eCaseNote 2011 No. 04

Disabled Employee Discrimination Test Confirmed

Boehringer Ingelheim (Canada) Ltd./Ltee. v. Kerr, 2011 BCCA 266

This appeal case from BC concerned the correct legal test for finding prima facie discrimination when an employee who has been on disability leave requests a return to work and is not returned to work by the employer.

Kerr was hired by Boehringer Ingelheim (Canada) Ltd. (“BICL”) in July 1996 as a pharmaceutical sales representative, a job that required Kerr to drive and use a computer. In November 1999, Kerr was diagnosed with cataracts.  She was advised that her vision would continue to deteriorate and she would have little or no sight within two years.    In May 2000, Kerr advised BICL that she wished to resign, however BICL suggested she apply for disability leave which she did.    Later it was proved that Kerr’s prognosis was overly pessimistic.

  In September 2002, Kerr’s disability insurer informed her that her disability benefits were to terminate because she was capable of working at some occupation. In November 2002, a human resource representative of BICL met with the insurer and understood that Kerr wanted to return to work.  The BC Human Rights Tribunal found that BICL was obliged to undertake a meaningful inquiry with respect to Kerr’s return to work but failed to do so. Throughout all relevant times, BICL was aware that Kerr was not totally blind, and capable of meeting the demands of her job with minimal restrictions.   

The Court dismissed BICL’s petition for judicial review, as well as its argument that the Tribunal misinterpreted and misapplied the legal test for prima facie discrimination, and confirmed the three‐part test for prima facie discrimination set in Communications, Energy & Paperworkers’ Union of Canada v. Domtar Inc.2009 BCCA 52:

  1. He or she had (or was perceived to have ) a disability;
  2. He or she received adverse treatment; and
  3. His or her disability was a factor in the adverse treatment.
 

The Court rejected BICL’s argument that “something more”‐ namely objective evidence of the disabled employee’s ability to work‐ needed to be established, and identified the following reasons for doing so: 

  • BICL’s assessment of the law was simply wrong. BICL did not dispute the findings that in November 2002 it was aware that Kerr wanted to return to work and that it took no steps to return her to work. BICL argued that Kerr not only needed to state that she wanted to return to work but also provide objective evidence to support that she was able to do so. The Court found that this argument inserted the accommodation analysis into the prima facie test, and improperly put the onus on Kerr to figure out for herself if she could work despite her disability. To do this would put the employee in an impossible situation because she may not be aware that the employer has a duty to accommodate, or she may not be able to afford the resources to enable her to gain an understanding of the legal obligations required of an employer.
  • If BICL was correct in its assessment of the law, the success of the argument would be dependent upon accepting a version of the facts that the Tribunal did not accept – that is, the assertion that BICL took immediate and reasonable steps to return Kerr to work.
  • There was objective evidence of the fact that Kerr not only wanted to return to work but that she was able to return to work. 


Ultimately, the Court concluded that, in the circumstances of the case, the Tribunal’s finding of prima facie discrimination was not only reasonable, it was also correct. 

It is important that all employers conduct their own assessments of employees requesting to return to work after an absence due to a disability.  It is not acceptable for an employer to place the burden of determining whether an employee is fit to return to work on the employee. 



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