Federal Appeal

Human Rights Legislation

No duty to accommodate if employer legitimately unaware of employee’s disability

In January 2009, applicant was terminated from employment for time theft. Applicant’s grievance was dismissed. In August 2009, applicant obtained psychiatric report that indicated he had bipolar affective disorder. Applicant requested that employer reinstate him based on psychiatric report but employer refused in November 2009. In January 2010 applicant filed complaint under Canadian Human Rights Act alleging that former employer discriminated against him on basis of mental disability, race and national or ethnic origin in terminating employment. Human Rights Commission dismissed complaint on basis that there did not appear to be any link between alleged discriminatory acts and any prohibited ground of discrimination. Applicant requested commission reopen complaint. Report recommended applicant’s complaint be dismissed. Commission dismissed complaint because it was filed out of time and it was vexatious. Applicant applied for judicial review. Federal Court judge found that applicant had not been denied procedural fairness and that commission’s decisions were reasonable. Application for judicial review was dismissed. Applicant appealed. Appeal dismissed. There was no duty to accommodate if employer was legitimately unaware of employee’s disability. Applicant’s employment was terminated in January 2009 and that was last act that was related to employment. To find that last act was refusal of employer to reinstate applicant in November 2009 would mean that employee would have control over commencement of limitation period by choosing when to submit request for reinstatement. It was reasonable in circumstances for commission to determine that, for purposes of Act, refusal of employer to reinstate applicant as employee should not be considered as possible discriminatory act because it occurred after his employment was terminated. Commission’s finding that last alleged discriminatory act occurred in January 2009 when applicant was dismissed was reasonable. Commission’s decision not to extend time for filing complaint was reasonable.

Khaper v. Air Canada (Apr. 16, 2015, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-138-14) Decision at 239 A.C.W.S. (3d) 984 was affirmed.  251 A.C.W.S. (3d) 646.

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