A bus driver from Oakville, Ontario has recently won a workplace discrimination case against the province. Ms. Di Cienzo is a cancer survivor who lost her right eye due to the disease. Ms. Di Cienzo was a bus driver for Oakville transit, and her position required she hold a Class-C driver’s license. A requirement for someone to hold a valid Class-C driver’s license is that the licensee must have vision in both eyes. As a result of this, the province revoked her Class-C driver’s license, and Ms. Di Cienzo subsequently lost her job.
In Di Cienzo v. Attorney General of Ontario, Ontario’s Superior Court held that the provincial vision regulations regarding Class-C drivers licenses were unconstitutional. The court found that the regulations perpetuate a stereotype about the abilities of monocular individuals to safely drive commercial vehicles, including buses. The court further highlighted that the regulations, which were enacted under the auspices of safety, are arbitrary and have no connection to safety.
The province highlighted that the prohibition against commercial bus drivers obtaining a Class-C driver’s license was reasonable due to the safety risks involved. The court reviewed expert evidence from both sides of the argument and ultimately found that “the expert evidence and studies reviewed overall do not support, and in some cases contradict, the supposition that there would be a reasonable level of correspondence with the safe-driving capacities” of monocular individuals.
Many other provinces allow individuals to undergo special assessments to determine their fitness to drive, instead of Ontario’s blanket ban on monocular commercial drivers. The court points out that Ontario is not entitled to be out of step with other provinces “when its divergent choice violates constitutional rights.” The court highlighted that there is no evidence to suggest that the other Canadian provinces do not have high standards of road safety.
Based on their analysis, the court found the regulations regarding class-C drivers licenses were a violation of Ms. Di Cienzo’s charter rights. The court further ruled that the charter infringement was not demonstrably justified. Because of this, the court decided that the regulations were unconstitutional, and gave the province one year to establish new regulations that uphold road safety in the province, while not infringing the charter rights of Ontarians.
This case brings to mind a similar case from 2009 in which Ontario’s Divisional Court dismissed an arbitrator’s decision regarding a paramedic’s vision accommodation. In Corporation of Simcoe County v OPSU Local 911, a paramedic developed vision issues that interfered with the requirement that all paramedics hold a valid class-F driver’s license. In that case, the court ruled that the vision requirement was an essential element of the job and that accommodating this disability could not be done without undue hardship to the employer. As a result of this recent Di Cienzo decision, cases involving vision accommodations in the workplace may soon see differing results. The court has ruled that if the charter rights of an individual are infringed, and that infringement is not justified, the regulation will not stand.
Reference: Di Cienzo v. Attorney General of Ontario, 2020 ONSC 4347 (CanLII), Di Cienzo v. Attorney General of Ontario
Article by Cole Boucher
Image credit: Reflection in the side mirror of bus. Road trip by Marco Verch Professional Photographer and Speaker via Flickr under Creative Commons Licence
Three recent Social Security Tribunal decisions illustrate the significant role union representatives can play to help workers with disabilities access their Canada Pension Plan Disability Benefits.
Jewitt McLuckie & Associates recently received three decisions from the Social Security Tribunal. In each of these matters, we presented evidence from the appellants’ union speaking to the union’s substantial but ultimately unsuccessful attempts to the have the appellant accommodated. In each of the decisions, the Tribunal noted the persuasiveness of the union representative’s evidence.
For example, in K.D. v. Minister of Employment and Social Development, the adjudicator highlighted the importance of the union representative’s evidence as follows:
Her testimony persuaded me that the Claimant could not perform any
substantially gainful work, not merely his usual job…Accordingly, I am
satisfied that Ms. Moore has offered real world evidence that the Claimant
was not able to work in the competitive workforce due to his medical
Indeed, the adjudicator specifically noted that the union representative’s evidence was more compelling than the medical evidence presented by the appellant. This suggests that evidence demonstrating a union’s substantial but ultimately unsuccessful efforts to have a member accommodated in their workplace can be a valuable part of establishing entitlement to the Canada Pension Plan Disability Pension.
Detailed evidence regarding the employer’s and union’s efforts in accommodating or finding alternative work for the Appellants was given substantial weight in all three decisions. In D.M. v. Minister of Employment and Social Development, the adjudicator relied on the union representative’s evidence to conclude that:
…despite the breadth of the employer’s network and their sophisticated
program for assisting disabled employees, it became clear that he was not
an appropriate candidate for accommodation. Given his restrictions and
limitations…I am satisfied that the Claimant does not have the ability to function
in a vocational setting despite his young age.
The third of these decisions, J.M. v. Minister of Employment and Social Development, demonstrates the impact that a union representative’s evidence can have in a particularly complex case. In J.M., the minimum qualifying period had passed in 2011, while the appeal was being heard in 2019. This meant the Appellant had to establish she met the statutory “severe and prolonged” standard of disability as of 2011 and continuously thereafter. The length of time that had elapsed was a substantial challenge in this case. However, the union representative’s thorough evidence about the union’s extensive but ultimately unsuccessful efforts to have the member accommodated played a substantial role in satisfying the Tribunal that the Appellant was entitled to Canada Pension Plan disability benefits. In this regard, the adjudicator explained that this was a case where the subjective evidence was sufficient to overcome the lack of objective medical evidence supporting entitlement. He explained that this was in part due to the union representative’s persuasive evidence speaking to the appellant’s extensive and dedicated efforts to remain at work and ultimate inability to do so due to her medical restrictions and limitations.
These three decisions demonstrate that unions may be well placed to provide valuable evidence re disability benefit entitlement at the Social Security Tribunal. This can be done by live testimony or by affidavit evidence. These cases also suggest that workers appealing the denial of their CPP Disability Pension to the Social Security Tribunal can benefit by presenting evidence of their efforts to return to active employment.
The lawyers at Jewitt McLuckie & Associates have extensive experience helping clients who have been denied the CPP Disability Pension as well as other disability benefits. If you have been denied disability benefits and require assistance with your matter, please contact Jewitt McLuckie & Associates at (613) 594-5100.
The appellants in K.D., D.M., and J.M. were each represented by Randy Slepchik.
Article by Ramona Kapoor, student-at-law.
Image credit: “hand in hand” by Tamaar via Flickr under Creative Commons licence
Randy Slepchik had the chance to speak with CBC Morning Live about the importance of collaboration in the disability accommodation process and how disability accommodation is part of creating a more just society:
Discussion begins around the 2:20 mark: