Disability Discrimination Ultimate Guide
This is the ultimate guide to disability discrimination and a complete guide regarding suing for disability discrimination. In this Disability Discrimination Definite Guide, we'll talk about Ontario cases, Supreme Court cases, Human Rights Tribunal decisions, and decisions from other administrative tribunals regarding disability discrimination, protections available against disability harassment, and legal defence against disability claims. Continue reading to learn more.
1. What is Disability Discrimination?
“Disability” is defined at section 10(1) of the Ontario Human Right Code (the Code) and includes physical and mental conditions as well as workplace injuries. The test for discrimination on the ground of disability requires an applicant to demonstrate (1) they are a person with a disability as defined by the Code, (2) they were subjected to differential or adverse treatment in employment; and (3) their disability was at least one factor in their treatment.
Section 17 of the Code is an interpretive provision which effectively creates a duty to accommodate on an employer to the point of undue hardship for a disabled employee who can still perform the essential duties of their job. Section 17 (2) specifies the factors relevant to undue hardship, being cost, outside sources of funding, if any, and health and safety requirements, if any. Business inconvenience is NOT a factor in the analysis.
2. The Legal Test and the Consequence of a Finding of Disability Discrimination
Section 5 of the Human Right Code states that an employer cannot discriminate a person based on disability.
According to the Misetich approach as established in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, the test for discrimination is as follows:
1.The Applicant must establish they have a characteristic protected from discrimination under the Code;
2.The Applicant must establish an adverse impact; and
3.The Applicant must establish the protected characteristic was a factor in the adverse impact.
A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate
Where the Applicant has successfully proven a case of discrimination, the Human Rights Tribunal has the authority to award a variety of of remedies, including:
(a) Back Pay all lost wages from the date of the discrimination to the date of the issuance of a Decision (which could take a number of years in many cases;
(b) All costs (Special or Pecuniary Damage) incurred as a result of the discrimination;
(c) An amount to cover “injury to dignity, feelings and self-respect”, often referred to as general damages. Depending on the manners of discrimination, this amount can range from a few hundred dollars to many thousands of dollars.
(d) Public interest remedies such as training of management and employees, posting of information regarding human rights, amendments to policies and procedures, etc.;
(e) Any other remedy required to ensure that an employer complies with the Code.
3. Disability Related STD and LTD, WSIB Claims
a. Short-Term Disability and Long-Term Disability Claims
When filing a claim for Short-Term Disability (STD) and Long-Term Disability (LTD), insurance companies typically require employee, employer, and treating physician statements:
- Employee statements are submitted by the claimant employee. Employee statements must be brief and precise in describing how the claimant's impairment prevents them from performing essential tasks, and a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job.
b. Disability Related WSIB Claims
i. WSIB Chronic Mental Stress and Traumatic Mental Stress Defined
A physical injury WSIB Claim is easy and strict forward that doesn't require further explanation. But a mental stress related WSIB claim is more complicated that deserves further explanation.
Under Section 13 of the Workplace Safety and Insurance Act (WSIA), a worker is entitled to claim benefits for chronic mental stress and traumatic mental stress arising out of and in the course of the worker’s employment.