Wan v. Intek Communications Inc., 2022 CanLII 97950
The Facts
The Complainant, Mr. Wan, started working for Intek Communications Inc., (“Intek”) as a Cable Technician in May 2007. In 2013 he suffered a workplace injury to his ankle. Unfortunately, in April 2014, the Complainant was involved in another workplace accident and later underwent a Functional Abilities Evaluation (“FAE”) in 2015. In January of 2016, the Complainant suffered a re-injury to his ankle and was accommodated into the position of Warehouse Assistant.
In March 2018, Intek requested further information from the Complainant’s treating physician, Dr. Liu, including a prognosis as to how long any restrictions were expected to remain in place, as well as a long-term prognosis for recovery. Dr. Liu recommended that the Complainant take a five (5) minute break for every twenty (20) minutes worked for the next five (5) years. Dr. Liu’s recommendation was not based on a new assessment conducted after the Complainant’s 2016 injury but in accordance with his FAE from 2015. Intek requested that the Complainant participate in an Independent Medical Examination (“IME”) to better understand his medical needs. The Complainant refused to participate in the IME as requested by Intek on the basis that it already had sufficient information. The Complainant was later terminated for cause for repeatedly failing to cooperate with efforts to accommodate his disability. Mr. Wan claimed that his termination violated section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “CHRA”) which prohibits discrimination on the basis of disability.
Decision
The Adjudicator decided in favour of Intek and upheld Mr. Wan’s termination. He found that the Complainant failed to discharge his onus of proving prima facie discrimination under the CHRA because of his repeated and unjustified refusal to cooperate in the search for a reasonable accommodation of his disability. His refusal to cooperate ultimately lead to an irreparable breakdown of the employment relationship. In summary, the Adjudicator also noted the following propositions with respect to the accommodation process more generally:
- The onus is on the employee to prove prima facie discrimination on a balance of probabilities standard;
- The search for an appropriate accommodation of an employee with a disability requires a cooperative approach by the employer and employee (and union, if applicable);
- An employer has an implied obligation (in addition to statutory obligations) to ensure that the employee can safely perform the assigned work, which brings with it the right to inquire as to the employee’s medical capacity to perform work;
- While presumed confidential, an employee is obliged to share medical information with their employer that is adequate in the circumstances. Where ongoing accommodation is sought, additional disclosure may be warranted, including participating in an IME; and
- Termination for cause may be justified in circumstances in which an employee refuses an employer’s reasonable request to provide appropriate or better medical information, which by extension, may include an IME.
Key Takeaways
The accommodation process is a cooperative exercise between an employee and employer. Neither party can fulfill their obligations if the other refuses to participate. While patient data is inherently confidential, employers are entitled to disclosure of appropriate medical information in order to ensure that the employee can safely and productively perform the duties of their job.