Trevor R. Thomas
The British Columbia Human Rights Code is provincial legislation that has specific legislative purposes:
a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
c) to prevent discrimination prohibited by the Code;
d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code; and
e) to provide a means of redress for those persons who are discriminated against contrary to the Code.
In essence, the Human Rights Code is intended to protect individuals from discrimination in different aspects of life, including work, in accessing services, and in tenancy.
We often see cases of discrimination in employment. The discrimination is usually based on a physical and/or mental disability. Discrimination in employment based on a physical and/or mental disability is explicitly prohibited by section 13 of the Code:
Discrimination in employment
13(1) A person must not
(a)refuse to employ or refuse to continue to employ a person, or
(b)discriminate against a person regarding employment or any term or condition of employment
because of … physical or mental disability
So, what is a “physical or mental disability”?
The Code does not define what constitutes a physical or mental disability. On one hand, this is beneficial because it does not place limitations on what it means to have a physical or mental disability. On the other hand, this lack of definition creates confusion about whether an individual’s disability is protected by the Code.
When faced with ambiguity in the Code, we refer to prior decisions from the Human Rights Tribunal to gain an understanding of how the Tribunal interprets the law.
In the decision of Stevenson v. Marcon Construction, 2020 BCHRT, 80, the Tribunal provided the following helpful guidance on the meaning of “disability” for the purposes of the Code:
a) To decide whether a condition is a “disability”, the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability.
b) It considers factors like whether the condition entails a certain measure of severity, permanence and persistence.
c) “Disability” does not capture every medical problem. Specifically, it does not include conditions that are temporary and treatable, like a cold or flu, or a broken bone. These types of conditions are excluded because there is not normally a negative bias against these kinds of characteristics or ailments.
The responsibility to prove a disability falls on the employee. Medical evidence is commonly used to prove a disability. However, medical evidence is not the only basis upon which a mental disability can be proven. The Tribunal is entitled to consider the whole of the evidence on the issue, as demonstrated in the following examples:
In Lewis v. Hour of Power Canada and another, 2018 BCHRT 251, the Tribunal found that the evidence as a whole supported the complainant’s argument that she was experiencing a number of impairing symptoms as a result of a brain cyst, including cognitive symptoms, notwithstanding the root cause was as yet undiagnosed.
In Wells v. Langley Senior Resources Society, 2018 BCHRT 59, the complainant, Ms. Wells, gave evidence about the symptoms she experienced immediately before and during her medical leave, together with the lasting impact of her conditions on her. The Tribunal accepted that evidence, including her testimony that on her way to work on the day scheduled for her return, she suffered a panic attack at the thought of what may await her at the workplace.
In Gichuru v. Purewal and another, 2017 BCHRT 19, the Tribunal considered the complainant’s detail of evidence respecting his difficulties with depression, the evidence he provided with respect to his inability to continue in the profession of law when it obviously would have been beneficial to do so, and the lifestyle he had to endure as a result of earning a very limited income since 2010. Based on these considerations, the Tribunal accepted Mr. Gichuru’s evidence of his medical issues and attendant struggles.
Determining the existence of a disability is important to both employees and employers.
If you have questions, please reach out to us!