Limitations on Duty to Accommodate

In Oak Bay Marina Ltd. v. B.C. Human Rights Commission the British Columbia Court of Appeal commented on the scope of an employer’s duty to accommodate disabilities under the Human Rights Code. The Court held that the duty to accommodate does not require an employer to obtain additional information concerning an employee’s medical condition when it already has direct information, based on observation, of the employee’s disability, and the workplace risks it may pose.

Robert Gordy alleged that he had been discriminated against by his employer, the Oak Bay Marina on the basis of a physical or mental disability, contrary to the Human Rights Code. Gordy had been employed as a fishing guide for two summers at a recreational resort operated by the Oak Bay Marina. Prior to being employed for a third summer Gordy developed bipolar effective disorder and informed his manager that he had experienced a ‘breakdown.’ Having returned to the resort earlier than expected and acting strangely, the Marina decided to monitor Gordy’s behaviour. Based on its observations, Oak Bay Marina requested that Gordy not work for a period of time in May. After a period of hospitalization in June, Gordy was informed that he could return to work later in the summer. Gordy reportedly became irate at receiving this information and said he would not be returning to work. He subsequently filed a Human Rights Complaint.

Newbury J.A., writing for the majority, confirmed that the Human Rights Tribunal had erred in law when it dismissed as irrelevant the information that the Marina had at its disposal, i.e., its direct experience with the behaviour of the Complainant. The Court considered this information to be clearly relevant evidence as Oak Bay Marina was entrusted with the physical safety of its customers. Madam Justice Newbury remitted the complaint back to the Tribunal for a rehearing on the issue of the bona fide occupational requirement defence that the Tribunal was required to reconsider in light of the Court of Appeal’s ruling.

Madam Justice Newbury commented in her decision that the process of accommodation should be approached with common sense. The circumstances of both the employer and the complainant must be considered carefully. In this regard, the Court noted:

What is ‘possible’ for one employer – e.g., a government with entire departments and volumes of information available to it – may not be possible for a private company that has to make a decision amid operational pressures posed by scheduling, customer relations, profitability and legal liability.

In addition, it was held that the Tribunal gave no consideration as to whether the Oak Bay Marina would have been under a ‘duty to warn’ its guests of the risks associated with relying on the Complainant as a guide.

This case should provide assistance to employers when dealing with accommodation of disability issues. Accommodating employee disabilities in the workplace context is complex, and we caution that the ‘common sense’ approach advocated by the Court of Appeal does not imply medical information can be dispensed with when dealing with complex disability accommodation issues.


(Click here for full text of the judgment)