Privateness, rights of staff with disabilities at challenge in business dispute over alleged negligence

Barrie Welding’s position was that the dispute concerned whether the work was not being done properly, not why it was allegedly not being done properly.

When the Ontario Network of Injured Workers’ Groups responded to the appeal, it alleged that while the Master “did not expressly” reflect on the human rights of workers, it made a determination that reflected the Human Rights Code’s requirement that workers should participate Disabilities have a right to full and equal participation in the workplace. Workers with disabilities should not be approached on the basis of their disability. Due to the demand for the submission of his employee file “without evidence of a specific incident”, the employee in question was not treated equally, said ONIWG.

Jessica De Marinis, ARCH Disability Law Center attorney who worked for ONIWG, said the employee was on “disability-related vacation” at the time the work was done. It is “particularly alarming and problematic” that the plaintiff used the existence of the disability to make “general assumptions” that she must have been linked to the alleged defect, she says.

“You base this assessment on stereotypical assumptions made by employees with disabilities,” says De Marinis. “Especially addiction disabilities, which carry such a pervasive stigma. So that perspective was really important for us to move forward on this case.”

Barrie Welding was arguably required by the Ontario Human Rights Code to consider their worker’s disability when granting vacation leave, said Mariam Shanouda, attorney for the ARCH Disability Law Center. The disclosure request implied that the company negligently dealt with the disability, a suggestion that would not create a good right, she says.