The Ontario Human Rights Tribunal (the “Tribunal”) recently dismissed a complaint alleging discrimination made by an examiner when her contract with the College of Massage Therapists of Ontario (the “College”) was cancelled. Her contract was cancelled because she was unable to attend a two-day mandatory training session as she had strep throat.
The complainant was a registered Massage Therapist (“RMT”) and was hired on various annual contracts from 2004 to 2011 to conduct examinations for the College’s Objectively Structured Clinical Evaluation (“OSCE”) test.
She was hired again under contract to be an examiner for the 2012 year. As a condition of her contract, she was required to attend a two-day training session on in April of 2012. The training was mandatory. On the day before the training, the individual contacted the College to let them know she had the flu and was stuck in bed the whole day. She was concerned she would be unable to attend the training session the next day.
On April 16, 2012, the first day of the mandatory training, the complainant contacted the College once again to say she would be unable to attend the training, but hoped she would feel better and would be able to attend the next day. That day, the complainant visited her doctor and was diagnosed with strep throat. Later that day, the College contacted the complainant and advised that since she was unable to attend the required training her contract was being cancelled.
Subsequently, the complainant filed an application with the Tribunal alleging the decision to cancel her contract constituted discrimination on the protected ground of disability, contrary to the Ontario Human Rights Code (the “Code”). The complainant argued that having the flu constituted a disability under the Code, and therefore the College had a duty to accommodate her, which they ultimately failed to do.
In response, the College stated that the mandatory training session was a bona fide occupational requirement for an examiner. The College argued strep throat was not a disability under the Code, and therefore they had no duty to accommodate.
The Tribunal rejected the College’s submission that the mandatory two-day training session was a bona fide occupation requirement. The College could have made alternative arrangements if necessary to accommodate the complainant without incurring undue hardship. Nonetheless, the Tribunal ultimately dismissed the complaint, and ruled that strep throat did not constitute a disability under the Code. The Tribunal’s reasoning was that even though human rights legislation is to be interpreted broadly, the Tribunal has previously held that every medical condition does not and cannot constitute a disability under the Code.
In the 1990 decision Ouimette, the Tribunal found that the flu was not a disability. In addition, in the 2009 decision, Anderson, bronchitis was nothing more than a condition commonly experienced by many people. These illnesses are considered commonplace and temporary. They would trivialize actual disabilities protected under the Code.
Furthermore, the flu and strep throat were characterized as “short term common ailments that can and are routinely experienced by just about everyone.” These are transitory and temporary ailments that do not act as barriers for persons to participate in society. While from time to time a complainant may be incapable of working due to sickness, there is no evidence of the degree of permanence and impairment needed to prove disability under the Code. The result of adopting too low of a threshold would detract from the “high purpose” the legislation was designed to serve.
Finally, while these types of short-term minor ailments or common temporary illnesses may not meet the definition of disability, case law has clarified that temporary illnesses trigger the duty to accommodate. In every case involving a disability, even where the impairment is temporary, the duty to accommodate applies during that time as there is a meaningful restriction.
Full link to decision:
By Marty Rabinovitch and Michelle Farb (Student-at-Law)
- The Canada Labour Code & employer releases - April 22, 2020
- The Canada Labour Code & employer releases - March 25, 2020
- What the Coronavirus means for Canadian employers - February 26, 2020