Written By John R. Gilmore and Stephen P. Beernaert

In reasons released on May 6, 2014, the Alberta Court of Appeal dismissed an appeal by the Telecommunications Workers Union in respect of an unsuccessful judicial review application to question a labour arbitrator award. The Arbitrator had determined that TELUS Communications Inc. had no duty to accommodate a probationary employee who failed to raise his disability (which was not readily apparent) in an assertive way until days before the end of his probationary period, at which point he was terminated. The Arbitrator reasoned that the Union had to establish actual or constructive knowledge of the Grievor's disability as part of its prima facie case in accordance with the Alberta Court of Queen's Bench decision Burgess v Stephen W Huk Professional Corporation, 2010 ABQB 424. The Arbitrator also based her decision on the alternative basis that TELUS could not have accommodated the grievor without undue hardship given unrefuted medical evidence that no accommodation could be offered which would enable the grievor to perform the call centre role for which he was hired.

TELUS argued that the Arbitrator's ruling, and the rationale of the Court in Stephen P Huk Professional Corporation, was consistent with the general principle that an employee is required to bring a non-apparent disability to his employers with reasonable attention before a duty to accommodate is triggered (see Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970). The Union argued that, by requiring the Grievor to prove that TELUS had actual or constructive knowledge of his disability, the Arbitrator had wrongly added a fourth element of intention to the three-part prima facie test for discrimination, namely: (i) a protective characteristic; (ii) adverse impact; and (iii) a nexus between the protected characteristic and the adverse treatment (see Moore v Ministry of Health, 2012 SCC 61).

The Court of Appeal dismissed the Union's appeal and upheld the Arbitrator's decision. In doing so, it reasoned as follows:

• The question of the proper test for discrimination was a question of human rights law reviewable on a correctness standard. The question of whether TELUS could have accommodated the grievor short of undue hardship was a question of mixed fact and law, reviewable on a reasonableness standard.
• The Arbitrator and the reviewing Judge had misstated the test for prima facie discrimination by adding a fourth element of knowledge to the basic three-part test set out in Moore.
• Despite the error, the Arbitrator had reasonably determined that the Grievor could not have been accommodated without undue hardship. The Arbitrator had considered evidence led by TELUS and the Union of other positions in making her decision, which was consistent with other arbitral awards in human rights cases dealing with probationary employees.
• There is no procedural right to accommodation once that it is determined that substantive accommodation is not possible without undue hardship. (Canada (AG) v Cruden, 2013 SC 520).

The underlying case raised a number of interesting human rights issues, most notably whether an employee is required to bring a non-apparent disability to his employer's reasonable attention in order to trigger a duty to accommodate. Regrettably, the Court did not address this issue squarely in its reasons, simply stating that employer knowledge, actual or constructive, is not a part of the prima facie test for discrimination. This leaves it open to employees and their unions to argue that failure to raise a disability is not fatal to a human rights complaint, which is rightly a matter of significant concern for employers.

Bennett Jones LLP was counsel for TELUS before the Court of Appeal and in the decisions below.

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