Flu Not a Disability
Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19 (Ont. Bd.Inq.)
The Board of Inquiry dismisses the complaint of Darlene Ouimette who alleged that she was discriminated against because of a disability. Ms. Ouimette's employment was terminated because she was absent from work for three days.
Ms. Ouimette was hired on a probationary basis in February 1986 as a Packer for the Plastics Department of Lily Cups Ltd. in Scarborough. If she had successfully completed the 60-day probationary period, Ms. Ouimette would have become a member of the union protected by the current collective agreement. However, Ms. Ouimette was absent for three days during her first 29 working days and she was fired on March 25, 1986. The company's policy was to terminate the employment of any employee who was absent for three days during the probationary period.
Ms. Ouimette testified that on March 2 she was absent because of an asthmatic reaction to aspirin. On March 23 and 24 Ms. Ouimette was absent because she had the flu.
Ms. Ouimette suffers from asthma. She has attacks which can be caused by exposure to substances to which she is allergic. Ms. Ouimette testified that on March 2 she was suffering from pain and took a pain reliever offered to her by a friend. She gave evidence that she is allergic to aspirin which she had not realized was in the pain reliever. It caused an asthmatic attack which made it difficult for her to breathe. She asked a friend to inform her employer that she would be absent.
The Board of Inquiry finds that the Commission has not proved that Ms. Ouimette had an asthma attack on this occasion, since the only evidence is that of Ms. Ouimette herself who says she believed she had taken a pill which had an aspirin component. Further, if Ms. Ouimette did have an asthma attack in reaction to aspirin the Board rules that protections in the Human Rights Code should not be afforded to Ms. Ouimette. She had been warned by her doctor that she could be allergic to aspirin; taking her friend's medicine without inquiry was reckless negligence on Ms. Ouimette's part.
The Board of Inquiry also finds that the flu is not a disability within the meaning of the Ontario Human Rights Code. It is a temporary illness which is experienced from time to time by everyone. To include the flu within the protections afforded by the Code would have the effect of trivializing them.
The Board finds that the Commission did not have the necessary facts to support the allegation of discrimination in employment because of disability. It rules that the complaint was frivolous and orders the Ontario Human Rights Commission to pay the respondents' legal costs on a solicitor-client basis.
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