The issue has arisen as to whether a failure to meet the procedural component of the test is actionable in itself, even where the substantive aspect of the allegation may fail.
It must be recalled that even if a procedural breach gives rise to an independent complaint, it is only actionable where a prima facie case has been established. The duty to accommodate in both forms arises as a rebuttal defence to that of prima facie case. If no such case is presented such a breach is not actionable. 1
This principle was considered by the Ontario tribunal which concluded 2that the employer did not address the procedural fairness obligations, as it had failed to provide an individual assessment of the complainant’s disability.
Having found that the employer was in breach of the procedural requirement, the decision maker then posed the question as to whether this was actionable in itself, absent a finding of a substantive breach. It was found that this was indeed actionable.
The Divisional Court agreed, confirming that the employer has an obligation to acquire information about the disability to consider what steps it might take to accommodate the disability.
This has become a firm precept of Ontario’s human rights remedy. It is, however, controversial as this view has not been uniformly shared.
The law in British Columbia has taken a different path. The British Columbia Court of Appeal noted in its 2008 decision 3that there was no actionable duty to accommodate people with disabilities. Evidence of a failure to accommodate a disabled person was determined not to be, in itself, a breach of the Code. The duty to accommodate arose as a defence to a prima facie case of discrimination, the Court of Appeal noted. 4The same theme was repeated in a second case. 5The process issue was “useful to consider any procedure adopted in assessing accommodation” and was an “important analytical tool” but did not create a separate actionable duty, the court concluded.
The issue of the impact of the procedural duty to accommodate arose again in a federal case in which the applicant had been denied the right to work in Afghanistan. 6 She had two prior such assignments, the last of which was cut short due to her medical condition of type 1 diabetes and a resultant hypoglycemic incident while abroad. She was now subject to the new requirement to pass Health Canada’s “Medical Evaluation Guidelines” for such a posting.
The tribunal level hearing had found a prima facie case, a lack of procedural accommodation as “no one with a chronic medical condition” was allowed to be posted. It also found that to provide substantive accommodation would be undue hardship to the employer. The tribunal ordered a form of instatement but no monetary remedy.
This raised the issue of what remedy if any may be available when there was a procedural breach but not in the end result a substantive one of the duty to accommodate. The Federal Court 7on first review concluded that the substantive finding ended the case and would have dismissed the complaint.
The Federal Court of Appeal concluded that the procedural aspect of accommodation was not intended to create a separate distinct right. There is but one issue, the court concluded, namely, that has the employer shown that it is impossible to accommodate without undue hardship.
This issue was again revisited “post-Cruden” in an Ontario case 8in which it was concluded that due to differences in the Ontario statute and the misinterpretation of the leading case in Ontario on this subject, a breach of such obligation remains actionable. 9
In this instance the substantive issue was upheld as a defence of due diligence resulting in a modest award of $3,000. This is within the range of comparable awards of $2,000, 10 and $3,000. 11
It remains the law in Ontario. 12
Duty to Accommodate & Addiction
The issue becomes, particularly in addiction cases, an analysis of the termination decision to determine if it was casually linked to the addictive behaviour when it was ostensibly due to the offensive conduct, such as stealing the employer’s property, to support the protected ground of addictive behaviour.
The general view is that there is marked distinction between conduct which is supportive of the addictive habit and the addiction itself. 13The leading case involved an employee who admitted to theft and proclaimed his addiction.
The court saw no role which the dependence on alcohol played in the decision to terminate. The fact that persons suffering from such a disability may reflect “deterioration in ethical or moral behaviour” and hence suffer from greater temptation does not allow for the inference that the termination decision was influenced by the dependency on alcohol. The termination decision was based on the misconduct solely. Even if the dependency was admitted, it does not follow that this therefore played a role in the termination decision. The decision was reversed. The case was remitted back to the arbitrator for the determination of the appropriate level of discipline.
Such a drug addiction which had background relevance to the offensive workplace conduct was not sufficiently close to create the nexus for the third ground of the test.
Similarly a tribunal finding that the termination was due to the failure of the employee to stop using drugs and for the failure to disclose drug use was not sufficient to see a link to termination due to the addictive disability. 14The employee had not at the relevant time admitted to his addictive propensity. The requirement to disclose drug use was by the employer policy document.
This case raised also the issue of how to determine the existence of the addiction. Must the user admit to his addictive behaviour to be an addict, or might the evident conduct be sufficient to allow an impartial decision maker to come to his conclusion? The need for such an admission carried the day in this instance. This was the basis for the conclusion that the employer was correct to treat the employee as a user in breach of the policy requirements and not as an addict.15
An important factual finding underpinned this decision, namely, that the employee had the capacity to control his use of drugs and that his breach of the policy was hence not due to his inability to control his drug use.
The finding of this link is considered a question of mixed fact and law. 16
An employee suffering from addiction to drugs or alcohol must accept and pursue treatment to deal with the disability. Presuming that is so, the employer then has an obligation to accommodate up to the point of undue hardship, particularly where the employee has by medical evidence, established that he is fit to return to work.
Where the medical evidence may show that there are conditions attached to the return to work, the employer must show whether it can accommodate those conditions without undue hardship.17Such were the conclusions of the arbitrator in Collingwood General & Marine Hospital (Smart) (2010) 195 L.A.C.(4th) 124 (Jesin). 18
The issues confronting the employee in proving the nexus between the apparent addictive behaviour and other adverse conduct as alleged are reviewed below.