Duty to Accommodate – Perfection Not Required

By: Michelle Quinn

Reading Time: 2 minutes

In Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243, Carrie Gaucher (“Ms. Gaucher”) worked as a nurse for the Fraser Health Authority (“Fraser Health”) since 2007 at the Royal Columbian Hospital. In June 2017, Ms. Gaucher sustained a workplace injury and was off work for a few months.

In November 2017, she commenced a gradual return to work plan (“GRTW”). In total, Ms. Gaucher participated in three separate attempts to gradually return to work. Ultimately, she completed her return in April 2018.

Ms. Gaucher filed a human rights complaint (the “Complaint”) with the BC Human Rights Tribunal (the “Tribunal”) against Fraser Health and several management employees alleging that they harassed her and negatively treated her throughout her GRTW. She alleged that she was discriminated against on the basis of her disability contrary to the BC Human Rights Code (the “Code”).

She did not allege that the substantive terms of her GRTW were discriminatory. Rather, she believed that, throughout the process, her managers failed to treat her fairly and with due respect to her dignity.

Fraser Health applied to have the Complaint dismissed on the grounds that there was no reasonable prospect of success under the Code.

The Decision

The Tribunal determined that, based on all the evidence before it, there was no reasonable prospect that the Complaint will succeed at a hearing.

With specific regard to the GRTW plan and, while the conditions in the workplace were “not optimal” for Ms. Gaucher’s successful return, it did not amount to a failure to accommodate. Her experience of the GRTW was difficult, and it was not perfect. However, the standard for accommodation is not perfection. It is reasonableness (para. 87).

The Tribunal held (at para. 95):

I will consider this process, as the parties have, as three separate attempts to return to work. This approach helps understand the chronology but would not permit the Tribunal to isolate certain events in its assessment of the Respondents’ efforts to accommodate Ms. Gaucher. Rather, I agree with the Respondents that the adequacy of their accommodation must be based on “the entire history of the matter…considered on a global basis”. Hydro-Quebec at para, 404; Neumann v. Lafarge Canada Inc. (Richmond Cement Plant), 2009 BCHRT 197 at para. 370. Again, I will accept Ms. Gaucher’s version of events for the purpose of this application. Even accepting this version, however, taking a global approach to the evidence, I find it reasonably certain that the Respondents will prove they reasonably accommodated her.

If you have any questions about this case or the duty to accommodate generally, please contact any member of the Employment and Human Rights Group.

About Michelle Quinn

Michelle is a partner at RBS, and co-chair of the Employment and Human Rights Group. She acts for employees and employers and practices in all areas of employment and human rights law with a particular interest in workplace investigations. She is regularly asked to deliver training sessions to various organizations on their workplace policies including bullying, harassment, and discrimination. Michelle is also a member of the firm’s litigation and dispute resolution and personal injury law groups.
Click to learn more about Michelle Quinn

Read this next:

Am I wrong? Secretly Recording Conversations in the Workplace – BC Supreme Court Finds Employer Had Cause to Terminate

Reading Time: 3 minutes

Is it appropriate to make surreptitious recordings in the workplace, so long as one party to the conversation consents? According to a recent BC Supreme Court decision, the answer is “No”. In Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112, the Court found that Mr. Shalagin’s conduct in surreptitiously recording his colleagues constitutes just cause given the effect of the relationship of trust. The employee knew his actions were wrong, if not legally, at least ethically.
UPDATED Information as of March 25: FAQs about COVID-19 for Employers

Reading Time: 5 minutes

As of March 17, 2020, the BC Government has announced a public health emergency under the Public Health Act, and on March 23rd, 2020 the BC Government enacted an amendment to the BC Employment Standards Act specifically directed to granting “job protected” leaves for BC employees impacted by COVID-19.

BC Workplace Blog