When is an illness not a disability? The Human Rights Tribunal weighs in

January 30, 2014

In a recent Ontario Human Rights Tribunal decision, the Tribunal determined that a diagnosis of strep throat was insufficient to invoke the protection of the Ontario Human Rights Code. 

The application arose from the cancellation of the Applicant’s contract with the Respondent, the College of Massage Therapists of Ontario, after she was unable to attend its mandatory two day training program due to illness.  The Applicant alleged that the College’s decision to cancel her contract was an act of discrimination on the basis of disability.

The Tribunal disagreed, finding that the medical condition that prevented the Applicant from attending the training (strep throat) did not constitute a disability under the Code and therefore the cancellation of the contract was not an act of discrimination.  In its decision, the Tribunal canvassed similar judgments and provided clarity regarding when a medical condition would not fall under the Code’s protection: namely, commonplace and temporary illnesses are not accepted as disabilities, as they would trivialize the Code’s protections, which are intended to protect defined groups.  The Tribunal stated that it was not the intent of the Code to “include literally everyone suffering from a few days illness”, and that transitory ailments that do not act as barriers for persons to participate in society should not fall within the definition of “disability” pursuant to the Code.

Our Views:

This decision provides guidance for employers, who are often tasked with determining which ailments necessitate accommodation in the workplace.  Accordingly, when evaluating these requests, employers should consider whether the illness in question is transitory and commonplace.  If so, accommodation, particularly to the extent required by the Code (up to the point of undue hardship) is not likely required.

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