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Does the Duty to Accommodate Survive an Employee’s Dismissal? 

29 Jul 2015

The Canadian Human Rights Commission ("CHRC") dismissed Mr. Davinder Khaper’s ("Mr. Khaper) complaint alleging that his former employer, Air Canada, had discriminated against him based on his mental disability, race and national or ethnic origin in terminating his employment. Mr. Khaper proceeded to bring an application for a judicial review of the CHRC’s decision with the Federal Court. He was not successful, so he appealed further. In Khaper v. Air Canada, 2015 FCA 99, the Federal Court of Appeal dismissed Mr. Khaper’s appeal. 

Mr. Khaper commenced work with Air Canada in 1997. During that time he was often subject to letters of expectation and discipline relating to either time theft or insubordination. Mr. Khaper was eventually fired for time theft in January, 2009. 

In August 2009, Mr. Khaper retained counsel and obtained a psychiatric report that indicated for the first time that Mr. Khaper had bipolar affective disorder. There was no indication that either Mr. Khaper or Air Canada knew of this diagnosis prior to August 2009. 

In January 2010, Mr. Khaper filed a complaint with the CHRC alleging that Air Canada discriminated against him on the basis of mental disability, race and national or ethnic origin in terminating his employment. The CHRC dismissed his complaint on the basis that there did not appear to be any link between the alleged discriminatory acts and any prohibited ground of discrimination. Mr. Khaper asked that the CHRC reopen his complaint. Again, his request was dismissed. Mr. Khaper then applied for judicial review. The Federal Court judge found that Mr. Khaper had not been denied procedural fairness and that the decision of the CHRC was reasonable. Mr. Khaper then appealed to the Federal Court of Appeal. 

The Federal Court of Appeal found that the premise of Mr. Khaper’s appeal was that the employer’s duty to accommodate survived an employee’s dismissal. However, the Federal Court of Appeal disagreed with this premise. 

The Federal Court of Appeal held that there is no duty to accommodate if the employer was legitimately unaware of an employee’s disability at the time of dismissal. The Federal Court of Appeal went on to state that to find otherwise would mean that the employee would have control over the commencement of the limitation period by choosing when to submit a request for reinstatement. It is reasonable for the CHRC for the purposes of the Act to decide that it was reasonable for an employer to refuse to reinstate an employee and it should not be considered discriminatory because it occurred after the employment was terminated. 

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.