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“Desire to Work” is not enough: Appellate court upholds dismissal for frustration of contract

return to work

In a recent decision, the Ontario Divisional Court confirmed that an employer’s duty to accommodate ends when the employee is no longer capable of fulfilling the basic duties associated with their employment relationship for the foreseeable future.


In Katz et al v. Clarke, the employee, Eugene Clarke (“Clarke”), was employed by Katz Group Canada (“Katz”) as a Front Store Manager. In 2008, Clarke took a leave of absence from work due to depression. His leave was subsequently extended on two occasions due to injuries suffered in a slip and fall.

In early 2013, while Clarke was still on leave, Katz was advised by its disability carrier that Clarke was unable to perform the essential duties of his employment and there was no reasonable prospect that he would be able to do so in the foreseeable future.

On the basis of this information, Katz wrote to Clarke on July 1, 2013, and advised him that his employment had been frustrated and his employment would cease on December 31, 2013.

On September 24, 2013, Katz received a letter from Clarke’s lawyer advising of Clarke’s desire to return to full-time employment. In response, Katz asked Clarke to provide updated medical information outlining his estimated return to work and his prognosis for recovery. Clarke failed to provide this information despite being given a further opportunity to do so. Accordingly, on December 31, 2013, his employment was terminated on the basis that his contract had been frustrated.

Consequently, Clarke brought an action against Katz claiming that he was terminated due to his disability contrary to section 5 (1) of the Ontario Human Rights Code (the “Code”). Katz moved for Summary Judgment to have the claim dismissed.

Motion for summary judgment

Katz’s motion for Summary Judgment was dismissed. The motion judge determined that there was a triable issue as to whether Katz fulfilled its duty to accommodate Clarke, noting that Katz was aware of Clarke’s desire to return to full-time employment when it made its decision to terminate. The motion judge also held that it was arguable that Katz’s failure to “spend the time and effort to explore with [Clarke] how his desire to return to work could be accommodated resulted in a ‘rush to judgment’” that breached the Code.

Katz appealed the decision to the Ontario Divisional Court

Ontario Divisional Court

The Ontario Divisional Court overturned the initial decision. It made the following findings:

  • Desire to work not enough – the Court held that the duty to accommodate was not triggered because Clarke did not provide Katz with evidence of his ability to return to work, including any information on his disability-related needs or restrictions. The judge confirmed that an “employee must communicate the ability, not just the desire to return to work.”
  • “It is ‘inherently impossible’ to accommodate an employee who is unable to work” – the Court held that Katz’s duty to accommodate ended when Clarke was no longer able to fulfil the basic duties associated with his employment relationship for the foreseeable future.

The Court also rejected Clarke’s argument that Katz should have contacted him while he was on leave. The judge held that any such communication would have been “futile” and arguably “inappropriate” since the medical evidence provided to Katz indicated that Clarke was unable to return to work.

In any event, Katz did contact Clarke on two occasions prior to his dismissal and requested documentation and information that, if delivered, could have triggered a duty to accommodate. Clarke did not provide it.

  • Clarke’s employment was frustrated – the medical evidence suggested that Clarke’s condition was permanent, thereby rendering the performance of his employment contract impossible.
  • Summary Judgment was appropriate – the Court held that Summary Judgment was appropriate in this case because there was no dispute as to the underlying facts. In particular, there was no dispute that the medical evidence indicated that Clarke was totally disabled and unable to work in any occupation at any time in the foreseeable future.


This decision makes it clear that it is not enough for an employee with a disability to merely inform their employer of a desire to return to work. The employer’s duty to accommodate will only be triggered when the employee provides the employer with evidence of their ability to return to work, including any disability-related needs or restrictions. The decision is also a reminder that an employer’s duty to accommodate is not without its limits. The contract of employment will be deemed to have been frustrated when the medical evidence indicates that the employee is no longer able to carry out the basic duties of their employment and is not expected to be able to do so for the foreseeable future. In such circumstances, the employer no longer has a duty to accommodate.

By Anique Dublin and Stuart Rudner

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Rudner Law, Employment / HR Law & Mediation

Employment Lawyers and Mediators at Rudner Law
Rudner Law is a firm specializing in Canadian Employment Law. They provide clients with strategic advice regarding all aspects of the employment relationship, negotiate and advocate on their behalf and represent them before courts, mediators and tribunals. Blog posts are written by Stuart Rudner, the principal and founder of Rudner Law, Brittany Taylor, a Senior Associate at Rudner Law, Nadia Zaman, an Associate at Rudner Law and Anique Dublin, a Law Clerk at Rudner Law. Read more
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