Canada: Human Rights Tribunal Reiterates Need For Evidence When Refusing To Accommodate

Last Updated: May 6 2019
Article by Diane Laranja

Bottom Line

The Human Rights Tribunal of Ontario (the "Tribunal") found that an employer violated the Ontario Human Rights Code (the "Code") when the employer concluded, without evidence, that an employee was unable to perform the essential duties of his position after hip replacement surgery.

Employee sought to return to work gradually after hip replacement

The employee was working as a maintenance technician at the employer's Hamilton steel mill when he underwent hip replacement surgery due to osteoarthritis. Approximately six months after the surgery, the employee's medical practitioners cleared him to return to work, albeit gradually, until he could undergo surgery to his other hip.

The employee's medical practitioners opined that the employee could work his regular eight-hour shift at his own pace and as tolerated. However, they said he should not be "on-call" – that is, available to come in after hours to perform urgent repairs. This restriction would allow the employee to rest at the end of the day and between shifts.

Employer insisted the employee could not perform his job

The employer initially accommodated the employee's restrictions, including the employee's inability to work on-call.

Three weeks into the employee's graduated return to work, however, the employer arranged a follow-up meeting with its medical services nurse. At the meeting, the employee's supervisor indicated that, in fact, the department was not able to accommodate the employee's restrictions. The supervisor then scheduled another meeting with the employee to review his medical documentation and to require the employee to first meet with the employer's in-house physician.

At the subsequent meeting, the supervisor reiterated that the employee could not be accommodated in his own position. He began to look across the plant for other positions for the employee. He also gave the employee forms to apply for short-term disability. Because the supervisor was unable to find an alternative position, the employee remained off work on short-term disability until after his second hip replacement surgery.

The Decision: The employee could have been accommodated; there was no reason to look for alternative positions

The key question before the Tribunal was whether the employee could have been accommodated from the time that he was able to return to work on a graduated basis until his second hip replacement surgery.

It is important to note that the employer agreed that it could in fact accommodate the employee's restrictions if the only restrictions were an inability to work at his own pace and to be on-call. But it seemed that the supervisor refused to accommodate the employee to work in his original position because of his own beliefs of the employee's medical condition and restrictions.

Particularly, the employer argued that it had health and safety reasons for not allowing the employee to perform his job. The employee was walking with a limp at the time, which the supervisor felt could cause the employee further injury. The supervisor testified that the uneven ground and potential hazards in the workplace posed unacceptable health and safety risks to the employee while he favoured his hip.

The Tribunal agreed that the employer may be obligated to determine whether an employee continuing to work may constitute a health and safety issue. However, it found that the supervisor's concern in this case was not based on any medical evidence, restriction, or recommendation. It was based solely on the employer's observation that the employee was limping.  If the employer was concerned about the employee's health and safety, then it ought to have raised these concerns with the employee directly. And if the employer had done so here, it would have learned that the employee's surgeon had actually turned his mind to this issue and concluded that it was better for the employee's recovery to continue working.

The Tribunal concluded that the employer violated its procedural and substantive duties under the Code. It stated:

[...] I find that the respondent has not met its obligations under [...] the Code. It did not properly consider the medical evidence before it, and reached conclusions respecting the applicant's abilities based on casual observations and selective, narrow interpretations of medical documents, without seeking clarification, and without involving the applicant in the process. The respondent has not been able to establish that the applicant could not do the essential duties of his job short of undue hardship.

As a result, the Tribunal ordered the employer to pay the employee over $16,000 in lost wages and an additional $15,000 as monetary compensation for injury to dignity, feelings, and self-respect.

The Tribunal also ordered the employer to review and revise its current policy addressing disability accommodation and to provide training on disability accommodation for all front-line supervisory staff at least once every three years.

Check the Box

We recently wrote an article on the importance of developing an accommodation plan based on objective and accurate medical evidence.

This new case serves as another reminder that employers are well-advised to involve employees in the accommodation process, particularly if the employer has a concern about the employee's ability to perform regular or accommodated duties.

As a refresher, employers should:

  • Involve the employee with the disability in the accommodation process: If you have a concern about an employee's ability (or inability) to perform a task, then discuss this concern with the employee and allow him or her to address it. This will likely require allowing the employee to consult with his or her treating medical practitioner in order to respond directly to the stated concerns, including with recommendations on how to address them.
  • Do your own research if necessary: Wherever possible, an employer should base its response or directions on objective and medically supported data, not casual observations and assumptions. If the employee's treating medical practitioner is unwilling or unable to co-operate or address your concerns, then consider seeking a medical or scientific opinion from a third party.
  • Train your front-line supervisors: Supervisors who are tasked with assessing medical information and determining whether an employee can be accommodated in the workplace should be trained on the employer's procedural and substantive duties under the Code. The training program should include the medical information an employer is entitled to receive, how to properly assess such medical information, and the procedure by which the supervisor ought to determine whether, and how, the restrictions may be accommodated, short of undue hardship.

Citation: Skedden v. ArcelorMittal Dofasco 2019 HRTO 627

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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