Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on November 21, 2019 within the category "The legal duty on employers". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.

A human rights tribunal adjudicator ruled that an employer failed to uphold its duty to accommodate when it terminated a student’s internship placement.  The employer was unaware that the conduct which led to the student being removed from the placement was disability-related.  However, during its termination meeting with the student, the employer was made aware that the student was an accommodated student, at which point its duty to inquire was triggered.
Legal Citation
MacDonald v London Health Sciences Centre, 2019 HRTO 1134 (CanLII); Human Rights Tribunal of Ontario (August 8, 2019) (Bruce Best, Adjudicator).
Ms. Rebecca MacDonald was enrolled as a student in St. Lawrence College’s Medical Laboratory Assistant/Technologist (MLA/T) certificate program. 
This was a one-year program with a four-week placement. 
Before enrolling, she had been diagnosed with Asperger's Syndrome.  
She registered with the college's AccessAbility Services department, and received academic accommodations, primarily related to communication issues.
On June 26, 2015, the College advised the student that a placement would be available in November, 2015 at the London Health Sciences Centre.  
Ms. Shari Batson, the College’s academic co-ordinator, advised Ms. MacDonald to “organize any necessary accommodations for placement well in advance.”
The student called Ms. Renee Dickey, the hospital’s student placement co-ordinator, approximately a month prior to starting her placement.  Ms. Dickey testified said that the student did not raise any accommodation issues on the call.  Ms. MacDonald testified that she “alluded” to her accommodation needs, and “got the sense” that Ms. Dickey had understood.  She indicated that she believed mentioning accommodations explicitly would be "tacky, not acceptable."
Ms. MacDonald began her four-week placement at the hospital on November 2, 2015. 
Several days later, the student’s trainer informed Ms. Dickey that the student was resistant to supervision, she did not want people in her space, and she appeared very stressed. 
On November 9, Ms. Dickey spoke with Ms. MacDonald about these concerns.  The student admitted to being frustrated, but she did not indicate that the concerns were related to her disability.
On the morning of November 12, Ms. Dickey spoke with Ms. Batson over the phone.  Ms. Dickey indicated that the student was not meeting the competencies required of the placement, specifically with respect to interaction with co-workers.  As a result, the hospital decided that it would not continue with the student’s placement. 
Ms. Batson then asked Ms. Dickey if she would reconsider her decision if she found out the student had a disability.  Ms. Dickey indicated that the decision had been made by the hospital already on the basis that they had tried to make changes, but there was nothing they could do that would address the concerns.
Ms. Dickey met with Ms. MacDonald on the afternoon of November 12, 2015 to inform her of the hospital’s decision to terminate her placement.  During the meeting, the student mentioned the College had been accommodating her, but she did not provide any further details.  Ms. Dickey maintained that the hospital’s decision to terminate the student’s placement was final. 
Ms. MacDonald subsequently filed a discrimination complaint under the Ontario Human Rights Code.
The issue before Adjudicator Best was whether the hospital’s duty to accommodate had been triggered when Ms. MacDonald informed told Ms. Dickey that she was an accommodated student during the November 12 meeting.
Adjudicator Best first noted that, when an individual has not expressly made her disability needs known, there may nonetheless be a duty on an employer to inquire further.  Citing Sears v. Honda of Canada Mfg, 2014 HRTO 45 (CanLII) at paragraph 128, Adjudicator Best held that:
[62] … the procedural duty to accommodate, including the duty to inquire into the situation of the person needing accommodation, can arise without a specific request for accommodation by the individual in circumstances in which there is reason to believe that the individual is having difficultybecause of personal characteristics protected by the Code. [Emphasis added]
[63] The question then is whether the hospital had reason to believe that the communication issues may be disability related.
Answering this question, Adjudicator Best found that the hospital’s procedural duty to accommodate had been triggered during the November 12 meeting.  He then held that the hospital had not meet its duty to accommodate:
[79] … the Hospital did not meet its obligations under the procedural duty to accommodate, as it did not make any meaningful effort to obtain further information once the [student] advised that she was an accommodated student. Had it done so, it would have become apparent that the concerns it had respecting the [student’s] behaviour were issues that would have led to the Hospital to reconsider its termination decision and address what accommodations could be put in place to address its concerns.
[Emphasis added]
Accordingly, Adjudicator Best ordered the hospital to pay the student $5,000 in compensation for injury to dignity, feelings and self-respect.  He also ordered the hospital to provide training to all supervisory staff working with student placements on the duty to accommodate, including the duty to inquire.
Implications for Unions
For unions, this case highlights the importance of ensuring employers are made aware of an individual’s disability.  As noted by Adjudicator Best:
[61] … where a respondent is unaware of, and has no reason to be aware of, an accommodation need, there will not be a finding of liability.
In this case, Adjudicator Best held that, initially, Ms. Dickey did not know, and could not be expected to know, that the concerns raised about the student’s conduct may have been disability-related.  However, that changed during the termination meeting.  Thus, had the student not informed the hospital that she was an accommodated student during the termination meeting, it is unlikely that hospital’s duty to accommodate would not have arisen.
Implications for Employers
For employers, this case reinforces the principle that human rights law looks at the impact or effect of a decision to determine whether discrimination has occurred.  It does not matter whether the employer had an intent to discriminate.  In this case, even though the hospital made the decision to terminate the student’s placement when it was not aware that she may suffer from a disability, the student was still able to establish a case of prima facie discrimination.  As Adjudicator Best noted:
[91] … The Hospital … provided a defence – specifically, that it was unaware that the conduct which led to the applicant being removed from the placement was disability related. Absent knowledge that the applicant had disability related needs, or absent circumstances which would raise the duty to inquire, the Hospital had no obligations under the duty to accommodate.
[92] … As I have also found, that changed when the applicant expressly raised the fact that she was an accommodated student, at which point the hospital’s duty to inquire arose, which I have found it did not meet.   [Emphasis added]