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Queen's University
 

Desormeaux

What documentation is considered appropriate to demonstrate the need for accommodation for disability?

Facts

The Ottawa-Carleton Commission (OC Transpo) requires its drivers to attend work on a regular and reliable basis. In 1988, it dismissed Desormeaux, a chronically absent driver who, over the past nine years, suffered from transitory illnesses and migraine headaches. However, the two absences that specifically provoked her dismissal were both due to migraine. Before her dismissal, Desormeaux's family doctor had provided documentation attesting that her patient's intermittent ailments had been resolved and that, recently,her chronic migraine headaches were being controlled moderately by physiotherapy. OC Transpo rejected the doctor's note, claiming that a family doctor did not have the qualifications to make a diagnosis of migraine. The employer refused to accommodate the employee, claiming that poor past performance was an indicator of poor future performance. A Human Rights Tribunal ruled that OC Transpo had discriminated against Desormeaux on the basis of physical disability; and ordered that she be reinstated and compensated. (Desormeaux v Ottawa-Carleton Regional Transit Comm. (No2) (2003), 46 C.H.R.R. D/1, 2003 C.H.R.T. 2.)

Questions:

  1. Was it appropriate for the employer to refute a family doctor's assessment of migraine?
  2. Did the employer accommodate the employee to the point of undue hardship?

Ruling

  1. No
  2. No

Reasoning:

  1. The family doctor who informed the employer that the employee had a physical disability had sufficient expertise to make the diagnosis. Moreover, a neurologist had previously established the same diagnosis.
  2. The employer failed to accommodate the employee to the point of undue hardship when it rejected legitimate medical evidence that determined that the employee had a chronic disability whose debilitating effects had been improving over time. The employer should have accepted the medical evidence and considered appropriate alternative work arrangements for the disabled employee.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000