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ENFORCEMENT AND PROCEDURE - Commissions - Investigation - Decision

Friday, February 28, 2020 @ 8:33 AM | By John Chunn

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Appeal by Wojtasiewicz from the dismissal of his judicial review application of a decision of the Alberta Human Rights Commission upholding the director’s finding that there was no reasonable basis in the evidence to proceed to a complaint hearing. The appellant had an accident at work in 2011 which permanently rendered him unfit to return to his job as a residential health care worker. The employer was unable to accommodate his return to work at the same residential heath care centre but offered him an administrative support position with Child and Family Services. The appellant rejected the offer because such a position was not in line with his aptitudes, skill and related job experience. The appellant ceased all communication with the employer and was terminated. The appellant filed a complaint to the commission alleging discrimination, wrongful dismissal and retaliation. The investigator determined the appellant’s termination resulted from his refusal of reasonable accommodation and ceasing communication. The chambers judge determined that procedural fairness was met as the appellant was able to respond to the initial investigation report, which response was considered by director before rendering the decision.

HELD: Appeal dismissed. The chambers judge correctly applied the standard of review in finding that the director’s reasons were transparent, intelligible, supported by a “probing review of the evidence on the record,” and justified the conclusion reached. There was no error in the chambers judge’s finding that procedural fairness was met at both the investigation and decision stages. The chambers judge was alive to the underlying principles relating to the duty to accommodate and the proper roles of the employer and employee in the accommodation process, understood that accommodation was an individualized process that varied according to the nature of the circumstances in which a decision was to be made, and that an employee was entitled to reasonable accommodation, not perfect accommodation.

Wojtasiewicz v. Alberta (Human Rights Commission), [2020] A.J. No. 81, Alberta Court of Appeal, P.T. Costigan, F.L. Schutz and J. Strekaf JJ.A., January 23, 2020. Digest No. TLD-February242020009