Aug 8, 2017

ONTARIO COURT OF APPEAL SUMMARIES (JULY 31 – AUGUST 4, 2017)

Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA 641 (CanLII)

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

D. Matson, for the appellant

D. Shanks and J. Lester, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Disability, Duty to Accommodate, Undue Hardship, Employment Contracts, Frustration, Human Rights Code, Fraser v. UBS, 2011 ONSC 5448

Facts:

The appellant worked for the respondent as an orthotic technician. He developed problems with his arms and hands as a result of the physical demands of his work. The respondent placed him on a medical leave of absence on August 18, 2010, and terminated his employment on January 22, 2013.

The appellant sued for wrongful dismissal and for damages under the Human Rights Code for his employer’s failure to accommodate his disability and for disability related discrimination. The trial judge awarded damages for wrongful dismissal equal to 15 months’ pay in lieu of notice, net of WSIB benefits the appellant received during that period, plus $10,000 in damages for breach of the Human Rights Code, finding that the disability was a factor in the respondent’s decision to terminate the appellant’s employment.

The appellant submits that the trial judge erred by refusing to award him additional damages for loss of income between August 18, 2010, and January 22, 2013. The respondent cross-appealed, submitting that the trial judge erred by failing to find that the employment contract was frustrated by the appellant’s disability.

Issues:

(1) Did the trial judge err in concluding that the respondent accommodated the appellant’s disability to the point of undue hardship?

(2) Did the trial judge err in finding that the employment contract was not frustrated by the appellant`s disability?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

(1) No. A determination of whether an employer has accommodated a disabled employee to the point of undue hardship must take account of the specific fact situation and apply common sense. An employer is not required to create a new position for the employee. An employer is not required to make fundamental changes to the employee’s job scope or working conditions. Hardship becomes undue when an employee is no longer able to fulfill the basic obligations of his employment position, despite accommodations.

The respondent made several efforts to accommodate the appellant`s disability, including changing the appellant`s work duties, modifying the required work pace and allowing discretionary breaks to rest and stretch. He was also allowed extensive paid time off to attend physiotherapy and medical appointments. However, the appellant’s condition continued to deteriorate and his productivity declined to the point where it was 50% or less of what it should have been. This resulted in the respondent being forced to pay the other technicians overtime pay, which was not sustainable for a specialized small business of this nature.

(2) No. The issue of whether the termination of the employment contract of a disabled employee is a wrongful dismissal or the frustration of the employment contract depends on the facts. Where an employee is permanently unable to work because of a disabling condition, the doctrine of frustration of the employment contract depends on the fact of the case. Where an employee is permanently unable to work because of a disabling condition, the doctrine of frustration of contract applies because the permanent disability renders performance of the employment contract impossible, such that the obligations of the parties are discharged without penalty. Frustration of contract is established if at the time of termination there is no reasonable likelihood of the employee being able to work with a reasonable time. The onus is on the employer to prove that the contract was frustrated.

The respondent did not establish that there was no reasonable likelihood of the appellant’s ability to return to work within a reasonable time. The respondent terminated the appellant’s employment only a week after sending a letter that said it would re-evaluate the appellant’s desire to return to work if and when he was medically cleared. However, the respondent terminated the appellant before he could produce evidence establishing that there was a reasonable likelihood of an ability to return to work within a reasonable time.

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