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 Topics
Related Articles
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
Registration (you must 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