Duty to Inquire and CTE Discrimination in Alberta Human Rights

1. Call Now: 587-391-7601  Home Services About Our Team Blog CONTACT US DutytoInquireand CTE Discriminationin Alberta HumanRights Discrimination Human Rights By: Michael Hernandez Published: 1 May 2023 In Calkins v Broadview Homes (Alberta) Ltd., 2023 AHRC 45, an employer terminated an employee without cause after receiving a years’ worth of complaints from customers about the employee’s performance and behaviour. The Alberta Human Rights Tribunal found that the employer discriminated against the employee as it failed to inquire about whether the performance concerns were related to his Chronic Traumatic Encephalopathy (“CTE”). This case is important, as it provides a clear example of how lack of intention to discriminate does not preclude a finding of discrimination. Facts The following are the facts summarized by the Tribunal: Broadview Homes terminated Mr. Calkins without cause after approximately two and a half years of employment. Mr. Calkins subsequently filed a complaint with the Human Rights Commission, alleging that Broadview Homes discriminated against him based on his CTE.  Mr. Calkins had extensive experience in the construction industry. Shortly after beginning with Broadview in 2015, he began to experience difficulties with simple tasks that he had not previously experienced at any point during his career. In or around 2016, Broadview began receiving a sufficient volume of complaints from customers about Mr. Calkins’ performance and behaviour.  Some of the complaints involved uncharacteristic outbursts of rage towards customers, memory issues, as well as hostile and abusive behaviour. Mr. Calkins testified that he initially struggled with the courage to discuss his health concerns with Broadview. He eventually had a conversation with his supervisor in June of 2017, where he discussed his CTE and his intention to see a doctor (the “June Conversation”).  He also alleged that he spoke in passing with his co-workers about his symptoms and their relation to the movie “Concussion.” Mr. Calkins’ supervisor swore an affidavit initially claiming that Mr. Calkins did not mention CTE. However, during cross examination he testified that Mr. Calkins had informed him of his CTE through a text message and in a subsequent phone call. The Tribunal ultimately found that Mr. Calkins had sent a text to his supervisor mentioning the movie “Concussion,” suggesting that he had the same condition as the player in that movie. The supervisor then called Mr. Calkins and encouraged him to see a doctor and informed him of the company’s benefits plan, assuring him that they would support him. Broadview terminated Mr. Calkins’ employment in July 2017, roughly a month after the June Conversation. Analysis / Conclusion Mr. Calkins had the initial burden of proving that he (1) had a characteristic protected by the act; (2) that he suffered an adverse impact; and (3) that his characteristic was a factor in the adverse impact. The parties agreed that Mr. Calkins satisfied the first to parts. He provided medical letters supporting a diagnosis of CTE and his termination constituted an adverse impact. Concerning the third part, Broadview alleged that it did not know about Mr. Calkins’ CTE-related concerns and could therefore not have considered them prior to his termination. The Tribunal disagreed and found that based on the June Conversation and the nature of the complaints (i.e, uncharacteristic outbursts of rage and memory issues), Broadview should have to ascertained whether there were any medial concerns that explained Mr. Calkins’ work performance. It should have then explored whether his performance-related issues were consistent with the CTE- related concerns that he discussed in June Conversation.   As noted by the Tribunal, if an employer has reason to suspect a medical condition may be impacting an employee’s ability to work, its failure to inquire about the employee’s health before taking steps that adversely affect the employment may be discriminatory. The factors relevant to the analysis of whether the Duty to Inquire exists are as follows: 1.a duty to inquire arises where an employer knew or reasonably ought to have known of a link between an employee’s performance and a disability; 2.the analysis, which is highly dependent on the particular facts of each case, requires a determination of what was known by an employer about an employee’s disability; 3.the duty to inquire is an exception to an employee’s obligation to disclose relevant disability- related information to their employer. This exception is narrow in nature. Ultimately, the complainant was awarded $20,000 in general damages for pain and suffering due to his discriminatory treatment.  He was not awarded several other financial amounts he was seeking because the tribunal was not satisfied that he provided enough evidence of those other specific financial losses. MyTake While the termination was deemed to be without cause, the Tribunal found that Broadview’s rationale for the decision was Mr. Calkins’ performance concerns (see paragraph 67(d)). It seems that Broadview’s position was that it had made the decision to terminate Mr. Calkins based on a years’ worth of performance concerns, that it did not know what CTE was, and that it did not consider the June Conversation when making the decision.  The Tribunal’s decision provides an example of how the intention to discriminate is not necessary for a finding of discrimination. The Tribunal accepted Broadview’s evidence that the June Conversation was not considered when deciding to terminate Mr. Calkins. As Mr. Calkins had not provided Broadview with medical documentation or requested leave, Broadview’s position, which was accepted by the Tribunal, was that it had forgot about the June Conversation entirely. However, while Broadview may not have considered Mr. Calkins’ CTE, his symptoms were the likely cause of the performance concerns, and therefore, his termination. The duty to inquire is an exception to an employee’s obligation to disclose relevant disability- related information to their employer. In the current case, given that Mr. Calkins’ performance concerns displayed cognitive-related issues and uncharacteristic outbursts, the Tribunal held that the June Conversation was enough to require Broadview to consider whether the performance issues were related to Mr. Calkins’ CTE-related concerns. Bow River Law provides these regular employment law blog articles for the purposes of legal education, research and news for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly. Michael Hernandez is an employment lawyer at Bow River Law.  He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.    Our Services Relevant tothisArticle Discrimination / Human Rights  Recommended Reading Human Rights Just Cause Labour Discrimination Human Rights Labour Female RTSexually Harassed andWas Racist = Just UntanglingtheImpactof Horrocks on Human Rights Cause LawInAlberta In HSAA v AHS, 2023 CanLii 37831 (ABGAA), a female respiratory therapist with long service harassed a male coworker. Just cause for dismissal upheld. This article aims to untangle the jurisdictional web of Horrocks in Alberta as considered by the AHRC and the Courts in Blackie, Grewal and Prodaniuk 19 June 2023 30 May 2023 Menu Services Homepage Constructive Dismissal Just Cause For Termination About Discrimination / Human Rights Lay-Offs Alberta’s WorkforceLawyers Our Team Non-Competition / Non- Solicitation Specialized legal services in employment law, human rights and labour law. Employee Sued by Employer Blog Employment Contracts: Drafting / Review / Negotiation Professional Regulation Contact Us Severance Review / Negotiation Located in Calgary, and headed by experienced litigators Sarah Coderre and Joel Fairbrother. Let us help you. Employment Policy Drafting / Review Union / Labour Law Workplace Investigations Office: 540 5 Ave SW #1240, Calgary, AB T2P 0M2 Fiduciary Obligations Wrongful Dismissal / Unjust Dismissal Harassment / Bullying Independent Contractors