In reasons released on May 6, 2014, the Alberta Court of Appeal
dismissed an appeal by the Telecommunications Workers Union in
respect of an unsuccessful judicial review application to question
a labour arbitrator award. The Arbitrator had determined that TELUS
Communications Inc. had no duty to accommodate a probationary
employee who failed to raise his disability (which was not readily
apparent) in an assertive way until days before the end of his
probationary period, at which point he was terminated. The
Arbitrator reasoned that the Union had to establish actual or
constructive knowledge of the Grievor's disability as part of
its prima facie case in accordance with the Alberta Court
of Queen's Bench decision Burgess v Stephen W Huk
Professional Corporation, 2010 ABQB 424. The Arbitrator also based her
decision on the alternative basis that TELUS could not have
accommodated the grievor without undue hardship given unrefuted
medical evidence that no accommodation could be offered which would
enable the grievor to perform the call center role for which he was
TELUS argued that the Arbitrator's ruling, and the rationale
of the Court in Stephen P Huk Professional Corporation,
was consistent with the general principle that an employee is
required to bring a non-apparent disability to his employers with
reasonable attention before a duty to accommodate is triggered (see
Central Okanagan School DistrictNo 23 v Renaud,
 2 SCR
970). The Union argued that, by requiring the Grievor to prove
that TELUS had actual or constructive knowledge of his disability,
the Arbitrator had wrongly added a fourth element of intention to
the three-part prima facie test for discrimination,
namely: (i) a protective characteristic; (ii) adverse impact; and
(iii) a nexus between the protected characteristic and the
adverse treatment (see Moore v Ministry of Health, 2012 SCC
The Court of Appeal dismissed the Union's appeal and upheld
the Arbitrator's decision. In doing so, it reasoned as
The question of the proper test for discrimination was a
question of human rights law reviewable on a correctness standard.
The question of whether TELUS could have accommodated the grievor
short of undue hardship was a question of mixed fact and law,
reviewable on a reasonableness standard.
The Arbitrator and the reviewing Judge had misstated the test
for prima facie discrimination by adding a fourth element
of knowledge to the basic three-part test set out in
Despite the error, the Arbitrator had reasonably determined
that the Grievor could not have been accommodated without undue
hardship. The Arbitrator had considered evidence led by TELUS and
the Union of other positions in making her decision, which was
consistent with other arbitral awards in human rights cases dealing
with probationary employees.
There is no procedural right to accommodation once that it is
determined that substantive accommodation is not possible without
undue hardship. (Canada (AG) v Cruden, 2013 SC 520).
The underlying case raised a number of interesting human rights
issues, most notably whether an employee is required to bring a
non-apparent disability to his employer's reasonable attention
in order to trigger a duty to accommodate. Regrettably, the Court
did not address this issue squarely in its reasons, simply stating
that employer knowledge, actual or constructive, is not a part of
the prima facie test for discrimination. This leaves it
open to employees and their unions to argue that failure to raise a
disability is not fatal to a human rights complaint, which is
rightly a matter of significant concern for employers.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
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