The Ontario Superior Court of Justice has dismissed a constructive dismissal lawsuit brought by a longtime Toronto Transit Commission employee who stopped attending work after the TTC denied his request for an exemption from its mandatory COVID-19 masking policy1.
Justice Mathen found that Davian Scuric had not established that his diagnosed migraine disorder affected his ability to wear a mask. Because the medical evidence did not connect his disability to the symptoms he said he experienced while masked, the court concluded that the TTC did not have a duty under the Ontario Human Rights Code to accommodate him by exempting him from the masking requirement.
Scuric had worked for the TTC for approximately 17 years. He began his employment in December 2004 and eventually became a Foreperson, Overhead, in the TTC’s Streetcar Infrastructure Department. His responsibilities included supervising approximately 10 to 12 unionized electrical workers and linepersons, attending job sites and TTC facilities, and performing administrative work.
At the time of the dispute, Scuric earned a base salary of $118,934.40 and participated in the TTC’s health, dental and pension plans. His total reported income had been $131,573 in 2020, $125,349 in 2019 and $119,393 in 2018. During the COVID-19 pandemic, his position was designated essential, and he typically worked four 10-hour daytime shifts each week.
The TTC, which employed approximately 16,000 people at the relevant time, introduced a series of safety measures as the pandemic developed. Those measures included employee screening, physical distancing, self-isolation requirements in certain circumstances, hand-washing facilities, medical-grade masks and, eventually, a vaccination policy.
Beginning in July 2020, the TTC also implemented mandatory masking requirements for employees. The requirements evolved over time, but between September 2020 and November 2021 employees were generally required to wear masks or face coverings in shared TTC spaces, both indoors and outdoors. In November 2021, the TTC relaxed the outdoor requirement where physical distancing could always be maintained.
The masks at issue in Scuric’s case were disposable surgical or medical masks. Employees were not required to wear N95 respirators, and the TTC was open to employees using different types of masks provided they were approved by its Corporate Safety department.
Scuric accepted at trial that the TTC’s masking policy was reasonable and lawful. He also accepted that implementing the policy during the pandemic did not itself amount to a substantial change to his employment contract. The dispute instead centred on whether his medical circumstances entitled him to an exemption from the policy.
Before the masking dispute arose, the TTC had already accommodated Scuric for his migraine disorder in another respect. In February 2021, Scuric submitted medical information seeking relief from night shifts. The TTC’s occupational health department reviewed a neurologist’s report, and in May 2021 the TTC granted him a permanent medical restriction providing that he would not be required to work nights.
Scuric had also expressed broader concerns about masks. In May 2021, he emailed the TTC raising concerns that prolonged mask use could result in bacterial buildup and potentially expose workers to health risks. The court later found that Scuric was skeptical about aspects of the COVID-19 safety measures in place at the time, although Justice Mathen accepted that Scuric strongly disliked wearing masks.
The specific accommodation dispute began later that summer. On August 19, 2021, Scuric’s family doctor, Dr. Fady Akladios, wrote a note stating that Scuric was unable to tolerate a face mask and needed his duties changed so he could work from home.
On September 13, Scuric advised the TTC that he could not tolerate prolonged mask use because of a medical condition and required an accommodation. He did not return to the workplace after that date.
The TTC’s Occupational Health and Employee Wellbeing section sent Scuric a medical questionnaire for his health-care provider to complete. Dr. Akladios responded later that month. In the form, the doctor wrote that Scuric was intolerant of masks and experienced shortness of breath, headaches and palpitations with prolonged use. He described the symptoms as severe and stated that Scuric could not tolerate a mask for longer than 10 to 20 minutes at a time.
Dr. Akladios also identified Scuric’s history of migraine disorder when asked about relevant pre-existing medical conditions.
The TTC’s in-house occupational health consultant, Dr. Alain Sotto, reviewed the information. Dr. Sotto concluded that the reported experiences were symptoms rather than an identified medical condition preventing mask use. The questionnaire identified migraine disorder as Scuric’s underlying condition, but according to Dr. Sotto, it did not provide sufficient medical information establishing that the migraines caused Scuric to be unable to wear a mask.
Dr. Sotto advised the TTC that there were no known mask exemptions for the medical circumstances described and suggested that Scuric consult the TTC’s safety department about finding the most comfortable available mask.
On October 5, 2021, the TTC advised Scuric that his accommodation request had been denied.
The dispute did not end there. Scuric’s manager, Peter Girimonte, continued communicating with him during September, October and November about both the accommodation request and his continuing absence. The TTC considered his absence unsupported and unauthorized after the initial period.
On November 15, Girimonte delivered a letter directing Scuric to attend a meeting concerning what the TTC described as his unsupported and unapproved absence from work. Three days later, Scuric participated in a conference call with Girimonte and a TTC employee relations consultant concerning his continued absence.
The TTC’s accommodation process also continued internally. In late November and early December, its occupational health staff discussed Scuric’s request further. On December 10, the TTC contacted him again and asked for more extensive medical documentation, including specialist reports, consultation records, clinical test results, progress reports and treatment plans. The TTC gave him until December 24 to provide the material.
Before that deadline arrived, Scuric commenced litigation.
On December 16, 2021, he served the TTC with a statement of claim alleging constructive dismissal. He sought damages and back pay, including compensation for the period during which he had been placed on unpaid leave. He later argued that he should receive reasonable notice covering approximately 14 months and three weeks, ending when he obtained new employment in February 2023.
At trial, Scuric maintained that he did not object to masks in principle. His position was that his migraine disorder resulted in an inability to tolerate prolonged mask use and that the TTC failed to accommodate that disability. He argued that the TTC could not demonstrate that granting an accommodation would have caused undue hardship.
The TTC disputed the connection between his migraine disorder and his alleged mask intolerance. It argued that Scuric had never provided adequate medical evidence showing that his migraines caused the breathing difficulties, headaches or other symptoms he claimed to experience while wearing a mask.
The evidence given by Scuric’s own family doctor became an important part of the case.
Dr. Akladios testified that he believed Scuric suffered from what he described as “face mask intolerance,” although he acknowledged that this was not a recognized medical diagnosis. His opinion was largely based on what Scuric had reported to him. Due to pandemic restrictions, their consultations during the relevant period had occurred by telephone, and the doctor had not personally observed Scuric wearing a mask for an extended period.
More significantly, Dr. Akladios withdrew or corrected parts of the medical information he had previously provided to the TTC.
The September 2021 questionnaire had stated that Scuric experienced shortness of breath, headaches and palpitations as a result of prolonged mask use. At trial, Dr. Akladios acknowledged that Scuric had never told him that wearing a mask caused his headaches or palpitations.
The doctor also explained that when he wrote “palpitations,” he had actually been referring to Scuric’s report of hyperventilating rather than sensations involving the heart. He accepted that another medical practitioner reviewing the form would not have understood the term that way.
Dr. Akladios also testified that when he listed migraine disorder as a relevant pre-existing condition on the TTC form, he had likely misunderstood the question as asking generally about Scuric’s medical history. He told the court that Scuric’s migraine disorder was not related to the mask restriction he had recommended.
Justice Mathen found Dr. Akladios credible and accepted that the doctor had become mixed up while completing the form amid the pressures of the pandemic and simultaneous discussions concerning masking and vaccination. However, the judge found the doctor’s opinion that Scuric suffered from face mask intolerance was not reliable because it was based only on Scuric’s subjective reports.
The TTC’s medical evidence pointed in the opposite direction.
Dr. Sotto testified that Scuric’s documentation did not substantiate a medical inability to wear a mask. The court accepted his evidence and found him credible and reliable.
The TTC also called neurologist Dr. Marek Gawel, a headache and migraine specialist with more than 50 years of experience. He reviewed Scuric’s medical records, reports from several doctors, TTC accommodation records, respirator assessments and relevant medical literature.
Dr. Gawel testified that there was no medical evidence that disposable surgical masks worsen migraine disorders and that Scuric’s reported symptoms were not typical migraine symptoms. Justice Mathen accepted his evidence.
The court also considered reports from two neurologists whom Scuric had consulted in 2021.
One neurologist, Dr. Brian Temple, had prepared a report supporting Scuric’s request to avoid night shifts but did not provide support for a mask exemption. Another neurologist, Dr. Ginette Moore, examined Scuric in October 2021. Her report noted that the physical examination had been challenging because Scuric kept removing his mask. Dr. Moore nevertheless stated that, from a neurological perspective, there was no contraindication to wearing a mask.
Under Ontario human rights law, an employee claiming disability discrimination must first establish what is known as prima facie discrimination. That requires proof that the employee has a disability protected by the Human Rights Code, that the employee experienced adverse treatment, and that the disability was a factor in that adverse treatment.
There was no dispute that Scuric’s migraine disorder amounted to a disability. The TTC had already recognized and accommodated it by permanently removing night shifts from his schedule.
The court also accepted that Scuric had experienced adverse treatment when he was placed on unpaid leave.
The problem with his case was the third requirement. Justice Mathen was not persuaded that the migraine disorder played any role in Scuric’s inability or refusal to comply with the mask requirement.
The court rejected the argument that a person’s subjective belief that they have a functional limitation is enough, by itself, to establish a disability requiring accommodation. The judge also found that a reported breathing problem, without evidence of an underlying condition explaining it, was not sufficient in the circumstances of this case.
Justice Mathen concluded that the medical evidence did not establish the necessary link between Scuric’s recognized disability and his claimed inability to wear a mask. His own family doctor ultimately testified that the migraines were unrelated to the mask restriction he had recommended, the other neurologists did not support a medical prohibition against masks, and the TTC’s expert found no medical basis for concluding that the required surgical masks aggravated Scuric’s migraine disorder.
As a result, the court found that Scuric had not established prima facie discrimination. Since the threshold discrimination case had not been established, the TTC was not required to prove that it had accommodated Scuric to the point of undue hardship.
That conclusion also determined much of the constructive dismissal claim.
Constructive dismissal can occur when an employer makes a substantial unilateral change to an essential term of an employee’s contract and a reasonable employee would regard the change as fundamentally altering the employment relationship.
Scuric argued that placing him on unpaid leave amounted to such a change.
Justice Mathen found that it did not in these circumstances. Scuric had conceded that the mask policy itself was a valid condition of employment. Because the court found that the TTC had no human rights obligation to exempt him from that policy, his inability or refusal to comply meant that he could not perform the essential requirements of his position.
As a foreperson, Scuric was required to attend TTC job sites, supervise employees and perform duties at TTC facilities. His work predictably placed him near other employees. The court found that he therefore needed to comply with the masking requirement and could not simply remove his mask every 10 to 20 minutes.
Justice Mathen concluded that the TTC did not unilaterally alter Scuric’s employment agreement by placing him on unpaid leave. Rather, the judge found that Scuric’s refusal to comply with the mask policy was comparable to repudiating an essential condition of his employment contract.
The constructive dismissal claim was therefore dismissed.
Scuric was not awarded the back pay or approximately 14 months of notice damages he had sought. The court did, however, find that the TTC owed him compensation for one week in September 2021.
Girimonte had told Scuric that the first week after he requested the mask exemption would be coded as sick leave while the accommodation issue was being addressed. The TTC never paid that amount, and its evidence did not dispute Scuric’s claim that it remained outstanding.
The court accepted Scuric’s calculation that he was entitled to $2,550 in salary and $242 in pension contributions for that week, for a total award of $2,792.
In its July 29, 2026 judgment, the Superior Court formally dismissed Scuric’s constructive dismissal claim and ordered the TTC to pay him $2,792, together with applicable pre-judgment and post-judgment interest. The parties were given 45 days to make written submissions on costs if they could not reach an agreement themselves.
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