HUMAN RIGHTS TRIBUNAL OF ALBERTA

Citation: Sutherland v. Apollo Sunrooms Inc., 2018 AHRC 13

BETWEEN:

2018 AHRC 13 (CanLII)

Michael Sutherland
Complainant

- and –

Alberta Human Rights Commission (Director)

Director

- and –

Apollo Sunrooms Inc. and Andrew Banack

Respondents

DECISION

Tribunal Chair: Cherie Langlois-Klassen, B.Sc., M.Sc., LL.B.

Decision Date: November 8, 2018

File No.: N2012/04/0003

Alberta Human Rights Commission

th
7 Floor, Commerce Place
10155 – 102 Street
Edmonton, AB T5J 4L4
Phone 780-427-2951 Fax 780-638-4641
www.albertahumanrights.ab.ca
Introduction

[1] Mr. Michael Sutherland, the complainant, was an employee of the respondent,
Apollo Sunrooms Inc. (Apollo Sunrooms). Mr. Sutherland filed a complaint dated March
29, 2012 with the Alberta Human Rights Commission (the Commission) alleging that
Apollo Sunrooms Inc. had discriminated against him on the ground of physical disability
contrary to sections 7(1)(a) and (b) of the Alberta Human Rights Act, (the Act).1

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[2] In his complaint, Mr. Sutherland alleged that Apollo Sunrooms discriminated
against him by failing to accommodate a gradual return to work plan after he returned to
work following treatment for cancer and ultimately by terminating his employment.

[3] In its response, Apollo Sunrooms denied that it had discriminated against Mr.
Sutherland, but rather, although the company attempted to accommodate Mr.
Sutherland with light duties and partial days of work, it could not do so without undue
hardship. In particular:

 There was not enough work to occupy the complainant, so he ended

up sitting for much of the time at job sites. He would then talk to other
crew members, which was disruptive and negatively impacted the
work’s progress; and

 As the complainant did not have a driver’s licence, driving him home
mid-shift was disruptive.

[4] In addition, the respondent alleged that it had a concern regarding Mr.
Sutherland’s “negative attitude towards other crew members and supervisory staff.”
Ultimately the respondent alleged that his employment was terminated not because of
his disability, but “as a direct result of his physical and verbal abuse” of Andrew Banack
and Jorg Becker during a meeting held to discuss his employment situation with Apollo
Sunrooms on April 11, 2011.

[5] The director had carriage of the proceeding before the Tribunal in accordance
with section 29(1) of the Act.

[6] Prior to the hearing, the former President of Apollo Sunrooms, Mr. Banack,
raised issues relating to the ability of the respondent corporation to satisfy any financial
judgment which might be made in this proceeding, as the company was no longer
carrying on business and had been struck from the corporate registry as of August
2017. As a result, counsel for the director applied to the Tribunal to add Mr. Banack
personally as a party to this proceeding. Mr. Banack consented to the application to be
added as a personal respondent. As a result, when I refer throughout this decision to
the respondent, this reference includes both Mr. Banack and the corporate respondent,
unless I specify otherwise.

1
Alberta Human Rights Act, R.S.A. 2000, c. A-25.5

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[7] The hearing of this matter was held on May 15, 16 & 17, 2018 in Edmonton,
Alberta. The Tribunal heard evidence from the complainant, Mr. Sutherland and Dr.
Naresh Jha, the Oncologist treating Mr. Sutherland with radiation. Mr. Andrew Banack,
Mr. Jorg Becker, Mr. Mike Dunster, Ms. Terry Lang and Mr. Denis Roy testified on
behalf of the respondent.

[8] With respect to the substantive issues as outlined below, I find that the director

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has established a contravention of the Act by the respondent.

Background

[9] Mr. Sutherland was employed by the respondent as a Carpenter Helper

commencing on December 8, 2008 until the termination of his employment by Apollo
Sunrooms Inc. on April 11, 2011.

[10] Mr. Sutherland was off work from July 28, 2010 to February 28, 2011 on disability
benefits while he was receiving treatment for supraglottic squamous cell carcinoma
(throat cancer). Following these treatments, unfortunately Mr. Sutherland developed
further complications and became very ill.

[11] After exhausting Employment Insurance benefits, Mr. Sutherland applied, and
was approved for long-term disability benefits through the respondent’s group benefits
plan, administered by SSQ Financial Group (SSQ). These benefits commenced
November 25, 2010 and were still in place when his employment was terminated on
April 11, 2011.

[12] On February 28, 2011, Mr. Sutherland commenced a gradual return to work
(GRTW) plan at Apollo Sunrooms. Prior to his medical absence, his usual work week
was 44 hours. During the GRTW program, he was working reduced hours (half days)
and on lighter than usual duties. Apollo Sunrooms paid wages for the hours he worked
and the balance of his wage was topped up by the disability benefits program
administered by SSQ. This arrangement continued until Mr. Sutherland’s final day of
work on April 11, 2011. The relevant time at issue in this hearing is this roughly five and
a half week period in 2011.

Issues

[13] In this case, the issues to be determined are:

1. Has the complainant established a prima facie case of discrimination on

the basis of physical disability in the area of employment?

2. If prima facie discrimination is established, did the respondent fulfill its

duty to accommodate him to the point of undue hardship?

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 3. If discrimination under the Act is established, what is the appropriate
remedy?

Evidence

Mr. Michael Sutherland

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[14] Mr. Sutherland testified that while with Apollo Sunrooms he was a Carpenter’s
Helper and was engaged in various duties normally including cutting materials, framing,
building decks and doing renovations alongside carpenters and other workers.

[15] He described a typical workday before he became ill as follows: crews would
meet at the shop and dispatch to various job sites. He would generally accompany a
Carpenter / Lead Hand, and frequently was dispatched to sites on a crew with a
subcontractor to the respondent, Mr. Roy. He stated that while Mr. Dunster was a Lead
Hand, he worked directly with him too. Crews were fluid, as dictated by the job queue
and Mr. Banack’s daily directives. Once Mr. Becker joined Apollo Sunrooms as
Construction Manager, Mr. Sutherland also was dispatched by, and took directions from
Mr. Becker.

[16] On sites, his job normally entailed cutting wood, framing, heavy loading, site
cleanup, tiling, drywall painting, minor electrical work, etc., all with the end goal of
building sunrooms and similar additions for customers. He would also fill in on the
pilings crew from time-to-time with Apollo Pilings. He explained that steel helical pilings
were installed prior to building the decks that used the pilings as their basis. He
described his work as physically demanding.

[17] Mr. Sutherland described his treatment in 2010 as very difficult. He described
how awful the treatments were, and how weak he became. He was only starting to eat
normally again as he commenced his GRTW.

[18] Mr. Sutherland said that by early 2011 his goal “was to get [his] life back on track
asap.” He recalled talking to SSQ’s Case Manager, Karen Lee, who he described as
“wonderful” and who advised him to “take it one step at a time.” He recalled that it was
Ms. Lee who initially advised him that he would have to rebuild his strength and that he
wouldn’t go back at full-time hours right away, although he recalled being anxious to
quickly return to full-time work. He recalled Dr. Jha also advising him that “there was no
set time frame” and that “not everybody goes back to the same career” after cancer.

[19] When asked how he believed his GRTW plan was determined, he stated that he
thought Ms. Lee was going by what he told her. He stated that Dr. Jha would talk to him,
and that he then took those recommendations back to Ms. Lee. He recalled that he
would have checked with Dr. Jha for clearance to go back to work, and then would have
had a conversation about his return with Mr. Banack.

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[20] SSQ’s file for Mr. Sutherland indicates that his eligibility for benefits and medical
information were updated and managed through SSQ rather than the respondent
directly. Relevant excerpts include records of:

 A phone call from SSQ Case Manager Ms. Lee to Mr. Sutherland
on January 27, 2011, indicating that Mr. Sutherland was still waiting

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to get his feeding tube removed and had reported to her that he
was suffering from fatigue and low energy. Her notes indicate that
Mr. Sutherland would next see Dr. Jha on or about February 7 or 8,
2011. They also indicate that she would “write Dr. Jha for copies of
consults and tests done from the upcoming visit in February 2011.”

 A phone call from Mr. Sutherland to Ms. Lee on February 23, 2011,
indicating that the feeding tube was removed on February 11, 2011
and that Mr. Sutherland “will be starting a GRTW effective February
28, 2011. His employer is willing to accommodate and Dr. Jha was
fine with him starting back to work on a gradual basis.” Ms. Lee
writes that she told Mr. Sutherland that “I would like to monitor his
progress…”

[21] On cross-examination, Mr. Sutherland stated that he believed Dr. Jha didn’t
necessarily make specific recommendations about work restrictions. Mr. Sutherland
stated that the GRTW plan regarding partial days would have been suggested by “the
insurance company.” Mr. Sutherland explained that in April 2011, he wanted to wait to
talk to his doctor before confirming with the respondent that he could return to full-time
hours.

[22] Mr. Sutherland stated that Mr. Banack agreed to let him commence a gradual
return, initially working only part-time hours. Mr. Sutherland testified that he recalled a
meeting with Mr. Banack shortly before he returned to work but he did not recall Mr.
Banack specifically asking for any medical documentation prior to his return to work,
although he said if Mr. Banack had asked “he would have got it.” Mr. Sutherland said his
exact recollection of events is vague because “he wasn’t expecting it to be an issue.” He
stated he did not recall Mr. Banack or the Office Manager, Ms. Lang, asking for any
supporting medical documentation immediately after his return to work.

[23] Mr. Sutherland described his initial weeks back at work as “tired by the end of the
day,” and as having “good and bad days.” He self-regulated his activities by not “doing
what I couldn’t do.” He reported that he wasn’t asked to do things he couldn’t do either.
He stated that he couldn’t load or unload supplies and equipment from vehicles, but he
could paint trim and clean the shop. He testified that he understood that the respondent
did not expect him to do all of his previous duties. He stated that the respondent always
allowed him time off to go to his appointments.

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[24] When asked about his initial return to work, he stated that he was “supposed” to
do four-hour days, but eventually work up to more. He stated he was doing four-hour
days initially, but then later occasionally longer, as he could manage.

[25] Initially, Mr. Sutherland worked in the shop, which he described as a “staging
shop” for all of the related Apollo companies. He initially was assigned to clean and

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organize the shop and build shelves.

[26] After the first week or so back, Mr. Sutherland was assigned to go out to job sites
with Lead Hands, including Mr. Roy. There he said he did some painting, pulling
screws, hanging trim, drywalling and cleaning, as well as lending a hand elsewhere
where he could. He said he was not having trouble keeping busy. He did say that he
shouldn’t have sanded, as, after his illness it was nauseating and he had trouble
breathing. He testified that even presently (in 2018) he can’t sand. He said he couldn’t,
nor was he expected to, load or unload vehicles on sites.

[27] Mr. Sutherland denied that he “sat around” unless it was a designated break
period. He acknowledged that site crews were small, generally only two to four
individuals, depending on what was being constructed. He denied that he was
“disruptive” to the other workers, or that he had a “negative attitude.”

[28] Of relevance, Mr. Sutherland never had a driver’s license during the entire period
of his employment with Apollo Sunrooms for reasons unrelated to his cancer. He
testified that “he would get himself to the shop” at the start of the day. The crews took
company vehicles between the shop and the work sites. He denied that he was made
aware that his lack of a license was of serious concern to the respondent prior to the
very last part of his GRTW. Mr. Sutherland testified that normally the Lead (generally
Mr. Dunster or Mr. Roy) would have driven the company vehicle. During his GRTW,
after his partial day, someone – again, usually the Lead - would drive him back to the
shop midday. Occasionally, the mechanic at the shop, Barry, would drive him home
from the shop. Mr. Sutherland stated that he only lived about five minutes from the
shop.

[29] When asked to describe his interactions with Mr. Becker, Mr. Sutherland
confirmed that Mr. Becker was, as Construction Manager, able to direct Mr.
Sutherland’s and other crew members’ work. He recalled the comments that led in part
to this complaint as follows: Mr. Becker alleged that Mr. Sutherland could work full-time
if he wanted, and stated that Mr. Becker’s health status “was all in [his] head.” In
response, Mr. Sutherland got upset, raised his voice, and angrily countered Mr. Becker.
He remembered it was a heated conversation and that he didn’t react well.

[30] When asked how he felt about Mr. Becker’s comments, Mr. Sutherland stated, “I
was very upset” and “that is not something you say to someone who is trying to recover
from near fatal cancer.” Mr. Sutherland commented that physically he was not yet
strong enough to move the couch for his wife.

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[31] Mr. Sutherland then recalled ending up in Mr. Banack’s office, who acted as “an
arbitrator” between the Mr. Becker and Mr. Sutherland. Mr. Sutherland testified that Mr.
Banack wanted them, and especially Mr. Sutherland, to calm down. Mr. Sutherland
admitted that “it got ugly.”

[32] Mr. Sutherland admitted he was angry because the conversation “was upsetting
me, it was hurting me.” He recalled that the interaction lasted less than five minutes and

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there was no productive discussion of alternatives. Mr. Sutherland testified that Mr.
Banack said Apollo Sunrooms could not afford to have Mr. Sutherland on the job sites
on a part-time basis. Mr. Sutherland testified that no one suggested returning to
disability leave until his health improved further, nor did anyone discuss working out
alternate arrangements with respect to transportation.

[33] On cross-examination, Mr. Sutherland admitted that he may have sworn during
the conversation, but stated that both he and Mr. Becker were speaking heatedly. Mr.
Sutherland was asked if the conversation involving the comment “it is in your head”
might have been on an earlier day. Mr. Sutherland did not agree that it was.

[34] Mr. Sutherland denied pushing Mr. Becker.

[35] Mr. Sutherland recalled that at some point Mr. Banack said “you’re fired” or
“that’s it, you are out of here.” He recalled being told to get his stuff and get out.

[36] Mr. Sutherland testified that while he did not feel ready to work full-time at the
end of March 2011, he was close and was waiting for the medical clearance to do so.
He stated that full-time work was his goal.

[37] SSQ’s records were entered into evidence, and Mr. Sutherland confirmed that he
recalled his interactions with SSQ at the time, which are consistent with this assertion.
SSQ’s intervention logs record:

March 4, 2011: a voice message from Mr. Sutherland advises “things are
good” and “that he only needs half days for a couple of weeks.” He is
“trying not to do too much but it’s kind of hard not to do some grinding
work but it’s been going well.”

March 9, 2011: a phone call to Mr. Sutherland whereby he reports “He is

doing light duties such as painting but feels tired by the afternoon so he
naps when he gets home from work. At this time, I told the EE that I would
like to medically monitor the claim file with weekly phone updates.”

March 31, 2011: a phone call to Teri [Terry Lang] “confirmed that EE
appears to be managing along with the graduated work hours. She did
notice that he was tired on some occasions but overall, EE seems to be
“okay” at work…”

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[38] Mr. Sutherland testified that he wanted to check in with his physician prior to
returning to full-time hours and duties. However, both in examination in chief and in
cross-examination, Mr. Sutherland admitted that after he was fired he immediately
started working for Mr. Roy who was already a subcontractor on Apollo Sunrooms jobs.
He stated that Mr. Roy hired him onto a respondent site, on a full-time basis within a
week or so after Mr. Banack fired him, and that Mr. Sutherland “pushed it a little more
as he was getting better every week.”

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[39] Mr. Sutherland described the impact of the conflict with Mr. Becker and Mr.
Banack as having “upset him terribly.” He stated it was hard to get over the memory of
the end of his relationship with the respondent.

Dr. Naresh Jha

[40] Dr. Naresh Jha is a senior specialist physician who directed some of Mr.
Sutherland’s cancer treatment. Dr. Jha specializes in cancers of the head, neck, thyroid
and skin. He testified that another physician oversaw Mr. Sutherland’s chemotherapy,
and he oversaw Mr. Sutherland’s radiation treatments. Referring to Mr. Sutherland’s
charts, he confirmed that Mr. Sutherland also ended up with significant complications as
a side effect of the treatment.

[41] On October 18, 2010, Dr. Jha wrote SSQ in response to a direct inquiry about
Mr. Sutherland’s medical status. At that time he indicated, “For the time being I would
consider this patient completely disabled. He is likely to take three to four months to
recover fully. I will re-assess this when I see him in about two months time.”

[42] In testimony, Dr. Jha explained that recovery from this type of treatment can take
anywhere from two to four months, although the complications after Mr. Sutherland’s
treatment would have likely contributed to further fatigue and delay. As a result, he
estimated that Mr. Sutherland’s recovery would have likely been towards the later end
of the estimated range.

[43] When asked about Mr. Sutherland’s fatigue, Dr. Jha testified that it was not
unusual for patients to feel tired but that it is was impossible to generalize fatigue. He
stated that he had no formal record of Mr. Sutherland’s return to work. Usually, Dr. Jha
explained, he would have a record of a patient’s return to work as he stated that in his
experience what occurred was that a patient would bring a return to work form from an
employer. In Mr. Sutherland’s case, he did not fill out an employer form. However, Dr.
Jha testified that “he always tells patients to gradually increase [their hours of work] and
listen to their body” when undertaking a return to work. While he did not expressly direct
half days of work for Mr. Sutherland, he testified he advises to let patients decide “what
they could handle” and he did this with Mr. Sutherland.

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Mr. Andrew Banack

[44] Mr. Banack holds the designation of Professional Engineer as well as several
other professional credentials. In 2011, he was a director, shareholder and General
Manager of Apollo Sunrooms Inc., as well as General Manager of other companies
including Apollo Pilings. He testified that at the time Apollo Sunrooms ceased business

2018 AHRC 13 (CanLII)

in 2017, he was still General Manager.

[45] Mr. Banack estimated that in 2011, there were approximately 16 employees at
Apollo Sunrooms. Of the 16, Ms. Lang performed administrative and accounting work in
the office, Mr. Becker and Mr. Banack were management, and two individuals were in
sales.

[46] Construction crews generally consisted of two individuals; a Lead Hand

(Carpenter) and a Labourer (or Carpenter’s Helper). Their primary duties were to
construct and install prefabricated additions (sunrooms or similar) to homes. Mr. Banack
stated that in 2011, the respondent was running three crews with employees, in addition
to one crew that was led by a subcontractor, Mr. Roy. Mr. Becker was brought on with
Apollo Sunrooms to oversee the crews’ work.

[47] Mr. Banack testified that he knew Mr. Sutherland had throat cancer and was
receiving treatment for it in 2010. He recalled that approximately two weeks before Mr.
Sutherland returned to work on February 28, 2011, he and Mr. Sutherland met to
discuss his return to work. Mr. Banack recalled talking about the modifications that Mr.
Sutherland would require upon his return and described Mr. Sutherland’s attitude as
very positive at that meeting, and that Mr. Sutherland looked like he had lost weight.

[48] Mr. Banack testified that he believed he asked Mr. Sutherland for a letter from his
doctor at that time to substantiate the request for modified duties, but never received
anything in writing. He admitted he didn’t take any notes of the meeting or have any
record of the request. He also explained in cross-examination that while Apollo
Sunrooms did not have any form or other paperwork for requesting medical information
from employees, he did have other employees on modified duties from time to time.

[49] After that meeting, Mr. Banack testified that he advised Ms. Lang that SSQ would
be contacting her and “to give them whatever they ask for.” He also talked to Mr. Becker
and Mr. Dunster who was acting as Senior Lead Hand at the time. Mr. Banack said they
talked about Mr. Sutherland’s limitations and he gave instructions to Mr. Becker and Mr.
Dunster to “find [Mr. Sutherland] stuff to do for half-days.”

[50] Mr. Banack stated that after the initial meeting in January 2011 with Mr.
Sutherland, he made two more requests for medical information from Mr. Sutherland.
Both were informal. Mr. Banack said that he observed Mr. Sutherland talking to
someone in the office and thought to himself “you are not working” so Mr. Banack asked
Mr. Sutherland “what he was doing?” Mr. Banack stated that Mr. Sutherland made a
flippant remark, and then they moved into the showroom where Mr. Banack said “we

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need medical confirmation of your physical restrictions.” Mr. Banack testified that Mr.
Sutherland retorted “I’ve just gone through treatment, I can’t do what I used to do.”

[51] The second time Mr. Banack says he requested medical information from Mr.
Sutherland was when Mr. Sutherland was sweeping the shop and he was complaining
about the dust. Mr. Banack testified that he said to Mr. Sutherland “we have masks,
have you tried that?” but that Mr. Sutherland’s response was that “he didn’t like to wear

2018 AHRC 13 (CanLII)

them [because] they interfered with his breathing.”

[52] When asked whether he sought information from SSQ about Mr. Sutherland, he
said that he had not, because “at the time I believed it was a private matter and we
would have needed permission to get [that information].” Mr. Banack testified that he
thought it was Mr. Sutherland’s responsibility to provide medical information to him.

[53] On cross-examination, Mr. Banack admitted that he never provided any deadline
for Mr. Sutherland to provide a doctor’s note, nor did he follow up by email or letter, or
pose any specific questions for Mr. Sutherland’s treating physician(s). Further, he
admitted that given that he was aware Mr. Sutherland was still receiving long-term care
benefits, he accepted that Mr. Sutherland was still disabled to some extent.

[54] Mr. Banack also explained that he did not perform day-to-day oversight of Mr.
Sutherland, so he did not closely follow Mr. Sutherland’s duties upon his return to work.
He estimated, however, that Mr. Sutherland likely initially worked cleaning the shop for
“most of the first week” back. Normally no one was exclusively assigned shop clean-up
duties on a regular basis, so after that work ran out, Mr. Sutherland was assigned to an
installation crew.

[55] Mr. Banack explained that while initially he had not heard any complaints, by
mid-March the Lead Hands were reporting back that Mr. Sutherland “wasn’t interested
in participating in the work.” He testified that the major concern was the interruption of
the work mid-day when the Lead Hand drove Mr. Sutherland back to the shop. Mr.
Banack estimated that his crew lost 10 per cent of the day’s productivity due to the
round trip to the shop and back to the site. In testimony, Mr. Banack suggested that
both Mr. Roy and Mr. Dunster complained to him that Mr. Sutherland was not
contributing to the crew’s work and then that they lost valuable time because of Mr.
Sutherland’s partial shifts.

[56] On cross-examination, Mr. Banack admitted that it did not have to be the Lead
Hand that drove Mr. Sutherland back to the shop mid-day, and that the drive back could
have occurred over lunch break. He also admitted that the respondent never considered
hiring a driver, nor considered other options like requiring that Mr. Sutherland take a taxi
or public transportation.

[57] When asked about alternate duties that Mr. Sutherland could have performed,
Mr. Banack stated that due to Mr. Sutherland’s restrictions regarding lifting and dust
exposure, it was difficult to find any meaningful alternate work. However, on cross-

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examination, he acknowledged that he had no first-hand knowledge of what Mr.
Sutherland was actually doing (or not doing) on the worksites. Nor, when cross-
examined about Mr. Sutherland’s March 2011 timesheets, did he deny that the work as
recorded was productive.

[58] When asked about the events leading to the meeting of April 11, 2011, Mr.

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Banack recalled that the acrimonious conversation that Mr. Sutherland had spoken of
between Mr. Sutherland and Mr. Becker occurred on April 4, 2011 rather than April 11,
2011, but he also recalled “they weren’t happy with each other” and that nothing was
resolved between them.

[59] Mr. Banack testified that his intention with respect to the meeting of April 11,
2011 was to improve the situation with respect to Mr. Sutherland’s workplace
accommodation. He stated that “I was thinking there must be a better solution.” Mr.
Banack suggested that his goal for this meeting was to request and/or gather more
information from Mr. Sutherland about the potential duration of Mr. Sutherland’s
requirement for restricted duties and partial shifts. He testified he wanted this
information to make a realistic decision “on how to move forward.” Mr. Banack stated
that he was prepared, at the time, to allow the current situation to carry on for two more
weeks, but that he needed a different solution. He wanted “paper,” that is, specifics from
either Mr. Sutherland’s physician or the insurance company about Mr. Sutherland’s
progress and prognosis.

[60] Mr. Banack described the physicality of the meeting as follows: he was behind
his desk, and across from him Mr. Becker was seated to the right and Mr. Sutherland to
the left . The office door was closed and was on the far right of the
office behind Mr. Becker.

[61] When asked to describe the discussion as it occurred, Mr. Banack relayed that
he advised Mr. Sutherland that they wanted medical information from him as the status
quo was not working for the company. Mr. Banack stated that Mr. Sutherland’s
response was “what is wrong with what we are doing now?” The conversation moved on
to possible options and Mr. Sutherland suggested that he would be willing to either
move to sales or a pilings crew. Mr. Banack said he explained that in his opinion neither
were suitable option due to Mr. Sutherland’s skill set and current medical restrictions.

[62] It was at this point that Mr. Banack says Mr. Sutherland made a comment about
the company being required to let him “sharpen pencils” [if that was all he could do]. Mr.
Banack admits he stated something along the lines of “maybe you should consider
other work” although he testified that he hadn’t decided to release Mr. Sutherland at that
point. He believes he asked Mr. Sutherland whether he had any idea when he would be
ready for full duties at least twice but Mr. Sutherland replied along the lines of “I had
cancer, I went through hell, can’t you guys understand?”

[63] Mr. Banack described Mr. Sutherland’s behaviour as escalating and that the
situation deteriorated quickly, estimating that the entire conversation was over in five to

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ten minutes. Mr. Banack testified that Mr. Sutherland became angry and repeatedly
used the word “fuck.” However, Mr. Banack admitted that this word was in common use
at the shop, but was generally not directed at other people.

[64] Mr. Banack testified that he believed that Mr. Sutherland called Mr. Becker “a
fucking idiot,” although I note that Mr. Becker’s contemporaneous notes only refer to
“idiot.” Mr. Banack also suggested that Mr. Sutherland directed the word initially at Mr.

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Becker but then at both of them. Mr. Banack said that he could see that Mr. Becker was
getting angry but that he remained in control. Mr. Banack said the meeting ended with
Mr. Sutherland pushing his chair back, standing up, and Mr. Becker standing up. Mr.
Banack recalled that Mr. Sutherland “pushed by [Mr. Becker] and pushed Mr. Becker by
putting his right hand on Mr. Becker’s chest.

[65] Mr. Banack testified that at this point he said to Mr. Sutherland “that’s it, you’re
done!” or similar, as Mr. Sutherland’s behaviour was seen by Mr. Banack as a “physical
assault.” Mr. Sutherland headed towards the shop and Mr. Becker escorted him off the
premise shortly thereafter. According to Mr. Banack, Mr. Sutherland was shouting
insults about Mr. Banack and Mr. Becker to the crew members that were in the shop as
he departed. This was Mr. Banack’s last contact with Mr. Sutherland.

[66] Mr. Banack admitted that Mr. Roy approached him a few days after that and
asked if Mr. Banack had any problems with Mr. Sutherland working on Apollo projects
for his company. Mr. Banack said that he told Mr. Roy that [Mr. Banack] “was not going
to stop [Mr. Sutherland] from working, just not for Apollo.”

Mike Dunster

[67] Mr. Dunster testified that in 2011 he was working on installation crews for Apollo
Sunrooms. He would have been a Lead Hand at the time, with some other project lead
responsibilities, as he had significant experience with the respondent’s product. He
testified that installation crews would normally consist of two to three people: the Lead
Hand, a second skilled helper (labourer), with a third helper occasionally assigned as
well.

[68] Mr. Dunster was aware that Mr. Sutherland was a crew member, or labourer. He
explained that Mr. Banack instructed him to see “if they could help him out and return to
work.” Mr. Dunster believed this to be “an open-ended thing with no specific
parameters.” He said that he knew Mr. Sutherland “still had some health issues” but he
had no specific information. Mr. Dunster said he could see a difference in Mr.
Sutherland’s physical strength after the cancer treatment. Mr. Dunster testified that the
directive from the respondent was that “[Mr. Sutherland] will tell you” what he could and
could not do.

[69] Mr. Dunster testified that he observed that Mr. Sutherland’s contribution on-site
was diminished, “which was expected,” and that Mr. Sutherland “wasn’t always able to
work all day” as he was tired. As a courtesy they would provide Mr. Sutherland with

12
transportation home. Mr. Dunster explained that he felt the additional travel mid-day did
affect the productivity of the job, and he reported the same to Mr. Becker and Mr.
Banack. Mr. Dunster stated that he felt that clients expected the work completed within
a certain timeframe, and that the company’s reputation was affected if this expectation
was not met.

[70] With respect to his observations regarding Mr. Sutherland’s work ethic, Mr.

2018 AHRC 13 (CanLII)

Dunster only recalled that Mr. Sutherland enjoyed talking, particularly about his past,
and that he required some prompting and direction. When questioned in cross-
examination, Mr. Dunster agreed that Mr. Sutherland did his work and was contributing
within the labourer’s, or helper’s role and skill-set.

[71] Mr. Dunster stated he was in the shop on the day of Mr. Sutherland’s dismissal
but only to see him leave the building. He said Mr. Sutherland was very upset and
angry, but Mr. Dunster did not recall what Mr. Sutherland might have said.

Jorg Becker

[72] In 2011, Mr. Becker was the Construction Manager for Apollo Sunrooms. He
organized the installation crews, among other duties. Mr. Becker testified that there
were always several projects on the go, and that he would assign the project lead, then
one or two helpers would be assigned to that crew. When asked about the role of the
Carpenter’s Helper, Mr. Becker stated that it was a supportive role, involving among
other duties: keeping the job clean, assisting with set up and tear down of the
installation site, and it also involved lifting and moving materials.

[73] Mr. Becker testified that if a client had any issues with the crew, he would
address them. From time-to-time he checked out the job sites. He would communicate
directly with Mr. Banack over any issues arising. Mr. Becker stated he was also involved
in hiring and checking timesheets.

[74] Mr. Becker remembered Mr. Sutherland’s return to work after his treatment. He
stated that his own role in the GRTW was to discuss where Mr. Sutherland would fit
best, and that Mr. Banack and Ms. Lang coordinated Mr. Sutherland’s return, with Mr.
Banack advising that Mr. Sutherland could only work half-time. He remembered that Mr.
Sutherland initially returned to a few days in the shop, then was moved back to work on
the job sites. Mr. Becker testified that he advised the Leads to give Mr. Sutherland
lighter duties.

[75] When asked about what type of light duty work was available, Mr. Becker
testified that more was available towards the end of a job because at that time it would
include screwing on drywall, painting, cleaning and moving tools. When asked about
any issues with Mr. Sutherland’s work, Mr. Becker stated that Mr. Sutherland was “loud”
but did not elaborate further.

13
[76] When asked about the impact that the partial work days had on the company, Mr.
Becker testified that this was a concern, as to drive Mr. Sutherland around, the job site
would first have to be secured (if it was not a three-person crew), and the tools locked
up. In addition, the return trip took anywhere from five minutes to two hours depending
on where the site was in relation to the shop. This had, from Mr. Becker’s perspective, a
significant impact on the productivity of the business. Even if the crew consisted of three

2018 AHRC 13 (CanLII)

people (including Mr. Sutherland), the person left alone for the duration could not
accomplish what a regular crew could. Mr. Becker also felt the respondent was paying
wages for driving time instead of productive labour.

[77] Mr. Becker said that he initially spoke to Mr. Sutherland about this, and referred
to his contemporaneous notes in the respondent’s response to this complaint. He stated
that the notes referred to a meeting maybe the week prior to April 11, 2011. Mr. Becker
testified that the purpose of the meeting was to discuss alternate arrangements for Mr.
Sutherland’s mid-day transportation, as the arrangement to drive Mr. Sutherland was a
burden on the company. Mr. Becker stated that he offered Mr. Sutherland the option of
staying on the worksite the whole day, but doing light duties.

[78] Mr. Becker testified that he felt Mr. Sutherland didn’t want to work but he wanted
to get paid although he also admitted that he knew Mr. Sutherland had recently been
seriously ill. Mr. Becker did not recall how that meeting ended. He stated that he did not
discuss the issue again with Mr. Sutherland until the meeting of April 11, 2011.

[79] Mr. Becker testified that his recall of that meeting was that Mr. Banack and Mr.
Becker wanted to discuss finding solutions about the mid-day driving issue with Mr.
Sutherland. They discussed Mr. Sutherland’s solutions of moving to a pilings crew, or
the sales team, but neither of these were appropriate fits. Mr. Becker said that Mr.
Sutherland may have raised the issue that his throat was swollen because of the dust.

[80] Mr. Becker stated that in the meeting Mr. Sutherland got upset and told Mr.
Becker that he was a “fucking idiot” and that Mr. Sutherland was loud, after which Mr.
Banack fired him. Mr. Becker stated that he was calm throughout the meeting. He didn’t
recall how the meeting ended except that he walked Mr. Sutherland off the property
while Mr. Sutherland was swearing and very upset. Mr. Becker testified that he didn’t
remember being pushed, but at any rate that he didn’t feel threatened or afraid as “Mr.
Sutherland wasn’t very strong at the time.”

[81] On cross-examination, Mr. Becker said that Mr. Sutherland’s answer to the
respondent’s inquiries in that meeting were “you didn’t have cancer, you have no clue.”
When asked about Mr. Sutherland’s version of events, that Mr. Becker had said to him
“it’s all in your mind,” Mr. Becker confirmed that he had told Mr. Sutherland that the
issue was with “his mindset.” When asked to explain what this meant, he stated, “if his
mindset was different” and that “he was doing work but he didn’t want to do the work.”
Mr. Becker agreed that he wasn’t taking Mr. Sutherland seriously and that although he
did not recall why Mr. Sutherland got mad, it was probably something he said.

14
Terry Lang

[82] Ms. Lang testified that she was the Office Manager and Bookkeeper for Apollo
Sunrooms in 2011. She was asked to explain the process for a medical leave at the
time, and stated that her responsibilities were to inform the employee of the steps and
provide them with the forms for long-term disability insurance after they had exhausted

2018 AHRC 13 (CanLII)

employment insurance benefits, as the respondent had no short-term sick leave benefit
for employees.

[83] With respect to Mr. Sutherland’s medical leave and return to work, Ms. Lang
testified that her only role was to prove Mr. Sutherland with the insurance forms, and
then, during his GRTW, submit his timesheets to SSQ. Ms. Lang stated that from time-
to-time, someone from SSQ would call and ask if Mr. Sutherland was at work, and she
would confirm that he was.

[84] When asked about what medical clearance or documentation Mr. Sutherland
provided prior to his return to work, Ms. Lang stated that she did not recall any, and that
he “just came back to work.” Ms. Lang said she assumed that all of the medical went to
the insurance company. When asked about any restrictions, Ms. Lang confirmed that
she knew he only could do “light duties” and that Mr. Banack would have been the one
who would have been provided with more information. Ms. Lang testified that she did
notice Mr. Sutherland was tired, which was to be expected. On cross-examination, Ms.
Lang agreed that she knew Mr. Sutherland was on a graduated return to work and that
she assumed the timeline was between Mr. Sutherland and his physician.

[85] When asked about the meeting of April 11, 2011, Ms. Lang explained that she
was working in her office across the hall from where the three men were meeting, and
she could hear raised voices. When asked about whose voices were raised, Ms. Lang
replied Mr. Sutherland’s and Mr. Becker’s. Ms. Lang testified that when the meeting
ended she stayed in her office, and that as he left, Mr. Sutherland was vocal and angry,
but she did not recall what he was saying, although there could have been swearing.

Denis Roy

[86] From approximately 2006 to 2013, Mr. Roy was the owner/operator of Falkroy
Construction. Apollo Sunrooms was one of Falkroy Construction’s clients. Mr. Roy acted
as a subcontractor to Apollo Sunrooms, and effectively worked as a worksite crew on
jobs contracted by Apollo Sunrooms.

[87] Mr. Roy testified that he initially had a business partner, but they parted ways. As
a result, Mr. Banack sometimes “lent” Mr. Roy crew members, including Mr. Sutherland.
Mr. Roy stated that he worked with Mr. Sutherland while he was an employee of the
respondent as well as afterwards. Mr. Roy testified that he hired Mr. Sutherland in April
2011 after the respondent fired him. Mr. Roy stated that Mr. Sutherland was an
employee of Falkroy Construction from approximately April 2011 until June 2011, when
Mr. Sutherland’s employment was terminated by Mr. Roy.

15
[88] Of the period while Mr. Sutherland was an employee of the respondent and was
on the GRTW plan in early 2011, Mr. Roy recalled that he knew Mr. Sutherland had
recently finished treatment for cancer and was working “half” days. He testified that
during that time period he took Mr. Sutherland “back to the office” a couple of times. He
said that he complained about this to Mr. Banack, as he was losing time and money as
a result. Mr. Roy testified that after that the respondent had Mr. Dunster pick up Mr.

2018 AHRC 13 (CanLII)

Sutherland.

[89] Mr. Roy testified that he knew about the meeting where Mr. Sutherland was let
go by the respondent because “everybody heard about it.” Shortly thereafter Mr.
Sutherland came to Mr. Roy and advised him he had been fired, then asked for a job.
Mr. Roy testified that he told Mr. Sutherland he “would have to talk to” Mr. Banack first.
Mr. Roy testified that Mr. Banack said that he wasn’t going to stand in the way of Mr.
Sutherland making a living, so Mr. Roy hired Mr. Sutherland.

[90] Mr. Sutherland started working for Falkroy Construction on or about April 18,
2011. Mr. Sutherland commenced work at full-time hours with Mr. Roy’s company. Mr.
Roy testified that he advised Mr. Sutherland that Falkroy Construction was a small
company, and that he couldn’t afford to drive Mr. Sutherland around. He offered Mr.
Sutherland work at “full days or nothing.” Mr. Sutherland agreed to those terms.

[91] Mr. Roy testified that Mr. Sutherland also pretty much went back to heavy lifting
on the jobsite. He advised Mr. Sutherland to use the dolly or a small forklift if he couldn’t
lift items. He said Mr. Sutherland might have been a bit lightheaded but Mr. Roy advised
him to “take his time” to get work done. Mr. Roy was paying Mr. Sutherland the same
wage that he had made with the respondent, or approximately $21.00 per hour.

[92] Mr. Roy said that Mr. Sutherland’s last day was June 10, 2011. Mr. Roy testified
that on one site Mr. Sutherland “flew off the handle and insulted another contractor in
front of the client.” [By client, I understand that Mr. Roy was referring to a homeowner
rather than the respondent]. Mr. Roy testified that he told Mr. Sutherland to stop, and
that Mr. Roy apologized to the client.

[93] Mr. Roy testified that he sent Mr. Sutherland home and “gave him a week to think
about it.” When Mr. Roy called Mr. Sutherland at the end of that week, Mr. Roy testified
that Mr. Sutherland insulted him. So Mr. Roy fired him.

[94] Mr. Roy testified that he had no communications with SSQ for the duration of Mr.
Sutherland’s employment with Falkroy Construction and did not know Mr. Sutherland
was still receiving some benefits at the time. When asked by the respondent’s counsel
to compare the documentation that Mr. Sutherland’s then spouse submitted to SSQ for
the time period between April 18, 2011 to May 31, 2011 indicating part-time hours of
work, with the timesheets that Mr. Sutherland used to record his hours of work for
Falkroy Construction during the same time period indicating full-time hours of work, Mr.
Roy testified that the company timesheets were an accurate record of Mr. Sutherland’s
hours of work.

16
Analysis

The Legislation

[95] Section 7(1) of the Act creates the legal prohibition against discrimination in the
workplace:

2018 AHRC 13 (CanLII)

7(1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or

any term or condition of employment,

because of the race, religious beliefs, colour, gender, gender identity,

gender expression, physical disability, mental disability, age, ancestry,
place of origin, marital status, source of income, family status or sexual
orientation of that person or of any other person.

[96] However, section 7(3) provides a lawful limitation on section 7(1) in that it
states:

(3) Subsection (1) does not apply with respect to a refusal, limitation,
specification or preference based on a bona fide occupational
requirement.

[97] Section 44(1)(l) of the Act provides for the definition of physical disability:

(l) “physical disability” means any degree of physical disability, infirmity,

malformation or disfigurement that is caused by bodily injury, birth defect
or illness and, without limiting the generality of the foregoing, includes
epilepsy, paralysis, amputation, lack of physical co-ordination, blindness
or visual impairment, deafness or hearing impediment, muteness or
speech impediment, and physical reliance on a guide dog, service dog,
wheelchair or other remedial appliance or device;

Prima Facie Discrimination

[98] The legal analysis that is at the forefront of this exercise is the evaluation of the
evidence to determine whether a prima facie case of discrimination has been
established. The Supreme Court of Canada set out the three-part test in Moore v.
British Columbia (Education):2

…to demonstrate prima facie discrimination, complainants are required to

show that they have a characteristic protected from discrimination under
2
Moore v. British Columbia (Education) 2012 SCC 61 at para. 33

17
 the Code; that they experienced an adverse impact with respect to the
service; and that the protected characteristic was a factor in the adverse
impact …

[99] This test was set out by the Court in the context of a complaint of human rights
discrimination in the context of a service. However, the test is generally applicable to

2018 AHRC 13 (CanLII)

human rights complaints including the present one. If a complainant can make out a
prima facie case of discrimination, then the legal onus shifts to the respondent to
demonstrate a lawful justification for its actions.3

Did Mr. Sutherland have a characteristic protected by the Act?

[100] While counsel for the respondent argued that Mr. Sutherland did not meet the
definition of physical disability for the purposes of the Act and the test in Moore, I do not
agree. The Act is to be construed as remedial, and given a large and liberal construction
to ensure that the objects and purpose of the Act are met.4

[101] I find the evidence consistent throughout to establish that during the relevant time
period in 2011, Mr. Sutherland had a disability for the purposes of the Act in that:

 he was recovering from cancer as well as the effects of recent

chemotherapy and radiation treatment, including the complications arising
from the treatments;
 he could not eat normally until immediately prior to his return to work, had
accordingly (and objectively) lost weight, and was observed as being tired
and not of the same strength and stamina as he was prior to the illness;
 his primary occupational duties were ones involving physical labour and
upon his return to work he could not carry them out to the same extent
that he had prior to his illness; and
 his treating physician testified regarding the legitimate need for a GRTW
plan upon his return to work and Mr. Sutherland believed he was acting in
accordance with his physician’s and SSQ’s directives regarding the same.

[102] As a result, Mr. Sutherland’s case is distinguishable from the decision in Berridge
v. City of Calgary.5 I note that it was unusual and certainly not optimal that the GRTW
program appears to largely have developed as a result of conversations between Mr.
Sutherland and Dr. Jha that were then relayed back to Ms. Lee by Mr. Sutherland rather
than through more direct inquiries to Dr. Jha by SSQ. However, unlike in Berridge, Mr.
Sutherland did make a request for a work hardening program to the respondent that
was accepted by the respondent and that was medically supported by his physician at
the time of the request.

3
See Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 1985 CanLII 18
(SCC) at para. 28
4
Interpretation Act, R.S.A. 2000 c.I-8, s.10
5
Berridge v. City of Calgary, 2007 AHRC 9

18
Did Mr. Sutherland suffer an adverse effect?

[103] The respondent argued that as Mr. Sutherland returned to essentially full-time
hours and duties with Mr. Roy’s company as of April 18, 2011, he did not suffer an
adverse effect.

2018 AHRC 13 (CanLII)

[104] I agree Mr. Sutherland successfully mitigated his income losses, but that does
not alter the fact that he lost his job with the respondent and that is an adverse effect.

Was Mr. Sutherland’s disability a factor in the adverse effect?

[105] The respondent argued that Mr. Sutherland’s employment was terminated for
cause.

[106] The respondent relied on the Alberta Court of Appeal’s comments in Stewart v.
Elk Valley Coal Corporation, that to establish a prima facie case of discrimination, “the
disability must be a real factor in the adverse impact and not just part of the necessary
background.”6

[107] The respondent asserted that it was Mr. Sutherland’s behaviour in the meeting of
April 11, 2011 that ultimately led to the decision to terminate Mr. Sutherland’s
employment for cause, rather than because of any discriminatory motivation.

[108] I find that the evidence is clear and consistent with respect to the topic of
conversation that led to Mr. Banack’s decision to terminate Mr. Sutherland’s
employment on April 11, 2011, namely, his gradual return to work plan in relation to his
anticipated return to full hours and duties for the respondent. As such, Mr. Sutherland’s
disability was clearly a central factor in the events leading to the termination of his
employment.

[109] Mr. Sutherland’s contribution to the deterioration of that final conversation goes
to the question of whether undue hardship had been reached, rather than whether or
not prima facie discrimination has occurred.

The Procedural and Substantive Components of Undue Hardship

[110] In the employment context, a duty to accommodate generally refers to what

measures are required from an employer under the particular factual circumstances to
avoid discriminating against an employee. It would be nonsensical to accept that some
level of work hardening was not appropriate upon a return to work after an ordeal similar
to what Mr. Sutherland went through in 2010 and early 2011.

6
Steward v. Elk Valley Coal Corporation, 2015 ABCA 225 at para. 63, affirmed on appeal in 2017 SCC
30

19
[111] However, and also as a general principle, a refusal to provide more than cursory
information about the nature of one’s disability and related request for accommodation
may found an employer’s legitimate argument that it has met its burden to
accommodate an individual. While an employee’s threshold requirement for disclosure
in any given situation is dependent upon its own facts, it is apparent that an employer
cannot be expected to accommodate what it does not know about.

2018 AHRC 13 (CanLII)

[112] Canadian adjudicators and our Courts have repeatedly used the three-part
analysis outlined by the Supreme Court of Canada in British Columbia (Public Service
Employee Relations Commission) v. B.C.G.S.E.U. 7(Meiorin), to determine whether a
prima facie discriminatory policy or practice could be justified pursuant to human rights
legislation as a bona fide occupational requirement (“BFOR”). In this seminal case, then
McLachlin J. explained:

… An employer may justify the impugned standard by establishing on the

balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally
connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest

and good faith belief that it was necessary to the fulfilment of that
legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the

accomplishment of that legitimate work-related purpose. To show
that the standard is reasonably necessary, it must be demonstrated
that it is impossible to accommodate individual employees sharing
the characteristics of the claimant without imposing undue hardship
upon the employer.

[113] Given that the key issue in this case is not the ability to meet a neutral standard,
but whether or not the respondent met its duty to accommodate, the focus of this
particular analysis is on step 3 of the Meiorin test, that is, whether the respondent
accommodated Mr. Sutherland’s disability to the point of undue hardship.

[114] The Court in Meiorin goes on to provide this guidance:8

… in Central Alberta Dairy Pool, supra, at pp. 520-21, Wilson J. addressed

the factors that may be considered when assessing an employer's duty to
accommodate an employee to the point of undue hardship. Among the
relevant factors are the financial cost of the possible method of
accommodation, the relative interchangeability of the workforce and
facilities, and the prospect of substantial interference with the rights of
7
British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. [1999] 3 S.C.R.
3(S.C.C.) at para. 54
8
Meiorin, supra at para. 63

20
 other employees. See also Renaud, supra, at p. 984, per Sopinka J. The
various factors are not entrenched, except to the extent that they are
expressly included or excluded by statute. In all cases, as Cory J. noted in
Chambly, supra, at p. 546, such considerations "should be applied with
common sense and flexibility in the context of the factual situation
presented in each case.”

2018 AHRC 13 (CanLII)

[115] The Court also comments in McGill University Health Centre v. Syndicat des
employes de l’Hopital general de Montreal:9

The importance of the individualized nature of the accommodation

process cannot be minimized. The scope of the duty to accommodate
varies according to the characteristics of each enterprise, the specific
needs of each employee and the specific circumstances in which the
decision is to be made. …

[116] Importantly, and while the procedural and substantive components of the duty to
accommodate are not separate tests, they provide helpful guidance in this analysis.
Again, in Meiorin, the Court writes:10

Notwithstanding the overlap between the two inquiries, it may often be

useful as a practical matter to consider separately, first, the procedure, if
any, which was adopted to assess the issue of accommodation and,
second, the substantive content of either a more accommodating standard
which was offered or alternatively the employer's reasons for not offering
any such standard: see generally Lepofsky, supra.

[117] Finally, I agree with the respondent that the jurisprudence confirms that an
employee also has a role to play in the accommodation process. The Supreme Court of
Canada has held:11

… Throughout the employment relationship, the employer must make an

effort to accommodate the employee… [but] if the accommodation
process fails because the employee does not co-operate, his or her
complaint may be dismissed. …

[118] I am entitled to consider Mr. Sutherland’s participation in the accommodation

process in the undue hardship analysis:12

… the complainant must do his or her part as well. Concomitant with a

search for reasonable accommodation is a duty to facilitate the search for

9
McGill University Health Centre v. Syndicat des employes de l’Hopital general de Montreal [2007] 1
R.C.S.; 2007 SCC 4 at para. 22
10
Meiorin, supra, at para. 66
11
McGill University Health Centre, supra at para. 22
12
Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at para. 43

21
 such an accommodation. Thus in determining whether the duty of
accommodation has been fulfilled the conduct of the complainant must be
considered.

[119] Part of an employee’s duty within the accommodation process is to provide an

employer with relevant medical information supporting a request for accommodation:13

2018 AHRC 13 (CanLII)

There must be some onus on the employee to share pertinent information
if there is an expectation of an accommodation. The employer cannot be
expected to operate in isolation. The employee has to provide at least
some cursory information regarding their needs, if there is to be an
expectation of accommodation.

[120] While the respondent argued that Mr. Sutherland failed to respond adequately to
the respondent’s requests for medical information, I find that those requests (a part of
the procedural component of the respondent’s duty) were far less than clear or optimal
in this case. Unfortunately, this is a case where a penny of prevention would have been
worth a pound of cure.

[121] While Dr. Jha’s recommendations for Mr. Sutherland’s GRTW were admittedly
not well documented, the evidence supports a finding that Mr. Sutherland was in the
required communication with both Dr. Jha and Ms. Lee of SSQ both prior to his return to
work and for the duration of his employment with the respondent. I accept that, without
more formal direction from the respondent for better medical information, Mr. Sutherland
held the real but perhaps mistaken belief that he was fulfilling his obligation to the
respondent to keep them apprised on the progress of his GRTW plan. I also take it as
self-evident that post-treatment prognosis is specific to the individual and timelines will
differ. Mr. Sutherland testified that if Mr. Banack had plainly made a request for the
disclosure of what type of information he was seeking information from Mr. Sutherland’s
physician, “he would have gotten it.” I also accept that, in late March and early April
2011, Mr. Sutherland reasonably wanted to clear it with his treating physician(s) prior to
agreeing to a full return to work.

[122] It would have been beneficial for Mr. Banack to inform himself of the respective
rights and responsibilities of both Mr. Sutherland and the respondent prior to Mr.
Sutherland’s return to work. Unfortunately, this did not occur.

[123] However, as the respondent’s counsel rightly argued and as explained above,
the duty to accommodate also has other delineated boundaries. Again, this is a fact
specific inquiry.

[124] I have considered the following evidence of the respondent that it was reaching
the threshold of undue hardship with respect to Mr. Sutherland’s accommodation:

13
Burgess v. Huk Professional Corporation, 2009 AHRC 8 at para. 185

22
  Apollo Sunrooms was a small company, engaging a total of 10 to 12
construction workers in 2011. Crews of only two to three individuals were
dispatched to sites across the city and surrounding area, and no one was
normally employed in the shop;
 Mr. Sutherland’s occupation was physically demanding, and he had
limited qualifications for transferring to other areas of work;

2018 AHRC 13 (CanLII)

 The respondent initially made good faith efforts to attempt to
accommodate Mr. Sutherland, including allowing him to work partial days
and only perform lighter duties;
 the respondent was seeking further information from Mr. Sutherland on his
anticipated return to full days and duties, and approached him for the
same at least on April 11, 2011, and Mr. Sutherland appears not to have
received these inquiries well; and
 driving Mr. Sutherland back to the shop midday was not a feasible
alternative on a longer-term basis.

[125] Mr. Banack’s assertion that Mr. Sutherland was being unproductive or had a
negative or lazy attitude towards hard work more generally was not corroborated by the
respondent’s other witnesses who worked alongside Mr. Sutherland. While I accept that
Mr. Sutherland may be a talkative and even a “loud” character, Mr. Dunster and Mr. Roy
would have had the most opportunity to observe Mr. Sutherland at the worksite and
neither reported in testimony that Mr. Sutherland’s “light duties” were their foremost
concern. Rather, it was the loss of work time occurring because Mr. Sutherland was
being driven back to the shop midday that was their primary complaint to the
respondent.

[126] On this point, I find Mr. Banack’s criticism of Mr. Sutherland to be a bit
embellished.

[127] The respondent also argued that it was Mr. Sutherland’s behaviour towards
management and, in particular, during the meeting of April 11, 2011 that was the reason
for Mr. Sutherland’s termination, rather than his disability. While I do not accept this was
the case, I do take Mr. Sutherland’s role in the breakdown of communications
concerning the status of his accommodation into consideration here.

[128] I find that Mr. Becker’s comments to Mr. Sutherland, while difficult to pin point the
exact words he used and the exact time he used them, were at least about Mr.
Sutherland’s “mindset” in that the gist of the comment was that Mr. Sutherland’s
physical condition was not as limiting as Mr. Sutherland was making it out to be. I find
that Mr. Becker was suggesting that Mr. Sutherland was, at least to some extent,
feigning or malingering. Under the circumstances, I am not surprised Mr. Sutherland
took offence, felt humiliated or got angry. I find Mr. Becker’s attitude towards Mr.
Sutherland to objectively be insensitive if not callous; counter-productive to the goals of
the respondent; as well as provocative to Mr. Sutherland.

23
[129] Certainly, as Mr. Sutherland himself admitted, he could be hot-headed, if not
obstinate. However, I also find that Mr. Sutherland’s reactions were not without
explanation given Mr. Becker’s attitude regarding Mr. Sutherland’s health status.

[130] With respect to whether or not Mr. Sutherland actually assaulted Mr. Becker on
April 11, 2011, the evidence was conflicting. I do not accept that Mr. Becker remained
calm throughout the incident, as Ms. Lang testified she heard both Mr. Sutherland’s and

2018 AHRC 13 (CanLII)

Mr. Becker’s raised voices from outside the office. Neither Mr. Sutherland nor Mr.
Becker recalled Mr. Sutherland shoving Mr. Becker, and Mr. Becker’s evidence was that
he was not intimidated by Mr. Sutherland. Mr. Banack recalled both men standing up,
shortly after which Mr. Sutherland exited the office past Mr. Becker. I find it most likely
that Mr. Sutherland may have pushed past Mr. Becker during that departure and made
some sort of physical contact. However, given the emotional energy of the moment,
neither man noticed. As a result, I find that Mr. Banack’s characterization of the moment
as an assault was an overstatement.

[131] Again, if cooler heads (on all accounts) would have prevailed, perhaps more
productive discussion would have been had, and a satisfactory outcome would have
been arrived upon rather than the termination of Mr. Sutherland’s employment.

[132] Importantly, what everyone seemed to have overlooked at the time was that Mr.
Sutherland’s inability to drive himself home had nothing to do with his disability. Indeed,
Mr. Sutherland’s own evidence was that he had never had a driver’s license the entire
time he was employed by the respondent. Simply put, partial days and a ride back to
the shop doesn’t necessarily flow from a request for an accommodation to work partial
days.

[133] While driving Mr. Sutherland back to the shop was certainly a kind gesture,
again, it wasn’t necessarily required of the respondent. Unfortunately, it appears that
alternatives simply were not contemplated or seriously explored.

[134] The respondent argued that this was because Mr. Sutherland’s behaviour made
it impossible to sincerely canvas the options. With respect, I cannot accept this was the
case. Again, if the respondent would have sought further information on or researched
its obligations and options; if Mr. Becker would have approached Mr. Sutherland more
respectfully; if Mr. Banack would have presented Mr. Sutherland with some sort of form
or written questions regarding what he needed from his physician with respect to Mr.
Sutherland’s status and prognosis, perhaps the outcome here would have been very
different. Unfortunately, we will never know.

[135] But because the respondent failed to take any of these steps and approached
the final request for information counter-productively, I cannot find that it reached the
point of undue hardship with respect to its duty to accommodate Mr. Sutherland’s
GRTW.

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Remedy

[136] The director has established a contravention of s.7(1)(a) & (b) of the Act by the
respondent.

[137] As of April 18, 2011, Mr. Sutherland was working full-time for Falkroy

2018 AHRC 13 (CanLII)

Construction, as well as performing close to, if not all, the full duties of a Carpenter
Helper for Mr. Roy. While this may be indicative of necessity rather than a medically
optimized return to work program, Mr. Sutherland did mitigate any income-related
losses and has not made a claim for lost wages.

[138] A misleading complaint cannot be condoned by the Tribunal. Mr. Sutherland

admitted in testimony, that he was dishonest in his complaint and to SSQ about working
full-time after he was terminated. However, on the primary matters to be decided before
this Tribunal, I find Mr. Sutherland’s evidence largely credible and consistent. Even in
his initial complaint he writes, “On April 11, 2011, the Construction Manager (Jorge) [sic]
informed me that it was “all in my head” and if I wanted to, I was ready to work full time.
I told him he was an idiot, not a doctor.” [Emphasis added] These comments are
consistent with his later testimony.

[139] Counsel for the director cited the Alberta Court of Appeal in Walsh v. Mobil Oil
Canada,14 for the principles governing damages in human rights complaints, reminding
the Tribunal that “[d]amage awards that do not provide for appropriate compensation
can minimize the serious nature of the discrimination, undermine the mandate and
principles that are the foundation of human rights legislation, and further marginalize a
complainant. …”

[140] In support of an award in the range of $15,000 to $20,000, counsel cited recent
decisions.15

[141] Having weighed all the evidence, and taking into account recent jurisprudence
and the remedial nature of the Act, I award Mr. Sutherland general damages in the
amount of $15,000.00. In doing so I note his evidence that the memory of what occurred
in his final days at Apollo Sunrooms still upsets Mr. Sutherland today. He was angered
by Mr. Becker’s suggestion that Mr. Sutherland’s illness was all in his head. Mr.
Sutherland testified that he had experienced a near fatal cancer and the experience of
being told he could just ignore it if he wanted to was very upsetting.

[142] I would like to thank counsel for the director and counsel for the respondent for
their very able and thorough presentations of this case.

14
Walsh v. Mobil Oil Canada, 2013 ABCA 238 at para. 32
15
Johnsen v. ProLine Property Maintenance Ltd., 2017 AHRC 18; Horvath v. Rocky View School Division
No. 41, 2016 AHRC 19; and Carriere v. Boonstra Trucking Ltd., 2013 AHRC 10

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November 8, 2018 Cherie Langlois-Klassen, B.Sc., M.Sc., LL.B.
Tribunal Chair

2018 AHRC 13 (CanLII)

26
Parties
Michael Sutherland, Complainant
on his own behalf

Tania Sarkar, Legal Counsel

for the Alberta Human Rights Commission (Director)

2018 AHRC 13 (CanLII)

Ally Ismail, Legal Counsel
Emery Jamieson LLP
for the Respondents Apollo Sunrooms Inc. and Andrew Banack

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