HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JUNE 2020

The following are summaries of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 2).

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, Nova Scotia, New Brunswick, Newfoundland, PEI, Alberta, the Northwest Territories, Quebec, and the Canadian Human Rights Tribunal that were rendered during the month of July 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

Lambourn v 2471506 Ontario Inc., 2020 HRTO 526
Date Issued: June 16, 2020
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This decision involved an Application alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, RSO 1990, c H19, as amended(the “Code”). The Application named two respondents, Ms. Clemens was the applicant’s manager, and Mr. Singh, the individual who decided to terminate the applicant’s employment. The applicant, Ms. Alissa Lambourn, was an employee at Mr. Singh’s restaurant at a gas station located in Wyoming, Ontario from April to June 2018. During the course of her employment, Ms. Lambourn called in sick for several days in June 2018 due to the nature of her disability and provided a medical note to Ms. Clemens for her absences. Ms. Clemens refused to schedule her for shifts, effectively terminating Ms. Lambourn’s employment. Since the restaurant was owned by the numbered company and, therefore, employed Mr. Singh and Ms. Clemens, the Tribunal found the restaurant liable for its employee’s actions. The respondents in this case did not provide or file any documents or witness statements, while the applicant testified on her own behalf, and also called her mother, Cindy Lambourn as a witness.

The applicant testified that she had a history of mental illness and substance abuse and had been accommodated by the original manager who was subsequently replaced by Ms. Clemens in mid-June 2018. The applicant testified that in June, she had been struggling with her mental health after the loss of a friend and contacted Ms. Clemens on June 12, 2018, and the morning of June 13, 2018, indicating that she would not be able to come in for her shift on June 13. Ms. Lambourn was told to get a doctor’s note for her absence and alleges Ms. Clemens was upset with her upon receiving it. The applicant went to the emergency room at a local hospital on June 16, 2018 and provided a doctor’s note for her absence from work for June13-15, 2018 to Ms. Clemens. The applicant testified that she contacted Ms. Clemens the following day and indicated she was able to return to work but was told that the employer had hired new staff because of Ms. Lambourn’s absences. When Ms. Lambourn responded that this was unfair and that she was going to go to the Human Rights Tribunal, the respondent allegedly responded with a text message, saying “Good luck LOL”. Although no copies of the text messages were provided as evidence, her mother, Cindy Lambourn testified that she had seen the alleged text message.

The Tribunal accepted the Ms. Lambourn’s evidence and version of the events, while the respondents only testified as to incidents that were not addressed in the Response and indicated that they knew nothing of the applicant’s medical absences. The Tribunal accepted the applicant’s evidence proving that she had a disability, that she communicated this to her manager, and that her employment was terminated because she took a disability-related sick leave. The respondents had a duty to accommodate her disability to the point of undue hardship before terminating her employment, under either s. 11(2) or 17(2) of the Code. Given the absence of evidence from the respondents in steps taken to accommodate the applicant’s disability, the termination of the applicant’s employment was discriminatory.

In conclusion, the Tribunal ordered the respondents to pay the applicant the sum of $4,312 in compensation for lost wages from June 18, 2018, to September 2, 2018, as well as pre-payment judgement interest ($122), $15,000 in compensation for injury to dignity, feelings, and self-respect, and post-judgement interest.

Thompson v Ontario (Community and Social Services), 2020 HRTO 557
Date Issued: June 25, 2020
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This decision involved an Application alleging discrimination in goods, services and/or facilities on the basis of disability. The applicant, Ms. Lisa Thompson, claims that the respondents, the Ministry of Community and Social Services (the “Ministry”) and Gordon Spolijarich, discriminated against her in the provision of services through the Ontario Disability Support Program (“ODSP”) over an extended period of time. Ms. Thompson is a recipient of ODSP benefits from the Ministry and has serious and ongoing health issues that require a significant amount of funding. Furthermore, Ms. Thompson alleged that she had been significantly and adversely impacted by the imposition of third party billing, the delivery of unnecessary quantities of supplies, the lack of acknowledgement of her special circumstances, and the lack of reimbursements for certain expenses (not to mention the hostile and discriminatory nature of the employee’s conduct alleged by the applicant). The issue present in this case was the ongoing nature of the alleged discrimination claimed by the applicant. Ms. Thompson asserted that the discrimination occurred over a long period of time through attitudinal barriers and/or denial of service from 2009, and continued to the present day, although she did not provide a detailed chronology of events. According to s.34 of the Code, if a person believes that their rights have been infringed, or that they have been discriminated against, they have one year after the incident to file an application, or, if there was a series of incidents, one year after the last incident occurred. The applicant did not deny that various incidents occurred prior to June 1, 2016, but states that there was no issue with respect to the timing of the application since the alleged discrimination occurred over a long period of time and was ongoing.  However, the respondents requested dismissal of the allegations which pertained to incidents that occurred prior to June 1, 2016, stating that responding to allegations that occurred ten years ago would be a significant hurdle for the respondents.

The Applicant was unable to provide insight or demonstrate why she could not meet the required deadline and that the delay in filing the Application occurred in good faith under s. 34 of the Code. However, the Tribunal also recognized the claims of ongoing discrimination maintained by Ms. Thompson. Therefore, the Tribunal struck all allegations relating to matters occurring prior to June 1, 2016, from the Application and concluded that allegations of discrimination that occurred after June 1, 2016, would proceed through the Tribunal process.

BRITISH COLUMBIA:

Parker v. Our Social Fabric, 2020 BCHRT 128
Date Issued: June 5, 2020
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Helen Parker alleged discrimination by the volunteer-run non-profit textile recycling company, Our Social Fabric (“OSF”). Ms. Parker believed that her disabilities were a factor in the company denying her a volunteer opportunity, contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210 (“Code”). OSF denied any discrimination and stated that the organization was run by volunteers who “were doing their best.” The organization stated that they offered multiple shifts to Ms. Parker who turned them down and that the lags in communication were due to oversight as opposed to discrimination. The OSF applied to the Human Rights Tribunal to dismiss the complaint on the grounds that Ms. Parker has no reasonable prospect of proving that she was adversely impacted in connection with employment according to s. 27(1)(c) of the Code.

Ms. Parker had disabilities that enable her to receive disability benefits from the provincial government. She was unable to work full time and she usually had “three ‘usable’ hours outside the home every day.” Ms. Parker was participating in a Community Volunteer Supplement Program in 2018 where she was eligible to receive a monthly income supplement if she volunteered with a non-profit organization for at least eight hours per month. Ms. Parker had an interest in sewing and reached out to OSF. The organization offered Ms. Parker eight hours per month and provided her with dates and time blocks where she could volunteer. After multiple back and forth communications, Ms. Parker disclosed that she was on provincial disability and was participating in the Community Volunteer Program, to which OSF stated that they were a small organization with limited hours of operations and volunteer positions. OSF then referred Ms. Parker to another organization that assisted adults with employment barriers including disabilities.

Ms. Parker found another volunteer placement to satisfy her requirements for the Community Volunteer Supplement Program, but she was still interested in volunteering at OSF. She sent a follow-up request with the organization about volunteering and OSF responded asking about her availability on a specific date. When Ms. Parker responded and explained she was not available to work on weekends but provided an alternative, OSF never responded. The organization never responded to another follow-up email Ms. Parker sent. Ultimately, Ms. Parker sent a formal letter to the Board stating the history of communications with OSF and the response she received once she disclosed her disability. The Board responded and offered an apology to Ms. Parker and wanted to have a telephone discussion “to understand the situation more in-depth.” When Ms. Parker offered to do so over an in-person meeting, the Board sought legal advice and based on the advice of its legal counsel, the Board did not respond any further to Ms. Parker.

Ultimately, the Tribunal denied the application to dismiss the complaint. The Tribunal found that the change in tone of communications between OSF and Ms. Parker and their referral to a disability organization supported the inference that Ms. Parker’s disability was a factor in OSF’s failure to follow up about volunteer shifts. Moreover, the volunteers that were directly involved failed to provide direct evidence in support of OSF’s argument that their failure to respond to Ms. Parker was due to simple oversight. The Tribunal was not persuaded that Ms. Parker had no reasonable prospect of proving that her disabilities were one factor in OSF’s conduct and a two-day hearing was to be scheduled.

Tumber v. Flexi Force Canada and another, 2020 BCHRT 132
Date Issued: June 26, 2020
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Sukhjinder Tumber filed a complaint against his employer at the time, FlexiForce Canada Inc. (“Flexiforce”) and the Human Resource Manager, Terry Eady, alleging discrimination in his employment as they failed to accommodate his physical disability, contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210 (“Code”). Flexiforce was a business that dealt with the manufacturing of vinyl window frames and overhead door hardware. Mr. Tumber went on medical leave, and upon his return, the Respondents failed to assign him to his pre-injury duties and refused to allow him to work afternoon shifts. The Respondents denied discriminating against Mr. Tumber and applied to dismiss the complaint based on ss. 27(1)(c), (d)(ii), and (e) of the Code: “on the basis that the Complaint has no reasonable prospect of success, it would not further the purposes of the Code to proceed with the Complaint because there has been a remedy for the conduct complained about, the Complaint is against the institutional or corporate Respondent who is responsible for the individuals’ conduct, and the Complaint was filed for improper motives or was made in bad faith.”

Mr. Tumber worked as a labourer in the Plastics Department where the work was described as “essentially the lightest work available” by the Respondents. Mr. Tumber took a leave of absence from work for medical reasons and was eventually allowed to return to work in accordance with recommendations from an Occupational Therapist. He eventually went off work due to physical injuries and when he was ready to return to work on light duties, the Respondents advised Mr. Tumber that they could not accommodate a return to work with the information available to them at that time(even after Mr. Tumber provided the Respondents with an Occupational Fitness Assessment to determine his accommodation needs.) The Tribunal found that Mr. Tumber provided support for “what could amount to a preliminary case of discrimination on the basis of physical disability” based on the Moore criteria. It was not disputed that Mr. Tumber had a history of disability-related absences from his workplace and that he had physical difficulties performing his tasks in the Plastics Department. The burden shifted to the Respondents to justify their conduct when they required further medical confirmation of Mr. Tumber before he could return to work as a bona fide occupational requirement.

The Tribunal found that the Respondent’s requirements for further medical information was done in good faith and “rationally connected to the function being performed.” It has generally been accepted that in order to assess an employee’s fitness for work, medical information may be sought and if there are prior issues of fitness for work duties, an Assessment may be sought. The evidence was consistent with the Respondents having behaved in good faith in attempting to establish the abilities, limitations and necessary accommodations of Mr. Tumber. Additionally, since Mr. Tumber had complained in the past about the negative impact his regular duties were having on his physical health, it was reasonable that Flexiforce required Mr. Tumber to participate in an Assessment. Ultimately, the Tribunal granted the application to dismiss the complaint under s. 27(1)(c) of the Code in that there was no reasonable prospect of success.

ALBERTA

De La Cuesta v Horton CBI, Limited, 2020 AHRC 44
Date Issued: June 2, 2020
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The applicant, Ivan De Law Cuesta, alleged discrimination in employment on the ground of physical disability in contravention of section 7 of the Alberta Human Rights Act. In early November, the complainant began to experience symptoms of a progressive injury to both hands. He did not inform the respondent of these symptoms at that time. Each workday, the complainant signed daily attendance forms confirming that he was fully fit for his employment duties. The respondent later assigned the complainant a new supervisor, who was not aware of the applicant’s injury or symptoms as they progressed. The applicant did not inform his supervisor due to their poor relationship. In December, the complainant’s physician diagnosed him with a progressive condition in both hands and completed workers’ compensation forms for the complainant, which recommended modified duties. The complainant alleged that the superintendent accused him of lying about the injury and threatened to terminate his employment.

The Tribunal held that the information supported the argument that the respondent followed their own policy process when presented with medical information. The respondent immediately arranged for a medical assessment, which the complainant attended, and offered modified work duties until the date of his next medical assessment. The Tribunal further held that the information supported that the respondent was prepared to accommodate the complainant’s disability. The Director’s decision to dismiss the Complaint was upheld.

A.D. v Alberta Health Services, 2020 AHRC 49
Date Issued: June 16, 2020
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The complainant alleged that the respondent discriminated in the area of services on the grounds of mental disability and gender in contravention of section 4 of the Alberta Human Rights Act. The complainant identifies as a person who has a history of mental illness, including Bipolar Disorder and Post Traumatic Stress Disorder (PTSD). The Complaint involved the events surrounding the complainant’s admission for mental health treatment on two occasions at the Centennial Centre for Mental Health and Brain Injury in Ponoka. The complainant alleged that the way she was treated during each admission violated her rights and dignity as a woman and as a person with a disability. The complainant more specifically alleged that she was placed in a seclusion room and administered medication without her consent; she was not informed why the treatment was being administered; on each admission, she was not provided access to toilet facilities, including a commode, and as a result, urinated and defecated on the floor of the seclusion room; she was not provided with any toilet paper, and as a result had to use a blanket to clean herself; she was not provided with a bed or mattress, and as a result had to sleep on a concrete floor with only blankets; and on the second admission prior to being placed in the seclusion room, she was forcibly undressed by male staff and dressed in pyjamas. One of the male staff opened the front of her underwear and commented that she “had pubic hair.” The complainant also alleged that she had subsequently raised the above allegations with a number of staff members.

The Tribunal found that a comment by the respondent’s staff that is intended to humiliate or make fun of the complainant’s disability or had the effect of humiliating the complainant, as a person with a disability, can arguably form the basis of a human right violation. Further, the allegations put forward by the complainant, if true, amounted to serious affronts to the complainant’s dignity and self-worth and were not about mere “poor treatment” by the Centennial Centre. The Tribunal was not prepared to dismiss the Complaint on the basis that the complainant’s allegations amounted to simple dissatisfaction about the services she received as a patient of the respondent. Further, there was a reasonable basis in the information to proceed to a hearing. The Director’s decision to dismiss the Complaint was overturned.

QUEBEC

There are no relevant decisions for this month.

NWT

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.