The Growing Cost to Employers for Failing to Accommodate Disabled Employees

By Carman J. Overholt, Q.C.

Two recent appellate court decisions from BC and Ontario illustrate the significant increase in the damages being awarded where an employer breaches its duty to accommodate a disabled employee. These decisions confirm the broad remedial powers of human rights tribunals, illustrate the importance of a properly formulated disability management program, and emphasize the employer’s duty to accommodate a disabled employee.

Remedial Powers of Human Rights Tribunals

In addition to an award for the loss of wages incurred as a result of a discriminatory action, a human rights tribunal has jurisdiction to award a complainant compensation for injury to their "dignity, feelings, and self-respect". These awards are not meant to punish the respondent, but are meant to address the effect of the discrimination on the individual complainant.

Prior to 1992, BC human rights legislation limited damages for injury to dignity to $2,000.00. In 1992, this legislation was amended and the limit was removed. Awards for injury to dignity have steadily increased since that time. In 2008, the Tribunal made an award of $35,000.00 for a complainant’s injury to dignity, which remained the highest award until 2013.

In addition to monetary compensation, the Tribunal can make declaratory orders that the respondent engaged in discriminatory conduct, order that the respondent cease and refrain from further discriminatory conduct, and/or make remedial orders, such as ordering that a complainant be reinstated to their position if they were dismissed for discriminatory reasons.

As the cases below illustrate, the financial impact of an employer’s discriminatory action – whether that action was intentional or not – can result in very significant damages.

University of British Columbia v Kelly, 2016 BCCA 271

Last year, the BC Court of Appeal upheld the highest ever award for injury to dignity from the BC Human Rights Tribunal1. The complainant was awarded $75,000.00 to compensate him for injury to dignity following his removal from the University of British Columbia’s Medical Residency Program.

Dr. Kelly was a resident in family medicine through the UBC Program. He suffered from attention deficit hyperactivity disorder ("ADHD") and a non-verbal learning disorder ("NVLD"). He experienced significant difficulty in completing UBC’s Program, despite UBC’s ongoing attempts to modify the program for him. UBC ultimately determined that Dr. Kelly lacked the requisite skills needed to complete the Program, and could not be further accommodated without undue hardship to UBC. This led to Dr. Kelly’s removal from the Program.

Dr. Kelly initiated proceedings against UBC, alleging discrimination in employment in breach of the BC Human Rights Code. The Tribunal found that Dr. Kelly’s disabilities were a factor in the decision to terminate his participation in the Program, and that UBC breached its duty to accommodate those disabilities to the point of undue hardship. UBC argued that it had made sufficient modifications to the Program, and any further modifications would have resulted in a fundamental change to the Program at significant cost to UBC. The Tribunal disagreed. It found that there was sufficient evidence that UBC was able to provide further accommodation, "albeit with some inconvenience", and that they failed to do so. In Providence Health Care v Dunkley, 2016 BCSC 1383, the BC Supreme Court provided a benchmark as to what would be considered "undue hardship" when it confirmed that the cost of providing interpreter services to a deaf medical resident, estimated at upwards of 2.5 million dollars, did not amount to undue hardship for the university or the hospital.

In addition to reinstatement to the program and compensation for loss of wages, the Tribunal awarded Dr. Kelly $75,000.00 for the injury to his "dignity, feelings, and self-respect". The Tribunal concluded that Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, and that as a result of the wrongful termination of his participation in the Program he was unable to complete his training and enter into his chosen profession. These factors led to the Tribunal awarding Dr. Kelly $75,000.00, the highest ever award for injury to dignity in B.C.

UBC applied for judicial review of the Tribunal’s decision to the Supreme Court of British Columbia2. The Court upheld the Tribunal’s decision that UBC had engaged in discrimination, and that Dr. Kelly was entitled to lost wages. However, the Tribunal’s award for injury to dignity was set aside on the basis that the Court found it to be an arbitrary number, not based on principle, and not supported by the evidence that was before the Tribunal. Both UBC and Dr. Kelly appealed the BCSC decision.

The BC Court of Appeal upheld the decisions of the Tribunal and the Supreme Court regarding discrimination and loss of wages. Further, the BC Court of Appeal allowed Dr. Kelly’s appeal and reinstated the Tribunal’s award for injury to dignity in the amount of $75,000.00. The Court held that there was no basis for interfering with the Tribunal’s weighing of Dr. Kelly’s evidence and the award for injury to dignity. The BC Court of Appeal held that just because the prior ceiling of injury to dignity awards had been maintained at $35,000.00 for a number of years, it was not unreasonable for the Tribunal to exceed this amount in this particular case. The BCCA confirmed that past precedent should not be so binding as to prevent the Tribunal from adequately compensating a complainant for his or her injury to dignity3.

Hamilton-Wentworth District School Board v Fair, 2016 ONCA 421

In Ontario, an employee was reinstated after taking a medical leave and compensated for nearly nine years of unpaid wages, which was the time that had lapsed since the time of her dismissal to the time she was reinstated.

Ms. Sharon Fair was an employee of the Hamilton-Wentworth District School Board (the "School Board") where she worked as a Supervisor, Regulated Substances, Asbestos. Ms. Fair took a leave of absence in 2001 to address her generalized anxiety disorder. While on leave, she was also diagnosed with depression and post-traumatic stress disorder (PTSD), and began receiving long term disability benefits. Although she was unable to return to her original position with the School Board due to the demands of the role, her doctors ultimately cleared her to return to work, albeit in an alternative position. However, the School Board argued that they could not place Ms. Fair in an alternative position because of the limitations associated with her disability. Her employment was ultimately terminated in 2004, and she filed a complaint with the Ontario Human Rights Tribunal.

Under the Ontario Human Rights Code, RSO 1990, c H.19, it is within the Tribunal’s jurisdiction to order that an employee be reinstated to their position if they were dismissed from that position due to discrimination. When the Tribunal heard Ms. Fair’s complaint in 2012, they found that not only did the School Board fail to accommodate her disability up to the point of undue hardship, but that the best way to remedy Ms. Fair’s situation would be to reinstate her with full back pay4. As a result, Ms. Fair was awarded loss of wages from June 26, 2003, to the date of the Tribunal’s decision in 2012.

The Tribunal found that the School Board never had a true intention to accommodate Ms. Fair upon her return to work. There was evidence presented during the hearing that the School Board held the position that all jobs with the School Board were demanding, and that there were no other positions that would be less demanding for her should she be able to return to work. As in Boehringer Ingelheim (Canada) Ltd./Ltée. v Kerr5, where the BC Court of Appeal upheld a finding of discrimination when the employer assumed, without seeking clarification or expert opinion, that a disabled employee could not return to work and perform the duties of her position, the Tribunal here found that the School Board failed to inquire with their own experts or with Ms. Fair’s treating psychiatrist as to the kind of employment that Ms. Fair was capable of upon her return to work.

Although the School Board sought judicial review of the Tribunal’s decisions, both the Ontario Superior Court of Justice6 and the Court of Appeal upheld the Tribunal’s decision. In doing so, the Courts emphasized that the determination of remedy falls within the specialized expertise of the Human Rights Tribunal, and should not be interfered with lightly.

In seeking judicial review, the School Board tried to argue that reinstatement was "unreasonable, unprecedented, and disproportionate", particularly given how many years had passed since Ms. Fair has been dismissed. However, the Ontario Court of Appeal ruled that the passage of time is not determinative of whether reinstatement should be ordered. The appropriateness of the remedies that the Tribunal can award is context-dependant. In this situation, the Court found that the Tribunal’s decision to reinstate, though rarely granted, was not unreasonable.

Human Resources Management – Best Practices

The extraordinary remedies awarded in these recent decisions illustrate the significant financial consequences of discrimination in employment. Where an employee can establish a nexus between their protected characteristic and the termination of their employment (or otherwise adverse treatment), there may be the basis for a significant financial award.

Although the duty to accommodate arises regardless of the nature of the employee’s personal and protected characteristic, both the Kelly and Fair decisions involved accommodation of an employee’s disability. For an employer faced with accommodating an employee’s physical or mental disability, these cases emphasize the need for expert advice and a careful approach in exploring options as to how the duty to accommodate can be appropriately satisfied.

It is important for the employer to obtain information about the employee and their disability. Employers have a duty to inquire where they have reason to believe that an employee’s disability or medical condition may be a factor in the employee’s ability to perform the duties of their position. If an employee cannot meet a reasonable workplace standard, it will be necessary to determine whether that standard is a bona fide occupational requirement. If it is not, the employer will need to accommodate the employee to the point of undue hardship.

Ending the employment relationship in circumstances where the employee is disabled raises the real prospect of a contravention of human rights legislation. Obtaining expert medical and vocational opinions and identifying ways in which the employee might be accommodated in the workplace is necessary in order for the employer to satisfy the duty to accommodate. Given the findings of the Courts in the Kelly and Fair decisions, employers may be required to make significant changes in how they operate and undertake considerable expense to satisfy their obligations to accommodate a disabled employee.