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, 2023, Issue 3).

This issue of our digest covers a selection of decisions from the Human Rights Tribunals of British Columbia, Ontario, Alberta and Nova Scotia during the month of June 2023. 

This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project: Kiel Baker (JD Candidate, 2024) and Florence Kwok (JD Candidate, 2024).

June 2023

Ontario Human Rights Tribunal

The complainant filed an application alleging the respondent had discriminated against her with respect to goods, services, and facilities because of disability, contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. By Case Assessment Direction, the Tribunal directed that a one-day merits hearing be scheduled and further directed the parties to disclose various documentation. The parties did not fully comply with the disclosure directions. As a result, at the start of the merits hearing, the Tribunal directed that a summary hearing be held to decide whether the Tribunal should dismiss all or part of the application because there was no reasonable prospect of success since it was not clear that the complainant had any evidence to establish a link between her disability and what the respondents are alleged to have done.

At the summary hearing, the parties outlined their Agreed Statement of Facts. The complainant had been a customer of the respondents since October 17, 2018. The complainant had purchased 60-sessions of training from the respondent which were used from November 27, 2018, to May 1, 2019. At the end of these training sessions the complainant signed a Personal Training Agreement (“PTA”) with the respondent which provided for a further 240 sessions. Within the PTA there was a “cancellation due to disability clause” in which the PTA would be cancelled, and the remaining portion of the contract would be refunded if the complainant “dies or becomes physically unable to avail himself of a substantial portion of those services which he used from the commencement of the agreement until the time of the disability”. By October 2019, the complainant was experiencing increasing pain related to a pre-existing medical condition. The complainant informed the respondent of the state and extent of her physical limitations. In January 2020, the complainant received a formal diagnosis from a medical examiner stating that she would no longer be able to exercise. The complainant relied upon the disability clause and requested a refund for the sessions that she could no longer have. The respondent refused and asked that the complainant’s application be dismissed.

The complainant made two arguments to support her claim of discrimination. Firstly, she argued that the respondent had changed their attitude and demeanor towards her once they became aware that she had become disabled. The complainant claimed that the respondent became “evasive and unnecessarily obstructionist.” Furthermore, the complainant argued that the respondent failed in their procedural duty to first determine how to accommodate the complainant’s disability in future training sessions.

The Tribunal ultimately decided in favour of the respondent and dismissed the complainant’s application. The Tribunal reasoned that it was not enough for the complainant to assert that she had been discriminated against based on disability and received adverse treatment as a result. The complainant did not provide any basis to conclude that her disability was a factor in the respondent’s decision not to issue a refund. The Tribunal said there was an absence of an evidentiary record in the complainant’s argument in that just because the respondent failed to comply with the disability clause, it did not mean that the respondent was doing so in a discriminatory manner. The Tribunal said that the complainant’s arguments were speculative at best and failed to provide evidence to support her claim.

British Columbia Human Rights Tribunal

The complainant filed a complaint against his former employer (the respondent) alleging discrimination in employment contrary to s. 13(1)(a) of the Human Rights Code. The complainant alleges that he was discriminated in the course of his employment when he was terminated while on medical leave for a physical disability. The complainant was an automotive painter for the respondent. The complainant was diagnosed with a brain tumour and immediately informed the respondent that he would need to go on medical leave. A temporary worker was hired to cover the complainant while he was on leave. Three months later, the respondent called the complainant to inquire if he would be able to return to work. The complainant could not confirm a date in which he would be able to return to work, as he was waiting to hear from his oncologist. In response, the respondent offered the complainant a severance package. The complainant was shocked by this and told the respondent he would need to think about the offer. The complainant did not reach out the respondent at which point the respondent called the complainant and told him that he could no longer afford to employ the complainant and sent the complainant his severance cheques.

The respondent looked to have the complaint dismissed under s27. (1)(c) under the Code, which allows the Tribunal to dismiss a complaint when the complaint does not warrant the time or expense of a hearing. The respondent submits that it based its decision to terminate the complainant on a bona fide occupational requirement, which is a statutory defence to discrimination in employment set out in s. 13(4) of the Code. The Tribunal stated that the complainant’s application rests on whether there is enough evidence that the respondent met the undue hardship test. The respondent asked the Tribunal to review the history of the respondent accommodating the complainant – on a global basis and not through a compartmentalized approach – to determine if they had reached the point of undue hardship.

The Tribunal decided that it should decline the respondent’s request to dismiss the complainant’s complaint under s 27(1)(c) of the Code. The Tribunal reasoned that it was necessary for the complainant and respondent to have a hearing to dispute the conversation they had surrounding the severance package of the complainant. Without making  findings of fact on what was said in their conversation, the Tribunal could not determine if the respondent had met the requirements set out to prove they had discharged their duty to accommodate. Therefore, the Tribunal decided that there was a reasonable chance that the complainant could succeed in their complaint.

Alberta Human Rights Commission

The complainant requested a review of the Director of Alberta Human Rights Commission’s (Director) decision to dismiss his human rights complaint. The request for review was made under section 26 of the Alberta Human Rights Act.

The complainant attended the respondent’s store on March 27, 2021, where they were greeted outside by an employee of the respondent’s store. The complainant who is deaf notified the employee of their condition and wished to purchase a phone from the store. The employee told the complainant that they would be unable to go into the store as the complainant would not be able to communicate with the employees of the respondent without wearing a mask. The complainant had suggested alternatives such as the employees remain a suitable distance to where the employee and complainant could talk so he could read their lips or that they communicate through written communication. The respondent according to the complainant refused these alternatives and still did not allow them into the respondent’s store. The complainant therefore filed a complaint under Section 4 of the Alberta Human Rights Act. The respondent argued that it did not discriminate against the complainant but was instead attempting to protect their employees and customers. The respondent argued that it agreed to the alternative recommendations of the complainant, but it was the complainant who still wished to go instore.

In the original decision, the Director decided that in balancing the rights of other individuals with the duty of the respondent to accommodate the individual, the respondent responded appropriately. As a result of the heightened concerns of the COVID-19 pandemic the respondent was thus correct in its enforcement of the policies to ensure both the safety of the customers and individuals working in the respondent’s store. The complainant had asked for a review of the previous decision.

The Tribunal determined that the complaint should not have been dismissed and the complaint should be turned over to the Tribunal for a proper hearing. In coming to this decision, the Tribunal relied on the fact that both parties said that they had offered alternatives to resolve the situation, but it was the other side that denied the alternatives. This alone was seen to be enough of a reason for the Tribunal to order a trial to determine which side was believable and if the respondent had thus met the threshold of accommodating the complainant to the point of undue hardship.

Nova Scotia Human Rights Commission

            As part of remedy hearings resulting from Disability Rights Coalition v Nova Scotia (Attorney General),2021 NSCA 70 where it found that persons with disabilities faced systemic discrimination under the Social Assistance Act, the parties presented an “Interim Consent Order” (Order) to the Board of Inquiry (Board) as a proposed remedy for systemic discrimination. The Board was asked to determine whether the Order presented amounted to a “settlement agreement” as defined under s34(5) of the Human Rights Act, RSNS 1989 c214 (Act).

            A settlement agreement is often a cost-effective method of resolution, as it eliminates the need for a formal hearing process. In this case, both parties asked the Board to recognize the Order as a settlement agreement. The Province sought an order to acknowledge their commitments of resolution and to establish tangible goals for compliance. On the other hand, the Disability Rights Coalition (DRC) wanted to ensure that the Board could re-assert its powers if the proposed resolution failed.

            The Order outlined a comprehensive five-year plan with specific goals, objectives, milestones, and evaluation mechanisms. The Board observed that the parties worked closely together to develop a plan that resulted from independent expert reviews, data collection and negotiations. The Board also recognized that the parties’ efforts resulted in a more cost-effective resolution compared to traditional litigation. However, the Board decided that the Order did not amount to a settlement agreement under the Act. The Board found that the Order was more similar to a public commitment to reach a resolution and lacked the sense of finality found in Nova Scotia (Human Rights Commission) v Grant, 2017 NSCA 37. Additionally, the Board questioned its ability to monitor if a settlement agreement were established, given the lack of precedent for this process and the fear of overstepping its jurisdiction.

Despite this, the Board decided to defer hearings on remedy under its powers under s34(8) of the Act. By not establishing the settlement agreement, the Board ensured that the parties had time to implement their proposal. As well, it would ensure that the Board could continue to monitor progress towards the objectives outlined as set out in the Order.