FAQ's Cases - Stewart McKelvey

(3) The right to equal treatment without discrimination because ofdisability includes the right to equal treatment without discriminationbecause a person has or has had a disability or is believed to have or tohave had a disability.[21] The first issue is whether the applicant was disabled at the time of his terminationfrom employment. The applicant was in receipt of WSIB benefits for nearly eighteenmonths in the aftermath of his slip and fall accident. The definition of disability in theCode includes an injury or disability for which WSIB benefits were claimed or received.Accordingly, in the circumstances of this case, the applicant did have a disability at thetime of the termination of his employment. The real issue in this case is whether theapplicant’s disability was a factor in the respondent’s decision to terminate hisemployment.2012 HRTO 1489 (CanLII)[22] The applicant must prove on a balance of probabilities that the respondentdiscriminated against him based on his disability. It is well-established in human rightslaw that the protected ground need only be one factor in the decision made thatadversely affected the applicant; it does not have to be the only or primary reason: seeJanzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.[23] The respondent TTC’s actual termination of the applicant’s employment withintwo weeks after his slip and fall accident may raise suspicions of discrimination, andunderstandably so. The principal question is: was the applicant’s disability in any way afactor in the decision to terminate his employment?[24] The respondent TTC asserts that the decision, made in December, 2009, wasbased on legitimate business reasons and it was not a pretext for discrimination of anysort. I find that the decision to terminate the applicant was, in fact, made in December,2009, a full month or more before the injury that resulted in the disability. I find that therespondent TTC has established that the decision to terminate the applicant’semployment was a business decision in the aftermath of its purchase of Northwestern.This is supported by the totality of the employer’s actions in terms of not hiringreplacement employees, re-assigning responsibilities and/or the general re-structuring