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[Common Law: Frustration: Medical Issues: Duty to Accommodate]
Common Law: Frustration: Medical Issues: Duty to Accommodate
The issue of accommodation is, of course, a fundamental principle of human rights jurisprudence. The question arises of how this obligation may apply to common law concepts. The most evident is the issue of frustration due to a medical disability. The duty to accommodate is reviewed in more detail here.
The defence of frustration requires the demonstration of a permanent medical disability which renders the performance of the employment relationship impossible. The employer certainly, by human rights jurisprudence, will have an obligation to show reasonable accommodation due to the disability in this context.
It would appear illogical to silo the two areas of jurisprudence by confining this obligation to human rights regime. This was suggested in the 2004 McAlpine decision of the B.C. Court of Appeal discussed below, one which has been discarded by modern authorities without direct reference to it. The common law has embraced the duty of accommodation in its assessment of the duties of the employer and also those of the employee.
The Ontario court reviewed this issue in a 1999 decision in which the plaintiff raised the question of the employer’s obligation to accommodate her return to work on a gradual basis. 1 On the issue of the integration of human rights obligations to the common law claim, there was no doubt:
I now turn to the question of whether or not the Defendant had an obligation to accede to Ms. Skopitz’s request to return to work on a part time basis with a view to working up to a resumption of her full time duties.
17 This question, in my view, cannot be answered without reference to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Section 5(1) of the Code provides that every person “has a right to equal treatment with respect to employment without discrimination” because of, among other things, handicap. Section 10(1) defines a “handicap” as “any degree of physical disability” “caused by bodily injury, birth defect or illness”. In my view, Ms. Skopitz’s back condition was a “handicap” within the meaning of the Code.
18 The duty imposed by Section 5(1) of the Code is a duty to accommodate. The question in this case is whether or not that duty imposed an obligation on the Defendant to take Ms. Skopitz back after a 15 month absence and to allow her to start slowly and work her way into a resumption of her previous duties. Section 17(2) of the Code provides that the needs of a person with a handicap must be accommodated unless to do so would cause the employer undue hardship “considering the cost, outside sources of funding, if any, and health and safety requirements, if any.” The onus is on the employer to establish undue hardship. (O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (S.C.C.).)
….I therefore find that the Defendant breached its duty to accommodate Ms. Skopitz under the Code.
Much to the same end is a B.C.S.C. decision in 2000, which also applied the obligation to accommodate to an employee absent from work due to a medical disability. 2
Both of the cases found bad faith on the part of the employer, given the violation of the duty to accommodate, and each allowed for an incremental increase to the notice period, as was then the law.
The British Columbia Court of Appeal, as noted in the brief introduction above, considered this issue in its 2004 decision. The trial judge, as was upheld by the Court of Appeal, had found in favour of the employer that the evidence showed a permanent inability to return to her position of employment. 3
The issue of accommodation was raised by the plaintiff. It was pleaded that the duty of accommodation was one from (1) an express agreement which modified the employment contract, or more significantly and finally, to this issue, (2) by inference or the application of legal obligations arising from the human rights statute.
The argument on appeal to this submission was that the employer was required to send more work to the plaintiff at home and to find other work that she was able to perform.
The first argument on the express contract theory failed. The appellate court then considered the second argument that the human rights code mandated an accommodation obligation. On this fundamental legal issue, the Court of Appeal declined to state a position, by finding that there was shown on the facts proper accommodation.
The issue was still considered, however, in response to the plaintiff’s assertion that the employer was required to provide either part-time or full-time work to the plaintiff which accommodated the tasks that she believed she could perform, which would not include the substance of her prior managerial duties. This, in essence, was a plea to require accommodation from her employer.
To this submission, the Court of Appeal concluded that this obligation did not extend to a contractual duty to amend a job, as was requested:
Whatever may be the extent of the legal obligation arising from cases such as Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, Meiorin and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, it does not extend in my view to a contractual obligation to amend a job by deleting a component which is significant both in time and responsibility, such as the managerial duties here.
This is far from the duty of accommodation required by human rights jurisprudence. The reasons essentially denied the application of human rights jurisprudence to the claim.
An October 2006 decision from Alberta followed the reasoning of Skopitz without specific reference to it. It also did not mention McAlpine. The claim involved the termination of a person suffering from the medical disability of addiction to alcohol and the employer’s duty to accommodate. The trial decision, from which no appeal was taken, incorporated the human rights jurisprudence to define this obligation: 4
All these factors, warnings, the opportunity to improve, and failure to improve, whether from arbitral or common law authority, form the contextual components of the first part of the two-part test proposed in Cie Minière – whether alcoholism impaired the employee’s ability to perform his duties. A further factor in this portion of the test, of particular relevance to these facts, is whether the employer met its obligation to accommodate the employee’s disability or illness to the point of undue hardship: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970. An important factor in that analysis is whether safety was at issue, and if so what was the magnitude of the risk and who bears it: Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489.
The British Columbia Court of Appeal also considered this issue in a September 2006 decision. 5 The plaintiff/appellant had argued that since human rights jurisprudence prohibited adverse treatment due to a disability and further, given the duty to accommodate, it must deny the application of the doctrine of frustration to an employment contract. Oddly enough, this court did not consider its 2004 decision in McAlpine referenced above.
This submission was likely over generous in the proposition that these concepts would deny the argument of frustration. A more reasoned submission may have been that these duties qualified the concept. That being said, the appellate court did affirm the duty to accommodate, while rejecting the submission that the code had “abrogated” the doctrine of frustration:
I cannot agree with the suggestion that the enactment of the Code has abrogated the common law doctrine of frustration as it applies to employment contracts. Indeed, an employer’s duty to accommodate will most often be fulfilled through a new contract of employment. This is not inconsistent with the frustration of the old one.
The decision then contemplated two contracts, rather than a continuum of the employment relationship. The first contract was seen to have been frustrated and a second one then was offered to accommodate the disability. This is a unique conclusion and remains a solitary one. The Court did acknowledge that the argument of failure to accommodate was one which could have been made:
Thus, we do not have the necessary findings of fact to evaluate whether the dismissal amounted to discrimination and whether the Employer could have accommodated Mr. Wightman without undue hardship, nor do we have the benefit of the views of the trial judge on the question.
The Nova Scotia Court of Appeal in 2007 considered this issue somewhat more obliquely than the cases above as this did not involve a direct issue as to whether the common law incorporated the human rights jurisprudence. It did, however, state that the test for a defence of frustration was one which included the company’s willingness to accommodate the disability. 6 This was considered one of many factors to conclude that a medical absence of twelve months was not sufficient to constitute the defence of frustration.
The 2008 decision of the Supreme Court in Honda 7 did review at length the conduct of the employer to determine whether its conduct in the accommodation process was actionable based upon a breach of the duty of good faith and, indeed, supportive of a punitive damage award, as both had been awarded at trial. The decision does not deal directly with the issue of accommodation as part and parcel of an employment law obligation but the inference is evident throughout the majority and dissenting decisions.
The dissenting decision of Lebel, J. does speak to this question: 8
I disagree that it was a palpable and overriding error for the trial judge to conclude that the cancellation was, at least in part, a reprisal for Mr. Keays’ attempt to assert his right to proper accommodation under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. Instead of considering Mr. Keays’ position, Honda denied any need for his continued absences. I do not see how this could be seen as an attempt by Honda “to confirm Keays’ disability”. Honda stated expressly in the March 28 letter that it no longer accepted that he had a disability requiring absences. Further, even if Honda was suspicious of Mr. Keays’ condition, the fact that such concerns had been raised prior to the March 21 meeting does not, in my view, explain or justify the unilateral cancellation, on such short notice, of the minimal accommodation that had been provided.
And further: 9
Mr. Keays had requested to be exempted from the requirement to provide a doctor’s note for each CFS-related absence. Honda refused to consider this request, despite the assertion by Mr. Keays’ attorney that Mr. Keays was concerned that the note requirement created a barrier to his speedy return to work. Regardless of whether or not the notes created a barrier, it is clear that Honda was skeptical of Mr. Keays’ condition because of the “cryptic” nature of his doctors’ notes and because his absences had become more frequent than originally predicted. Yet if variable self-reporting conditions are characteristic of Mr. Keays’ disability, it is arguable that Honda acted in a discriminatory manner in subjecting him to the kind of scrutiny he underwent and, in fact, denying him accommodation for his disability.
The Ontario Court of Appeal also reviewed this issue in its June 2016 decision. 10 The case involved several allegations against the defendant and its principal including the intentional infliction of emotional distress, aggravated damages due to unfair conduct at the time of dismissal and a claim by civil action under the Ontario Human Rights Code for adverse treatment due to a disability, this being deafness.
An award of $70,000 was allowed for aggravated damages, due to events which included, but were not limited to the adverse treatment afforded to her due to her disability and the failure of the company to accommodate her disability. A further sum was allowed of $35,000 for the intentional infliction of emotional distress which also was influenced by this factor. These claims are noted as they are incremental to the damage sum allowed for the direct allegations of human rights violations, being adverse treatment due to the disability and the failure to accommodate which was set at $40,000.
There is little doubt that this court considered the failure to accommodate and indeed the contrary treatment due to the disability as issues leading to civil remedies.
The Saskatchewan Court of Appeal also considered the duty to accommodate in an application made by way of judicial review to set aside the decision of the University of Saskatchewan. The applicant was a physician and had suffered from a disability which cause a propensity to shoplift. The important issue from the decision is that the appeal court clearly set out the duty of accommodation upon the university. The appeal to the Court of Appeal was successful and a new hearing on the merits was allowed. 11
There is clear authority in the case law to demonstrate that civil courts will include the duty of accommodation as an obligation to met by the employer.
Impact of Accommodation Duty on Frustration Defence
This duty, as noted, will not abrogate the doctrine of frustration, yet it nonetheless must be considered and indeed undertaken by the employer to defend against further claims.
If no accommodation has been provided, the employer may be liable for a human rights violation, a civil claim for aggravated damages and perhaps a punitive damage award.
The defence of frustration is difficult enough to prove. Even if there is a permanent disability shown, this does not necessarily end the discussion. Accommodation must still be considered.
🗂️ Category: Disability Issues: Common Law & Statutory
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David Harris
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