The Court of Queen’s Bench of Alberta recently overturned a finding of disability discrimination in employment in the case of Syncrude Canada Ltd v Saunders, 2015 ABQB 237 (CanLII). The Court decided that the Alberta Human Rights Tribunal erred in finding that the employee established a prima facie case of discrimination when the evidence could not reasonably support the conclusion that the employee suffered from a disability or a perceived disability requiring accommodation.
We wrote about the original tribunal finding on HRinfodesk here (log in required). To summarize and as stated in the previous article:
“A few months after starting on-the-job training for a specialized position in the oil industry, a 25-year-old worker began suffering migraines and broke his hand in a fight. In the following 11 months, he was absent from more than 40 percent of his scheduled shifts. When he returned from his latest medical leave, his hand had recovered and he had found a painkiller that managed his headaches. Despite being ready and willing to return to work, the employer terminated him on his first day back.”
“The Alberta Human Rights Tribunal had little difficulty finding that the employer had terminated the employee based on a disability, contrary to the Alberta Human Rights Act and had little excuse. Moreover, the employer made no effort to accommodate the employee and couldn’t argue that attendance was a bona fide occupational requirement.”
Key issues in the employer’s appeal were that:
- The employee was not credible; his evidence was untruthful and evasive
- There was no medical evidence to support the existence of a perceived disability or disability
The court found that the tribunal failed to address the issue of credibility and its impact on the employee’s ability to establish a prima facie case of discrimination. Moreover, the tribunal failed to consider the evidence in its whole context and address any contradictions. The court stated:
 I agree with Syncrude’s submission that Saunders’s oral testimony was vague, contradictory, untruthful and unsupported by the documentary evidence before the Tribunal. His evidence was not in harmony with the preponderance of probabilities, which a practical and informed person would readily recognize as reasonable.
For example (excerpt 2015 ABQB 237 (CanLII)):
(a) In his new-hire health assessment, Saunders indicated he never smoked any substances other than tobacco and denied any drug use. However, in cross-examination, he admitted that he smoked marijuana until at least the age of 20. He also acknowledged that Dr. Day’s medical records indicated he was smoking 1 ounce of marijuana per week, but denied the accuracy of Dr. Day’s notes. Dr. Day was never called by Saunders to corroborate this statement;
(b) In his new-hire health assessment, Saunders indicated he had never broken any bones and did not have prior sprains/strains. However, his medical records indicated prior injuries that were never disclosed to Syncrude;
(c) In cross-examination, Saunders said he could not recall using cocaine despite an entry by Dr. Day in Saunders’s medical records stating that he was using cocaine and was financing this habit by “selling his possessions”. When asked why that entry was in his medical records he said he could not recall going to Dr. Day at that time.
(d) Saunders initially advised on cross-examination that he did not consume alcohol regularly. He also denied alcohol use in his new hire health assessment. Dr. Day’s treatment chart demonstrates that Saunders consumed 30 ounces of alcohol per week. In cross-examination, Saunders further admitted that he was intoxicated on each occasion that he broke his hand by punching someone in the face in a bar and falling down on ice leaving a late night New Year’s Eve party. When questioned by both the tribunal chair and counsel for Syncrude, Saunders could provide no explanation for these contradictions. Again, no attending physicians were called to provide evidence on these inconsistencies;
(e) Saunders advised Syncrude superiors that he began experiencing headaches in May or June 2003. He originally testified that he started seeking medical attention for headaches on June 3, 2003. However, the letter from Dr. Day dated August 13, 2003, lists all of the dates Saunders attended the clinic, which does not include June 3, 2003. … In cross-examination, Saunders acknowledged that he did not visit Dr. Day regarding headaches until August 1, 2003…
(f) Saunders originally testified that he told his supervisor Collins about his migraines in July 2003 and advised Collins that he was seeing his doctor to find a medication that worked. This was inconsistent with the medical records in evidence and Saunders’s admission on cross-examination that he did not see Dr. Day for any alleged migraine before August 1, 2003. It is also contradictory to Collins’s testimony that he had no knowledge that Saunders suffered migraines…
(g) Saunders advised Syncrude, and consistently stated in his testimony, that he attended at the hospital for a headache in June 2003. Despite being asked by Syncrude superiors to provide documentation of this visit, Saunders never provided any such record. … On cross-examination, Saunders had no explanation as to why there was no record of his alleged hospital visit;
(h) Saunders testified that he was absent in early September 2003 because he had the flu. However, Dr. Day’s treatment chart for September 8, 2003, says nothing about the flu;
(i) Saunders testified that he broke his hand playing floor hockey on October 24, 2003. This is also what he advised Syncrude. This was inconsistent with the hospital records. In cross-examination, Saunders admitted that while intoxicated he punched someone in the face in a bar fight just prior to seeking treatment for his hand;
(j) Saunders originally informed Syncrude that on January 1, 2004, at approximately 8:00 a.m., he fell on ice outside of his house and re-injured his hand. However, the hospital emergency chart shows that he went to the hospital at 1:49 a.m. in the morning on January 1, 2004. He told the attending physician that he “fell on ice one hour ago”. During cross-examination, Saunders acknowledged that he had friends over at his house on New Year’s Eve and had consumed alcohol.
(k) In direct examination, Saunders testified he was unable to pay his child support due to his termination from Syncrude. However, in cross-examination Saunders confirmed his wages were being garnisheed by maintenance enforcement before his termination from Syncrude. Further, the evidence demonstrated he was using cocaine and selling his possessions to pay for drugs and was unable to pay his child support for this reason;
(l) Saunders originally testified that, following his dismissal from Syncrude, he looked for alternate employment “right away” and that he handed out 20 resumes. However, on cross-examination, Saunders admitted that he could not remember his mitigation efforts. Saunders was unable to provide evidence of any mitigation efforts.
In the court’s opinion, this evidence revealed serious contradictions and inconsistencies going straight to the credibility of the employee and whether he had established a prima facie case. The tribunal did not adequately assess the credibility of a witness whose evidence was critical since there were no other witnesses.
Medical evidence to support the existence of a perceived disability or disability
The employer argued that the employee provided no or insufficient medical evidence to support any alleged disability and failed to have any of his attending physicians testify and support his claims.
“The tribunal erred at paragraphs 70 and 72 of the Decision when it concluded that Saunders’s headaches qualified as a disability under the Act. By making such a conclusion, Syncrude argues the tribunal trivialized the protections afforded by the Act. Saunders’s headaches were ambiguous in nature.”
The court agreed that “it was a reviewable error and unreasonable for the tribunal to conclude that Saunders established, on the evidence, a prima facie case that he was terminated on the basis of a perceived disability. Saunders has provided no evidence of any linkage or continuity between his termination and a perceived disability.”
The tribunal stated that Saunders’s absenteeism was excessive and his poor attendance had been discussed with him, but he was never warned that his continued employment was in jeopardy. However, the evidence shows that at several meetings, the employee was made aware that he was not meeting the employer’s expectations regarding regular attendance, the seriousness of the situation and the impact on his ability to remain at his job. Therefore the evidence reveals that the employee was warned of possible disciplinary consequences including termination if his attendance did not improve.
The evidence points to the employee’s poor attendance not being connected to any disability:
“He accumulated many absences for disparate and unrelated reasons, many of which do not stand up to reasonable scrutiny. He was absent from work, for his own purposes, at times when he was capable of working. Saunders’s evidence about his absences was not credible. It would be impossible to accommodate Saunders without undue hardship given the evidence of the history of his patterned absenteeism.”
Although the employee’s claim was dismissed and the employer’s appeal upheld, the court decided that the tribunal’s award of general damages—two years lost wages with a 50 percent discount for failure to mitigate and interest—was reasonable and was supported by the post-termination factual analysis and the law.
Several legal experts who have written on the case disagree with the Court of Queen’s Bench of Alberta and find that the issue of credibility should not have come into play and that there was enough evidence to claim a disability.
As stated in our first article:
“Regardless of how an employer perceives an employee, when it comes to disabilities—or medical conditions that might qualify as disabilities—the employer must avoid making assumptions about how the employee will perform in the future. Employers must perform their due diligence.”
“To this end, it is probably safest to assume that any employee injury or medical condition that requires numerous or regular days off is a disability, and to attempt to understand the employee’s condition and potential accommodation requirements. Certainly, employers should familiarize themselves with how the Alberta Human Rights Act defines disability and seek advice before disciplining or terminating a person due to medical-related absence.”
What do you think?