HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JUNE 2019

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 (JD Candidate, 2020), Valeria Kuri (MSW/JD Candidate, 2021), and Deborah Willoughby (MSW/JD Candidate, 2021)

British Columbia

McNish v The Source and others, 2019 BCHRT 126         

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This decision involves an application alleging that the respondent discriminated against the Applicant, Destiny McNish, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Code, R.S.O. 1990 c. H. 19. The applicant alleged that her use of medical marijuana to treat her disabilities was a factor in the Respondents’ decision to fire her. The Respondents denied discriminating and applied to dismiss the complaint arguing it has no reasonable prospect of success: Code, s. 27(1)(c).

The Applicant worked for The Source as an assistant manager and began in February 2018. She said she has chronic migraines and an anxiety disorder and that she takes medical marijuana as a prescribed treatment for them. The parties agreed that Ms. McNish used medical marijuana, and the individual respondents were involved in the decision to fire her. In late December 2017, Ms. McNish had obtained a letter from a medical practitioner supporting her use of medical marijuana. In response to the complaint, the Respondents stated that by mid-April 2018, an unnamed co-worker approached a direct sales manager for The Source, to report concerns about Ms. McNish’s behaviour including using a harsh tone to staff, having escalating personal conflicts with sales associates, vaping marijuana in the store bathroom, and leaving work during her shift to later return appearing to be under the influence of marijuana. The Respondents met with Ms. McNish to discuss these incidents and reported the meetings.

The Respondent requested and received more information about the amount of medical marijuana she needed to take, in what form, and how many times a day. At that time, The Source accepted that Ms. McNish had a disability that it was required to accommodate. In terms of whether this had an adverse impact in employment on Ms. McNish, the Tribunal accepted that it had because she was fired. Finally, the Tribunal accepted that The Source learned about Ms. McNish’s medical marijuana prescription, and that she had been using it. The Tribunal held that the Respondents had a duty to inquire whether Ms. McNish needed accommodations for her disability. From the timing of The Source’s decision to fire Ms. McNish outlined above, the Tribunal could draw an inference that Ms. McNish’s disabilities—and her related use of medical marijuana—were a factor in the decision to fire her. Therefore, the Tribunal denied the application to dismiss the complaint.

Chen v La Brass Foods, 2019 BCHRT 111

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This decision involves an application alleging that the respondent discriminated against the Applicant, Xi Chen, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that La Brass failed in its duty to accommodate her disabilities in the spring of 2018 and terminated her employment on June 2, 2018.

Ms. Chen, a 24 year old woman, described being diagnosed with depression in 2011, which turned into a diagnosis of bipolar disorder and eventually schizoaffective disorder. Ms. Chen was hired by La Brass in mid-October of 2017 as a busser, having no prior restaurant experience. She described her experience with La Brass as beginning as a respectful relationship with a lot of pleasantries but says that in November and December of 2017, she did not feel treated with the same respect as everyone else. Ms. Chen described the managers as speaking frequently about the speed at which she worked, and that speed was an issue for her. She stated that the manager who hired her, Judy, asked her if she had an anxiety disorder and suggested to her in February 2018 that working at the restaurant was perhaps not a good fit for her. Judy and another manager, Roger, suggested Ms. Chen work the following shift that was scheduled, where they would discuss the possibility of her returning to work in the future.

Ms. Chen provided a medical note for her disability and after her meeting with her managers in February, she began to work in the back kitchen rather than on the floor, which she found to be a good fit. Despite not asking for further accommodations, Ms. Chen received a text message from Judy indicating that La Brass was prepared to accommodate her disability. Despite these assurances, her workload increased until her duties reverted back to where they had been prior to her anxiety attacks. Ms. Chen was subsequently hospitalized and was an inpatient at the psychiatric ward of Burnaby Hospital. She dropped out of her university program, her relationships suffered, she was unable to work and pay bills and had to move back in with her parents. She returned to work on May 27, 2018, and on June 2, she was terminated.

The Tribunal found that Ms. Chen had experienced an adverse impact regarding her employment, and that her disability was a factor in this adverse impact. The complaint was therefore justified, and La Brass was ordered to compensate Ms. Chen for her wage loss in the amount of $1,301.14; for injury to her dignity, feelings and self-respect in the sum of $10,000; and pre and post judgement interest on the award for lost wages based on the rates set out in the Court Order Interest Act.

Gruber v Mansini Steel Manufacturing and others, 2019 BCHRT 122

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In this matter, the applicant alleged that Mansini Steel Manufacturing Ltd. [Mansini], its director James Chamberland and employee Heather Chamberland discriminated against him by dismissing him from his job because of mental disability contrary to s. 13 of the BC Human Rights Code. The Respondents denied discriminating and claimed they were never informed about Mr. Gruber’s alleged mental disability. They also say Mr. Gruber abandoned his position. They therefore applied to dismiss the complaint under s. 27(1)(b) and (c) of the Code.

Mr. Gruber was employed by Mansini from April 2012 to November 2017 as its General Manager. Heook a medical leave from October 6 to November 13, 2017 for what he says was a mental disability-related depression and workplace stress that aggravated his depression. The Respondents disputed that Mr. Gruber had a disability and say they were never made aware of any alleged disability during Mr. Gruber’s medical leave. The Respondents claimed they were aware that Mr. Gruber was experiencing some personal stress caused, in part, by a house he and his wife were building. They argued that Mr. Gruber abandoned his position on October 6, 2017 when he had said that he had “had enough” and walked out of the facility. Ms. Chamberland claimed she took this to mean that Mr. Gruber quit his job, and later that afternoon, requested that Mr. Gruber return the company’s cell phone and keys. On October 10, 2017, Mr. Gruber’s wife emailed Ms. Chamberland to advise her that Mr. Gruber was sick and provided her with a doctor’s note but did not specify the nature of the medical condition. Mr. Gruber later provided documentation that he was still unable to work until October 30, 2017. He also returned the company cell phone. He was further reassessed and was not cleared to work until November 14, 2017 without restriction. Mr. Gruber alleged that he informed Ms. Chamberland of this information, but that she responded unprofessionally, stating that the company was unsure if they wanted him to return to work and that they could “do whatever [they] want[ed]”. Ms. Chamberland admitted to this, but alleged that it had nothing to do with Mr. Gruber’s disability, but reflected her frustration about Mr. Gruber’s work performance.

The Tribunal found that Mr. Gruber met the three requirements necessary to succeed with his complaint. On a balance of probabilities, he was found to have a mental disability, to have experienced an adverse impact regarding his employment, and it was found to be  reasonable to infer from the evidence that his disability was a factor in the adverse impact.

Ontario

Liverance v. Ontario (Attorney General), 2019 HRTO 943.

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The applicant filed an Application alleging that the respondent discriminated against her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant was charged with a criminal offense. Between December 21, 2015 and September 14, 2016 there were 14 court appearances related to the criminal charges against the applicant. The Crown Attorney stayed the charges against the applicant on September 14, 2016. The applicant stated that he has a hearing impairment and that the respondent did not provide him with appropriate accommodations to allow him to participate in the criminal proceedings. The applicant alleged that the Crown refused to provide him with accommodations and took the position that he could hear the proceedings without difficulty. The applicant noted court appearances where the Court provided him with assistive hearing devices that did not work. The applicant argued that he raised the issue, but the matter proceeded nonetheless. The applicant believed that the Crown purposely delayed the criminal proceeding. 

The Tribunal found that the Application should be dismissed based on prosecutorial immunity, which states that the actions of prosecutors in the course of carrying out their duties are in most cases not “services” within the meaning of section 1 of the Code. The Tribunal found that the applicant’s allegations arising out of the events in Court on September 14, 2016 have no reasonable prospect of success. The Tribunal indicated that the Crown’s decision to stay the charges against the applicant was squarely within his function and discretion protected by prosecutorial immunity. The Court’s decision to accept the stay or to refuse to entertain the applicant’s objection to a stay based on his claims of inadequate accommodations was a judicial decision protected by judicial immunity. In these circumstances, the applicant has no reasonable prospect of showing that his Code rights were violated in the criminal court proceeding on September 14, 2016 and these allegations were dismissed by the Human Rights Tribunal of Ontario. 

Ravanski v. Primmum Insurance, 2019 HRTO 995.

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The applicant alleged discrimination because of disability reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that someone told him that an elevator was out of service. He also made reference to damage done to his vehicle and to harassing phone calls and surveillance. Due to the broad nature of the initial Application, the Tribunal advised the applicant via a Notice of Intent to Dismiss, that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code. The applicant did not address the issue of the absence of a link to the grounds he selected, but instead reiterated the allegations contained in the initial Application and provided some further detail about them and related documentation.

At the hearing, the Tribunal relied on precedent that confirms that an application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. The Tribunal found that in these circumstances, it was plain and obvious that the subject matter of the Application was not conduct prohibited by the Code, and not fall within the Tribunal’s jurisdiction and was therefore dismissed.

Creer v. City of Hamilton Mayor Fred Eisenberger, 2019 HRTO 1002.

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The applicant filed an Application alleging discrimination because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent sometimes brings his dog to City Hall, that she is allergic to a number of things, including animals, and that the potential presence of that, or any, dog causes her anxiety on those occasions when she goes to City Hall. 

The Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify what incident of discrimination had occurred on the date noted or that any specific acts of discrimination within the meaning of the Code. The applicant responded by filing submissions, however, these submissions, did not address the issue of the failure to identify specific acts of discrimination within the meaning of the Code. As a result, the Tribunal found that the application did not fall within its jurisdiction and was dismissed.

Di Biase v. 1004904 Ontario Limited O/A Canada Pure Water Co. Ltd, 2019 HRTO 1005

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This Application alleges discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant was ordered by his physician to be off work for four weeks following a heart attack and he informed his employer, the respondent. The applicant did work for the respondent while he was off work. In the time that he was off there was some dispute about the hours for which he would be paid for. When the applicant returned to work, he was notified that he was being terminated due to his ongoing health concerns. The legal test applied to determine whether an employee has experience discrimination in employment because of disability was whether:  (1) The employee has or had a disability; (2) The employee experienced an adverse impact; and (3) The fact that the employee has or had a disability was a factor that contributed to the adverse impact.

The Tribunal confirmed that even if an employer terminates the employment relationship because the employee has had a disability, the termination is discriminatory whether or not there is an actual disability at the time of the termination. The Tribunal further found that there was no evidence of any other reason why the applicant’s employment would have been terminated at that time. The applicant’s inference that this was done due to his disability was therefore clear based on the sequence of events. The Tribunal concluded that the applicant was entitled to loss wages of $93,431 as well as $10,000 of compensation for injury to dignity, feelings and self-respect. 

Nova Scotia

Yvette Beals and 3268073 Nova Scotia Limited o/a Dartmouth Comfort Inn (Windmill Road location) and The Nova Scotia Human Rights Commission

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This decision involves an application alleging that the respondent discriminated against the Applicant, Yvette Beals, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Act, RSNS 1989, c 214 . In this matter, the applicant alleged that Darmouth Comfort Inn terminated Ms. Beals from employment on October 13, 2017 and she filed a complaint with the Nova Scotia Human Rights Commission on December 23, 2017.

Ms. Beals felt that she was performing her job tasks competently, however, she experienced anxiety and distress that she attributed to her work at the front desk of the Inn. Ms. Beals asked for her hours to be reduced, and eventually she visited a physician who believed that she needed to take time off of work entirely. There were no discussions on the telephone or in writing about terminating Ms Beals’ employment when she went off of work for health reasons. When Ms Beals was cleared to return to work several months later, the Inn staff advised that they did not have any work available for her and that they would pay her two weeks notice and terminate her employment. Ms. Beals was also advised that staff had been advocating for her not to be brought back on as an employee.

The Commission believed that Ms. Beals did establish that she had a mental disability and that the Inn staff knew about her mental distress. When Ms. Beals notified the Inn that she was able to return to work, the negative response was immediate and abrupt. There was no inquiry about Ms. Beals’ health. The Board of Inquiry held that the parties should move forward with a mediation between themselves with the assistance of the Commission to determine whether there is an avenue for Ms. Beals to return to employment, or alternatively whether she could receive termination pay.