Saturday, 22 March 2014

HRTO: Frustration is not Discrimination

Can an employer in Ontario legally fire someone who gets injured at work and then, as a result, becomes unable to work? According to a case from the Human Rights Tribunal of Ontario, Gahagan v. James Campbell Inc., 2014 HRTO 14, the answer is: yes, as long as you can demonstrate an inability to accommodate that person in employment and that it is clear that the employee will unlikely be able to ever work again.


The applicant employee, Cathy Gahagan, worked for the respondent employer, James Campbell Inc., at one of the respondent’s nine McDonald’s restaurants in eastern Ontario.

On May 26, 2009, the applicant twisted her back while lifting a filter pan from underneath the vat for the french fries.

Thereafter, and as a result of her workplace injury, she received WSIB benefits for a period of time. That is, until the Board determined that she was capable of earning her pre-injury earnings, a decision which she appealed. While that case was working its way through the system, Ms. Gahagan applied for and received Canada Pension Plan (“CPP”) Disability benefits.

On October 3, 2011, (nearly two and half years after her workplace injury) the employer terminated Ms. Gahagan’s employment because it did not believe she would be able to return to work, with or without accommodation. The employer took the position the applicant’s contract of employment had been legally “frustrated.”

Ms. Gahagan filed an application with the Human Rights Tribunal of Ontario pursuant to section 34 of the Ontario Human Rights Code, alleging discrimination with respect to employment because of disability and reprisal. Ms. Gahagan alleged that the respondent employer discriminated against her when it failed to accommodate her physical restrictions resulting from a workplace injury and when it terminated her employment as a form of reprisal.


On the facts of the case it was clear that accommodating the applicant in employment would have been very difficult. Ms. Gahagan was only able to stand for 10 minutes and only able to sit for 5 minutes. The evidence was that the McDonald’s franchise at which she had worked was very small and very busy.

In dismissing the complaint of discrimination in employment on the basis of a disability, Vice-Chair Jennifer Scott confirmed that the duty to accommodate is subject to limits. One of those limits is that:

The duty to accommodate does not require an employer to provide “make work” or to create a job that is not productive or that, in the employer’s view, does not need to be done.

In Vice-Chair Scott’s opinion, the respondent employer was unable to accommodate the applicant’s disability without undue hardship, and as such no discrimination had occurred.

With respect to the applicant’s claims of reprisal, and on the issue of frustration Vice-Chair Scott held that:

The applicant had significant physical restrictions in 2009. These physical restrictions remain in place today. In light of my finding that the applicant could not work in 2009 because of the nature of her physical restrictions, she could not work in 2011 when her employment was terminated with the same physical restrictions. The applicant has not worked since her work-related injury in 2009. She received LTD from 2009 to 2010 and CPP disability pension from October 2010 onwards. To obtain these benefits, she was professing both an inability to perform her job and a severe and prolonged disability. All of this evidence supports the conclusion that at the date of termination, the applicant could not work with accommodation.
The respondent terminated the applicant because of frustration of contract and not because the applicant had filed an Application before the Tribunal. There is no evidence before the Tribunal to support the finding that the respondent intended to retaliate against the applicant for filing an Application.

In the result, the applicant’s entire application was dismissed.


This blog has frequently considered the topics of: Human Rights, The Duty to Accommodate, Absenteeism, and Frustration of Contract. In those posts this blog has looked at the topic of under what circumstances an employer can take the position that an employee’s employment contract has been legally “frustrated” by an employee’s illness or injury.

In the cases considered in those other posts, the general position of the Ontario Superior Court of Justice has been that whether an employee’s disability has the legal effect of frustrating the contract of employment must be assessed at the time of the dismissal. Evidence of the employee’s physical ability post-termination is irrelevant. (For more on this topic see this blog’s earlier post: Chronic Absenteeism: Employer Rights and Obligations.)

In the world of frustration of contract, two and half years is not a long time. Many employees have been absent for much longer without the court accepting the employer’s argument that the contract of employment had become “frustrated.” On the other hand, Vice-Chair Scott’s comments about the applicant’s receipt of CPP-Disability benefits are well-observed. CPP-Disability benefits are difficult to obtain and require an applicant to take the position that her disability is both “severe” and “prolonged.” Does that mean that an employee’s receipt of CPP-Disability benefits will be evidence, in and of itself, that an employment contract has been “frustrated”? No, but it would appear to be compelling to some adjudicators.

Takeaways for Employees

The takeaway for employees is that sometimes you can be fired for getting disabled at work. If the employer can demonstrate that it would be unable to accommodate your disabilities, then it will not be legally obligated to employ you. Furthermore, the decision confirms that you can be legally fired while on disability leave.

For some, the decision will be incredibly disheartening. If a McDonald’s cannot find the ability to accommodate someone’s disabilities, what hope is there for other workplaces?

The fact is that each case must be considered on the facts. No two cases will ever be the same and different adjudicators may come to different conclusions. If you have been injured at work and your employer is threatening to terminate your employment it is probably prudent to seek the assistance of an experienced employment lawyer.

Takeaways for Employers

The takeaway for employers is that you can, under certain circumstances, terminate the employment of an employee who has been absent from work because of illness or injury.

However, bear in mind that even though the employer was successful in this case, it was still required to defend the case and the Human Rights Tribunal does not currently have the power to award a winning side its legal costs. (But it might one day, see Costs and the Human Rights Tribunal of Ontario .) Accordingly, the termination of this particular employee’s employment was no doubt quite a costly endeavour.

Moreover, not all adjudicators will agree that the termination of contract has arisen because of frustration. As was mentioned above, in other cases judges have found no frustration of contract even after five years of absence from employment.

If you are an employer and you are considering terminating the employment of one of your employees because he or she has been chronically absent from work, it would be prudent and likely cost-effective to seek the advice of an experienced employment lawyer.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

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