Small Business Satisfied Duty of Accommodation

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Thunder Bay Orthopaedic (“TBO”) employed fewer than 10 employees, including two to three orthotic technicians. Darren Nason began his employment with TBO on May 10, 1993 as an orthotic technician. The employee developed carpel tunnel syndrome and by June 2010, he required accommodation. The co-owner testified that upon learning of the employee’s condition, he and his co-owner sat down with him to discuss his limitations and to provide him with accommodation, which included:

  • Allowing the employee to work at a slower pace that was compatible with his condition, which resulted in less productivity;
  • Providing the employee with frequent rest breaks, taken as and when he deemed them to be necessary;
  • Removing the significant duty of “cast modifications” from the scope of the employee’s duties, given the physical demands of the task;
  • Permitting the employee to take time off work for physiotherapy and medical appointments during working hours. The employer estimated that the employee took 18 periods of time off work (1.25 to 1.5 hours each time) out of 24 working days between June 10, 2010 and August 18, 2010; and
  • The co-owners working additional hours on the evenings and weekends to cover the employee’s reduced productivity.

The employer decided that it could no longer accommodate the employee and on August 18, 2010, it placed the employee on a medical leave of absence, which permitted the employee to collect WSIB benefits. After several years, the employer terminated the employee from his employment. The employee sued for wrongful dismissal and damages under the Human Rights Code alleging that the employer failed to properly accommodate his disability.

At the trial, the Ontario Superior Court of Justice concluded that he was wrongfully dismissed and awarded 15 months of pay in lieu of notice, less WSIB benefits received, along with $10,000 in damages for a breach of the Human Rights Code. However, the Court also found that the employer had acted properly when it placed him on a medical leave of absence and that the employer attempted to accommodate the employee’s disability by altering the employee’s hours of work and duties. Despite implementing these measures, the employee’s condition worsened and his productivity dropped. The Court was clear the law did not require the two owners of this specialized, small business to continue working extra hours each week to cover for an employee who could not perform essential duties of his position.

The employee appealed the decision to the Ontario Court of Appeal seeking more damages and challenged the conclusion that the employer had met its duty of accommodation. The Ontario Court of Appeal rejected the employee’s appeal and affirmed the decision of the Trial Court that the employer had met its duty of accommodation.

There are some valuable lessons that employers can glean from this decision. In particular, the Court affirmed the principle that when exploring accommodation measures for an employee, the employer is not expected to create a new position for an employee, nor are fundamental changes to the employee’s job scope or working conditions required as part of the duty of accommodation. This is especially true of a small business, which was an important factor in the Court’s analysis of undue hardship. Rather, undue hardship arises when an employee cannot fulfill the basic obligations of his or her employment, despite reasonable accommodations.