Meiorin on the Move: Developments in Meeting the Duty to Accommodate. Patricia Janzen and Sandra Guarascio 1 Fasken Martineau DuMoulin LLP

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1 Meiorin on the Move: Developments in Meeting the Duty to Accommodate Patricia Janzen and Sandra Guarascio 1 Fasken Martineau DuMoulin LLP Grievance arbitrators have long been required to interpret and apply human rights principles and other employment-related legislation. In some jurisdictions, the power to do so is expressly set out in labour relations legislation. For the most part, however, arbitrators have applied human rights law within the parameters provided for in the express provisions of collective agreements. The jurisdiction of arbitrators has now been reinforced by the Supreme Court of Canada such that all applicable provisions of human rights, employment standards and other employmentrelated statutes have been expressly incorporated into all collective agreements. 2 In the human rights context, nowhere has the role of arbitrators in developing principles of law been more salient than in addressing the duty to accommodate. This paper will provide an overview of the duty to accommodate and consider some of the difficult challenges arising from its application. In particular, this paper will consider recent developments in human rights law in addressing common workplace dilemmas such as dealing with chronic absenteeism associated with disabilities, assessing the need for accommodation, and weighing competing workplace safety issues. These themes have recently been the focus of much human rights jurisprudence across Canada and it is because of the prevalence of these themes in the recent jurisprudence that it is important for labour law practitioners to consider the practical application of the duty to accommodate in these contexts. Overview of the Duty to Accommodate It is a prima facie breach of the Human Rights Code 3 (the Code ) to discriminate against a person regarding employment or any term or condition of employment on the basis of any of the prohibited grounds set out in the Code. Section 13(4) of the Code provides that this prohibition does not apply with respect to a refusal, limitation, specification or preference that is based on a bona fide occupational requirement ( BFOR ). The decision of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 4 ( Meiorin ) is the leading case for assessing whether, in any given discrimination complaint, a BFOR defence has been made out. In Meiorin, the 1 See also the Human Rights Update for 2002 and 2003 prepared by the Human Rights Practice Group of Fasken Martineau DuMoulin LLP in Annual Review of Law and Practice, The Continuing Legal Education Society of B.C. (Vancouver: 2003, 2004). 2 Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC R.S.B.C. 1996, c (1999) 176 D.L.R. (4 th ) 1 (S.C.C.) [hereinafter Meiorin].

2 - 2 - Court unified earlier approaches which distinguished between direct and adverse effect discriminatory standards. The Court held that an employer could make out a BFOR defence by showing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate workrelated purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. 5 The duty to accommodate only arises once a prima facie case of discrimination has been established. The person alleging discrimination bears the burden of establishing a prima facie case, at which point the burden shifts to the employer to demonstrate that it has met the obligation to accommodate the person up to the point of undue hardship. Once a claimant establishes a prima facie case of discrimination an adjudicator must follow the three part test to determine whether the discriminatory standard is a BFOR. The analysis generally focuses on the third part of the test accommodation to the point of undue hardship. It is significant that the Supreme Court of Canada in Meiorin and in a subsequent decision described the duty to accommodate under the third step in terms of impossibility to accommodate. In B.C. (Superintendent of Motor Vehicles) v. B.C. (Council of Human Rights), 6 ( Grismer ), it was stated at paras. 21 and 32: [I]n order to prove that its standard is reasonably necessary, the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost. While many adjudicators had previously been satisfied that the point of undue hardship was met where the employer had taken all reasonable steps under the circumstances, it is arguable that the test now requires an employer to demonstrate that there is nothing else at all that could have been done short of undue hardship. In reality, many adjudicators had already approached the analysis with a view to the impossibility of further accommodation before the point of undue hardship was reached. The point is that an employer will have to show that it has made every effort available at accommodating an employee which in some cases may include modifying the position, transferring the employee, or rearranging the workplace. 5 Ibid. at para (1999) 36 C.H.H.R. D/129 (S.C.C.) [hereinafter Grismer]

3 - 3 - The Court in Meiorin did make it clear that the non-exhaustive list of criteria for assessing when the point of undue hardship has been reached from one of its prior decisions remains relevant: Central Alberta Dairy Pool v. Alberta (Human Rights Commission). 7 The Court in that case listed the following factors:... financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. 8 The issue of cost was further commented on in Grismer where the Court made it clear that impressionistic concerns respecting high costs would not discharge the duty to accommodate: While in some circumstances, excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. This Court rejected cost-based arguments in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras , a case where the cost of accommodation was shown to be modest. I do not assert that cost is always irrelevant to accommodation, I do assert, however, that impressionistic evidence of increased expense will not generally suffice. Government agencies perform many expensive services for the public that they serve. Moreover, there may be ways to reduce cost The Superintendent s evidence did not establish that the cost of accommodation would be excessive. It did not negate the possibility of cost-reduced alternatives. 9 In terms of assessing the potential impact of accommodative measures on other employees, the Supreme Court of Canada decision in Renaud v. Central Okanagan School District No. 23, 10 remains apposite: The concern for the impact on other employees... is a factor to be considered in determining whether the interference with the operation of the employer's business would be undue. However, more than minor inconvenience must be shown before the complainant's right to accommodation can be defeated. The employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interferences or inconvenience is the price to be paid for religious freedom in a multicultural society. 11 While all of the criteria are important, they are interrelated and other relevant factors will be examined in each case. 7 (1990) 72 D.L.R. (4 th ) 417 (S.C.C.). 8 Ibid. at Grismer, supra note 6 at para (1992) 95 D.L.R. (4 th ) 577 (S.C.C.) [hereinafter Renaud]. 11 Ibid. at 585.

4 - 4 - The Court in Meiorin also provided some of the important questions that an adjudicator may ask in the course of its analysis: (a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? (b) If alternative standards were investigated and found to be capable of fulfilling the employer s purpose, why were they not implemented? (c) Is it necessary to have all employees meet the single standards for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? (d) Is there a way to do the job that is less discriminatory while still accomplishing the employer s legitimate purpose? (e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? (f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp , the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union. 12 Having considered these first principles of accommodation, we turn to consideration of the three areas that are the focus of this paper. Dealing with Innocent Absenteeism Where absenteeism is attributable to a disability or other prohibited ground under the applicable human rights legislation, the duty to accommodate is engaged and employers must be prepared to demonstrate that the employee has been accommodated to the point of undue hardship prior to dismissing the employee. This has not always been the case as the traditional approach of arbitrators to reviewing non-culpable terminations for absenteeism was a two part test under which an employer seeking to justify such a dismissal was required to demonstrate: (1) the employee s past record of absenteeism is undue or excessive; and (2) there is no reasonable prospect for improvement in the foreseeable future. 13 A third prong has now been added to this traditional test such that an employer is now required to consider whether an employee s absenteeism is related to a disability and if so, whether the 12 Meiorin, supra note 4 at para Massey-Ferguson Industries Ltd. and U.A.W., Local 485 (1972), 24 L.A.C. 344 (Shime) as cited in Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Langille Grievance), [2003] O.L.A.A. No. 520 (Q.L.) at para. 18.

5 - 5 - disability can be accommodated short of undue hardship. 14 Where there is no evidence that accommodation of an employee will constitute undue hardship, termination arising from chronic absenteeism will be found to be in breach of human rights legislation. 15 Such principles have also been applied in the wrongful dismissal common law employment context. 16 While arbitrators have the jurisdiction to enforce rights and obligations under human rights legislation, the grievance process in a collective agreement will not necessarily be the end of a dispute where human rights issues are involved. In two recent decisions of the Canadian Human Tribunal involving the same employer, notwithstanding that two previous related grievances had been dismissed, the Tribunal found in favour of the complainants and made substantial damage awards which included back wages. In Desormeaux v. Ottawa-Carlton Regional Transit Commission 17 ( Desormeaux ), the Complainant had driven a bus for her employer for nine years. During that time, she suffered from a variety of health problems that caused her to be absent for 365 full days and 24 part days. Of these absences, 57 full days and 11 part days were attributable to migraine headaches. In addition, there were days in which the Complainant had entered into an arrangement with a co-worker through which the co-worker would cover the Complainant s shifts and the Complainant would pay the co-worker directly out of her own paycheque. This was contrary to the Employer s policies. After numerous warnings, the Employer terminated the Complainant s employment. Because the parties and issues before the Tribunal were held to be different from those before the Arbitrator who had dismissed the Employee s grievance, issue estoppel did not arise and the Tribunal proceeded with the Complaint. The Tribunal accepted that the chronic headache condition that periodically caused the Complainant to become significantly incapacitated and interfered with her ability to do her job constituted a disability within the meaning of the legislation. 18 Finding that a significant portion of the Complainant s absences were headache-related and that the Employer s decision to terminate was predicated on the assessment of the Complainant s future prospects for regular attendance based in part on her past attendance record, the Tribunal held that a prima facie case of discrimination had been established. Under the third part of the Meiorin analysis, the Tribunal considered whether the standard of regular and reliable attendance is reasonably necessary for delivery of timely public transit. 19 It 14 See Parisien infra note 22 and Toronto Transit Commission, supra note 13 at para Toronto Transit Commission, supra note 13 at para See discussion in McAlpine v. Econotech Services Ltd BCCA 111 at paras CHRT Ibid. at para Ibid. at para. 83.

6 - 6 - was accepted that the Complainant had been very unlucky over the years with respect to a number of different, unrelated illnesses and injuries and that the only condition likely to endure was the migraine headaches. The Tribunal considered the Complainant s past absences related to migraines in extrapolating her potential future migraine-related absenteeism and determined that it would be an average of 6.5 full days and 1.25 part days per year without including but recognizing that upward adjustment should also be taken into account. This was found to be well below the absenteeism rate for 25% of bus operators. 20 While recognizing that, [i]ntermittent absenteeism could potentially create an undue hardship for an employer where, for example, a small workplace was involved, and the individual in question provided unique services to her employer 21 in these circumstances, where the Employer employed a large workforce and bus operator duties are largely interchangeable, undue hardship would not result from continued employment of the Complainant. In reaching this conclusion, the Tribunal also noted that the Employer had not explored potential accommodative measures, including modifying the Complainant s duties or assigning the Complainant to work the spare board. In addressing the evidence that was led with respect to the cost of providing sick leave benefits, it was noted that the evidence regarding the financial condition of the Employer was insufficient for a conclusion to be reached that the continued provision of such benefits would constitute undue hardship. In the result, the Complainant was reinstated with back wages for the period between her dismissal to the date of the award less income earned from alternate sources and grossed up as a result of the tax implications of a lump sum payment. This amounted to approximately five years of wages. What is most striking about Desormeaux is that in considering only the disability related absences, the Tribunal completely disregarded the unlucky absences, which resulted in far more absenteeism. This may account for the different result at arbitration. If instead, the Employer had disregarded the disability related absences and made its decision to terminate the Complainant s employment on the basis of the non-disability related absences only, there would not have even been a prima facie case of discrimination since any discrimination would not have been on the basis of a prohibited ground. The decision of the Canadian Human Rights Tribunal in Parisien v. Ottawa-Carlton Regional Transit Commission 22 ( Parisien ) was equally costly for the Employer. A bus driver who had 20 Ibid. at paras. 86 and Ibid. at para CHRT 10 [hereinafter Parisien].

7 - 7 - been employed for eighteen years complained to the Tribunal after his employment was terminated for chronic absenteeism. As in Desormeaux, the complaint was heard notwithstanding the fact that a related grievance had been unsuccessful at arbitration. It was accepted that the Complainant s absences related primarily to post-traumatic stress disorder. In the 18 years and two months of his employment, the Complainant had been absent for 1664 full days and 33 partial days. The Tribunal accepted that a prima facie case of discrimination on the basis of disability had been established. It was held to be discriminatory for the Employer to base its decision to terminate employment on an assumption that he would likely suffer from some sort of reoccurrence of prior illnesses, which would in turn result in additional absences from work. 23 The analysis to be applied in such a case was set out by the Tribunal: [T]here are two issues to be considered in such cases: first, did the employer meet the tests set out in labour relations jurisprudence to establish a case of non-culpable absenteeism, and then, second, whether the employer s conduct contravenes the applicable human rights legislation. This latter issue is resolved by conducting a BFOR analysis. It is this third step of the Meiorin test that maintains an employer s right to dismiss an employee in such cases, provided the employer demonstrates that it cannot accommodate the employee without imposing undue hardship on itself. Where an employer is able to establish these elements, its decision to dismiss an employee due to his or her non-culpable absenteeism will be justified. 24 Although the Employer did have an attendance management program in place and such program was found to satisfy the first two parts of the Meiorin analysis, it did not satisfy the third part. In coming to this conclusion, the Tribunal expressly rejected the Employer s argument that medical evidence had established the Employee was fit to return to work and that as such, there was no disability for the employer to accommodate. The only possible form of accommodation, it was argued, was to tolerate the Complainant s predicted high level of absenteeism. 25 This too was rejected by the Tribunal: I fail to see how tolerating absenteeism cannot constitute an acceptable type of accommodation. Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work, from time to time. The issue to be decided is whether this tolerance of a certain level of absenteeism would impose undue hardship on the employer, taking into consideration the appropriate factors. 26 Again, it was found that the Employer had not exhausted accommodative measures available to it, including consideration of alternative employment. There was a duty to investigate such alternative approaches that would not have a discriminatory effect, particularly as a large 23 Ibid. at para Ibid. at para Ibid. at para Ibid. at para. 66.

8 - 8 - employer. If the only available accommodation is to accommodate absenteeism, then an employer must provide evidence to demonstrate that such accommodation would cause undue hardship. This Employer had a spare board system in place with dedicated drivers to service the board. Where absentees exceeded the number of drivers available on the spare board, other drivers could be paid on an overtime basis. Where such a replacement could not be found, service would be interrupted which could result in complaints. As a result, the Tribunal held that such evidence did not demonstrate that accommodating the possible absenteeism of the Complainant would result in undue hardship. 27 As in Desormeaux, the Complaint was upheld and the Complainant was reinstated with back wages, less alternate income earned in the same period and grossed up for tax purposes. Here, the award of back pay amounted to approximately seven years of lost wages. A number of other recent decisions in the courts, human rights tribunals, and arbitration proceedings further demonstrate the difficulties encountered by employers in addressing chronic absenteeism. Of particular import are recent cases dealing with the mechanistic application of attendance management policies or programs that do not take into account the duty to accommodate: Critch v. Newfoundland and Labrador (Minister of Justice) 28 ( Critch ) and Hamilton (City) v. Canadian Union of Public Employees, Local ( Hamilton City ). In Critch, the Board found that the attendance management program at issue was discriminatory on its face because of the likelihood of discipline faced by employees who used sick leave. The Employee who brought the complaint after her employment was terminated was a 24 year employee. She had used a total of 3,275 sick leave hours which amounted to an average of 136 hours per year over the course of her employment. For the years 1998 and 1999, the number of hours of sick leave used jumped to 340 in each year. This usage placed the Employee in the top 20% of sick leave users and triggered the attendance management program. Under the program, inquiries about the Complainant s health and medical reasons for absences were found to be cursory and mechanical. 30 Individual circumstances were not seriously taken into account in addressing accommodation measures. In this regard the Board stated: [T]hroughout the history of the Respondent s interaction with the Complainant regarding the latter s sick leave use, there was, on the part of the Respondent, merely a monitoring of her absences and the Board finds that no real and substantive inquiry was made by the Respondent as to the underlying reasons for the Complainant s absences or what could be done to assist the Complainant avoid [sic] further absences in the future Ibid. at paras [2003] N.H.R.B.I.D. No. 2 (Q.L.) currently on appeal to the Newfoundland and Labrador Supreme Court on questions of law [hereinafter Critch]. 29 [2002] O.L.A.A. No. 73 (Q.L.) ; upheld [2003] O.J. No. 657 (Q.L.) (Ont. Sup. C.J.) [hereinafter Hamilton City]. 30 Critch, supra note 28 at para Ibid. at para. 250.

9 - 9 - Having found that no accommodation of the Complainant had been attempted, there was no evidence that the Respondent did or would suffer undue hardship in an attempt to accommodate. The Board went on to find that the Respondent s repeated requests for medical information constituted harassment. This was because the timing of the requests, being more than two weeks after a return following illness induced absence, belied and contradicted the Employer s position that the request was made for the purpose of assisting the employee. 32 As such, the underlying tone of the sick leave policy was found to be disciplinary. In the result, the Employer was ordered to suspend the enforcement of the policy and draft a new one. Similarly, in Hamilton City, the Grievor s employment was terminated for innocent absenteeism after he reached the final level in the Employer s attendance management program. The program involved a series of levels and once an employee s absence surpassed the indicated thresholds, different processes would be invoked. At the final level, the employee would meet with the Director of Labour Relations and a decision would be made as to whether the employee was able to meet the necessary standards of attendance. Absences related to a workplace injury suffered by the Grievor had been included in the calculation of the threshold levels under the attendance management program. The Arbitrator held that the inclusion of that period as a proximate cause to justify termination was improper and unwarranted pursuant to human rights legislation. 33 If included, such a period would give rise to a duty to accommodate and in any event, the attendance management rules could not be applied such that a statutorily protected absence would be part of the grounds relied upon for termination. 34 The appeal to the Ontario Superior Court of Justice was dismissed on holding that the Arbitrator did not rule that the City could never take absences due to workplace injuries into account. Instead, it was held that the Arbitrator allowed for such time to be taken into account if it was shown to cause undue hardship to the Employer. Hamilton City seems to muddy the proper analysis. Clearly an employer can consider what the Arbitrator in that case called statutorily protected absences in an employee s attendance record but if such disability related absences are considered, the duty to accommodate is triggered. Rather than taking such absences into consideration only as a measure of whether they cause undue hardship, all accommodative measures, including tolerance of a particular level of absenteeism, must be considered and a decision respecting whether the employer has accommodated an employee to the point of undue hardship must be made. As these cases demonstrate, employers must be cautious in applying attendance management programs in a blanket manner and must avoid the perception of a disciplinary approach to attendance management where the duty to accommodate is engaged. Notwithstanding these decisions and the incorporation of the duty to accommodate in the arbitral context in dealing 32 Ibid. at paras Hamilton City, supra note 29 at para Ibid. at para. 10.

10 with absenteeism, termination of employment for chronic absenteeism will be upheld where the right facts are in evidence. In Canadian Union of Public Employees v. New Brunswick (Board of Management), 35 the termination of employment of a twenty three year clerical employee of a hospital was upheld. The Grievor had suffered stress after discovering that her husband was having an affair with her supervisor. She was unable to work with the supervisor and went on stress leave and obtained psychiatric care. The supervisor went on an extended leave and the Grievor was cleared for return to her job by her psychiatrist but her ability to function was limited and the Grievor was admitted into the psychiatric wing of the hospital where she worked following a serious emotional breakdown. The Grievor remained in the hospital for a significant period of time until her psychiatrist approved a gradual return to work with the only restriction being that the Grievor could not work with her former supervisor who had returned to the workplace. The Grievor was placed in a different facility but had difficulty with the basic clerical work to which she was assigned. The former supervisor left her position and the Grievor returned to her former position. The return to work was fraught with complaints and concerns about the Grievor s performance from others in the hospital. The Employer met with the Grievor to outline the hospital s concerns and to give the Grievor a chance to correct her performance. Approximately a month later, the Grievor was discharged. The Grievor s combined absence from the work-place was approximately 4 years. Shortly after the discharge, the Grievor s application for permanent disability benefits was approved based on medical evidence from her psychiatrist confirming that the Grievor would not likely work again. The Union grieved the termination of the Grievor s employment and argued that the Employer had failed to accommodate the Grievor s mental disability to the point of undue hardship. The Arbitrator dismissed the grievance, finding that the Grievor was unable to fulfill the basic duties of her position and that the duty to accommodate had been discharged. Of significance was the conclusion that there was no reasonable foreseeability at the time of the Grievor s termination that she would be able to return to work. 36 The only work restriction that had been put forward by the Grievor s medical advisor was that the Grievor not work with her previous supervisor. The Employer had made such provision but the return to work was still unsuccessful. Although it was noted that the implications of the medical advisor not identifying any modified duties leads to the conclusion that, unlike an injured shoulder, a mental disability often cannot be accommodated by eliminating particular duties from the position, the elimination of a stressful working environment could in some cases assist in accommodating a 35 [2003] N.B.L.A.A. No. 29 (Q.L.). 36 Ibid. at para. 66.

11 mental illness. 37 housekeeping. The Grievor had rejected attempts to find alternative positions such as The Arbitrator noted that the issue of accommodation had little application in the case because the case really turns on an assessment of the likelihood of the Grievor being able to discharge her duties, even with the assistance of the Employer, at the time of her termination or within a reasonable time thereafter. With no evidence presented that would suggest that there was any reasonable likelihood of this occurring, the grievance was dismissed. 38 A similar result was arrived at in Washington Mills Electro Minerals Corp. and U.S.W.A., Loc (Gill) 39 in which the dismissal of a fourteen year employee was upheld on the basis of evidence of an extensive record of absenteeism and a lack of any evidence that the Grievor could reasonably be expected to improve his medical condition so that he could provide regular attendance in the foreseeable future. 40 Summary of Principles: In order to justify termination for innocent absenteeism, an employer must establish: Undue or excessive absenteeism record; No unreasonable prospect for improvement in the foreseeable future; and, If absenteeism is related to disability, the employee has been accommodated to the point of undue hardship. An employer should consider the proportion of absences related to a disability relative to the attendance standards it is seeking to enforce. In assessing undue hardship in this context, the same considerations will apply including the size of the workforce, interchangeability of the workforce, and modification of duties. An employer should have evidence that the cost of tolerating a particular level of absenteeism would impose undue hardship. Designation as fit for work does not mean there is no disability to accommodate. Accommodation may require tolerance of some level of absenteeism. The practical impact of an absence on the employer will be weighed. An attendance management program should not be applied mechanistically and must be flexible enough to address individual circumstances. An employer must be sensitive to the timing of requests for medical information in order to avoid imposing a process that is perceived to be or is disciplinary. 37 Ibid. at para Ibid. at para (2003), 117 L.A.C. (4 th ) 313 (Brown). 40 See also Shelter Regent Industries infra note 57.

12 Assessing the Need for Accommodation At stated succinctly in one recent human rights tribunal decision, it is clear that [t]he proper course for an employer to follow if there is a concern about an employee s ability to do work assigned because of a suspected medical condition or the medical history of an employee is to seek medical clarification. 41 In some cases, this proper course of action has been referred to as a duty on the employer to conduct an investigation. At the same time, employees have a duty to cooperate with the employer in such a process. 42 With respect to assessing the nature of a medical condition, the degree to which an employer can rely on direct information about the effect of a disability was considered by the British Columbia Court of Appeal in Oak Bay Marina Ltd. v. B.C. Human Rights Commission and Gordy 43 ( Oak Bay Marina ). Mr. Gordy worked as a guide for a fishing lodge. His employment was terminated after he was diagnosed with bipolar disorder and after Mr. Gordy had experienced difficulty at work which was attributed to the disorder. The fishing lodge took the position before the Human Rights Tribunal that it would be undue hardship for it to assume the safety risk of continuing to employ Mr. Gordy. The Tribunal found that the Employer had erred in relying only upon its own experience with Mr. Gordy and in failing to conduct a further investigation as to whether or not Mr. Gordy could safely perform his duties. The Court of Appeal confirmed the finding of the lower Court that the Employer had no obligation to conduct such an investigation where the Employer already had direct information of a problem at the worksite. To suggest that the Employer was required to put its experience of Mr. Gordy s behaviour out of its mind and that the employer had acted only on the basis of stereotyping was held to be simply incorrect. 44 Newbury J.A. commented that the law imposes no process of investigation on an already informed employer. She went on to state: What is possible for one employer e.g., a government with entire departments and volumes of information available to it may not be possible for a private company that has to make a decision amid operational pressures posed by scheduling, customer relations, profitability and legal liability. 45 The Court of Appeal also affirmed the finding of the lower court that the Tribunal had applied too narrow a test in assessing whether or not the fishing lodge had accurate information about bipolar disorder or the likelihood of relapse on which it could have concluded that employing Mr. Gordy constituted undue hardship in the circumstances of the case. 41 Comeau v. Cote 2003 BCHRT 32 [hereinafter Comeau] 42 Parisien, supra note 22 at paras BCCA 495 [hereinafter Oak Bay Marina] 44 Ibid. at para Ibid.at para. 26.

13 While employers can rely to some extent on direct experience with an employee s medical condition, an employer must be careful that the experience is not too impressionistic and that it is in fact direct. In Comeau v. Cote 46 ( Comeau ), the British Columbia Human Rights Tribunal dealt with a Complaint by a 65-year old man who had worked as a labourer for over 50 years. The Complainant was laid off from working on the B.C. Gas Southern Crossing Pipeline Project at the age of 63. He had a history of a heart condition. Unlike Oak Bay Marina, in Comeau it was found that the Employer did not have sufficient objective evidence available to verify what, if any, medical condition the Complainant may or may not have had and what effect, if any, the condition would have on the Complainant s ability to safely do the work required on his crew, modified work, or to the work in an alternate position. The impressionistic observations over a very brief period of time coupled with second-hand knowledge that Mr. Comeau had had some type of heart surgery at some time in the past were not sufficient to warrant the lay-off of the Complainant. 47 The ability to rely on direct experience cuts both ways for employers: an employer cannot be wilfully blind to observations even in the face of contrary medical information. This was addressed in the decision of the British Columbia Human Rights Tribunal in Morris v. British Columbia Railway Co. 48 ( Morris ). The Complainant suffered from depression and alleged that his employment with the Respondent had been terminated on the basis of a mental or physical disability, contrary to s. 13 of the Code. The Respondent denied that the Complainant s depression had played any part in the decision to eliminate his position and that the decision resulted from significant restructuring and downsizing. It was some months after the Complainant s return to work that his employment was terminated. Relying largely on Charter jurisprudence of the Supreme Court of Canada, the B.C. Human Rights Tribunal concluded that there are three aspects to the concept of disability. The first question is whether there is an underlying physical or mental impairment. The second is whether there is any functional limitation imposed by the impairment. In that regard, the Tribunal noted that not all physical or mental impairments will give rise to functional limitations. Finally, the Tribunal will consider the social, legislative or other response to the impairment and/or limitation and will do so in light of the concepts of human dignity, respect and the right to equality. In the Tribunal s view, it is this final aspect of the inquiry which is of most import. The Tribunal stated that, while proof of impairment and/or limitation is relevant, it will not be required in all cases. 49 The Tribunal found that the Respondent perceived the Complainant to be suffering from a disability and based its decision to terminate his employment upon that perception. Evidence 46 Comeau, supra note Ibid. at para BCHRT 14 [hereinafter Morris]. 49 Ibid. at para. 214.

14 relied upon by the Tribunal to arrive at that conclusion included the fact that the decision to terminate the Complainant s employment was made during a time that the Complainant was absent on a leave related to his disability, although not communicated to him until after he was confirmed by his doctor as fit to work. The Tribunal noted that in the recent decision of the British Columbia Court of Appeal in Oak Bay Marina, the Court found that an employer is entitled to rely upon its own observations of an employee s behaviour, together with any relevant medical evidence, when making employment decisions. By the same token, stated the Tribunal, an employer is obliged to consider the concerns of an employee about whether his or her performance is influenced by a disability. The Tribunal stated: Just as an Employer cannot be expected to blind itself to its own observations of an Employee s behaviour, so too it cannot be permitted to engage in wilful blindness of such behaviour so as to permit it to rely upon a medical report. All relevant factors must be considered by an Employer dealing with an Employee with a disability, including medical evidence, its own observations, and the Employee s own comments and concerns. 50 It was held that on the Complainant s return to work, the Employer, knew, or ought to have known, that while Mr. Morris was cleared as fit to return to work, he continued to be affected by his depression. Mr. Morris himself told everyone he could find that he needed to stay in the comfort of the familiar while he continued to recover. Mr. Morris pleas in this regard were entirely disregarded by those with decision-making power. 51 Moreover, it was found that the Employer had viewed the medical clearance provided by Mr. Morris doctor as giving it carte blanche to ignore anything which Mr. Morris might have to say about the effect his depression was having on his performance and not so much as an assessment of whether Mr. Morris was fit to return to work as it was an assessment of whether he was fit to be fired. 52 Instead, upon hearing from the Complainant and on its own initiative based on the observations of supervisors, it was incumbent on the Employer to make further enquiries about whether the Complainant was still fit to work or whether his performance was still affected by his condition. 53 The Employer had failed in this regard. As the Employer only argued that there was no prima facie discrimination and made no submissions on the duty to accommodate, the Complainant was successful. Morris is a sobering case for employers. As result of this decision, employers are left to speculate as to whether a decision to terminate an employee who has been on a disability related leave can ever be justified. Is an employee with a past or present actual or perceived disability protected from downsizing even where the employee may be the poorest performer? Does it 50 Ibid. at para Ibid. at para Ibid. at para Ibid. at para. 236.

15 matter whether the performance is at all related to the disability? If an employer cannot rely on a medical report from an employee s physician of fitness to return to work, when can an employer end the inquiry into an employee s circumstances? How is such an inquiry to be made while continuing to respect the employee s dignity and right to privacy? While an Employer cannot be blind to its own observations and information provided by the employee, there can be no duty to accommodate a disability about which an employer has no knowledge, real or imputed. 54 As set out in Renaud, there is an obligation on complainants to inform their employers of their need for accommodation. 55 In Williams v. Chintz & Co. Decorative Furnishings Inc., an Employee filed a Complaint with the British Columbia Human Rights Tribunal against her former Employer with respect to a number of alleged instances of discrimination. One instance related to the treatment she received after allegedly sustaining a back injury at work. The Tribunal accepted the Employer s evidence that it was never informed of the injury and that while discussions had taken place about difficulties being experienced with work tasks, the Employer had assumed that the difficulties were related to breast reduction surgery that the employee had earlier undergone. The breast reduction surgery and recovery there from was not found to be a disability under the Code. Notwithstanding, the Employer had made provision for lighter duties on the Complainant s return to work following the surgery. Ultimately, the Tribunal held that there was no basis in the evidence to support a finding that the employer knew or ought to have known that the complainant had a disability and that this was not one of the cases in which it could be found that the Employer should have known that an employee was suffering from a disability in the absence of the employer being so informed. 56 Similarly, in Shelter Regent Industries v. Industrial, Wood and Allied Workers of Canada, Local 1-207(Marples Grievance), 57 an Employee who was dismissed for innocent absenteeism grieved the termination and argued at arbitration that his absence was due in part to substance abuse and, as such, the Employer had a duty accommodate that was not met in the circumstances. The Arbitrator noted that an employee has a duty to bring a disability or illness to the attention of the employer in a timely manner unless he or she is prevented from doing so by the circumstances. On the facts, the Grievor had not raised the issue of substance abuse until after the termination of his employment. The Arbitrator rejected the argument that notwithstanding the Grievor s silence, the Employer should be responsible for failing to realize at the time of discharge that the Grievor had a substance abuse problem that could be connected to his absenteeism. This was found as a result of the lack of evidence of the Grievor being drunk or on drugs while at work and the fact that 54 Williams v. Chintz & Co. Decorative Furnishings Inc BCHRT 30 [hereinafter Williams]. 55 Renaud supra note 10 at para. 44 as cited in Williams supra note 54 at para Williams, supra note 54 at paras [2003] A.G.A.A. No. 114 (Q.L.).

16 there was never any nexus established between the Grievor s substance abuse and attendance problems. As concluded by the Arbitrator, this is not a case where management was oblivious or chose to ignore the obvious facts. 58 No duty to accommodate was found to have been triggered since there was no disability that the Employer was aware of at the time of the discharge and the grievance was therefore dismissed. The decision of the British Columbia Human Rights Tribunal in Robb v. St. Margaret s School 59 ( Robb ) also touched on the ability of a party to make an assessment of the needs of another party. The Respondent in this case was a School which was alleged to have discriminated against a Student on the basis of a severe learning disability. Of note in this case was the fact that the School relied on an impression that the student could not meet the academic requirements of the School 60 without any expert opinion in that regard. The Tribunal noted as follows: [T]he Respondent was entitled to make an individual assessment of [the Student s] actual need in assessing whether [the School] was an appropriate placement for her. However, that assessment must be bona fide. An assessment based on assumption or stereotyping would not, in my opinion, constitute a bona fide and reasonable justification. 61 In Robb, in determining that it would be necessary to closely examine the assessment of the Student that was conducted by the School, the Tribunal went on to cite the following passage from Grismer noting that the Court in Grismer observed that the case was about whether the Complainant should be individually assessed and added: It is also about combating false assumptions regarding the effects of disabilities on individual capacities. All too often, persons with disabilities are assumed to be unable to accomplish certain tasks based on the experience of able-bodied individuals. The thrust of human rights legislation is to eliminate such assumptions and break down the barriers that stand in the way of equality for all. 62 Such stereotypical assessments were also frowned upon by the Quebec Court of Appeal in Syndicat des infirmiers due Nord-Est Quebecois (F.I.I.Q.) v. Sylvestre. 63 The Court of Appeal overturned a decision of a Superior Court judgment which upheld an arbitration award dismissing grievances by a registered nurse who applied for a promotion while on sick leave for depression. At arbitration, it was held that the Director of Administrative Services at a Health Clinic could validly refuse to allow the Complainant who was suffering from depression to be interviewed by 58 Ibid. at paras BCHRT 4 [hereinafter Robb]. 60 Ibid. at para Ibid. at para Grismer, supra note 6 at para. 2; cited in Robb, supra note 59 at para [2003] R.J.Q (Que. C.A.).

17 a selection committee set up in relation to a series of job postings. The Clinic successfully argued that the Complainant could be properly excluded given the uncertainty regarding her date of return to work. The Clinic also argued that it was protecting the Complainant because it was reasonable to conclude that she would give a bad impression at the interview because of her condition. On judicial review, the Superior Court held that the Arbitrator acted within his jurisdiction and did not render a patently unreasonable award. The Quebec Court of Appeal found that the Clinic had discriminated against the Nurse on the basis of a handicap. The Court found that the distinction drawn by the Arbitrator between the Complainant s state of health and the uncertainty regarding the date of her return to work was wrong. These two elements could not be disassociated. Furthermore, the Court explained that any issue regarding the Complainant s ability to return to work had to be dealt with within the context of the duty to accommodate. Finally, the Court considered that the argument that the Complainant would not perform well at the interview was based on stereotype thinking and preconceived ideas about persons who suffer from depression. Although the duty to accommodate primarily rests with the employer, unions and employees must act reasonably to facilitate accommodation. As such, where an employee fails to respond to an employer or union request for information and documentation, and fails to consider reasonable offers of accommodation, the employee cannot then claim a failure of the duty to accommodate. 64 In Quackenbush v. Purves Ritchie, 65 the Complainant had a number of health problems, which required him to take time off work. He alleged that, on returning to work, he was placed in positions where he had physical labour requirements that were contrary to the limitations imposed on him by his doctor, and claimed that the Respondent was aware of this but refused to accommodate him by providing him with full-time work at the customer service counter (which would not have physical duties attached to it). The Respondent took the position that it could not provide the Complainant with this type of work all the time, due to the fact that business can be slow. The Tribunal considered the fact that the Complainant had an obligation to work with the Respondent to take reasonable steps to facilitate a compromise. In this situation, the Complainant had refused to attend a walk-through of the duties that the Respondent was suggesting that he perform, in order for the Complainant to identify those duties that he was able to perform, with accommodation. The Respondent had made it clear that the Complainant was to monitor his own activities, and that the Respondent would then make equipment and other employees available if help was needed Bowater Canadian Forest Products Inc. v. Industrial Wood and Allied Workers of Canada, Local 2693 (Giardino Grievance), [2003] O.L.A.A. No. 597 (Q.L.) at paras BCHRT Ibid. at paras