Failure to Accommodate Results in Damages of Over $387,000

By Veronica Ukrainetz

On June 9, 2009, The British Columbia Human Rights Tribunal awarded Lynda Kerr, a pharmaceutical sales representative, damages of $387,083.07 plus pre/post judgment interest, and the necessary pension plan adjustments as a result of a four year failure by Boehringer Ingleheim (Canada) Ltd (“BICL”) to accommodate her vision impairment. Kerr v. Boehringer Ingelheim (Canada)(No. 4), 2009 BCHRT 196.

$30,000 of this award was for Injury to Dignity (the highest award to date is $35,000):

Despite the fact that Ms. Kerr was a high performing employee, she was ultimately treated like a person with little or nothing to contribute to the workplace because she was disabled (¶ 714).

Ms. Kerr is a remarkable individual. She was diagnosed with a debilitating disease but met the challenges that her disability presented with optimism and a willingness to overcome them, so that she could be a productive member of society. It is to her credit that she has done so well. However, her ability to overcome her challenges does not undermine the significant injury to her dignity, feelings and self-respect that she experienced as a result of the discriminatory actions of BICL (¶ 723).

The disability benefits provider, having determined that Lynda was able to work, despite her vision impairment, terminated her disability benefits October 31, 2003.  By November 2004 having been put off by BICL time and time again in her efforts to return to work, and despite having involved a CNIB Employment Accommodation Consultant and diligently provided medical information as and when requested, Kerr retained Veronica Ukrainetz, now of Ukrainetz Law Corp. (the author of this article) to assist her.

On March 14, 2005, still without income and gainful work with BICL, Kerr filed her Human Rights complaint. Over the next year and a half, having gotten BICL’s attention, Kerr pursued a Human Rights complaint while also engaging in return to work discussions and complying with BICL’s demands that she undergo intensive assessments which assessed not only her vision impairment, but also her general physical condition.  On September 20, 2006, eight days into the hearing of her Human Rights complaint and still without income and gainful work with BICL, Kerr resigned her employment, feeling “disappointed, humiliated and discouraged”.

On June 9, 2009, after 28 days of hearing spanning two years (2006 – 2008), the Tribunal recognized that BICL had discriminated against Kerr:

Kerr’s journey began 10 years ago, in 1999, when she experienced unusual difficulties with her vision. She was diagnosed that year with bilateral posterior subcapsular cataracts. In May 2000, faced with a deterioration of her vision and the physical and emotional challenges presented by her terminally ill mother, Lynda decided to resign. At BICL’s suggestion, she instead commenced disability benefits in May 2000. Initially grateful for BICL’s assistance and the provision of disability benefits, as the years went on Kerr felt frustrated and ignored by BICL in her considerable efforts to return to work.

BICL’s stereotypical view of Ms. Kerr, that she could not work because of her disability, led to and was the sole factor that limited her participation in the workforce and is prima facie discriminatory in the substantive sense (¶ 481).

The Tribunal found that BICL knew by November 25, 2002 that Lynda wished to return to work:

On November 25, 2002, Ms. Muller [BICL] … clearly understood that Ms. Kerr wanted to return to work at BICL. Despite this clear understanding, BICL took no steps to return Ms. Kerr to the work place (¶ 477).

The Tribunal found that as a result of BICL’s persistent failure to meet its duty to accommodate, Kerr’s wage loss claim arose on November 25, 2002 and continued to her resignation on September 20, 2006.

Having considered all the evidence, I find that BICL failed to meet its obligation to accommodate Ms. Kerr to the point of undue hardship. The steps that it took were procedurally deficient resulting in no substantive results for Ms. Kerr. (¶633)

The Tribunal however did not permit the wage loss calculation to commence until October 31, 2003, due to a number of factors, including continuation of disability benefits (under a rehabilitation category), Kerr’s two month unavailability due to family commitments and factoring in a six month graduated return to work period. Even so, Ms. Kerr’s wage loss alone was $352,898.02.

The journey is not over yet. The Tribunal requested further submissions respecting Kerr’s entitlement to be reimbursed for her legal expenses (which would be considerable given 28 hearing days and the attendant hearing preparation) and on August 7, 2009 BICL applied for judicial review of the Tribunal’s decision.

Veronica Ukrainetz has, throughout her legal career, restricted her practice to labour relations, employment and workplace related human rights law.   Ukrainetz received her B.A. in English Literature from the University of Calgary in 1987 and her LLB in 1993 from Dalhousie University in Halifax, Nova Scotia.  She was called to the British Columbia Bar in 1994.

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