While another flu season has now passed, an interesting decision from the Ontario Human Rights Tribunal was recently released which considered whether or not the flu is a “disability” within the meaning of the Ontario Human Rights Code. The answer, according to the Tribunal was a resounding no.

In Burgess v. College of Massage Therapists of Ontario, the College is the body which governs the practice of massage therapy in Ontario. As part of this process, it designs and administers examinations for candidates seeking certification in Ontario as Registered Massage Therapists. One of the examinations is a test of practical skills called the Objectively Structured Clinical Evaluation, in which actors present physical problems for the candidate to resolve while being graded by a team of examiners. As a condition of their contract, examiners are required to attend a mandatory two-day training program.

The applicant, Candice Burgess was a Registered Massage Therapist who served as an examiner from 2004 to 2011. In 2012, she was again contracted to be an examiner and was required as part of the contract to attend the mandatory training session on April 16 and 17, 2012.

On April 15, Ms. Burgess contacted the College to inform them that she had been in bed all day with the flu and was unsure that she would be able to take part in the training the next day. Ms. Burgess, in fact, missed the scheduled training on April 16 due to her illness and was contacted by the College later that day and told that her contract was cancelled because she did not attend the mandatory session. Ms. Burgess filed a human rights complaint alleging that this constituted discrimination on the basis of disability.

The Tribunal dismissed Ms. Burgess’ complaint. In doing so, it stated that the flu is not a disability within the meaning of the Code. The Tribunal wrote:

    Although human rights legislation is to be interpreted broadly, the Tribunal has held that not every medical condition constitutes a disability within the meaning of the Code. In Ouimette v. Lily Cups Ltd. (1990) 12 C.H.R.R. D/19 the Board of Inquiry found that the flu is not a disability. The Board found that to consider commonplace, temporary illnesses as disabilities would have the effect of trivializing the Code’s protections. The Board noted that the Code calls for defined groups to be protected and the Board was of the view that it was not the intent of the legislation to include literally everyone suffering from a few days illnesses.

While not a new interpretation of the Code, this decision is an important reminder that, while the Tribunal will attempt to be broad in applying the facts of each case to the definition of disability, it will not be so broad as to render the definition of disability meaningless. Whereas the Code is meant to protect those who suffer discrimination or are terminated from their employment because of their disability, those with common, minor ailments such as the flu, the cold, or strep throat are not protected.
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Norman Grosman tackles your employment law dilemmas regularly on Workopolis. More information about him and his legal services can be found on his website grosman.com