“Physical Disability” Defined – A Critical Threshold Question

Human rights statutes across Canada prohibit discrimination in employment on the basis of, among other things, “physical disability”. Sometimes it is clear that an employee is physically disabled, and entitled to statutory protection. However, there are other times when it is unclear if an employee’s medical circumstances fit the definition.

In a recent decision, Li v. Aluma Systems and another, 2014 BCHRT 270 (Blasina), the BC Human Rights Tribunal (the “Tribunal”) provided further clarification of what “physical disability” means, and why understanding this term is a critical threshold question in human rights litigation.

Background Facts

The Complainant, Mr. Li, was a journeyman scaffolder working for Aluma Systems. From April 15 to 19, 2013, Mr. Li worked at a movie set building scaffolding for a helicopter pad. He disagreed with his foreman about how the work should be done, but ultimately followed the foreman’s instructions. However, Mr. Li felt that his coworkers did not pull their weight and that he had done more than his share of the tough physical labour. As the project continued, Mr. Li told his co-workers that his hands were swollen, but not sore.

The following week, when he was working on a different project, Mr. Li told his foreman that he had injured his right hand on the movie set. He was told to see a doctor right away. He telephoned Aluma’s General Manager the next day and said that he had “popped a vein” in his right hand but he did not want to file a WCB claim because the injury was “very minor”. In a subsequent call, Aluma’s Safety Officer told Mr. Li to get a medical note, file a WCB claim, and report to work for light duty. Mr. Li did these things. The medical note reported that Mr. Li could not use his right hand for 1 to 2 weeks.

On Mr. Li’s second day of light duty, the General Manager asked to see his hands, and said that he saw nothing wrong with them. He also told Mr. Li that Mr. Li was costing him $40 per hour since he could not use him to perform Aluma’s contracted work. Mr. Li responded to the General Manager that he got hurt because Aluma hired lazy people and was poorly managed. Mr. Li was fired on the spot.

Mr. Li filed a human rights complaint alleging that he had been subjected to discrimination on the basis of physical disability, contrary to the BC Human Rights Code (the “Code”). His case was heard by the Tribunal on December 8, 2014. Following Mr. Li’s evidence, the Respondent made a no-evidence motion, asserting that Mr. Li had failed to establish that he had a “physical disability” or that he suffered any adverse treatment because of any such disability.

Decision

The Tribunal noted that in order to succeed in his complaint, Mr. Li needed to prove that he had, or was perceived to have had, a physical disability which was a factor in some adverse employment-related treatment. With respect to the definition of “physical disability”, the Tribunal reviewed its previous jurisprudence, including Ma v. Dr. Iain G.M. Cleator and another, 2014 BCHRT 180 (Tyshynski), and noted that not every medical problem constitutes a “physical disability” within the meaning of the Code:

Not every medical problem constitutes a physical disability within the meaning of the Code. Factors commonly taken into account in determining whether a given illness or medical condition amounts to a disability are whether the condition entails a certain measure of severity, permanence and persistence ….

Common ailments such as a cold or a flu are not a disability under the Code as they do not constitute an impediment to participation in the economic or other areas of life which the Code seeks to protect against discrimination …

In summary, 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 …

[Emphasis added.]

The Tribunal noted that Mr. Li’s injury was minor, transitory, and only minimally impeded his daily routines. It applied the test articulated above and found that his medical condition lacked the severity, permanence or persistence which would qualify it as a physical disability within the meaning of the Code.

The Tribunal also held that Mr. Li failed to prove any link between his medical problem and the termination of his employment. Rather, the evidence established that he was fired for his criticism of Aluma, not for his injury. The Tribunal held that Mr. Li failed to establish a prima facie case of discrimination. It allowed Aluma’s no evidence motion and dismissed Mr. Li’s complaint.

Lessons for Employers

While human rights legislation provides broad protections, the protections have limits. This case provides further guidance on the types of medical problems which will trigger an employer’s expansive duty to accommodate. Transitory injuries or illnesses which are expected to be resolved in relatively short order may not be “physical disabilities” within the meaning of human rights law. As such, they need not be accommodated and present no bar to discipline or termination.

Of course, it is not always easy to know on which side of the line a particular situation lies. Prudent employers will seek and review clear, current and credible medical information before attempting to answer this critical threshold question.