that the processes were unfair because they failed to accommodate his disability and the interview questions were more challenging to persons with his disability and were not linked to the essential requirements for the position. He also alleged that the respondents failed to conduct an adequate investigation of his complaints relating to the first process and interview. In an email to the respondent, the applicant conceded that he had not requested accommodations prior to the interview and stated that he had not realized prior to the interview that he needed accommodation. The Tribunal found that even assuming the truth of the factual allegations, there was no reasonable prospect that the applicant could prove discrimination or failure to accommodate in violation of the Code.  Thus, there was no reasonable prospect that the Application would succeed and the Tribunal dismissed the application.

Nova Scotia

Melody Harding v Province of Nova Scotia (Department of Health and Wellness) and Nova Scotia Human Rights Commission

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This decision involves a complaint made against the Province of Nova Scotia and the Department of Health and Wellness alleging discrimination based on disability contrary to s. 5(1) the Human Rights Act. The Complainant alleged she was denied breast reduction surgery on the basis that her body mass index (BMI) was above the threshold covered by MSI (Nova Scotia’s Health Insurance Program). The Complainant was concerned that the policy and criteria for patients seeking breast reduction surgery were discriminatory. The Complaint was referred to a Board of Inquiry by the Commissioners of the Human Rights Commission. However, prior to the hearing, the Complainant and the Respondent reached a settlement. The government will remove the BMI criteria as a consideration factor for the surgery which would allow women who were previously denied in the past because of their BMI to obtain the surgery. In the release, the Complainant stated that “removing the body mass index restriction from the breast reduction surgery criteria is such a positive development for the women in Nova Scotia that are effected by macromastia, myself included.” Although the settlement amount reached is confidential, in the ruling, the commission commendeds the province for reaching an agreement that will benefit all Nova Scotian women who have been previously denied the surgery because of their BMI.

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