The Ontario Human Rights Tribunal ("the Tribunal") has found that an employer who does not accommodate a disabled employee may still have a successful defence if the employee was incapable of doing the job even with accommodation. In Gahagan v Campbell Inc, 2014 HRTO 14, an employee suffered a back injury on the job and was unable to work for two and a half years. She was eventually terminated, and she filed two human rights complaints: one based on discrimination, and the other based on reprisal. She was unsuccessful on both complaints.
The complainant worked in the respondent's restaurant in Lakefield, Ontario for seven years. The respondent operated nine fast food restaurants in the region. The restaurant where the complainant worked was a smaller 'satellite' outlet connected to a gas station, with only 20 people employees (compared to 75-100 at the employer's largest restaurant) – a fact that became important in the accommodation analysis.
The employee's injury occurred in May 2009 when she "twisted her back lifting a filter pan from underneath the vat for the French fries." She received workers' compensation benefits and, in September 2009, began an occupational rehabilitation program with a physiotherapist with the goal to return to work in six-eight weeks.
She did not return to work and was terminated:
There was a meeting in November 2009 between the Return to Work ("RTW") Specialist from the Workplace Safety and Insurance Board; the complainant's physiotherapist; and the co-owner of the respondent, to discuss whether the complainant could return to work. The complainant had a number of physical restrictions: she could not lift more than 10 pounds; twist or bend; stand for longer than 10 minutes; or sit for longer than 5 minutes. She would only be able to work three days a week for three hours a day, with a rest day in between.
The respondent advised that it was unable to accommodate the complainant, and even refused to let the RTW Specialist behind the counter to see the actual work site "because of liability concerns." The respondent had three reasons why it could not accommodate:
- "It was a small restaurant with approximately 20 staff and there was no capacity to provide shadow coverage to assist the applicant;
- The restaurant was a fast-paced environment which did not provide the opportunity to rest or sit and take breaks;
- The employer was concerned about the applicant having a recurrence or new injury."
The complainant was approved for a CPP disability pension in October 2010, and made a successful application for LTD benefits from her insurer in September 2011. In early October of 2011, the complainant was terminated based on the respondent's assessment that she would not "be able to return to work, with or without accommodation" so the employment contract was frustrated. The complainant had not returned to work since her injury, at the respondent's or elsewhere.
What were the human rights complaints?
The complainant made two human rights applications that were later consolidated. She filed the first one in September 2011, before she was terminated. In this application she alleged discrimination based on the respondent's failure to fully cooperate with the return to work process in November 2009, mainly by not letting the RTW Specialist behind the counter to inspect the work location.
After the complainant was terminated, she complained of reprisal—prohibited under section 8 of the Ontario Human Rights Code—based not only on the termination itself, but also on the respondent's delay in submitting its statement for her LTD application.
What did the Tribunal find?
According to the Tribunal, the respondent failed to accommodate the complainant:
 There is no evidence before the Tribunal that the respondent engaged any process whatsoever to determine whether it could have accommodated the applicant in 2009. On this basis alone, the applicant has established that the respondent failed to accommodate her disability-related needs. The respondent's defence is the applicant was incapable of doing her job, with accommodation.
The Tribunal turned to section 17 of the Ontario Human Rights Code, which sets out a statutory duty to accommodate a person with a disability to the point of undue hardship, but also provides a defence of incapacity:
17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
The respondent met its onus to prove that the complainant was incapable of performing the job – even with the accommodation of working three hours a day for three days per week. The Tribunal found that none of the complainant's suggested accommodations were workable:
- Letting her sit down – Putting a chair in the grill area was a health and safety concern and also a fire hazard, as the grill and vats were in the same small area and other employees could trip over the chair and injure/burn themselves.
- Changing her role – Letting the complainant work as a "runner" to collect the food for drive-thru orders was not feasible at this McDonald's, which was too small to require a separate runner position.
- Hiring someone else to help – Having an extra staff person as a 'shadow' at the grill station was not feasible either, given the small number of employees at the store. On this point, the Tribunal stated: "The duty to accommodate does not require an employer to provide 'make work' or to create a job that is not productive or that, in the employer's view, does not need to be done."
The Tribunal concluded:
 On the basis of all of the evidence before me, I find the applicant was incapable of performing the essential duties of her job with accommodation in November 2009 because of the nature of her physical restrictions at that time. The respondent could have accommodated the applicant by providing three-hour shifts every other day, but even with this accommodation, the applicant was unable to perform the essential duties of her job. The respondent was not required to hire a shadow for the applicant and putting a chair in the grill station was not feasible. As such, the respondent has established the applicant was incapable of working in November 2009 with accommodation. This complaint is dismissed.
The Tribunal found that the respondent terminated the complainant based on frustration of contract, not because she made a human rights application. There was no evidence of a retaliatory intent.
General comments on the interplay between the doctrine of frustration and accommodation:
Determining when accommodation reaches the point of undue hardship is always a fact-specific and case-by-case exercise, and this decision provides an example of how the analysis might play out in practice.
Section 17 of the Ontario Human Rights Code governs when an employee will be found incapable of performing his or her job and lists several factors for a court or tribunal to consider in the accommodation analysis: cost; outside sources of funding; and health and safety requirements. These statutory factors echo some of the more well-known common-law factors established by the Supreme Court of Canada inBritish Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3:
- interchangeability of the workforce
- substantial interference with the rights of other employees
While human rights legislation in Atlantic Canada does not list factors for assessing undue hardship, as Ontario's does, each Human Rights Act contains a general provision on when discrimination will not be found in an employment situation:
- Newfoundland and Labrador: s. 14(2) says the prohibition on discrimination does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.
- New Brunswick: s. 4(8)(a) says that it is not discrimination where there has been the termination of employment or a refusal to employ because of a bona fide qualification based on the nature of the work or the circumstance of the place of work in relation to the physical disability or mental disability, as determined by the Commission.
- Nova Scotia: s. 6(e) says it is not discrimination where the nature and extent of the physical disability or mental disability reasonably precludes performance of a particular employment or activity.
- Prince Edward Island: s. 6(4)(b) says it is not discrimination in employment where disability is a reasonable disqualification.
In Gahagan, the complainant's three suggested accommodations (letting her sit down; changing her role; hiring someone else) were deemed unworkable, and the Tribunal agreed that her permanent inability to work meant that the employment contract was frustrated.
The test for undue hardship often intersects with the law on frustration of the employment contract, as it did in this case. The Supreme Court in Hydro-Québec acknowledged this intersection of contract law with human rights obligations, and stated:
"The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future."
What does this mean for employers?
The respondent in Gahagan did not actually do anything to accommodate the complainant. Nevertheless, the Tribunal was satisfied that the complainant's suggestions were not workable for her role at that particular restaurant's location, so she was incapable of fulfilling her job requirements even with accommodation. Employers should, of course, always take a proactive approach to accommodation of employees with disabilities to the point of undue hardship, and Gahagan helps in determining when that point will be reached.
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.