Workplace Wire

The duty to accommodate disability under human rights law has existed for decades and many of the legal principles that define the scope of that duty are well settled.

However, there still exists much confusion as to what an employer must do when faced with a request for accommodation. Unfortunately for employers, much of this confusion exists among employees, who not infrequently seek accommodations to which they are not entitled at law.

Worse, when an employer does not bend to such a demand, it is not uncommon for the employee to file a discrimination complaint alleging not only failure to provide the requested accommodation but also that the refusal to provide it was motivated by such things as racial or religious prejudice.

Indeed, it is also not uncommon for these sorts of allegations (of racial or religious prejudice) to be raised for the first time at a hearing before the Human Rights Tribunal of Ontario.

Akash v. Toronto Transit Commission is one of those cases.

However, that case also stands as a good example of the Tribunal’s reaffirming the settled principles of accommodation, of which beleaguered employers should not lose sight. It also exemplifies a growing body of Tribunal case law which demonstrates the Tribunal’s willingness to dispose of such cases summarily without a full and formal hearing.

(As an aside, since direct access to the Tribunal came into effect in 2008, just over 100 cases have considered dismissing a discrimination complaint on a summary basis under Rule 19A of the Tribunal’s Rules of Procedure. The vast majority of these (nearly 100) have resulted in dismissal of the discrimination complaint in whole or in part.)

As the Tribunal noted, Mr. Akash’s core complaint was that although he had been “provided with accommodated work that met his disability-related limitations, the work was not in keeping with the applicant’s preferences in terms of days off, type of work, hours of work, and location”. He also raised several other complaints against the TTC and his own union, which included bald allegations of mistreatment on the basis of being a non-white Muslim. The allegations of racial discrimination, as is not uncommon in human rights matters, were raised for the first time at the summary hearing before the Tribunal.

Based largely on the written materials that were before it, and oral submissions given by way of a conference call, the Tribunal was able to determine summarily that the application had no reasonable prospect of success if it went to a full hearing on the accommodation issue. As the Tribunal found:

The respondents met their Code-related obligations when they offered or assisted in obtaining accommodated work within the applicant’s disability-related limitations. While the applicant insists that the respondents were also required to accommodate his preferred days off, type of work, hours of work, and location, there is no Code-related obligation for the TTC or the Union to ensure that the applicant’s preferences (unrelated to his Code needs) are respected.

The Tribunal further observed that the source of the dispute was largely attributable to the applicant himself:

In the circumstances of this case, based only on the applicant’s own submissions and the documentary evidence filed by the parties, it is clear to me that the applicant was exceptionally uncooperative in the accommodation process. He refused work that accommodated his disability because it did not align with his workplace preferences. His workplace preferences shifted over time and he repeatedly and assertively insisted on particular terms of accommodated work that had no connection to his Code-related needs. Indeed, the dispute between the parties appears to stem, in large part, from the applicant’s misapprehension of his rights under the Code.

Further, the Tribunal found that in the circumstances it did not need to hold a full hearing on the allegations of racial discrimination. In this regard, the Tribunal appears to have seen through those allegations, finding them to be speculative, with the alleged failure to accommodate being best explained by the applicant’s own poor attitude toward the accommodation process:

In the circumstances of this case, given the applicant’s behavior and his fundamental lack of cooperation with the accommodation process, the allegations that race was a factor in the TTC’s accommodation of workers’ preferences is speculative and a mere accusation. In my view, there is no reasonable prospect that this allegation could succeed or that the additional disclosure requested by the applicant would assist him in establishing this allegation.

In the interest of completeness, it should be noted that the Tribunal did not summarily dismiss all of Mr. Akash’s litany of allegations. It sought further written submissions from the parties as to whether his disability was a factor in his not being paid a “spread allowance” when he worked a certain split shift.

However, the real story is that employers are well served to stand fast in these sorts of cases, being ever mindful that the duty to accommodate often does not go as far as some employees think it does and there is a mechanism to dispose of these types of cases without a full hearing.