An employer's breach of its procedural duty to accommodate was a significant factor in the decision to uphold a human rights application in Sears v Honda of Canada Mfg., 2014 HRTO 45.  The employee, whose job it was to spot vehicle defects on a computer screen, began to experience increasingly serious performance issues due to vision problems.  The problems had been evident for more than a year before the employer took measures to accommodate him.  When he sought additional assistance, he was terminated.

The termination was found to have been motivated at least in part by the employee's perceived dissatisfaction with the employer's accommodation efforts and by his assertion of his rights under the Human Rights Code.  The Tribunal found that the employer was aware, from the employee's initial employment application and his subsequent performance difficulties and requests for assistance, that his colour blindness and myopia were causing problems.  The employer breached its procedural duties when it failed to make inquiries about his need for accommodation in these circumstances, despite the absence of a formal request from the employee.

The employer's absence of a clear policy addressing accommodation and the process involved to attain it was a contributing factor to the ultimate termination, as was the employer's failure to investigate the employee's discrimination complaints and its failure to adhere to the accommodation plan eventually put in place.  The employer was held liable for compensation of $35,000 for the employee's intangible loss and was directed to hire a professional to draft an accommodation policy.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.