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Miscarriage is a Disability

In a recent interim decision of the Ontario Human Rights Tribunal, adjudicator Jennifer Scott found that miscarriage could constitute a “disability”.  The door was also left open for employees terminated due to miscarriage to claim discrimination due to sex.

In the case of Mou v. MHPM Project Leaders, Mou was off work for approximately 3 weeks in January 2013 due to injuries sustained from a slip and fall accident.  She subsequently suffered a miscarriage in June of the same year and was off work for 2 days.  Her employment was terminated in February 2014 and Mou alleged that the termination related to her absences from work.  In February of 2016, a hearing took place to determine the threshold issue of whether Mou had established that she suffered from a disability.

The employer argued that in order for an illness or injury to constitute a disability, there must be some aspect of permanence or persistence to the condition.  In short, the employer argued that Mou’s health issues were temporary in nature and that Mou fully recovered from them prior to her termination.  Adjudicator Scott felt otherwise.  In coming to her decision she noted that while normal ailments such as a cold or flu are transitory, a miscarriage is not a common ailment and is not transitory.  In reaching that conclusion, Adjudicator Scott made reference to the fact that Mou continued to feel “significant emotional distress from the miscarriage” to the date of the hearing.

No mention is made in the decision as to whether any expert evidence was adduced by the employer with respect to whether miscarriage is a common ailment and it is suspected that no such evidence was provided.  One wonders whether the decision might have been different if the adjudicator had heard evidence to the effect that at least 1 in every 4 pregnancies is believed to end in miscarriage, or that a majority of women have at least one miscarriage during their childbearing years.  While there is no doubt that miscarriage can lead to emotional distress and even physical problems, it is possible that had this expert evidence been provided, it might have affected the adjudicator’s conclusion that miscarriage is not a common ailment.

Separate and apart from the issue of the miscarriage, it is clear from the decision that Mou’s slip and fall injuries also constituted a disability as they took approximately 3 weeks to heal.  Just as importantly, Adjudicator Scott made note of the fact that the employer invited Mou to apply for short-term disability coverage after her slip and fall, which is presumed to have been an indication that the employer believed her to be disabled.

It is important to note that although the Tribunal concluded that a miscarriage can constitute a disability, there has not yet been a final hearing in this case and no determination has been made as to whether Mou’s disability was a factor in her employer’s decision to terminate employment.

The case of Mou v. MHPM Project Leaders may be found here:  http://www.canlii.org/en/on/onhrt/doc/2016/2016hrto327/2016hrto327.html.

 

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Miscarriage is a Disability

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

Employers who undertake reductions in force due to financial difficulties should not count on employee notice periods being reduced as a result of the financial troubles.  This point was recently emphasized by the Ontario Court of Appeal in the decision of Michela v. St. Thomas of Villanova Catholic School.

Michela, Gomes and Carnovale were long-term teachers at St. Thomas of Villanova Catholic School, with 11, 13 and 8 years of service respectively.  All worked under a series of one-year contracts.  In May of 2013, the employer advised each of them in writing that they would not receive a contract renewal for the coming year because enrolment was expected to be lower.  Subsequently, in June of 2013 each of them was provided with a termination letter and advised that notice was not owed because they were employed pursuant to fixed-term contracts.

The claims were dealt with by summary judgment, and the motions judge determined that due to the succession of fixed-term contracts, the employees were really indefinite term employees and entitled to common law notice of termination.  However in determining that the reasonable notice period for each employee should be 6 months rather than the 12 months which was claimed, the judge made reference to the employer’s poor financial position.
In overturning the decision, the Court of Appeal made reference to the Bardal factors used to calculate reasonable notice at common law: the employee’s character of employment, length of service, age, and availability of similar employment having regard to experience, training and qualifications.  The Court found that the motions judge had mistakenly viewed “character of employment” through the lens of the employer rather than the employees, and stated that the financial position of the employer does not factor into the calculation of reasonable notice.  The court confirmed that while an employer’s financial position may be the reason for a termination without cause, the financial position of the employer does not justify a reduction in the notice period in bad times nor an increase when times are good.

For employers considering reductions in force during difficult times, it may be best to consider other options such as a temporary layoffs, ensuring that proper termination provisions are in place which provide only statutory minimums in the event of termination, or the provision of working notice.  While legal advice should be sought in order to ensure the best plan of action, it is clear at the very least that employers should not count on a reduced notice period due to a difficult financial position.

The decision in Michela v. St. Thomas of Villanova Catholic School can be read here:  http://www.ontariocourts.ca/decisions/2015/2015ONCA0801.htm.

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

Don’t Let a Human Rights Application Get “Lost in the Mail”

Until recently, the Human Rights Tribunal of Ontario (the “Tribunal”) would deliver a Human Rights Application to whomever the Applicant listed as the Employer’s contact person.  That person, possibly the Applicant’s supervisor or manager, was often not the appropriate person to deal with the Application on behalf of the Employer, leading to delays in the Employer’s ability to respond to the Application.

The Tribunal has taken steps to remedy this problem in its “Practice Direction on Establishing a Regular Contact Person for an Organization”. The new Practice Direction, effective as of November 2015, allows organizations to designate a regular contact person for the delivery of Human Rights Applications. Where such a person has been designated, the Tribunal will rely on that person as the contact for Human Rights Applications, regardless of which person is named as the organizational contact in the Application itself.

If an organization wants to establish a regular contact for the organization, all the organization has to do is send the following information to the Tribunal Registrar:

  • Name and position of the person making the request;
  • The name and contact information of the contact person, including email address if available; and
  • A request that the Tribunal use the named contact person as the organization’s contact in any applications filed with the Tribunal naming the organization.

Should the contact person for the organization change, the organization would be required to contact the Registrar, designate a new contact person and provide his/her contact information.

An organization’s representative is to be distinguished from a personal respondent.  Where individuals are named as personal respondents in Human Rights Applications, they will continue to be treated as parties and served separately from the organization.

The Practice Direction is available at: http://www.sjto.gov.on.ca/hrto/rules-and-practice-directions/

Don’t Let a Human Rights Application Get “Lost in the Mail”

Patently Unreasonable: BC Supreme Court Rejects Human Rights Tribunal’s Landmark Injury to Dignity Award Which Emphasized Professional Status

In 2013 the British Columbia Human Rights Tribunal found that the University of British Columbia had discriminated against Dr. Carl Kelly when it dismissed him from its Family Medicine Residency Program. Dr. Kelly was awarded damages, including, significantly, $75,000 for injury to dignity, feelings and self-respect. At the time, the high water-mark for this head of damages was $35,000; this had been the result of relatively incremental increases to damages for injury to dignity over time. The award to Dr. Kelly exceeded this threshold by $40,000.

In the case of Dr. Kelly, the Tribunal held that the circumstances were such that a substantial award was appropriate, relying in part on Dr. Kelly’s life-long dream to be a physician and the humiliation and isolation from his family and friends he experienced as a result of his dismissal.

The University sought Judicial Review of the Tribunal’s decision on both the finding of discrimination and the damages awarded. In particular, the University argued that the Tribunal had put undue emphasis on the fact that Dr. Kelly was a medical resident, and that the award of $75,000 created a bifurcated approach to injury to dignity: one for professionals and one for other employees.

On September 24, 2015, the Court did not interfere with the Tribunal’s findings on the merits, but overturned the award of $75,000 on the basis that it was patently unreasonable.

Mr. Justice Silverman found that the award of $75,000 for injury to dignity put undue emphasis on the fact that Dr. Kelly was engaged in medical training and was denied access to his chosen profession. The Court held that in doing so, the Tribunal was elevating damage awards for complainants in professional occupations relative to other categories of employment. Disagreeing with the Tribunal’s finding that Dr. Kelly’s context was inherently unique, the Court held that the Tribunal’s award was patently unreasonable because there was no principled reason why this particular complainant’s circumstances warranted more than doubling the previous highest award.

Importantly, the Court did not comment on what would have been a reasonable award in the circumstances; rather, it remitted the decision back to the Tribunal for reconsideration. It therefore remains open to the Tribunal to grant Dr. Kelly an award for injury to dignity in excess of $35,000, ensuring this case will continue to attract considerable attention.

Patently Unreasonable: BC Supreme Court Rejects Human Rights Tribunal’s Landmark Injury to Dignity Award Which Emphasized Professional Status

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

In Taylor-Baptiste v. Ontario Public Service Employees Union, the Ontario Court of Appeal was faced with the question of whether sexist and offensive posts on a blog created by a union member to discuss workplace issues amounted to discrimination “with respect to employment” contrary to s. 5(1) of the Human Rights Code (the “Code”).

The appellant, Mariann Taylor-Baptiste and the individual respondent, Jeff Dvorak, both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager, and Mr. Dvorak was the president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”). Mr. Dvorak operated a blog about union matters. During a period of labour unrest in early 2009, Mr. Dvorak authored a blog post, and approved the posting of a comment written by another worker, that accused Ms. Taylor-Baptiste of, among other things, nepotism (suggesting she only obtained her position because of her relationship with her boyfriend) and incompetence. Ms. Taylor-Baptiste brought an application to the Human Rights Tribunal (the “Tribunal”), alleging discrimination “with respect to employment” contrary to s. 5(1) of the Code and harassment “in the workplace” contrary to s. 5(2) of the Code.

The Tribunal found that although postings on blogs can form part of or an extension of the workplace and the postings were sexist and offensive, these particular blog posts did not amount to harassment “in the workplace” contrary to s. 5(2) of the Code. This finding was not challenged on appeal to the Court of Appeal. With respect to the allegation of discrimination “with respect to employment”, the Tribunal considered that the comments were made by Mr. Dvorak “in the course of his duties as a … union president”, and therefore his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedom (the “Charter”). As a result, the Tribunal found that the blog posts did not contravene either section of the Code. At the request of Ms. Taylor-Baptiste, the Tribunal reconsidered its decision and upheld the initial decision.

The Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review, holding that the Tribunal’s decision was reasonable.

Ms. Taylor-Baptiste appealed to the Court of Appeal. The Court of Appeal considered whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe her right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.

The Court of Appeal found that the Tribunal was entitled to take into account Charter values within its scope of expertise, and that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code fell within the very core of the Tribunal’s expertise. The Court of Appeal also found that the Tribunal properly identified freedom of expression and freedom of association as relevant Charter rights in regard to the circumstances of this case. Section 2(b) of the Charter (freedom of expression) protects a broad range of expressive activity, including “distasteful” expression, so long as it does not reach the point of violent expression or is not, for example, hate speech. Freedom of association, on the other hand, was relevant because the blog posts dealt with union-management relations and were related to union issues, notwithstanding the sexist language. [In fact, the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 2(d) of the Charter.]

The Court of Appeal then considered whether the Tribunal properly balanced the relevant Charter values with the objective of the Code. The Court of Appeal found that the Tribunal appropriately balanced the statutory objective of protecting of Ms. Taylor-Baptiste from a poisoned work environment against the Charter rights of freedom of expression and freedom of association. Based on the foregoing reasons, the Court of Appeal concluded that the Tribunal’s decision was reasonable, and upheld the dismissal of Ms. Taylor-Baptiste’s Application.

The implications of this decision remain to be seen, but it is important to note that the Court of Appeal was careful to state that its decision applied only to the facts at hand, and that it was not creating a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code.

 

Human Rights Tribunal of Ontario: Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII).

Human Rights Tribunal of Ontario (Reconsideration Decision): Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII).

Divisional Court: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169 (CanLII).

Court of Appeal: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 (CanLII).

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

Creed and Association: Breach of Human Rights Leads to Harsh Penalties

The decision in H.T. v ES Holdings Inc. o/a Country Herbs (“Country Herbs”) 2015 HRTO 1067 (CanLII) (“Country Herbs”) serves as a reminder to employers of the significant liability that they face when a claim of discrimination is made out.

H.T. and J.T. were hired when they were 16 and 14 respectively. The undisputed evidence was that their mother, S.T., had advised the employer early on in H.T.’s employment that she could not work later than 9:30 or 10:00 p.m., to which the employer agreed. H.T. notified the employer twice that she was a Mennonite, and that she was unable to work on Himmilfaurt, which was a Mennonite religious holiday. H.T. was told that the attendance policy required that she come in at midnight on the holiday to complete her work if she did not work her scheduled daytime shift. H.T. declined the midnight shift, on the basis that she had already advised the employer that she could not work past 10:00 p.m. J.T. was not scheduled to work that day, so J.T. had no issue. While the applicants were at church, the employer called S.T. and, upon being told again that H.T. would not be working that day or at midnight, terminated both S.T.’s and J.T.’s employment.

Ultimately, the Adjudicator found that J.T. was fired “because of his association with his sister who had asserted her right not to work on the holiday, and with whom he shares the same religion”.

In terms of H.T., the Adjudicator found that the policy was discriminatory and there was a prima facie case of adverse treatment. Although the Adjudicator was satisfied that that the employer had adopted the attendance policy for a purpose rationally connected to the performance of the job and in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work-related purpose, ultimately she held that the employer had not considered the procedural duty to accommodate; based on the evidence, the employer had not engaged in a discussion of how to accommodate H.T. after she twice raised the issue of not working on the holiday. Moreover, “with respect to the substantive duty to accommodate, the only alternative offered was for H.T. to work at midnight. Given her particular circumstances and the agreement of the employer that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her”.

In contrast with an allegation of discrimination, a reprisal claim requires the applicant demonstrate that the respondent purposefully punished or retaliated against the applicant. The Adjudicator concluded that the reprisal complaint was made out, because the employer discussed with the applicants that they could be fired for not working on the holiday and gave evidence that they were terminated so that others would not disregard the attendance policy.

The HRTO awarded the following:

  • that the employer pay lost wages of one month to H.T. and five months to J.T., who had both mitigated by seeking work after their termination;
  • that the respondents (both the employer and the directing minds of the employer) pay damages for injury to dignity, feelings, and self-respect, in the case of H.T. the sum of $10,000, and J.T. the sum of $7,500;
  • that the respondents implement an internal Human Rights policy, specifically including a prohibition on discrimination on the bases of creed or association;
  • that the respondents undergo the Ontario Human Rights Commission’s online training “Human Rights 101”, and provide written confirmation to the applicants; and
  • that the employer post Code cards in central locations throughout their workplace, including any place where staff gathers for breaks or meetings, to encourage future Code compliance.

This decision underscores the importance of compliance with the Code, as well as the gravity of discrimination on the above-noted prohibited grounds. Employers are well-advised to ensure they implement policies that accommodate their employees to the point of undue hardship, from both a substantive and procedural standpoint, or risk significant monetary penalties and the involvement of the HRTO in their workplace.

Creed and Association: Breach of Human Rights Leads to Harsh Penalties

Transgender Employees: Best Practices

Transgender rights are a burgeoning area of law across Canada. Most recently, amendments made to the Alberta Bill of Rights on March 10, 2015, which came into force on June 1, 2015[1], recognize gender identity and gender expression as being explicitly protected.[2] Newfoundland & Labrador recently promised to introduce a bill to amend provincial legislation so gender assignment surgery would no longer be required to change the sex designation on identity documents.[3] Likewise, the Yukon NDP tabled a petition for transgender equal rights in April, and in May, the Legislative Assembly debated amending legislation to allow changes of gender assignment on birth certificates without surgery.[4] Although British Columbia was the first province to eliminate the surgical requirement for amending sex designation, the Liberal government has repeatedly declined to sign a pledge supporting transgender equality legislation, attracting the ire of the Vancouver Pride Society. All of this follows on the heels of changes in human rights legislation in Ontario, Manitoba, and, at an as yet undetermined date, Nova Scotia.

In April 2014, the Ontario Human Rights Commission published its Policy on preventing discrimination because of gender identity and gender expression[5] (the “Ontario Policy”). The Ontario Policy defines gender identity as an individual’s sense of being a man, a woman, both, neither, or anywhere along the gender spectrum, which may be the same as or different from his/her birth-assigned sex. Gender expression is how a person publicly expresses or presents their gender, including behaviour, outward appearances such as dress or hair and makeup, and chosen name and pronoun.

Many other provinces have endorsed the Ontario Policy, recommending its guidelines as a useful resource for employers. The following are a few suggestions for Canadian employers supporting new transgender employees or current employees in the process of transitioning:

Accepting Gender Based on Self-Identification

The Ontario Human Rights Tribunal made it clear in 2012 that it is discriminatory for an employer to insist that an employee be treated in accordance with the gender assigned at birth for employment purposes, because such behaviour fails to treat that person in accordance with his/her “lived and felt” gender identity.[6] Tribunals/Courts in Ontario[7] and Alberta[8] have held that the former requirement for changing sex designation on birth documents (sexual reassignment surgery and corroborating statements from two physicians) is discriminatory and unnecessary.

All of the above strongly supports the notion that regardless of an individual’s birth-assigned sex, employers should be accepting of an employee’s self-identified gender and should not request further documentary proof.

Use of Preferred Name/Pronoun

Employers should support a new transgendered employee or a currently transitioning employee by using the employee’s preferred pronouns and names and, where possible, updating corporate records to reflect the same (including email signatures and letters of reference). Where documents reflecting an individual’s legal name/gender are issued, such as a record of employment or a T4, the individual’s preferred name/gender should be included alongside the legal name, wherever feasible. The Ontario Policy recommends that employers question whether there is a legal requirement for the collection of information about gender, and if such information is legally required (e.g. legally accurate SIN information is required for income tax purposes), there should be policies in place to ensure the confidentiality of the information.[9]

A Flexible Dress Code

If an employer has a dress code in place, such rules should not have a negative effect on transgendered employees. Employees must be allowed to dress in accordance with their expressed gender, and dress code policies should be flexible and accommodate transgender or gender non-conforming individuals (e.g. employees should not be required to wear clothing stereotypical of their birth gender, such as ties for men or skirts for women).[10]

Human rights legislation pertaining to transgender rights in all of the provinces is evolving at a rapid pace and Canadian employers would be well advised to ensure their workplace policies are inclusive and up to date. Developing transgender-friendly guidelines and rules will both foster a positive and productive work environment, as well as shield an employer from liability for discrimination, intentional or unintentional.

[1] Trans Equality Society of Alberta Fact Page, “Human Rights Across Canada,” last updated: July 2015, available online: http://www.tesaonline.org/human-rights-across-canada.html (“TESA Fact Sheet”).
[2] RSA 2000, c A-14.
[3] CBC News, “Transgender activist Kyra Rees wins court battle over IDs,” posted: July 22, 2015, available online: <http://www.cbc.ca/news>.
[4] Yukon Legislative Assembly, Official Report of Debates (Hansard) 33rd Legislature, 1st Session, No 212 (13 May 2015) at 6375-6376.
[5] Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression, released: April 14, 2014, available online: http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression (the “Ontario Policy”).
[6] Vanderputten v Seydaco Packaging Corp., 2012 HRTO 1977 at para 66 (available on CanLII).
[7] XY v Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).
[8] CF v Alberta (Vital Statistics), 2014 ABQB 237 (CanLII).
[9] The Ontario Policy at p 35.
[10] Ibid at p 41.
Transgender Employees: Best Practices

The OHRC’s Christmas Present – A New Statement on Sexual Harassment in the Workplace

Ontario’s Human Rights Commission issued a statement on November 25, 2014 in relation to sexual harassment and the Ontario Human Rights Code. The statement reminds employers as to what constitutes sexual harassment as well as how to prevent it or deal with it in the workplace. The statement also links the Commission’s Policy on Preventing Sexual and Gender-Based Harassment.

The primary recommendations of the Commission are as follows: (i) employers should have a clear and comprehensive policy in place; (ii) employers should ensure that all employees have access to the policy and are aware of their rights and responsibilities; and (iii) employers should ensure that all employees in positions of responsibility have been trained in relation to the policy.

While the statements and policies of the Commission do not have the force of law and instead simply set out the Commission’s interpretation of the law as of the date of posting, they are a good reminder of what the Ontario Human Rights Tribunal looks to when determining a sexual harassment complaint.

For more information, the Commission’s recent statement can be reviewed at the following link: http://www.ohrc.on.ca/en/news_centre/sexual-harassment-and-ontario-human-rights-code.

 

The OHRC’s Christmas Present – A New Statement on Sexual Harassment in the Workplace

The Ontario Human Rights Tribunal – Is There an Appetite For Costs Awards?

No client likes to have a human rights application brought against it before the Ontario Human Rights Tribunal.  And no client is happy to hear that even if it is successful and fully exonerated, there is no real scope for recovering legal costs incurred in defending the application.  What may just be an unhappy cost of doing business for organizations is even more problematic for individual Respondents however, as they may be saddled with large legal bills and have no real recourse against the Applicant.  This can be particularly problematic under the current human rights scheme in Ontario, where Applicants can bring forward complaints without incurring the cost of retaining legal counsel or paying any filing fees, and without any screening of the legitimacy of the complaint by the Tribunal.  In relation to the awarding of costs, however, the situation may be about to change.

Bill 147, Human Rights Code Amendment Act (Awarding of Costs), 2013 (“Bill 147”) is a Private Member’s bill brought forward by Randy Hillier, a Progressive Conservative MPP.   Bill 147 would amend the Ontario Human Rights Code to permit the Tribunal to order costs in favour of a successful party, either by way of fixing costs or assessing costs.  Given that Bill 147 is a Private Member’s bill brought by the a member of the Official Opposition, ordinarily it would stand little chance of being enacted into law.  That said, Bill 147 passed First Reading in the Ontario Legislature in December 2013, so there is clearly some appetite by the Government to consider this issue.

Even if Bill 147 is ultimately passed, the Tribunal may be hesitant to make adverse costs awards against individuals or those with limited means.  That said, there will at least be the prospect that a Respondent falsely accused of discrimination or harassment will have some degree of recourse.  Of course, it also means that a successful Applicant can seek to recover costs against a Respondent found in violation of the Code.

Bill 147 has not yet progressed beyond First Reading. Bill 147 can be reviewed at the following link.  

The Ontario Human Rights Tribunal – Is There an Appetite For Costs Awards?

Ontario’s New Human Rights Policy

In mid-June, the Ontario Human Rights Commission released a new policy entitled “The Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions” (the “Disability Policy”), which builds on the Commission’s prior Policy and Guidelines on Disability and the Duty to Accommodate.

The Disability Policy covers some of the following areas: recognizing mental health disabilities and addictions, establishing discrimination, forms of discrimination, reprisal, the duty to accommodate, undue hardship, and preventing and responding to discrimination (including the development of policies, education and training). Although the Disability Policy covers protection from discrimination in the course of employment, it also applies to protection from discrimination in relation to goods, services, accommodation and housing.

Particularly important for employers to note is the Commission’s statement that when employees request accommodation due to disability, the employer is not generally to “second guess” the health status of an employee. That presumption can be overruled in a situation where there is a legitimate reason to question the employee; however the general rule is for the employer to take the request in good faith without seeking additional medical documentation. In the words of the Commission, “Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make the accommodation”.

Similarly, an organization must not ask for more confidential medical information than necessary because it doubts the person’s disclosure of his/her disability based on its own impressionistic view of what a mental health disability or addiction disability should “look like”.

As also stated in the Disability Policy, “In the rare case where an accommodation provider can show that it legitimately needs more information about the person’s disability to make the accommodation, it could ask for the nature of the person’s illness, condition, or disability, as opposed to a medical diagnosis”.

While the Disability Policy does not set out new law, it is a helpful summary of the current state of the law with respect to discrimination due to disability and the duty to accommodate, and it should be reviewed by employers dealing with mental health disabilities (including addictions) in the workplace. One note of caution, however: this is an evolving area of law, and the Disability Policy, like all policies of the Commission, do not have the force of law; they merely set out the Commission’s interpretation of the law as of the date the Policy is posted.

The Disability Policy can be found at the following link:  http://www.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf.

Ontario’s New Human Rights Policy