In a recent interim decision of the Human Rights Tribunal of Ontario, Vice-Chair Jennifer Scott held that miscarriage is a disability protected by the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

The Applicant filed a Human Rights Application alleging discrimination with respect to employment because of disability. The Applicant alleged that she experienced a series of events in 2013 that profoundly affected her health and well-being and that her employer’s decision to terminate her employment for reasons related to those events was discriminatory.

The Applicant suffered a slip and fall when walking on ice in January 2013. She sustained injuries that required her to take time off, and though she attempted to return to work on three occasions, she was not in fact able to do so until late January 2013.

In May 2013, the Applicant learned that she was pregnant with her first child. The Applicant subsequently suffered a miscarriage in June 2013. The Applicant took two days off work, but testified that she took this time as vacation because she had used up her allotted five-day sick leave allowance in January 2013. The Applicant testified that she continued to experience significant emotional distress from the miscarriage at the time of the hearing, which occurred in February 2016. In her Application, the Applicant also alleged that her mother-in-law passed away shortly after she suffered the miscarriage, which triggered a severe and disabling depression. However, the Applicant did not allege that she was disabled because of depression. The Applicant alleged that her disabilities were her injuries due to the slip and fall and her miscarriage.

The Applicant’s employment was terminated in February 2014. In her performance evaluation for 2013, the Applicant was told that she had not met the employer’s performance target, in respect of hours, and that she needed to improve her ability to meet scheduled objectives. The Applicant argued that she was discriminated against when her employer terminated her employment because of her disability-related absences from work.

The interim decision dealt with the employer’s argument that the Application should be dismissed because the Applicant had failed to establish that she suffered from a disability. The employer’s argument was that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition. The employer argued that the health issues that the Applicant experienced in 2013 were temporary in nature and she had recovered from them by the time her employment was terminated. Essentially, the employer conceded that the Applicant had a “bad year” in 2013, but argued that a “bad year” does not constitute a disability.

Vice-Chair Scott reviewed the definition of “disability” set out in the Code and specifically noted that section 10(3) of the Code provides that a disability does not have to be permanent. Reviewing the Supreme Court of Canada’s jurisprudence regarding what may be found to be a “disability”, the Vice-Chair indicated that the definition of “disability” should be broadly interpreted, and “may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors” (as stated in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 (CanLII)). However, the definition has not been so broadly defined as to include a cold or flu, or strep throat, as such transitory ailments do not act as barriers for persons to participate in society (per Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (CanLII), and Valmassoi v. Canadian Electrocoating Inc., 2014 HRTO 701 (CanLII)).

Vice-Chair Scott found that the Applicant had established a disability. First, her injuries resulting from the slip and fall took almost three weeks to heal and were so extensive that the Applicant’s first attempts to return to work were unsuccessful. The injury of this nature was not a common ailment and was not transitory, making it different from flu and the common cold.

The Vice-Chair also found that the Applicant’s miscarriage was a disability. She acknowledged that a miscarriage could either be covered under the ground of sex or as an intersection of sex and disability. The Vice-Chair found that a miscarriage was not a common ailment, nor was it transitory.

The Vice-Chair highlighted that the Code does not require a disability to be present at the time of adverse treatment for an individual to be protected. She stated “[the] protections under the Code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination. […] The question is simply whether the disability, regardless of when it occurred, was a factor in the adverse treatment.” (para. 22).

Finding that the Applicant had successfully established a disability under the Code, the Vice-Chair declined to dismiss the Application. No finding has yet been made as to whether the Applicant’s disability was a factor in the employer’s decision to terminate the Applicant’s employment.

This decision highlights that an employee need not continue to suffer from a disability in order for a finding of adverse treatment to be made and employers should consider it when implementing attendance management policies.

This is the first instance in which the Human Rights Tribunal of Ontario has recognised miscarriage as a disability under the Code and may change how employers must respond in such instances. Under the Employment Standards Act, 2000, an employee who suffers a miscarriage or stillbirth more than 17 weeks before her due date is not entitled to a pregnancy leave, which is a protected leave under that legislation. However, in light of the decision that miscarriage is a disability, an employee who suffers a miscarriage will be entitled to reasonable accommodation, which may include a period of paid or unpaid leave, or other measures. Employers must be aware of this issue and ensure that they are complying with their Code-related obligations.