September 2019

In Katz et al. v. Clarke, the Ontario Divisional Court considered the issue of whether an employee’s desire to work prevents the employer from terminating them. Employers find themselves in a dilemma when their employee expresses a desire to return to work from disability leave while their doctor recommends otherwise. The Ontario Court of Appeal upheld the decision and confirmed a rule that assists employers in determining whether they can terminate a disabled employee. In Katz et al. v. Clarke, the employee had been on disability leave since 2008. The employee went on short-term leave which transformed into long-term leave….

Employers across Canada are well-versed in their duty to accommodate under human rights legislation. Outsourcing disability management to outside experts is one strategy employers are using to separate such duties from their main work functions, thereby increasing concentration on core business and maintaining confidentiality in the workplace. In Knight v. Surrey Place Centre, the Ontario Human Rights Tribunal considered employer human rights obligations and issues surrounding delegation of the duty to accommodate. The Tribunal held that while it is acceptable for employers to outsource disability management, such an arrangement does not change employers’ obligations to disabled employees: “If the employer…

As of January 1, 2018, claims for work-related chronic mental stress have been recognized in workplace compensation cases in Ontario. However, the vast majority of these chronic mental stress claims have been unsuccessful given the difficult criteria required to prove these claims. A worker is generally entitled to benefits for chronic mental stress “if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor.” In addition, the WSIB decision-maker must be able to identify what has happened to cause chronic mental stress, including through the gathering of information from co-workers and supervisory staff. This process represents a…