Top court limits duty to accommodate

Ruling in case involving disabled Hydro-Quebec employee touted as a win for employers
By Stuart Rudner
|employmentlawtoday.com

Employers just got some good news from the country’s top court when it comes to the duty to accommodate disability: The Supreme Court of Canada has allowed an appeal by Hydro-Québec and found the company had shown that it would have been impossible to accommodate an employee any further without undue hardship.

In Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), the unionized employee of Hydro-Québec had a number of physical and mental problems which led to severe absenteeism. Over a period of about seven-and-a-half years, she missed 960 days of work. Hydro-Québec made efforts to accommodate her disability by adjusting her working conditions in order to reflect her limitations. However, prior to her dismissal on July 19, 2001, the worker had been off work since February of that year. Her doctor had recommended she stop working for an indefinite period.

Upon termination, the worker filed a grievance which was dismissed by the arbitrator on the basis that, at the time of dismissal, the complainant was unable to work steadily and regularly for the reasonably foreseeable future. Furthermore, according to the arbitrator, the conditions required for a return to work would have constituted an undue hardship. A motion for judicial review was dismissed by the Superior Court, but Quebec’s Court of Appeal set that judgment aside and found Hydro-Québec had not established that it was impossible to accommodate the disability.