Recently, Zubas Flett Liberatore Law Lawyer, Ashna Gakhar, was quoted in a case comment by Jeffrey Smith of Canadian HR Reporter. The article, which discussed an employee’s duty to cooperate during the accommodation process, is available to read here and below.
Employer provided a return-to-work plan and modified duties, but worker didn’t co-operate, says employment lawyer discussing recent case
A worker’s firing was because he falsely claimed he was totally disabled and unable to work, not because of his disability, the Ontario Human Rights Tribunal has ruled.
The worker was employed with the Toronto Transit Commission (TTC) as an assistant foreperson, managing and supervising maintenance crews in the TTC’s subway tunnels and structures.
On May 29, 2018, the worker injured his back. He consulted his doctor and informed his supervisor that he would be taking a week off work “to heal.”
The doctor didn’t think the worker was in any condition to work, so they prescribed medication and advised the worker to take two weeks off without any prolonged sitting, frequent bending, or heavy lifting during that time. The worker informed his supervisor that he would be off until after his medication ended in two weeks’ time.
On June 4, the worker notified the TTC’s disability management specialist (DMS) about his injury and medications. The DMS said to advise of any side effects from the medication that could affect his ability to work so accommodations could be made.
Return to work
The worker saw his doctor on June 11 and brought a supplemental medical information (SMI) form from the TTC. However, the doctor believed the form was too soon and advised that the worker wasn’t able to return to work “at the moment” in a certificate of illness. The DMS still requested that the SMI form be completed, so the doctor said the worker could return to work on July 15 with four-hour shifts.
However, the worker told the TTC that his doctor had advised him not to return to work yet and continue with physiotherapy.
The worker was prescribed Percocet and, when the DMS forwarded his medical documentation to a consulting occupational physician, the physician said that the worker couldn’t take the drug within 24 hours of his shift.
On Aug. 24, the worker attended a functional assessment evaluation, which determined he was restricted in lifting, repetitive twisting, and he needed position changes every 20 minutes. The assessors found that this met partial requirements for work and recommended that he return to work on modified working hours with a follow-up review in 12 weeks.
Modified duties
The DMS offered the worker modified work and the worker said he wanted clearance from his doctor. The DMS said it couldn’t continue his sick benefits because he had clearance for modified duties and, if the worker’s doctor disagreed, he would have to provide updated medical information.
The worker felt that he was being forced to return to work. According to him, he “had no choice but to agree to the suspension of his pay and benefits” because he didn’t want to return to work.
On Sept. 10, the worker’s doctor diagnosed him with degenerative disc disease and approved him to return to work with modified hours on Sept. 16.
However, when the worker reported for work on Sept. 16, he was told to go home because he hadn’t been cleared. The DMS cleared him on Sept. 18, and he returned on that date.
Five days later, on Sept. 23, the worker re-injured his back at home and called his supervisor to say he wouldn’t be in. He informed the DMS of his relapse the next day, saying he had to go to the hospital and he was “back to square one” and was completely disabled.
Physical restrictions
The worker went to a chiropractor, who filled out an SMI saying he would have restrictions -including limited standing, walking or sitting and no kneeling, squatting, bending, or heavy lifting – for the next eight weeks, with an expected return to work on Nov. 14.
The TTC was unable to reconcile the medical information indicating that the worker could perform modified duties with restrictions, with the worker’s assertion that he was completely disabled. It hired two private investigators to conduct video surveillance of the worker over nine days in September and early October.
The videos showed the worker walking without assistance, standing and sitting for prolonged periods, getting in and out of his pickup truck, bending forward repeatedly, reaching above his shoulders, and pulling a large garbage bin while carrying a cardboard box.
A consulting occupational physician reviewed the videos, determining that the worker wasn’t totally disabled and could perform his job with accommodations.
“When the employer is doing its part in providing an employee with modified work and the employee is unable to do so, I think surveillance in those circumstances is reasonable,” says Ashna Gakhar, an employment lawyer at Zubas Flett Liberatore Law in Toronto. “Surveillance can be strategic and useful, but employers have to be really mindful of the restrictions and privacy, because the idea is to have a fair and respectful workplace – and within that falls open communication.”
Termination for cause
The worker was asked to come in for a meeting on Nov. 13, at which he was advised that the TTC had been conducting surveillance and it had determined that he was able to work. According to the worker, he answered all of their questions but management accused him of fraud. The worker said he was only performing “some activities of daily living” but he was still in pain and following the treatment plan.
The TTC terminated the worker’s employment effective Nov. 14, with the termination letter saying that he “falsely claimed that you were totally disabled from performing any work and have been absent from the workplace collecting sick pay.” It also said that his actions were considered fraudulent and in violation of several TTC policies, including its code of conduct.
The worker filed a human rights application alleging that the TTC discriminated against him because of disability.
The tribunal accepted that the worker had a disability within the meaning of the Ontario Human Rights Code and he suffered an adverse impact through the termination of his employment. The central issue was whether the disability was a factor in the termination.
The tribunal found inconsistencies in the worker’s evidence regarding the timing and cause of his disability. The medical documentation supported a return to work with restrictions, rather than a total disability needing continued sick leave. The TTC offered the worker modified work within his restrictions, including sedentary duties and accommodations for his medication, the tribunal said.
Accommodation co-operation
Surveillance footage showed the worker engaging in several physical activities without visible difficulty, which were inconsistent with a claim of total disability, the tribunal said, noting that such actions showed he wouldn’t have been prevented from doing the accommodated sedentary work.
“When the worker said he couldn’t return to work with modified duties and then the footage showed him doing certain things with relative ease and within his restrictions, there was some inconsistency,” says Gakhar. “It reinforced the point that, even though employers have a duty to accommodate, employees have to do their part too, whether it’s providing the right evidence, keeping the employer informed, communicating regularly, and just being honest and transparent.”
When it comes to a disability and a return-to-work plan, it should be a team effort, according to Gakhar.
“Both parties have to work together, and other parties also become involved, like medical professionals, the chiropractor, all sorts of resources – but the employer and employee have to work together to find a way forward,” she says.
The tribunal found that the evidence didn’t show that the worker’s disability prevented him from performing the modified work offered by the TTC. The TTC accepted his disability claims and repeatedly sought to make a return-to-work plan that accommodated his restrictions, but the worker didn’t co-operate with the plan and continued to collect sick benefits, said the tribunal.
Termination not discriminatory
The tribunal determined that it was reasonable for the TTC to conclude that the worker falsely claimed that he was totally disabled to collect sick pay without working, and this was the sole reason for dismissal, not the worker’s disability. The application was dismissed.
“The [TTC] did a really good job in showing that it met its duty to accommodate, provided a return-to-work plan and modified duties, and the worker didn’t co-operate,” says Gakhar. “And that gave it even more reason to use the footage to its advantage and prove that the employee’s termination of employment had nothing to do with discrimination.”
A key part of the employer’s duty to accommodate disabled employees is to offer modified work, as it helps bolster the argument that the employer has met its duty to accommodate and puts the onus back on the employee to co-operate, says Gakhar.
“In recent years, I think employment law has become very employee-friendly, but I think this case lends support to employers as well,” she says. “And it’s a helpful balance to ensure a fair and respectful workplace, showing what an employer can do to support an employee, but also what an employee can do to support the employer in [return-to-work] circumstances.”
See D’Arienzo v. Toronto Transit Commission, 2025 HRTO 1632.
If you have any questions or inquiries regarding HRTO claims, contact Zubas Flett Liberatore Law at 416-593-5844 or questions@employment-lawyers.ca