( Disponible en anglais seulement )
Author: Erik Marshall
News reports of the scourge of bed bugs infiltrating the City of Toronto abound. Fear mounts as we learn more about how bed bugs are known to “hitch-hike” on peoples’ clothing as they move throughout public spaces, increasing the likelihood of bed bug relocation. Not surprisingly, many of those affected by bed bug infestations have reported feeling stigmatized as a result. The bed bug issue has now been brought before the Human Rights Tribunal of Ontario.
In Craster v. Hearthstone Communities Services Ltd., the Applicant alleged, among other things, that he was discriminated against with respect to housing and contracts on the basis of disability. One of the alleged disabilities related to an infestation of bed bugs in the Applicant’s condominium unit and his allegations that he was treated unfairly as a result of the infestation. The Respondents in the case were the owner of the condominium complex in which the Applicant lived, the property management company providing services for the condominium complex, and the company which owned and managed the club occupying two units in the condominium complex which included facilities such as the dining room, health and wellness centre, library, pool and fitness facility (i.e., common areas) used by residents of the condominium complex.
The Respondents had duct taped the outside of the Applicant’s unit to prevent the spread of infestation, a sign was posted on the Applicant’s door, and he was barred from accessing the common facilities, among other things. There was also an allegation that a representative for the club instructed a nurse visiting the Applicant (for a disability unrelated to the bed bug infestation) not to go into the unit because of the bed bug infestation. A summary hearing was held to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that it would succeed.
With respect to the bed bug allegations, the Tribunal held that:
In my view, the fact that an otherwise healthy person (or, as in the applicant’s case, a person with a disability unrelated to the bed bug infestation) may have the potential to spread a bed bug infestation in her or his home by transporting bed bugs on her or his clothes or possessions to another location is not a basis upon which that person can properly be regarded as having a “disability” within the meaning of the Code. Applying the plain language of the definition of “disability” in s. 10 of the Code, in such circumstances there is no “disability, infirmity, malformation or disfigurement” when such a person is a potential transporter of bed bugs, and the potential for such a person to transport bed bugs is not caused by a “bodily injury, birth defect or illness”. Rather, such a person is merely an unwitting facilitator of the manner in which this particular insect spreads to other locations.
It is important to note that the Tribunal was quick to clarify that its ruling did not relate to a situation where a person experiences adverse treatment because of bites, rashes or bumps caused by bed bugs or whether adverse treatment in such circumstances could be regarded as being because of disability. The Applicant in this case did not allege adverse treatment because he was bitten by bed bugs, but rather because his condominium unit was infested with bed bugs.
In its reasons, the Tribunal noted that the case was similar to an earlier Tribunal decision in C.M. v. York Region District School Board, dealing with a school board policy requiring students with head lice or nits to be sent home from school until the issue was resolved. In that case, the Tribunal found that the presence of head lice was not a disability within the meaning of the Human Rights Code (“Code”), relying on a Supreme Court of Canada case in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), in which it was held that everyday illnesses or normal ailments are not generally considered disabilities under human rights legislation.
Of particular interest is the statement of the Tribunal in C.M., wherein it stated:
. . . lice or nits, like colds, are a normal ailment that does not fall within the ground of disability protected by the Code…Like individuals with cold symptoms, to avoid the risk of spreading to others, individuals with lice may be required not to participate in school or work until the symptoms are treated or have resolved, but that does not mean that the ailment leads to stigma or bias in the sense of Code protected disabilities that are barriers to full participation in society.
So would a workplace rule requiring employees, dealing with bed bug infestations or exhibiting symptoms (i.e., bites, rashes and/or bumps) associated with bed bugs, to stay home constitute a violation of the Code? Such a question has not specifically been addressed by the Tribunal to date, but the Craster decision offers some interesting insights into how the Tribunal might view the issue. If your organization is ever faced with this issue, it will be important to keep in mind that a “disability” under the Code includes “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”. This is because in Decision No. 2253/07, the Workplace Safety and Insurance Appeals Tribunal held that contracting head lice by an educational assistant in a school board was a workplace “accident” within the meaning of the Workplace Safety and Insurance Act, 1997 (“WSIA”). It is conceivable then that contracting bed bugs in the course of employment could constitute a “workplace accident” within the meaning of the WSIA and thus a “disability” under the Code. In this scenario, your organization would have to weigh its duty to accommodate the employee’s disability (up to the point of undue hardship) against its duty to take every precaution reasonable in the circumstances for the protection of its workers.