Court File and Parties

CITATION: Clarke v. Katz Group Canada Ltd., 2017 ONSC 6927

COURT FILE NO.: 3068/14 SR (London)

DATE: 20171120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eugene Clarke, Plaintiff

AND:

Katz Group Canada Ltd. c.o.b. as Pharma Plus and/or Rexall, Defendant

BEFORE: Carey J.

COUNSEL: Philip B. Morrissey, Counsel, for the Plaintiff

Kathryn J. Bird, Counsel, for the Defendant

HEARD: October 24, 2017

ENDORSEMENT

[1] The defendant seeks summary judgment dismissing the plaintiff’s wrongful dismissal claim. It says the material filed supports that the plaintiff’s contract of employment was frustrated by his total disability. The plaintiff says the defendant employer made no efforts to accommodate his disability and gave no consideration to accommodating him after he indicated his desire to return to work.

[2] It is clear from the Statement of Defence that the defendant was aware of the plaintiff’s wish to return to full employment. Their response was to request further medical reports and his plans for return. He did not provide further reports or make proposals for how he might be accommodated. I disagree with the defendant that the state of law would require more from the plaintiff. His stated desire to return to work is certainly capable of being interpreted as a request to be integrated back into the workforce. The medical reports were indicating some degree of mobility and no present psychological impairments to work. It is relevant, here, that his original absence from work was stress-related and it was two falls, while on leave, that turned his absence into a long term one.

[3] The law is clear that employers have substantive duties and need to have procedures in place to accommodate employees with disabilities up to the point of undue hardship to the employer. A failure to even consider the issue of accommodation and what steps could be taken has been held to constitute a failure to satisfy the procedural obligation. It is arguable here that the defendant’s failure to spend the time and effort to explore with the plaintiff how his desire to return to work could be accommodated resulted in a “rush to judgment” that breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, Ontario.

[4] The record before me indicated an almost complete lack of personal contact between the defendant employer and their long term managerial employee. There appears to be no offer of rehabilitation help or any discussion with the employee plaintiff as to what his goals were. The employer is the one in the best position to know how an employee can best be accommodated in their operation. Use of crutches, walker or even a wheelchair all would seem reasonable areas of discussion that could have been initiated by this employer who in their statement of defence states that their business mandate is to deliver pharmacy care through its integrated network of more than 420 corporately-owned pharmacies.

[5] There is, on the record before me, a genuine issue for trial as to whether: a) the plaintiff was terminated as he states because of his disability or b) his contract of employment was frustrated by his inability to work as the defendant argues. The plaintiff argues that the defendant breached its obligations to accommodate him in violation of the Ontario Human Rights Code. There is a genuine triable issue as to whether the defendant fulfilled its duty to accommodate the plaintiff, given his express desire to return to work.

[6] The defendant’s motion for summary judgment is dismissed. If the parties are unable to agree on costs I will receive written submissions from the plaintiff within ten days of this endorsement and from the defendant within seven days of those submissions. Submissions should not exceed three double-spaced pages.

Original signed “Carey J.”

Thomas J. Carey

Justice

Date: November 20, 2017