Alberta Human Rights Commission Reaffirms Duty to Cooperate

In Thakor v Loblaws Inc., 2025 AHRC 75, the Alberta Human Rights Commission (the “Commission”) dismissed a complaint on the basis that the Complainant employee failed to cooperate with the Respondent employer throughout the accommodations process following a workplace injury that ultimately resulted in her termination.

While the case did explore some procedural issues as they relate to the role of representatives in the human rights process and timeline issues, the case ultimately turned on whether the Complainant was communicating appropriately with and providing relevant documentation to the Respondent, and whether the Complainant’s disability was a factor in the Respondent’s decision to deem her employment abandoned. The decision to dismiss the complaint in this case reaffirms that the duty to accommodate is a multi-party process, and that Complainants also have obligations to act reasonably and cooperate throughout.

Facts

• Thakor, the Complainant, was a part-time employee of Loblaws Inc., the Respondent, where she had been working as a part-time salad bar clerk since December 2011.
• On October 18, 2018, the Complainant experienced a work-related injury to her right shoulder/elbow/arm from repetitive motions.
• On October 22, 2018, the Complainant was unable to work through the injury, and left work that day – she did not return to work again after that date.
• In and around this time, the Complainant made a WCB claim for the workplace injury (which was initially denied but eventually was accepted at a later date).
• Following the October 18, 2018, injury, the Respondent was provided with medical notes for the Complainant’s absences dated October 24, November 27, December 5, 11, and 19, 2018.
• These medical notes indicated that the Complainant was unable to do or was limited in doing certain tasks, like lifting, pushing, and pulling, but was able to do other tasks like sitting, standing, walking, bending, squatting, etc.
• As a result of these medical notes, the Respondent made offers of modified work in line with the medical recommendations to facilitate the Complainant’s return to work on November 1, 8, and December 4, 2018.
• During this same period, the Respondent also called and left several voicemails with the Complainant.
• On December 4, 2018, the Respondent advised the Complainant via letter that she was absent from work without sufficient medical information and reminded her of her obligation to maintain contact with the employer.
• The Complainant did not respond to any of the voicemails or any of the offers of modified work and did not communicate directly with the Respondent again after November 1, 2018.
• The Complainant’s husband, however, stepped in at this time and effectively took matters over for the Complainant, including speaking on the telephone for her.
• The Respondent also continued to receive medical reporting regarding the Complainant via the WCB and its third-party claim support – all of which indicated the Complainant was able to return to work on modified duties.
• On February 22, 2019, having received no word from the Complainant, the Respondent asked the Complainant’s union to reach out for a wellness check.
• The union advised that it had connected with the Complainant, that she was fine, and that she had committed to the union that she would call the Respondent herself to confirm her well-being – the Complainant never confirmed.
• On March 17, 2019, the Respondent wrote a letter to the Complainant indicating that they had made several attempts to contact her, that she was on an unapproved leave of absence, and that if they did not hear from her by March 24, 2019, they would be processing her termination as job abandonment.
• On March 21, 2019, the Complainant did respond via legal counsel, and the Respondent did not take any further action regarding the Complainants employment status and resumed attempts to accommodate her.
• From January to April 2020 the WCB made several efforts to connect with the Complainant, seeking her attendance in important return work meetings – the Complainant herself did not respond throughout this period, and despite her husband on one occasion warranting that she would participate in her full recovery with WCB, she did not get back to anyone at the WCB or otherwise.
• Throughout this period the Respondent made several more offers of modified work to the Complainant that also went unanswered.
• On May 15, 2020, the Respondent was notified by WCB that the Complainant’s claim was inactivated for her failure to contact the WCB.
• At this same time, the Respondent made efforts to have the Complainant’s union try contacting the Complainant again, who advised that they had not heard from her for “many months” – the Complainant never replied to the union.
• On June 30, 2020, the Respondent wrote another letter delivered via FedEx to the Complainant summarizing what had occurred to date, and that they required updated medical records no later than July 10, 2020 – the Complainant did not accept the delivery of the letter at her home and never picked it up.
• On July 20, 202 after several more attempts to contact the complainant, the Respondent asked the local police to carry out a welfare check on the Complainant – the police confirmed she was at home and well.
• On July 22, 2020, the Respondent sent the Complainant a letter indicating that her employment had been terminated on the basis that she abandoned her position for failing to provide the employer with the appropriate supporting documentation and acceptable communication during her absence.
• On July 22, 2021, the Complainant filed a complaint with the Commission alleging that the Respondent discriminated against her on the ground of physical disability when they terminated her employment pursuant to section 7 of the Alberta Human Rights Act (the “Act’).

Analysis / Conclusion

The Tribunal considered the role of representatives in Tribunal hearings.  The husband of the Complainant had taken on the role of complainant representative throughout the human rights process, who had asked the Commission if he could respond to questions on behalf of his wife, among other accommodations requests. The Commission confirmed that as a representative, the husband may ask questions and make submissions at the hearing on behalf of the Complainant, but the Complainant herself still must be present and give evidence as a witness. Further, any accommodation requests must be supported by medical documentation.

The Commission next noted that while the Commission is strict on the 1-year limitation period prescribed by the Act, evidence about what occurred prior to July 22, 2020 was still allowed to be considered, but for contextual purposes only.

The main issue for the Commission to determine was whether the Complainant was discriminated against on the basis of disability contrary to section 7 of the Act when the Respondent deemed the Complainant to have abandoned her employment, thereby terminating the employment relationship.

In review of the issue, the Commission reviewed the test for prima facie discrimination as set out in Moore v British Columbia (Education), 2012 SCC 61, which requires the Complainant to show:

1. They have a protected characteristic under the Act,
2. They experienced a negative or adverse impact, and
3. Their protected characteristic was a least a factor in the adverse impact they experienced.

The Respondent in this case conceded to the first and second steps of the above test – namely that the Complainant did have a physical disability (should/elbow/arm injury), and that she did experience an adverse impact when the Respondent deemed her to have abandoned her job. Thus, the crux of the issue hinged on whether the Complainant’s disability was at least a factor in her job loss.

The Complainant’s only position at the hearing was that the Respondent failed in its duty to accommodate her. She further did not adduce any evidence that directly supported her claim, or the reason(s) for her failed communication. The significant documentary evidence that was adduced by the Respondent however, made it clear that the Respondent communicated to the Complainant on multiple occasions outlining its expectations in terms of communication, medical documentation requirements, and active participation in the return-to-work process following her work-place injury. Further, the Commission noted that while the Complainant’s husband did take on some aspects of managing her work absence, the Complainant’s obligations with respect to her communication and attendance at work remained her own. Finally, the Respondent’s termination letter was sufficiently clear that the reason for her termination was due solely to her failure to engage in reasonable communication during her absence.

As a result, the Commission found the Complainant had not met her burden of establishing that her disability was at least a factor in her termination and therefore had not made out a claim of prima facie discrimination.

Despite the foregoing however, the Commission also explored the alternative – if the Complainant had established that her disability was at least a factor in her termination, did the Respondent fulfill its duty to accommodate/did the Complainant fulfill her duty to cooperate?

The Commission reviewed the case law on the subject, which provides that the search for accommodation is “a multi-party inquiry”. In the Complainant’s approximately 21-month absence, the Respondent made numerous attempts to accommodate the Complainant with modified work plans derived from medical reports. At the hearing, the Complainant took the position that none of these offers of modified work were reasonable which was premised on the notion that the Complainant remained unfit for any work whatsoever following her injury.  

The Commission ultimately found the Complainant’s position to be based on a misinterpretation (whether purposeful or not) of the medical evidence, which was patently clear in that she was able to perform many modified duties post-injury. The Commission concluded that the Respondent had made reasonable accommodation efforts, and that the Complainant failed in her duty to cooperate by not communicating with the respondent, not accepting or attempting to engage in modified duties, or in not obtaining further medical records demonstrating the she could not engage in those modified duties, if that were the case.

Consequently, her termination was not discriminatory, and the complaint was dismissed.

My Take

This decision serves as a good reminder that the accommodations process does not fall solely on the shoulders of one party, in this case, the employer. Rather, those seeking the accommodation(s) are also expected to actively participate in the process, which includes reasonable communication efforts, engaged dialogue on modified work duties, and often, the furnishing of medical reports and records. Importantly, those seeking accommodation cannot sidestep their duty to cooperate by offloading communications to another party in the absence of supporting documentation, the obligation to cooperate remains their own.

Ultimately, the facts in this case clearly indicate that the Complainant was not engaged whatsoever in the accommodations process, and even if she had misinterpreted the medical evidence regarding her fitness for work, it still does not excuse her failure to communicate with her employer over the 21-month period she was absent from work. It is not surprising the Commission reached this decision.

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