Hansen v The City of Calgary, 2022 AHRC 112 is a new Alberta Human Rights Commission case where an employee failed to establish discrimination on the basis of employment practices. Specifically, the employee unsuccessfully argued the City of Calgary refused to accommodate her physical disability in her return to work (“RTW”) and then forced her to resign.
This case provides important guidance for complainants and employers about the nature of the duty to accommodate in human rights.
Facts
The following are the pertinent facts found by the Alberta Human Rights Commission:
- The complainant was a long-term employee with City of Calgary
- In 2013, the complainant was transferred to the parks department, where she believed she experienced harassment and bullying, and that this contributed to her development of a mental disability
- The complainant was on unpaid leaves of absence from March 2017 to July 2018. Then from August 2018 to May 2019 the complainant unsuccessfully attempted to return to work and explored accommodation options, and then retired
- The complainant alleged discrimination in employment on the basis of mental disability had forced her to go on the leaves and ultimately retire
- The complainant filed the complaint on March 28, 2018 and continued to work there for more than a year prior to retirement
- The tribunal found that the complainant had a mental disability, which was protected and was the main focus of the compliant
- From March 2017 to July 2018, the complainant personally believed she could have returned to work if the employer had accommodated her to position outside of the parks department
- The complainant did not provide any medical documentation in the period of March 2017 to July 2018 suggesting she was fit to return to work
- The complainant did return to work for a short time in late 2018 early 2019, but it was unsuccessful
While on leave again and short-term disability, the complainant requested to go back to her old work environment. She did not provide further medical documentation at that point, and ultimately retired.
Analysis / Conclusion
The first important finding in this case was that the complainant was allowed to use potential evidence of discrimination which occurred after she filed the discrimination complaint (but before the hearing obviously). AHR Tribunal Member Kathryn Oviatt found that the new potential evidence was “of the same nature and directly connected to” the allegations of discrimination which were detailed in the complaint, so the evidence was allowed to be considered in the hearing.
Employers are obligated to accommodate disabilities to the point of undue hardship. Part of that duty is the procedural duty to think about and consider accommodation options. In this case, the AHRT provided important guidance on the duty to accommodate and the procedural aspects of that duty. The complainant personally believed that she could have returned to work in the period of March 2017 to July 2018 if the employer had accommodated her to a position outside the parks department. However, the AHRT found that the procedural aspects of searching for accommodation options had not even been triggered yet at that point because the complainant had never supplied medical documentation indicating she could return to work in some capacity. The AHRT noted as follows regarding the procedural aspects of the duty to accommodate:
[41] […] It makes no sense for a respondent to search for accommodation options without knowing when the employee will return or what restrictions they will require. […]
[…]
[51] As outlined above, I found as fact that the complainant was not fit to work between March 2017 and July 2018 when she was on unpaid medical leaves of absence. I also found that an employee must be fit to work, including with restrictions, for the procedural aspect of the duty to accommodate to explore options for return to work to be triggered. There is no independent procedural duty to accommodate when substantive accommodation is not possible. Procedural steps to determine what accommodation is possible are often critical to meeting the respondent’s duty to accommodate. However, if the complainant is not fit to work in any capacity, no accommodation, other than a leave of absence, is possible.
The Complainant did later return to work, in line with her doctor’s accommodation recommendations. The Tribunal found that the new work environment supplied by the employer at that point was a reasonable accommodation. However, the complainant’s return to work was not successful, and she was off on leave again shortly after returning and remained on leave for several months. The complainant asked to be returned to her former position, but had not provided any further medical information supporting that. The complainant retired shortly after that and claimed that the employer’s refusal to accommodate forced her retirement. The Tribunal found that the employer had not failed to accommodate in those circumstances.
My Take
This case is really interesting from a human rights law point of view and should serve as an important lesson for complainant’s and complainant counsel on nature of the “accommodation two-way street”. Accommodation requires meaningful participation by both the employee and the employer.
To me, this case stands for the proposition that the procedural obligations on an employer under the duty to accommodate can be substantial, but those procedural obligations do not get triggered until the complainant provides a medical note indicating some fitness to return to work.
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