“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.
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.
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.
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.
Section 5 of the Human Right Code states that an employer cannot discriminate a person based on disability. The Applicant must establish they have a characteristic protected from discrimination under the Code;
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.