Alberta Human Rights – Higher Accommodation Standard?

Pratt v West Coast Reduction Ltd. (Head Office), 2023 AHRC 97 (Ahanonu) is a new Alberta human rights tribunal decision where an employee who could not have returned to work in his previous role had his employment terminated.  He could have handled other roles with some accommodation, and the Tribunal found the termination was discriminatory.

This case is important because the accommodation standards imposed by the tribunal on the employer are arguably more stringent than in a lot of the caselaw.

Facts

The following were the facts summarized by the AHRT:

• The complainant employee, Garry Pratt, worked for the respondent employer, West Coast Reduction Ltd., a meat processing plant, for about 40 years
• The employee held several different roles over that time, most recently as a Ticket Millwright and Welder
• The employee went on short term disability in 2017 due to back issues. He was in the process of gradually returning to full time work when he slipped on ice in 2018 and hurt his knee.  He went on to long term disability leave
• The employee had a knee surgery in 2019, but his knee was still “not great”. Eventually his LTD was cancelled because after a certain period the standard for coverage changes from “own occupation” to gainful employment, and they said he was capable of gainful employment
• The employee was not fit to return to work in his previous position at that time, but he provided medical information to his employer regarding restrictions and was seeking some accommodations
• The employer responded that it had no permanent positions that could accommodate his medical restrictions
• The employer claimed it had considered whether it had any positions that could work to accommodate the complainant, and concluded they could not, even if they had “re-bundled” the job duties
• The employee’s employment was terminated in April, 2020, purportedly for “just cause” due to frustration of contract – the employer alleged it was not able to find him a suitable role to accommodate him
• Apparently before and after termination of employment, the employer had several other positions open up that the employee hear about. The employee could have worked in at least one of these positions, with some modifications for accommodation, but the employer made an outside-hire instead
• The employee filed an Alberta human rights complaint alleging discrimination and failure to accommodate on the basis of physical disabilities

Analysis / Conclusion

The Tribunal had no difficulty concluding that the employee had a disability or that he suffered an adverse impact when his employment was terminated.  The Tribunal went on to find that the disability was a factor in the adverse impact, which leads to a finding of prima facie discrimination, reasoning as follows:

[68] […] I find that the complainant’s physical disability was a factor in the adverse impacts that he suffered. With the termination of the complainant’s LTD and the denial of his appeal, the complainant had exhausted all his options for support. Therefore, the expectation was that the complainant would have to go back to work, but he was unable to go back to work because there was no position for him at the respondent. This would not have been the situation if not for the complainant’s physical disability.

The Tribunal then went on to consider if the employer had met its duty to accommodate the employee to the point of undue hardship with reference to the Meiorin test.  The first step of that test is whether the employer adopted the standard at issue for a purpose rationally connected to the job.  In these circumstances, the Tribunal said the “standard” adopted by the employer was, “requiring the complainant to return to work after his LTD was refused and his appeal for the restoration of his Long Term Disability Plan was denied.”

The Tribunal found that the employer was aware of the complainant’s restrictions as well as his abilities, given his 40 year tenure and the variety of positions he had held there.  The Tribunal found that the complainant could have done most of the duties associated with several different positions, and found that it did not accept the employer’s evidence that it could not have re-bundled those duties.  So the employer failed on the first part of the Meiorin test.

After failing the first part of the Meiorin test, the Tribunal had little difficulty concluding that the employer had failed to accommodate the complainant to the point of undue hardship.  The tribunal noted in particular that there was no evidence of any steps taken by the employer in its alleged attempt to re-bundle duties, or evidence of undue hardship on the employer if it were to re-bundle duties.

The Tribunal declined to award damages for lost wages, as that had been dealt with in a separate settlement with the disability provider. 

However, the tribunal awarded general damages for pain and suffering in the amount of $40,000 for the discrimination experienced by the complainant.  This is on the higher end in Alberta, and the Tribunal stated that it was taking into account the employer’s conduct in making that award.

My Take

I would say its generally understood that an employer is not required to create a new position for an employee as part of the duty to accommodate.  The reasoning in this case blurs the lines a bit because there was evidence of other positions they needed to fill did exist at the relevant time, and evidence that with some accommodation the complainant would have been able to handle those positions.  The reasoning in this case could be taken more than one way: either as directly in line with the typical caselaw, or perhaps slightly more favorable to complainants than the typical caselaw.

Time will tell how it ends up being used and interpreted.

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