He is a three time most valuable player, a Hall of Fame catcher,
one of only seven managers in major league baseball history to
pilot teams from both leagues in the World Series and the only
sporting figure to have a well-known animated character named after
him. Yogi Berra is one of baseball's all-time greats.
As accomplished as Yogi was on the field, he is also well-known
as a master of the malaprop. Among Yogi's better known sayings
is: "It's like déjà-vu, all over
Well, it is like déjà-vu all over again.
In the recent Human Rights Tribunal decision of Burgess v.
College of Massage Therapists of Ontario 2013 HRTO 1960, the
Tribunal dealt with a human rights application from Candace
Burgess, a massage therapist. Burgess had missed a mandatory two
day training program required of examiners who assess candidates
seeking certification in Ontario as registered massage therapists.
She contacted the College the day before the scheduled training,
indicating that she had the flu and was concerned she may not be
able to attend. In fact, she did not attend and her contract to act
as an examiner was cancelled. Burgess alleged that action was an
act of discrimination based on her disability.
At the Tribunal's summary hearing Burgess testified that she
initially felt she had the flu but that a few days later, following
a throat swab, her physician told her she had strep throat. She
argued that the College had a duty to accommodate her disability,
while the College for its part contended that Burgess was not
suffering from a disability, and in any event the training was a
bona fide occupational requirement.
The Tribunal rejected the College's argument that the
training was a bona fide requirement and that it would have been
unable to accommodate Burgess without undue hardship. However, it
dismissed her application as it found that she did not have a
While noting that the definition of disability in the Code is
extremely broad, the Tribunal observed that not every medical
condition constitutes a disability within the meaning of the Code,
relying on the decision in Ouimette v. Lily Cups Ltd.
(1990) 12 C.H.R.R. D/19 where a Board of Inquiry held that the flu
is not a disability (full disclosure, the writer was counsel
for the employer in that case). The Board in Lily
Cups found that to consider commonplace, temporary illnesses
as disabilities would have the effect of trivializing the
Code's protections. Similarly the Tribunal held that whatever
medical condition Burgess had, the flu or strep throat, these are
short-term common ailments that can and are routinely experienced
by just about everyone and as such do not constitute a
The Tribunal also relied on the Supreme Court of Canada's
decision in Quebec (Commission des droits de la
personne et des droits de la jeunesse) v. Montreal (City),
2000 SCC 27 where the Court laid out guidelines as to what
constitutes a handicap noting, however, that the guidelines are not
without limits. As the Court said:
"As the emphasis is on obstacles to full participation
in society rather than on the condition or state of the individual,
ailments (a cold, for example) or personal characteristics (such as
eye colour) will necessarily be excluded from the scope of
The fact that after almost 25 years the Tribunal continues to
consider whether everyday ailments such as the flu and strep throat
constitute a disability brings to mind another famous Yogi Berra
saying: "I wish I had an answer to that because I'm
tired of answering that question."
What this means for employers
While an employee has a right to accommodation in the workplace
when suffering from a disability, employers should not
automatically assume that every ailment attracts the duty to
accommodate. Notwithstanding the broad definition of disability in
the Code, when an illness is temporary and appears to be something
that most of us have from time-to-time, an employer would be well
advised to consult with counsel to ensure that its Code obligations
to accommodate are in fact triggered in the circumstances.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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