Court dismisses appeal – but emphasizes courts' duty to accommodate
The Federal Court of Appeal has dismissed the argument of a worker with autism that the dismissal of his appeal of a workplace investigation was procedurally unfair and discriminatory.
However, it also emphasized that courts have a duty to accommodate people with disabilities.
The worker was a software developer for Employment and Social Development Canada (ESDC). He had autism, but he didn’t request any accommodation when he was hired in 2008 because he wanted to be treated by everyone else.
However, within a year, the worker realized that he needed some accommodation and advised ESDC that his doctor suggested that he would benefit from “very clear, unambiguous communication and clear feedback” and he shouldn’t have any other limitations if that was followed.
However, by 2016, the worker felt that it wasn’t working out, so he told his supervisors that he had a disability and he was formally requesting accommodation. He heard nothing for several months, so he followed up by email asking for a response.
The worker exchanged various communications with ESDC over the next several months, but he wasn’t pleased with the directions it was going. He filed four complaints under ESDC’s harassment policy against his superiors for failing to accommodate his autism. He also alleged that his workload was reduced to almost nothing after he disclosed his disability.
Independent investigator
An independent investigator determined that the worker’s complaints against his team leader and manager had been substantiated in part, but those against his director and director general were not well-founded.
The team leader acknowledged that he had not provided the worker with work assignments between August 2017 and the spring of 2018, but he said that he had not been provided with any official information about the worker’s disability. He also said that the manager instructed him not to give work to the worker because he had work from previous supervisors with concrete objectives. The manager denied saying not to give work to the worker, but to maintain appropriate communication about his work and expectations. Given the conflicting reports, the investigator found the evidence didn’t support that the manager said not to give the worker any work.
The investigator found that the team leader and manager failed to discuss the worker’s disability and accommodation needs, which was a breach of ESDC’s directive on performance management and its accommodation policy. ESDC accepted the findings.
The worker sought judicial review of ESDC’s acceptance of the investigator’s finding. The Federal Court, in recognition of the worker’s autism, took steps to ensure fairness in the process. It scheduled a full-day hearing of the appeal rather than the standard two hours, allowed the worker’s mother to sit with him, and steps were taken to avoid disruptive, distracting, and loud noises during the hearing.
Employees with autism can be accommodated by reducing workplace stimuli and creating a culture of clear communication, according to an expert.
Detailed explanation of process
During the hearing, the process was explained to the worker in greater detail – he represented himself – he was given more time for his submissions, he was allowed to take more breaks, and the court checked in with him to see if he had any questions.
The worker was able to complete his submissions and confirmed at the end of the day that he believed he had received a fair hearing, but the Federal Court dismissed the application, finding that it was reasonable for ESDC to accept the investigator’s report.
The worker appealed that decision, alleging that Federal Court’s decision was procedurally unfair and discriminatory. He had requested three days for the hearing because he needed additional time to process information and would be “severely disadvantaged” by a one-day hearing, but the court refused. He also pointed out that counsel for the employer brought a motion to strike documents in his affidavit at the start of the hearing – the employer’s counsel and a sworn witness contended that the documents had not been provided to the investigator - which limited his time and overwhelmed him, leading to a panic attack and him breaking down in the courtroom. The worker also argued that the Federal Court should have appointed a solicitor on his behalf, as required by the Federal Court Rules.
The Federal Court of Appeal noted that any procedural fairness perceived by the worker could be “cured by our review” of ESDC’s decision and whether the Federal Court used the correct standard of review.
A flawed harassment investigation led to a wrongful and discriminatory dismissal of an autistic worker, the Ontario Human Rights Tribunal found.
Accommodation measures
The appeal court noted that the Federal Court took several measures to accommodate the worker’s autism, and the length of the hearing wasn’t an issue because the worker acknowledged at the end of it that he felt that he had received a fair hearing. As for the documents that were struck from the worker’s affidavit, it was open to the Federal Court to prefer sworn evidence that the documents had not been provided to the investigator, said the Court of Appeal, noting that the worker had been made aware of an issue of admissibility four months before the hearing and there was no procedural unfairness.
The appeal court also disagreed with the worker that the court should have appointed a solicitor to represent him, as the Federal Court Rules stipulated that should happen for someone “who is under a legal disability” who did not have the capacity to represent themselves. There was no suggestion that the worker didn’t have the legal capacity to represent himself based on his submissions and how he proceeded, said the appeal court.
The Court of Appeal found that the Federal Court correctly identified reasonableness as the standard of review and it was open to that court to determine that ESDC’s acceptance of the investigator’s report was reasonable.
The appeal court noted that the worker did not establish bias by the investigator and his disagreement with the findings didn’t mean they were unreasonable. The worker’s appeal was dismissed.
Workers on the autism spectrum can be more productive than neurotypicals in high-tech roles, says an expert.
Courts’ duty to accommodate
The Court of Appeal noted that “equality before the law for individuals with disabilities is guaranteed by the Canadian Charter of Rights and Freedoms” and discrimination can be direct or indirect when providing services. It also pointed out that the Accessible Canada Act, which was passed in 2019, requires service providers to take into account disabilities and the different ways that people with disabilities can be marginalized and discriminated against.
The steps taken by the Federal Court in the worker’s appeal were examples of how courts, like employers, have an obligation to accommodate disabilities, said the appeal court.
“Court must, however, remain mindful of their duty to accommodate the needs of the disabled to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians,” the court said. See Haynes v. Canada (Attorney General), 2023 FCA 158.
