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January 27, 2003
Ottawa—Employers
may refuse to accommodate a disabled employee based on their own
observations of the employee’s capacities, and are not necessarily required
to consult with medical experts, ruled British Columbia’s Court of Appeal in
a recent decision that will have far-reaching implications for employers
and managers.
In Oak Bay Marina Ltd. v. British
Columbia (Human Rights
Commission)
the British
Columbia Court of Appeal considered the case of Mr. Gordy,
an employee who suffered from bipolar affective disorder, and who was
refused permission to pilot a tourist fishing boat by his employer, Oak Bay Marina.
Launching a claim before British Columbia’s Human Rights Tribunal, Gordy claimed that his employer did not accommodate his
disability in accordance with provincial human rights laws. Agreeing, the
Tribunal ruled that the tests Oak Bay Marina had given Gordy
to determine his fitness to pilot a boat were
“irrelevant.” The only evidence available to the employer on which it could
make an accommodation decision, said the Tribunal, was the medical opinion
given by Gordy’s doctors.
On a judicial review of this decision, the judge in chambers found
that the Tribunal had erred in law by ruling the employer had no grounds to
refuse Gordy work as a boat operator. The
Tribunal had not considered the observations of Gordy’s
behaviour made by the employer. These observations could form the basis of Oak Bay’s refusal to offer accommodation,
ruled the judge.
On appeal, Justice Newbury agreed, ruling that an employer’s direct
experience of a disabled employee’s capacities was “clearly relevant
evidence for any employer entrusted with the physical safety of guests or
customers.”
“To suggest that [Oak Bay Marina] was required to put this experience
of Mr. Gordy out of its mind and that it only
acted on the basis of stereotyping is simply incorrect,” said Justice
Newbury, ruling that since the employer had informed itself of the
employee’s capacities by testing his ability on the water, the Tribunal was
ordered to rehear Gordy’s human rights complaint.
“Employers cannot ignore the testimony of a disabled employee’s
doctors,” says Jorge Talbott, a consultant and labour lawyer with Ottawa management consulting firm Labour Relations Consultants, “but
a medical opinion doesn’t always trump an employer’s observations as to an
employee’s fitness, particularly where there are concerns of public
safety.”
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