A decision rendered a few months ago by the Alberta Court of
Queen's Bench has provided some helpful guidance on a question
that frequently arises from our employer clients. Does a relatively
minor ailment or series of medical problems amount to a
"physical disability" that deserves human rights
In quashing an Alberta Human Rights Commission Tribunal
decision, the judge's reasons contain a scathing attack on the
reasoning of the tribunal. In doing so, amongst other conclusions,
it makes the following points that would apply to future tribunals
and also to future adjudicators, like arbitrators, who are
sometimes called upon to decide the same issue (in fact the human
rights adjudicator in this case is also a labour arbitrator):
If you are going to try to prove a disability then you ought to
call a doctor to testify about your condition. In this case, the
Commission (which represented the complainant) did not and
therefore failed to meet its onus of proof to establish that there
was a "disability" and also failed to provide the
employer with a reasonable opportunity to cross-examine the doctor
on his reports.
Contrary to the conclusion of the adjudicator, the judge was of
the view that the series of unrelated episodes of temporary but
disabling injuries did not constitute a "disability". The
reasoning of the judge was as follows:
"to meet the 'disability
threshold', a complainant's condition must entail 'a
certain measure of severity, permanence, and persistence'. A
person must have a substantial limiting and ongoing physical
condition to invoke the statutory protection against
discrimination. In contrast, a 'disparate, unrelated and
temporary episode of injury' is not a disability under the
"A transient illness which may
result in an employee accessing available sick leave will not
ordinarily constitute a disability, though it may be possible that
use of sick leave demonstrates a frailty of health which may result
in a disability. ..."
There are individuals in our society whose disadvantages entitle
them to societal protection through human rights legislation. It is
encouraging to see a decision which refuses to permit dilution of
the protection by protecting those who do not fit into a
disadvantaged category but have a problem attending work with
regularity. Regular attendance is, after all, a reasonable
The Court of Queen's Bench decision can be viewed
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