Canada: Human Rights Tribunal Confirms Employers Continue To Drive The Bus

In Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147, the B.C. Human Rights Tribunal revisited what accommodation looks like in the employment context.  The key reminder for employers and counsel is that the proposed accommodation need not be perfect – when there is more than one reasonable option for accommodation, "the employer is entitled to choose among them".  The Tribunal also attempted to clarify the legal framework for discrimination on the basis of family status in British Columbia, but may only have muddied the waters further.

Facts

The complainant, Mr. Adair, had suffered from epilepsy since he was a teenager, although his seizures were largely controlled with medication.

At the time of the hearing, Mr. Adair had been employed by the Forensic Psychiatric Services Commission for 13 years, most recently as a Forensic Security Officer ("FSO"). His job responsibilities included providing safe and secure escorts of all high risk persons in custody at the Forensic Psychiatric Hospital.  At the relevant time, all FSOs worked a combination of three shifts:  day, evening and night.  Driving persons in custody to court hearings and medical appointments was a large part of the FSO duties during the day shift, and FSOs were only infrequently required to drive a vehicle on the evening or night shift.  Healthcare providers and courts were usually only open for business during daytime hours.  The Commission required that FSOs who drive persons in custody have a Class 4 (bus) driver's license.

On January 6, 2013, Mr. Adair suffered a seizure and went off work. As a result of his seizure, Mr. Adair lost his Class 4 and Class 5 driver's licenses.  In October 2013, he began discussions with his employer about a return to work, planned for January 2014.  However, Mr. Adair was prohibited from reclaiming his Class 4 license for a period of five years following his seizure, and would therefore not have a Class 4 license when he returned to work.

The parties engaged in accommodation discussions, and the employer eventually proposed an accommodation where Mr. Adair would work primarily night and evening shifts, which would eliminate the need to drive. Mr. Adair, wanting to work day shifts in order to see his children, alleged discrimination on the basis of disability, although his complaint later took on a family status dimension as well.

Accommodation

The Tribunal characterized an employer's burden to find an accommodation in the following way, which it stressed was more nuanced than "undue hardship" alone:

I reiterate that the object of the exercise in accommodating an employee with a disability is to ensure that an employee can work if the employee is able, and to remove barriers to continued and productive employment where that can be done without undue hardship.

After applying that standard, the Tribunal found that the employer's accommodation in this case was reasonable.

First, the employer engaged in a model accommodation process. The employer met with Mr. Adair on several occasions to explore his limitations.  The employer was also flexible, changing its initial position in response to new medical information provided by Mr. Adair.  Mr. Adair's preferred solution, which involved assuming some of his supervisor's job responsibilities, might have been a further reasonable option, but the Commission was not required to adopt it.

Family Status

While Mr. Adair did not plead discrimination on the basis of family status, the Tribunal found that if he had, his complaint would still have failed. The Tribunal took that step because the evidence focused largely on the impact on Mr. Adair of having to work night shifts and not being able to see his young children.

The Tribunal noted that the law on discrimination on the basis of family status in British Columbia is currently "unsettled".

The Tribunal rejected the controversial approach to discrimination on the basis of family status from Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260.  The Tribunal did this, it said, in light of the SCC's recent comments in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 to the effect that "adding adjectives like 'material' or 'significant' to the elements of a prima facie case of discrimination is unnecessary".

Interestingly, the Tribunal instead preferred the approach from Canada (Attorney General) v. Johnstone, 2014 FCA 110 with respect to discrimination on the basis of family status:

[T]he individual advancing the claim must show: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

It is an open question whether other B.C. administrative tribunals and courts will so readily toss aside the Campbell River decision.

In any event, on the facts of this case, the Tribunal found that discrimination on the basis of family status was not made out:

Whether I apply the approach taken federally, in Ontario, or in Alberta, I reach the same conclusion. Mr. Adair would be unable to establish discrimination on the basis of his family status because the scheduling did not interfere with his obligation to provide child care or any other legal responsibility for his children, and his ability to continue to perform his job.

Lessons for Employers

This decision is good news for employers. Employers remain in the driver's seat when it comes to designing an accommodation – accommodation needs not be an employee's preferred option, provided the accommodation is reasonable.  The following passage is illustrative of the Tribunal's balanced approach:

Provided the accommodation offered is reasonable, an employee cannot insist on a perfect solution, or one that the employee would prefer. If the proposed accommodation is not designed to balance both the employer's and the employee's reasonable needs, but is a grudging attempt to provide the minimum accommodation possible, it may be found not to be reasonable or to offend the second Meiorin question relating to good faith.

Despite the Tribunals decision, the law on family status discrimination remains unsettled in British Columbia. Employers and counsel should continue to proceed with caution.

Previously printed in the LexisNexis Labour Notes Newsletter.

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