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 that:

"... 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 analysis."

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 Code."

Employers Should Be Familiar with Legal Definition of Physical Disability

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.

Note: This a reprint of an article by Larry Page of DLA Piper.