Osgoode Labour & Employment Law Society

Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000

Introduction to the Duty to Accommodate

Duty to Do the Impossible?  Duty to Create a Job?  ”Accommodation” to the point of excess malingering? (air-quotes included)

These cynical, yet all too common takes on the duty to accommodate demonstrate the frustration employers go through in trying to meet their legal obligations with respect to disabled employees.

But it’s a big problem – did you know that 54.8% of all human rights claims filed last year in Ontario cited “disability” as the cause for complaint? 

An employer’s duty to accommodate comes from a number of places, including case law (see Meiorin) and legislation (see Ontario’s Human Rights Code and Workplace Safety and Insurance Act).  The gist of the duty calls for employers to consider employees in light of their true abilities, which means making every reasonable effort to individually accommodate their needs, short of undue hardship.

As one can imagine, the standard is woefully ambiguous and causes employers no end of frustration.  Defining “reasonable accommodation” and “undue hardship” could be a mini-series of posts all in itself.  Complicating this is the fact that the original Meiorin decision describes an employer’s burden as having to “demonstrate that it is impossible to accommodate individual employees … characteristics.”

Fortunately, on July 17, 2008, the Supreme Court provided much needed guidance on an employer’s duty to accommodate when it overturned the Quebec Court of Appeal’s decision in Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000 (SCFP-FTQ).  It ruled accommodation for chronic absenteeism must be assessed globally, and not just at the time of termination.  Further, the Court ruled there is no burden on employers to do the “impossible”.

Quebec Court of Appeal Asks for the “Impossible”

Employers had cause for concern in 2006 when the Quebec Court of Appeal ruled that Hydro Québec was liable for not proving it was “impossible” to accommodate a mentally ill employee.

The employee in question had 24 years of service, but had missed 960 days of work between January 3, 1994 and July 19, 2001 – over two and a half years in a seven year period.  She suffered from various physical and mental illnesses, including tendinitis, hypothyroidism, and mixed personality disorder.  Both the employee and employer’s doctors did not give a positive prognosis for recovery, and recommended she stop working for an indefinite period of time.

Hydro Québec terminated her shortly thereafter, citing chronic absenteeism and future incapacity to perform.

The Quebec Court of Appeal overturned the arbitrator’s decision to uphold the termination on two grounds:

1. Hydro Québec failed to demonstrate it was “impossible” to accommodate the employee’s disabilities (note the troublesome language from Meiorin), as the evidence did not suggest she was completely unable to work; and
2. Hydro Québec only learned of the mixed personality diagnosis a few months before termination, so none of the employee’s previous absences, nor the employer’s previous accommodation efforts, could be taken into account.

Although Quebec’s civil law system meant the decision did not have a direct impact on other provinces, the fact an appellate court had interpreted the (otherwise uniform) duty to accommodate this way was certainly troubling.

The Supreme Court Sets the Record Straight

With respect to the alleged burden of an employer having to show that it be “impossible” to accommodate a particular employee, the Supreme Court rejected this notion.  It held the disputed language from Meiorin meant nothing more than to enunciate the test we’ve known all along:  that the duty requires it to be impossible for the employer to accommodate without undue hardship.

In this regard, the Quebec Court of Appeal erred in creating a freestanding requirement of “impossibility” for employers to meet.

Further, with respect to the accommodation analysis’ proper time frame for non-culpable absenteeism, the Supreme Court held it must be a global analysis.  This meant it was irrelevant that Hydro Québec only became aware of the precise nature of the employee’s disabilities so late in the employment relationship.

In other words, it was not correct for the Quebec Court of Appeal to say the accommodation clock ought to have been “reset” once a diagnosis was made.  All the employee’s absences were relevant to the accommodation analysis (and thus termination decision), even if the employer did not know why.  Similarly, Hydro Québec’s previous accommodation efforts were valid evidence of its attempt to discharge its duty.

In this regard, the Quebec Court of Appeal erred in fixing the reference period at the time the diagnoses was disclosed to assess whether the duty to accommodate had been met.

What Does Hydro Québec  Mean Going Forward?

There’s noting particularly new or different in the law after Hydro Québec, but the clarification the Court offered on what’s expected of employers who must discharge their duty to accommodate is most certainly valuable in and of itself.  As mentioned, the statistics from the Human Rights Commission show most employers get it wrong.

In this regard, the Court reemphasized that accommodation is an individualized and multi-party process, and that rules must be flexible and inclusive, not rigid and exclusive.  Further, there is no “duty to create a job” for a disabled employee, nor is there a duty for an employer to change the working conditions in a fundamental way.  

However if it can do so without undue hardship, the Court held an employer must “re-bundle” an employee’s duties, or offer the employee a flexible work schedule (the latter is especially relevant in matters involving seasonal accommodation – click here for more).

Finally, the clarification on the proper timing of the accommodation assessment will be particularly helpful to all parties going forward in matters of non-culpable absenteeism.  In this regard, all absences and all accommodation efforts will be relevant to the analysis, even if the employer was unaware the employee was suffering from an undiagnosed disability at the time.

Some may question whether this is in fact, a “good thing”, since it seems inherently unjust to be held accountable for the absences caused by one’s undiagnosed illness.  However I don’t think that’s the Court’s intention here.  Rather, it seems the Court is simply trying to encourage all parties to initiate the accommodation process as soon as a problem arises.  If one party, such as the employee, does not cooperate, then they’d simply be responsible for that.