The British Columbia Court of Appeal recently confirmed the legal test for prima facie discrimination in the context of an employee’s request to return to work after being on disability leave. In a unanimous decision from the BC Court of Appeal, the Honourable Madam Justice Kirkpatrick, writing for the Court, held that there remains an obligation on an employer to make inquiries of an employee’s condition before they can simply deny an employee’s request to return to work from a disability leave.  

In Boehringer Ingelheim (Canada) Ltd./Ltée. v. Lynda Kerr 2011 BCCA 266, the Court dismissed the employer’s appeal of a decision from the Supreme Court that had similarly dismissed the employer’s judicial review of a decision from the British Columbia Human Rights Tribunal (“HRT”). The HRT held that the employer had discriminated against their employee, Lynda Kerr.

Ms. Kerr was hired by Boehringer Ingelheim (Canada) Ltd./Ltée (“BICL”) in 1996 as a pharmaceutical sales representative. As part of her job, she was required to drive a vehicle and use a computer. In 1999, after being diagnosed with cataracts, she was informed by her doctors that she would likely lose her sight within two years. Ms. Kerr indicated to her employer that she would resign, however, BICL recommended that she apply for disability leave. Ms. Kerr did just that.  

Fortunately for Ms. Kerr, the diagnosis she received from her doctors which predicted that she would completely lose her sight did not materialize.  

In 2002, Ms. Kerr was informed by her insurer, Canada Life, that her long-term disability benefits would cease because pursuant to the policy, she was capable of working at some occupation. BICL became aware that Ms. Kerr wanted to go back to work and by as early as 2004, BICL was informed by Ms. Kerr’s family doctor that she may be capable to return to work.  

Despite this knowledge, BICL did not make further inquiries with Ms. Kerr or anyone else about their employee’s capability to return to work. As a result, since she was not receiving disability benefits and was not working at BICL, Ms. Kerr was without income. In the meantime, she filed a complaint with the HRT alleging that she was discriminated against based on her disability and contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210, which provides in part:  

(1) a person must not

refuse to employ or refuse to continue to employ a person, or

discriminate against a person regarding employment or any term or condition of employment  

because of the…physical disability…of that person.

In 2006, BICL gave Ms. Kerr a return-to-work plan (the “Plan”), however, the Plan was set to commence during her scheduled hearing before the Human Rights Tribunal, and as a result, Ms. Kerr refused to accept it.

After a lengthy hearing before the HRT, the Tribunal held that Ms. Kerr demonstrated on a balance of probabilities a prima facie case of discrimination as the employer’s refusal to allow Ms. Kerr to return to work after she was on medical leave was discriminatory and contrary to Section 13 of the Human Rights Code. At paragraph 559, the Tribunal cited McLellan v. MacTara Ltd. (No. 2) (2004), 51 C.H.R.R. D/103 (N.S. Bd. Inq.) for authority that:  

an employer has an obligation to patiently and carefully assess a disabled employee’s condition and to assess her ability, which necessarily involves a dialogue with the employee, including being aware of the dynamic nature of an employee’s medical condition which may change.  

The Tribunal ordered BICL to pay Ms. Kerr compensation for lost wages (subject to certain deductions), compensation for lost bonuses, compensation for loss to her pension, and $30,000 as compensation for injury to her dignity, feelings, and self-respect, plus applicable interest.

As a result, the employer sought a judicial review of the HRT decision on the basis, among other things, that the HRT applied the incorrect prima facie legal test for discrimination. Both the Supreme Court and the Court of Appeal held that the HRT had appropriately applied the proper three-part test for determining whether there is prima facie discrimination as enunciated in Communications, Energy & Paperworkers’ Union of Canada (CEP) v. Domitar Inc., 2009 BCCA 52 at para. 36 which sets out that the complainant must prove that:

  • he or she had (or was perceived to have) a disability;
  • he or she received adverse treatment; and
  • his or her disability was a factor in the adverse treatment.

In conclusion, employers must conduct their own thorough assessments of all employees requesting to return to work from a disability leave before simply denying a return to work. The current case law establishes that an employer is entitled to carefully evaluate an employee’s capabilities before accommodating an employee, however, the onus falls on the employer to independently make their own inquiries.