Nov 28

Termination Based On Disability

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Suffering from a disability is painful enough. But what happens when you lose your job because of that disability and its effects?

It’s best to consult a lawyer. Certain factors must be analyzed before it can be established that you have a claim.

What counts as a disability?
The Human Rights Code recognizes disability as a protected ground. Section 10 (1) of the Code defines “disability” as follows:
1) 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 co-ordination, 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,
2) a condition of mental impairment or a developmental disability,
3) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
4) a mental disorder, or
5) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997

The Law
The Courts have recognized that employees who are terminated based on a disability are deserving of damages based on Human Rights violations. A recent breakthrough in this area was in the case of Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII), wherein the Superior Court of Justice awarded Patricia Wilson, a certified general accountant who worked for a Mexican foods store $20,000 in general damages on the grounds that her employer, Solis Mexican Foods Inc. had terminated her without cause and the fact that she had suffered from an ongoing back ailment was a significant factor in their decision to terminate her.

Your disability does not have to be the only reason or the primary reason why you were terminated. The law recognizes that disability should not play any part in a decision to terminate an employee. However, in order to have a strong claim for termination based on disability, you must be able to establish that your disability was a significant factor in the decision to terminate.

In Wilson, the Defendant’s obvious disregard of Wilson’s condition, failure to accommodate that condition and obvious annoyance with the fact that she could not perform as though she did not have a condition made it clear to the judge that her disability was a significant factor in the Defendant’s decision to terminate Wilson.

Ongoing Advice
If you believe you have been wrongfully terminated because of your disability, a lawyer may be able to assist you in:
-renegotiating your severance package;
-increasing your notice period;
-starting a Human Rights claim with a tribunal;
-claiming damages for Human Rights violations; or
-reinstatement.

Contact Andrew Monkhouse today for a consultation.