



COURT OF APPEAL FOR ONTARIO

CITATION: Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA
    641

DATE: 20170803

DOCKET: C61659

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Darren Nason

Plaintiff (Appellant)

and

Thunder Bay Orthopaedic Inc.

Defendant (Respondent)

Daniel Matson, for the Plaintiff (appellant)

Donald B. Shanks and Jordan Lester, for the Defendant
    (respondent)

Heard: April 20, 2017

On appeal from the judgment of Justice J.S. Fregeau of
    the Superior Court of Justice, dated December 30, 2015.

REASONS FOR DECISION

[1]

The appellant, Darren Nason, was an orthotic
    technician working for the respondent, Thunder Bay Orthopaedic Inc. He
    developed problems with his arms and hands as a result of the physical demands
    of his work. The respondent placed him on a medical leave of absence on August
    18, 2010, and terminated his employment on January 22, 2013. The appellant sued
    for wrongful dismissal and for damages under the
Human Rights Code
for his employers failure to accommodate his disability and for
    disability related discrimination. The trial judge awarded damages for wrongful
    dismissal equal to 15 months pay in lieu of notice, net of WSIB benefits the
    appellant received during that period, plus $10,000 in damages for breach of
    the
Human Rights Code
, finding that the
    disability was a factor in the respondents decision to terminate the
    appellants employment.

[2]

The appellant submits that the trial judge erred
    by refusing to award him additional damages for loss of income between August
    18, 2010, and January 22, 2013. He says the trial judge erred in concluding
    that the respondent had accommodated his disability to the point of undue
    hardship on August 18, 2010, and that the employer was justified in placing him
    on medical leave on that date.

[3]

The respondent cross-appeals. It submits that
    the trial judge erred by failing to find that the employment contract was
    frustrated by the appellants disability. The respondent submits that at the time
    of termination, there was no reasonable likelihood of the employee being able
    to return to work within a reasonable time.

[4]

For the reasons that follow, both the appeal and
    the cross-appeal are dismissed. Neither party has demonstrated palpable and
    overriding error on the part of the trial judge.

A.

The trial judges reasons

[5]

Both parties agree that the trial judge
    correctly articulated the applicable legal tests. Both disagree with his
    application of those tests to the facts as he found them.

B.

Accommodation to point of undue hardship

[6]

The trial judge found  that the respondent had made
    significant changes to the appellants work duties to accommodate his
    disabilities, but that it  had reached the point of undue hardship in making
    those accommodations:

[159]  Pursuant to TBOs knowledge of Mr.
    Nasons condition and their knowledge of the physical requirements of a
    technicians job, modifications were put in place for Mr. Nason. It was agreed
    that he would be allowed to work at a pace compatible with his condition. Mr.
    Nason was allowed rest breaks at his discretion and breaks to perform
    stretching exercises. He was told not to use the computer at lunch and to rest
    his hands and wrists instead. He was allowed extensive paid time off as
    requested to attend physiotherapy and medical appointments. Most significantly,
    he was no longer required to do cast modifications, a job that Mr. McWhirter
    knew was physically demanding. Mr. Nasons evidence that he was not consulted
    and that all changes were made unilaterally is not credible.

[160]  In my opinion, the steps taken by TBO
    satisfy the substantive component of their duty to accommodate Mr. Nasons
    disability. Mr. McWhirter testified that despite these accommodations, the
    overall situation got worse. He testified that Mr. Nasons condition continued
    to deteriorate and his productivity declined to the point where it was 50% or
    less of what it should have been. I accept this evidence.

[161]  Mr. McWhirter testified that TBO
    employed only two technicians at this time, one of whom was Mr. Nason. As Mr.
    Nasons productivity decreased, Mr. McWhirter and Mr. Berezowski were required
    to work evenings and weekends, each working an additional 12 to 13 hours per
    week, to maintain productivity and to keep pace with others. This represents
    approximately 2/3 of a full time position. Mr. McWhirter testified that he and
    his co-owner came to realize that this was simply not sustainable. He testified
    that it made no sense to keep Mr. Nason on the payroll. TBO felt it was in the
    best interests of TBO and of Mr. Nason that he be put on leave, allowed to draw
    the WSIB benefits for which he was qualified and given time away from the
    workplace to recover from his injuries. I find this to be logical and
    reasonable.

[162]  A determination of whether an employer
    has accommodated a disabled employee to the point of undue hardship must take
    account of the specific fact situation and apply common sense. An employer is
    not required to create a new position for the employee. An employer is not
    required to make fundamental changes to the employees job scope or working
    conditions. Hardship becomes undue when an employee is no longer able to
    fulfill the basic obligations of his employment position, despite
    accommodations.

[163]  I am persuaded that TBO fulfilled the
    procedural and substantive components of their duty to accommodate Mr. Nason.
    TBO is a small business in which all aspects of the operation are familiar to
    the owners. To a large extent, they work in close proximity to or alongside
    their employees. They know what is going on in their shop on a day to day
    basis. TBO understood Mr. Nasons disability and they acted proactively to
    accommodate that disability by significantly altering his employment duties
    over the summer of 2010. Despite such accommodations, his condition worsened
    and his ability to fulfill his employment obligations decreased beyond the
    point of viability. Keep him on as an active employee beyond this point would
    have required further fundamental changes to his job duties as well as hiring
    another technician to do what Mr. Nason could no longer do.

[164]  I find that as of early August 2010,
    TBO had fulfilled their duty to accommodate Mr. Nason to the point of undue
    hardship. Having done so, their decision to put him on unpaid leave on August
    18, 2010 was not an infringement of Mr. Nasons rights to equal treatment with
    respect to employment. This aspect of the plaintiffs claim is dismissed.

[7]

The appellant argues that the respondent could
    have asked other employees to work through their lunches, or to work more hours.
    He submits that there was no evidence of financial hardship.

[8]

The trial judge had the benefit of hearing the evidence
    of the appellant and the respondent.  There is no basis to interfere with his
    finding that each of the two proprietors of this specialized small business
    could no longer sustain 12-15 extra working hours each week.

C.

Frustration of the employment contract

[9]

The trial judge rejected the respondents argument that
    the employment contract had been frustrated by the appellants disability:

[180]  The issue of whether the termination of
    the employment contract of a disabled employee is a wrongful dismissal or the
    frustration of the employment contract depends on the facts. Where an employee
    is permanently unable to work because of a disabling condition, the doctrine of
    frustration of the employment contract depends on the fact of the case. Where
    an employee is permanently unable to work because of a disabling condition, the
    doctrine of frustration of contract applies because the permanent disability
    renders performance of the employment contract impossible, such that the
    obligations of the parties are discharged without penalty. Frustration of
    contract is established if at the time of termination there is no reasonable
    likelihood of the employee being able to work with a reasonable time. (Fraser
    v. UBS, 2011 ONSC 5448, paragraphs 15 and 32). The onus is on the employer to
    prove that the contract was frustrated.

[181]  TBO has failed to establish that there
    was no reasonable likelihood of Mr. Nason being able to return to work within a
    reasonable time of January 22, 2013. The evidence does establish that Mr.
    Belcamino was of the opinion that Mr. Nason had permanent restrictions. The
    evidence also establishes that WSIB felt that Mr. Nasons recovery had
    plateaued and that he had reached his maximum medical recovery. WSIB also
    concluded that Mr. Nason was partially permanently impaired as of the end of
    2012. However, whether Mr. Nason could have returned to work, with
    accommodations, had not been sufficiently explored as of January 2013 such that
    one could conclude that there was no reasonable likelihood of it happening in
    the future.

[182]  TBOs statement in their January 14,
    2013 letter to Mr. Nason undermine their position on this issue. In this letter
    they advised Mr. Nason that nothing is currently available but they will
    re-evaluate his desire to return to work if and when medically cleared.

[10]

The respondent, however, terminated the
    appellants employment on January 22, 2013, about a week after sending a letter
    dated January 14, 2013 in which it stated that it would re-evaluate his desire
    to return to work if and when medically cleared.  The termination was made, on
    the findings of the trial judge, before the appellant could produce evidence
    establishing that there was a reasonable likelihood of an ability to return to
    work within a reasonable time. The trial judge correctly noted that the
    employer had the onus of establishing frustration of the employment contract. There
    is no basis for this court to interfere with his determination that the issue
    of whether the appellant could have returned to work within a reasonable time
    had not been adequately explored as at the date of termination.

[11]

Since success was divided on the appeal and
    cross-appeal, this is not a case for costs.

[12]

In the result both the appeal and the
    cross-appeal are dismissed without costs.

G.R. Strathy C.J.O.

E.E.
    Gillese J.A.

G. Pardu J.A.


