HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES MAY 2020

The following is a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 1).

*New* Please note that we have expanded our coverage to include cases from the Northwest Territories, Alberta, Québec and the federal Canadian Human Rights Tribunal.

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, the Maritime provinces, Alberta, the Northwest Territories and the Canadian Human Rights Tribunal that were rendered during the month of May, 2020. 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: Valeria Kuri (MSW/JD Candidate, 2021), Nadia Shivratan (JD Candidate, 2022), Deborah Willoughby (MSW/JD Candidate, 2021), and Samantha Rouble (JD Candidate, 2022).

ONTARIO

Elsobky v Footletic Inc., 2020 HRTO 423
May 20, 2020
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This decision involves an Application alleging discrimination and reprisal in employment because of disability, sex, marital status, and age contrary to the Human Rights Code, RSO 1990, c H19 (the “Code”). Specifically, the applicant, Mahmoud Elsobky, alleged the respondent failed to accommodate his disability after a workplace injury that occurred in October 2018. Following the injury, the applicant filed a complaint with the Workplace Safety Insurance Board (“WSIB”). The respondent requested an early dismissal of this Application on the basis that the WSIB decision had appropriately dealt with the substance of the matter, as per s. 45.1 of the Code.

The issue before the WSIB was whether the applicant suffered a work-related injury and whether it was a compensable injury. The WSIB Case Manager issued a decision in which it determined that it was unable to conclude that a workplace accident occurred, or that the applicant’s injuries were work-related due to the delays in the applicant reporting his injuries to the employer, his doctor and to the WSIB.

The Tribunal concluded that the WSIB decision had not adequately dealt with the substance of the Application because it did not address the failure to accommodate the applicant’s disabilities by the respondent and denied the respondent’s request to dismiss the Application.

BRITISH COLUMBIA

The Candidate v. Ernst & Young LLP, 2020 BCHRT 119
May 22, 2020
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This decision involves an applicant who had applied for a job at Ernst and Young LLP (EY) but was ultimately unsuccessful in obtaining employment. He alleged that he was denied the job by EY once they learned that he had a mental illness, in violation of the Human Rights Code s. 13. By contrast, EY stated that their decision not to hire the Candidate was based on other reasons and that they did not know about the Candidate’s mental illness when making the decision not to offer him the job.

The Candidate applied for an order to limit the publication of any identifying information in these proceedings, whereas EY opposed the application stating that the Candidate had not established the grounds for this order. It is at the discretion of the Tribunal to limit what information is available to the public, particularly where a person’s privacy interests outweigh the public interest in having access to the proceedings according to Rules of Practice and Procedure, Rule 5(4). In this case, the Candidate had the burden to establish that his privacy interest outweighed the public interest of having open access to the court proceedings and the Candidate would have had to present strong grounds for this order. 

The Candidate argued that his mental health is inherently private and publishing identifying information may expose him to stereotypes and stigma, compromise his future job and personal prospects, and could have adverse effects on his mental health. Additionally, the Candidate was employed within a government institution in a leadership position. If his personal details relating to this complaint were published, it could have harmed his reputation in his employment.

The Tribunal gave weight to the Candidate’s mental illness and the desire to keep those details private and granted the order limiting publication of certain information up until the hearing of this complaint. As well, the complaint was at a preliminary stage, therefore, there was a greater scope for limiting public access at the early stage. The order limiting publication of identifying information would minimally impair the openness of the proceeding as it only relates to a small portion of the overall case.

Fernandes v. City University of Seattle in Canada and another (No. 2), 2020 BCHRT 116
May 21, 2020
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Edmir Fernandes was a student in a graduate counselling program at the City University of Seattle in Canada (“University”), however, he left the program after the first term. He said that he was dismissed from the program by a University director on the grounds of his place of origin, sexual orientation, sex and mental disability, contrary to s. 8 of the British Columbia Human Rights Code [Code]. The Respondents said that the University gave Mr. Fernandes two options on how to move forward in the program after negative feedback of Mr. Fernandes came to light. He was to either withdraw from the program and receive a full refund or temporarily leave and return with a medical assessment. The Respondents said that Mr. Fernandes instead ceased communications with the university director and left the program.

In order to prove discrimination contrary to s. 8 of the Code, Mr. Fernandes must, on a balance of probabilities, establish “that he experienced an adverse impact in a service and that his sex, sexual orientation, place of origin, or mental disability were a factor in that adverse impact.” The Respondents can rebut this by establishing that they had a non-discriminatory and reasonable explanation for their conduct.

The Tribunal found that Mr. Fernandes did not have a mental disability. This was based on Mr. Fernades’ repeated denial of having a mental disability and his evidence that he was never diagnosed with a mental disability in Brazil, his country of origin, or Canada. He also participated in a psychological evaluation and there was no indication that he had a mental disability.  However, the Tribunal found that the Respondents perceived that Mr. Fernandes had a mental disability. Specifically, they believed that he had a learning disability and was mentally unstable. The Respondents acted on their perception that Mr. Fernandes had a mental disability.

The Tribunal found that Mr. Fernandes had been adversely impacted when he ceased participating in the program. In addition, the Tribunal was satisfied that, “while there were a number of factors leading to the decision to remove Mr. Fernandes from the program, the perception that he may be mentally unstable was at least one.” The Tribunal noted that the Respondents are allowed to judge Mr. Fernandes’ behaviour, however, it was unreasonable for them to conclude that Mr. Fernandes needed to be held out of school due to safety reasons, pending an assessment of his mental state. The Tribunal found that the perception of mental instability of Mr. Fernandes by the Respondents was not reasonable in the circumstances as their perceptions were “tainted by stereotype,” specifically that those perceived to have a mental illness pose a danger to others. This stereotype “profiled Mr. Fernandes as a threat for sexual violence based on preconceived ideas about his character with the effect that he was treated with suspicion, marginalized, and excluded from receiving an education.”

Mr. Fernandes established on a balance of probabilities the three elements of his case: his perceived mental disability was a characteristic protected from discrimination, that he had experienced an adverse impact in this protected area and that this protected characteristic was a factor in the adverse impact in services…

The Tribunal did not find discrimination on the grounds of Mr. Fernandes’ place of origin, sexual orientation and sex and this complaint was dismissed. The Tribunal also dismissed the part of the complaint alleging discrimination based on the Respondent’s perception that Mr. Fernandes may have a learning disability.

The Tribunal found that Mr. Fernades’ perceived mental disability was a factor in the University’s decision to remove him from the program which violates s. 8 of the Code. The Respondents were ordered to cease the contravention and refrain from committing similar or the same contravention. As well, the Tribunal ordered the Respondents to pay Mr. Fernandes for the following: expenses incurred as a result of the contravention; compensation for injury to his self-respect, feelings and dignity; and post-judgement interest on all amounts until the amount is paid in full. 

Belusic obo Canadian Federation of the Blind v. City of Victoria and another, 2020 BCHRT 115
May 20, 2020
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A complaint by Oriano Belusic was filed on behalf of those who wish to use BC Transit in the City of Victoria [“City”], British Columbia, and those who are members of the Canadian Federation of the Blind [Class]. The Class alleged that the City discriminated against them “by relocating bus stops from the curb to the islands in the middle of the road.” The Class stated that these “Floating Stops” are unsafe for those who have visual impairments, violating s. 8 of the British Columbia Human Rights Code [Code]. Additionally, the Class alleged that in “accepting and operating its public bus service at Floating Stops that are safety accessed by crossing a bicycle lane only by those members of the public who are not blind,” BC Transit discriminated against the Class, violating s. 8(1) and (2) of the Code. As well, by Transit servicing the Floating Stops, they became a party to the City’s discrimination against the Class by denying meaningful access to their buses.

The Tribunal found that when Transit serviced the Floating Stops, they “arguably discriminated against the Class in its own right” as the stops were a barrier to those with disabilities in safely accessing bus services. The evidence suggests that Transit “contributed to the adverse impact created by the Floating Stops” and there is a clear nexus between the Class members’ disability and the inability of the Class members to access the buses at the Floating Stops. Therefore, the application to dismiss the complaint was denied as BC Transit failed to convince the Tribunal that the complaint had no reasonable prospect of success.

D.D. v. The Hotel and others, 2020 BCHRT 109
May 5, 2020
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The Complainant, D.D., alleged that employees, D.P. and D.Z. of the Respondent Hotel, as well as the hotel itself, discriminated against him contrary to s. 10 of the British Columbia Human Rights Code [Code], on the basis of physical disability, sexual orientation and race. D.D is of Indigenous heritage, HIV positive and bisexual. Since his HIV diagnosis in 2009, he has been receiving Persons with Disability benefits from the provincial government. He was a tenant at the hotel from 2003 to 2018. D.D. alleged that the discrimination was in the form of harassment during his tenancy at the Hotel and his eviction. As a result of the alleged harassment and eviction, D.D. stated that his mental health deteriorated, and he was diagnosed with Post Traumatic Stress Disorder (PTSD) and anxiety which required him to seek counselling. The Respondents applied to dismiss the complaint and stated that the eviction was not discriminatory but based on D.D.’s interference with other tenants and that D.D. fabricated his allegations of harassment.

Section 27(1)(b) of the Code would allow the Tribunal to dismiss a complaint the facts alleged do not contravene the Code. This determination is made on the basis of the alleged facts in the complaint and does not reference any alternative scenarios or defenses provided by the respondent. The Court established in Moore v. British Columbia, 2012 SCC 61, the requirements of a complainant to prove discrimination, known as the Moore test, by showing they “have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.” In applying the Moore test to an analysis under s. 27(1)(b) of the Code with the examples of discrimination that D.D. provided, his allegations of discriminatory harassment and eviction could not be dismissed under s. 27(1)(b) of the Code.

The Respondents also applied to dismiss the complaint under s. 27(1)(c) of the Code. To succeed under this section, the respondent bears the burden to show there is no reasonable prospect of the compliant succeeding. In this case, credibility was foundational. The versions of events could not be reconciled. The Tribunal was unable to determine that there was no reasonable prospect of the discriminatory harassment complaint succeeding nor that there was no reasonable prospect of D.D. proving a nexus between his protected characteristics under the Code and his eviction.

In addition, the Respondents applied to dismiss the complaint under s. 27(d)(i) of the Code by which the proceeding would not benefit the complainant. The Respondents argued that any monetary damages awarded to D.D. would not benefit him since he was receiving Persons with Disability benefits and would have to turn the awarded money to the provincial government. The Tribunal declined to make a determination on this issue.

Ultimately, the Tribunal denied the Respondents’ application to dismiss the complaint and encouraged the parties to take advantage of the mediation services offered by the Tribunal. In denying the Respondents’ application, the Tribunal was not concluding that D.D.’s complaints would likely succeed, rather that, “it has surpassed the low threshold of conjecture and requires a hearing for the Tribunal to make factual findings about what actually occurred.”

ALBERTA

Lang v Nation-Wide Home Services Corp., 2020 AHRC 34
May 1, 2020
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Daryl Lang, the complainant, filed a complaint alleging discrimination in employment on the ground of physical disability contrary to section 7(1) and section 8 of the Alberta Human Rights Act. The complainant alleged that during her interview with the respondent, she was asked inappropriate questions that addressed her visual impairment. The complainant further alleged that discrimination occurred in her employment interview when she was asked about her transportation to the workplace and whether assistive technology affected her speed. Following the interview, the complaint was informed that she had not gotten the position and that it was filled. The complainant stated that within minutes of this information, she noticed the Kijiji job advertisement had been reposted.

The Tribunal stated that it is for the complainant to demonstrate that her physical disability was a factor in her employment dealings with the respondent, yet the evidence failed in that regard. The respondent had provided a reasonable non-discriminatory explanation for the respondent’s decision not to consider the complainant’s candidacy further. With regard to the advertisement and being told that the position was filled, there was no evidence that the person who informed the complainant that the position was filled had knowledge of the complainant’s candidacy or authority to speak to the complainant in matters of hiring. The Tribunal did not find that the interview questions asked of the complainant, the respondent’s disposition of the complainant’s candidacy, or the continued advertising of the ISR position constituted human rights discrimination. Ultimately, the Tribunal held that the complainant had not satisfied the legal burden of proof to establish that she at experienced discrimination on the basis of physical disability and dismissed the Complaint. 

NWT

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.