This week, we launched our Duty to Accommodate Disabilities Classifier and Case Finder, the latest addition to Employment Foresight and one of two new Blue J Legal products focused on Canadian human rights law. We developed our human rights tools — which also includes our new Sexual Harassment Case Finder (learn more here) — in response to customer requests for tools that meet the needs of lawyers practicing in these highly specialized areas of law.
Duty to Accommodate Disabilities
Statistics Canada reports that one in seven Canadians aged 15 years or older—that is, 3.8 million people—reported a disability that limited their daily activities. Generally speaking, federal and provincial human rights legislation in Canada establishes disability as one of the prohibited grounds of discrimination in the course of employment.
Failure to accommodate disabilities resulting in undue hardship violates human rights legislation in all Canadian provinces and territories, and an employer who fails to accommodate disabilities may be liable for damages. Blue J Legal has created a Classifier and a Case Finder to assist lawyers working on this issue.
The Duty to Accommodate Disabilities Classifier determines whether an employer has fulfilled its duty to accommodate an employee’s disability pursuant to the applicable federal, provincial or territorial human rights legislation. The classifier reviews hundreds of duty to accommodate cases across all jurisdictions, taking into account all court decisions and all tribunal decisions from 2008 to present. Leveraging its learnings from the codified case law, the classifier determines outcomes with 90% accuracy.
The Duty of Accommodate Disabilities Case Finder allows users to search by dozens of relevant factors such as jurisdiction, the type of disability, substantive and procedural duties as well as the name of the presiding judge, lawyer and law firm.
To illustrate the Classifier’s capabilities, we applied it to a leading case in this area of law: Lane v. ADGA Group Consultants Inc., 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (“Lane v. ADGA”).
The complainant, Paul Lane, had previously been diagnosed with Bipolar 1 Disorder. Ten days after beginning work at ADGA Group Consultants Inc. (“ADGA”), an information technology company, Lane was terminated from his position. Prior to his termination, Lane had disclosed his disability to ADGA and had exhibited some behaviour characteristic of Bipolar 1 Disorder. After doing some online research, ADGA became concerned about how the stress of the work could affect Lane. At the termination meeting, ADGA expressed that it could not afford to have him away for long periods of time.
Lane filed a human rights complaint with the Ontario Human Rights Commission alleging that his employer discriminated against him on the basis of a disability by terminating his employment. The Tribunal found that ADGA had, in fact, discriminated against Lane (Lane v. ADGA Group Consultants Inc.,2007 HRTO 34). Prima facie discrimination thus established, the Tribunal went on to find that ADGA had failed to prove that it could not accommodate Lane’s disability without undue hardship, pursuant to s. 17(2) of the Human Rights Code, R.S.O. 1990, c. H-19. The Tribunal awarded general damages, mental anguish damages, and special damages to Lane.
In making its finding, the Tribunal considered the following factors: ADGA’s lack of appropriate enquiries (legal, medical) (para. 125); Lane’s capability of performing the essential duties of the job for which he was hired (para. 139); and the employer’s “rush to judgment” (para. 145) in determining that they could not accommodate Lane’s disability.
The company appealed and the provincial human rights tribunal cross-appealed the decision. The Ontario Superior Court of Justice (Divisional Court) affirmed the decision of the Ontario Human Rights Tribunal.
Classifier Analysis of Lane v. ADGA: Employment Foresight’s Duty to Accommodate Disabilities Classifier correctly predicts the outcome of Lane v. ADGA with 95%+ confidence.
Duty to Accomodate Insights
The most recent feature of Tax Foresight and Employment Foresight, Case Analytics, reveals helpful insights about the case law about the duty to accommodate disabilities. Some examples include:
- In 56% of cases, the employer failed to fulfill their duty to accommodate an employee’s disability
- In 83% of cases involving a learning disability or dysfunction, the duty to accommodate was not fulfilled
- In 52% of cases involving a mental disorder, the employer was found to have not fulfilled their duty to accommodate disability
The Classifier considers numerous factors, including such information as:
- Expected duration of the disability;
- Health and safety risks
- Co-operation of the employee in the process
- Offers of accommodation made by the employer
To find cases most applicable to your own, the Case Finder allows you to search by specific factors such as:
- Type of disability
- Fulfillment or non-fulfillment of employer’s procedural and substantive duty
- Amount of compensation for wages, damages, or combination of the two
- Law firm and lawyer (New Feature)
The Duty to Accommodate Disabilities Classifier and Case Finder can be found in Blue J Legal’s Employment Foresight product, along with our other new human rights product, the Sexual Harassment Case Finder. If you are interested in seeing these products in greater detail, book a demo here.