The Supreme Court of Canada has just ruled in the case of
Hydro-Québec, unanimously reversing the
decision rendered by the Court of Appeal of Québec in
February 2006. In doing so, the Supreme Court upheld the
dismissal of an employee as a result of excessive absenteeism
due to an illness, after several unsuccessful attempts to
In this case, the plaintiff had held the position of Sales,
Rates and Commercial Programs Clerk for approximately
twenty-four (24) months at the time of her dismissal by
Hydro-Québec. Suffering from mixed personality disorder
with borderline and dependent character traits, the employee
had been absent from work for extended periods of time on
several occasions during the seven (7) years preceding her
termination. As a result, the employer had proceeded to
terminate the plaintiff's employment due to her high
level of absenteeism and her inability to perform her work
duties on a regular basis for the reasonably foreseeable
future. In order to make this decision, the employer relied on
the opinion of two (2) experts in psychiatry who believed that
the plaintiff's work attendance would remain a problem
in the future.
The Union contested the plaintiff's dismissal by way
of a grievance and alleged that the employer did not fulfill
its duty to accommodate.
The parties agreed that the plaintiff was suffering from a
handicap, namely from a personality disorder resulting in
episodes of depression and periods of absenteeism, sometimes
for extended periods of time.
Pursuant to the Charter of Human Rights and
Freedoms (Québec), an employer has an obligation to
accommodate an employee suffering from a handicap, up to the
point of undue or excessive hardship.
The arbitrator had initially rejected the grievance and the
Superior Court of Québec had confirmed the decision of
The Court of Appeal, while recognizing that the employer had
demonstrated much patience and remarkable tolerance towards the
plaintiff, nonetheless concluded that Hydro-Québec
failed to establish that it had considered all reasonably
possible accommodation measures when it terminated the
plaintiff's employment. The Court of Appeal held that
Hydro-Québec could have created a part-time position for
the plaintiff, as had been suggested by her treating physician
at the time of her dismissal.
The Supreme Court, however, reversed this decision by
indicating that the standard formulated by the Court of Appeal
to evaluate undue hardship was erroneous. According to the
Supreme Court, if the characteristics of an illness affect the
proper operation of a business in an excessive way or if the
employee with such an illness remains unable to work for the
reasonably foreseeable future, even though the employer has
tried to accommodate him, the employer will be deemed to have
fulfilled its obligation to accommodate. Moreover, the Supreme
Court concluded that the duty to accommodate ceases when the
fundamental obligations of the employment relationship cannot
be fulfilled by the employee in the foreseeable future.
The Supreme Court also affirmed that the Court of Appeal
mistakenly concluded that the duty to accommodate should be
assessed at the time that the decision to terminate the
plaintiff was made. Rather, the Supreme Court declared that in
order to determine if an employer successfully demonstrated an
undue hardship, a global evaluation of the
accommodation measures should be performed that takes into
account the entire period during which the employee was
absent. Therefore, the measures taken in the past to
attempt to accommodate the plaintiff are relevant in order to
determine if the employer has fulfilled its obligation to
This decision is good news for employers faced with
situations of excessive absenteeism from its employees due to a
physical or psychological handicap as it imposes some limits on
an employer's duty to accommodate.
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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.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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