In Swan v Syncrude Canada Ltd., 2023 AHRC 77 (Ahanonu), the Alberta Human Rights Tribunal found prima facie discrimination on the basis of mental disability (PTSD) when Syncrude failed to accommodate the complainant, but declined to hold Syncrude responsible in the circumstances.
This case is important because it illustrates a concept that comes up sometimes in disability cases called “frustration” of contract.
Facts
The following were the facts summarized by the AHRT:
- The complainant Michael Swan was an employee of Syncrude
- Swan suffered from Post Traumatic Stress Disorder (PTSD)
- Swan went on medical leave in May of 2016 as a result of his PTSD. He was on paid leave through Syncrude’s Temporary Disability (TD) benefits plan
- In June of 2017, Mr. Swan also started receiving WCB benefits. WCB started Mr. Swan in a treatment program called the Traumatic Psychological Injury (TPI) program
- Syncrude requested that the complainant attend for an Independent Medical Examination (IME), and he did so in November 2017
- The complainant continued in the TPI treatment program until February 7, 2018
- The complainant did not complete the enrolment in a therapy Syncrude said was required under the TD benefits plan
- On February 13, 2018, Syncrude informed Mr. Swan that he was to report to work the next day in Fort McMurray
- He did not show up, so Syncrude suspended his TD benefits
- Syncrude advised him that it would hold his position till August of 2018, and if he did not show up for work, Syncrude would deem him to have resigned his position. There were several potential positions available which would provide some level of accommodation of the complainant’s PTSD
- The complainant did not return to work in August, 2018. The complainant’s prior legal counsel (not the same as legal counsel at the hearing) sent a letter near the end of this period which stated that the complainants restrictions were “permanent restrictions that prevented him from ever working at any Syncrude site”
- The complainant’s employment was terminated in September, 2018
- Mr. Swan filed a human rights complaint, alleging discrimination on the basis of mental disability, contrary to Section 7 of the Alberta Human Rights Act
Analysis / Conclusion
The AHRT set out the well established test for prima facie discrimination as follows:
[29] The first component in the analysis is whether a prima facie case has been made out by the complainant. In Moore v British Columbia (Education) (Moore), the Supreme Court outlined the elements that the complainant must establish to prove his case.[8] The elements are that:
(a) He has a characteristic protected from discrimination by the Act;
(b) He experienced an adverse impact; and
(c) The protected characteristic was at least a factor in the adverse impact.
The AHRT concluded that the complainant had established prima facie discrimination, because (1) he had a disability (2) his suspension of benefits and termination of employment were adverse impacts and (3) the disability was a factor in the adverse impacts, because his participation in the TD plan was due to his disability, and his termination of employment was due to his inability to return to work – because of his disability.
The AHRT then went on to determine whether Syncrude could escape liability for discrimination on the basis that their requirements were bona fide occupational requirements, under Section 7(3) of the AHRA. In considering this, the AHRT utilized the Meiorin test which requires a respondent to prove that (1) It adopted the standard for a purpose rationally connected to the performance of the job (2) It adopted the particular standard with an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, and (3) The standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristic of the claimant without imposing undue hardship on the employer.
The AHRT had little difficulty finding that the first two branches of the test were made out.
Regarding the third branch, the AHRT found that continuing the TD benefits plan would not on its own have been an undue hardship on Syncrude, given that the costs “would be minimal, considering the size of the respondent and its overall revenue base.”
Nevertheless, the AHRT found that it would still have been undue hardship for Syncrude to accommodate him in this case, because of the letter on July 31, 2018 from the complainant’s lawyer at that time which indicated that the complainant had permanent restrictions preventing him from ever working at a Syncrude site again. This event frustrated the employment contract.
My Take
This case is heartbreaking without a doubt, but the principles in it have been applied before.
If the complainant’s future inability to work on a Syncrude site were not stated to be a certainty, it would have been much harder for Syncrude to take the position that the employment contract was frustrated. There are many disability cases considering the principle of “frustration”, but where ability to return to work is unclear, most of those cases would require a much longer period of sitting on leave (whether paid or not) before an employer could claim the employment contract period has been frustrated.
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