Canada: How Long Is "Transitory"? How Ordinary Is "Common"? Miscarriage And Deep Tissue Injury Are Disabilities Under Human Rights Code

Last Updated: April 14 2016
Article by Stefanie Di Francesco

In a recent interim decision, the Human Rights Tribunal of Ontario (the "Tribunal") found a miscarriage and an unrelated deep tissue injury to be disabilities within the meaning of Ontario's Human Rights Code (the "Code"). This decision is significant both for the Tribunal's recognition of a miscarriage as a disability and for the analysis the Tribunal uses to arrive at that conclusion.

The Facts

The applicant, Ms. Mou alleged that she was discriminated against by her former employer, MHPM Project Leaders ("MHPM"), when she was dismissed in early 2014 as a result of absences from work that caused her to fail to reach her 1800-hour annual target. Specifically, Ms. Mou was absent from work for three weeks in January of 2013, recovering from a deep tissue injury that resulted from a slip-and-fall, and for two-days in June related to a miscarriage. Ms. Mou alleged that these events, followed by the death of her mother-in-law, "profoundly affected her health and well-being."

In respect of the deep tissue injury, Ms. Mou testified that she could not move the left side of her body, could not type, and was put on heavy pain medication. She attempted to return to work twice within three-weeks of the fall but was asked to leave because she was not well. Ms. Mou was advised by MHPM to contact Human Resources to initiate a short term disability application only to discover that there was no short term disability available to her with MHPM.

In respect of her miscarriage, Ms. Mou testified that she became pregnant with her first child in May of 2013 and that she had a miscarriage on June 12, 2013. She testified that, having exhausted her sick-leave in January, she took two vacation days following the miscarriage and did not take more time off due to an impending work deadline. Ms. Mou testified that although she physically recovered, she continues to experience "significant emotional distress from the miscarriage even today."

Ms. Mou was advised at her mid-year review that she needed to improve on her ability to meet scheduled delivery objectives and was dismissed following her annual 2013 performance review.

Positions of the Parties

Ms. Mou alleged that given the timing and circumstances of her dismissal, MHPM's reliance on performance concerns directly related to her disabilities and its failure to accommodate her disability-related needs.

While MHPM acknowledged that 2013 was a "bad year" for Ms. Mou, it argued that neither her deep tissue injury nor her miscarriage were disabilities protected by the Code and that Ms. Mou's application should be dismissed on an interim basis for having no prospect of success.

What is a Disability?

The Tribunal reviewed the well-established jurisprudence affirming that the definition of disability should be interpreted broadly, but that common, transitory ailments are not disabilities protected by the Code. The Tribunal reiterated that finding commonplace, transitory ailments as disabilities would have the effect of trivializing the Code's protections. Accordingly, as stated in previous decisions, strep throat, the flu, flu-like symptoms, gastroenteritis, and sinusitis are not protected by the Code.

The Tribunal also made clear that a disability need not be permanent to be protected by the Code. A person can fully recover from a disability and either experience discrimination related to that disability while he or she has the disability or after he or she has recovered from the disability based on the perception that he or she is disabled.

The Decision

The Tribunal's conclusion that both the miscarriage and the deep tissue injury are disabilities protected by the Code appears to be premised on the factual finding that both conditions are not transitory or common.

The Tribunal compared the recovery time for the flu or a cold (a few days) with the recovery time for the deep tissue injury (three weeks), and found the latter to be "an extended period of time", and consequently not transitory.

Similarly, although the Tribunal found that the physical event of a miscarriage may constitute a disability, the Tribunal considered the "significant emotional distress" that Ms. Mou continues to experience as a result of the miscarriage in finding the miscarriage to be "certainly not transitory". This analysis is significant as Ms. Mou did not assert a mental health disability in seeking to establish her claim.

The Tribunal further noted that a miscarriage may also be protected under the ground of sex or as an intersection of sex and disability.

The Tribunal found that both the miscarriage and the deep tissue injury were not common, but provided no discussion or analysis of how common or prevalent either ailment is in Ontario or Canada.

Procedural Next Steps

It is worth noting that this is an interim decision. At a hearing on the merits, Ms. Mou must establish a prima facie case of discrimination by demonstrating a nexus between the negative treatment she experienced and one or both of her disabilities.

It is not clear from the interim decision whether Ms. Mou told MHPM that she had a miscarriage. If Ms. Mou did not tell MHPM that she had a miscarriage, she will have to connect her disability (the miscarriage) to her adverse treatment (her dismissal) in some other way, perhaps by suggesting that MHPM had a duty to inquire as to whether personal circumstances played any role in her failure to meet her performance targets.

Employer Take-Aways

This decision is a good reminder for employers of the broad definition of disability under the Code and the broad scope of disability protection proffered by the Code. A disability can be both a physical event, like a miscarriage, and can also include the physical and mental time required to recover from that event. When an employer has performance concerns and is considering dismissing an employee, it should be mindful of its legal obligations under the Code and, as a best practice, should inquire as to whether any disabilities are a cause of the poor performance. All such inquires should be made with great care and sensitivity. Employers should respond to all disability-related disclosures on an individual basis, and inquire further into the employee's specific needs to ascertain whether accommodation is appropriate 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.

© McMillan LLP 2016

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stefanie Di Francesco
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.