Canada: Accommodation Before Frustration – Addressing Long-Term Absence From The Workplace

For businesses both big and small, reintegrating an employee who is recovering from an illness or injury (whether suffered at work or on their own time) can be a difficult balancing act. The employer must be flexible and patient with the recovering employee in order to determine the nature and extent of the employee's physical restrictions; what tasks can or cannot be performed; how job tasks and duties can be modified; whether other job tasks and duties can be offered; and how long potential limited work can help the business if the situation exists long-term. In some cases, where an employee can no longer attend at work, employers also have to make the difficult determination as to whether employment has become frustrated by the employee's limited capabilities.

It is left to the employer to balance their legal obligation to accommodate a disability to the point of undue hardship with the practical economic concern of having to run an effective business.

A recent decision of the Ontario Court of Appeal in Nason v. Thunder Bay Orthopaedic Inc.1 provides important guidance to employers about their duty to accommodate, as well as an important warning about the risk if an employer acts prematurely upon claiming frustration of the employment contract without receiving clear medical support.

Mr. Nason had filed a claim against Thunder Bay Orthopaedic, seeking both general damages for breach of the Ontario Human Rights Code for the company's alleged failure to accommodate his restrictions as well as damages for wrongful dismissal. While the court ultimately found that the company had met its duty to accommodate their employee to the point of undue hardship, the company was found to have prematurely claimed frustration as the basis for Mr. Nason's termination and he was awarded notice and severance.

Mr. Nason had been employed by Thunder Bay Orthopaedic as one of its two technicians in its small business. After working eight years as a technician, Mr. Nason began to suffer from joint and strain injuries, which were related to the repetitive performance of his duties. When his doctor advised the Workplace Safety and Insurance Board (WSIB) of his condition, the company was also notified and, upon having knowledge of his medical circumstances, the company acted promptly in its efforts to accommodate the employee so that he could continue working.

The accommodation efforts began with a review of the jobs and duties within its operation and the imposition of job modifications. This allowed Mr. Nason to continue to work full-time and perform at least some of the duties relating to his position as a technician. The company allowed the employee to work at his own pace; provided rest breaks at his discretion, including breaks to perform stretching exercises; restricted and prohibited his use of any equipment that would aggravate his medical condition; eliminated tasks and duties he could no longer perform; and provided him with paid time off to attend physiotherapy and medical appointments. In addition to the foregoing, the small company engaged other employees to assist in increasing the lost productivity that resulted from Mr. Nason's restrictions and curtailment of duties. This included providing substantial overtime and scheduling the other employees to work on evenings and weekends.

Despite the changes, the employer came to the conclusion that the employee's ongoing restrictions and reduction in job duties required the hiring of another technician to do what Mr. Nason could no longer do. At that time, the company placed Mr. Nason on leave and he began to draw from WSIB benefits. Unfortunately, after several operations and a long continued thirty-month absence from work, the company terminated Mr. Nason's employment for frustration, providing only the statutory minimum.

In finding that the company had fulfilled its duty to accommodate, the court referred to the accommodation review process undertaken by the company and what had been substantively offered to the employee to meet his restrictions. The court did not negatively view the company's decision to place the employee on leave after good faith accommodation efforts could not keep the employee in a viable position. The court also reaffirmed that the duty to accommodate did not include the creation of a new position or maintaining a position when the employee could longer fulfill basic obligations and duties, despite accommodation.

In affirming that the employer had reached the point of undue hardship with respect to its accommodation efforts for this employee, the court took into consideration the limited alternate jobs available at a small business; the nature of the work the employee was able to perform; the economic long-term viability of the duties the employee could perform; and the alternatives that were considered and tried.

However, the court did not agree that the employment contract had become frustrated, even though the employee had been on a continuous medical leave for more than two and a half years. While the WSIB had concluded that Mr. Nason's recovery had plateaued, that he had reached maximum medical recovery and that he had become partially permanently impaired, the company nonetheless failed to conduct its own evaluation as to the prospect of Mr. Nason's future return to work, with or without accommodation. Significantly, the company did not explore any medical re-evaluation and made no request for medical documentation from Mr. Nadal's treating physicians regarding their prognosis and conclusions regarding his ability to return to work in the future. Permanent restrictions did not automatically equate to permanent absence without undertaking the same substantive procedural review of accommodation based on updated medical information.

There are several important take-aways for employers from this decision.

First, employers, regardless of size, must remember that reaching the point of undue hardship will require efforts, as in this case, which satisfy the procedural and substantive requirements to engage in a process of determining what work and duties, with modification and accommodation as necessary, are available in the workplace. This takes time. Provided there are no concerns of safety, a trial period is often best. Give the employee an opportunity to perform in the accommodated position, monitor improvement and ongoing viability and, finally, document all options attempted, reviewed or considered and note reasons why such accommodation was either not offered or failed.

Second, ongoing leave does not necessarily equal frustration of contract. The provision of long-term insurance (WSIB or private insurer) means that an employer should reasonably expect that their employee may, from time to time, be absent for considerable periods. Conclusions by the WSIB or those of a private insurer on benefit entitlement do not automatically equate to evidence that the employee has no reasonable likelihood of returning to work (including accommodated work) at some time in the future. As the onus will rest with the company to prove frustration, employers should request (directly) that the employee and his/her treating physician provide regular updates as to the employee's restrictions and prognosis for return to work. Employers must be cautious in determining that the employment contract has become frustrated, particularly where the medical evidence is equivocal, the medical recommendation is for further re-evaluation or to engage a medical specialist, or immediately following the conclusion of medical treatment where the success is yet unknown.

While the court's decision demonstrates that it is possible for an employer to reach the point of undue hardship in an accommodation, it gives fair warning to those companies who act prematurely on frustration simply to "clear the books."


1 2017 ONCA 641 (CanLII)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions