DUTY TO ACCOMODATE IS THE LAW

City of Ottawa loses human rights case for way it fired OC Transpo driver

Andrew Duffy -
Ottawa Citizen

UNIONS WORK
The City of Ottawa has lost a human rights case due to the way in which it fired an OC Transpo driver who missed 1,241 days of work.

 An OC Transpo bus near Tunney's Pasture.

In a recent decision, the Federal Court upheld a Canadian Human Rights Tribunal (CHRT) ruling that said the city discriminated against Jamison Todd by failing to distinguish his disability-related absences from his garden-variety absences in his termination letter.

Those absences should have been “disaggregated,” the court said, and the city should have considered other ways to accommodate his disability.

By law, businesses must accommodate disabled employees up to the point of “undue hardship.”

Todd suffered from irritable bowel syndrome and musculoskeletal pain during the course of his troubled OC Transpo career, which began in 2001 and ended with his firing in March 2014.

In the 10-year period leading to his dismissal, Todd missed 1,241 days of work. Nearly 30 per cent of those absences did not relate to his medical problems, court was told.

Todd’s manager at OC Transpo ultimately decided to fire him because he repeatedly failed to inform him when he would miss a shift.

Such notice was required under the continuing employment agreement — the plans are sometimes called last chance agreements — Todd signed with the city in 2012.

In court, city lawyers argued Todd’s regular absenteeism, combined with his inability to achieve a reasonable level of attendance due to his health problems, meant he was unable to fulfill his contractual obligation “to provide work.” They said that amounted to undue hardship for the employer, OC Transpo.

The city asked the Federal Court to set aside the tribunal’s finding that it had discriminated against Todd and dismiss the case.

But in her recent decision, Federal Court Justice Susan Elliott endorsed the reasoning of the CHRT, which said the city failed to present evidence to show it had reached the point of undue hardship in accommodating Todd.

What’s more, Elliott said, the city wrongfully lumped all of Todd’s absences together in his termination letter.

“As the CHRT found,” the judge said, “it is the reason relied upon at the time the decision to terminate the employment that counts, and the CHRT reasonably found that by identifying Mr. Todd’s overall absenteeism as one of the reasons for his termination, OC Transpo engaged the protections of the Canadian Human Rights Act against actions motivated in whole or in part by discrimination.”

The human rights tribunal has yet to decide how it will remedy the discrimination suffered.

Todd’s lawyer declined a request for comment while Ottawa city solicitor David White said he’s “not prepared to comment” on an ongoing legal matter.

The CHRT hearing took place over 19 days in 2017 and 2018.

In her susequent decision, tribunal member Kirsten Mercer concluded the city did not discriminate against Todd during the course of his employment, and did not discriminate against him by instituting a continuing employment agreement to manage his absenteeism.

It was not discriminatory for the city to fire Todd for breaching that agreement, Mercer said, but it was discriminatory to cite his disability-related absenteeism in his termination letter.

“If Mr. Todd’s breaches of the continuing employment agreement were the only reason provided for his termination,” Mercer noted, “then I do not believe that terminating him would have been discriminatory.”

The tribunal heard Todd was diagnosed with irritable bowel syndrome in 2004. A chronic condition, it affects the large intestine, and can cause abdominal pain, cramping, bloating, gas, diarrhea or constipation.

The medical restrictions put in place by Todd’s doctors made it hard for him to drive a bus, the tribunal was told, and OC Transpo agreed he could call in sick when his disability made it too difficult for him to work.

In 2012, Todd was absent without medical justification for several months, the tribunal heard, after which his supervisor placed him on the continuing employment agreement. It stipulated that Todd had to inform his manager when he would miss a shift so he could be offered alternative duties.

Todd was fired for failing to contact his manager after missing a shift with the flu in January 2014. The termination followed both verbal and written warnings about the need to inform his supervisor of an absence in advance.