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It is important to clarify that your employer cannot fire you because of your disability, however, it is possible for your employer to fire you when you are on disability leave as long as the reason for the termination of employment is not related to your disability.

How do I know if I have been fired because of my disability?

If you have been fired by your employer because of your illness or disability, that would likely be contrary to the Ontario Human Rights Code.

The relevant provisions of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, are as follows:

[51]        Sections 5(1) and 9 of the Code state as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

[52]         “Disability” is defined in s. 10(1)(a) of the Code, in part, as follows:

any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…

Federally regulated employees may have different legislation that may be applicable to them, but that offer similar protections.

In Cronier v. Securitas Canada Ltd.,  2015 HRTO 1563 (CanLII), an Application filed under the Human Rights Code, the applicant advised his Supervisor that he needed time off work for surgery. In 2013 the applicant had some absences from work due to pain. After a consultation with a surgeon in early October 2013, the applicant was diagnosed with a medical condition and decided to proceed with surgery. The applicant had some discussions with his employer about sick leave benefits and was provided with information on long-term and short-term disability benefits and the need to obtain a Record of Employment in order to apply for Employment Insurance. The applicant was summoned to a meeting on October 28, 2013. During the meeting, he was advised that his employment was being eliminated due to restructuring and he was provided with a termination letter dated October 24, 2013. The termination occurred less than a week after the applicant told his employer about his need for time off for surgery and his questions about claiming benefits while absent from work.

The Tribunal held that the applicant has the burden of proving that the employer violated his Code rights on a balance of probabilities. In other words, the applicant had to prove that it was more likely than not that his employer terminated his employment because he had a disability. The Tribunal notes that it is well-established in human rights law that the protected ground need only be one factor in the employer’s decision, it does not have to be the sole reason for termination.

The Tribunal determined that even though there were several factors involved in the decision to terminate employment because one of those factors was the applicant’s request for time off for surgery, the Tribunal found that the employer violated the Code when the applicant’s employment was terminated on October 28, 2013.

If you are terminated while on disability if you can establish that one factor in the termination of your employment was your disability, you may be able to allege a violation of the Ontario Human Rights Code.

If the termination of your employment has nothing to do with your disability, there is nothing in law that prevents your employer from terminating your employment even if you are off work on disability leave.

There may be other remedies available to you if you are terminated in those circumstances, depending on the nature of the termination but it is important to note that it is permissible for an employer to terminate you even though you are on disability leave.

Is my employer required to take me back after my disability leave?

Fair v. Hamilton-Wentworth District School Board, 2016 ONCA 421 involved an Application made under the Ontario Human Rights Code. Ms. Fair alleged that she was discriminated against because of disability contrary to the Human Rights Code. Ms. Fair had been employed by the school board from October 24, 1988, to July 8, 2004. In 2001 she developed an anxiety disorder and was off work. She was hospitalized at the end of 2001 and discharged in January 2002. She was also diagnosed with depression and post-traumatic stress disorder. She applied for long term disability benefits through the Ontario Teachers Insurance Plan (“OTIP”) and received benefits for a period of time. Her benefits were terminated at the change of definition on July 8, 2004.

In February 2004, at the request of the School Board, Ms. Fair attended an appointment with a psychiatrist, in order to clarify and identify any restrictions or limitations that Ms. Fair might have and how best to accommodate her. The psychiatrist provided the School Board with his opinion that Ms. Fair would not be able to function in the job she held at the time of her disability but,  apart from that, she was able to perform gainful employment. On July 8, 2004, the School Board terminated Ms. Fair’s employment and offered her a severance package.

The Human Rights Tribunal found that the Board had discriminated against Ms. Fair by failing to accommodate her. The Tribunal found that the Board had neglected to give any consideration to Ms. Fair’s ability to perform in alternate employment opportunities, as was suggested in the expert’s report received by the Board in May 2004, and instead the Board terminated Ms. Fair’s employment.

The School Board applied to the Divisional Court for judicial review. The Divisional Court dismissed the School Board’s application and upheld the Tribunal’s findings that the School Board had failed to accommodate Ms. Fair to the point of undue hardship. The School Board appealed the decision of the Divisional Court to the Court of Appeal which again found that the Board had failed to accommodate.

The Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 SCR 561, described the goals and purposes of accommodation as follows:

“… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship…”

An employer has an obligation to accommodate an employee returning from disability leave. An employer may even be required to canvass alternative work possibilities if employees are unable to perform the duties of their pre-disability employment.

Although the duty to accommodate on the part of an employer is fairly extensive, it is not completely unfettered, and there may be circumstances where the employee cannot be accommodated in any capacity.

What if I am never able to return to work because of my disability?

If you are unable to return to work in any capacity at any point in time, you may find yourself in a situation where there is a “frustration” of the employment contract.

What is “frustration of contract”?

In Peter Kiewit Sons’ Co. v. Eakins Construction Ltd., 1960 CanLII 37 (SCC), [1960] S.C.R. 361, the Supreme Court of Canada states:

Frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.  …

Determining whether a contract of employment has been frustrated is fact-specific. The real challenge lies in determining whether a disability is permanent and whether there is any likelihood of a return to work in some capacity.

Whether or not there is a frustration of your employment contract often depends on whether your illness or incapacity is likely to be of indefinite duration such that you would never be able to perform the duties contemplated by your employment contract or that it would be unreasonable to expect the employer to wait for your recovery.

If it is determined that there has been a “frustration of contract”, the employer’s only obligation may be to pay minimum entitlements under applicable employment standards legislation. Under Regulation 288/01 of the Employment  Standards Act, 2000 (“ESA”) when an employment contract is frustrated due to illness, the employer is obligated to pay the minimum termination pay and severance as of the date of frustration. It is important to note that every case is different and just because an employer alleges that there has been “frustration of contract” does not mean that is indeed the case.

In Hoekstra v Rehability Occupational Therapy  Inc., 2019 ONSC 562 (CanLII) the Plaintiff went off work originally intending to return in a couple of months however, he was not able to return to work for several years. His treatment provider advised his employer that he had not shown improvement and would not return to work.  When his employer changed benefit providers, the Plaintiff became disentitled to benefits with his employer taking the position that his employment contract had been terminated.

The court held that:

Frustration of contract occurs as a matter of law.  Once circumstances exist that have the effect of frustrating the terms of a contract, the contract is deemed terminated.  In my view, neither party to the contract must take any steps to effect that result.  This is particularly so in the case of frustration due to illness or injury which is presumptively beyond the control of both the employee and the employer.

A contract of employment is frustrated when “there is no reasonable likelihood of the employee being able to return to work within a reasonable time.”  The fact that a party to the employment contract takes the position that the contract has been frustrated, whether in support or defence of a claim, does not have the effect of deeming a contract frustrated.

The court confirmed that frustration of contract is not simply due to the number of years an individual has been off work but whether the disability has become permanent eliminating the possibility of a return to work within a reasonable period of time.

In Summary

Can My Employer fire me if I am on disability?

My employer cannot fire me because of my disability but my employer can fire me even if I am on disability, as long as it is not because of my disability.

How do I know if I have been fired because of my disability?

If one of the factors in the termination of my employment was related to my disability.

Is my employer required to take me back after my disability leave?

My employer has a duty to accommodate me to the point of undue hardship. This may even include exploring other opportunities that are different from my original position where appropriate.

What if I am never able to return to work because of my disability?

If I am never able to return to work, my contract of employment may not be able to be fulfilled and it may have become “frustrated”.

What is “frustration of contract”?

When my disability is permanent and “there is no reasonable likelihood of the employee being able to return to work within a reasonable time.

If you are on disability and your employment has been terminated, you should discuss your issues with an experienced lawyer. MK Disability Lawyers LLP are experienced lawyers dedicated exclusively to the practice of and related employment issues. One of our Partners, Leanne Goldstein, has handled numerous matters where disability and employment intersect in relation to many different employment sectors. We would be happy to provide you with a free consultation.  Please contact us by calling 844-697-4600. If you have specific questions about LTD claims or employment issues related to your disability, please also contact us to schedule a free individual consultation.  We also invite you to visit our website www.mkdisabilitylawyers.com.

The preceding is not intended to be legal advice.  This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice.  By using this blog, you understand that there is no solicitor-client relationship between you and the blog publisher.  The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.  If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.