Law, Disability & Social Change

The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2022, Issue 2).

This issue of our digest covers a selection of decisions from the Human Rights Tribunals of British Columbia, Ontario, Alberta, and the North West Territories that were rendered during the month of July 2022. It also includes a selection of decisions from the Human Rights Tribunals of British Columbia, Ontario, and Alberta that were rendered during the month of August 2022. 

This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project: Georgi Gardner (JD Candidate, 2023), Katharine Buchan (JD Candidate, 2024), Ariel Minott (JD Candidate, 2024), and Maleeha Anwar (JD Candidate, 2024).

July 2022

British Columbia Human Rights Tribunal

Susoeff v Host International of Canada Ltd., 2022 BCHRT 85
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Date of Decision: July 13, 2022

The Complainant, Calandra Susoeff, filed an employment discrimination complaint under section 13 of the British Columbia Human Rights Code RSBC 1996, c 210 [Code], on the grounds of mental disability and  sex. Host has applied to have the complaint dismissed under section 27(1)(a), (c), (d)(ii), (f) and (g) of the Code. 

Susoeff was employed as a server at a restaurant operated by the respondent, Host International [Host]. The complainant went on a medical leave of absence at the end of May 2017. Host repeatedly made requests for medical information. Over the course of her leave, the Complainant provided Host with 10 medical notes. Host’s rationale was that they were not satisfied with the medical information provided. The Complainant stated she felt harassed and threatened by Host’s continual requests. Host ultimately fired the Complainant on May 9, 2018. 

Overall, the Tribunal found the Complainants’ termination on the basis of her mental disability amounted to a possible contravention of the Code, that there was a reasonable prospect of success, and that a previously filed, but withdrawn, grievance did not adequately resolve the issue. 

The Tribunal concluded there was an arguable contravention of the Code presented by the Complainant, and that there was a reasonable prospect of success in proving discrimination. It reasoned the Complainant has a characteristic protected by the Code (a mental disability) and that she was adversely treated while employed due to her protected characteristic (being fired due to her disability and its effect on her work). 

The Tribunal had to analyze possible defences by Host to comprehensively analyze the issue of reasonable prospect of success. It first reviewed a frustration argument advanced by Host: that the Complainant’s employment contract had been frustrated because her medical condition made it impossible to predict a return to work. According to De Bianci v Dunkley Lumber, 2020 BCHRT 56, the doctrine of frustration can be a basis for an employee to be fired if it is established they would be unable to fulfill occupational requirements. Terms of the employment contract, nature of the employment or illness, past employment, and length of employment in the absence of the illness must all be analyzed. The Tribunal determined Host provided no analysis or evidence regarding these factors, and thus frustration was not established. Furthermore, Host did not explain the hardship it experienced from the Complainant’s absence. The Tribunal also analyzed a second defense raised by Host: that the Complainant caused a breakdown in the accommodation process through noncompliance. This was rejected due to extensive evidence of the Complainant’s compliance with repeated requests for further medical evidence.

Finally, the Tribunal determined that the complaint had not been dealt with in a previous proceeding. Although the Complainant filed a grievance with the Union regarding her termination, it was ultimately withdrawn before reaching a conclusion. 

Human Rights Tribunal of Ontario

Smith v Kingston Interval House, 2022 HRTO 864
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Date of Decision: July 7, 2022

The Applicant, Heaven Smith, alleged the Respondent, Kingston Interval House, discriminated against her due to her disability when providing services, contrary to the Human Rights Code, R.S.O 1990, c.H.19 . The Applicant filed the Application on December 5, 2019, alleging the last incident of discrimination occurred in February 2018.  

The Applicant is disabled and was in an abusive living situation until April 18, 2018. In May 2018, she applied for accommodation in a shelter operated by the Respondent. Her request for shelter was denied. The Applicant submitted the Respondent could not and did not accommodate her. She believes this inability to accommodate her denied her the right to safety, services, and quality of life because of her disability. 

The Respondent argued the Application was untimely because there was no incident of discrimination from December 2018 onward – one year prior to filing the Application – and that they were unaware of any incident of discrimination in February 2018. They alleged the last known communication between the Applicant and Respondent occurred with a former employee who no longer worked for the Respondent. Email communications between these two were no longer available. The Respondent further alleged that being disabled, not knowing legal options, and/or not finding good legal support were not a justification for a delay in filing a claim of discrimination before the Tribunal. 

The Tribunal was required to determine if the Application should be dismissed because of a delay incurred in good faith. To establish that a delay was occurred in good faith under section 34(2), the Applicant needed to provide some reasonable explanation for the delay (Corrigan v Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.)

First, the Applicant was unable to provide evidence relating to her medical condition during 2018 and 2019. While she testified that during that time period, she was pursuing other legal options, the Tribunal recognized this was not a good faith explanation for a delay in filing her Application (Hollett v Unifor, 2015 HRTO 29, at paragraph 24). 

Second, the Applicant failed to provide any evidence to support her state of mind or the potential capacity to pursue legal proceedings between May 2018 – December 2019. However, he Tribunal found the Applicant’s ability to excel in higher education during 2018 reflected the Applicant’s sufficient capacity to pursue legal rights before the Tribunal. 

Third, the Applicant alleged she was not aware of the option to file an HRTO application until 2019. However, the Tribunal held that ignorance of the law is not an excuse in matters relating to a delay in asserting one’s rights (Webster v Webster Estate 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (Ont. S.C.J.) (QL To successfully argue delay, the Applicant would have had to have  established she had no reason to make inquiries about her rights (Imrie-Howlett v Peel District School Board, 2009 HRTO 1339 at para 10) but she was unable to do so.  

As such, the Tribunal found the allegations of discrimination were untimely and therefore outside the Tribunal’s jurisdiction. The Application was dismissed. 

McNeilly v Ontario (Attorney General), 2022 HRTO 931
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Date of Decision: July 26, 2022

The Complainant, Michelle McNeilly, alleged employment discrimination based on colour, disability, and age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19 (“Code”). The Complainant specifically alleged that there was early termination of her employment with the Respondent. The Complainant was employed by the Respondent from October 10, 2019, until March 6, 2020. 

At issue was whether the application was within the jurisdiction of the Tribunal. The Tribunal sent a notice of motion to dismiss the application and, after reviewing submissions the Tribunal dismissed the application. 

For an application to proceed, it must fall within the Tribunal’s jurisdiction which is limited to enforcing the Code. The Code only prohibits actions that discriminate against people based on enumerated ground(s). Accordingly, the Tribunal is not allowed to address general allegations of unfair treatment. The Tribunal reasoned the Code does not assume all adverse treatment is discriminatory as everyone will at some point identify with at least one Code-enumerated ground, and most will suffer some form of adverse treatment whether connected to the Code or not. Therefore, to fall within the Tribunal’s jurisdiction, the Complainant must demonstrate a direct link between an enumerated ground and the actions of the Respondent, as well as an explanation of why these actions are discriminatory.

In this application, the Complainant cited disability as one of the enumerated grounds linked to her discrimination. However, it was not clear in the application whether she lives with a disability. She indicated that in her training that she advised the Respondent that she is a visual learner, but no disability was identified, nor did she exhibit a need for or request specific accommodation. In the application, she indicated she did not have any needs related to her disability or that she asked the Respondent to meet any disability-related needs. There was no factual material relating to colour and age as grounds of discrimination.

Therefore, the Tribunal held the Complainant failed to provide factual basis of a link between her asserted grounds of colour, disability, and age and the alleged early termination of contract. Thus, the Tribunal dismissed to the application for being outside of its jurisdiction. 

Alberta Human Rights Commission

Wong v Sobeys Capital Incorporated, 2022 AHRC 82
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Date of Decision: July 20, 2022

The Complainant, Ramona Wong, requested that the Tribunal review a previous decision to dismiss her human rights complaint under section 26 of the  Alberta Human Rights Act, RSA 2000, c A-25.5, (Act). Her complaint alleges the Respondent and her past employer, Sobeys Capital Incorporated, discriminated against her during her employment on the grounds of mental and physical disability in contravention of  section 7 of the Act. At issue in this proceeding was whether there was a reasonable basis in the evidence to proceed to a hearing.  

The Complainant worked as a part-time cashier for the Respondent. She stated she has a mental disability which compels her to check and double check things repeatedly. She claimed the Respondent and her co-workers were aware of her disability. The Complainant alleges she was terminated because of behaviour caused by her disability. The Respondent denies discriminating against the Complainant and states that after completing an investigation, it was determined she stole a chocolate bar from the store and was terminated because of the theft. The Respondent denied telling the Complainant her behaviour was annoying her co-workers but indicated that a supervisor did speak to her about her behaviour at work, including engaging in needless confrontations with staff and customers. 

It was determined that the material provided by the Complainant reasonably demonstrated a link between adverse treatment by her employer and the Complainant’s mental disability. It specifically stated that the Complainant could potentially prove her failure to follow the manager’s instructions or her interactions with co-workers or customers was due to her mental disability. 

Although some of the alleged discriminatory acts occurred outside of the statutory one-year timeframe, the information provided supported that the Complainant continuously experienced potentially discriminatory acts until her termination. This could be utilized to prove a continuing contravention. 

The Tribunal made no determination regarding the basis for termination, leaving the question as to whether the Complainant was terminated because of her mental disability to further proceedings. F In addition, it left the allegation that the Complainant experienced discrimination by not being treated in the same way her co-workers for future resolution. 

Ultimately, the original decision to dismiss the complaint was reversed, and the complaint was referred for future determination at the Tribunal. 

Northwest Territories Human Rights Adjudication Panel

Portman v Midwest Property Management, 2022 CanLII 69462
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Date of Decision: July 28, 2022

The Complainant, Elizabeth Portman, alleges the Respondent, Midwest Property Management, discriminated against her based on her disability contrary to the Human Rights Act, S.N.W.T. 2002, c. 18. The Complainant is a person with progressive multiple sclerosis and  requires accommodation to access her apartment building. The Complainant uses two canes to walk. She states that the main entry way, building doors, laundry facilities, and garbage disposal are inaccessible. At issue is whether the Respondent discriminated against the Complainant, whether they reasonably accommodated her disability, and whether the Respondent retaliated against her. 

The Tribunal found that the Respondent discriminated against the Complainant. The Tribunal accepted evidence of the door heaviness and the slope outside the building made entry ways inaccessible. Furthermore, the Tribunal found the payment machine for laundry, located in another building, was inaccessible to Ms. Portman who has decreased mobility and balance. It found the heavy garbage lid to be similarly accessible. The heaviness of the garbage lid negatively impacted her due to her lack of strength and balance.

The Tribunal found the Respondent did not accommodate the Complainant’s disability regarding the entry way and doors. The Respondent had a duty to do anything “reasonably possible to accommodate [her] to the point of undue hardship” (para 31). Undue hardship is understood as when all ways to accommodate someone are attempted, and only impractical options remain. For the main entry way and ramp, the Tribunal found that although the Respondent was compliant with bylaws, building codes, and had built an accessible ramp, true accommodation requires making necessary modifications to eliminate existing barriers. Furthermore, after extensive email correspondence between the parties regarding Ms. Portman’s specific concerns, the Respondent refused to make changes. Accordingly, the Complainant could not access her home, resulting not only in inconvenience but a loss of dignity. Second, regarding the building doors, the Respondent conceded the weight of doors to the building was too heavy for the Complainant to use, and thus undertook to install power-assisted doors on a reasonable timeline. 

However, the Tribunal found the Respondent did reasonably accommodate the Complainant regarding the laundry facilities and garbage disposal. First, the Complainant’s apartment building did not have a debit machine, requiring her to go to a neighbouring building which was difficult due to her disability. The Tribunal found this part of the complaint was reasonably accommodated as a machine was installed in 2018 in her building. Second, the, the Respondent offered alternatives to the Complainant with respect to garbage disposal. Before the lid was welded shut to comply with local bylaws, the Respondent offered a sliding lid option. Other solutions included a garbage pick-up by cleaning staff and a smaller garbage bin that the Complainant could access.

Finally, the Tribunal held the Complainant did not prove retaliation for making a human rights complaint.  

The Tribunal ordered the installation of power-assisted automatic doors and modifications to the ramp to ensure slip-resistance. Ms. Portman was compensated $7500.00 for injury to her dignity, feelings, and self-respect. 

August 2022

British Columbia Human Right Tribunal

MacLean v Gerry Robert Enterprises dba Black Card Books, 2022 BCHRT 89
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Date of Decision: August 11, 2022

The Complainant registered for a workshop offered by the Respondent, Black Card Books. He asked the Respondent to pay for American Sign Language Interpreters to accompany him to the workshop, as he identifies as DeafBlind. They refused and suggested he obtain his own interpreters. He attended the workshop without interpreters, but could neither understand the presentation, nor communicate with other attendees and left. He alleges the lack of accessibility and accommodation for the workshop constitute discrimination by the Respondent in violation of section 8 of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”).

The Tribunal held that the Respondent discriminated against the Complainant. It found there was an adverse impact on the Complainant as he was excluded and denied the opportunity to participate in a workshop which was available to individuals without his disability. 

The Respondent alleged it would constitute undue hardship to provide interpreters. The workshop was operating on a deficit with no anticipated revenue to offset expenses. The Tribunal accepted that paying for interpreters would have increased operating costs; however, it stated that in almost every instance, accommodation and change will seem more expensive than to maintain the status quo. Just because there may be an increase in cost does not discharge an obligation to accommodate. 

Furthermore, although the Respondent suggests that it would be too expensive to obtain an interpreter, there is no evidence that they attempted to investigate the availability and cost of interpreters before advising the Complainant that they would not be able to provide any. The Tribunal reasoned that while it may have been undue to provide interpretive services, that was not the issue. Rather, the Respondent had to consider his individualized circumstances rather than apply a blanket corporate policy.  

The Tribunal ordered the Respondent to make available an opportunity to attend and engage with the workshop meaningfully. Furthermore, it ordered $2500 compensation to the Complainant for the injury to his dignity. 

Human Rights Tribunal of Ontario

Crites v. Thunder Bay Regional Health Sciences Centre, 2022 HRTO 1043
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Date of Decision: August 25, 2022

The Applicant alleges the Respondent discriminated against him with respect to services contrary to the Human Rights Code, R.S.O. 1990 c. H. 19 (the “Code”). Specifically, he states he experienced discrimination by a doctor and other hospital staff at Thunder Bay Regional Health Sciences Centre due to his physical and mental disabilities as he was not accommodated or treated respectfully. 

While seeking treatment for his disabilities on April 13, 2018, the Applicant states he was discriminated against in the emergency room by a doctor when he asked the applicant if he really needed to be treated at the hospital, comparing the severity of other patients to him. Secondly, he alleges he was not accommodated for his visual disability, and the cane he uses was removed by the respondent and return after 5 days. Finally, he submits the Respondent’s nurses referred themselves as babysitters, trivializing and embarrassing him. 

The Applicant filed the Application on March 10, 2020. He stated he was delayed in filing the Application due to his health which incapacitated him. He submitted he was admitted to the hospital twice in February and March 2019. Furthermore, during this relevant period he was experienced mental health issues and accessed hospital services numerous times. He alleges he filed the Applicant when he was able and when assistance in form filling was available. 

The Respondent countered that none of the allegations were linked to the Applicant’s disability. Rather, they allege that on April 13, 2018, due to his mental health condition, he was combating and physical with nurses, and thus they were required to restrain him so he would not hurt himself or others. The Respondent further asserts that the Applicant was capable of defending himself against the resulting assault charges and met with a lawyer on May 15, 2018 and was informed about pursuing legal action for discrimination. 

The Tribunal ultimately dismissed the Application for delay. It reasoned that delay due to disability requires medical evidence establishing a disability was so incapacitating that it prevented the Applicant from pursuing their legal rights. Here, the Applicant submitted documentation indicating he was receiving treatment for his mental health; however, did not provide evidence that this prevented him from pursuing his legal rights in a timely manner. In the relevant time period, he participated in mental health programs, had the ability to volunteer, and worked with lawyers and social workers to counter charge the Respondent. Thus, the Tribunal found the Applicant’s ability to participate in other activities and consult with legal counsel as indicative of the fact his disability did not prevent him from filing the Application without delay. 

Alberta Human Rights Commission

Cush v Condominium Corporation No. 7510322 o/a Renfrew House, 2022 AHRC 87
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Date of Decision: August 16, 2022

The Complainant, Susan Cush, alleged the Respondent, Renfrew House, discriminated against her on the ground of physical disability, contravening section 4 of the Alberta Human Rights Act. The Complaint raises two main issues. First, whether the Respondent discriminated against the Complainant by refusing to assign her an underground parking stall. Second, whether the Respondent discriminated against the Complainant by not constructing a ramp at the building’s front entrance. 

The Tribunal dismissed the first issue, stating the Respondent provided reasonable accommodations for the Complainant by working with her to provide a parking stall whenever needed. 

As to the second issue, the Tribunal found the Respondent did not discharge its duty to accommodate the Complainant to the point of undue hardship. The Tribunal used a modified form of the Meiorin test set out in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 (Grismer), to determine whether the Respondent’s refusal to construct a ramp at the building’s front entrance was justified. According to Grismer, to prove they are justified, the defendant must demonstrate: 1) it adopted the standard for goal that is rationally connected to the function being performed; 2) it adopted the standard in good faith, in the belief it is necessary for the fulfillment of the goal; and 3) the standard is reasonably necessary to accomplish its goal, in the sense the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.

Turning to the first prong of the Grismer test, the Tribunal found the Respondent’s standard for starting new projects (having the condominium board investigate), was a goal rationally connected to the condominium board’s function. Turning to the second prong of the Grismer test, the Tribunal found the Respondent did not adopt the above-mentioned standard in good faith. Specifically, the Tribunal reasoned the condominium board did not approach the Complainant’s request for a ramp with the same commitment as they had shown with the request for the parking stall. Although the condominium board accepted quotes for the ramp, and created a plan for ramp construction, there was no real commitment to complete the ramp within the period they had outlined. Turning to the last prong of the Grismer test, the Tribunal found there was no credible evidence to support the Respondent’s argument that they accommodated the Complainant to the point of undue hardship. 

The Tribunal dismissed the complaint in part. The Tribunal required the Respondent to pay the Complainant $20,000 in general damages to dignity and self-respect. 

Weist v Actton Transport Ltd. o/a Super Save Group, 2022 AHRC 88
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Date of Decision: August 10, 2022

The Complainant, Aaron Weist, alleged the Respondent, Actton Transport Ltd. (o/a Super Save Group), discriminated against him in the area of employment on the ground of mental disability contrary to section 7 of the Alberta Human Rights Act. The Complainant requested review of a decision made by the Director of the Commission (“Director”), who previously dismissed his human rights complaint. The Tribunal upheld the Director’s decision to dismiss the complaint. 

The Complainant was employed as a rear load disposal driver in 2019. He stated he has a mental disability which compels him to use medical cannabis before bed every night. He further stated his employer was made aware of his regular use of medical cannabis. On September 13, 2019, while on the job driving the Respondent’s vehicle, the Complainant was involved in a motor vehicle accident. Following this accident, he was required to take a drug test that resulted in a temporary suspension. The Complainant stated that after a week of abstaining from his daily medication, he was able to pass the drug test 10 days later and returned to work.

The Complainant was involved in another motor vehicle accident on January 13, 2020 and was subjected to further drug testing. He was terminated on January 20, 2020. He alleged he was terminated due to his use of medical cannabis to treat his mental disability. The Respondent denied these claims and stated the Complainant’s employment was terminated due to violations of the Respondent’s safety policies including the Substance Abuse Control Policy, which prohibits employees from working while under the influence of drugs, including marijuana, unless the employee has disclosed its use for medical purposes and has been granted an accommodation. The Respondent stated the Complainant did not disclose his use of medical cannabis or any medical information regarding his mental disability. 

The Respondent confirmed the Complainant was informed after the first motor vehicle incident on September 13, 2019, that any further misconduct could result in disciplinary action including termination. Accordingly, after the second motor vehicle accident on January 13, 2020, he was terminated. 

After reviewing this case, the Director decided the Complainant was given sufficient warning of the Respondent’s policies and received a specific warning after the first motor vehicle accident that any further misconduct would lead to disciplinary action, including termination. As well, the Complainant had no proof demonstrating he disclosed his use of medical cannabis or informed them of his mental disability prior to his termination. 

The Human Rights Commission ultimately upheld the Director’s decision, confirming the Complainant failed to provide information that demonstrated a link between his mental disability and the termination of his employment. The Complainant has further failed to provide sufficient information supporting his claim of discrimination to justify the appointment of a tribunal to hear the complaint. The Commission ultimately stated there was no reasonable basis in evidence to proceed to a hearing and upheld the Director’s decision to dismiss the Complaint.