As an employment law practitioner, it is refreshing to see any court and/or administrative tribunal release a decision that makes “common sense” (as well as legal sense). Recently, the Ontario Human Rights Tribunal had to determine if the common flu and strep throat constituted disabilities under the Human Rights Code in Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960. In doing so, the Tribunal held that not every illness will constitute a disability and attract the protection of the Code.
In this case, the Applicant alleged that the Respondent had terminated her employment because she was unable to attend a mandatory 2-day training session because she had the flu and/or strep throat and this constituted discrimination on the basis of disability contrary to section 5 of the Code. The Respondent argued, unsuccessful, that the training was a bona fide occupational requirement. The Tribunal held there appeared to be no reason why the training could not be postponed to another day. However, the Tribunal ruled this was irrelevant because the Applicant never had a disability attracting the protection of the Code in the first place.
On this issue of whether the “flu” or “strep throat” constituted a disability, the Tribunal held the purpose of the Code was to protect marginalized people and that not every common illness was ever intended to be considered a disability deserving of the Code’s protections:
Although human rights legislation is to be interpreted broadly, the Tribunal has held that not every medical condition constitutes a disability within the meaning of the Code. In Ouimette v. Lily Cups Ltd. (1990) 12 C.H.R.R. D/19 the Board of Inquiry found that the flu is not a disability. The Board found that to consider commonplace, temporary illnesses as disabilities would have the effect of trivializing the Code’s protections. The Board noted that the Code calls for defined groups to be protected and the Board was of the view that it was not the intent of the legislation to include literally everyone suffering from a few days illnesses.
In Anderson v. Envirotech Office Systems, 2009 HRTO 1199 (CanLII), the Tribunal determined that bronchitis was not a disability under the Code noting that the applicant had not shown that her bronchitis was anything more than a condition “that is commonly experienced by many and had no impact on his ability to participate fully in our society”.
The Tribunal held that either the “flu” or “strep throat” were “short term common ailments that can and are routinely experienced by just about everyone and as such they do not constitute a disability under the Code”. The Tribunal concluded:
I remain of the view that the flu and strep throat as experienced by the applicant does not constitute a disability under the Code given that these are transitory ailments that do not act as barriers for persons to participate in society. While having these conditions did result in the respondent taking an action with significant affect for the applicant they are of a commonplace nature such that to consider them a disability would have the effect of trivializing the Code’s protections.
This decision is a reminder that not all illnesses and sicknesses will constitute disabilities and employers should scrutinize employees claims to determine if they truly should attract the attention of the Code.
Simon Heath LL.B, M.I.R.
Heath Law, Employment Lawyers
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