Some Employees Are “Inherently Impossible” to accommodate at work – Katz et al. v. Clarke 2019 ONSC 2188 (Divisional Court)

November 13, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Divisional Court addressed the scope of an employer’s duty to accommodate employees with permanent disabilities in Katz v. Clarke. The court confirmed that the employer’s duty to accommodate ends when the disability of the employee becomes permanent and frustrates the employment contract.

Many employers are fearful when they must make the difficult and unpleasant decision to terminate a disabled employee. The recent decision reaffirms that employees cannot simply inform their employers of a desire to return to work. They must provide evidence of their ability to work.

This decision reflects the policy of the Ontario Human Rights Commission. While an employer is required to canvas accommodation, the employee must participate in the process by indicating the nature of the abilities they have and the accommodation they request.

In this case Mr. Clarke who had been the front store manager of a drug store failed to do so. After breaking a kneecap he was off the job for 5 years. Great West Life, the employer’s disability insurer had approved STD and LTD benefits. They had advised Katz that based on the medical information it was clear Clarke was unable to perform essential duties of the job. There was therefore no reasonable expectation that he would be able to return to the work.  

Six months later Clarke was informed by Katz that due to the employment contract being frustrated he would be terminated. There was no reply and Clarke was terminated. Mr. Clarke followed up with a letter claiming he was working hard to return to work but did not provide a return to work date or recovery progress or a plan to return to work. At this point he was terminated, and Clarke then sued based on breach of the Human Rights Code.

The parties agreed during litigation that based on medical evidence Mr. Clarke was totally disabled with no reasonable prospect of returning to work. Mr. Clarke also admitted that he was unable to work during discovery. At this point Katz moved for summary judgement. The motions judge determined that there were issues requiring a trial. On appeal the divisional court disagreed granting summary judgement and dismissing Clarks’ lawsuit stating “It is ‘inherently impossible’ to accommodate an employee who is unable to work”.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.