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Human Rights (Fed) - Employment. 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. . Matos v. Canada (Attorney General)
In Matos v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a JR, here against a Federal Public Sector Labour Relations and Employment Board (FPSLREB) finding against discrimination (here, a 'non-discrimination' right embodied in the collective agreement, not from the CHRA).
Here the court considered whether employment accomodation always mitigates adverse impact:IX. The Respondent’s Accommodation Argument
[58] As noted, the CBSA also says that Mr. Matos did not suffer any adverse impact because of its actions because he was reasonably accommodated by being provided with a non-enforcement position.
[59] With respect, this argument conflates the test for a prima facie case with the burden on the respondent to justify their conduct or practice within the framework of the exemptions available under section 15 of the Canadian Human Rights Act, one such exemption being that the complainant or grievor had been reasonably accommodated. Whether a respondent has adequately accommodated an employee does not figure into a determination of whether a prima facie case of discrimination has been established: Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22. Moreover, this argument does not assist the CBSA as the Board found that Mr. Matos had not been adequately accommodated.
[60] The respondent further contends that any error in the Board’s assessment of the question of adverse impact was immaterial, as it found that, in any event, Mr. Matos had been reasonably accommodated by the CBSA, with the result that there was no discrimination.
[61] With respect, as noted in paragraph 59 of these reasons, this is not what the Board found.
[62] After accepting the CBSA’s evidence with respect to the physical requirements of front-line BSO positions in its alternative analysis, the Board noted that the fitness requirement had previously been found to be a bona fide occupational requirement for front-line BSO positions, and that it agreed with that finding: at para. 180, citing Lessard-Gauvin v. Canada (Attorney General), 2018 FC 809.
[63] That said, the Board went on to find that the employer’s case would nevertheless fail in Mr. Matos’ case because the CBSA had "“refused to engage in an individualized assessment of the grievor’s functional limitations and to seek accommodations for him rather than simply and mechanistically applying policy and moving him into an accommodated post”": at para. 183. This is what it was required to do: Moore, above at para. 49; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 ("“""Meiorin”"), at para. 65.
[64] That is, the employer must show "“that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”": Meiorin at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 72 D.L.R. (4th) 417, at pp. 518–19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 130.
[65] This is consistent with subsection 15(2) of the Canadian Human Rights Act, which states that for a "“refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment”" to be a bona fide occupational requirement, "“it must be established that accommodation of the needs of an individual [..] affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost”".
[66] The fact that the Board had found that the CBSA had failed to justify its conduct under section 15 of the Act is further made clear in the Board’s discussion of the damages to which Mr. Matos was entitled. At paragraph 195 of the decision, the Board accepted the CBSA’s submission that Mr. Matos had experienced little or no harm, stating that "“I would, in the alternative, ""if I am mistaken in my finding on the matter of a prima facie ""case of discrimination, award a nominal $1000.00 …”" [my emphasis].
[67] The only way that the Board could get to an award of damages after finding that a prima facie case of discrimination had been established would be if it was satisfied that the employer had failed to justify its conduct. This is precisely what the Board had found.
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