Complainant Went the Wrong Way Down a Two-Way Street

Daniel Standing LL.B., Editor, First Reference Inc.

The process of accommodating an employee with a disability is frequently described as a two-way street. Employers must often be creative in finding meaningful ways for an employee to continue contributing to the workplace. It must make efforts to accommodate these employees to the point of suffering undue hardship.

Employees have an equally critical role to play. They must keep the employer informed of their prognosis, provide feedback and accept reasonable solutions that the employer proposes. An employee who refuses a reasonable accommodation proposal treads on very shaky ground. The possibility of continued employment becomes even more tenuous if the employee then refuses to cooperate with the employer. The Alberta Court of Appeal made this point eminently clear in Wojtasiewicz v Alberta (Human Rights Commission), 2020 ABCA 23 (CanLII).

Factual background

Krzysztof Wojtasiewicz was a long-term former employee of Alberta Human Services. He worked as a residential healthcare worker until one day in February 2011 when he was injured at work and unable to continue doing that job. When his employer determined that it was unable to accommodate his return to work at the same residential healthcare centre, Mr. Wojtasiewicz responded by filing a complaint with the Alberta Human Rights Commission alleging discrimination based on his physical disability. In September 2013, Alberta Human Services offered him an administrative support position with Child and Family Services. On October 4, 2013, Mr. Wojtasiewicz rejected this offer, stating that the position was “not in line with [his] aptitudes, skills, educational background and related job experience.” Then nothing was heard from Mr. Wojtasiewicz. He failed to attend a follow-up meeting on October 16, 2013, and did not respond to a letter asking him to decide on the offer by October 25, 2013. Mr. Wojtasiewicz amended his complaint to include “wrongful dismissal” and “retaliation” after the employer terminated his employment on November 1, 2013.

Legal background

An investigation of Mr. Wojtasiewicz’s complaint under the Human Rights Act was done and a report concluded that there was no reasonable basis to proceed with the complaint because there was no information to support the allegation of retaliation. Rather, the termination was found to have resulted from the complainant’s refusal of reasonable accommodation and subsequent silence. On that basis, the Director of the Commission formally dismissed the complaint. Mr. Wojtasiewicz then triggered the Act’s review procedure which calls for the involvement of the Chief of the Commission.

The Chief’s delegate again found that Mr. Wojtasiewicz had no valid complaint: Alberta Health Services had fulfilled its duties in the accommodation process which Mr. Wojtasiewicz withdrew from. The Chief’s delegate also found that the retaliation allegation lacked merit.

Mr. Wojtasiewicz was evidently not deterred by his lack of success at the Commission. He applied for judicial review of the Chief’s delegate’s decision. The chambers judge denied the application. He found that the Chief’s delegate had applied the correct legal principles and considered the relevant evidence before dismissing the complaint. Furthermore, he found that there had been no breach of procedural fairness since Mr. Wojtasiewicz had a chance to respond to the initial investigation report before the Chief’s delegate rendered the decision.

The Court of Appeal’s analysis and decision

The Court of Appeal began its analysis by considering the applicable standard of review. Guided by its own jurisprudence and that of the Supreme Court of Canada, the Court of Appeal accepted that its role was to step into the shoes of the lower court and examine the administrative decision. In this case, the function of the chambers judge was to supervise the Chief’s delegate’s decision which was a matter under section 26 of the Act which required a review of the facts and the legal principles of human rights law. Since this amounted to a question of mixed law and fact, the chambers judge was right to apply the reasonableness standard of review.

The Court of Appeal determined that the chambers judge correctly applied that standard: He probed the evidence and rendered a transparent and intelligible decision. His decision was within the range of reasonable outcomes.

Likewise, the Court of Appeal determined that the chambers judge made no error in relation to his finding on procedural fairness at both the investigation and decision stages. In this case, Mr. Wojtasiewicz was given the report and the chance to respond to the Director’s decision to dismiss the complaint. His submission was considered before the Chief’s delegate made their decision. Given that both the Director and the Chief’s delegate were exercising a gatekeeper function under the legislation, there was no need for them to interview every potential witness before making their decisions.

Ultimately, the Court of Appeal found that the chambers judge correctly selected and applied the applicable standard of review to the decision of the Chief’s delegate. Therefore, the appeal was dismissed.

Takeaways

As this case illustrates, the accommodation process requires both sides to show some degree of flexibility and reasonableness. Employees should be mindful that they are entitled to reasonable accommodation, not perfect accommodation. When given a reasonable offer, the decision to hold out for a better one could backfire, relieving the employer of its obligation to continue trying to accommodate the worker.

Comments

  1. Harry Freedman

    The principle that accommodation need be reasonable, not perfect, was applied earlier by the Ontario Human Rights Tribunal in Coates v. G4S Secure Solutions, 2018 HRTO 1005.

    Both this Alberta decision and the Ontario decision in G4S Solutions demonstrate the importance of the employer clearly communicating what it’s prepared to do to accommodate the affected employee and requiring the employee to set out the basis for refusing to accept the proposed accommodation. An employee who does not do so and then claims discrimination may well end up with nothing!

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