HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Candace Burgess
Applicant
-and-
College of Massage Therapists of Ontario
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Burgess v. College of Massage Therapists of Ontario
APPEARANCES
Candace Burgess, Applicant
Self-represented
College of Massage Therapists of Ontario, Respondent
Naomi Loewith, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 3, 2012 alleging discrimination on the basis of disability.
BACKGROUND
2The respondent designs and administers examinations for candidates seeking certification in Ontario as Registered Massage Therapists. One of the two required examinations is a test of practical skills called the Objectively Structured Clinical Evaluation (“OSCE”). To conduct this examination the respondent contracts a team of examiners to assess participating candidates. Examiners are required as a condition of their contract to attend a mandatory two day training program. Each year the respondent schedules OSCE examinations twice weekly from May to December.
3The applicant is a Registered Massage Therapist. From 2004 to 2011 she was hired on annual contracts to be an OSCE examiner for the respondent. The applicant was again hired on contract to be an examiner in 2012. She was required as part of this contract to attend a two day mandatory training session on April 16 and 17, 2012.
4On April 15, 2012, the applicant contacted the respondent to communicate that she had been in bed all day with the flu and was concerned that she might not be able to attend the scheduled training on April 16. Early on April 16 she again contacted the respondent to say that she believed she would not be attending the training on April 16 and expressed some hope she would be able to attend on April 17. Later on April 16 the respondent contacted the applicant to state that as the applicant was unable to attend the required mandatory training her contract to act as an OSCE examiner in 2012 was being cancelled.
5The applicant alleges that this decision to cancel her contract is an act of discrimination on the basis of disability. The applicant submits that the respondent had a duty to accommodate her disability which it failed to do. The respondent submits that its mandatory two day training was a reasonable and bona fide occupational requirement for OSCE examiners. It further submits that the applicant’s illness is not a disability as defined under the Code and consequently it had no obligation to accommodate the applicant’s illness and its decision to cancel the applicant’s contract was not a violation of the Code.
6A summary hearing was held on October 29, 2012, to consider whether the Application should be dismissed as having no reasonable prospect of success. In a Decision dated October 31, 2012, 2012 HRTO 2077, the Tribunal determined that it could not, without evidence, conclude that the Application had no reasonable prospect of success and, accordingly, it ordered that a hearing be held to consider the merits of the Application.
7This hearing was held on November 8, 2013. At the outset of the hearing the respondent requested that the named personal respondent, Rebecca Samms, be removed as a respondent. The applicant consented to this request which I granted being satisfied that Ms. Samms’ alleged discriminatory actions were ones carried out in the course of her normal duties and there was no issue as to the ability of the College of Massage Therapists of Ontario, the named corporate respondent, to respond to or remedy any alleged Code infringement. The style of cause has been amended to reflect that Ms. Samms has been removed as a respondent.
8At the outset of the hearing it was also agreed that the applicant’s allegations of discrimination were ones with respect to employment under section 5 of the Code, regardless of whether the termination of the applicant’s contract constituted an act of discrimination in regards to the right to contract under section 3 of the Code.
9At the hearing I heard evidence from the applicant and her spouse, Roger Burgess and four witnesses for the respondent; Penny Connors, the Director of Registration and Certification Services, Simone Valere, a Content Specialist for the respondent; Rebecca Samms the Co-ordinator of Certification Services and Lee Schroeder, President of Schroeder Measurement Technologies Inc., a psychometerician who has been employed by the respondent to evaluate and improve the OSCE examiner training process. Both parties disclosed documentary evidence and the respondent also filed case law for my consideration.
DECISION
10The Application is dismissed. I find that the medical condition that prevented the applicant from attending the April 16 and 17, 2011 training does not constitute a disability under the Code and consequently the respondent’s decision to end her contract for failing to attend this training is not an act of discrimination under the Code.
SUMMARY OF EVIDENCE
11I need only briefly summarize the evidence I heard on certain issues given my decision is based on a finding that the applicant’s medical condition does not constitute a disability under the Code.
12I heard evidence from the respondent’s four witnesses as to why the two day training session was a mandatory requirement for persons who had been contracted to act as examiners for the OSCE. The OSCE has seven components or stations that each feature a “patient” (played by an actor) presenting a physical problem or issue for the person taking the exam to resolve. Each station has two examiners who independently assess and score the candidate’s responses and actions.
13Each station has approximately six different scenarios that are randomly used to test the examinees. New scenarios are developed each year. Each station requires a pool of trained examiners so that there will be sufficient examiners available to conduct the large number of OSCE exams that are conducted from May to December. In 2012 approximately 45 examiners were trained.
14I heard evidence from the respondent that it was critical that the examiners assigned to a specific station have a common understanding of each of the scenarios being used and their purpose and how they were to assess and score candidates in order to ensure that candidates were being consistently assessed and graded. I heard evidence that the training includes going through mock assessments and grading to confirm that there is a shared understanding of what examiners are looking for and how they will assess performances. Part of this evidence was provided by Lee Shroeder, a psychometrician hired by the respondent in 2007 to, in part, evaluate the OSCE process by reviewing the examiner training program to improve the objectivity of the examiners’ assessments. It was evident that the respondent was of the view that the two day mandatory training was a key measure in promoting a fair and objective OSCE process.
15I did hear evidence that on two occasions the respondent did allow an examiner to participate in the OSCE examinations without having attended the mandatory training. Once was in 2010 when an examiner was dismissed sometime after the examiner training had been completed (for having lost their written examination materials) and there was a need to replace this person. On this occasion individual training was provided to a new examiner. The other occasion was, it appears, in February 2011 when the respondent was in the process of recruiting potential OSCE examiners and it identified what it considered to be a particularly strong examiner only to find out this person would not be available for that year’s mandatory training. The respondent determined that as the person in question was a particularly desirable candidate and that as it had some time before the OSCE examinations were to begin (in May) it could provide this person with individual training which it did.
16The applicant provided further evidence about the nature of her illness. She testified that she initially felt she had the flu. There was no dispute that when she contacted the respondent on April 15, 2012 that it was to tell them that she had the flu and that she would not likely be able to attend the training on April 16, 2012.
17The applicant testified that she saw her doctor on April 16 at which time she was administered a throat swab. She testified that on Thursday April 19 her doctor told her that she had strep throat which would require her to take an antibiotic (penicillin). The applicant testified that strep throat is an inflammation of the lymph nodes around the throat that can become more serious if not treated by antibiotics, noting that it can potentially affect the heart and other major organs.
18The applicant testified that she did not begin to feel better until Friday April 20 at which time she went back to work seeing private clients. She testified that while her illness was of a short duration it was the reason (and only reason) she was unable to attend the OSCE training.
19Given my decision to dismiss this Application I have not referred to the testimony of the applicant and her spouse about the effect the respondent’s decision to cancel her contract had on her both emotionally and financially and the remedies she proposed in the event I was to find that the respondent’s actions constituted a violation of the Code.
ANALYSIS
20Sections 11 and 17 of the Code state that:
- A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
- (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
21It was the central contention of the respondent that it was reasonable for them to require all examiners to attend the two day OSCE training. Indeed, it submitted that requiring a person to participate in this training was a bona fide occupational requirement and that if a person could not attend this training because of a disability than this was not an act of discrimination pursuant to sections 11 and 17 of the Code.
22The respondent submits that requiring persons to attend this training can be justified based on the requirements set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), for determining whether a qualification or restriction imposed by an employer constituted a “bona fide occupation qualification.” The three elements of the test set out in Meiorin are:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and,
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
23It is evident that the respondent views its mandatory training as fundamentally important and I accept that it is a means by which the respondent can establish consistent and objective measures for the testing of candidates who wish to become Registered Massage Therapists. It is evident that the respondent has developed its training materials and training program for OSCE examiners in good faith and considers this training critical for administering its OSCE testing in a fair and consistent manner.
24However, it is not evident, based on the evidence before me, that it is necessarily an undue hardship to train persons to be examiners in situations where persons are unable to attend this training. The evidence before me is that on two occasions the respondent was able to accommodate persons who did not attend this mandatory training by providing individualized training. I understand that this is not a preferred option and only occurred under exceptional circumstances but I am not satisfied, based on the evidence before me, that the respondent would be unable to provide such training, if a person was unable to attend the mandatory dates set for training for a Code-related reason, that to provide this training at another time would cause an undue hardship. I note here that the respondent did not argue that the two persons who were individually trained in 2010 and 2011 were unable or less able to successfully carry out the duties of an OSCE examiner because they failed to attend the mandatory training.
25The respondent did submit that there was not enough time to potentially train the applicant between the scheduled mandatory training on April 16 and 17 and the beginning of the OSCE examinations in May, in part because of the limited availability of a trainer during this period. However, the respondent did not, in my view, establish that it would have been an undue hardship to provide this training in this relatively brief period of time to the applicant who, after all, would have already had some significant knowledge of the job requirements having been an OSCE examiner for the previous 7 years (2005-2011.)
26I am not satisfied that the respondent has demonstrated that attending the mandatory two day training on the specific days scheduled is a bona fide requirement to become an OSCE examiner and that it would have been unable to accommodate the applicant without undue hardship.
27However, as stated earlier, the determinative issue in this case for me is that I do not find that the respondent’s decision to terminate the applicant’s contract for 2012 is an act of discrimination because, in my view, the applicant did not have a disability; she did not belong to a group protected by the Code.
28“Disability” is defined in section 10 of the Code;
“disability” means,
(a)any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
29Although 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) 1990 CanLII 12497 (ON HRT), 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.
30In Anderson v. Envirotech Office Systems, 2009 HRTO 1199, 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”.
31It is not entirely clear what medical condition the applicant did have during the period April 16 to 19, 2012. She self-identified it as flu and communicated that she had the flu to the respondent. It appears her doctor later diagnosed that she had strep throat which appears to be a condition she had in addition to the flu. However, whether the applicant had flu then a strep throat, or both conditions simultaneously, I am of the view these are 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
32The applicant submitted that strep throat can be a more serious condition if not treated. However, the evidence before me was that the applicant’s strep throat was treated and was resolved the day after she began to take medication, at least to the degree that she felt better and could return to work. The fact that the applicant required medical attention for her strep throat and the fact that strep throat can potentially become serious in some cases does not lead me to find that the strep throat the applicant experienced constitutes a disability. I had no medical documentation or other evidence to suggest that the applicant’s strep throat and flu were anything but commonplace, transitory ailments.
33In making my determination that the applicant did not have a disability I am mindful that the Supreme Court has indicated that when considering the issue of disability it is necessary to consider the disability in a broader context. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, 2000 SCC 27 the Supreme Court attempted to provide a series of guidelines that would facilitate interpretation of the meaning of disability (at the time referred to as “handicap”). The Court states:
Thus, a “handicap” may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a “handicap” for the purposes of the Charter.
Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. In examining the context in which the impugned act occurred, courts must determine, inter alia, whether an actual or perceived ailment causes the individual to experience “the loss or limitation of opportunities to take part in the life of the community on an equal level with others”: McKenna, supra, at pp. 163 and 164. The fact remains that a “handicap” also includes persons who have overcome all functional limitations and who are limited in their everyday activities only by the prejudice or stereotypes that are associated with this ground...a multidimensional approach that considers the socio-political dimension of disability is necessary
34However, there are limits to the definition of “disability”. While the appropriate approach in applying facts to the definition of “disability” is to be broad, it is not to be so broad as to render the definition of “disability” meaningless. Again, in Montreal (City), at para. 82, the Supreme Court cautioned:
These guidelines are not without limits. Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.
35I 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.
36For these reasons the Application is dismissed.
Dated at Toronto, this 27th day of November, 2013.
“signed by”
Eric Whist
Vice-chair