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.
Topics Will be Covered in the Disability Discrimination Definite Guide:
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.
While physical disability is often easier to comprehend, mental disability is more complex and may sometimes be invisible to the average onlookers. Section 10(1) of the Code provides a broad definition of disability, which covers mental health disabilities under subsection (b) a “condition of mental impairment” and (d) “mental disorder.”
Please click here to learn more about about the Ontario Human Rights Commission's Policy on preventing discrimination based on mental health disabilities and addictions.
Apart from physical and mental disabilities, addiction and severe substance abuse, such as alcoholism and drug abuses, is classified as a form of substance dependence, which has been recognized as a form of disability.
For instance, in Entrop v. Imperial Oil Limited, the Court of Appeal has held in para. 89 that substance abuse such as drug abuse and alcohol abuse is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning", and that "Drug dependence and alcohol dependence ... are severe forms of substance abuse", and as such "substance abusers are handicapped and entitled to the protection of the Code".
According to the Ontario Human Rights Commission's Drug or alcohol dependency and abuse as a disability:
1. The use of legal or illicit drugs or alcohol may fall within the protection of the Human Rights Code, where an individual's use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e.g. maladaptive patterns of substance use leading to significant impairment or distress, including:
(a) continued substance abuse resulting in a failure to perform essential duties at work;
(b) continued substance abuse in situations which are physically hazardous;
(c) continued substance abuse despite persistent social, legal or interpersonal problems caused or aggravated by the effects of the substance.
2. The Human Rights Code also protects individuals who has had a drug or alcohol dependency in the past, or is perceived as having an addiction or dependency due to drug or alcohol use, and be discriminated against accordingly.
Three most common types of disability discrimination:
Type 1: An employee was injured or suffered from a serious illness and was unable to return to work temporarily, claiming WSIB, STD, LTD; however, when the employee files a request to return to work after the treating physician deemed him or her fit to return to work, the employer denies the request and terminates the employee.
Type 2: An employee has been injured or suffers from an illness, resulting in an impairment that restricts his or her ability to be fully functioning at his or her job capacity, and when he or she requests accommodations, the employer fails to discharge the duty to accommodate and dismisses the employee.
Type 3: An employer refuses to promote or let go an employee based on the perception that the employee is addicted to drugs or alcohol, or that the employee has a history of addiction, without discharging the duty to investigate to determine whether that is true or whether the employee has overcome such dependency.
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:
The Applicant must establish they have a characteristic protected from discrimination under the Code;
The Applicant must establish an adverse impact; and
The Applicant must establish the protected characteristic was a factor in the adverse impact.
(Misetich, at para. 43)
Once these factors are established, prima facie discrimination exists and the evidentiary burden shifts to the respondent employer to demonstrate that the employee cannot be accommodated to the point of undue hardship. The accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to their disabilities and then working with the employer to identify possible solutions to accommodate the personal circumstances of the disabled workers.
To learn more about the medical documentation required in Disability Cases, please read the following related blog post:
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.
- Employer statements are submitted by the employers. Employers must submit a full description of the claimant's responsibilities, as well as information regarding the employer's ability to make reasonable accommodations to enable the disabled employee to continue working.
- Claims evaluators frequently look treating physicians' statements. Treating doctors are required to state the claimant's symptoms, diagnosis, suggested therapy, the claimant's involvement in treatment, and an evaluation of why the claimant is unable to work. Copies of evaluations and appointment records must also be included in the statement.
Please read this blog post if you want to learn more about the intricacy between Long Term Disability, Wrongful Dismissal, Disability Discrimination:
Please read this blog post if you want to learn more about the Medical Documentation in Disability Cases:
Please read this blog post if you want to learn more about the myth of the "2-Year" Rule in Disability Cases:
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.
Pursuant to section 22 of the WISA, in order to receive WSIB benefits, you must file a claim as soon as possible, and no later than six months from the date of your accident. If you have an occupational disease, the six months runs from the date you discover the disease and that it is work-related.
Despite that, after a Section 31 application is heard by the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the deadline for submitting a WSIB claim is extended for six months after the Tribunal’s determination under section 31(1), pursuant to Section 31(4) of the WSIA, and in accordance to WSIAT Practice Direction: Right to Sue Applications.
Both the chronic mental stress policy and the traumatic mental stress policy contains two key criteria that an injured worker must meet before being compensated:
The injured worker needs to provide a DSM-5-TR diagnosis from a regulated health-care professional who is authorized to make such a diagnosis (this includes family physicians, nurse practitioners, psychologists and psychiatrists).
There’s a causation requirement. This means that the workplace incident MUST be the predominant cause of the chronic mental stress or the traumatic mental stress.
ii. WSIB Chronic Mental Stress Policy Explained
In addition to the two key criteria stated above, the chronic mental stress policy requires that an injured worker to prove that 1) a substantial work-related stressors exists, that 2) the event(s) or accident(s) occurred during the course of employment and that 3) causation must be proven.
Under the Workplace Safety and Insurance Act (WSIA), a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment. A worker is NOT entitled to benefits for chronic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment.
According to WSIB disability related policy, a work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress.
Workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as workplace harassment, or conduct that a reasonable person would perceive as egregious or abusive.
Workplace harassment is generally considered to be a substantial work-related stressor. Workplace harassment is defined under the Policy as occurring when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
The Policy expressly states that “work-related stressor” includes multiple work-related stressors, as well as a cumulative series of work-related stressors.
iii. WSIB Traumatic Mental Stress Policy Explained
Similar to the chronic mental stress policy, the traumatic mental stress policy requires that, in addition to the two key criteria stated above, an injured worker to prove that one or more traumatic events occurred during the course of the worker’s employment, which triggered the traumatic mental stress.
According to WSIB, traumatic events include, but are not limited to:
witnessing a fatality or a horrific accident
being the target of physical violence
being the target of death threats
being the target of workplace harassment
Please read this blog post if you want to learn more about the Medical Documentation in WSIB Claims:
4. HRTO Substance Related Disorder Discrimination Claims
a. HRTO Protections Against Substance Related Disorder
Drug abuse, drug dependence and addictions are diseases, illnesses, malfunctions and
mental disorders, which can create mental impairment and result in mental disorder and physical disability.
As stated above in Entrop v. Imperial Oil Limited, severe alcohol or substance abuse, addiction and dependency are well-recognized as disabilities within the meaning of the Human Rights Code (the Code). Casual (or recreational) use of substances is not defined as a disability unless people are treated adversely because they are perceived to have issues of substance abuse, addiction or dependency, and be discriminated against.
Click here to learn more about the Ontario Human Rights Commission's Policy on preventing discrimination based on mental health disabilities and addictions.
Often the employee who claims disability related accommodation for substance related disorder needs to provide a DSM-5-TR diagnosis from a regulated health-care professional who is authorized to make such a diagnosis.
Click here to read a blog post on Medical Documentation in Disability Cases, titled A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
A DSM-5-TR diagnosis allows clinicians to specify how severe or how much of a problem the substance related disorder is.
There are two groups of substance-related disorders: substance-use disorders and substance-induced disorders.
b. Substance Use Disorders
A substance use disorder is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as drugs or alcohol. Symptoms can range from moderate to severe, with addiction being the most severe form.
Substance use disorders cover 11 different criteria:
Taking the substance in larger amounts or for longer than you're required to.
Unable to cut down or stop using the substance.
Spending a lot of time getting, using, or recovering from use of the substance.
Cravings and urges to use the substance.
Unable to perform essential duties or fulfill obligations at work, home, or school due to substance use.
Continuing to use, even when it causes problems in relationships.
Giving up important social, occupational, or recreational activities because of substance use.
Using substances repeatedly, even when doing so puts the user's personal safety in jeopardy (e.g. operating power tools, heavy equipment or driving under the influence of drugs or alcohol).
Continuing to use while knowing the existence of a physical or psychological condition that the substance may have caused or exacerbated.
Developing a drug tolerance against the substance.
Developing withdrawal symptoms, which can be relieved by taking more of the substance.
The severity of substance use disorders depends on how many symptoms are identified. Two or three symptoms indicate a mild substance use disorder; four or five symptoms indicate a moderate one, while six or more symptoms indicate a severe substance use disorder.
Click here for a detail description of substance use disorder.
c. Substance Induced Disorders
Substance induced mental disorders develop in individuals who didn't have mental problems prior to substances uses. They include:
Substance-induced bipolar disorders and related problems
Substance-induced obsessive-compulsive and related disorders
Substance-induced sleep disorders
Substance-induced sexual dysfunctions
Substance-induced delirium
Substance-induced neurocognitive disorders
Substance-induced disorder is a form of substance induced mental disorder, which includes depressive, anxiety, psychotic, or manic symptoms that occur as a physiological consequence of the abusive use of substances or medications. It may occur during active use, intoxication or withdrawal.
Many of the individuals who experience a substance use disorder during their lives will also experience substance induced disorder and vice versa.
Click here for a detail description of Substance-induced disorder.
5. Duty to Accommodate and Undue Hardship in Disability Cases
a. Duty to Accommodate Defined
Section 17 of the Human Right Code states that an employer has a duty to accommodate a workers’ disabilities who can still perform core and essential duty of the job to the point of undue hardship.
When an employer seeks to dismiss an employee due to their disability, he or she is at risk of incurring significant human rights damages, unless it can demonstrate a bona fide operational requirement that prevents it from facilitating the employee’s continued employment.
Duty to accommodate has both a substantive and a procedural component:
- The procedural component requires that an employer to undertake an individualized investigation of potential accommodation measures to address the employee's code based needs; and
- The substantive component considers the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation (BFOR). It is the employer who bears the onus to demonstrate that the employee's disability has been accommodated to the point of undue hardship.
The duty to accommodate is a shared responsibility between the employer and the disabled employee. The employer’s duty to make reasonable efforts to provide required accommodation is mirrored by the employee’s duty to make reasonable efforts to participate meaningfully in accommodation planning, and to make sincere efforts to return to work under modified conditions.
Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970.
As stated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, a court’s assessment of what constitutes reasonable measures with respect to the duty to accommodate is a question of fact that will vary with the circumstances of each case. Accommodation measures may mean that the form and function of the employee’s role in the organization requires change to protect the employee’s right to not be excluded from employment because of their disability. It is important that the employee understand that, while the threshold of undue hardship is a high one, the employee is not promised a ‘perfect’ scenario, and concessions may need to be made with respect to the forms of accommodation.
b. What Triggers the Duty to Accommodate a Disability?
The duty to accommodate arises when the employer is made aware that an employee has a disability that requires accommodation. This generally happens via a direct disclosure by the employee, the treating physician or another individual.
The duty to accommodate may also arise where the employer perceives (or reasonably ought to have perceived) the employee as having a disability that may require accommodation – even where no disclosure of disability and/or request for accommodation has been made.
Confirming a disability and the required accommodations should come from the employee’s treating practitioner, which can be a family doctor, specialist, midwife, etc. depending on the nature of the condition.
The employer IS NOT entitled to information related to a diagnosis or the specific treatment.
The employer is entitled to information regarding the effect of the condition on the employee’s ability to work, with or without accommodation, and must be given details of the necessary accommodation where it is required.
Click here to for a discussion of duty to accommodate in A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
c. What Constitutes Undue Hardship?
The Supreme Court of Canada has established the undue hardship test in Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489.
A number of factors are NOT to be considered, including:
Business inconvenience;
Third party preferences, such as customers’ discomfort;
Contractual terms in Collective agreements or employment contracts, which cannot be relied upon to justify discrimination.
Only three factors will be considered:
(a) Costs will amount to undue hardship only where they are,
Quantifiable,
Shown to be related to the accommodation, and
So substantial that they would alter the very nature of the enterprise or so significant that they would substantially affect its viability;
Costs are likely to be absorbed more easily in a larger organization;
(b) Outside Sources of Funding will be taken into consideration where they are available to defray the costs of accommodation;
(c) Health and Safety Issues will be considered. An employer is not required to accommodate a disability by waiving health and safety standards if doing so would create liability under the Occupational Health and Safety Act. Health and safety risks will amount to undue hardship where the degree of risk remaining after accommodation has been made outweighs the benefits of enhancing equality for individuals with disabilities.
Employers have the onus of proving undue hardship. Specific facts and evidence must be relied upon – unsubstantiated assumptions, speculations and expectations will not be acceptable proof of undue hardship.
Click here to for a discussion of undue hardship in A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate.
6. Legal defences Against A Claim of Disability Discrimination
a. Bona Fide Occupational Requirement
A Bona Fide Occupational Requirement, or BFOR, is workplace job requirement that allows an employer to “justify" an otherwise prohibited ground under the Human Rights Code, if there is a legitimate reason that is connected to the ability to do the job.
In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, 1999 CanLII 652 (SCC), the Supreme Court has created a unified test, the Meiorin test, to determine if a violation of human rights legislation can be justified as a BFOR.
Under the Meiorin test, an employer can justify the impugned standard by establishing on the balance of probabilities:
that the employer adopted the standard for a purpose rationally connected to the performance of the job;
that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
Click here for further reading regarding BFOR.
b. Frustration of Contract
i. Frustration of Contract Defined
Frustration of contract is the legal termination of a contract because of unforeseen circumstances that:
make the contract and its objectives virtually impossible to execute;
make the performance of the contractual obligations illegal; or
render the contract fundamentally different from its original intended character.
For an employer to end an employment arrangement due to frustration of contract, the circumstances must have been unforeseeable and occurred through no fault of either party to the contract. Furthermore, the burden of proof to demonstrate that a contract has been frustrated rests with the employer.
When a contract has been frustrated it can be terminated without liability to either party. This means that neither party is entitled to damages under contract law. In other words, a disabled or injured employee who have been terminated for contract frustration is NOT entitled to claim disability discrimination under the Human Rights Code. However, the employer is still OBLIGATED TO PAY the employee their minimum entitlements under the Employment Standards Act (ESA) (such as termination pay and severance pay) under the Ontario Regulation 288/01 – Termination and Severance of Employment (made pursuant to ESA).
A successful contract frustration defence hinges on the nature, expected length of illness, and the prospect of recovery. Frustrating a contract is only allowed in situations involving a permanent disability.
There is no set time period that an employee must be off from work for their contract to be considered frustrated. Courts will take into consideration how long an employee has been with a company as well as their position in it. Jurisprudence has established that a prolonged absence due to illness, standing alone, DOES NOT substantiate a claim that the employment contract has been frustrated.
Temporary disabilities, on the other hand, MUST be accommodated to the point of undue hardship (in accordance with human rights laws).
Frustration of contract is largely addressed on a case-by-case basis. This is because the consequences of a frustrated contract are quite harsh to employees. Courts will also look to see if there is any reasonable chance the employee will be able to return to work in the foreseeable future.
If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer will not be able to claim frustration of contract and terminate employment on that basis.
Please the following blog post for an in-depth discussion of medical documentation in disability cases:
The following questions are factors that a Court might consider in the case-by-case analysis in a disability discrimination case where the frustration of contract defence has been raised by the Defendant Employer:
Is the employee temporarily or permanently disabled?
What are the prospects for medical recovery and return to work based on available medical documentations and other evidence?
Does the employment contract contemplate a lengthy period of absence by an employee?
Does the employment agreement provide sick leave, short-term disability and long-term disability benefits?
How long has the employee been off work or unable to work due to the injuries, disability or illnesses?
Is the disability related to a workplace injury (i.e. whether the employee entitles to disability related WSIB benefits)?
Can the employee perform the essential duties of their job? Can the employee be accommodated short of undue hardship?
Is continued employment impossible or would it radically alter the employment relationship?
Is there a need to terminate the employment relationship? Can a temporary replacement be hired, or can existing staff resources be utilized?
What position did the employee have in the business? How senior and integral was the employee to the business?
What evidence does the employer have at the time of termination establishing a permanent incapacity? The onus is on the employer to prove frustration of contract and cannot rely on post-termination evidence that is unrelated to pre-termination incapacity.
Has the employer itself induced or caused the frustrating event?
Are there any other specific facts of the case that ought to be considered?
Please the following blog post for an in-depth discussion of frustration of purpose:
ii. Recent Frustration of Contract Cases
1. Reasonable Prospect of Return to Work
Nagpal v IBM Canada Ltd., 2021 ONCA 274
IBM’s frustration claim was undermined by evidence in the form of ongoing correspondence from the employee’s legal counsel that clearly established the employee’s intention to return to work, and their willingness to provide ongoing medical updates as required. These letters served to demonstrate that there was no basis to find that the employee had resigned or abandoned his employment, and that there was some basis to find a reasonable prospect that the employee could eventually return to work. IBM was thus unable to satisfy its onus to establish that the contract of employment was frustrated, and it was liable to the employee for damages for wrongful dismissal.
Boucher v Black & McDonald Ltd., 2016 ONSC 7220 (Div Ct)
The plaintiff was a 46-year-old employee who went on long-term disability benefits in October 2011 and later advised the employer that she could return to work
by the end of 2013. The insurer agreed she was no longer disabled and they proposed a graduated return to work by November 11, 2013. However, on October 31, 2013, the employer terminated her employment due to “absence of several months.”
The Small Claims Court denied the employer’s frustration argument, employer appealed. The Divisional court agreed with the Small Claims Court decision and held, in paragraph 36, that:
In the present case, there was a plan to return to work. Indeed, BML had been advised by October 13, 2013 that Boucher intended to return to work November 11, 2013. However, following the submission of the return to work plan, Boucher was terminated.
Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097
The plaintiff was a 45-year old Registered Orthotic Technician employed for approximately 20 years before he was terminated purportedly for frustration of contract. In August 2010, the employer said it could no longer accommodate the employee and put him on a leave of absence. In June 2012, the plaintiff sought a return to work, but was ultimately terminated in January 2013.
The Court held, in paragraph 180, that the plaintiff had been terminated and that the employer had not established frustration of contract due to the plaintiff’s disability. Specifically, the employer failed to show that there was no reasonable likelihood of the plaintiff being able to return to work within a reasonable timeframe around the time of termination.
2. Duty to Accommodate vs. Frustration of Contract
Sodexo Canada Ltd. v Canadian Union of Public Employees, Local 145, 2019 CanLII 72771 (ON LA)
In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act, the Arbitrator found that the employer had not established frustration because of its narrow approach to the consideration of accommodation options. In that case, the employer failed to consider if it could reintegrate the grievor via modifications to their former position and the use of assistive equipment, or if there were forms of work available at other worksites. As a result, the employer was found to have breached its procedural duty to accommodate the grievor; this was contrary to the Human Rights Code, warranting the award of compensatory damages.
Milloy v Complex Services Inc., 2017 ONSC 2923
The plaintiff had worked for more than 10 years with the defendant primarily as a table games dealer for a casino. There was no dispute in the case that the plaintiff developed a permanent disability to her right shoulder as a result of a repetitive work-related injury and could no longer work as a table games dealer.
The plaintiff applied for numerous alternate positions within the company, but was not hired for any despite being qualified. The defendant employer ultimately ended the relationship citing frustration of contract after approximately 2 years after the injury.
The Court found that although the plaintiff had an undisputed permanent injury to her shoulder and could not work as a table games dealer, there were many other positions within the company that she applied for and was qualified to work. The employer failed to give any convincing reason as to why the plaintiff was not hired for any of the numerous other jobs she applied for.
c. Section 31 of the Workplace Safety and Insurance Act (WSIA)
Under the WSIA, a qualified mental stress is deemed to be a form of "personal injury by accident". If you quit you work as a result of a work related mental stress, and file for a lawsuit in Court against the Employer Defendant, a director, executive officer or worker employed by the Employer Defendant, he or she can file an application to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) to have the lawsuit dismissed pursuant to Section 31 of the WSIA.
Section 26 of the WSIA stated that ALL actions caught by the WSIA are to be be "heard and determined" by the Workplace Safety and Insurance Board (the Board).
Section 13(1), 13(4), 13(4.1), 13(5) states that when an employer is covered by the insurance plan set out in Part 3 of the WSIA, any and all claims relating to for chronic mental stress or traumatic mental stress arising out of and in the course of the worker’s employment are caught by the WSIA.
Section 31 of the Workplace Safety and Insurance Act (WSIA) allows a party to an action (often the employer defendant) to apply to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) to decide whether the right of action has been statute barred by the WSIA. It's not a complete defence, but at least it significantly limits the damage awards the worker is entitled to.
- S. 31 of the WSIA take away the employee’s right of claim of mental distress or any other injuries incurred in the course of his or her employment against an Employer defendant (Vicarious Liability), a director, executive officer or other worker(s) employed by the employer, pursuant to s. 28(1), (2) of WSIA, if the worker(s) were acting in the course of the employment (s. 28(3)). The WSIA DOES NOT take away the employee’s right of claim of other independent actionable torts against individual tortfeasors 1) that were unrelated to the accident or injury; or 2) for acts committed not in the course of the employment.
- Even if an employee’s right of claim of emotional distress or other injuries against an Employer defendant, a director, executive officer or other worker(s) employed by the employer is removed after a S. 31 hearing by the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the employee can still file a WSIB claim within six months after the tribunal’s decision under s. 31 (1) pursuant to Section 31(4) of the WSIA.
A Section 31 Defence under the WSIA is most often used to defend against a constructive dismissal case. There is well-established caselaw establishing that WSIAT has no right to take away a claim of wrongful dismissal or a workplace harassment complaint under the Human Rights Code.
The inextricably link test is the test to assess whether a constructive dismissal claim is statute barred. The test is whether the ONLY allegation of constructive dismissal was workplace harassment, or there’s more, such as breach of employment contract, contractual repudiation, etc…
Section 31 Defence under the Workplace Safety and Insurance Act (WSIA) is only available to businesses who are covered by the WSIB coverage, which is ONLY mandatory for Schedule 1 and Schedule 2 industries, pursuant to section 11 of the WSIA. Businesses that are not in Schedule 1 or Schedule 2 sectors may nevertheless opt in to WSIB coverage by paying premiums, even though it's not mandatory.
Mandatory WSIB premiums cover the employees, but not owners (except for most construction businesses). Owners (partners, sole proprietors, independent operators and executive officers) can apply for optional WSIB coverage for themselves, as long as they have coverage for any employees they may have. No mandatory WSIB premiums is required to cover independent contractors either.
Pursuant to section 28 of WSIA, workers employed by “Schedule 1” or “Schedule 2” employers and the workers’ survivors are not entitled to commence actions against their employer, or a director, executive officer, or worker employed by such employer, in respect of the workers’ injury or disease.
Schedule 1 Industries include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades; and construction. A variety of service industries are covered by the Act, including temporary agencies, hospitality and full-time domestic workers.
Schedule 2 Industries include (but are not limited to): provincial governments; railways; and telephone companies licensed by the federal government. Although municipal governments are listed in Schedule 2, some have opted to become Schedule 1 employers.
The main distinction between Schedule 1 and Schedule 2 Industries is that a worker employed by a Schedule 1 employer, is not entitled to commence an action against any Schedule 1 employer (not just their own employer) in respect of the worker’s injury or disease (s. 28(1), WSIA). Such restriction DOES NOT apply to Schedule 2 employees (s. 28(2), WSIA).
Click here to learn more about the WISB insurance and about how to apply for WSIB coverage.
As an employer, you want to make sure your business, and the employee in question are under WSIB coverage before claiming a Section 31 Defence under the WSIA.
So the guiding principle in determining whether a dismissal case is statute barred by the WSIA is whether or not the case involves a situation in which the worker's employment was effectively terminated by the harassing and bullying conduct of coworkers and management, which caused his or her mental distress to such a degree that he or she was forced to take sick leave and, eventually, resign. These facts, if proven, are inextricably linked to a claim for mental stress under s. 13(4) of the WSIA. Thus, the worker's right of action is taken away.
Please read the following blog post for an in-depth discussion of the interplay between a dismissal claim and the WSIA statute bar:
7. Other Statutory Protections for Disabled Employees
Both the Employment Standards Act (ESA) and the Workplace Safety and Insurance Act (WSIA) offers some statutory protections for disabled employees.
Regulation 288/1 of the ESA states that even if an employee has been terminated due to frustration of contract because of illness or long term disability, ESA minimum notice and severance pay has to be satisfied.
Section 41 of the WSIA creates an Obligation for employer to re-employ injured employees who have been working in the workplace for more than 1 year if certain conditions apply, an employer who employs less than 20 people is one such exception.
a. Regulation 288/1 Enacted Under the Employment Standards Act
Ontario employees are entitled to a minimum amount of termination notice and, in some cases, severance pay in accordance with Part XV of the Employment Standards Act (ESA). Ontario Regulation 288/01 – Termination and Severance of Employment (made pursuant to ESA) qualifies part XV of the Act by disentitling some employees from termination notice.
Section 2 (1) (4) disentitles “An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance,” but section 2 (3) specifically carves out an exception for employees “…if the impossibility or frustration is the result of an illness or injury suffered by the employee.” The same protection applies for statutory severance under section 9 (2) of the Regulation 288/01.
Therefore, even in a frustration of contract case, an employer is responsible for providing the dismissed employee with their minimum statutory termination notice, or pay in lieu thereof, and severance pay, if applicable.
b. Workplace Safety and Insurance Act
Pursuant to Section 41 (1) of the WSIA, an employer has an obligation to re-employ an injured worker 1) if the worker has been “unable to work” as a result of a work-related injury or illness, and 2) that the worker was continuously employed with the injury employer for at least one year before the date of injury.
Section 41 (2) of WSIA specifically exempts employers who regularly employ fewer than 20 workers from the duty to re-employ.
Section 41 (4) of the WSIA creates a statutory obligation on an employer to re-employ an injured worker who is medically able to perform the essential duties of his or her pre-injury employment.
Section 41 (6) further imposes a duty to accommodate an injured worker. Section 41 (7) defines the duration of this obligation on an employer to re-employ an injured worker, being until the earliest of: (a) two years from the date of injury, (b) one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and (c) the date on which the worker reaches the age of 65.
Click here for a detailed discussion of the duty to re-employ under Section 41 of the WSIA.
However, even if Section 41 of the WSIA does not impose a duty to re-employ in a given situation , an employer may nevertheless be compelled to accommodate an injured worker to the point of undue hardship or risk being liable for Human Rights damages.
Please read the following blog post for a more in-depth examination of the intricacy between the Human Rights Code and the WSIA:
8. How HTW Law Can Assist you In a Disability Case
HTW Law is a full-service employment law firm in Toronto, and we are well-versed in employment laws and human rights laws and have extensive experience in various aspects of employment law practice.
a. Why you Need a Disability Lawyer?
If you've been the victim of disability discrimination, or get wrongfully terminated due to disability related issues, you're not alone. While this time in your life may be terrifying, a Toronto disability lawyer can work with you to help you fight back and take control of your life once again.
If you've been let go from your job, it can be an uncertain and scary time. You may be struggling in figuring out how you're going to pay your bills. You may be searching for another job while trying to juggle between your bills and the child care needs.
We'll examine the circumstances of your employment and work with you to discover how your employer has denied your disability claim, your request for accommodation, or a fair severance package in terminating you. It's key to give us as much details as possible so that we can build a strong case against your employer.
We will fight zealously to help you get your job back or at the very least get you a fair severance package that you deserve. While a severance package is not meant to last a lifetime, it is meant to be a helpful stepping stone to help you get started in a new career. At HTW Law, we know what to do to maximize your severance payout.
Often, we're able to settle out of Court as we demonstrate to your employer that he or she did something illegal. This can result in your employer offering a settlement, or offering you to have your job back. We'll take care of the back and forth negotiations necessary to get you what you deserve.
We understand that going through a wrongful termination in Toronto or a disability discrimination can be devastating, and we're here to do the works necessary in helping you get your life back. It can be overwhelming in fighting your employer alone. We have the resources necessary in giving you a fighting chance against corporate giants.
If you've been terminated unfairly due to your disability, it's essential that you reach out for help as soon as possible right away. You DON'T have to fight this alone. Don't wait!! Time is of the essence.
If you've been let go from your job, we're here to assist you. Reaching out to us today to talk with a disability lawyer about your case. We handle sensitive employment law clients’ information with care.
b. Core Beliefs at HTW Law – Employment Lawyer
We believe in taking a client-centered approach and are dedicated to developing long-term relationships with our clients while providing employment law services and practical legal advice tailored to their specific needs.
We are passionate about employment law and keep ourselves up-to-date by attending seminars, conferences, and staying current on employment law cases and legislation.
We want you to succeed in your employment law litigation because we believe that word-of-mouth advertising based on your success stories is the most effective form of advertising.
It's simple. Good employment law Legal Services = happy client.
c. The HTW Law – Employment Lawyer Advantage
At HTW Law – Employment Lawyer, we provided free employment law consultation to employees in need, and we offer no-win, no-fee counsel in qualified employment law cases, which means that we don't get paid unless and until you get paid. You can rest assured that you are in capable hands, especially given that our success is dependent on your recovery.
If you have been a victim of workplace harassment, workplace discrimination, age discrimination, disability discrimination, marital status discrimination, or other forms of discrimination prohibited by the Human Rights Code, we can MAKE SURE that the human rights issues are properly addressed in addition to your severance pay, wrongful dismissal or constructive dismissal claims.
HTW Law - Employment Lawyer has the necessary professional expertise to successfully protect your employment rights. At HTW Law – Employment Lawyer, we have a team of medical professionals, accountants, and other experts at our disposal to produce medical reports, financial reports and damage assessments for you when your employment law litigation calls for it.
HTW Law - Employment Lawyer is conveniently located right next to the intersection of Highway 401 and Highway 404 with a huge parking lot. You may view our Google Map here.
FREE initial employment law consultation with an experienced disability lawyer for qualified employment law cases!! Call us now at 647-849-6582 or Contact Us Now if you have any inquiry regarding disability law or you want to book an appointment with us for an no obligation No-Win-No-Fee disability lawyer consultation.
9. Conclusion
We hope you now have a better understanding of what is Disability Discrimination, what is the Legal Test for disability discrimination and the Consequence of a Finding of Discrimination, what are the Duty to Accommodate and Undue Hardship, what are the Legal defences Against A Claim of Disability Discrimination such as BFOR, Frustration of Contract, WSIA Statutory Bar Under S. 31, what are Statutory Protections for Disabled Employees under ESA and WSIA, and that you learn more about Disability Related STD and LTD Claims, WSIB Claims, HRTO Substance Related Disorder Discrimination Claims.
Frustration of contract only applies to situations involving a permanent disability. If an employee can show medical evidence of a reasonable prospect of returning to work, a successful claim of frustration of contract is unlikely. A prolonged absence due to illness, without more, does not substantiate a claim that the employment agreement has been frustrated.
Temporary disabilities must be accommodated to the point of undue hardship. Failing of which, a claim of Disability Discrimination is likely.
There's no one-size-fit-all test on whether a case of disability discrimination has been established in any given situation.
When in doubt, you are highly recommended to contact an experienced disability lawyer for a risk free disability discrimination lawyer consultation.
When you are a victim of disability discrimination or you have been terminated wrongfully or constructively dismissed due to disability, or that you experienced chronic or traumatic mental stress due to workplace harassment or workplace discrimination, you should consults with a disability lawyer or you risk waiving your legal rights under Common law, the Human Rights Code or your rights in suing for wrongful dismissal, constructive dismissal or workplace discrimination.
When you require assistance with a disability case, HTW Law – Employment Lawyer is ONLY a phone call away. There's no need to search around for a disability lawyer who is ready, willing and able to assist you. When you call, we will be there to help you. We look forward to serving you soon.
Don't Wait, Act Now before it's too late. Call us now at 647-849-6582 or Contact Us Now if you have any questions or concerns in related to employment contract, termination, disability law, sexual harassment, sexual assault, discrimination or severance package or you want to book an appointment for a legal consultation.