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Human Rights (Fed) - Prima Facie. 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 the requirement that an HR claimant establish a prima facie case of discrimination:[58] In a discrimination case, the burden of proof initially falls on a claimant to make out a prima facie case of discrimination. To establish the prima facie case, a claimant is required to establish that they: (1) have a characteristic that is protected under the CHRA; (2) experienced adverse treatment; and (3) the protected characteristic was a factor in the adverse treatment: Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 at para. 69; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789 at paras. 35–36; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at para. 19; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 at paras. 15–18.
[59] Once a prima facie case is established, the burden then shifts to the respondent to establish a defence. The defence potentially applicable in this case is that set out in paragraph 15(1)(a) of the CHRA, which provides that "“it is not a discriminatory practice if … any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a ""bona fide occupational requirement.”" Subsection 15(2) of the CHRA provides that "“for any practice … to be considered to have a ""bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”" These provisions create a duty to accommodate the needs of a person with a protected characteristic to the point of undue hardship: see, for example, Canada (Attorney General) v. Gallinger, 2022 FCA 177 at paras. 99–100; Matos v. Canada (Attorney General), 2025 FCA 109 at para. 59.
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