Is a woman's miscarriage a “disability” under Ontario’s Human Rights Code? Based on the media headlines following a decision by the Human Rights Tribunal of Ontario, Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII), most people would now likely answer “yes.” But did the Human Rights Tribunal really just say that suffering a miscarriage can qualify as a “disability” under the Code?
As a starting point, it is important to note that the Tribunal’s decision was an interim decision, meaning that it is not the final decision in the case.
The matter that gave rise to the interim decision was a request by the respondent employer to have the case summarily dismissed for failing to disclose a reasonable prospect of success.
In her application to the Tribunal, the applicant alleges that she experienced a series of events in 2013 that profoundly affected her health and well-being. 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. The applicant alleges that both of these incidents combined to trigger a severe and disabling depression.
The applicant alleges further that as a result of her absences from work, she did not achieve her required 1800-hour target for 2013. She states that in her interim and annual performance evaluations for 2013, her supervisor specifically identified a need for the applicant to improve on her ability to meet scheduled delivery objectives. The applicant states she received her first “I - Improvement and/or further development is required to consistently meet job expectations” grade.
The applicant’s employment was terminated on February 27, 2014. When the applicant requested a reason for her termination, she was told “draw your own conclusions”. The applicant alleges that given the timing and circumstances of her termination, the respondent’s reliance on performance concerns directly linked to the applicant’s disability, and its failure to accommodate the applicant’s health concerns throughout 2013 and 2014, her termination was linked in whole or in part to her disability.
In its request to dismiss the application the employer argued the application should have been dismissed because the applicant failed to establish a “disability.” It asserted that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition. [On this point see my earlier post The Flu is Not a Disability: HRTO.] The employer argued that the health issues experienced by the applicant in 2013 were temporary in nature and the applicant fully recovered from them. As such, they did not affect the applicant’s participation in the workplace or in society. The respondent acknowledged the applicant had a “bad year” in 2013, but argues a “bad year” does not constitute a disability.
In response to the dismissal request, the applicant argued that her disabilities were the slip and fall and the miscarriage. The applicant alleges that she was discriminated against when the respondent relied upon her absences from work because of these disabilities when it decided to terminate her employment. In the alternative, the applicant argued the respondent perceived her as a person with a disability in that she was seen as someone who gets sick often and would continue to need time off as a result.
In refusing to dismiss the application on the preliminary motion, Vice-Chair Jennifer Scott reviewed the legal definition of “disability” contained within the Human Rights Code and then wrote the following:
 The applicant has established 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. It is different from the flu and the common cold, which take a few days to get over and affect many people. The injuries experienced by the applicant impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time.
 I also find the applicant’s miscarriage is a disability. I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.
 It does not appear to be in dispute between the parties that the applicant had recovered from her slip and fall injury and from her miscarriage at the time of termination in February 2014. However, the Code does not require a disability to be present at the time of adverse treatment. The protections under the Code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination. In many cases, an applicant’s disability is present at the time of the adverse treatment. That does not mean, however, that there is no protection under the Code if the disabling condition has been successfully treated at the time of the adverse treatment. The question is simply whether the disability, regardless of when it occurred, was a factor in the adverse treatment.
 I therefore disagree with the assertion that in order to constitute a disability, the condition must have an aspect of permanence and persistence. It is clear that a disability may be temporary pursuant to the wording of section 10(3) of the Code. For this reason, I decline to follow the Tribunal’s decision in Davidson v. Brampton (City), 2014 HRTO 689 on this point.
 The respondent argues the applicant asserted a new disability in response to the motion to dismiss. I agree that in the Application, the applicant alleges her disability was depression resulting from her health concerns in 2013. That said, 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. The applicant relies on the slip and fall and the miscarriage, and the absences from work that resulted from each. Thus, the respondent had notice that the applicant’s complaint of discrimination related to the respondent’s treatment of her absences from work as a performance issue.
 For these reasons, I find the applicant has established a disability under the Code and the respondent’s motion to dismiss the Application is denied. In light of this finding, it is not necessary for me to determine whether the respondent perceived the applicant to be disabled. No finding has been made as to whether the applicant’s disability was a factor in the respondent’s decision to terminate the applicant’s employment.
As a result the case was allowed to continue. What will happen to the case is up to the parties.
The question asked at the start of this post was whether the Human Rights Tribunal of Ontario actually proclaimed a miscarriage to be a “disability” for the purposes of the Ontario Human Rights Code. The answer is that it clearly did. However, a review of the decision leads me to believe that what the Tribunal intended to say was not that a miscarriage in and of itself is a “disability”, but rather that a miscarriage can bring about a disability, namely depression or mental suffering.
The decision walks the line on the issue of depression and mental suffering and I am not wholly sure what was actually argued. All the same, the issue of the applicant’s continued depression appears to be front and centre in the Tribunal’s reasons. In that respect the Tribunal appears to approach the subject of a miscarriage in the same way as it does other medical issues: “it is not a common ailment, and it is certainly not transitory.” (Para. 21) Inherent also in the Tribunal’s decision is that the effects of a miscarriage are also not transitory. The vast majority of people recover from the common cold or the flu without further complication or giving it much thought; the same is typically not true about miscarriages. Although the Vice-Chair was clear when she wrote “I also find the applicant’s miscarriage is a disability”, it is my belief that what she meant is that ‘suffering from the effects of a miscarriage can be a disability.’ Then again, perhaps I am simply wrong.
Takeaways for Employees with Labour Pains
In any event, what the case currently stands for is the proposition that if a woman suffers a miscarriage and consequently suffers an inability or reduction in ability to perform in employment, the same cannot be used as a factor in any discipline or termination, unless the employer can show that to accommodate such inability or reduction in ability would cause the employer “undue hardship.”
Takeaways for Employers with Labour Pains
The takeaway for employers is that the boundaries of human rights law and its intersection with employment law are ever expanding. Employers must be mindful of why some employees may be falling below blanket performance targets. If an employer knows or ought to know that an employee has recently suffered a medical emergency, then that employer must turn its mind to the ways by which it can accommodate its employee.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.