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WORKPLACE DISCRIMINATION - Duty of reasonable accommodation

Tuesday, December 18, 2018 @ 6:17 AM  


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Appeal by the Nova Scotia Department of the Environment from a finding it breached its duty to accommodate the respondent, Wakeham. The respondent worked for the appellant as a clerk. Her duties were clerical and involved data entry, filing, accounting, administrative support and client service. In March 2012, the respondent left her employment with the appellant. She alleged she was unable to work due to the appellant's failure to accommodate her physical disability. The disability was diagnosed as myofascial pain, chronic pain, sleep disturbance and chronic anxiety arising from injuries suffered in 1999 and 2005 automobile accidents that caused lengthy work absences. The appellant's employment was never terminated. She remained on long-term disability following her cessation of work. In May 2012, the respondent commenced a human rights complaint alleging discrimination on the basis of disability. A Board of Inquiry found that the appellant failed to implement all physician-recommended accommodations, resulting in the respondent's inability to work. The respondent was awarded general damages of $35,000 plus $51,000 for loss of income. The Department appealed.

HELD: Appeal allowed. The Board unreasonably imposed a duty on the appellant to consider the most recent medical information rather than all previous medical information. It was unreasonable to expect the appellant to sift through years of medical data to formulate a list of possible accommodations. The medical data was inconsistent and confusing. There was no recommendation to excuse the respondent from mail duties. Any adverse effect those duties could have on the respondent was not be linked to a failure to implement a recommended accommodation. Similarly, there was no adverse effect from the respondent not receiving a quieter work space, as there was no contemporary medical evidence linking that accommodation to the respondent's departure. The Board erred in law in finding that informing the respondent of an attendance management plan constituted an adverse effect and misapprehended the evidence in its characterization of the plan. There was no medical evidence linking the respondent's absences with a failure to accommodate. No failure to accommodate could arise where, as here, an employee was incapable of returning to work. The Board's finding that a failure to accommodate the respondent caused her to leave work was an unreasonable outcome. The Board's orders were set aside.

Nova Scotia (Department of the Environment) v. Wakeham, [2018] N.S.J. No. 477, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., L.L. Oland and P. Bryson JJ.A., November 14, 2018. Digest No. TLD-December172018003