Nelligan O’Brien Payne gratefully acknowledges the contribution of Suzanne Dunn, Student-at-Law in writing this blog post.
A recent decision of the Ontario Human Rights Tribunal has garnered considerable attention, and for good reason. The Tribunal held, in an interim decision, that a woman’s miscarriage and a temporary slip-and-fall injury could both constitute a disability under the Human Rights Code (the “Code”).
The case of Mou v. MHPM Project Leaders involved Ms. Winnie Mou, an employee at MHPM Project Leaders, and the following important series of events:
- In January 2013, Ms. Mou was required to take time off work for injuries sustained from falling on ice. The injuries healed in approximately three weeks.
- In June 2013, Ms. Mou suffered a miscarriage with her first child. Shortly after, her mother-in-law passed away. She took only two days off due to pending work deadlines.
- Ms. Mou was unable to meet her 1800-hour target for 2013 because of these absences. Her 2013 performance review also reflected her need to meet scheduled delivery objectives.
- Ms. Mou’s employment was terminated on February 27, 2014.
Ms. Mou brought an Application to the Human Rights Tribunal claiming that her termination was partially linked to her disability; namely, her slip-and-fall injury and her miscarriage.
The employer asked to have the Application dismissed on the grounds that Ms. Mou had failed to establish a disability. The employer argued that for an injury or illness to constitute a disability, “there must be an aspect of permanence and persistence to the condition”. The Tribunal disagreed.
The Tribunal referred to the Supreme Court of Canada’s decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montreal (City), where the Court held that a “disability” under the Code must be defined broadly, but not so broadly as to include “normal ailments” such as the flu.
Regarding the slip-and-fall, however, the Tribunal held that the length of recovery time (3 weeks) was significant enough to impact Ms. Mou’s ability to work, and as such this injury was deemed to be a disability under the Code.
Regarding the miscarriage, the Tribunal held that this too, on the facts of this case, was a disability under the Code:
I also find the applicant’s miscarriage is a disability. I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.
The Tribunal’s decision clarifies that the injuries need not be permanent or persistent to constitute a disability, and the disability need not be present at the time of the adverse treatment (in this case, at the date of termination) to establish discrimination.
The Tribunal has yet to decide if the disability was a factor in the employer’s decision to terminate Ms. Mou.