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Chronic headaches constitute “disability”
November 18, 2005

The Federal Court of Appeal has upheld a human rights tribunal’s decision that an employer has a duty to accommodate absenteeism due to chronic, debilitating headaches.

The employee filed a complaint with the Canadian Human Rights Tribunal, alleging her employer dismissed her because of her disability. She had suffered from many health problems during her nine years of employment with the Ottawa-Carleton Regional Transport Commission, leading to significant absenteeism. During her employment, she was absent for 57 full days due to headaches and 365 full days in total.

The Transport Commission argued that Ms. Desormeaux’s absences did not result from a “disability”. The tribunal heard evidence from the employee’s general practitioner that she suffered from migraine headaches and from a neurologist that she “probably has mixed migraine, tension headaches”. It concluded that whether the headaches were migraines or some other type of headache, they constituted a “disability”, and the employer had a duty to accommodate that disability to the point of undue hardship.

The employer succeeded on judicial review to the Federal Court, which held that the tribunal’s finding on disability was unreasonable. However, on appeal, the Federal Court of Appeal held that the tribunal’s decision on whether the employee was disabled deserved considerable deference. It concluded the tribunal applied the correct legal test of disability, that is, whether the employee suffered from a physical or mental impairment which caused a functional limitation. The court further found there was evidence before the tribunal that reasonably supported the tribunal’s factual conclusions.

The Court of Appeal also addressed whether the employer accommodated the employee’s disability to the point of undue hardship, as required by the Supreme Court of Canada in Meiorin. There was evidence before the tribunal that the employee’s headaches were improving by the time of the hearing. The tribunal found that because Ms. Desormeaux’s future absenteeism rate was estimated to be well below the absenteeism rate for the 25 percent of employees with the highest absenteeism rate, the employer had not established that it would constitute “undue hardship” to accommodate her.

While the Court of Appeal upheld the tribunal’s decision on accommodation, it noted that employers are not required to indefinitely maintain an employee on their workforce if the employee is permanently incapable of performing his or her job. Nor, said the court, is an employer required to tolerate excessive absenteeism or substandard performance.

Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2005 FCA 311