A decision this month by the BC Human Rights Tribunal (the "Tribunal") considered the evidence required to prove a "physical disability" under the Human Rights Code (Li v. Aluma Systems Inc. et al, 2014 BCHRT 270).
Mr. Wan Ji Li based his complaint on the fact that his employment was terminated when his hands had become swollen and painful after a strenuous job at Aluma Systems. The medical evidence was that his swollen hands and pain would be resolved by use of muscle relaxants and anti-inflammatory medication followed by a period of rest or light duties at work.
The Tribunal considered the test for establishing a "physical disability". The tribunal affirmed its position that:
In a previous decision, the Tribunal had decided that a lower back injury that would typically have a recovery time of eight weeks was a "transitory" condition that did not meet the requirement of a physical disability under the Code. The back injury did not have the degree of permanence required to establish a physical disability.
The Tribunal concluded in this case that Mr. Li's symptoms were "transitory and not permanent in nature". The Tribunal stated that:
Employers Should Be Familiar with Legal Definition of Physical Disability
It is important for employers to recognize the actual legal requirements to prove a physical disability when a human rights issue is raised by an employee.
Employers whose employees are covered by a collective agreement should also be aware that the same definition of physical disability would normally be the standard used in dealing with a human rights issue under a collective agreement. Collective agreements commonly use the same language as the Human Rights Code, or incorporate the Code into the collective agreement by reference. Arbitrators dealing with a human rights issue under a collective agreement will apply the same tests as the Human Rights Tribunal in deciding whether a grievor has established a physical disability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.