Human Rights Office

Human Rights Office
Human Rights Office

Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII) 
Mou v. MHPM Project Leaders, 2017 HRTO 246 (CanLII) 

Summary

In 2016, Wenying (Winnie) Mou alleged discrimination on the grounds of disability when she lost her employment after a series of events that affected her profoundly. In particular, the applicant alleges that in January 2013, she was injured as a result of slipping and falling on ice. The applicant was required to take time off for this injury and although she attempted to return to work a number of times, she was not able to do so until late January 2013. In May 2013, the applicant learned she was pregnant with her first child. In early June 2013, the applicant suffered a miscarriage. Shortly thereafter, the applicant’s mother-in-law passed away; both events triggered a very severe and disabling depression.

As a result of her absences from work, she did not achieve her required 1800-hour target for 2013, and she received her first negative evaluation in terms of performance. The applicant was terminated on February 27, 2014.

The respondent argues that the Application should be dismissed because the applicant has failed to establish a disability. It asserts 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 Court refused the request of dismissal because the applicant had established a disability and she was terminated before recovering from it.

Later, in 2017, the Court held the hearing of the case to determine whether the respondent’s decision of firing the applicant was discriminatory on the grounds of disability.

The Court acknowledges that the respondent was, in fact, worried because of the absenteeism of the applicant, because they had a meeting in December 2013 to discuss it. Later, in February of 2014, the applicant was dismissed alleging shortage of work. Due to the time proximity, the applicant believed that the reason for their dismissal was due to absences related to a disability.

However, the respondent provided a sound explanation as to the reason for dismissal (i.e. a lack of work in Eastern Ontario and not the applicant’s absences). This reasoning was accepted by the Court. Consequently, the application was dismissed because the applicant could not established a prima facie case of discrimination.

 

Questions to be Determined

  1. Did the applicant (Wenying Mou) succeed in establishing a disability that should have been accommodate under the Ontario Human Rights Code?
  1. Was the applicant (Wenying Mou) discriminated against with respect to employment because of her disability?

Findings

  1. Did the applicant (Wenying (Winnie) Mou) succeed in establishing a disability that should have been accommodate under the Ontario Human Rights Code?

YES

  1. Was the applicant (Wenying Mou) discriminated against with respect to employment because of her disability?

NO

Reasoning

In this case the arbitrator denied the solicitude of dismissal because the applicant did establish a disability:

In my view, injuries resulting from a slip and fall that take almost three weeks to heal constitute a disability under the Code. The applicant attempted to return to work on two occasions, but was unable to do so because of the extent of her injuries. The respondent advised the applicant to inquire about short term disability coverage. An injury of this nature is not a common ailment, nor is it transitory. (para. 20)

            Furthermore, the Court found that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability, because it can cause severe emotional scars, like in Mou’s case when she kept experiencing significant emotional distress after the event.

            The Court disagreed with the assertion that in order to constitute a disability, the condition must have an aspect of permanence and persistence. The applicant also complains about the respondent’s treatment of her work-related absences as a performance issue when those absences were connected to her health, therefore, the respondent’s request to dismiss the Application was denied.

            In a second hearing, the Court determined whether the respondent’s decision of dismissing the applicant was discriminatory on the grounds of disability after the numerous absences of the applicant during 2013. As prove, the applicant stated a meeting held in December 2013 when the respondent expressed their concerns about her attendance and offered her help to improve it; the applicant asserted that the absences were isolated incidents and vowed to achieve the minimum hours she was hired for.

It is clear from the email that was prepared on the day of the meeting that the purpose of the meeting was two-fold. It was to notify the applicant that her absences in 2013 were a problem and also to provide the support that she required in order to improve her attendance. There is no question the respondent was concerned about the applicant’s absenteeism in 2013, and that this absenteeism included disability-related absences. (para. 32)

            Later, in February 2014, she was let go. In response, the respondent asserted that the dismissal was due to a shortage of jobs in Eastern Ontario. Due to the proximity between the meeting and the dismissal, the applicant believes that her disability-related absences were a factor in her termination. However, the timing does not constitute discrimination per se. The court believes that the absences were not a factor in the dismissal, because the respondent’s version was more believable:

Ashley testified that there was less work in 2013 and 2014 because of a slow-down in the real estate market. He testified that no intermediate project managers were hired in 2013, and only two were hired in 2014 for a hospital in Nunavut. This evidence is consistent with the decision by Public Works to remove the intermediate and senior project managers on the East Block in December 2013. (para. 45)

There is no question that the respondent was concerned about the applicant’s attendance in 2013. However, that fact alone is not discriminatory. The evidence does not establish that the applicant’s absenteeism played a role in the decision to terminate her employment. It is for this reason that the Application is dismissed. (para. 48)

In consequence, the application was ultimately dismissed.