There is a procedural component in the duty to accommodate. In other words, an employer needs to work with the employee, who needs accommodation, to determine how accommodation can be provided. There is no need to find a perfect form of accommodation. There are also circumstances when the employer cannot accommodate the employee. However, the employer is always required to try to find an acceptable form of accommodation together with the employee. Failure to do so could result in violating Ontario’s Human Rights Code if governed provincially or the Canadian Human Rights Act if governed federally.
Earlier this year, in the Human Rights Tribunal of Ontario’s (HRTO) decision Valiquette v BPM Enterprises Ltd. (Tim Horton’s), (2023 HRTO 53) an employer learnt that it can be costly to not complete the procedural duty to accommodate properly. In that case, Denise Valiquette, a 61-year-old who had worked as a Tim Horton’s employee for over 18 years, was experiencing a right shoulder medical condition and a right knee medical condition. The employer had accommodated Valiquette, by removing her from some of the requirements of her job that she was struggling with, along with some that the employer figured that she could not do. The employer asked for a medical note showing that Valiquette could not fill the fridges due to her medical condition. When Valiquette gave the employer a medical note stating some of her physical limitations, the employer wrote, by hand, on the bottom of the note: “Effective Nov. 3/17 @2:30 pm termination. Inability to do duties. Guaranteed EI cause it’s not her fault.” In other words, on the day that Valiquette gave a medical note explaining her physical limitations, the employer terminated her on a without just cause basis because they believed that she would not be able to complete her work duties.
The HRTO found that the employer discriminated against Valiquette on the ground of disability. The tribunal explained that Valiquette’s shoulder and knee medical issues were sufficient physical limitations to qualify as a disability. It did not matter that the physician did not use the word “disability” in her medical note. The tribunal found that, based on what the employer wrote on the medical note and their testimony, the reason that the employer terminated Valiquette was directly tied to her disability. The tribunal found that the employer failed to provide a reason why they could not accommodate Valiquette instead of terminating her. Though the tribunal noted that Valiquette could not do many components of her job, the employer failed to meet the procedural component of its duty to accommodate. In other words, the employer failed to meet with Valiquette to fully understand the extent of her disability and determine if there is a way that they could accommodate her disability. The tribunal found that the failure to complete the procedural component of the duty to accommodate is discrimination. The tribunal also rejected the employer’s argument that accommodating Valiquette would amount to undue hardship, as the employer did not adequately consider what she could do and if they could bundle those tasks together.
The HRTO awarded Valiquette a total remedy of $35,290.40 plus interest. The tribunal awarded Valiquette $20,000 of the total remedy for injury to dignity, feelings, and self-respect. An injury to dignity, feelings, and self-respect award is meant to attempt to restore the applicant, to the extent that money can, to the position that they would be in if they had not been discriminated against. In this case, termination for a discriminatory reason was a sufficient reason to award a sizable amount for injury to dignity, feelings, and self-respect. The other $15,290.40 was for lost wages caused by the discriminatory termination. This is approximately 8 months of pay.
Takeaways from the Valiquette v BPM Enterprises Ltd. (Tim Horton’s) decision
There are two major takeaways for employers from this decision. First, an employer should take the time to meet with their employee when there is a need for accommodation. The employer can ask for sufficient information to understand the extent of the employee's limitations. Once the limitations are understood, the employer should attempt to find a reasonable solution. A reasonable form of accommodation does not have to be perfect. However, it should help the employee complete their job. For example, after speaking with an employee who experiences back problems, the employer could provide a chair with good back support and offer time off for medical appointments.
Second, employers should pause before terminating an employee, even if they believe that they cannot accommodate the employee. Quick and significant decisions, made on the day that you get important information, can be bad decisions. In cases involving termination, it is best that you see an employment lawyer who can help guide you through a termination and explain the liabilities that you might face.
How Suzanne Desrosiers Professional Corporation can help
If you have an employee who you are struggling to accommodate, you can talk to one of our employment lawyers. Our employment lawyers can explain your duty to accommodate up to undue hardship. It is especially important to speak to one of our employment lawyers if you are considering terminating an employee due to accommodation challenges. Our employment lawyers can explain the legal liabilities of termination and how you can mitigate those risks. To contact one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.