Appendix 2: Case law
Human rights case law is constantly evolving, based mostly on cases that come before the courts and human rights tribunals. Cases addressing medical information issues can also be found in the context of privacy law and labour law. While privacy and labour law cases are informative, the area of human rights has its own legislation and requirements to fulfill human rights obligations in an employment context. For more information on where to find privacy law cases, see the Related resources section.
This section outlines some of the key cases that have addressed medical information in a human rights context. The cases are listed in alphabetical order and come from a human rights tribunal, a labour arbitration board applying human rights principles, or one of the levels of court. Alberta human rights tribunal decisions are published on the Canadian Legal Information Institute (CanLII) website at www.canlii.org/en/ab/abhrc. Decisions are also published in the Canadian Human Rights Reporter (C.H.R.R.), which can be obtained at a Law Society Library. To find the Law Society Library nearest you, visit http://www.lawlibrary.ab.ca/.
1. Legal principle: Where there is a connection between an employee's medical condition and misconduct, the employee cannot be held responsible for the misconduct.
Mr. Bender was terminated on April 12, 2002 for assaulting a co-worker and the plant manager. Five days later he was involuntarily committed to a mental health facility and diagnosed with a severe mental disorder. Mr. Bender had worked for the plant for 29 years and had a clean discipline record. The company argued that Mr. Bender was not suffering from a mental illness at the time of the assault and therefore it had a right to terminate him. It argued that the misconduct was deliberate and not caused by the onset of an acute manic episode.
The collective agreement prohibited discrimination on a list of grounds that did not include disability. The arbitrator noted that the collective agreement must meet the standards of Alberta's human rights legislation which does include disability. The arbitrator reviewed cases and found that the question of whether the employer was allowed to terminate Mr. Bender's employment came down to whether Mr. Bender was responsible for his behaviour. The rule is: "Where an employee is suffering from a physical or mental disability that is implicated in the misconduct that has resulted in discharge, the conduct is not culpable."
The arbitrator examined two questions to determine whether this rule was satisfied:
1. Is there a pre-existing medical condition?
2. Is there a connection between the misconduct and the medical condition?
The arbitrator found that Mr. Bender's judgment on April 12, 2002 was impaired because of his mental disorder and therefore he was relieved of responsibility. The company argued that it had no duty to accommodate Mr. Bender because it had not been informed or given any medical information about the mental disorder. But the arbitrator found that, on the specific facts of this case, the employer did have a duty to accommodate Mr. Bender. The arbitrator found that the company failed in the accommodation because they took no steps to investigate Mr. Bender's situation or offer him disability benefits. After the assault, Mr. Bender began taking medication for his mental disorder. His behaviour stabilized and he had been working at a new job since then without an incident. The arbitrator reinstated Mr. Bender to his former position with the condition that he must continue medical treatment and notify the company if he stopped taking mood-stabilizing drugs.
United Steelworkers of America, Local 5885 v. Sealy Canada Ltd. (Bender Grievance),  A.G.A.A. No. 8.
2. Legal principle: Accommodation must be reasonable, not instant or perfect.
Ms. Callan worked for Suncor in a clerical position until she developed a debilitating disease. Her condition deteriorated rapidly and she became dependant on a wheelchair. When she returned to work she found that the workplace was not wheelchair accessible. She filed a human rights complaint alleging discrimination on the ground of disability and indicated the employer had not accommodated her disability. The complaint was dismissed, and the chief commissioner upheld the dismissal.
Ms. Callan sought a judicial review in the Court of Queen's Bench, asking for a review of the process the chief commissioner used in making the decision to dismiss the complaint. The judge quashed the decision of the chief commissioner and referred the complaint back to a human rights panel. However, Suncor and the chief commissioner appealed the Queen's Bench decision in the Court of Appeal.
The Court of Appeal overturned the Queen's Bench decision and found that the chief commissioner's decision was reasonable and therefore the case should not have been sent back to a human rights panel. The court concluded that Suncor had reasonably attempted to accommodate Ms Callan and said there is no duty of instant or perfect accommodation, only reasonable accommodation. The employee is not entitled to dictate the accommodation he or she will accept, nor is the employer required to accept the employee's own subjective assessment of his or her abilities.
Callan v. Suncor 2006 ABCA 15
3. Legal principle: While an employer is not entitled to a diagnosis of the employee's disability, except in limited circumstances, an employer is entitled to specific information to assess a reasonable accommodation.
Ms. Schram worked as a nurse on a 2/3 rotation shift at the Royal Alexandra Hospital. A majority of nurses voted to change to a 4/5 rotation. However, Ms. Schram had a variety of unspecified health issues that were made worse by working more than 3 shifts in a row. She was concerned about the new rotation schedule and therefore visited her doctor to discuss the matter. Her doctor advised that Ms. Schram should stay on the 2/3 rotation. Ms. Schram's supervisor sent the doctor's note to the Occupational, Health, Safety and Wellness (OHS&W) specialists with a note saying that accommodating Ms. Schram's request would be possible. OHS&W contacted Ms. Schram and asked her to fill out a Physician Modified Work Information Form, which asked for the diagnosis, medical tests ordered, prescribed treatment, description of signs, symptoms and objective findings, and a recommendation with respect to modified duties. The United Nurses of Alberta, Local 33 advised Ms. Schram not to complete the form, but instead to meet with her doctor to get the pertinent information. Ms. Schram met with an occupational health specialist who wrote a report on her condition. Ms. Schram submitted a summary of that report to OHS&W. Dr. Lee, a medical consultant, hired by OHS&W to review employee health requests, denied Ms. Schram's request for accommodation because the request was not supported by current medical information. Dr. Lee felt that the summary report was too vague and did not include enough specific information about Ms. Schram's illness. He specifically mentioned that the summary report did not include a diagnosis, diagnostic tests, specific restrictions, and the expected duration of the disability. The union was opposed to the disclosure of an employee's diagnosis.
The arbitration board found that some of the information requested by OHS&W was unnecessary, but also that Ms. Schram had not provided enough information to find a reasonable accommodation. The employer was entitled to more information, which the employee refused to provide, and therefore it was reasonable to deny her request for accommodation. The arbitration board suggested that employers could request information such as:
- whether it is a temporary or permanent illness;
- what restrictions and limitations an employee has; and
- whether a treatment or medication the employee is taking will affect the employee's ability to perform job duties.
The Court of Queen's Bench affirmed the arbitration board's decision. The Court found that Ms. Schram had not provided enough information to prove she had a disability under Alberta's human rights legislation. Therefore, there was no need for the employer to enter into a discussion of accommodation or to meet the test of undue hardship. The diagnosis is not required, but there must be information provided by the employee that links the symptoms to the accommodation being requested.
Capital Health Authority (Royal Alexandra) v. United Nurses of Alberta, Local 33 (Schram Grievance),  A.G.A.A. No. 60 at para. 70, affirmed 2008 ABQB 126
4 . Legal principle: The universal application of an absenteeism policy to injured workers is discriminatory.
Mr. Gariano was a construction worker, contracting for Fluor Constructors Canada Ltd. On January 23, 2002, Mr. Gariano sprained his left thumb, wrist and medial epicondylitis when he was pulling on a tarp on the job site. He visited the nurse and shortly after was given a modified work offer that stated that his progress would be continually reviewed to adjust the length of time he needed to be on modified work. Shortly after, Mr. Gariano was told that he was not eligible for re-hire for 90 days. Mr. Gariano then received a letter from WCB stating that he had tendonitis in his left wrist and thumb. In addition, Mr. Gariano was still experiencing pain. Two weeks later Mr. Gariano was fired for the following reasons:
1. He was not eligible for rehire.
2. He quit due to personal reasons.
3. He was discharged due to absenteeism because of no contact with supervision in over three consecutive shifts.
Mr. Gariano made a human rights complaint. Mr. Gariano had given the employer a medical slip from his doctor stating that he could not return to work for a few weeks. However Fluor Constructors was pressuring WCB to return Mr. Gariano to the worksite.
The human rights panel found that Fluor Constructors had discouraged Mr. Gariano from seeing his own doctor and tried to prevent him from taking a medical leave. There was some conflicting medical evidence, but it was the responsibility of the employer to work with WCB to clarify Mr. Gariano's work status. Mr. Gariano was terminated for absenteeism. However, the company made a mistake in applying an absenteeism policy to a workplace injury. The panel stated that an absenteeism ". . . policy does not supersede human rights law. . . . Universal application of this policy to injured workers is discriminatory."
Gariano v. Fluor Constructors Canada Ltd. (2006), 57 C.H.R.R. D/43 (Alta. H.R.P.)
5. Legal principle: The employer has an obligation to patiently and carefully assess the accommodation needs of a disabled employee.
Mr. McLellan was a wood room cleaner who began having back pain. Mr. McLellan's doctor recommended that he take a temporary sick leave. During sick leave, Mr. McLellan discovered that he had degenerative disc disease. He returned to work and was given lighter duties. His employer was unsure how long it would be before Mr. McLellan could return to full duties. Mr. McLellan's illness appeared worse at the end of his first month back at work, so his employer terminated his position. The Nova Scotia Board of Inquiry ruled that the employer had not made the necessary inquiries to determine if Mr. McLellan's accommodation needs would result in an undue hardship to the company. Had the employer requested further information from Mr. McLellan's doctor, it would have discovered that Mr. McLellan would have been fit to return to full duties within a relatively short period of time.
McLellan v. MacTara Ltd. (No. 2) (2004), 51 C.H.R.R. D/103 (N.S. Board of Inquiry)
6. Legal principle: It is the employee's responsibility to prove the connection between a symptom and a medical issue.
Mr. Neumann worked for the Edmonton Public School Board as a supply custodian. His position was terminated in June 2002, in part because of his objectionable body odour. Mr. Neumann alleged that his body odour problem was caused by having polio in childhood. Neumann said that he would provide a note from his doctor confirming the link between body odour and childhood polio, but he never produced a letter. The human rights investigator found that Neumann had blocked attempted communications with his doctor and that no evidence supporting the link between body odour and polio had been provided. The employer was justified in terminating Mr. Neumann's position. His complaint was dismissed. Mr. Neumann sought a judicial review of the decision, but the Alberta Court of Queen's Bench and the Court of Appeal both dismissed his appeal.
Neumann v. Alberta (Human Rights and Citizenship Commission),  C.C.S. No. 13751 (ABQB) ,  C.C.S. No. 14839 (ABCA).
7. Legal principle: Employers must ask for only the particular medical information needed on a case-by-case basis, and ensure they are not requesting more information than needed at any particular time.
The Peace Country Health Region introduced new forms and procedures to manage sick leave under Article 19.04 of the collective agreement:
Employees may be required to submit satisfactory proof to the Employer of any illness, non-occupational accident or quarantine. Where the Employee must pay a fee for such proof, the full fee shall be reimbursed by the Employer.
Under the new procedures employees who were absent for more than 14 days were automatically required to have a doctor fill out a medical form. The employer could also request the form at an earlier date, if warranted under the circumstances.
The forms included an open-ended release that authorized the employer to have unlimited communication with the employee's doctor. The forms also asked for the employee's diagnosis, treatment and tests.
The grievance arbitration board ordered that the employer cease using the forms because they violated the collective agreement. The board noted that employees have a right to privacy in their medical information. The forms, which included a blanket release to the employer to contact the doctor, were over-broad.
Employers are entitled to baseline information on an employee's illness. There are less intrusive methods of gaining medical information than using a form which permits a "direct and unregulated pipeline to the employee's health care provider." The employer's demand of a release, such as the one on the forms, goes beyond the scope of Article 19.04. Employers can gain the necessary medical information from employees by providing their questions, in writing, to the employee to bring to their doctor. The policy and forms introduced by Peace Country Health Region were unreasonable and not authorized by the collective agreement.
Peace Country Health v. United Nurses of Alberta,  A.G.A.A. No. 17 (Sims).
8. Legal principle: An employer should make a clear request for further medical information, including what kind of information is needed and the format in which it can be submitted.
Mr. Trick had bipolar disorder and was off work on a medical leave. When he was ready to return to work, he contacted his employer to let them know. The employer provided Mr. Trick with a package of documents to be filled out by his doctor. Mr. Trick's psychiatrist wrote that he was medically fit to return to work and forwarded the documents to the appropriate parties. Mr. Trick had difficulty getting the other forms filled out. The employer argued that they needed more information to ensure that Mr. Trick was not a safety risk driving a car for a sales position. Also the employer wanted to ensure that Mr. Trick was able to interact with customers in social situations. The Alberta Court of Queen's Bench found that the employer had not requested any information from the doctor about Mr. Trick's ability to drive. Mr. Trick had told the employer, at a meeting, that he was having difficulty having the forms filled out by the staff that ran a day program where he was being treated. Mr. Trick had received clearance from his psychiatrist to return to work with no restrictions. The employer did not inform Mr. Trick that this was insufficient medical information or tell him that he would not be able to return to work until he provided further information. The Alberta Court of Queen's Bench said that the Mr. Trick had not resisted providing information to the employer and that he had done his best to provide the necessary information to the employer. No one asked Mr. Trick to clarify the psychiatrist's letter or told Mr. Trick he needed to supply more information. Therefore the Alberta Court of Queen's Bench awarded Mr. Trick compensation for lost wages and pension benefits as well as damages for pain and suffering.
Alberta (Human Rights and Citizenship Commission) v. Federated Co-operatives Limited, 2005 ABQB 587