Canada: Not Disabled Enough? ABQB Finds No Duty To Inquire Further Into Disclosed Disability

Last Updated: June 5 2013
Article by Laura Easton

The Alberta Court of Queen's Bench released a concerning decision on May 16th in Telecommunications Workers Union v Telus Communications Inc., 2013 ABQB 298, in which the applicant Union appealed an arbitration decision upholding Telus' termination of a probationary employee with Asperger's Syndrome.  Asperger's Syndrome is a type of "Autism Spectrum Disorder" which impairs an individual's communication, understanding and social interaction, without delaying language or cognitive development (see here for more details).

The arbitrator had found that the employee did have a recognized disability under Alberta human rights legislation, and that his Asperger's Syndrome was a contributing factor in his termination. The arbitrator had also found the employee had brought his disability to Telus' attention by checking "yes" to having a disability on the job application diversity questionnaire, and by raising it at a meeting one week before his termination.

The Court held that the arbitrator had correctly applied the test for prima facie discrimination in circumstances where the employer's knowledge of the disability is unclear: first, the complainant has the burden of proving the employer knew or ought to have known of the complainant's disability, at which point the burden shifted to the employer to prove it has met its duty to accommodate. The Court distinguished this from the three-part test confirmed by the Supreme Court of Canada in Moore v British Columbia (Education), which applies to situations where it is clear the employer knew of the condition.

The Court dismissed the appeal for judicial review, and held that the arbitrator was reasonable in determining that the employee insufficiently disclosed his disability, whether solely by ticking "yes" to a disability on his diversity form, or by ticking "yes" in conjunction with a vague reference to his disability only when upcoming termination became evident. The Court also found that the duty to accommodate did not require Telus to follow up on the information they had about the employee's disability, based partly on the fact that the deficiencies were not such that an employer would suspect they were related to a disability, and that the employee had represented to Telus that he understood his performance issues and was working to improve them.

Troublesome Effects of Court Decision

The decision of the Court is troubling for many reasons. First of all, it seems counter-productive to establish two separate legal tests based on how obvious or "clear" a disability is, only to find that the second legal test isn't met by a blanket admission of a disability. Rather, if you tell your employer you have a disability, but your deficiencies aren't suspicious enough, you have not adequately advised your employer. This renders a diversity form requesting disability disclosure as a politically-correct ploy to meet a quota to qualify for Top Diversity Employer status, while failing to actually accommodate and support diversity by following up with inquiries as to how better incorporate disabled individuals into the workplace.

Further, the decision recognizes Asperger's as a recognized or protectable disability, yet seems to suggest that someone with Asperger's isn't disabled enough, because the deficiencies faced by the employee wouldn't immediately cause an employer to suspect a disability. This reinforces society's ignorance and assumptions about disabilities such as Asperger's, and serves to further marginalize those living with the condition.  It is also disconcerting that the employee's recognition of his deficiencies and attempts to improve could be used against him, as this implies that someone with Asperger's or a similar disability cannot or should not be conscious of the difficulties he faces, and in any event, should not try to develop or learn new skills to address the behavioural differences resulting from the Disorder.

This state of the law serves neither employees nor employers well. While it may effectively reduce an employer's duty to inquire, it also reduces clarity in the law, which allows both employers and employees to understand their respective obligations. Furthermore, limiting a duty to inquire in such a way may hamper an employer's desire to create and foster a welcoming and diverse workplace, resulting in the employer being unaware of the difficulties or deficiencies possessed by employees and being communicated to customers or clients, and perhaps overlooking the unique skills of the employee that remain un-harnessed.

I understand that the Union will be appealing the decision, and look forward to reporting the developments of what could become a very important case for Alberta Human Rights and Employment Law.

The Court also upheld the arbitrator's findings with respect to two other issues surrounding the duty to accommodate that are not reported in this blog. Please see the full decision here.

The term "disabled" and its derivatives have been used to reflect terms used in the legislation and jurisprudence, and not to negate the abilities of the individuals categorized therein.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.