On appeal, a Human Rights complainant failed to establish that an adjudicator under the Human Rights Code, R.S.N. 1990, c.H-14, erred in failing to find discrimination on the basis of disability or that the Trial Division judge erred on appeal. The fact that her employer considered her prior use of sick leave in determining which of two employees should be awarded the position of “lead hand” porter did not amount to discrimination on the basis of physical or mental disability as the complainant’s absences from work did form evidence of a pattern of illness or injury which would indicate that degree of permanence or impairment necessary to prove disability.

Administrative law – Human rights complaints – Discrimination – Disability – Definition – Judicial review – Standard of review – Correctness

Evans v. Health Care Corporation of St. John’s, [2003] N.J. No. 61, Newfoundland and Labrador Supreme Court – Court of Appeal, March 6, 2003, Cameron and Welsh JJ.A. and Russell J. (ex officio)

The complainant hospital employee alleged that her employer, Health Care Corporation of St. John’s, discriminated against her by offering a position of lead hand porter to another employee based on the employer’s view that the employee’s use of the sick leave provisions in the collective agreement was excessive over the course of her work history. In her complaint under the Human Rights Code, R.S.N. 1990, c.H-14, she submitted that as all of her sick leave was “legitimate”, it was discrimination to consider her use of it in determining which candidate should be awarded the position of lead hand porter. The Human Rights Commission referred the matter to a Board of Inquiry adjudicator who found that the employee had not proven she had an infirmity sufficient to be considered a physical disability under the Code, nor did the employer perceive her to have a disability. The complaint was therefore dismissed.

On appeal, the Trial Division judge concluded that in the absence of any evidence of a disability and in light of the fact that the complainant denied she had a disability, the adjudicator could only come to the conclusion that none existed. The Trial Division judge also found no error in the adjudicator’s findings as to perceived disability.

On appeal of the Trial Division judge’s decision, the primary issue was characterized as to whether, in spite of the fact that the employee stated that she did not have a disability and the employer stated that it did not consider her to have a disability, it amounted to discrimination on the basis of physical or mental disability to consider prior use of sick leave in determining which of two employees should be awarded the position of lead hand porter.

In City of Montreal v. Commission des droits, [2000] 1 S.C.R. 665, the Supreme Court of Canada acknowledged that factors external to an individual could define his or her disability. The broad purposive approach required a recognition that discrimination may be based on perception, myths and stereotypes as well as on functional limitations. Accordingly, transient illness which may result in an employee accessing available sick leave will not ordinarily constitute a disability, though it may be possible that use of sick leave demonstrates a frailty of health which may result in a disability.

Normally, disability is proven in one of two ways: (1) by establishing that the employee has some physical or mental impairment or functional limitation, matters which, absent exceptional circumstances, would be known to the employee but may not be known by the employer; or (2) by proving that the employer believes, albeit wrongly, that the employee has a physical or mental impairment and has or will have in the future a functional limitation. This case does not fit into either of these categories, and on the submissions of the Commission, the problem here is not that the employer perceived the employee to have a disability which she does not but that the employer failed to recognize the employee as a person with past disabilities.

While it was true from time to time that the employee was incapable of working because she was recovering from some illness or another, there was not the evidence of a pattern of illness or injury which would indicate that degree of permanence necessary to prove disability. It was not established that the adjudicator erred in failing to find discrimination on the basis of disability or that the Trial Division judge erred on appeal. The appeal was thereby dismissed.

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