Duty to Disclose - Re: Diagnosis (LTB)

TST-77293-16 (Re), 2017 CanLII 70398 (ON LTB)

48. In order to trigger the duty to accommodate a disability, it is not necessary to disclose one’s diagnosis. To impose this obligation on a claimant would be too onerous; some diagnoses carry significant social stigma and so in some cases it can be uncomfortable (at best) or traumatic (at worst) to have to disclose them. However, the person who requests an accommodation should make a specific request and link it to a symptom, barrier, or limitation that gives rise to the need for the accommodation.

49. I was unable to find any Board orders relevant to this issue. In the context of employment, several decisions of the Human Rights Tribunal of Ontario (‘HRTO’) have found that an employee in need of an accommodation must act in a reasonable and co-operative manner when seeking accommodation, including providing sufficient information about his or her restrictions to the employer. See, for example: MacDonald v. Cornwall Public Library, 2011 HRTO 1858 (CanLII); Berti v. Complex Services Inc., 2013 HRTO 1304 (CanLII); Wesley v. 2252466 Ontario Inc. o/a The Grounds Guys, 2014 HRTO 1591 (CanLII). The following statement from paragraph 48 of Matthews v. Chrysler Canada, 2011 HRTO 2053 (CanLII) is particularly pertinent:

The duty to accommodate is not triggered simply because the applicant made a demand, and then breached because the respondent failed to accede to the applicant’s demand. The accommodation process is a two-way street. The employee must co-operate in the process and provide as much information as possible to facilitate the search for accommodation.

50. While decisions of the HRTO are not binding on me, they can be persuasive. The above noted decisions provide a persuasive analysis of a claimant’s role in the accommodation process.

51. In this case, the Tenant requested a number of things, some of which were provided, but did not link any of her requests to any particular barrier, symptom or limitation arising from her disability. As far as the Landlord’s staff were aware, the Tenant had some kind of health issue and she was also requesting things like ear protection and notice of when workers would be near her window.