Human rights tribunal decides miscarriage is a disability in interim ruling

In what may be the first declaration of its kind in Ontario, miscarriage  has been found to be a disability.
In what may be the first declaration of its kind in Ontario, miscarriage has been found to be a disability. Photo: Shutterstock

In what may be the first declaration of its kind in Ontario, miscarriage has been found to be a disability according to an interim decision by the Human Rights Tribunal. The tribunal issued an interim decision before a final decision is made.

In this interim decision, the tribunal had to determine whether a disability was even established.

The woman brought the case against her employer because she claimed that her firing in February of 2014 was linked to a series of events in 2013 that caused her to miss work and which triggered a “severe and debilitating depression.”

In January 2013, she had slipped on ice, fell and suffered injuries that took almost three weeks to heal and as a result she missed a lot of work.

In June 2013, she suffered a miscarriage and took only two days off work but still missed her 1800-hour work target for 2013, and her performance evaluations for 2013 acknowledged that. In February 2014, she was terminated.

Her employer argued that the case should be dismissed because in order for an injury or illness to be a disability, there has to be some kind of permanence to the condition and that the depression was diagnosed after she was terminated.

The tribunal found that disability had been proven and didn’t even rely on the depression alone but found not only that: “injuries resulting from a slip and fall that take almost three weeks to heal constitute a disability under the Code,” but also that “the applicant’s miscarriage is a disability….she continues to experience significant emotional distress from the miscarriage even today.”

In its reasons, the tribunal found that a disability doesn’t have to be permanent and that according to the Ontario Human Rights Code, it’s enough that the person “has or has had a disability or is believed to have or to have had a disability.”

The employer’s request to dismiss the case was denied and the tribunal ordered a case management conference, in which issues that need to be decided before the hearing date are dealt with, to continue the hearing.

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