What is the test for determining whether an employee has a disability?

Ontario, Canada


The following excerpt is from Bernhardt v. Nestle Purina Pet Care, 2013 HRTO 1743 (CanLII):

The material before me indicates that one of the issues the respondent had with the applicant’s performance was that he consistently failed to swipe pallets of product and to swipe his time card for which he was disciplined on several occasions. The applicant submitted that the respondent believed he was becoming forgetful, which was demonstrated by its inquiry to his wife, and perceived him to be disabled. The applicant submitted that the respondent should have accommodated the applicant by transferring him to another position and by sending him to a doctor to determine if a medical issue contributed to his performance issues. The jurisprudence indicates that the duty to accommodate imposes duties on each of the parties involved. See: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. The applicant’s primary duty is to identify the need for accommodation and cooperate in the accommodation process. In this case, the applicant neither pointed to any evidence of a disability that interfered with his work performance nor evidence that he requested any sort of accommodation related to a disability. Specifically, the applicant pointed to no evidence that he advised the respondent that his issues with swiping pallets and time cards may have been related to a disability when he received discipline for these issues. There is no dispute that the respondent inquired about the applicant’s memory, but the applicant pointed to no evidence that he or his wife responded to the effect that the applicant may be suffering from a disability affecting his memory. In these circumstances, there is no basis on which to conclude that the applicant’s performance difficulties were related to a disability or that the respondent perceived them to be. Consequently, the respondent was under no obligation to transfer the applicant or to have him examined by a doctor. In my view, the applicant’s allegations relating to disability have no reasonable prospect of success.

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