3d man with dollar symbol.George Berger, an executive assistant to a Toronto City Councillor, brought an application to the Tribunal against the City of Toronto alleging that Councillor Frances Nunziata discriminated against him on the basis of his disability.[i] Berger suffered from adjustment mood disorder and multiple osteochondromatosis (a condition that involves arthritis in the fingers).

Berger commenced a leave of absence for medical reasons relating to his mental disability, which he claimed was related to a poisonous work environment caused by the alleged harassment. Berger requested the opportunity to work for another City Councillor when he returned to work. The City of Toronto argued that it was difficult to transfer executive assistants because City Councillors typically choose their own assistant. The City decided to pay Berger the remainder of his two year contract – approximately 6 months wages.

The Tribunal found that the allegations against Nunziata were not connected to a Code ground and therefore not within the Tribunal’s jurisdiction, however the City failed in its duty to accommodate Berger when presented with a request to be moved to a different City Councillor. The City decided not to explore whether it could accommodate the Applicant’s request, but rather decided to ‘buy out’ his employment. Vice-Chair Kaye Joachim stated:

[The City] failed to take adequate steps to canvass its organization for alternative comparable vacant positions in which to accommodate the applicant. Rather, it chose to resolve the situation by paying out the applicant’s contract.

The corporate respondent argued that the payment of wages on the remaining contract was a form of accommodation. I disagree. The applicant was denied the right to engage in meaningful work for the remainder of his contract. He was also denied the opportunity to seek renewal of the contract in whatever position he was in in November 2006.

In these circumstances, the applicant was essentially “forced” to seek a settlement.

Some will see six months’ pay for a one and a half year employee as reasonable – even generous. The duty to accommodate however required that the City explore accommodating Berger in an alternative position. The procedural component of the duty to accommodate requires employers to undergo a process – the City of Toronto failed to do so in this case. Forced settlements, even with generous sums of money, are not a substitute to the duty to accommodate.

Does this mean that the City of Toronto automatically had to explore placing Berger in an alternative position simply because he provided a medical note?

Not necessarily. The City could have questioned the medical evidence and insisted upon clarification. Medical doctors are not able to dictate accommodation, but rather their role is to provide evidence concerning their patient’s functional abilities and limitations. The City could have challenged the doctor’s conclusions,  but as Vice-Chair Joachim stated – “it was not open to it to do nothing”.


[i] Berger v. Toronto (City), 2011 HRTO 625

Comments
  1. sam-d says:

    I realise this an old post but I don’t see how $140,000 is adequate pay out after working from 1988-2001 at City Hall…

    Former city councillor Norm Gardner, who employed Berger from 1988 to 2001, testified the man was well-organized, took direction and was “quite satisfactory” as his executive assistant.

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