Conclusion that migraines are a disability not unreasonable, says Federal Court of Appeal
A severe migraine is more than just a pain for a worker — it’s a disability that needs to be accommodated. The Supreme Court of Canada rejected an appeal by OC Transpo — Ottawa’s public transit system — leaving in place a ruling by a human rights tribunal that it should have taken steps to accommodate a bus driver.
Francine Desormeaux was hired by OC Transpo as a bus driver in 1989. Her attendance record was less than exemplary. Over a nine-year period she missed 365 full days, and 24 partial days, because of health problems. Of that time about 57 full days, and 11 partial days, were attributable to headaches. Desormeaux was eventually fired on Jan. 30, 1998, for chronic innocent absenteeism.
Migraine headaches a disability, says human rights tribunal
She filed a complaint with the Canadian Human Rights Tribunal. The tribunal concluded that she suffered from migraine headaches which constituted a disability according to the test set out by the Supreme Court of Canada in Quebec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville) since the condition was chronic, significantly incapacitating and it periodically interfered with her ability to do her job. The tribunal said her disability was a factor in the dismissal and therefore the termination was discriminatory.
Federal Court disagrees
OC Transpo appealed that ruling to the Federal Court. It overturned the tribunal’s ruling. The judge said the evidence did not support the finding that Desormeaux suffered from migraine headaches to the extent of constituting a disability.
The court pointed out that the tribunal relied heavily on evidence from Desormeaux’s family doctor and essentially ignored evidence from a neurologist who said she “probably has mixed migraine, tension headaches.”
The neurologist also arranged for additional tests but nothing else was found.
“(Her family doctor) was qualified as an expert in family medicine with the proviso that she is not a neurologist,” and, “it is unreasonable to find that the opinion of (her family doctor) should carry more weight than the opinion of a specialized physician,” the judge said.
Desormeaux appealed that judge’s ruling to the Federal Court of Appeal. It overturned the decision and reverted back to the tribunal’s ruling. The Court of Appeal said the Federal Court should have deferred to the tribunal’s decision because there was nothing unreasonable about it.
“Disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment,” the Court of Appeal said. “In light of this test, there was evidence before the tribunal upon which it could reasonably find that there was a disability because of the headaches, whether they were migraine headaches, migraine/tension headaches or some other type of severe headache condition. The report of (the neurologist) did not really conflict with the evidence of (her family doctor.) It may have been less forceful and more tentative but, in any event, the tribunal was persuaded on all of the evidence that there was a disability on the basis of the headaches. The tribunal’s conclusion was certainly a reasonable one based on all the evidence and should not have been upset on judicial review.”
The Court of Appeal then turned its attention to whether or not OC Transpo’s standard of reasonable and regular attendance was a bona fide occupational requirement (BFOR). The three stage test for a BFOR was set out in Meiorin. To qualify as a BFOR, the employer must show the standard was:
•adopted for a purpose rationally connected to the performance of the job;
•adopted pursuant to an honest and good-faith belief; and
•is reasonably necessary to the accomplishment of the legitimate work-related purpose.
“A standard is considered ‘reasonably necessary’ if the employer can demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the (worker) without imposing undue hardship on the employer,” the Court of Appeal said.
The Federal Court judge did not deal with the BFOR issue because she concluded there was no discrimination. But the tribunal addressed the issue in-depth in its original ruling. While OC Transpo had met the first two prongs of the test (rational connection and good faith) the reasonable necessity of the standard had not been shown, it said.
Undue hardship test failed
The tribunal concluded that OC Transpo had not established that “it would have suffered undue hardship if it had continued to employ (her).” It said there were non-driving jobs available which could reduce her level of absenteeism somewhat or she could have been given another assignment that would lessen the impact of her intermittent absences.
The Court of Appeal said the tribunal’s ruling did not put too high of an onus on employers to accommodate workers.
“There is nothing in the tribunal’s decision to require employers to indefinitely maintain on their workforce employees who are permanently incapable of performing their jobs,” the court said. “Nor are employers required to tolerate excessive absenteeism or substandard performance. On the unusual evidence in this case, the (worker) is fully capable of doing her job when she is not suffering from one of her periodic headaches. Moreover, her future rate of headache-related absenteeism is predicted to be at a level which her employer could easily accommodate without undue hardship. The employer has therefore merely been required to reasonably accommodate her as mandated by the Canadian Human Rights Act and according to the legal test of undue hardship established in Meiorin.”
The tribunal’s order
The Jan. 14, 2003, decision by the tribunal, which the Court of Appeal upheld, stated that Desormeaux was to be reinstated in her position as a bus operator at the first reasonable opportunity.
It also awarded her compensation for lost wages and $4,000 in special compensation.
For more information see:
• Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2005 CarswellNat 3132 (F.C.A.)
• Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 CarswellQue 649 (S.C.C.)
• British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907, 46 C.C.E.L. (2d) 206 (S.C.C.) (also known as the Meiorin decision.)
Francine Desormeaux was hired by OC Transpo as a bus driver in 1989. Her attendance record was less than exemplary. Over a nine-year period she missed 365 full days, and 24 partial days, because of health problems. Of that time about 57 full days, and 11 partial days, were attributable to headaches. Desormeaux was eventually fired on Jan. 30, 1998, for chronic innocent absenteeism.
Migraine headaches a disability, says human rights tribunal
She filed a complaint with the Canadian Human Rights Tribunal. The tribunal concluded that she suffered from migraine headaches which constituted a disability according to the test set out by the Supreme Court of Canada in Quebec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville) since the condition was chronic, significantly incapacitating and it periodically interfered with her ability to do her job. The tribunal said her disability was a factor in the dismissal and therefore the termination was discriminatory.
Federal Court disagrees
OC Transpo appealed that ruling to the Federal Court. It overturned the tribunal’s ruling. The judge said the evidence did not support the finding that Desormeaux suffered from migraine headaches to the extent of constituting a disability.
The court pointed out that the tribunal relied heavily on evidence from Desormeaux’s family doctor and essentially ignored evidence from a neurologist who said she “probably has mixed migraine, tension headaches.”
The neurologist also arranged for additional tests but nothing else was found.
“(Her family doctor) was qualified as an expert in family medicine with the proviso that she is not a neurologist,” and, “it is unreasonable to find that the opinion of (her family doctor) should carry more weight than the opinion of a specialized physician,” the judge said.
Desormeaux appealed that judge’s ruling to the Federal Court of Appeal. It overturned the decision and reverted back to the tribunal’s ruling. The Court of Appeal said the Federal Court should have deferred to the tribunal’s decision because there was nothing unreasonable about it.
“Disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment,” the Court of Appeal said. “In light of this test, there was evidence before the tribunal upon which it could reasonably find that there was a disability because of the headaches, whether they were migraine headaches, migraine/tension headaches or some other type of severe headache condition. The report of (the neurologist) did not really conflict with the evidence of (her family doctor.) It may have been less forceful and more tentative but, in any event, the tribunal was persuaded on all of the evidence that there was a disability on the basis of the headaches. The tribunal’s conclusion was certainly a reasonable one based on all the evidence and should not have been upset on judicial review.”
The Court of Appeal then turned its attention to whether or not OC Transpo’s standard of reasonable and regular attendance was a bona fide occupational requirement (BFOR). The three stage test for a BFOR was set out in Meiorin. To qualify as a BFOR, the employer must show the standard was:
•adopted for a purpose rationally connected to the performance of the job;
•adopted pursuant to an honest and good-faith belief; and
•is reasonably necessary to the accomplishment of the legitimate work-related purpose.
“A standard is considered ‘reasonably necessary’ if the employer can demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the (worker) without imposing undue hardship on the employer,” the Court of Appeal said.
The Federal Court judge did not deal with the BFOR issue because she concluded there was no discrimination. But the tribunal addressed the issue in-depth in its original ruling. While OC Transpo had met the first two prongs of the test (rational connection and good faith) the reasonable necessity of the standard had not been shown, it said.
Undue hardship test failed
The tribunal concluded that OC Transpo had not established that “it would have suffered undue hardship if it had continued to employ (her).” It said there were non-driving jobs available which could reduce her level of absenteeism somewhat or she could have been given another assignment that would lessen the impact of her intermittent absences.
The Court of Appeal said the tribunal’s ruling did not put too high of an onus on employers to accommodate workers.
“There is nothing in the tribunal’s decision to require employers to indefinitely maintain on their workforce employees who are permanently incapable of performing their jobs,” the court said. “Nor are employers required to tolerate excessive absenteeism or substandard performance. On the unusual evidence in this case, the (worker) is fully capable of doing her job when she is not suffering from one of her periodic headaches. Moreover, her future rate of headache-related absenteeism is predicted to be at a level which her employer could easily accommodate without undue hardship. The employer has therefore merely been required to reasonably accommodate her as mandated by the Canadian Human Rights Act and according to the legal test of undue hardship established in Meiorin.”
The tribunal’s order
The Jan. 14, 2003, decision by the tribunal, which the Court of Appeal upheld, stated that Desormeaux was to be reinstated in her position as a bus operator at the first reasonable opportunity.
It also awarded her compensation for lost wages and $4,000 in special compensation.
For more information see:
• Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2005 CarswellNat 3132 (F.C.A.)
• Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 CarswellQue 649 (S.C.C.)
• British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907, 46 C.C.E.L. (2d) 206 (S.C.C.) (also known as the Meiorin decision.)
