Human Rights Tribunal Disability Case Summaries in July & August 2024
The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2024, Issue 2).
This issue of our digest covers a selection of decisions from the Human Rights Tribunals of Ontario, British Columbia, Alberta, and the Canadian Human Rights Tribunal during the months of July and August, 2024.
This information is not intended to provide legal advice.
Prepared by Research Assistants for the Law, Disability & Social Change Project: Dawn Hadwen (JD Candidate, 2025), Simran Toor (JD Candidate, 2026) and Rachel McCallister de Abreu (JD Candidate, 2026).
July 2024
Ontario Human Rights Tribunal
Applicant v Toronto Transit Commission, 2024 HRTO 999 (CanLII)
Date Issued: July 15, 2024
The applicant, a previous employee of Toronto Transit Commission (TTC) alleges that the respondent, TTC, discriminated against him on the basis of disability in the area of employment, contrary to the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”), specifically, ss. 5, 9, 10(1), and 17. The applicant’s employment was terminated for cause in 2017 due to a workplace incident. The respondent alleges that the applicant was found sleeping on the job contrary to the respondent’s fitness for duty policy. The applicant refutes the claim of sleeping on the job and argues he was closing his eyes to alleviate dizziness caused by vertigo. Consequently, the applicant alleges that the respondent failed to comply with their duty to accommodate his disability.
The applicant began his employment with the TTC in 2008 and remained employed until his termination in 2017. The TTC’s fitness for duty policy provides that employees are expected to report to work fit for duty and are responsible for taking appropriate action to avoid extreme fatigue at work. The fitness for duty policy prohibits workers from sleeping while on duty. A violation of these provisions would result in discipline, up to and including dismissal. The applicant was previously disciplined and relieved of duty in 2013 and 2015 after being found sleeping while on duty. The applicant was reinstated pursuant to a Last Chance Agreement (LCA). Following the most recent alleged violation of sleeping on the job in 2017, and following termination, the union pursued grievances on the applicant’s behalf which were denied by the TTC. Mediation was held in accordance with the grievance process, where the applicant suggested that he was suffering from BPPV (Vertigo) and was closing his eyes to alleviate the symptoms he was experiencing.
The TTC’s Occupational Health and Claims Management (“OHCM”) Department received a medical note from the applicant’s treating physician, Dr. David Silver dated September 6, 2017, noting that the applicant was diagnosed with vertigo and that treatment involved a repositioning maneuver to help alleviate symptoms. The applicant remained off work for three days as recommended by Dr. Silver and resumed work for his June 15 – 16, 2017 shift, and claims he informed TTC forepersons that he was feeling slow that day, experiencing vertigo-related symptoms and did not feel well.
The Tribunal acknowledged that its role is not to evaluate the application of the Collective Agreement’s terms but rather to focus its efforts on whether the respondent violated the applicant’s rights under the Code. Based on witness evidence and the agreed statements of facts, the Tribunal determined that sleeping was not a common practice and if the applicant was to have told a foreperson of his symptoms, this would have raised safety concerns. Moreover, the doctor’s note does not disclose information about the applicant having a disability or the nature of that disability. While the applicant claimed to have only briefly closed his eyes, this was inconsistent with evidence that the foreperson saw the applicant sleeping on three occasions lasting several minutes.
The adjudicator found that the applicant failed to establish on a balance of probabilities that the respondent discriminated against the applicant when they terminated his employment or failed to fulfill their duty to accommodate. Where a respondent is unaware of and has no reason to be aware of an accommodation need, there will not be a finding of liability. For these reasons the case was dismissed.
Applicant v Bellissimo Pizzeria and Ristorante, 2024 HRTO 1024 (CanLII)
Date Issued: July 19, 2024
The applicant identifies as an individual with the disability of blindness and as a male individual of Nubian, African/Caribbean, Aboriginal and Canadian of colour. The applicant had been a patron at the respondent’s restaurant for several years. On one occasion in July 2012, the applicant was involved in an altercation with another patron and both the applicant and patron were ejected from the restaurant. The applicant initiated an application with the Tribunal alleging discrimination, which was resolved through Minutes of Settlement in 2015. In 2016, the applicant attended the restaurant with friends but was denied entry by a longtime waitress who said that the applicant wasn’t allowed on the property. The applicant alleges discrimination with respect to services, goods and facilities because of race, colour, disability, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
The Tribunal sent the parties a Notice of Videoconference Merits Hearing. Both the Notice and Endorsement set out the consequences of failing to attend the hearing and reminded the parties that there were consequences if pre-hearing disclosure obligations were breached. The respondent was noted in default as they failed to satisfy pre-hearing disclosure obligations. Following this, the applicant attended the two-day merits hearing without the respondent being present. In the absence of evidence proving otherwise, the Tribunal found that the denial of service was a result of the waitress’s incorrect understanding of the prior proceeding’s terms of settlement, which did not include any terms banning the applicant from the restaurant.
On the basis of alleged reprisal, the Tribunal found that there was an action taken against the applicant, with the intention to retaliate for the attempted enforcement of his rights, specifically, the denial of services. Given the previous Tribunal proceeding, there was an indication that the intention to reprise exists.
The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. Based on the evidence presented at the merits hearing and the submissions of the applicant, the Tribunal decided that the applicant had established on a balance of probabilities a prima facie case of discrimination on the basis of reprisal.
The purpose of compensation under the Code is to restore an individual as far as is reasonably possible to the position that he or she would have been in had the discriminatory act not occurred. For these reasons, the applicant was entitled to compensation for damages for injury to dignity, feelings and self-respect in the amount of $5,000 and post-judgement interest.
British Columbia Human Rights Tribunal
Complainant v Lululemon Athletica Inc, 2024 BCHRT 202 (CanLII)
Date Issued: July 4, 2024
A complaint was filed with the British Columbia Human Rights Tribunal by the complainant against Lululemon Athletica Inc. (“Lululemon”). The complainant alleges that Lululemon discriminated against them on the grounds of political belief and physical disability, contrary to s. 13 of the Human Rights Code (“Code”). The complainant has an ongoing complex heart condition, portal hypertension, and liver nodules. In August 2023, the BC Human Rights Tribunal allowed the complaint to proceed, however a later decision from October 2023 reconsidered the acceptance of the complaint due to untimely allegations made by the complainant. The issue before the Tribunal is whether to accept the complaint for filing against the Retailer as a continuing contravention of the Code s. 22(2), and if not, whether it is in the public interest to accept any late-filed allegations of discrimination under s. 22(3) of the Code.
In October 2020, the complainant interviewed with Lululemon for the position of Product Sustainability Specialist. During the interview, the complainant was asked about his political opinions on Black Lives Matter, which caused him discomfort. Rather than answering the question, the complainant discussed his hidden physical disability and his views on diversity and inclusion. After the interview, the retailer did not follow-up with the complainant, despite telling him that they would. Later that month, the complainant’s previous employer informed the complainant that he was contacted by Lululemon without authorization to discuss the complainant’s employment history. Then, in December 2020, the complainant reached out to Lululemon regarding accommodations for his disability concerning a different position he had applied to, that of a Raw Material Developer. Lululemon promised to get back to the complainant within two business days, however the complainant did not hear back from them.
A few days later, the position and application details for the Raw Material Developer were removed from the retailer’s website. At the time the position was removed from the website, the retailer contacted the complainant about the complaint he had filed regarding contacting his reference without authorization, and to discuss his accommodation request. The complainant was informed that future interviews would include questions regarding diversity and inclusion and that someone else had been hired for the position he applied for.
In March 2021, the complainant contacted Lululemon for copies of their multi-year accessibility plan and annual reports, which were listed on their website. The complainant then proceeded to claim that the documents were not provided to him in accessible formats, which discriminated against him as a candidate with a disability who was inquiring about the retailer’s role in hiring people with disabilities. The complainant then alleged that the retailer harassed his spouse as she was contacted via LinkedIn and offered a contracting job to make animation shorts for Lululemon.
The complainant was unable to prove any harm was done to him by the retailer during or after the interview process, and therefore it was found that no harm was done his spouse. Moreover, the complainant did not provide any support for the accommodations he requested for his physical disability. The complainant also gave no information that showed a delay in providing the Accessibility Disclosure. As such, the complainant could not support his allegation that Lululemon was discriminating against persons with disabilities. The Tribunal ultimately decided that the complaint did not set out timely allegations of discrimination, so it was not accepted for filing.
Complainant v Hospital Employees’ Union, 2024 BCHRT 203 (CanLII)
Date Issued: July 5, 2024
A complaint was filed by the complainant, a member of the Hospital Employees’ Union (“HEU”) against HEU. The complainant alleges that she was unlawfully terminated from her job and discriminated against based on mental disability, contrary to s. 14 of the Human Rights Code (“Code”). The complainant joined the HEU in September 2019 while she worked at a community services society – her first job after her brain injury in 2017, and 1.5 years of rehabilitation. Before that, the complainant was diagnosed with ADHD in 2013. In April 2020, the complainant was terminated from her employment and the HEU sent a grievance on her behalf. The complainant alleges that she was discriminated against by HEU through this grievance and by the way in which the HEU representative communicated with her. The complainant argues that she was represented in a different manner than others. She asserts that the HEU relied on stereotypes about mental disabilities when determining the course of action for her grievance. The HEU aims to dismiss the complaint by asserting that the matter is one of dissatisfaction rather than discrimination, as they assert that they dealt with the complainant’s grievance appropriately without her experiencing any adverse impacts.
The complainant’s termination was based on missed shifts, violation of policy due to social media posts, unauthorized use of overtime, failing to check-in according to the policy for working alone, using steak knives to play darts with a client, and more. A few days after her termination, the HEU submitted a grievance alleging unjust termination, followed by a letter addressing the complainant, explaining the misconduct that resulted in her termination. The HEU aimed to have the complainant’s employment reinstated with less discipline. The HEU representative and the complainant discussed this over the telephone and the complainant perceived the representative as an individual who lacked understanding of her condition. The employer of the complainant submitted an offer to the HEU in early May 2020, which contained a promise to pay the complainant two thousand dollars in return for withdrawing the grievance, a confidentiality clause, and the release of any future claims. The complainant did not accept this offer and provided the HEU with a medical letter explaining her brain injury and the long-term consequences. In response, the HEU representative suggested submitting a settlement offer as she realized the medical letter would not help the grievance succeed at arbitration or reinstate her employment. The representative suggested that either the employer offer the complainant two thousand dollars while allowing her to pursue the complaint at the Tribunal, or pay her ten thousand in human rights damages instead of reinstatement.
In response, the employer offered a settlement with no intent to reinstate, and the HEU representative recommended that the complainant accept this offer. At the same time, the representative informed her that if she did not want to accept the offer, then she could access the internal appeal process, but that her medical note did not support her discrimination claims. The complainant began the internal appeal process in mid-June 2020. The case was assigned to new HEU representatives, and the employer suggested that the complainant discuss the case directly with them, and also suggested that they may pay her more than two thousand dollars. The complainant agreed to this offer and then proceeded to assert that it was the first HEU representative that discriminated against her by treating her negatively throughout the grievance process. She claims that the HEU representative communicated with her in ways that were blaming, hurtful, and rooted in stereotypes, which negatively impacted her dignity and self-worth.
The Tribunal found that the representative’s communications did not result in an adverse impact, while acknowledging that the complainant may have been hurt, embarrassed, or belittled. The HEU representative used language that was clear, direct, and straight to the point but did not adversely impact the complainant. Thus, the Tribunal decided that there was no breach by the HEU as the complainant had not established any experience of adverse impact through the union’s representation, ultimately dismissing her complaint.
Complainant v 2-Tone Romain Holdings Inc. and Others, 2024 BCHRT 209 (CanLII)
Date Issued: July 18, 2024
The complainant, a Métis person with disabilities, filed a complaint with the British Columbia Human Rights Tribunal for discrimination contrary to s. 10 of the Human Rights Code (“Code”). The complainant had previously experienced homelessness and at the time of her complaint, had rented an RV on a property with the support of a rental subsidy provided by a program that aimed to prevent homelessness. She complained that the property was in poor condition, the garbage area was inaccessible, and that she received threats of eviction. The complainant believes that the discriminatory treatment she received stemmed from her Indigenous identity, source of income, and mental disability.
The original complaint was made under the area of tenancy, and the complainant named the property manager and property caretaker as the respondents. A year after the original complaint was made, the complainant added 2-Tone Romain Holdings Inc. (“2-tone”) and District 69 Society of Organized Services (“SOS”) as respondents. Both new respondents object to being added to the complaint by claiming late filing. However, to add these respondents, the complainant submitted an amendment to her complaint and addressed the application to add respondents.
The amendment submitted by the complainant added new details to the original allegations, demonstrating that it was not a late filing, as the condition of the property, inability to access the garbage area, and the threats of eviction were ongoing and continued past the date she filed the complaint. SOS responded claiming that the complainant’s amendment contained new arguments and that they required an opportunity to respond to these new issues. The Tribunal agreed and allowed for SOS to have an opportunity to respond. After SOS submitted their sur-reply, the complainant filed the second amendment in which she added the ground of services to the complaint, in addition to the area of tenancy. SOS had the opportunity to respond to this change in their sur-reply, so the amendment made by the complainant was acceptable. As for 2-Tone, the landlord, the complainant alleges they were involved in the complaint because of their actions, omissions, and decisions. However, 2-Tone argues that the complaint was filed too late and that there were no actions, facts, or allegations that could prove contravention of the Code. This argument failed at the Tribunal as the complaint was brought against 2-Tone within the one-year time limit.
As for the complaint against SOS, an agreement was made between the Homeless Prevention Program (“HPP”), administered by SOS, and the complainant to keep her RV “organized and tidy.” This agreement was made in December 2020, and a year later, the complainant was in breach of this condition, which led to the termination of rent and housing support through the program. A termination letter was sent to the complainant for non-compliance but no response was given. The complainant claims that the HPP stopped her funding on the grounds of her disability (hoarding disorder), leaving her “scrambling” to pay rent. In response, SOS asserts that there was no contravention of the Code as they were not in a tenancy relationship with the complainant, the complainant did not experience an adverse impact as she continued to reside at the property after the agreement ended, and that the disability claim was simply an assertion not proven by the complainant. The Tribunal found that the complaint could proceed in the area of tenancy and the area of services. Further, the Tribunal also found that the complainant’s allegation regarding discrimination based on her disability against SOS met the threshold of the Tribunal and, if proven, could demonstrate a breach of the Code.
Ultimately, the Tribunal found a continuing contravention and decided that it was in the public’s interest to allow the complaint to proceed. The application to add 2-Tone and SOS as respondents was accepted.
Alberta Human Rights Commission
Complainant v Central Alberta Co-op Ltd., 2024 AHRC 102 (CanLII)
Date Issued: July 29, 2024
This complaint was filed with the Alberta Human Rights Commission. The complainant requested a review of the Director’s decision to dismiss his human rights complaint. The request for review was made under section 26 of the Alberta Human Rights Act (“Act“). The complainant argued that the respondent, Central Alberta Co-op Ltd. (Co-op), discriminated against him with regards to his employment on the grounds of physical disability in contradiction to section 7 of the Act. The complainant experienced several medical issues and required surgery during his employment with the company. He argues that his termination was due to his physical disability. The Co-op maintains that the complainant’s termination was due to workplace issues such as disrespectful comments and inappropriate behavior.
The Director of the Commission determined that a contextual review of the information provided did not support the claim that the complainant’s physical disability was a factor in the decision to terminate his employment, and dismissed the complaint. The complainant maintains the contrary, pointing to a change in attitude from the Co-op after he disclosed his medical issues and eventual termination.
A review of text message indicates that Co-op personnel checked on the complainant and that the complainant had responded saying that he did not need anything from the Co-op. In addition, the Director determined that the Co-op had a reasonable explanation for their actions based on information provided which indicated that the complainant’s comments and behaviour raised issued for the Co-op. Reports filed by other Co-op employees indicated that the complainant had made disrespectful and sexist comments. The complainant argued that the Co-op did not inform him of these issues. In response, the Co-op indicated that they chose not to disclose these issues to the complainant as he was still within the 3-month probationary period.
The issue for the Tribunal to decide is whether the original complaint should have been dismissed on the basis that it had no reasonable prospect of success. The Commission again determined that there was no reasonable prospect of success because aside from the timing of the termination, there was not enough information to demonstrate that the complainant’s disability was the reason for the termination of his employment. Instead, there was a significant amount of support for the Co-op’s reasons for termination. Therefore the complaint was dismissed.
Complainant v The City of Edmonton, 2024 AHRC 99 (CanLII)
Date Issued: July 16, 2024
This complaint was filed with the Alberta Human Rights Commission. The complainant requested a review of the decision made by the Director of the Commission (Director) to dismiss his human rights complaint. The request for review was made under section 26 of the Alberta Human Rights Act. The complainant argued that his employer, The City of Edmonton (COE), discriminated against him based on mental disability and religious beliefs, in violation of section 7 of the Alberta Human Rights Act. The complainant argues that he was denied exemptions and was suspended from work because he would not comply with the requirement to become fully immunized against COVID-19 or complete rapid antigen testing. He also refused to wear a mask.
The complainant filed with the Commission stating that he suffered from chronic anxiety and allergies. He requested an exemption on medical grounds from COVID-19 vaccination. The COE denied the exemption because the information provided did not sufficiently support his inability to receive the vaccine due to a medical condition. The complainant also applied for an exemption from vaccination and rapid antigen testing due to religious beliefs. This was denied after an interview with the COE. The complainant’s union, the Canadian Union of Public Employees, initiated grievance arbitration to challenge the denial of the vaccination exemption, disciplinary suspension, and termination of employment. The arbitration proceedings were ongoing, and the parties agreed to postpone the arbitration pending the Commission’s decision. The exemption request was denied, and COE asked him to wear a mask or be sent home from the workplace.
The Director noted that the information presented did not support the complainant’s objection to the COVID-19 vaccine on grounds of faith. In addition, information submitted supported his claim that he had a mental disability, but it did not explain how his disability was linked to an inability to wear a mask.
The Tribunal had to decide whether the complaint should have been dismissed because part of it was being more appropriately dealt with in another forum and the remainder had no reasonable prospect of success. The Chief of the Commission and Tribunals concluded that grievance arbitration was a more appropriate forum for a collective agreement that addresses human rights issues, and upheld the Director’s decision to dismiss the complaint.
Canadian Human Rights Tribunal
Complainant v Correctional Service Canada, 2024 CHRT 91 (CanLII)
Date Issued: July 17, 2024
The complainant is an inmate who identifies as Deaf. The complainant filed against Correctional Services Canada (CSC) for failing to accommodate his disability by not providing sufficient access to an American Sign Language interpreter or technology to communicate with others, thus preventing him from practicing his Métis culture. The Canadian Human Rights Commission referred the complaint to the Tribunal for inquiry. A coalition developed, comprised of the Council of Canadians with Disabilities (CCD) and the Canadian Association of the Deaf (CAD) (the Coalition). The Coalition asked the Tribunal to be recognized as an interested person in respect to the inquiry into the complaint.
The issue is whether the Coalition should be recognized as an interested person in the inquiry into the complaint. The Tribunal considered the criteria outlined in Letnes v Royal Canadian Mounted Police, 2021 CHRT 30 and Liu v Public Safety Canada, 2024 CHRT 14 to determine that the Coalition should be granted limited interested person status in this case because: the Coalition’s expertise would be of assistance to the Tribunal; their involvement would add to the legal positions of the parties; and because the proceeding may have an impact on the requesting party’s interests.
Complainant v Canada Post Corporation, 2024 CHRT 93 (CanLII)
Date Issued: July 31, 2024
This is an interim ruling on a motion concerning documentary disclosure and compliance with Tribunal directions in the human rights case between the complainant and Canada Post Corporation (CPC). The complainant filed with the Canadian Human Rights Tribunal alleging discrimination on the grounds of disability, contrary to s. 7 of the Canadian Human Rights Act (CHRA), by her employer, Canada Post Corporation (CPC). The complainant argues that the respondent failed to accommodate her disability and retaliated against her for exercising her rights under the CHRA. The complainant filed a motion for documentary disclosure and compliance with Tribunal directions.
The Tribunal ordered that the Respondent disclose documents and information that was currently available to Respondent counsel and should have been provided with the Respondent’s response to the motion. The Tribunal also exercised it’s discretion to issue an interim confidentiality order regarding the personal and health information of the complainant, who believed this information to be in the possession of two witnesses. This interim confidentiality order was intended to place this documentation directly and securely in the possession of Respondent counsel without further dissemination by or to potentially unauthorized employees of the Respondent, until further directions are provided by the Tribunal. The Tribunal acknowledged that generally such requests for orders are made by the parties, but that in this case the Tribunal issued the order on it’s own initiative having regard to the sensitivity of the information potentially contained in the documents, the apparent vulnerability of the person to whom the information relates, and the procedural history of this case. The Tribunal explained that issuing the order was in the interests of justice, as per John Doe v. The King, 2023 TCC 92, paras. 6-10. The interim order was issued pursuant to s. 52(1)(c) of the CHRA to ensure that the file was retrieved and transmitted to the complainant and the Tribunal without disclosure to the public or any unauthorized individuals.
The Tribunal also explained that it would not be making a decision in regards to whether the complainant’s privacy was breached by the CPC’s employees, because unless a privacy concern forms part of a CHRA complaint, or is connected to the CHRA inquiry process, it remains outside the purview of the Tribunal.
August 2024
Ontario Human Rights Tribunal
Applicant v Amazon Canada Fulfilment Services, 2024 HRTO 1111 (CanLII)
Date Issued: August 7, 2024
This application alleges discrimination with respect to employment based on disability and race, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The application was filed more than one year after the last incident of discrimination described in application and lacks facts that are in “good faith” under HRTO’s case law.
The Tribunal informed the applicant that the case would be dismissed as the Tribunal was not required to hold an oral hearing on the issue of its jurisdiction, pursuant to s. 34(1) of the Code. The Tribunal has no jurisdiction to deal with allegations in an application which relate to incidents that occurred more than one year prior to the filing of the application, or, if there was a series of incidents, where the last incident in the series occurred more than one year prior to the filing of the application. Section 34(2) of the Code stipulates that a person may file an application after the limitations period, if the Tribunal finds that the delay was incurred in good faith, and no substantial prejudice will result to any person affected by the delay. The Tribunal has set a high onus on the applicant to satisfy the good faith test and establish something more than mere absence of bad faith and willful blindness.
Good faith reasons include a lack of awareness of legal rights; financial constraints; emotional and psychological impact; and health challenges. The applicant submits that his rationale for delayed filing was due to his lack of a comprehensive understanding of the Code. Furthermore, the applicant asserts that financial instability arose making the applicant not engage in the process. However, the Tribunal notes the processing of the application is free of charge and the applicant was provided information on the availability of free legal advice. The applicant also submits that he was psychologically impacted and experienced health constraints following his termination from work which negatively affected his ability to file an application. To establish good faith for medical reasons, the applicant must prove that his disability was so debilitating it prevented him from pursuing legal rights under the Code. The applicant failed to submit medical evidence.
The court found that the applicant did not meet the onus of showing his lack of legal knowledge, financial constraints, or health challenges translated into a good faith reason to explain the delay in filing his application. The court also reiterated that the Limitations Act, 2002 does not apply to applications made under the Code.
Applicant v University of Waterloo, 2024 HRTO 1116 (CanLII)
Date Issued: August 8, 2024
In the original application to the Tribunal, the applicant, a mature student with disabilities, filed a claim of discrimination with respect to goods, services and facilities, when he was denied admission to the University of Waterloo as an undergraduate student. Because of the applicant’s prior studies, the Admissions Committee at the University considered the applicant to be a transfer student rather than a mature student, and decided that the applicant did not meet the academic standards for a transfer student. The Human Rights Tribunal made a finding of prima facie discrimination but concluded that the University had met its procedural and substantive duty to accommodate. The applicant made a request for judicial review to the Divisional Court, which allowed the application and concluded that the University had failed to accommodate the applicant by not considering an admission approach that did not rely solely on prior grades. The Divisional Court remitted the matter to the Admissions Committee for consideration by way of an accommodated admissions process consistent with the court’s reasons. The University appealed. The Court of Appeal allowed the appeal in part, and referred the matter back to a different member of the Tribunal for determination of the appropriate public interest remedies.
Following this decision, the respondent filed a Request to Reconsider the Decision under Rules 26.5 (c) and (d) of the Tribunal’s Rules. The respondent argues that the general damages award is excessive and conflicts with Tribunal jurisprudence. Moreover, that the public interest remedy involves a matter of public importance because the Tribunal imposed a cost intensive experimental process interfering with the respondent’s autonomy concerning the admission process set out in the University of Waterloo Act. The Tribunal ordered the respondent to evaluate a Prior Learning Assessment Recognition program to facilitate the admission of students with disabilities. The respondent submits that this remedy overreached by imposing an experimental admissions process that interferes with student’s autonomy.
The Tribunal under section 45.7 of the Human Rights Code, R.S.O 19990, c.H19, as amended, (the “Code”), may reconsider its decisions in accordance with Tribunal’s Rules. The court found after evaluating the overall seriousness of the discrimination and case law, that a general damages award of $20,000 is appropriate, seeing as the Tribunal found the applicant had an opportunity to pursue a university education at a subsequent university. The Tribunal was not satisfied that there was a conflict with the Tribunal procedure as the respondent’s submission failed to satisfy the test in Rule 26.5(d), as the request should not have been presented as an opportunity to re-argue a position already advanced.
The Tribunal did not exercise discretion to reconsider the public interest remedy due to the jurisprudence and above reasoning. The decision is amended by changing the amount the applicant is entitled to for general damages from $35,000 to $20,000, with prejudgment interest and post-judgement interest as ordered in the decision.
Applicant v Sault Area Hospital, 2024 HRTO 1155 (CanLII)
Date Issued: August 15, 2024
The applicant filed an application alleging that the respondent, Sault Area Hospital discriminated against her based on disability, with respect to services, goods, and facilities, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The applicant describes her disabilities as interconnected, elephantiasis lymphedema and morbid obesity. She claims the hospital failed to meet their duty to accommodate her disability, by not providing her with a bariatric bed, constituting discrimination.
The applicant further submits that the applicant’s disability-related needs were not satisfied by the beds provided to her by the respondent, as she explained that she required a 54” bariatric bed without an air mattress. The respondent informed the applicant that the hospital’s bariatric beds adhere to the best practice guidelines to accommodate any patient with weight up to 1000 lbs. The applicant was later discharged into the community against medical advice because the hospital could not manage her needs and in turn she could not obtain life-prolonging treatments. The applicant applied for a Request to Expedite Proceedings in the hopes that the hospital would be legally ordered to provide her with a bed.
Following a review of the applicant’s submissions, an adjudicator allowed the application to continue, without making a final decision on jurisdiction over the matter. The Case Assessment Direction was sent to the parties of the proceeding advising them that the Tribunal may dismiss the application if it is found to be outside the Tribunal’s jurisdictional boundaries.
Ultimately, the Tribunal decided that it was not the appropriate form for resolving this matter, and the application was dismissed. The Tribunal’s jurisdiction does not include the authority to review the quality of clinical care provided in a medical setting, except where there are allegations that an applicant has received adverse treatment due to their Code grounds. There are other legal courses of action that consider whether a hospital has provided medically appropriate care.
Canadian Human Rights Tribunal
Complainant v Toronto-Dominion Bank, 2024 CHRT 94 (CanLII)
Date Issued: August 1, 2024
The complainant in this case is a Black man who filed a complaint with the Canadian Human Rights Tribunal arguing that his employer, the Toronto-Dominion Bank (the Bank), discriminated against him based on race, colour, and disability, contrary to s. 7 of the Canadian Human Rights Act (CHRA), when he was demoted from his position as Manager of Customer Service and Sales. The demotion was during a country-wide reorganization program known as the “IRIS” program and the complainant’s work position was determined redundant by the Bank for business reasons, and was eliminated. The program eliminated that position in most branches across Canada. Two White men were displaced under the program in the same position but were promoted to higher-paying positions in their branches due to higher performance rankings and greater tenure. The Bank “mapped” the complainant into a lower paying job at another branch in a town other than his prior employment branch. The Bank contended that there was no evidence to support the complainant’s argument that his race, color, or disability were factors in his demotion.
The issue in this case is whether the complainant’s race, colour and/or disability was a factor in the Bank’s decision to demote him when implementing the IRIS program. In addition, whether the Bank’s failure to consider Equity, Diversity and Inclusion (EDI) principles in the termination process under the program constituted adverse effect discrimination.
In order to determine if the Bank’s decision to demote the complainant was discriminatory, the complainant must prove a “connection” rather than a “causal connection” between the challenged conduct and a prohibited ground of discrimination under the CHRA per Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39. There is no legal requirement or mandate for an employer to provide for EDI in reorganization programs where the program is neutral and does not consider the protected characteristics of any impacted employees in its implementation.
The Tribunal determined that although there was an adverse impact given the circumstances, there was insufficient evidence on the balance of probabilities that the complainant’s race, colour, or disability were a factor in his demotion under the program that would constitute discrimination, directly or indirectly, against him by the Bank, contrary to section 7 of the CHRA. The Tribunal accepted the Bank’s evidence that there were legitimate and valid reasons for promoting two White employees instead of the complainant, based on the program’s protocols that used performance, tenure, and location as key factors.
Law, Disability & Social Change 