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
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
"... the concept of disability,
for human rights purposes, has generally been held to involve a
physiological state that is involuntary and has a degree of
severity, permanence and/or persistence. Generally, the disability
impairs a person's ability to carry out the normal functions of
life to some degree and poses an impediment to a person's
participation in the economic or other areas of life which the
Code seeks to protect against. It is a case-by-case
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:
"His medical condition lacked
the severity, or permanence or persistence which would qualify it
as a physical disability with the meaning of the
Employers Should Be Familiar with Legal Definition of Physical
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).