HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES IN MAY & JUNE 2022
The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2022, Issue 1).
This issue of our digest covers a selection of decisions from the Human Rights Tribunals of British Colombia, Ontario, Alberta, and the Canadian Human Rights Tribunal that were rendered during the months of May and June 2022. 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: Georgi Garner (JD Candidate, 2023), Katherine Buchan (JD Candidate, 2024), Ariel Minott (JD Candidate, 2024), and Maleeha Anwar (JD Candidate, 2024).
Canadian Human Rights Tribunal
Lucyna Loboda v Canadian National Railway Company, 2022 CHRT 16
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Date issued: May 9, 2022
Lucyna Loboda, made a motion for a stay of proceedings due to health issues impacting her ability to participate in the hearing process. Loboda filed a complaint under section 7 of the Canadian Human Rights Act with the Human Rights Commission against the Respondent, Canadian National Railway (CN Rail), her former employer. Loboda, alleged discrimination due to her physical and mental disability, specifically stating her former employer failed to accommodate her disability when she returned to work after taking medical leave in 2015.
The Tribunal ordered Loboda to disclose all medical records and records regarding her disability coverage and return to work by November 4, 2021, however, on December 24, 2021, the Tribunal and Respondent were informed that Loboda was unable to continue with the proceedings due to health issues. In support of her motion for a stay of proceedings, Loboda provided a letter from her family physician stating that she should be excused from participating in the proceedings until November 1, 2022, due to health concerns. She would only disclose the medical evidence directly to the Tribunal due to concerns over privacy. CN Rail argued the proceedings should be conducted in an expedient manner, that further delays would negatively impact procedural fairness and that the medical records provided were insufficient to support a stay of proceedings.
Ultimately, the Tribunal granted a stay of proceedings until August 5, 2022. It held that if Ms. Loboda required an extension until November 2022, she would need to provide additional information from her doctor. The Tribunal further reasoned the medical evidence provided could have been more detailed; however, the medical evidence was sufficient to justify a delay in proceedings for four months. Ms. Loboda provided additional information in her reply and the Tribunal took notice of her decline in participation and the difficulties that the Tribunal had had in reaching her over time. The Tribunal also found that it was not clear what the impact of the delay in proceedings would be and whether it would negatively affect the ability of CN Rail to defend itself. The Tribunal rejected the respondent’s suggestion that Loboda could submit material during the stay, holding that she should be given time to recover before returning to the proceedings. Finally, the Tribunal indicated that they could not allow Loboda’s request to submit her medical documentation to the tribunal only. For reasons of procedural fairness, it would have to share the information with all parties. This case is important because it illustrates the challenges raised by the need to provide medical evidence of one’s disability and how that can have an impact on privacy.
Human Rights Tribunal of Alberta
Shkreli v Future Design Flooring Ltd., 2022 AHRC 50
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Date Issued: May 3, 2022
On August 18, 2016, Mr. Shkreli sustained an injury while at work and was granted temporary sick leave. On September 26, 2016, the Worker’s Compensation Board (WCB) deemed Mr. Shkreli fit to return to work on modified duties and informed the respondent of his restrictions, including fewer work hours with only light duties. On October 10, 2016, the respondent contacted Mr. Shkreli to inform him of a shift available. When he arrived, he discovered he was scheduled for a full day of work. Mr. Shkreli proceeded to work a full day on October 11, 2016, as he was worried about losing his job. Following this incident, Mr. Shkreli was assigned full workdays and regular duties. Mr. Shkreli contacted the company almost every workday to discuss his disability and request modified duties, however, the respondents were always “too busy.” Due to the lack of accommodations, Mr. Shkreli’s left arm became swollen and the pain in his fingers intensified significantly. On November 3, 2016, Mr. Shkreli was told by his medical specialist his arm had been damaged due to his untimely return to full-time duties. The WCB, therefore, resumed paying Mr. Shkreli full-wage benefits.
When the respondent heard of the WCB compensation, they claimed that as Mr. Shkreli was already receiving a wage replacement for October, they did not need to pay him for the work he performed in October. Mr. Shkreli also later found out, through WCB, that he was dismissed by the respondent. They offered no response to his inquiries as to the reason for his dismissal. Mr. Shkreli was on a closed work permit as a temporary foreign worker. He, therefore, had greater difficulty finding employment which he argued caused both financial and emotional struggles.
The Tribunal held that despite being provided with notice, the respondent did not choose to participate. The Tribunal found that there was no evidence suggesting the respondent made attempts to accommodate Mr. Shkreli. Further, the respondent did not communicate dismissal directly to the applicant, showing clear disregard for him. As a result, Mr. Shkreli and his family suffered financially and emotionally. The Tribunal reasoned that the failure to accommodate his disability delayed the recovery process which caused his physical disability to worsen. Further, the manner and timing of the termination caused Mr. Shkreli hardship and financial loss. The remedy awarded was the payment of lost wages for 43 weeks, covering the period between the end of the WCB benefits following his dismissal and when he was able to secure employment. He was also granted general damages for injury to dignity at $25,000.
Perez v Alberta Teachers’ Association, 2022 AHRC 57
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Date Issued: May 20, 2022
The complainant alleged the respondent, the Alberta Teachers’ Association (ATA), discriminated against him on the ground of mental disability, in contravention of section 9 of the Human Rights Act (“Act”) and that the Calgary Board of Education (CBE) discriminated against him contrary to sections 7, 9, and 10 of the Alberta Human Rights Act in terms of his mental disability.
The complainant is a teacher who holds an interim teaching certificate. To be a permanent teacher, his teaching was observed and evaluated. in Fall 2018, the complainant stated that he had experienced a panic attack during the observation of his work. As a result, he performed poorly and spoke afterwards to the principal regarding stress and anxiety. It was understood by the principal that this was a normal reaction to the evaluative process; and thus, concluded there was no accommodation required. The complainant did not seek further support from the ATA nor did he access the health resources provided. In 2019, the principal informed the complainant that she would not support his application for a permanent teaching certificate. The complainant requested a retry and later provided medical documentation supporting a disability requiring accommodation. The accommodation was provided.
The Director of the Commission (“Director”) determined the Complaint should be dismissed. They noted the complainant did not request accommodations during his evaluation period. Furthermore, the expression of anxiety during his observation period was concluded to be normal anxiety without correction. It stated the investigation was not inadequate as the complainant did not prove discriminatory behaviour. Ultimately, the Director stated the respondent supported the complainant, providing information and resources when requested. The Tribunal agreed with this decision. Ultimately, the Tribunal held there was insufficient information provided to prove the complainant was treated negatively due to his mental disability. There was no evidence supporting their failure to support him. Furthermore, there was no evidence to support his argument of retaliation.
In terms of the alleged failure to accommodate, the Tribunal found that reasonable accommodation in employment is required, and determined it had been fulfilled. The complainant had not come forward with concerns regarding his disability, and the respondents had no reason to conclude he had one. When they were made aware, the ATA and CBE acted appropriately by providing detailed information about accommodation and health benefits.
British Columbia Human Rights Tribunal
Evasin v I Heart Tattoos and others, 2022 BCHRT 60
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Date Issued: May 26, 2022
The complainant, Kendra Evasin, alleges that Kat Cleland and Reese Cleland harassed, bullied, and terminated her employment because of her mental disabilities, contrary to section 13 of the human Rights Code, RSBC 1996, c 210.. The complainant also alleged that after her termination, the respondents slandered, cyber-bullied, and threatened her. Respondents have brought a motion to dismiss for lack of timeliness and a reasonable prospect of success.
The complainant started working at the front desk of “I Heart Tattoos”, where she shadowed the respondents and eventually became a tattoo apprentice in December of 2017. She stated she was upfront regarding her physical and mental disabilities, disclosing that she was prone to depression and anxiety. The respondents recognized the complainant had a disability due to nerve damage prior to her employment that did not impact her ability to work as well as an unspecified mental disability.
I. The complainant alleged that on many instances at the workplace and during the convention, the respondents harassed her and made her feel as though she should not be there. The complainant believed the respondents sabotaged her by telling her there would be supplies for her to use at the convention, which was not the case. Rather, she had to buy her own supplies. After the convention, the respondents terminated her employment via text message, and the complainant alleged that post-termination, the respondents made statements on social media regarding her termination which made it difficult for her to secure alternate employment in the tattoo industry. The respondents denied this, stating they provided references on behalf of the complainant for two employers’ requests. The complaint was dismissed under ss. 27(1)(c) and (g) of the Code. First, the Tribunal found that the complaint was timely with respect to a number of the allegations made. With respect to the reasonable prospect of success, the Tribunal held that there was no reasonable prospect of success. The respondents’ awareness of the complainant’s assertion of mental disabilities was insufficient to connect her mental illness to her termination. Finally, the Tribunal found there was no evidence to support threatening or cyber-bullying, and there was no reasonable prospect that the Tribunal would find any of the respondents’ conduct could result in adverse impacts in which mental disability was a factor.
Leson v Kindred Construction, 2022 BCHRT 64
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Date Issued: May 3, 2022
The applicant, Tom Leson, alleged discrimination based on a physical and mental disability. His employer, Kindred Construction Ltd. (“Kindred”) brought a motion to dismiss arguing that there was no reasonable prospect of success and that the complaint was filed in bad faith ( per sections 27(1)(c) and 27(1)(e) of the British Columbia Human Rights Code, RSBC 1996, c 210 (“Code”).
Leson had been working at Kindred since 2017 as a Project Manager and suffered a stroke in April of 2018. In his complaint, he alleged he wanted to return to work, but Kindred blocked his return by requesting more medical information. After his stroke, Leson’s relatives sent letters to Kindred’s Director of Human Resources (Ms. Cupa) for a critical illness claim for benefits. Ultimately, his claims for critical illness and long-term disability benefits were denied due to a contractual exclusion for pre-existing disabilities.
By mid-June 2018, Leson considered returning from medical leave. He notified Ms. Cupa who responded he could not return without medical approval. After a telephone conversation and email exchanges over several months, Ms. Cupa detailed the steps required for his return to employment y. Due to rising tensions and frustrations, Ms. Cupa wrote an email stating she would no longer be working with him on the case, directing him to another contact person, and that the policy required a formal written statement from the Rehabilitation Specialist and General Practitioner approving his return to work. This conversation was what led Leson to believe he was being blocked from returning to work. On October 31, 2018, he resigned The Tribunal ultimately dismissed the complaint in favour of Kindred, concluding that it was reasonably certain that Kindred would persuade the tribunal that it was justified in collecting further medical information from Leson, including clear and consistent medical instructions. The medical information provided to Kindred was unclear, including contradictory medical opinions between Leson’s family doctor and a Vocational Rehabilitation Counsellor about his ability to return to work. The Tribunal also reasoned that the allegation of unfairness and refusal to accommodate him were speculations unproven by the evidence. Furthermore, the Tribunal stated that even if the respondent had breached the duty to accommodate through some unfairness, there were no materials presented that detailed what was unfair about Kindred’s conduct.
DL v BC Ministry of Children and Family Development and others (No. 5), 2022 BCHRT 66
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Date Issued: May 10, 2022
The parties to this action are the complainant, DL, the Ministry of Child and Family Development (Ministry), and NIL TU, O Child & Family Services (Society) as the respondents. The complainant alleged that the respondents failed to accommodate his needs contrary to section 8 of the British Columbia Human Rights Code (Code) during a mandatory meeting at their office.
After a call from the RCMP, DL, a parent with a physical disability, became involved with the Ministry through case planning for his daughter. DL requested the case planning happen in his home; however, the Social Worker required DL to come to the office. DL believed the Ministry failed to accommodate him when they required him to meet at the Society’s office. He alleged the Society’s office was not accessible for persons with disabilities, outlining the building lacked wheelchair accessibility, an accessible bathroom, and an accessible parking space.
In their response, the Ministry denied discriminating against DL, stating the chosen location at the Society’s office was to ensure the safety of the Social Worker based on DL’s prior behaviour. In addition, the Ministry confirmed the Society’s office contained accessible parking, a ramp next to the main entrance, and an accessible washroom with the necessary safety equipment.
Ultimately, the Tribunal dismissed the complaint. It found DL was unable to provide sufficient evidence of an adverse impact based on the Ministry’s requirement he attend an office meeting in person. It also decided there was insufficient evidence regarding the lack of accommodation practices for the Ministry’s office and services. First, the Tribunal found that DL was unclear on how his disability restricted his ability to meet away from his home. DL did not provide the Tribunal with specific evidence to explain his limitations. Next, in considering whether the DL experienced an adverse impact stemming from the decision to enforce the office meeting, the Tribunal concluded that DL was unable to show that he was denied any access to any services because of his disability. DL was able to attend the office meeting, which ended because of DL’s insistence on recording the meeting, not because of his disability. Third, the Tribunal found that the Ministry would not have known DL had a disability requiring specific accommodation because DL testified, he did not actually tell anybody how staying at home made his disability more manageable. Finally, regarding the accessibility of the office, it was found DL was able to walk through the parking lot to the lobby, meeting room, and washroom without issue.
Human Rights Tribunal of Ontario
There are no relevant decisions for this month.
British Columbia Human Rights Tribunal
Symonds v Vancouver Coastal Health Authority, 2022 BCHRT 82
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Date: June 28, 2022
Ms. Symonds, the Complainant, worked for Vancouver Coastal Health Authority [VCH]. Symonds had several physical disabilities which put her at risk of COVID-19. She argued the Respondent breached section 13 of the British Columbia Human Rights Code RSBC 1996, c 2010 [Code], discriminating against her due to her physical disability. VCH denied discrimination and filed a motion to dismiss the complaint on the grounds that there was no reasonable prospect of success and that the complaint did not further the purposes of the Code. This decision addresses the motion to dismiss.
During the rise of COVID-19, Symonds went to her supervisor and suggested plexiglass installation. Her supervisor refused to have the plexiglass installed, stating that Symonds did not interact with the public. When Symonds refuted this, her supervisor told her to wash her hands more often. Later, VCH implemented several protective measures, that did not include plexiglass. After discussing her concerns regarding the lack of safety protocol, and the need to go on medical leave, a supervisor made a comment stating that the stress was going to drive them both into retirement. Suggestions that she work from home were rejected using the reasoning that there were aspects of her work requiring in-person attendance. After going on indefinite medical leave, VCH had plexiglass installed around the reception workspace. Symonds was not informed.
The motion to dismiss the complaint for no reasonable prospect of success was denied. The Tribunal determined Symonds had established that VCH had not provided enough information to support the contention that allowing Symonds to work from home would constitute undue hardship for VCH. The Tribunal reasoned that VCH needed to demonstrate they had investigated alternative approaches and “could not have done anything else reasonable or practical to avoid negative impacts on the individual.”
The Tribunal also rejected the assertion that the complaint would not further the purposes of the Code. VCH argued the complaint was brought prematurely. Further, VCH posited that the fact that Symonds was able to access long-term disability was not consistent with her assertion that if given the appropriate accommodations she would have been able to continue working. The Tribunal rejected this argument, stating it was unclear that the fact that Symonds was unable to work during a certain period meant that proceeding with her complaint would not further the purpose of the Code. In conclusion, the application to dismiss the complaint was denied.
Ontario Human Rights Tribunal
Hesp v Queen’s University, 2022 HRTO 743
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Date Issued: June 10, 2022
The Complainant, Simon Hesp, filed an application alleging discrimination by the respondent, Queen’s University, during his employment on the ground of disability, contrary to the Human Rights Code. Hesp argued that the University failed to accommodate him, which resulted in “emotional distress, damage to his dignity, self-esteem, reputation as well as lost wages, pension, benefits, salary increase and other rights of his employment.” The University argued that they attempted to accommodate Mr. Hesp as demonstrated through two grievance settlement agreements and that the settlement agreements barred any future litigation. Ultimately Mr. Hesp’s application was dismissed.
Mr. Hesp was employed as a professor at Queen’s University. In 2004, he advised the University of his documented medical condition that made it difficult for him to perform some of his job duties. As a result, with the support of this union, Mr. hast and the University worked out a formal accommodation plan. However, Mr. Hesp was unhappy as he alleged parts of the agreement were “contrary to his limitations and restrictions as expressed by his treating physicians.” In April 2017, a new proposed accommodation plan was put forward which Mr. Hesp did not agree with for similar reasons. The University expressed uncertainty regarding Mr. Hesp’s ability to engage in course redesign. Finally, in 2019 the parties entered into another agreement with new terms. The University subsequently placed Mr. Hesp on medical leave and instructed him that if he still felt unable to return to a reduced teaching load at the end of his medical leave, he would have the option of applying for Long Term Disability (LTD) benefit.
The Tribunal ultimately concluded under section 45.1 of the Code, Mr. Hesp’s issues had been appropriately dealt with in the two Settlements dated January 19, 2017, and June 25, 2019. The Tribunal held that the arbitration hearing, part of the grievance process, is a proceeding satisfying the requirements for previous litigation under the Code. The Tribunal also held that once parties reach a full and final settlement of a grievance, such as the agreements, in this case, they may rely on these settlements to avoid future potential litigation. Attempting to re-litigate complaints settled in another appropriate forum would undermine the interests of fairness, justice, and expediency, and be an abuse of the Tribunal’s process.
Potok v York Region Condominium Corporation No. 865, 2022 HRTO 740
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Date Issued: June 9, 2022
The applicant, James Potok, alleged discrimination by the respondent, York Region Condominium Corporation, with regard to housing, services, goods, and facilities because of his disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). At issue was whether the Tribunal should dismiss the Application due to a delay or lack of a reasonable prospect of success all or in part. The Tribunal dismissed the Application due to a positive finding in both respects.
The applicant had a companion dog named “Gigi”. They moved in with the applicant’s father, the “Representative” who lived in a condominium unit owned by the respondent. The condominium had a “No Pets” policy. Once the pet was discovered, the property manager, “Purcel”, sent the Representative three notices to request disability-related accommodation within 14 days or remove the pet. In the third letter, Purcel asked for the dog to be permanently removed from the home. No response was given for any of the three notices. A month later, the applicant provided a doctor’s note stating he had a medical condition as well as a document from the Assistance Dogs of America stating Gigi was a registered support dog. In response, the respondent’s legal counsel asked that the applicant supply information from a qualified healthcare professional confirming the presence of a disability, and the need and services provided by the dog. The applicant did not respond. The applicant and Representative continued to live in the condominium with Gigi. On one occasion, the applicant was prevented from entering the building with Gigi. The applicant alleges he was forced out of the building due to a series of incidents.
In terms of delay, the Tribunal dismissed the case for untimeliness for several reasons. The application was filed on July 26, 2019, meaning that the allegations of discrimination had to occur between July 2018 and July 2019. They did not. Although delay may be disregarded in cases of good faith and lack of substantial prejudice, the applicant did not provide the Tribunal with any reasoning as to why the application was not timely. The only explanation provided by the Representative was that he was unaware of the limitation period, and he had other matters to attend to. The Tribunal also ruled that the discrimination claim on the timely matters had no reasonable prospect of success. The applicant had to provide evidence that the respondent discriminated against him due to his disability, not that there was general unfairness unrelated to the code. However, during the summary hearing, it was acknowledged Gigi did not receive training as a service dog to assist him with a disability-related need. Furthermore, Gigi is described as a “companion dog”. As Gigi was not a service dog assisting with a disability, the Tribunal concluded there was no reasonable prospect of establishing a Code violation.