In this case, the British Columbia Court of Appeal addressed the issue
of the correct legal test for 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. Kirkpatrick J.A.,
writing for the court, held that the test articulated in
Communications, Energy & Paperworkers’ Union of Canada (CEP), Local
789 v. Domtar Inc. remains the test to be applied in the
circumstances where discrimination is alleged, and that it was
appropriately applied in this case.
The three elements of the test for prima facie discrimination are that
the complaint have a real or perceived disability, that he or she
received adverse treatment, and that his or her disability was a
factor in the treatment. Justice Kirkpatrick rejected the appellant’s
suggestion that there is an additional requirement in the test whereby
a disabled employee must establish a material change in circumstances
when requesting a return to work before prima facie discrimination can
be established. The employer's duty to accommodate obliges it to
investigate what an employee who wishes to return to work is capable
of doing; there is no onus for the employee to prove that he or she is
in fact capable.
June 9, 2011
Link to Decision
Marc Gibson & Ryan MacIsaac
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