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Human Rights (Fed) - Disability. O’Grady v. Bell Canada
In O’Grady v. Bell Canada (Fed CA, 2026) the Federal Court of Appeal allowed an CHRA claimant's appeal, this brought against "the judgment of the Federal Court ... dismissing her application for judicial review of the decision of the Canadian Human Rights Tribunal", here concerning "whether terminating the employment of an employee in receipt of long-term disability benefits and thereby ceasing their disability benefit coverage, before they can commence a medically-recommended progressive return to work, raises a prima facie case of discrimination on the ground of disability ....".
Here the court considers this novel (and claimant-successful) employment disability discrimination issue:[8] Both decisions bypass one of the vital questions raised by the appellant in her complaint and arguments before the Tribunal. The issue was not merely whether Bell eliminated the appellant’s position because she was disabled. Rather, a key issue was also whether Bell’s treatment of the appellant during an ongoing period of disability leave, requiring her to transition from disability status with all the benefits this entailed, to termination status, before any successful return to work had commenced—essentially treating her as a well employee when she was not — constituted adverse treatment connected to disability and was therefore discriminatory.
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[60] One of the grounds protected under section 3 of the CHRA is disability, and, by virtue of paragraph 7(b) of the CHRA, it is a discriminatory practice for an employer to, "“directly or indirectly…in the course of employment, …differentiate adversely in relation to an employee”" on the basis of one of the protected grounds.
[61] There is no dispute that the appellant’s mental health illness constituted a disability within the meaning of the CHRA. There is also no dispute that the appellant was totally disabled for many years, that when she was totally disabled she was entitled to receive long-term disability payments and related benefits from Bell, and that she had not yet commenced the recommended return-to-work plan when Bell terminated her employment on April 20, 2009.
[62] The appellant submits before us and submitted before the Tribunal that prematurely ending her long-term disability coverage constituted adverse treatment connected to her disability and thus violated paragraph 7(b) of the CHRA, regardless of why her position was abolished. However, this issue was not considered by the Tribunal.
[63] In my view, both the Tribunal and the Federal Court approached the matter too narrowly by asking only whether Bell selected the appellant for termination because she was disabled. That framing overlooks the distinct manner in which disability is said to have operated in this case. The adverse treatment the appellant alleged was not simply the elimination of her position, but also Bell’s decision to treat a disabled employee who remained within its long-term disability rehabilitation program as though she were already an active and well employee.
[64] While it is true that termination of an employee’s employment while they are disabled, without more, does not give rise to a prima facie case of discrimination as was held in Kerr, this is not an answer to the appellant’s claim. The Kerr case did not address the issue of whether prematurely ending an employee’s disability coverage might be discriminatory where termination automatically ends that coverage and the employee is alleged to still be disabled, as occurred in the appellant’s case. As for the Federal Court’s decision in Tutty, that case turned on the lack of evidence from the claimant that he was disabled at the date of termination. Thus, neither case is of assistance in this appeal.
[65] The issue of whether prematurely ending an employee’s disability coverage before they are fit to return to work, of itself, is discriminatory does not appear to have been previously addressed in the human rights case law in circumstances such as these, where the termination ended an ongoing entitlement to disability benefits but the decision to cut the complainant’s position was made for bona fide business reasons. This is likely so as few employers would run the risk of cancelling disability insurance coverage for a disabled employee while they remain disabled. Doing so (or terminating an ex-employee’s disability insurance coverage when they become disabled during the notice period to which they are entitled) gives rise to an entitlement to damages equivalent to the value of the lost disability insurance and related benefits in employment law. As noted in Howard A. Levitt, The Law of Dismissal in Canada, 3rd ed (Toronto: Thomson Reuters, 2003) at § 9:16:If an employee is totally disabled at the time of the termination or becomes so during the period of notice, the company or its insurer or both may be sued. Any of these parties who is deemed responsible may be sued, accordingly, for the value of the short- and long-term disability benefits prescribed according to the plan, usually to recovery or to the employee’s 65th birthday. The courts have also concluded that a company cannot frustrate an employee’s right to long-term disability by terminating him or her. An employee who becomes disabled during the appropriate notice period is, therefore, entitled to damages for loss of benefits that the employee would have had if his or her employment had not been terminated.
(citations omitted) [66] The fact that proceeding as Bell did might have exposed it to common law damages in employment law does not foreclose the possibility that its conduct might well also violate paragraph 7(b) of the CHRA. In this regard, a useful analogy may be drawn to the approach taken in the human rights case law on absenteeism, which recognizes that employers must modify attendance requirements for disabled employees and accommodate them to the point of undue hardship.
[67] This Court’s decision in Desormeaux v. Ottawa (City), 2005 FCA 311 [Desormeaux] illustrates the point. In that case, the employer dismissed Ms. Desormeaux for innocent absenteeism resulting from severe migraine headaches. The Tribunal concluded that her migraines constituted a disability, that the disability was a factor in her dismissal, and therefore that a prima facie case of discrimination had been established. Although the employer was entitled to expect regular attendance from employees generally, that attendance standard could not simply be applied without regard to the employee’s disability. Once prima facie discrimination was established, the analysis shifted to whether the employer could justify the standard as a bona fide occupational requirement and whether accommodation to the point of undue hardship had been provided.
[68] While the Federal Court initially overturned the Tribunal’s decision, this Court restored it. This Court accepted that an attendance requirement may be entirely legitimate for employees who are capable of attending work, but that applying that requirement to an employee whose disability prevents regular attendance constitutes prima facie discrimination. The justification for that treatment, if any, is addressed only at the subsequent stage of the analysis.
[69] In my view, the same principles apply here. Bell’s submissions repeatedly proceed on the premise that medical approval to shortly commence a graduated return to work was legally equivalent to an actual return to active employment. However, the two are not the same. Bell nevertheless treated the appellant as though she had already recovered. Just as the employer in Desormeaux treated a disabled employee as though she could satisfy the ordinary expectation of regular attendance, Bell treated the appellant as though she had already resumed active employment and exited the disability regime. It thereby applied to her the ordinary legal incidents of active employment, including being subject to the termination of her long-term disability benefits and the termination of her employment as a result of a restructuring, before the factual and medical predicates for doing so existed. Essentially, Bell collapsed the distinction between anticipated recovery and actual recovery.
[70] That distinction is significant. Bell did not merely terminate an employee whose position had been eliminated. It terminated an employee who remained within its long-term disability rehabilitation program before that rehabilitation process had even commenced, thereby extinguishing the disability-related protections and benefits that existed precisely because the appellant was not yet able to return to her previous work on a full-time basis. In substance, Bell treated Ms. O’Grady as though she were fully well when the undisputed evidence is that she was not.
[71] Desormeaux demonstrates why Bell’s submissions conflate two distinct stages of the discrimination analysis. Whether Bell ultimately had legitimate business reasons for restructuring its workforce, whether postponing the termination would have imposed undue hardship, or whether the appellant could ultimately have been accommodated are matters that arise only after a prima facie case has been established. They do not answer the anterior question of whether Bell’s treatment of the appellant was connected to her disability.
[72] While the foregoing is sufficient to overturn the Federal Court Decision and find that the Tribunal Decision is unreasonable due to its failure to address a central argument advanced by the appellant, in these circumstances I would go further and would find that the appellant has succeeded in making out a prima facie case of discrimination. . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. As a preliminary matter at the appeal, the appellant/applicant alleged fairness breaches at the Federal Court as the court scheduled only one day for hearing, and the AG moved without notice to strike part of the record - both of which he alleged impacted on his ability to present his case due to his autism.
In these quotes the court cites disability discrimination doctrine, particularly here in the context of court hearing 'services' [see para 32 re 'wokeness']:II. The Courts’ Obligation to Accommodate Litigants with Disabilities
[18] Equality before the law for individuals with disabilities is guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Subsection 15(1) of the Charter provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination […] based on […] mental or physical disability”.
[19] Similarly, section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, makes it a discriminatory practice to discriminate in the provision of services that are customarily available to the general public (such as those offered by the Courts Administration Service) on a prohibited ground of discrimination. Section 3 of the Act identifies “disability” as one of the prohibited grounds of discrimination.
[20] Discrimination does not have to be direct: a rule (such as the time allocated for a hearing) may be neutral on its face, but may nevertheless have an adverse effect on members of protected groups: Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1 at paras. 30-31. For example, individuals with a neurological condition such as autism may require additional time to process information. In either case, however, a service provider is required to accommodate the needs of the individual service recipient to the point of undue hardship: see, for example British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3.
[21] Even if a person with a disability is treated in exactly the same way as others, there may still be discrimination. Indeed, identical treatment may in some cases result in serious inequality: see, for example, Fraser, above at paras. 32-36; Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at para. 26. It is therefore sometimes necessary to treat people with disabilities differently than others, in order to achieve substantive equality: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 46.
[22] A simple example illustrates the point: it is no answer to a claim of discrimination from a litigant in a wheelchair to say that everyone is expected to climb the stairs in front of a courthouse to have their day in Court, and that the wheelchair-bound litigant was treated no differently than anyone else. Facially neutral legislation can be discriminatory: R. v. Sharma, 2022 SCC 39 at para. 42. For more on this, see the Supreme Court’s extensive analysis in Fraser at paras. 29-55.
[23] Similar obligations are imposed on service providers (such as Courts Administration Service) by the Accessible Canada Act, S.C. 2019, c.10. This is a relatively new Act designed to proactively identify, remove and prevent barriers to accessibility for people with disabilities, so as to, amongst other things, allow them to fully exercise their rights and responsibilities in a barrier-free Canada. One of the guiding principles underlying the Act is that service providers must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons with disabilities: see section 6(e).
[24] Insofar as judges are concerned, these principles are reflected in the Ethical Principles for Judges (Ottawa: The Canadian Judicial Council, 2021). Part IV of the Ethical Principles provides that judges are to “conduct themselves and the proceedings before them to ensure equality according to law”. Judges are further counselled to carry out their duties with respect for all persons, without discrimination or prejudice.
[25] The Ethical Principles further observe that the law’s commitment to substantive equality seeks to protect individuals from both direct and adverse effect discrimination, and that “this approach to equality seeks to acknowledge the equal worth and dignity of all persons”. Equality, is, moreover, “fundamental to justice and is strongly linked to judicial impartiality and to public confidence in the administration of justice”. Consequently, judges are advised to ensure that their commitment to equality is unwavering, and that their conduct is such that any reasonable and informed member of the public would have confidence in the judge’s respect for and commitment to equality.
[26] Related to this is the judge’s obligation to ensure that those appearing in court receive a procedurally fair hearing. Indeed, counsel for the Attorney General acknowledged at the hearing before us that the duty to accommodate litigants (or counsel) in the courtroom setting finds its voice in the judicial setting through the principles of procedural fairness.
[27] As the Supreme Court of Canada held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the values underlying the duty of procedural fairness reflect the principle that individuals should have the opportunity to present their case fully and fairly. Moreover, decisions that affect their rights, interests, or privileges should be made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision: Baker, above at para. 28.
[28] The Supreme Court identified a number of factors that can assist a court in determining whether the procedures followed in a specific case respected the duty of fairness. That said, the list of factors relevant to determining whether the common law duty of procedural fairness has been respected in a given set of circumstances is not exhaustive, and other considerations may also be important in a given case: Baker, above at para. 28.
[29] One such consideration is the accommodation needs of litigants with disabilities.
[30] The steps necessary to accommodate a litigant with a disability will obviously depend on the nature of the disability in question and the unique needs of the individual litigant. There is, moreover, an obligation on individuals seeking accommodation to assist in securing appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 43.
[31] Courts must, however, remain mindful of their duty to accommodate the needs of the disabled so as to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians.
[32] Lastly, it is perhaps important to state that these principles have nothing to do with political correctness or wokeness. They are not a bow in the direction of what might be trendy or in vogue at the moment. They are about something far more fundamental, far more enduring, far more essential. They are about making our fellow human beings feel included, welcome and empowered in one of the most fundamental institutions of our democratic state.
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