Mou v. MHPM Project Leaders, 2016 HRTO 327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wenying (Winnie) Mou

Applicant

-and-

MHPM Project Leaders

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: March 14, 2016 Citation: 2016 HRTO 327 Indexed as: Mou v. MHPM Project Leaders

APPEARANCES

Wenying (Winnie) Mou, Applicant Morgan Rowe, Counsel

MHPM Project Leaders, Respondent Raquel Chisholm, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that her employment was terminated by the respondent, in whole or in part, because of her disability.

2A hearing was held in Ottawa on February 24 and 25, 2016. The applicant testified on February 24, 2016.

3The applicant's case consists solely of her evidence. At the close of the applicant's case, the respondent renewed an earlier request that it had made to dismiss the Application on the basis that it has no reasonable prospect of success.

4I heard the applicant's dismissal request on February 25, 2016. The sole issue on the request is whether the applicant has established a disability. This is my decision on that issue.

Disability Alleged in the Application

5In the Application, the applicant alleges that she experienced a series of events in 2013 that profoundly affected her health and well-being. In particular, the applicant alleges that in January 2013, she was injured as a result of slipping and falling on ice. The applicant was required to take time off for this injury and although she attempted to return to work a number of times, she was not able to do so until late January 2013.

6In May 2013, the applicant learned she was pregnant with her first child. In early June 2013, the applicant suffered a miscarriage. Shortly thereafter, the applicant's mother-in-law passed away. The applicant alleges that both of these incidents combined to trigger a severe and disabling depression.

7The applicant alleges further that as a result of her absences from work, she did not achieve her required 1800-hour target for 2013. She states that in her interim and annual performance evaluations for 2013, her supervisor specifically identified a need for the applicant to improve on her ability to meet scheduled delivery objectives. The applicant states she received her first "I - Improvement and/or further development is required to consistently meet job expectations" grade.

8The applicant was terminated on February 27, 2014. When the applicant requested a reason for her termination, she was told "draw your own conclusions". The applicant alleges that given the timing and circumstances of her termination, the respondent's reliance on performance concerns directly linked to the applicant's disability, and its failure to accommodate the applicant's health concerns throughout 2013 and 2014, her termination was linked in whole or in part to her disability.

Applicant's Evidence at the Hearing

9The applicant testified that she slipped and fell on ice on January 2, 2013. She testified that she went to the Emergency Department and was diagnosed with a deep tissue injury. The applicant testified she could not move the left side of her body, could not type, and was put on heavy pain medication. The applicant attempted to return to work on January 10, 2013, but was asked to leave because she was not well. The applicant attempted to return to work on January 15, 2013. Again, she was unable to do so and left early on that day. On January 17, 2013, the applicant was advised to contact Human Resources to initiate a short term disability application. The applicant subsequently discovered there was no short term disability available with the respondent. The applicant successfully returned to work on January 21, 2013.

10The applicant had a miscarriage on June 12, 2013. She took two days off work as a result of the miscarriage. The applicant testified that she did not take any more time off because of an impending work deadline on July 1, 2013. The applicant took this time off as vacation because she had exhausted her five-day sick leave allowance in January 2013.

Dismissal Request

11The respondent argues the Application should be dismissed because the applicant has failed to establish a disability. It asserts that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition. The respondent states the health issues experienced by the applicant in 2013 were temporary in nature and the applicant fully recovered from them. As such, they did not affect the applicant's participation in the workplace or in society. The respondent argues further that the applicant cannot rely upon any diagnosis of depression because it occurred post-termination. The respondent acknowledges the applicant had a "bad year" in 2013, but argues a "bad year" does not constitute a disability.

12In response to the dismissal request, the applicant argues her disabilities were the slip and fall and miscarriage. The applicant alleges that she was discriminated against when the respondent relied upon her absences from work because of these disabilities when it decided to terminate her employment. In the alternative, the applicant argues the respondent perceived her as a person with a disability in that she was seen as someone who gets sick often and would continue to need time off as a result. The applicant does not allege that she was disabled because of depression.

What is a Disability?

13Disability is defined in section 10 of the Code. Physical disability is defined in subsection 10(a), which states:

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 appliance or device.

14Section 10(3) of the Code provides that a disability does not have to be permanent. It states the "right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability" (emphasis added).

15When determining what constitutes a disability, the Supreme Court of Canada has said it is necessary to consider the broader context. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 SCR 665 ("Montreal"), the Court provided the following guidance on what constitutes a disability, at paragraphs 79 and 80:

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 of these circumstances that determines whether the individual has a "handicap" for the purpose 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. 164 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….

16Although the definition of disability should be broadly interpreted, it should not be so broadly interpreted that it is rendered meaningless. As the Supreme Court of Canada cautioned in Montreal at paragraph. 82:

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.

17The Tribunal and the former Board of Inquiry have found that "normal ailments" are not disabilities under 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 held 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.

18Similarly, in Valmassoi v. Canadian Electrocoating Inc., 2014 HRTO 701, the Tribunal held absences from work due to flu-like symptoms, gastroenteritis and sinusitis are not covered by the Code because they are common ailments which are temporary in nature and as such, do not constitute a disability.

19In Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960, the Tribunal held the flu and strep throat are not disabilities because they are transitory ailments that do not act as barriers for persons to participate in society.

Has the Applicant Established a Disability?

20The applicant has established a disability. In my view, injuries resulting from a slip and fall that take almost three weeks to heal constitute a disability under the Code. The applicant attempted to return to work on two occasions, but was unable to do so because of the extent of her injuries. The respondent advised the applicant to inquire about short term disability coverage. An injury of this nature is not a common ailment, nor is it transitory. It is different from the flu and the common cold, which take a few days to get over and affect many people. The injuries experienced by the applicant impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time.

21I also find the applicant's miscarriage is a disability. I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant's testimony that she continues to experience significant emotional distress from the miscarriage even today.

22It does not appear to be in dispute between the parties that the applicant had recovered from her slip and fall injury and from her miscarriage at the time of termination in February 2014. However, the Code does not require a disability to be present at the time of adverse treatment. The protections under the Code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination. In many cases, an applicant's disability is present at the time of the adverse treatment. That does not mean, however, that there is no protection under the Code if the disabling condition has been successfully treated at the time of the adverse treatment. The question is simply whether the disability, regardless of when it occurred, was a factor in the adverse treatment.

23I therefore disagree with the assertion that in order to constitute a disability, the condition must have an aspect of permanence and persistence. It is clear that a disability may be temporary pursuant to the wording of section 10(3) of the Code. For this reason, I decline to follow the Tribunal's decision in Davidson v. Brampton (City), 2014 HRTO 689, on this point.

24The respondent argues the applicant asserted a new disability in response to the motion to dismiss. I agree that in the Application, the applicant alleges her disability was depression resulting from her health concerns in 2013. That said, the applicant also complains about the respondent's treatment of her work-related absences as a performance issue when those absences were connected to her health. The applicant relies on the slip and fall and the miscarriage, and the absences from work that resulted from each. Thus, the respondent had notice that the applicant's complaint of discrimination related to the respondent's treatment of her absences from work as a performance issue.

25For these reasons, I find the applicant has established a disability under the Code and the respondent's motion to dismiss the Application is denied. In light of this finding, it is not necessary for me to determine whether the respondent perceived the applicant to be disabled. No finding has been made as to whether the applicant's disability was a factor in the respondent's decision to terminate the applicant's employment.

Order

26The respondent's request to dismiss the Application is denied.

27A case management conference call will be scheduled as soon as possible to discuss the process for the hearing continuation.