Costly human rights ruling for employer after worker suffers concussion symptoms, is refused request for modified day
When a New Brunswick driving instructor returned to full-time work after a concussion, his employer believed the matter was closed. WorkSafeNB had cleared him. Benefits had ended.
Then his symptoms came back, he asked for one modified day, and everything unravelled.
In a Jan. 8, 2026, ruling, vice-chairperson David Brown of the New Brunswick Labour and Employment Board found that Versatile Training Solutions violated the Human Rights Act by terminating Evan Theriault's employment, ordering the company and its general manager to pay $22,440 in damages.
Benefits end after concussion
Theriault, a commercial vehicle driving instructor near Sussex, NB, suffered a concussion on April 30, 2024, after striking his head on a truck at the Versatile premises. After six weeks off, he entered a WorkSafeNB-supervised gradual return to work program, starting with light maintenance and by mid-August back full time with one day weekly on mechanical work and the rest instructing in the truck.
WorkSafeNB ended his benefits on Aug. 30, advising Versatile he was fit for full-time duties. Returning from vacation the week of Sept. 9, Theriault worked three consecutive days in the truck. His concussion symptoms returned on Sept. 11. He called in sick the next day.
On Sept.13, Theriault met with general manager Jolene Otis and asked to work off the trucks on Wednesdays or take that day off. Both were refused. Otis said Versatile was too small to afford a replacement instructor and that his WorkSafeNB benefits had ended, something he said he had not known.
Was it a resignation?
The meeting ended with Theriault saying, "If it doesn't work for you, it doesn't work for me." He tried to phone Robert Otis, Jolene Otis's husband and a part owner no longer involved in day-to-day operations, but could not reach him and texted instead. The message read in part: "To[sic] much to text but I'm going leaving here for good in a few and it's because no one cares about me getting better I tried to talk to Jo, and she doesn't care about me only about the money." He left the workplace, leaving a student in the truck.
Jolene Otis tried reaching him over the weekend without success. On Sept. 16, Theriault texted Robert Otis: "Not possible for me to return to work at this time due to concussion symptoms." That day, Jolene Otis emailed a Record of Employment stating he had quit.
Theriault texted Jolene Otis that same day: "Why would you send me an ROE saying I quit? Not once did I say I quit. I've been home with concussion symptoms. I messaged Rob this morning telling him I wouldn't be in today because of my symptoms."
The Employment Standards Branch ruled on Oct. 28, 2024, that Theriault had not quit. The Board agreed, finding his statement was made in frustration and a reasonable employer should have inquired further before acting.
Gap between workers' comp and human rights
On accommodation, the Board cleared Versatile, but not for the reason it argued. It rejected the undue hardship defence, noting Versatile had already accepted those modifications during the return-to-work program. The actual basis: Theriault had no new objective medical evidence on Sept. 13, and as a small employer, Versatile could rely on WorkSafeNB's findings.
The Board held that accommodation is a cooperative process and employers can require independent, objective medical evidence at each stage. Theriault had not met that obligation. His doctor confirmed the recurrence of symptoms on Sept. 24, after the termination.
The termination was a different matter. The Board found Theriault's physical disability was a factor in Versatile's decision to end the employment relationship. When asked on cross-examination why she had not sought further medical information, Jolene Otis answered: "I didn't think I had to."
The Board awarded $5,000 for injury to dignity and self-respect and $17,440 for lost income. Versatile and Jolene Otis were jointly and severally liable. The complaint against Robert Otis was dismissed, as he had no direct day-to-day role. The Board declined the Commission's request for mandatory human rights training.
