This case originally came from an arbitrated dispute involving a union. The employee had a lengthy record of absences – missing 960 days of work over a span of 7 years. The employer had adjusted working conditions to try to meet the employee’s needs but these efforts had not been entirely successful. Eventually, the employee brought a physician’s note indicating that she would “no longer be able to work on a regular and continuous basis without continuing to have an absenteeism problem”. The employer dismissed the employee, who then filed a grievance. At arbitration, the arbitrator held that the employee was unable to work for the foreseeable future, as required, and the employer had no further obligations. The case made its way up to the Supreme Court of Canada after the Québec Court of Appeal overturned the lower Court decision and sided with the employee.

The Supreme Court of Canada discussed the concept of “undue hardship” when an employer is required to accommodate a disabled employee. Employers must be flexible in adopting a standard that is appropriate – to ensure that the employee can work. However, the employer does not need to “alter the essence of the contract of employment”. Employers should be required to offer their employees variable work schedules, lighten work loads or authorize shift transfers if these steps can be taken to accommodate the needs of disabled employees.

The Court noted that if an employee’s illness means that “the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test” and will not be required to keep the employee any longer.

The Supreme Court’s decision in this case is not strikingly different from existing case law dealing with disabled employees. Employers have never been required to provide that it is “impossible” to accommodate a disabled employee. Employers should not be required to create entirely new positions or put up with inappropriate levels of chronic absenteeism. Although this decision is another victory for employers, it was a unanimous decision of the Supreme Court of Canada which did not fundamentally change the law.

The one concern that employees may have however, is the absence of genuine empathy in the decision in reviewing the case history. Where Supreme Court of Canada decisions in the past have focused on “vulnerable employees” and the sheer gap in bargaining power between employees and employers, this Supreme Court of Canada decision is most concerned with employer needs to carry on business efficiently and productively.

Perhaps it is too early to assess the impact of this type of thinking on other factual scenarios, but this decision is one of a number of significant decisions issued by the Supreme Court in 2008. All of the decisions sided with employers. Looking at the language used in Hydro-Quebec and the results of the other decisions, employees in Canada certainly have cause to worry about what other decisions might be coming down the pipeline.

Linda Fraser had worked for UBS for more than 20 years.  She became ill after a holiday and was off work for six months on short term disability leave.  She tried to return to work but was unable to do so due to her illness, which had become more severe.  She went off again on short term disability leave for another six months.  After her second leave, Ms Fraser was off for a two year period on long term disability leave.

Most LTD policies change after two years.  For the first two years, Ms Fraser was required to show that she could not perform the duties of her employment, meaning the specific job that she had with UBS.  After two years, she was required to show that she could not perform the duties of any gainful occupation.  The insurer cut Ms Fraser off benefits when the definition changed and Ms Fraser sued the insurer to challenge that decision.  The lawsuit was totally separate from her wrongful dismissal case.

From UBS’ perspective, Ms Fraser’s disability coverage ended even though she was suing the insurer.  She was off work and no longer in receipt of benefits for a period of five months.  She did not keep UBS informed about her status.  After five months, UBS wrote to Ms Fraser and stated that her employment was being terminated.  It paid her out 8 weeks’ notice pay and 22 weeks’ severance pay under the Ontario Employment Standards Act and continued her extended health benefits for three more months.  Ms Fraser did not accept this decision and sued for wrongful dismissal.

At trial Justice Wein of the Ontario Superior Court reviewed the law of “frustration” and concluded that it applied in this case.  Ms Fraser was found to be “permanently disabled.”  The Court held that she is “totally disabled and her disability is permanent such that she will never be able to work again.”  As a result, the employment contract had ended and UBS was not required to provide any further payments.  The wrongful dismissal lawsuit was dismissed.

For employees in Ontario, the case is a reminder that employees have an obligation to keep their employers updated as to their status when they are off on a sick leave.  If disability benefits are cut off, they must provide information to their employers about their proposed actions.  If it becomes clear that the employee will not be able to return to work again, the employer may be able to conclude that the employment relationship has ended.  This will not necessarily lead to a viable wrongful dismissal lawsuit.

For employers, this type of decision is rare.  If the employee can show that he or she simply required more time to recover and kept the employer informed, the employer will not necessarily be able to rely on “frustration.”  The situation may also be different where the employee continues to receive LTD benefits.  Employers looking to rely on “frustration” will need to be reasonably sure that the employee will not be able to return to work for the foreseeable future.

I picked up Jan Wong’s latest book Out of the Blue out of professional interest.  As an employment lawyer, I had heard that the book was an interesting assessment of Ms Wong’s fight with the Globe and Mail, her former employer.

Although the dispute with The Globe and Mail plays a significant role, this memoir style offering is much more concerned with Ms Wong’s battle with depression and her struggle to overcome it.

It is a very intimate, personal look at a person struggling to deal with mental illness.  Ms Wong spends of great deal of time dealing with the effect that her depression had on her relationship with her family members, her interactions with family and friends and her own very personal ways of trying to overcome these challenges.

Early in the book, Ms Wong describes the events that she believes triggered her depression.  A well known, accomplished columnist for many years, she wrote a column analyzing the Dawson College shooting in Montreal, Quebec in September 2006.  The column drew a connection between the fact that the only three campus shootings in Canada had been committed by immigrants in Quebec and that the three killers had been marginalized by a society that values pure laine Quebec stock.

As if to partially substantiate her claims, Ms Wong was flooded with angry hate mail, much of it in French. She received mail that attacked her ethnicity, her gender, and her appearance.   She was subjected to outrageous, vulgar email attacks and, ultimately, a death threat.  She was also attacked by mainstream media, including major Quebec newspapers.  The Globe and Mail itself printed numerous articles responding harshly to Ms Wong’s column and there was even a call in the Canadian Parliament for her to “apologize” to the people of Quebec.  Things became worse as caricatures of her were drawn in Quebec newspapers, her father’s restaurant was boycotted and the Globe and Mail eventually printed a column indicating that Ms Wong had erred.

As a result of these incidents and Ms Wong’s feeling that the Globe and Mail had abandoned her, she descended into a medically diagnosed depression.  Much of the book deals with her attempts to treat, self-analyze and overcome her depression. She describes in detail her medical appointments, her trips to her psychiatrist, the types of medication she was prescribed and the ongoing interaction she was having with the Globe’s benefits administrator, Manulife Financial, over the assessment of her disability claim.

Ms Wong relies on the writings of various authors, poets, researchers and others to paint a picture of a much understood illness, from a very personal vantage point.  Chunks of the book are repetitive and tedious.  But she sets out to explain how a person can be “depressed” and not necessarily exhibit common symptoms of other illnesses.  Her aim is to de-stigmatize this type of illness and to urge employers and insurers to treat people who are suffering from depression more compassionately.

Along the way, Ms Wong details her methods of trying to fight off her illness.  One suggested approach is to get away from it all and use the “geographic cure.”  In other words, Ms Wong sets off to travel to China, Scandinavia or New York City, partially as way of self-treating her depression.  She does mention that she was economically fortunate enough to be able to do that, which is not the case for many dismissed employees (like many of my clients) who are off from work with their monthly income benefits cancelled due to a dispute as to whether their illnesses are legitimate.  Another approach is medication and Ms Wong reviews a whole range of depression medication along with the effectiveness of each type, the side effects and other issues.

In the midst of all of this, and while being unable to work for the Globe and Mail (or perhaps in between spates of being unable to work), Ms Wong completed a book, Beijing Confidential, and scheduled a book tour.  She writes about the fact that the Manulife investigators made videos of her smiling during her book tour to show that she was not really depressed.  Sure, the fact that she was caught on camera smiling does not prove that she was depressed.  But for many employers, cynicism would be a natural reaction to a situation in which a star employee was too sick to work but was, instead, crossing the country promoting her new book.  Ms Wong tries to explain this, but even as employee-side counsel, I had a hard time finding it to be convincing.  While I don’t doubt her sincerity or the fact that she was genuinely depressed, I find it harder to accept that she could write a book but could not write anything for the Globe and Mail.

Perhaps as in the case with many other dismissed, depressed employees, Ms Wong really begins to emerge from her depression when her case with the Globe and Mail is settled and she is paid a large amount of money.  She does not detail the amount but she does detail the fact that she fought very hard to ensure that she did not have to sign a general confidentiality agreement and that she could write about her battle with her illness, with the Globe and Mail and with Manulife, which is probably portrayed as the most roguish of characters in the book.  She is correct in noting that most employees are not in a strong enough position to be able to refuse this demand and are usually forced into silence when settling their disputes with their former employers.

People who have battled with depression and particularly in an employment or job loss context will find much of this book instructive, comforting and even reassuring.  Ms Wong’s description of the role of the benefits administrator and her battle to prove her entitlement to receive disability benefits in the face of rejected claims is realistic and is a battle that is commonly fought.

On the employment law side, the book has much less to offer.  For one thing, Ms Wong’s battle with The Globe and Mail occurs in a unionized workplace.   This means that Ms Wong was in a position to demand reinstatement or damages that are on a different scale than most other dismissed, non-unionized employees in Canada.  She had the benefit of having union counsel fight for this without any cost to her.  The vast majority of dismissed employees in Canada face a more difficult and costly legal battle when they are wrongfully dismissed.  Most dismissed employees are also much less likely to be able to use the “geographic cure” when they become depressed and travel great distances to cure themselves (or at least, to take their minds off their troubles).  Some readers might not relate to these parts of the book even while they find other parts of the book to be personally relevant and emotionally helpful.