First Ontario Court Decision Awarding Human Rights Damages

Duty to accommodate – Where do employers draw the line?

‍Employers should do what they can to accommodate their employee’s disability, but there’s a line to be drawn between accommodation and frustration of the employment contract. If the contract is in fact “frustrated”, the employer can end the employment relationship without violating the Human Rights Code (Code). The question is whether the employer suffers undue hardship.

Section 11 of the Code allows the employer to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the employer must show that the needs of the person cannot be accommodated without undue hardship.

The duty to accommodate has both procedural and substantive obligations. The procedural component requires that the employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs.  The employer bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship. The purpose of the duty to accommodate in an employment context is to ensure that an employee with a disability could continue to perform the essential duties of his or her employment if his or her needs can be accommodated without causing undue hardship to the employer.

The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of a disability are such that the proper operation of the business is hampered excessively or if an employee with such a disability remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. The duty to accommodate is compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

In Nason v. Thunder Bay Orthopaedic Inc. the employee was terminated while on unpaid medical leave. The trial judge awarded damages for wrongful dismissal. The Court of Appeal ruled that the employer’s decision to put the employee on an unpaid leave of absence was not an infringement of his rights, at that time, since the employer had already attempted to accommodate the employee. The employee could not fulfill the basic obligations of his position, despite the accommodations he received.  However, the Court rejected the employer’s argument that the employment contract had been frustrated.

The onus to prove that the contract was frustrated was on the employer. The employer believed that the employee’s limitations were permanent. However, the employer did not seek medical information to sufficiently explore and conclude whether there was no reasonable likelihood that the employee could be returned to work with accommodations in the future.

The employer must assure that the tasks required of the employee are actually necessary to meet the employer’s goals. If the employee could continue his/her employment while avoiding such tasks and while still achieving the employer’s requested goal, there is no undue hardship. The test was set out by the Supreme Court of Canada. To establish a bona fide occupational requirement, the employer must prove that the requirement:

1. was adopted for a purpose or goal that is rationally connected to the function being performed (such as a job, being a tenant, or participating in the service);
2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and
3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

What does this mean for Employers?

Employers should err on the side of caution and seek counsel prior to claiming frustration of the employment agreement. If it’s done prematurely, the employer could be subject to a wrongful termination claim, giving rise to common law reasonable notice or a claim for discrimination pursuant to the Code. Employers should also run an individual investigation into the employee’s limitations. It’s one thing to say that the employee cannot meet the demands of the job regardless of available accommodations. The employer must prove it by way of a proper and full investigation into the employee’s limitations. Prior to claiming frustration of the contract, the employer should consider the following:

• whether it investigated alternative approaches that do not have a discriminatory effect;
• reasons why viable alternatives, if any, can’t be put in place;
• whether it can meet the legitimate objectives in a less discriminatory way;
• whether the job requirement is properly designed to make sure the desired qualification is met without placing an undue burden on the people it applies to; and
• whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.

Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453.

Nason v Thunder Bay Orthopaedic Inc, 2015 ONSC 8097, [2015] OJ No 6892.

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Work at my business has slowed down quite a bit this year. I currently have 11 employees but there is not enough work to go around. I should be getting a set of new contracts that will keep everyone busy this spring, but I’d like to make some temporary layoffs in the meantime to avoid having to let anyone go for good. I’ve discussed this with business colleagues who told me that temporary layoffs are not permitted for non-unionized employees. What are my options?‍

The law applicable to temporary layoffs in Ontario can be confusing. The Employment Standards Act does allow temporary layoffs of up to 13 weeks in a 20 week period. In certain seasonal industries, such as construction, temporary layoffs over the winter months are fairly common. However, in other workplaces courts in Ontario have treated temporary layoffs as constructive dismissals and have ordered employers to provide termination and severance pay.

In recent years, some Ontario court decisions have allowed temporary layoffs provided employers comply with both the Employment Standards Act and the terms of the employee’s contract. Depending on the nature of the work, such layoffs may even be permitted when an employee is working with an unwritten contract. A temporary layoff is also more likely to be permitted if an employee remains entitled to benefits and can access Employment Insurance during their time off. During any such layoff it is important to inform the employee that the layoff is temporary and to provide them with a return to work date. Finally, a temporary layoff should not be used as a form of discipline to punish an employee for misconduct – that will most certainly result in a claim for constructive dismissal.

I was injured in a car accident while driving to drop off a package for my employer—I almost never drive as part of my job.  I work in an office as a clerk.  The other driver was charged.  Now I am off work and need physiotherapy.  My doctor says I may have a permanent injury to my back. I have received a Notice from the Workplace Safety Insurance Board (WSIB) requesting that I elect whether or not I want to receive benefits.

‍Can I sue the other driver and receive benefits?

‍No. In Ontario injured workers who receive WSIB benefits forego their right to sue on their own behalf.  You may choose to elect not to receive benefits and preserve your right to sue a third party in some limited circumstances.   In Ontario, employees who are insured under the Workplace Safety Insurance Act scheme are not permitted to sue their own employer for injuries sustained while working.  Depending on the nature of your job, you may not be able to sue another worker or employer either.

However, if you are injured in a vehicle collision and the responsible driver is not a worker as defined in the Act then you may elect whether or not you wish to receive WSIB benefits or pursue the at fault driver. That is a complicated decision.

Generally speaking, the more serious the injuries you have sustained the more likely you will be better off foregoing WSIB benefits and pursuing the at fault driver.  However, if there are questions about liability (if you are wholly or partially at fault), or if there is a question about your ability to successfully recover damages in a tort action the WSIB scheme may be the best option for you.

Deciding whether or not to elect to receive WSIB benefits is complicated, and best made with the assistance of a Lawyer with experience in such matters.  Experienced Lawyers are available to consult with you, often without obligation to you.