Canadian Work Disability Accommodation Law Resources
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| Author | Year | Title + Citation | Format | Literature: Source Type | Main Category | Sub-category | Other Relevant Tags | Notes on How to Access | Open Access | Code / ISBN / Call # | Short Description |
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2012
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"Prima Facia Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada's Human Rights Code Jurisprudence?" 9 Journal of Law & Equality 33 |
No
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Argues that the decision in Tranchemontagne to import a substantive test at the prima facia stage, into human rights tribunal cases, shifts the burden onto the claimant to prove that the rule was substantively discriminatory and is inconsistent with previous Supreme Court of Canada decisions. |
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2018
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"Ontario Court Suggests a Lower Evidentiary Requirement to Demonstrate Frustration of Employment Contract" Labour & Employment Law Insights - Filion Wakely Thorup Angeletti LLP |
Yes
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Court held that employer only had to show that there is “enough evidence” to conclude there is no reasonable likelihood of the employee returning in a reasonable period, instead of the previous standard required evidence of permanent disability and the employer was not required to make further inquiries but could rely on the documentation it had received to conclude the employment contract was frustrated. |
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2008
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"Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs", 46:1 Alberta L Rev 141 |
Yes
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A brief discussion of pre-employment drug testing. Discusses the law on when a drug dependency is required to be accommodated, the justification for drug testing, and the workplace health and safety plans to support testing. It discusses when pre-employment, pre-access, random drug testing and zero tolerance policies are discriminatory. It discusses the implications of medical cannabis and recreational use. Discusses a decision where the lack of cannabis testing that could determine impairment was found to be undue hardship. Suggests zero tolerance policies are likely to be up held in limited high risk situations. Discusses the balancing necessary between employee privacy and workplace safety. |
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2019
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"Termination of Employment During a Disability Leave: Employer Rights on Frustration of Contract" |
Yes
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Discusses a recent case were the Court held extension of an employee’s long term disability benefits was sufficient for the employer to conclude there was no reasonable likelihood that the employee would return to work in the foreseeable future, thus concluding the contract was frustrated as the employee could no longer perform its employment responsibilities due to the unforeseen situation. |
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2010
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"Tackling Disability Discrimination at Work: Towards a Systemic Approach", 4:1 McGill JL & Health 17 |
No
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Advocates for a systemic approach to anti-discrimination law and reviews the factors considered when anticipating the need for individualized accommodation; reiterates that prima facie case of discrimination should be distinct from assessments of a bona fide occupational requirement. |
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2009
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"How Did We Get Here - Setting the Standard for the Duty to Accommodate" 59 University of New Brunswick Law Journal 95 |
No
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Discusses the inter-connectedness of the concepts of duty to accommodate, Bona Fide Occupational Requirement and undue hardship. She argues that the duty to accommodate is part of the test for BFOR, within the process of justification required which is linked to the concept of reasonable necessity in step three of the Meiorin test. Discusses that the implication of the duty to accommodate, as established in the Meiorin test, requires considering alternative standards to the employers standard being questioned, which challenges norms and has the potential to affect substantive change. |
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2014
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"Adjudicating Systemic Equality Issues: The Unfulfilled Promise of Action Travail des Femmes" 18 Canadian Labour & Employment Law Journal 177 |
No
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Discusses the difficulty in crafting a systemic remedy that is enforceable and the Supreme Court of Canada’s retreat from the issuance of systemic remedies even in a case like Moore where there appeared to be systemic discrimination. |
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2011
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"Wrongful Termination Claims in the Supreme Court of Canada: Coming Up Short" 34:1 Dalhousie Law J |
No
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The author criticises the SCC finding that the manner the employee was terminated, in which the employer chose to stop accommodating the employee’s disability, did not constitute discrimination, despite the lower courts finding of bad faith. The SCC affirms that a breach of the human rights code can not constitute an independent actionable cause of action. The Court restricts the use of bad faith damages in a wrongful dismissal cases. The author is critical that the court found no breach of human rights and that a breach of human rights should be considered at the damages stage as giving rise to bad faith damages. |
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2014
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"Human Rights General Damages on the Rise - $75,000 Awarded in B.C." Ontario Humans Rights.Net |
Yes
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Discuses a case where a medical resident was terminated from his residency, in part due to his disability and the tribunal awarded a significantly larger general damages award than the usual range. The author of the article opins that this should be standard in respect to large organizations, otherwise it is merely a licensing fee to discriminate. |
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2017
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"Undercompensating for Discrimination: An Empirical Study of General Damages Awards Issued by the Human Rights Tribunal of Ontario" 13 Journal of Law & Equality 91 |
No
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A discussion of damages at the Ontario Human Rights Tribunal. A policy argument that current conventional damages are too low to effectively accomplish the Codes objectives. A good explanation of how damages are determined. Contrasts the damages consequences of perusing a claim iat the Tribunal vs. Court. |