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No Obligation to Accommodate Employee “Wishes”

An Ontario court recently confirmed that an employee’s desire to return to work does not on its own trigger a duty to accommodate

In Katz Group Canada Ltd. v. Clarke, 2019 ONSC 2188, Mr. Clarke's employment was terminated following a five year absence, after the long term disability provider told the employer that Mr. Clarke was unable to perform the essential duties of the position and would be incapable of returning to work in the reasonably foreseeable future.   Mr. Clarke responded, through his legal counsel, that he was working very hard to get well and wished to return to work.  The employer requested updated medical evidence to determine Mr. Clarke's estimated return to work date.  Updated medical information was not provided and the employer proceeded to dismiss Mr. Clarke on the basis that the employment contract was frustrated. 

The Ontario Superior Court held that the employment contract was frustrated because Mr. Clarke's disability was permanent. 

The Court also held that the employer’s duty to accommodate ends when an employee is no longer able to perform the essential duties of their position for the foreseeable future.  As the court stated: “it is ‘inherently impossible’ to accommodate an employee who is unable to work”.  The fact that the employee wished to return to work did not trigger a duty to accommodate. 

If an employment contract is frustrated, the employee is not entitled to common law notice of termination.   The employee may be entitled to statutory notice or severance, depending on the applicable employment standards legislation.  For example, in British Columbia, there is no requirement to provide statutory pay in lieu of notice if an employment contract is frustrated, whereas in Ontario, there is a requirement to provide all statutory termination entitlements in the event of a frustration of contract.

This is an important decision for employers since it confirms that an employer can dismiss an employee on the basis of frustration of contract without breaching its duty to accommodate.  

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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