Disability Discrimination – Duty to Accommodate in Ontario [video]

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This lecture explains the fundamental concepts regarding an employer’s duty to accommodate in a disability context.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about discrimination on the basis of disability and will use the context of employment, specifically, but the principles that we’ll discuss today apply in other scenarios under the Human Rights Code. This is an important topic because a lot of people have no clear understanding of what constitutes legal disability under Human Rights Code, so, we’ll explain that. And then we’ll talk about how that disability plays into employment relationships. So, we’ll cover those topics, let’s begin.

We’ll start with a disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or a paralegal.

We’ll be talking about three things primarily. We’ll talk about disability definitions so you understand what are the circumstances in which a person will be considered disabled with respect to Human Rights Code? We’ll talk about Duty to Accommodate, which is an important aspect of disability, the disability profile, and disability spectrum. And we’ll talk about Undue Hardship, which is a term that is used in the Human Rights Code what does it mean and will explain that but some examples.

Okay, so, disability is defined in Human Rights Code we’ll cover essentially, it’s covered in many sections but we’ll specifically talk about Section 10 Sub 1, Section 10 Sub 3, and Section 17, and we’ll explain in that context the definition and the application off the law.

Let’s talk about the definition of disability. The common perception and the everyday perception is that a disabled person is the one who is either on O.D.S.P. be Ontario Disability Plan or C.P.P. Disability, Canada Pension Plan Disability … some sort of governmental disability or workplace safety and insurance plan disability, something of that sort. This is a person who may have a sticker for disability parking and that that sort of stuff. But that definition of disability is incorrect so we’ll talk about what is a disability under Human Rights Code.

Now, this is the definition, let’s go to the code and then I’ll explain it better over there. And let’s go over the definition in a bit more detail. Disability and it’s defined in Section 10 Sub 1 of the Human Rights Code, I have the Human Rights Code open here. Disability means any degree of physical disability, so, important part is “any” degree. 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, so on and so forth. So it goes on, it gives certain specific examples of disability. Then it talks about a condition of mental impairment or a developmental disability or learning disability, a mental disorder, an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety Insurance Act. So, if you notice here the definition of disability is quite broad, ‘A’ any degree of illness, disability of any kind can amount to disability under the code and so, it’s not just limited to people who are on disability plans.

What you want to understand also, is that disability includes past disabilities and presumed disabilities, and that section is, I believe is, Section 10 Sub 3 right. So, 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. This is important. So, if someone is discriminated against because that person had a disability in the past, then that could amount to discrimination too. And the second part is also important, the perceived disability. Even if the person did not have an actual disability under the code, but the perception was that the person had a disability and he or she was discriminated on the basis of that perceived disability, that perception, then that may still amount to discrimination.

So, you notice that the definition of disability is really really broad. And it does not have to be permanent disability, it could be a temporary disability, it could be a disability for a few days, for a few months, for a few hours, and if you have any of those conditions that were mentioned in the definition then you will fall under the definition of disability.

So, if a person has a disability then what happens? I want to explain one thing, which a lot of my clients and a lot of people don’t understand clearly. Sometimes people assume that if they have a disability they have unlimited rights, the employer cannot touch them, the employer cannot terminate them, because they have a disability, that is an incorrect understanding. There’s no unlimited right just because you have some sort of a disability.

And so let’s go to Section 17, which talks about this specific issue, about what are your rights under disability, are they unlimited or are the limited rights? So, let’s scroll down to Section 17 here. A right of a person under this act, so, we’re talking about Section 17 Sub 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. Complicated sentence but what it means is that just because you have a disability does not mean that you have unlimited rights.

So, what you want to see is in the in Section Sub 2, 17 Sub 2, what is then the actual right if you have a disability, “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)”. So, if you read these two sub sections what they’re trying to say is that, ‘A’ If you’re a disabled person your rights are not unlimited, and ‘B’ If you are an employer you have a duty to accommodate. So, there’s a duty to accommodate that disabled person, but that duty is up to Undue Hardship right.

So, the hardship on that employer on that entity who is employing a disabled person, the obligation is up to Undue Hardship. That means that it is not an endless obligation, it has certain limitations and those limitations are based on the cost and the funding and health and safety requirements of that workplace, of others, of that particular individual, right. So, the obligation is to accommodate a person up to Undue Hardship. Now when those factors are considered in reality, the most important thing is it’s an objective analysis.

What you want to remember is that the court, the tribunal will look at the employer’s resources. If you’re working for let’s say a chartered bank in Canada, then the court expects or the tribunals expects that they have better resources to accommodate a person with disability, than a dollar store which is owned by an individual and only has two employees, right? And so when the Undue Hardship is being considered, it is considered in the context of Undue Hardship for that specific employer right? So, what they will look at is the financial resources, the other programs that the person may or the entity may have, if let’s say the accommodation was meant to be temporary because the person was sick for only a month, are they able to have temporary help to cover that person’s duties by someone else? Are they able to do it, or are they in a situation where they can’t even function for a day without this person being present, right?

And, invariably, when you look at the cases, you will notice that it all comes down to essentially financial hardship. What kind of resources, financial resources, the employer has to accommodate that person? And if there are sufficient financial resources, then generally speaking, the court or the tribunal will say that you, the employer, have not accommodated this person with disability up to Undue Hardship. So, that is a criterion, it’s an objective analysis, it’s a relative analysis, it is employer specific. Obviously, it is in the context of the kind of disability that is being accommodated.

So, there are different examples, let me give you one example that came up in the in a recent case. This person suffered a back injury, he was not able to sit at it at his desk for a long period of time and his job was to work from his desk. And so, either he had to sit and stand and walk around. And so, this person needed certain ergonomic assessments for his desk and chair, and then he wanted the employer to provide a proper desk which could be moved up and down based upon his back circumstances at that time. And so, he should be able to work depending upon how much strain it puts on his back. And the ergonomics assessment had a cost, there would have been a cost for getting the desk that he would need and all of that. And so, in that specific case the employer had sufficient resources to undertake that assessment and to provide an appropriate ergonomic desk and chair for this individual, and so, it was that it was considered that it was not an Undue Hardship for the employer, even though it was a cost and they had to accommodate this person, it was not Undue Hardship and therefore, the employer was liable for providing those accommodations.

So, what you want to keep in mind, generally speaking, is that understand that the disability has a very, very, broad definition. It covers all kinds of whole range of illnesses, mental, physical, and so those are a part of the disability definition. You also want to keep in mind that statistically, Disability Discrimination is the highest in Ontario, of all the factors that are listed in the Human Rights Code. So, it’s something that happens unfortunately, too often, and so the more you are have an understanding of your rights and the more you have an understanding of your obligations, then you will be able to work in a work environment that caters for people with any sort of disabilities.

Hopefully, that was helpful in giving you an understanding of the requirements of accommodation for people with any disability and we will keep adding more lectures on this topic. I believe the next topic we’ll bring up is what are the kinds of medical information that the employer may be entitled to, with respect to providing you any accommodation. Okay, so thank you for watching, and we’ll come back to you with another lecture shortly.

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