Canada: "Timing Isn't Everything": Termination Shortly After Disability-Related Absences Is Not Necessarily Discriminatory

A common issue in human rights claims is the timing of an employer's action or decision relative to an employee's medical leave or illness.  Even where an employer takes action or makes a decision that is unrelated to an employee's protected characteristics under human rights law, the timing often raises questions about the employer's motivations. 

One illustrative decision in this regard is Mou v. MHPM Project Leaders, 2017 HRTO 246, in which the Human Rights Tribunal of Ontario (the "Tribunal") dismissed a complaint based largely on the timing between (a) the employer expressing concerns about the employee's disability-related absences, and (b) the termination of that employee's employment.


Ms. Mou was an employee of MHPM Project Leaders from June 2011 to February 2014.  In 2013, Ms. Mou missed ten days of work due to a slip and fall, two days of work after experiencing a miscarriage, nine days of work after her mother-in-law died, and a number of full and partial days (totalling 46 hours) for other health-related reasons.  Due to these absences, Ms. Mou did not meet her 1,800 billable-hours target and exceeded her annual entitlement to sick time.

In December 2013, Ms. Mou's supervisor and a human resources representative met with Ms. Mou to discuss MHPM's concerns about her absences from work.  These concerns were also reflected in her 2013 interim and annual performance evaluations.

On February 27, 2014, MHPM terminated Ms. Mou's employment.  Ms. Mou testified that she was not provided with an explanation for the termination and, when she asked for one, a superior told her to "draw her own conclusions".  In contrast, the superior said that he informed Ms. Mou of the reason for her termination – there was no work, and there was no opportunity to move her to another group.  Then, when she did not believe this explanation, the superior told her to draw her own conclusions.

Ms. Mou filed a human rights complaint alleging discrimination based on disability.  She argued that her disability-related absences from work were a factor in the termination of her employment.

The Tribunal's Decision

The Tribunal clarified that to establish discrimination under the Code, Ms. Mou must prove that her disability-related absences were one factor (possibly among many) in the employer's decision to terminate her employment.

The employer led evidence that Ms. Mou was terminated because there was no work available at her level.  MHPM had been engaged by Public Works and Government Services Canada, which had decided to remove the intermediate and senior project managers on the East Block project in December 2013 (which included Ms. Mou).  "Shortage of work" was the reason given on Ms. Mou's Record of Employment, and was substantiated by evidence before the Tribunal, including evidence of a slow-down in the real estate market in 2013-2014 that negatively affected MHPM's business.

The Tribunal held that the temporal connection between the employer expressing concerns about Ms. Mou's disability-related absences in December 2013, and the termination of her employment in February 2014, was sufficient to require the employer to provide reasons for the termination.  However, the temporal connection alone did not establish discrimination.  Based on the evidence of this case, the Tribunal found that Ms. Mou's absences were not a factor in her termination.  As a result, the case was dismissed.

Key Takeaways

The Ontario Human Rights Tribunal's decision highlights that a temporal connection between an employee's termination and circumstances that could suggest discrimination may be sufficient to require the employer to provide reasons for the termination; however, such a temporal connection alone is insufficient to prove discrimination.  This is consistent with the British Columbia Human Rights Tribunal's recent decision in Whitmore v. Dr JT Kelsall Inc. and another,  2017 BCHRT 114, where the complainant's only evidence of the alleged discriminatory conduct was the temporal connection between the termination of the complainant's employment and her medical leave of absence.

While these decisions affirm that bad timing itself may not be sufficient to successfully establish discrimination, employers should document the non-discriminatory reason for termination of an employee's employment, particularly where the dismissal occurs close in time to an event that may be linked to a prohibited ground of discrimination.

If you have any questions about your company's obligations or potential liability under human rights legislation, please do not hesitate to contact a member of our Labour and Employment group.

To view the original article click here

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions