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Before the duty to accommodate, the duty to inquire

duty to inquireIf the duty to accommodate is a well-known concept, the duty to inquire is a fuzzy notion. The principle is that an employee seeking accommodation for a disability is under a duty to disclose sufficient information to her employer to enable it fulfill its duty to accommodate. However, current decisions from various tribunals have shown, in accordance to the previous rules, that an applicant will not be held to a high standard of clarity in communication.

That is explicitly stated in McLean v DY 4 Systems[1] wherein the adjudicator held that

[a] number of decisions of this Tribunal, as well as other tribunals applying human rights legislation, have considered when a respondent can be said to have enough knowledge of an applicant’s disability to trigger responsibilities under human rights legislation. Most of these decisions have arisen in the context of identifying when the employer has a duty to accommodate. Most authority indicates that the claimant will not be held to a high standard of clarity in communication. This approach is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively. Liability has been found when an employer had no knowledge of the disability.[2]

The two-step approach: Procedural and substantive obligations

Thus, the Human Rights Tribunal of Ontario (HRTO) has found that the duty to accommodate includes both procedural and substantive obligations.

On the one hand, the procedural element requires that an employer must take steps to understand the employee’s disability-related needs and set about individually investigating of potential accommodation measures to address those needs.

On the other, the substantive element relates to the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation. The employer bears the onus of demonstrating what considerations, assessments and steps were taken in accommodating the employee to the point of undue hardship.

Not all Canadian jurisdictions have adopted the two-step approach. The decision of the Federal Court of Appeal in the case Canada Human Rights Commission v Canada Attorney General[3], for instance, found that the appropriateness of a standard must be assessed as a matter of substance and not procedure. According to this position, the employer meets its duty to accommodate as long as there is a finding that the employee could not be accommodated without undue hardship, even if the employer did nothing at all[4]. But in fact, an employer who declines an accommodation request has to bring evidence and such evidence is acquired at the procedural stage of inquiry. In conclusion the procedural step appears to be essential despite the Canada Human Rights Commission v Canada AG case.

Decisions applying the two-step approach

Since 1997, many decisions by both the HRTO and the British Columbia Human Rights Tribunal (BCHRT) identified a duty to inquire and used the two-step approach to render a decision.

For instance, in Mackenzie v Jace Holdings case[5], the Tribunal held that while it is normally the responsibility of an employee to communicate the nature of the disability to the employer, where the employer has ‘reason to suspect that a medical condition may be impacting the employee’s ability to work’, its failure to make inquiries regarding the employee’s health prior to taking steps that adversely affect the applicant’s employment situation may constitute discrimination.[6] The case notes:

“[a] respondent’s failure to make inquiries regarding the health of an employee before taking steps that adversely affect that employee’s employment situation, where the respondent has reason to suspect that a medical condition may be impacting the employee’s ability to work, has been found to be discriminatory in certain instances.”[7]

In McKee v Imperial Irrigation,[8] the HRTO considered that:

“At the same time, in addition to the substantive aspect of the duty to accommodate, there is also a procedural aspect to this duty under the Code that requires an employer to take active steps to inquire into the duty to accommodate, including how duties could be altered to accommodate the employee’s needs or what alternative positions might be available that would meet an employee’s needs.”

Similarly, in Gardiner v Ministry of Attorney General,[9] the BCHRT commented on an employer’s duty to inquire where it had reason to believe that a medical condition was affecting an employee’s performance:

“a respondent has a duty to inquire further where it has reason to believe that there is some question regarding a possible adverse effect of an employee’s medical condition on his ability to do the work prior to taking any action which would adversely impact on the employee.”

Put simply, it is the employer’s responsibility to obtain relevant information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work.

Duty to inquire and its relationship to disabilities

The BCHRT ruled in Martin v Carter Chevrolet Oldsmobile that when an employer fulfills its duty to inquire, it must look into the relationship between the potential disability of an employee and the performance.[10] The Tribunal elaborates:

“[h]owever, when an employer is aware, or reasonably ought to be aware, that there may be a relationship between the disability and the performance, the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance. If those inquiries disclose that there is a relationship between the disability and the performance, then the employer has a duty to accommodate the employee to the point of undue hardship. However, if the employer reasonably concludes that there is no relationship, then there is no discrimination and the employer has met its duty under the Code. Similarly, if the inquiry reveals that there is a relationship, but the employee could not perform to acceptable standards even with reasonable accommodation, then the employer owes no further duty under the Code.”[11]

The two-step approach was summed up clearly in Han Chen v Ingenierie Electro-Optique Exfo Inc and elaborates on the duty to accommodate.[12] The HRTO ruled:

“When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists […] It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural […] 2. substantive.”[13]

The Lippé case gives more details about the obligations of the duty to inquire:

“In Oak Bay Marina Ltd. V. British Columbia, […] the Tribunal summarized the relevant authorities on the scope of the procedural content of the duty to accommodate, as follows: The duty to accommodate is a positive obligation. An employer has a duty to obtain all the relevant information about the employer’s disability, at least when it is readily available. This includes information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term “undue hardship” requires respondents in human rights cases to consider seriously how complainants can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any steps could be taken does not satisfy the duty.”[14]

The cases above describe that the duty to inquire has a broad scope. In practical terms, where an employee is behaving in a very unusual or uncharacteristic manner, it may be prudent for the employer to meaningfully inquire as to the whether the employee is experiencing any health issues.

Employee may be reluctant to disclose

This duty to inquire is often evoked to accommodate mental illness. Workers who suffer from mental health issues may not necessarily disclose such issues or request accommodation where appropriate or needed. For example, an employee may not be very comfortable to disclose his mental health issues, his addiction or his depression. Also, some employees may experience a first episode related to mental illness at the workplace and not even been aware of what is going on. These types of situations require inquiry from the employer in order to fulfill his duty to accommodate.

Duty to inquire and its relationship to mental health issues

Many cases underscore the employer’s duty to inquire with respect to mental disabilities.

For example, the BCHRT ruled on the question of the duty to inquire and mental disability in Mackenzie v Jace Holdings.[15] The Tribunal said:

“Thrifty’s had a duty to inquire into whether the behaviour exhibited by Ms. Mackenzie was due to her mental disability and whether she required any accommodation. They did not fulfill that duty. Thrifty’s dismissed Ms. Mackenzie because of behaviour she exhibited; particularly mood swings, irritability and being manipulative which was consistent with her diagnosis of adjustment disorder and depression.”[16]

The Tribunal continues:

“Ms. Mackenzie suffered from these symptoms since 1996 but more particularly since October 2008. Accordingly, I find that part of the reason for Ms. Mackenzie’s dismissal was due to discrimination. Any issue of bona fide occupational requirements and any accommodation of Ms. Mackenzie’s disability cannot be answered until the duty to inquire has been fulfilled.”[17]

In Willems-Wilson v Allbright Drycleaners,[18] the complainant had a lengthy history of emotional problems which were not disclosed to her employer. However, her employer was aware that she was receiving counselling and allowed her to attend sessions once a week. Subsequently, the respondent learned that the complainant had been hospitalized for several days for emotional problems. The employer terminated the complainant’s employment for poor job performance and for not telephoning him directly to report her extended absence. The BCHRT determined that the employer, given the information it had about the complainant’s emotional state and hospitalization, had an obligation to make inquiries about the possible connection between her mental disability and performance problems at work. Although the complainant had not discussed the nature of her disability with her employer, or requested any accommodation, the BCHRT found that there was sufficient information before the employer to make inquiries with respect to accommodation. Its failure to do so amounted to discrimination.

In a similar vein, there are cases relating to alcohol addiction. In Domtar Inc v Communications, Energy and Paperworkers Union of Canada Local 74,[19] an employee, when initially confronted, denied that he had a drinking problem that required accommodation. At a later meeting, he stated that he was an alcoholic. The employer treated that admission as too late and terminated the employee. The Tribunal held that the employer did not sufficiently fulfill its duty to inquire.

Conclusion

The foregoing cases may be distilled to the following principles: (1) while the onus of disclosure normally falls on the employee to disclose any issues, an employer has a duty to inquire when there is reason to suspect that a condition is impacting the employee’s ability to perform on the job; (2) that the duty to inquire has a broad scope, and (3) that it must be a meaningful inquiry.

It is thus prudent for an employer to make meaningful inquiries when an employee is behaving in a very unusual or uncharacteristic manner as to the whether the employee is experiencing any health issues. The employer bears the onus of demonstrating what considerations, assessments and steps were taken in accommodating the employee to the point of undue hardship.


[1] McLean v DY 4 Systems Inc (cob Curtiss Wright Controls), 2010 HRTO 1107.
[2] Ibid at para 56.
[3] 2014 FCA 131.
[4] Deborah Hudson, ‘Invisible Barriers: Accommodating Mental Illness in the Workplace’, 2016.
[5] Mackenzie v Jace Holdings and another (No 4), 2012 BCHRT 376.
[6] Ibid.
[7] Ibid at para 31.
[8] McKee v Imperial Irrigation, 2010 HRTO 1598 at para 35.
[9] Gardiner v Ministry of Attorney General, 2003 BCHRT 41 at para 165.
[10] Martin v Carter Chevrolet Oldsmobile, 2001 BCHRT 37.
[11] Ibid at para 29.
[12] Han Chen v Ingenierie Electro-Optique Exfo Inc, 2009 HRTO 1641.
[13] Ibid at para 22.
[14] Wall v Lippé Group, 2008 HRTO 50 at para 82.
[15] Mackenzie v Jace Holdings Ltd, 2012 BCHRT 376.
[16] Ibid at para 50.
[17] Ibid at para 51.
[18] Willems-Wilson v Allbright Drycleaners Ltd, [1997] BCHRTD No. 26.
[19] Domtar Inc v Communications, Energy and Paperworkers Union of Canada, Local 74 (Turpin Grievance), [2011] OLAA No 394.

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De Bousquet PC Barristers and Solicitors

Civil Litigation Lawyers at De Bousquet PC Barristers and Solicitors
De Bousquet law offers experienced counsel and representation in multiple aspects of employment law, labour relations, commercial law and civil litigation. Jean-Alexandre De Bousquet, founder of the firm, interned for the Canadian Centre for International Justice, worked for an Ottawa law firm and pursued a career with the Attorney General of Ontario. In 2014, Jean-Alexandre was named one of Ontario's "leading experts" in human rights law by Legal Action Magazine. Jean-Alexandre handles cases related to wrongful dismissal, workplace discrimination, breach of contract, fraud and commercial disputes. Jean-Alexandre is fully fluent in French and English and represents clients before courts and tribunals using both official languages.Before the practice of law, Jean-Alexandre was a journalist at the CBC for 3 years. Other notable achievements include employment with the Canada Research Chair on Native Peoples and Legal Diversity, the Canadian Research Chair on Metis Identity and the Urban League, a U.S. civil rights organization. Jean-Alexandre has also published articles in prominent academic journals and presented papers at international conferences in Canada and the U.S.Read more here
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