Archive for the ‘Duty to Accommodate’ Category

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In August, 2013 the Tribunal released a key decision setting out the appropriate test for discrimination in education.[i] R.B., a 9 year old child, was provisionally diagnosed with an intellectual disability, Pervasive Developmental Delay, and Attention Deficit Hyperactivity Disorder. R.B. had a history of aggression and behavioural problems in the classroom. At issue in this case was a decision taken by the School Board to reduce R.B.’s educational assistant support from full-time to half-time, and significant and prolonged tension and conflict between R.B.’s mother, S.F., and the School Board, which resulted in the School Board banning S.F. from attending or communicating directly with the School.

Jurisdiction: Education is a Service under the Code

The Tribunal has jurisdiction to assess discrimination in education cases as education has been found to be a service under the Code. Section 1 of the Code prohibits discrimination in services. Schools are required to accommodate students with disabilities. Communication between the School and parents is integral as a part of an education for a student with high-needs. Schools should implement measures, short of undue hardship, to ensure that students with disabilities are permitted access to educational services which mirror, as closely as possible, educational services provided to all students in Ontario.

Discrimination in Education: The Two-Part Test

This decision was the Tribunal’s first to apply the test recently set out by the Supreme Court of Canada for discrimination in education cases.[ii] The Tribunal applied the following two-part test:

  1. The Applicant must establish that he or she was denied meaningful access to the educational service provided to all students in Ontario because of a disability. If the Applicant succeeds in this first step the Applicant has established a prima facie case of discrimination.                                                                                                                                                                                                                  .
  2. Once the Applicant has established a prima facie case, the burden then shifts to the Respondent to establish that it was incapable of fulfilling the right, or that the rule that adversely affected the Applicant was reasonable and bona fide (in this step the Respondent must demonstrate that it was unable to accommodate the student’s needs to the point of undue hardship).

Inappropriate Parental Conduct

There was a significant history of tension and conflict between the student’s mother, S.F., and the School Board. There was police involvement, an audio recording device that was sent to school on R.B., direct involvement of the Director of Education, and ultimately the implementation by the School Board of a communication ban and trespass notice banning S.F. from attending or communicating with the School.

The School Board argued that S.F.’s aggressive and inappropriate conduct interfered with the Board’s ability to accommodate R.B. The Tribunal found that S.F. acted “inappropriately at times” and was a “difficult parent to communicate with”, however the School Board failed to establish that her conduct prevented it from accommodating R.B.’s needs and providing him with meaningful access to education. The Tribunal stated:

…the Respondent could have dealt with S.F.’s behaviours directly by meeting with her to inform her that [her behaviour] made it difficult for the Respondent to work with her in his interests. Instead, the Respondent punished R.B. because of the conduct of his mother.

While the Tribunal did not find that S.F. interfered with the School’s ability to accommodate R.B. in this decision, it recognized that parental conduct can interfere in other scenarios, stating:

There may well be examples of parental conduct that prevents the accommodation process from occurring. For example, if a parent refuses to provide relevant information concerning a child’s disability, refuses to acknowledge the child needs accommodation, and refuses to consent to an assessment of the child, that conduct may interfere with the accommodation process and prevent a school from meeting that child’s needs.

Remedy: Significant General Damage Award ($35,000.00)

In determining that the School Board had discriminated against R.B., Vice-Chair Jennifer Scott ordered the School Board to pay $35,000.00 in general damages in compensation for “injury to R.B.’s dignity, feelings and self-respect”. Vice-Chair Scott further ordered that R.B. return to school with a full-time educational assistant, speech and language support for 30 minutes per week and an appropriate behaviour management plan that S.F. has agreed to. The Tribunal also lifted the trespass notice preventing S.F. from attending the school and ordered that she be entitled to fully participate in the development of R.B.’s Individualized Education Plan. Recognizing that the relationship between S.F. and he School Board had been “severely compromised”, Vice-Chair Scott wisely ordered the School Board to retain a third-party mediator to deal with any issues or difficulties going forward.

Conclusion

Schools have an obligation to accommodate students with disabilities. This is a landmark decision that is first by the Tribunal to apply the recently articulated test for discrimination in education. The goal is to provide students with disabilities with the same access to educational services as those offered to all students in Ontario. Parental conduct will not justify a failure to accommodate a student where parental conduct does not interfere with the School’s ability to accommodate. Schools should take care not to refuse to accommodate a student because of a difficult parent. Aside from being inadequate to justify a failure to accommodate, it may also constitute an independent violation of the Code on the basis of family status.


[i] R.B. by his next friend S.F. v. Keewatin-Patricia District School Board, 2013 HRTO 1436

[ii] Moore v. British Columbia (Education), 2012 SCC 61

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

Arrow moves through the walls of labyrinth

When an employer becomes aware, or ought reasonably to become aware, that an employee suffers from a disability requiring accommodation, the duty to accommodate is triggered. The duty to accommodate is a collaborative process, wherein the employee has obligations to provide as much information as is possible to assist the employer in its attempt to accommodate the employee’s needs. The employee does not necessarily have to disclose his or her diagnosis (for a more detailed discussion of information employers are entitled to in the accommodation process see my blog entitled What Questions Can an Employer Ask an Employee with a Disability?).

The duty to accommodate has two parts: (1) a procedural component, and (2) a substantive component. This article will discuss in detail the various components of the duty to accommodate and highlight a recent decision that will be of interest to employers when determining appropriate accommodation.

The Procedural Component

The procedural component requires employers to assess the individual needs of a specific employee and offer consideration of possible methods of accommodation.

The Substantive Component

The substantive component requires consideration of the reasonableness of the accommodation provided or the rationale for failing to provide appropriate accommodation.

Chen v. Ingenierie Electro-Optique Exfo Inc.[i]

In Chen v. Ingenierie Electro-Optique Exfo Inc., a 2009 decision of the Human Rights Tribunal of Ontario, the Applicant worked as a shipper-receiver for the Respondent employer. The applicant began to experience back pain in the workplace, however did not tell his supervisor. The Applicant went on vacation to China where he was diagnosed with sciatica.

The Applicant saw a Canadian physician and provided a subsequent report indicating that he suffered from sciatic. Upon receipt of eth information the employer arranged a meeting with management, human resources, and the Applicant to discuss accommodating the Applicant’s functional limitations.  Following the meeting the applicant was told to return home for two days and report back after that period (he was paid for those days and permitted to take them as sick time).

The following day after the meeting, human resources met with the plant managers to determine whether any department had positions available that could accommodate a worker with modified duties. Ultimately the employer concluded there were no positions available to accommodate the Applicant and five days later his employment was terminated.

The Tribunal accepted that there may not have been any positions in which to accommodate the Applicant however stated that the employer failed to satisfy the procedural component of the duty to accommodate for the following reasons:

  • The period of time from the date the employer learned of the Applicant’s functional limitations until the date of his termination – a mere 2 days – was insufficient;
  • The employer failed to request a functional abilities form to actually determine what the Applicant was able to physically do, and
  • The employer failed to discuss accommodation options with the Applicant.

The Tribunal ruled that an employer has a duty to make meaningful inquiries into an employee’s needs. The employer in this case was required to obtain more information about the Applicant’s limitations and spend more time assessing whether he could be accommodate. As a result of the failure to accommodate the employer was ordered to pay the Applicant fifteen weeks’ lost wages and $5,000.00 as general damages for the pain, humiliation and loss of dignity the Applicant experienced.

Conclusion

The duty to accommodate requires more than “going through the motions”. Employers should ascertain the specific limitations and abilities of their employee, and then engage in a meaningful process to determine whether accommodation is possible. The assessment should not be merely a day or two, but rather an ongoing process wherein the employer maintains communication with the employee throughout the process.

END NOTES


[i] Chen v. Ingenierie Electro-Optique Exfo Inc., 2009 HRTO 1641