City of Ottawa loses human rights lawsuit for firing OC Transpo driver

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The city of Ottawa lost a human rights case over the way it fired an OC Transpo driver who lost 1,241 days of work.

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In a recent ruling, the Federal Court upheld a Canadian Court of Human Rights (CHRT) ruling that said the city discriminated against Jamison Todd for failing to distinguish his disability-related absences from his ordinary absences in his termination letter.

Those absences should have been “disaggregated,” the court said, and the city should have considered other ways to accommodate their disability.

By law, companies must accommodate employees with disabilities to the point of “undue hardship”.

Todd suffered from irritable bowel syndrome and musculoskeletal pain during his troubled career at OC Transpo, which began in 2001 and ended with his resignation in March 2014.

In the 10-year period leading up to his dismissal, Todd lost 1,241 days of work. Nearly 30 percent of those absences were unrelated to his medical problems, the court said.

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Todd’s manager at OC Transpo eventually decided to fire him because he had repeatedly failed to inform him when he would miss a shift.

Such notice was required under the ongoing employment contract — the plans are sometimes called last-chance deals — Todd signed with the city in 2012.

In court, city attorneys argued that Todd’s regular absenteeism, combined with his inability to achieve a reasonable level of care due to his health problems, meant he was unable to fulfill his contractual obligation to “provide work.” They said this represented undue hardship for the employer, OC Transpo.

The city asked the Federal Court to overturn the court’s decision that it had discriminated against Todd and drop the case.

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But in her recent ruling, Federal Court Judge Susan Elliott endorsed the CHRT’s reasoning, which said the city had not presented evidence to show it had reached the point of undue hardship to accommodate Todd.

What’s more, Elliott said, the city mistakenly mixed up all of Todd’s absences in his termination letter.

“As the CHRT concluded,” the judge said, “it is the reason invoked at the time of the decision to terminate the employment contract that counts, and the CHRT reasonably concluded that in identifying Mr. termination, OC Transpo has retained the protections of the Canadian Human Rights Act against actions motivated in whole or in part by discrimination.”

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The human rights court has not yet decided how it will remedy the discrimination suffered.

Todd’s attorney declined a request for comment, while Ottawa City attorney David White said he is “not prepared to comment” on an ongoing legal matter.

The CHRT hearing took place over 19 days in 2017 and 2018.

In her subsequent ruling, Court member Kirsten Mercer concluded that the city did not discriminate against Todd during the course of his employment and did not discriminate against him in instituting a continuing employment contract to manage his absenteeism.

It wasn’t discriminatory for the city to fire Todd for violating that agreement, Mercer said, but it was discriminatory to cite his disability-related absenteeism in his termination letter.

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“If violations of Mr. Todd were the only reason given for his termination,” Mercer noted, “so I don’t believe terminating him would have been discriminatory.”

The court heard that Todd was diagnosed with irritable bowel syndrome in 2004. A chronic condition that affects the large intestine and can cause abdominal pain, cramping, bloating, gas, diarrhea or constipation.

Medical restrictions imposed by Todd’s doctors made it difficult for him to drive a bus, the court said, and OC Transpo agreed that he could call to say he was sick when his disability made it too difficult for him to work.

In 2012, Todd was absent without medical justification for several months, the court heard, after which his supervisor put him on continuous employment. It stipulated that Todd must inform his manager when he would be missing a shift so that he would be offered alternative assignments.

Todd was fired for failing to contact his manager after missing a shift with the flu in January 2014. The termination followed verbal and written warnings about the need to inform his supervisor of an absence in advance.

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