Ted's Blog


Yogi Was Right – It Is Like Déjà-vu, All Over Again!

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 again"!

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 disability.

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 disability.

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 'handicap'..."

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

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.

Note: This is a reprint of an article by David Elenbaas of McMillan LLP.