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June 16, 2016

The Surprising Scope of an Employer’s Duty to Accommodate

Author Hendrik Nieuwland

All employers know they have a duty to accommodate employees with disabilities under Ontario’s Human Rights Code (the “Code”).  The full extent of that duty may surprise many employers.  Does the duty require an employer to put a disabled employee into a position slated for downsizing?  Does the duty require an employer to put a less qualified disabled employee into an open position?  The recent case of Hamilton-Wentworth District School Board v. Fair, from the Ontario Court of Appeal, says the answer to both questions is “Yes”.


The respondent, Sharon Fair (“Fair”), started her employment with the appellant, Hamilton-Wentworth District School Board (the “School Board”) in 1988 in the position of Supervisor, Regulated Substances, Asbestos.

In the fall of 2001, Fair developed an anxiety disorder and was subsequently diagnosed with depression and post-traumatic stress. The disability developed in response to the stressful nature of Fair’s position.  In October 2001, Fair commenced a medical leave of absence and received long-term disability (“LTD”) benefits for approximately two (2) years.

During Fair’s leave of absence she indicated her desire to return to work. Fair’s physician informed the School Board of Fair’s employment restrictions. For example, Fair was unable to do work involving any “personal liability”.

In 2003, certain positions opened up at the School Board. One such position was “Staff Development Supervisor”. Although Fair was interviewed for the position, another employee was chosen as the successful candidate. Fair also expressed interest in another position, “Area Supervisor”. However, Fair was informed by the School Board that her medical condition precluded any accommodation within that department.

Although Fair’s restrictions were communicated to the School Board by her physician, the School Board did not identify another suitable position for Fair. She was terminated on July 8, 2004.

Human Rights Tribunal

In 2012, the Tribunal determined that the School Board “failed to actively, promptly, and diligently canvas possible solutions to [Ms. Fair’s] need for accommodation”.  The Tribunal held that the School Board could have accommodated Fair by placing her into the position of either Staff Development Supervisor or Area Supervisor. By not doing so, the School Board failed in its duty to accommodate Fair.

As a remedy, the Tribunal ordered the School Board to reinstate Fair. Although the School Board argued that the passage of time, roughly nine (9) years, precluded such reinstatement, the Tribunal rejected the argument. This decision was upheld by the Divisional Court.

Court of Appeal

The Court of Appeal grappled with the question of whether the Tribunal’s finding that the School Board failed to accommodate Fair, upheld by the Divisional Court, was reasonable.

(i) Area Supervisor position

The School Board ultimately decided not to fill the position of Area Supervisor due to budgetary restraints. Rather, the School Board redistributed the duties of the position among existing employees.

The Court of Appeal found no evidence that the School Board did not have the financial resources, even during a period of fiscal restraint, to fill this position.  Rather, the School Board’s 2003/2004 budget provided for the position of Area Supervisor and it would not have caused undue hardship for the School Board to place Fair into the position of Area Supervisor. Thus, Fair should have been placed into the position of Area Supervisor.

(ii) Staff Development Supervisor position

The School Board argued that the position of Staff Development Supervisor was occupied by another employee, no less qualified than Fair. To place Fair into the position would have required the School Board to displace the other employee.

The Court disagreed, holding that the position was vacant when Fair applied. The Court held that “to fulfill its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified”.

Thus, Fair should have been placed into the position of Staff Development Supervisor despite the fact that she had failed to win the competition for that position. Although Fair’s employment was terminated in 2004, approximately 12 years before the Court of Appeal’s decision, it was not unreasonable to order reinstatement into a suitable position.


The Hamilton-Wentworth case certainly has expanded the scope of an employer’s duty to accommodate a disabled employee, and the consequences for failing to do so.  The duty is clearly an onerous one.  It may require an employer to place a disabled employee into a position that they are not the most qualified for.  And it may require an employer to keep a position slated for downsizing open just so the disabled employee can fill it.  The damages for failure to meet this duty can be enormous, as shown in Hamilton-Wentworth, which required the employer to re-instate the employee after 12 years with full back pay.  Employers are therefore well advised to engage in a thorough review of all possible options for accommodating disabled employees, and to obtain the appropriate legal advice before acting.

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