In Lai-Terke v EFW Radiology, 2026 ABCJ 114 (Higa), the Alberta Court of Justice dismissed a claim for wrongful dismissal where a disabled employee was off work for over 3 years on medical leave and sought accommodation into a different job position.
This case is important because there are few Alberta civil court decisions considering frustration of employment contracts and human rights accommodation obligations. These issues are complicated and guidance is always helpful.
Facts
The following were the pertinent facts summarized by the ABCJ:
- The plaintiff employee worked for a the defendant radiology clinic as an Ultrasound Technologist for about 6 years before going on medical leave
- Approximately 80% of her role was performing ultrasound exams
- About 3.5 years after going on medical leave, the employee sought to return to work
- Medical documentation indicated that she would not be able to return to her pre-disability duties, but that would still be capable of working another job – that of a Medical Resonance Imaging Technologist (“MRI Tech”). An MRI Tech position was more suitable for her, given her injuries
- Medical documentation also indicated that her injuries / restrictions were permanent
- The employee sought to return to work with the employer, but as an MRI Tech instead of her pre-disability role of U/S Tech
- The employer said it did not have any MRI Tech positions available. It took the position that the employment contract was frustrated and therefore at an end
- The employee sued for wrongful dismissal, including an allegation that the employer failed to accommodate her disability
- The employer defended, arguing frustration of contract and that it was not obligated to accommodate her into a different position than the one she had held
- Within 6 months of her end of employment, she took a position as U/S Tech elsewhere
Analysis / Conclusion
Judge Higa provided a helpful summary of the law of frustration of employment contracts in the face of a permanently disabled employee. This included that where the disability prevents an employee from fulfilling their job functions, this can qualify as frustration of contract only where the disability is permanent. Very importantly, whether the contract is frustrated is assessed at the time of termination.
On the basis of the medical documentation in evidence, the Court concluded the employment contract had indeed been frustrated.
The Court then considered whether the employer was nevertheless obligated to accommodate the plaintiff’s disability by either modifying her role for her restrictions or offering her an alternative role as an MRI Tech. The Court described the test for this as follows:
[62] Discussion relating to the duty of an employer to accommodate Ms. Lai-Terke, as described in Hydro-Quebec and Doerth, must be analyzed in the context of Ms. Lai-Terke’s actual employment with EFW, that being a sonographer.
[63] Hydro-Quebec states an employer’s duty to accommodate is to arrange an employee’s workplace or duties to enable an employee to do his or her work. However, an employer’s duty ends when the employee cannot fulfill basic employment obligations.
The employee noted the employer made no accommodation effort and no plans were made to put her into an alternative position.
The Court found that the employer was entitled to rely on the medical information that was available at the time of termination, which indicated that the plaintiff was permanently disabled and unable to fulfill her job duties.
The Court found that no accommodations were possible given her permanent disability restrictions and commented as follows regarding the plaintiff’s argument:
[68] […] that submission is contrary to the statement in Hydro-Quebec where the Supreme Court states, “…the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment…”.
[69] Further, as noted in Doerth, accommodation does not require an employer to “…create an entirely new position which it does not need.”
In the result, the Court found that the duty to accommodate did not require the employer to “create a new employment relationship and change the employment position”. Accordingly, the employer did not fail to accommodate the plaintiff.
My Take
Quite a few employees find themselves in a situation similar to that of the plaintiff here. It can be a very challenging position to be in.
Its fairly well established that an employer is not required to create a new position for an employee. However, an employer is required to accommodate disabilities to the point of undue hardship. So for instance, suppose an employee needed an expensive air filter due to chemical sensitivities. As long as they can still do their job with that accommodation, the question is not whether it’s a new job, but whether it would be undue hardship to accommodate the employee.
It is often difficult to determine whether something is truly a “new position” or just a required accommodation of an existing position, but the distinction is critical. If it amounts to a new position, even where it would be relatively easy to accommodate it, it will likely not trigger the undue hardship accommodation standard, which can be very difficult to meet.
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