On June 28, 2011, the Ontario Superior Court of Justice allowed an Application for Judicial Review of the decision of the Human Rights Tribunal in Toronto Community Housing Corporation v. Boyce,  O.H.R.T.D. No. 724. The Superior Court has ordered that the matter return to the Human Rights Tribunal (the “Tribunal”) for a new hearing before a different adjudicator. Interestingly, the decision to return the case for a new hearing was done on consent between all the parties, including the Human Rights Tribunal.
In the overturned decision, the Tribunal held that the employer was in breach of the Ontario Human Rights Code (“OHRC”) even though the employer had discharged its duty under the WSIB’s early and safe return to work (“ESRTW”) policy. In other words, if an employer tells the WSIB that it does not have suitable work available for the worker, and in the absence of evidence that the employer cannot accommodate the worker because to do so would result in undue hardship, the employer may have breached its duty under the OHRC even if it has satisfied its duty under the ESRTW policy. In the view of the Adjudicator, under the terms of the ESRTW policies, the question that the WSIB asks the employer is: “do you have suitable work?” This is different than the question under the OHRC, which is: “can you accommodate this worker’s disability, to the point of undue hardship?”
The parties decision to quash the decision is welcome news to employers as the original Adjudicator’s decision presented a potentially untenable situation whereby an employer would still be found to be in breach of the OHRC even if it was in compliance with the ESRTW.
If you have any questions about the implication of this decision or other questions pertaining to the duty to accommodate a disability, please do not hesitate to contact a Mathews Dinsdale lawyer.