HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES IN JULY & AUGUST 2021

The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2021, Issue 3).

This issue of our digest covers decisions from the Human Rights Tribunals of British ColombiaOntarioNova ScotiaNew BrunswickNewfoundlandPEIAlbertathe Northwest TerritoriesQuebec, and the Canadian Human Rights Tribunal that were rendered during the month of June 2021. 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: Roxana Jahani Aval (JD Candidate, 2022), Lucia Chiara Limanni (JD Candidate, 2023), and Nadia Shivratan (JD Candidate, 2022).

JULY 2021

BRITISH COLUMBIA

Osman v. Think Profit.com Inc. and another, 2021 BCHRT 89
Access Full Decision Here
Date Issued: July 6, 2021

The Complainant, Aleksandra Osman, alleged that the Respondents, her employer – Think Profit.com and Shawn Moore (owner of the platform), discriminated against her with respect to employment on the grounds of disability, contrary to section 13 of the Human Rights Code, RSBC 1996, c 210, as amended(“Code”). This section prohibits any person from refusing to employ or refusing to continue to employ a person on the basis of physical or mental disability. Ms. Osman claimed the Respondents terminated her position while she was on stress leave which was taken due to a harassment incident in the workplace.

The Respondents denied all discriminatory claims and applied to dismiss the complaint on the grounds of no reasonable prospect of success and that the claim was filed for improper motives or in bad faith pursuant to ss. 27(1) (c) and (e) of the Code. The Respondents believed that Ms. Osman quit on her own accord and upon the realization that this was untrue, offered to reinstate her.

Ms. Osman was hired as a Project Manager for Think Profit.com and worked there for approximately four months prior to the harassment incident in February 2019. This incident involved Mr. Moore persisting with questions about another co-worker’s resignation after Ms. Osman stated she was uncomfortable with providing specifics. The Complainant stated she was belittled and criticized in front of other employees and soon thereafter took a break from work. While on her break, the Complainant claimed she was contacted by Mr. Moore to meet with him, to which she was apprehensive. She claimed during her meeting with Mr. Moore, she was demeaned and called a “poisonous seed in the office”. 

Following this incident, the Complainant stated she felt stressed and did not go to work the following day. Ms. Osman e-mailed her employer informing him that she would not be coming to work due to “health reasons”. Another e-mail was sent by her husband describing Ms. Osman’s stress due to the incident with Mr. Moore. The Complainant visited her doctor who prescribed sedatives and wrote a note which stated that she is unable to work due to workplace-related and caused stress.

The Respondents replied to Ms. Osman’s letter in which they wished her a speedy recovery and expressed their shock in receiving a letter from her husband which implied harassment. Further, the Respondents stated that Ms. Osman’s refusal to communicate with them without a doctor’s note left them to assume that she had quit, and eventually provided her with final pay. Ms. Osman has claimed she did not resign and that the Respondents never asked for a doctor’s note, which she could have provided. Upon realization that Ms. Osman did not resign, the Respondents offered her job back, however, she did not accept.

The Tribunal found that Ms. Osman is a person with a disability which is supported by evidence of inability to work due to extreme stress and anxiety as a result of harassment in the workplace, impact of this stress and anxiety on her personal life, prescribed sedatives, and a medical not from her doctor. Though the Respondents disputed Ms. Osman’s disability by producing Instagram photographs displaying Ms. Osman’s vacation since February 2019 to which Ms. Osman claimed that they were taken without her knowledge and are dated either prior to or two months after the harassment incident. The Tribunal has held that these photographs do not add to the Respondents arguments.

Moreover, the Tribunal stated that Ms. Osman suffered an adverse impact under the Code as a result of her job loss. The Tribunal held that this complaint would proceed to a hearing due to Ms. Osman’s and Mr. Moore’s inconsistent allegations regarding the timing of the termination. The Complainant argued that she was terminated while on leave due to mental disability while the Respondents claimed they were unaware of her mental disability and without further communication assumed she resigned. A hearing will determine whether the Respondents reasonably interpreted Ms. Osman’s e-mail which noted her instability to attend work due to “health reasons” as a resignation. As a result, the Tribunal was unable to dismissed this complaint under s. 27(1) (c) the Code. Moreover, the Tribunal denied the application to dismiss this complaint under s. 27(1)(e) as the Respondents have not submitted evidence to infer bad faith or improper motives on behalf of Ms. Osman’s filing.

In conclusion, the Tribunal denied the Respondents request to dismiss this complaint without a hearing. A hearing was ordered. 

Demsky v. Vancouver Police Board and others, 2021 BCHRT 92
Access Full Decision Here
Date Issued: July 9, 2021

A complaint was filed by Monica Demsky against the Respondents – Vancouver Police Board, Constable Scot Ramsay, and Constable Dennis, after an incident occurred in January 2019. Ms. Demsky alleged the two police officers targeted and mistreated her due to her physical and mental disabilities pursuant to section 8 of the Human Rights Code, RSBC 1996, c 210, as amended(“Code”). This section states that a person must not be denied any accommodation, service, or facility available to the public, and must not discriminate based on a person’s need for accommodations.

The Respondents denied the allegations of discrimination against Ms. Demsky and have applied to dismiss the complaint on the grounds of no reasonable prospect of success pursuant to s. 27(1)(c) of the Code. Further, the Respondents asked that if the complaint is unable to be dismissed, the Tribunal would dismiss the complaint against the individual police officers as proceeding with this part of the complaint would not further the purposes of the Code pursuant to s. 27(d)(ii).

Ms. Demsky lives with physical disabilities and as a result, uses a mobility scooter for transportation. She claimed she was using her mobility scooter following a recent concussion when she suddenly felt dizzy and nauseous. Ms. Demsky stopped her scooter to cradle her head and after a few minutes was going to make her way home but was stopped by two men. These men asked for her ID and told her they were police; however, they were not in uniform. The men informed Ms. Demsky that she “had no control over her dog and were going to take him away”. The Responded argued that Ms. Demsky’s dog is not a certified service dog under legislation and Ms. Demsky has not provided evidence to suggest otherwise. The Complainant claimed the police officers did not provide assistance and thought she was homeless, drunk, and on drugs.

The Respondent filed an affidavit of Constable Ramsay which suggested discrepancies amongst allegations. Constable Ramsay claimed he was on duty with Constable So and were returning to their car when they noticed a small dog unattended and without a leash. He mentioned there was no one on a mobility scooter and took control of the dog and tried to find the owner. He claimed that shortly after Ms. Demsky arrived, driving quickly on her motorized scooter and stated the dog was hers. Once she tried to drive away, Constable Ramsay claimed he identified himself and asked her ID. Further, he claimed that the Complainant was growing angry after she refused to provide ID in which she demanded his badge number, which he claimed to have provided. Constable Ramsay claimed Ms. Demsky accused him and the police of discriminating against persons with disabilities. He stated that he did not think she was homeless, drunk, or on drugs and claimed Ms. Demsky did not state she was unwell.

The Tribunal has found that although there are discrepancies between the accounts of the interaction between Ms. Demsky and the two police officers, there is no credibility issue that requires this case to proceed to a hearing. The Tribunal held that Ms. Demsky is a person with a disability and that her claim of an adverse impact from the interaction goes beyond conjecture. However, the Tribunal held that even if Ms. Demsky could demonstrate that she was adversely impacted, there is no evidence to demonstrate her disability was a factor in this incident. Thus, the Tribunal has dismissed the complaint under section 27(1)(c) Code and did not consider the Respondent’s submissions pursuant to s. s. 27(d)(ii) of the Code.

Miguel v. City of Vancouver and others, 2021 BCHRT 93
Access Full Decision Here
Date Issued: July 9, 2021

Lourdes Miguel alleged that the City of Vancouver (“City”), Sarah Hicks, and Ruth Tsikayi (together, theRespondents) discriminated against her in employment on the grounds of age and mental and physical disability contrary to section 13 of the Human Rights Code, RSBC 1996, c 210, as amended(“Code”). Ms. Miguel alleged that the Respondents pressured her to provide her retirement date, excluded her from a staff meeting, denied her claim for paid sick leave benefits, and failed to accommodate her disability when she was ready to return to work. It should be noted that in her complaint, Ms. Miguel said she was 68 years of age and had been diagnosed with situational depression, anxiety disorder with panic attacks, and hypertension. The Respondents deny discriminating and applied to dismiss the complaint under section 27(1)(b), (c), and (d)(ii) of the Code.

Ms. Hicks was Ms. Miguel’s supervisor. Ms. Hicks’ asked Ms. Miguel to provide a specific retirement date after Ms. Miguel informed her that she planned to retire. The Tribunal stated that since Ms. Miguel did not inform the Respondents that she had changed her mind about retiring, they do not accept that Ms. Hicks following up to ask Ms. Miguel to provide a specific retirement date is an adverse impact for the purposes of the Code. Thus, this part of Ms. Miguel’s complaint was dismissed. In regards to being excluded from a staff meeting, the Tribunal accepted for the purposes of this application that being excluded from a staff meeting can be an adverse impact. However, Ms. Miguel did not allege a connection between this incident and her age and/or disability and the evidence did not suggest that there may be a connection. Thus, this part of her complaint was dismissed.

Ms. Miguel’s complaint regarding her request for medical leave was based on her disability, not her age. Given the evidence, the Tribunal was not persuaded that Ms. Miguel’s allegation that her request for medical leave was connected to her disability and had no reasonable prospect of success. Thus, Ms. Miguel’s complaint based on age was dismissed under s. 27(1)(c). The allegations that the Respondents excluded Ms. Miguel from a staff meeting, and pressured her to provide a retirement date for reasons related to her disability were also dismissed under s. 27(1)(c). The complaint against Ms. Hicks and Ms. Tsikayi was dismissed under s. 27(1)(d)(ii). The part of Ms. Miguel’s complaint based on disability that alleged the City denied her claim for paid sick leave benefits and failed to accommodate her disability when she was ready to return to work will proceed to a hearing. The Tribunal’s decision to allow the complaint to proceed only means the Respondents have not provided sufficient evidence at this stage to justifying dismissing the entire complaint without a hearing. It does not mean Ms. Miguel will necessarily be successful at a hearing. The Tribunal encouraged the parties to take advantage of the Tribunal’s mediation services to try to resolve this matter by mutual agreement.

Hickling v. Competition Glass Company Ltd., 2021 BCHRT 95
Access Full Decision Here
Date Issued: July 14, 2021

Colin Hickling, the Complainant, worked for Competition Glass Company Ltd. as a shipper/receiver, a position that required him to perform physical labour. In October 2019 Mr. Hickling advised Competition Glass that he had carpal tunnel syndrome and could not perform his full duties. His employment ended shortly after. Mr. Hickling filed a complaint alleging that Competition Glass terminated his employment because of a physical disability, contrary to section 13 of the Human Rights Code, RSBC 1996, c 210, as amended (“Code”).

Competition Glass denies discriminating against Mr. Hickling. It says Mr. Hickling informed it that he was unable to perform his duties and needed to take some time off, then demanded it terminate his employment and pay him severance. Competition Glass applied to dismiss the complaint on the basis that the facts alleged, if proved, would not be discrimination under the Code, that there was no reasonable prospect the complaint would succeed at a hearing, and the complaint was made in bad faith, under section 27(1)(b), (c) and (e) of the Code.

Mr. Hickling’s allegation that he has a physical disability, and that Competition Glass dismissed him on the spot when he told them about the disability and that he needed to temporarily lighten his lifting load until his issues were fixed were found to be a possible contravention of the Code. Thus, the Tribunal denied the application to dismiss under section 27(1)(b).

Further, Competition Glass’s application to dismiss the complaint under section 27(1)(c) of the Code was denied. The Tribunal held that Competition Glass’s assertion that it had no opportunity to accommodate Mr. Hickling depends on its version of the facts around Mr. Hickling’s termination, and the reasons for it will prevail at a hearing since this was not an issue that could be determined on this application.

The Tribunal has discretion under section 27(1)(e) of the Code to dismiss a complaint that it finds was filed for improper motives or in bad faith. The Tribunal held that the fact that Mr. Hickling did not contact WorkSafeBC about making his claim until January 2020 does not indicate that he filed his human rights complaint in bad faith. Thus, Competition Glass’s application under section 27(1)(e) of the Code was denied. The complaint will now proceed to a hearing.

Owner v. The Owners, Strata Plan No. LMS 1886 and others, 2021 BCHRT 97
Access Full Decision Here
Date Issued: July 23, 2021

The Owner, the Complainant, owns and lives in a condominium within Strata Plan No. LMS 1886 that is managed by NAI Goddard and Smith (“NAI”). Ms. Chappell worked as the agent for the building. The Owner stated that she has a physical disability that causes her chronic pain, stiffness, and significant difficulty with mobility. As a result, she sought accommodation in the form of access to two adjacent parking stalls to facilitate her parking and accessing her motor vehicle. After informing the Respondents of this needed accommodation, the Respondents replied to the Owner saying that it would have no difficulty if two owners could come to a mutual agreement to switch parking spaces, but as that had not been the case, it would be unfair to bump another owner out of their parking stall. They advised, however, that they would put the Owner at the top of the list for the one accessible parking stall the Strata had, and they did so. The Owner later filed this complaint stating that her lack of access to appropriate parking exacerbated her disability, and that the Respondents failed to reasonably accommodate her when these facts were brought to their attention. She stated that this constituted discrimination on the basis of physical disability contrary to section 8 of the Human Rights Code, RSBC 1996, c 210, as amended(“Code”), and brings her complaint against the Owners, Strata Plan No. LMS 1886, NAI, and Ms. Chappell.

Several months after filing this complaint, the Owner began using the additional parking spot and the Respondents raised no objection to the Owner’s use of the two stalls in this manner. In the meantime, the Owner remained at the top of the list for the accessible parking stall should it become available.  One month later, the parties engaged in informal settlement discussions, which resulted in a settlement which the Owner did not sign but rather then sought to reopen the negotiations. The Respondents later sent a with prejudice settlement offer to the Owner, through its counsel (“Settlement Offer”) which would allow the Owner to continue to use both parking spots and included payment of $10,000 to the Owner to address her claim for injury to dignity, feelings, and self-respect. The Owner rejected the Settlement Offer. The Respondents advised the Owner that the Settlement Offer remained open for her acceptance at any time even if its application to dismiss the complaint were granted.

The Tribunal was satisfied that the non-monetary component of the Settlement Offer was reasonable in the circumstances and that it was consistent with both the remedies that the Owner sought in her complaint and with what the Tribunal might award were the Owner to succeed in her complaint at a hearing. It was held that the situation that gave rise to the complaint had been remedied through the Owner having had continuous use of the parking stall since around February 2018, and any injury to dignity, feelings and self-respect was reasonably addressed through the $10,000 monetary sum. Thus, the Tribunal was persuaded that it would not serve the purposes of the Code to proceed with this complaint in the circumstances.

Rogers v. Canadian Northern Shield Insurance Company and another, 2021 BCHRT 98
Access Full Decision Here
Date Issued: July 29, 2021

Lorelei Rogers notified Canadian Northern Shield, through Interior Savings, of some changes to her residence, including that she was allowed to grow marijuana for medical purposes and was doing so on her property. Canadian Northern Shield declined to renew her home insurance policy. Ms. Rogers claims that Canadian Northern Shield and Interior Savings discriminated against her in the provision of a service on the basis of mental disability, contrary to section 8 of the Human Rights Code, RSBC 1996, c 210, as amended (“Code”).

Canadian Northern Shield denied discriminating, stating that its decision not to renew her policy was not related to any disability. It applied to the Tribunal to dismiss the complaint against it on the basis that it has no reasonable prospect of success, under section 27(1)(c) of the Code. Interior Savings also denied discriminating, stating it used third party suppliers to provide insurance coverage to its clients, and has no ability to approve or decline coverage. It applied to the Tribunal to dismiss the complaint against it on the basis that proceeding would not further the purposes of the Code, under section 27(1)(d)(ii).

The Tribunal found that the evidence on this application took Ms. Rogers’s claim of a connection between her disability and the adverse effect of being unable to renew her home insurance coverage beyond conjecture. As a result, the Tribunal did not find that the complaint has no reasonable prospect of success. The complaint will proceed to a hearing. It was further stated by the Tribunal that this decision was not a comment on how likely Ms. Rogers is to succeed with her complaint. The onus would be on Ms. Rogers to prove a connection between a disability and an adverse impact on a balance of probabilities. If she was able to do that, it would be open to Canadian Northern Shield to argue that its conduct was based on a bona fide reasonable justification, and it would, of course, be open to Ms. Rogers to make arguments in response.

Additionally, it was held that Interior Savings did not provide enough information for the Tribunal to dismiss the complaint against it under section 27(1)(d)(ii), and had not applied to dismiss it under any other section. Interior Savings application to dismiss the complaint against it was denied.

AUGUST 2021

FEDERAL

Hugie v T-Lane Transportation and Logistics, 2021 CHRT 27
Access Full Decision Here
Date Issued: August 19th, 2021

The Complainant, Ms. Karen Hugie (the “Complainant”), is a 62-year-old woman from Vancouver, British Columbia who works as a Stenographer. The Complainant worked for the Respondent T-Lane (the “Respondent”), as an Operations Consultant since 2015, but had been in the industry for over 21 years. The Complainant was terminated from her position after returning from a 12-week medical leave. The Respondent acknowledged that the Complainant has medical conditions that constitute a disability.

The Complainant alleges that she experienced adverse treatment when her employment was terminated by her former employer, the Respondent, T-Lane (the “Respondent”), due to her age and disability, contrary to s. 7 of the Canadian Human Rights Act (the “Act”). Section 25 of the Act defines disability as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.” The Respondent claims that the Complainant’s dismissal had nothing to do with her age or disability –that instead it was “purely financial”.

The legal issue for the Tribunal to consider was whether the Complainant’s employment was terminated by the Respondent due to her disability under s. 7 of the Act. A complainant bears the responsibility of proving their claim on a balance of probabilities by providing evidence that substantiates their claim. The Complainant must also establish that the respondent’s conduct adversely impacted them. The Complainant must establish that there was a link between the adverse impact and the discrimination claim of age and disability. Once a link is established, the Tribunal must determine “whether there is a link or nexus between the prohibited grounds of discrimination alleged” by the Complainant and Respondent.

The Complainant presented extensive documentation outlining her medical conditions. The Tribunal noted that the testimony provided by the Complainant regarding her medical conditions was “precise, detailed and convincing. She was able to describe her diagnosis, the various incidents that occurred and that are related to her health…” The Tribunal noted that the definition of disability outlined in s. 25 of the Act is broad, relying on Audet v Canadian National Railway, 2005 CHRT 25 which established that disability is as “any physical or mental impairment that results in a functional limitation, or that is associated with a perception of impairment.”

The Tribunal found that the Complainant’s evidence was compelling and satisfied the conclusion that the Complainant lived with a physical disability during the time of the alleged discrimination. The Tribunal found that the Complainant’s disability caused significant functional limitations in her life and work.

The Tribunal analyzed the legal framework regarding the adverse discrimination claim, noting that once the complainant established a prima facie case of discrimination, the burden of proof shifts to the respondents to establish that the complainant’s termination was not due to her disability. The Tribunal found that there was a link between the Complainant’s disability and the termination of her employment. The Tribunal found, however, that the Complainant’s claim regarding age is not supported with sufficient evidence, and therefore there is no link between the termination and the Complainant’s age. The Tribunal acknowledged that the Respondent’s financial situation was a factor in the termination of her employment, but that it was not the sole factor.

The Respondent’s did not claim a bona fide occupational requirement under paragraph 15(1)(a) and ss. 15(2), stating “any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment [was] . . . based on a bona fide occupational requirement.” The Respondent’s did not establish that the Complainant’s termination was because of undue hardship. Instead, the Respondent’s attempted to establish that there was no link between the Complainant’s disability and the termination of her employment.

The Complainant’s evidence led the Tribunal to believe that the arrival of the Complainant’s replacement was no coincidence, as her replacement arrived days before she returned from her medical leave. The Complainant’s replacement made about $20,000 less than her, and the timing of her arrival is significant. The evidence showed that the Respondent’s prepped for the Complainant’s departure, going back 15 weeks. The evidence also displayed that a plan to terminate the Complainant was made prior to her return and the Respondent’s plan was to terminate her the morning she returned but was delayed due to the firing manager being away that morning.

In response to the claimed discrimination on the grounds of disability, the Respondent’s claimed that the Complainant did not provide a request for accommodations, as they were unaware of her limitations since she did not provide any medical documentation or notes from her doctor. The Tribunal found that the Respondent’s evidence on the request for accommodations was irrelevant in the circumstances, as the Complainant was terminated and therefore an accommodation was no longer possible. The Tribunal ultimately concluded that the Respondents were unable to justify the termination under s. 15 of the Act.

The Tribunal held that the Complainant’s claim was substantiated in part, and ordered that the Respondent’s compensate the Complainant for five months of lost wages under ss. 53(2)(c) of the Act, compensation for pain and summering in the amount of $12,000 under ss. 53(2)(e) of the Act and special compensation in the amount of $12,000 under ss. 53(3) of the Act.

ALBERTA

Szeles v Costco Wholesale Canada Ltd, 2021 AHRC 154
Access Full Decision Here
Date Issued: August 16th, 2021

Mr. Peter Szeles (the “Complainant”), alleges that he was discriminated against by Costco Wholesale Canada Ltd. (the “Respondent”) in the area of goods, services and accommodation due to the Complainant’s physical disability contrary to s. 4 of the Alberta Human Rights Act (the “Act”).

On November 17th, 2021, the Complainant attended one of the Respondent’s stores in Edmonton, Alberta. He was told by a Respondent’s employee that he is required to wear a mask when visiting the store, as outlined in the Respondent’s store policy. This policy was implemented because of the COVID-19 pandemic. The Complainant alleges that his disability prevents him from wearing a face mask. The Respondent’s employee provided an alternative to the Complainant, offering that he wear a face shield instead of a mask. The Complainant refused and an altercation ensured. The Complainant was removed from the store by police.

The Complainant alleges that the Respondent’s refusal to allow the Complainant into the store without wearing a facemask infringes on his rights under the Act. The Complainant alleges that the alternative provided by the Respondent’s employee was unreasonable, as face shields do not prevent the transmission of COVID-19. The Complainant also states that solely using a face shield differentiated him from others in the store, singling him out as a person with a disability. The Complainant also alleges that government mandates regarding masks recognize the need for exemption from the rule, and that the Respondent’s policy contradicts government mandates.

The Respondent’s argue that the policy was implemented to protect all individuals that enter the store, including employees and customers. As a result, the policy provides multiple types of face coverings to abide by the government mandates. The Respondent also argued that if an individual cannot abide by the policy for any reason, alternative online and delivery options were available. The Respondent argued that the severity of the pandemic justifies the mask policy and adequate accommodations and alternatives were offered for this reason.

The Human Rights Officer (the “Investigator”) reviewed the allegations and recommended that the case be dismissed. The Director accepted the recommendation and dismissed the claim.

The Complainant filed a Request for Review of the Director’s decision arguing that denying access to an establishment due to the Complainant’s disability with few alternatives to face masks is not a reasonable accommodation of his disability-related needs. The Complainant’s Request for Review argued that on-line shopping and deliveries do not provide an equivalent service to in-store shopping.

The Tribunal upheld the Director’s dismissal based on the test under s. 26 of the Act. In carrying out the Tribunal’s review function, the legal question is whether there is a reasonable basis in the evidence for proceeding to a hearing before a Tribunal. The Tribunal noted that the threshold was low and the Tribunal is “given wide latitude” in conducting the review.

The Tribunal found that there is no question as to the policy’s adverse impact on people with certain disabilities. The use of face masks and the policy, “on its face, limited the rights of persons who could not wear a face mask because of a disability.” However, this does not conclude the review, as the Act and jurisprudence provides limitations to the right to be free from discrimination, including “a) the limitation or rule is instituted for valid reasons; b) it is instituted in the good faith belief that it is necessary; and c) it is impossible to accommodate persons who may be adversely affected, without incurring undue hardship.”

To satisfy the last portion of the test for review, the Respondent must show that they have considered the least intrusive options and “made every effort to accommodate the Complainant’s disability-related needs, short of undue hardship.” The Tribunal noted the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 3 SCR 3 (Meiorin) where the court found that a Respondent may justify a rule or standard which is discriminatory on its face by showing:

“(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is 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.”

The Tribunal specifically commented on the third factor of the Meiorin test, noting that the Respondent’s must develop policy regarding face coverings were made to protect all employees and customers while assuring that people with disabilities were accommodated by providing multiple alternatives. The Tribunal also noted that the alternatives to the face covering policy should not amount to undue hardship to the Respondent. The Tribunal rejected the Complainant’s claim that face shields cannot protect from the transmission of COVID-19, claiming there is no basis for the Complainant’s claim regarding face shields. However, the Tribunal noted that the Complainant was correct in asserting that face shields are not an adequate alternative to face masks, but that does not mean that the Complainant may simply enter the store anyways. The Tribunal accepted the Respondent’s claim that the policy was not made in bad faith, but instead to protect employees and customers.

The Request for Review was dismissed.

ONTARIO

Krywyj v. Steele, 2021 HRTO 674
Access Full Decision Here
Date Issued: August 8th, 2021

The Complainant, Ms. Olga Krywyj (the “Complainant”), had a short-term rental agreement with the Respondent, Ms. Annette Steele (the “Respondent”). The rented room was to be fully furnished on the upper floor of the home. Other tenants rented rooms on the property, where the Respondent worked as the landlord for all tenants, including the Complainant. The Respondent’s son was the property manager for the property and lived in a room on the lower level of the home with two other tenants. The Complainant’s room was on the upper level and had a private outdoor patio that can be accessed through her room. The property had another outdoor patio for the tenants to share.

The Applicant alleges that the Respondent and her son refused to accommodate her disability-related needs. The Applicant lives with multiple disabilities, including asthma, allergies, COPD and multiple chemical sensitivities. The Applicant requested several accommodations, including that the other tenants smoke away from the Applicant’s space, and that the tenants keep a fragrance and chemical-free space in common areas of the house. The Applicant alleges that the Respondent failed to accommodate her and subsequently reprised against her when she was evicted.  

The Applicant alleges that she experienced harassment by the Respondent after requesting accommodations for her disabilities. The Applicant alleges that the Respondent took over management from her son and tried to harass the Applicant into leaving the property and lease. The Respondent’s son moved out of the unit and was no longer the property manager. The Complainant alleges that the Respondent and others entered her unit, vandalized her room, used toxic chemicals in the unit and put out ashtrays on her patio.

Section 2(1) of the Ontario Human Rights Code (the “Code”) states that every person has the right to equal treatment with respect to the “occupancy of accommodation without discrimination on the basis of a number of Code grounds, including disability.” Section 2(2) of the Codeprotects against harassment by a landlord or agent of the landlord including on the ground of disability. Section 21(1) of the Code ensures that Tenants are provided equal treatment to the occupancy of residential housing by a Landlord. Section 21(1) of the Code notes an exception to the landlord-tenant relationship, stating that if the alleged discrimination is done by a person a landlord or landlord agent who lives in a property with the tenant, and shares a kitchen or a bathroom with the tenant, then the landlord-tenant relationship does not exist and the alleged discrimination cannot be made out under the Code.

The Tribunal noted that exception under s. 21(1) of the Code does not apply here, and the possibility of discrimination is not overridden by this technicality of law regarding the Respondent and her son’s tenancy.

The Tribunal held that the allegations of discrimination and harassment based on disability do not fall under the threshold of dismissal due to no reasonable prospect of success. The case will be determined based on its evidentiary record.

The Tribunal dismissed the allegations of discrimination based on sex, age and creed due to no reasonable prospect of success.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s