[nagdu] Canada: Accommodating The Use Of A Seeing-Eye Dog: APrecedent-Setting Decision

Wed Sep 11 12:21:53 UTC 2013

Well, the employer did say they'd "work something out". She never said what
that would entail. 
Reminds me of when my old bank offered me a "bennifitial new mortgage rate".
When I read it, the only entity bennifitting from the new rate was the bank.

-----Original Message-----
From: nagdu [mailto:nagdu-bounces at nfbnet.org] On Behalf Of Nicole Torcolini
Sent: Tuesday, September 10, 2013 9:36 PM
To: 'NAGDU Mailing List, the National Association of Guide Dog Users'
Subject: Re: [nagdu] Canada: Accommodating The Use Of A Seeing-Eye Dog:
APrecedent-Setting Decision

The part of this article that bothers me most is that the employer waited
until after the lady got the dog to say anything. She told her employer,
didn't she? I mean, what did they expect her to do? Our dogs are not pets;
we don't just leave them home for four hours, especially not right after we
receive them. 

-----Original Message-----
From: nagdu [mailto:nagdu-bounces at nfbnet.org] On Behalf Of Ginger Kutsch
Sent: Tuesday, September 10, 2013 7:42 AM
To: NAGDU Mailing List,the National Association of Guide Dog Users
Subject: [nagdu] Canada: Accommodating The Use Of A Seeing-Eye Dog:
APrecedent-Setting Decision

Canada: Accommodating The Use Of A Seeing-Eye Dog: A Precedent-Setting
Decision

Last Updated: September 9 2013

By Audrey Murray

Norton Rose Fulbright Canada LLP

http://www.mondaq.com/canada/x/261640/employee+rights+labour+relations/Accom
modating+The+Use+Of+A+SeeingEye+Dog+A+PrecedentSetting+Decision

In a ruling handed down by Quebec's Human Rights Tribunal late last month,
an employer who had refused to allow a blind employee to use a seeing-eye
dog in the workplace was ordered to pay the now-former employee $7,605 in
damages.1

Facts

The plaintiff, a massage therapist who has suffered from a degenerative
sight condition since the age of 17, was working at a care centre offering a
massage therapy service. When she was interviewed for the job, she said she
would soon be getting a seeing-eye dog, and the employer told her they would
figure out a solution at that time. In the months after she was hired, she
told her employer she had to temporarily suspend her availability so she
could attend training given by the Mira Foundation for the purpose of
getting her seeing-eye dog.

Upon completing her training, the plaintiff advised her employer that her
seeing-eye dog would have to accompany her at work. Citing reasons that
included another employee's fur allergy, odours and a lack of available
space, the employer refused to allow the seeing-eye dog in the
establishment. The plaintiff proposed a solution: she would work in blocks
of no more than four hours while leaving her seeing-eye dog at home. The
employer accepted the solution, but when the plaintiff contacted the Mira
Foundation, she was told that her seeing-eye dog could not be left alone and
could only be separated from its master in exceptional circumstances. She
notified her employer that the solution she had proposed was unfeasible. At
that point, the employer stopped giving her any work hours. The plaintiff
understood this to mean that the employer was not going to let her come to
work with her seeing-eye dog. She consequently filed a complaint with
Quebec's Human Rights Commission (Commission).

During the hearing before the Human Rights Tribunal (Tribunal), the
plaintiff said she would have wanted her seeing-eye dog with her at work, in
a suitably located cage. In its defence, the employer contended, among other
things, that it had never refused to allow the plaintiff to come to work
with her seeing-eye dog and that, on the contrary, the service agreement had
been terminated by the employee before there was an opportunity to find a
workable solution.

Decision

The Tribunal rejected the employer's argument, among others, that section 16
of the Charter of Human Rights and Freedoms2 (Charter) did not apply to the
plaintiff because she was a self-employed worker. That section reads as
follows:

16. No one may practise discrimination in respect of the hiring,
apprenticeship, duration of the probationary period, vocational training,
promotion, transfer, displacement, laying-off, suspension, dismissal or
conditions of employment of a person or in the establishment of categories
or classes of employment.

The Tribunal maintained that the Charter had to be given a broad, generous
and liberal interpretation to provide ongoing protection of individual
rights and freedoms. It also pointed out that section 16 covers more than
the situation of employees within the meaning of labour law. Moreover, in
analyzing the terms of the contract between the parties, the Tribunal
concluded that the plaintiff appeared to have very limited autonomy in
performing her job: the work relationship was therefore more akin to an
employment relationship.

The Tribunal then had to determine whether the employer had violated the
plaintiff's rights, dignity and right to full and equal treatment by not
allowing her to be accompanied by a seeing-eye dog in the workplace. The
Tribunal found that the Commission had demonstrated, on a balance of
probabilities, that the employer had failed to accommodate the plaintiff,
who had wanted to be accompanied at work by her seeing-eye dog. The Tribunal
also found that requiring a visually impaired person to leave her seeing-eye
dog at home for a four-hour period could not be considered reasonable
accommodation.

As for the employer's concerns that the seeing-eye dog might misbehave and
that some people were allergic or afraid of the dog, the Tribunal argued
that the Mira Foundation was available to reassure staff and help integrate
the seeing-eye dog, but had not been contacted by the employer. The Tribunal
also concluded that the employer had violated the plaintiff's right to
dignity by contravening section 4 of the Charter-the plaintiff had testified
that she had felt rejected, betrayed and abused.

Orders

The Tribunal ordered the employer to pay the plaintiff $1,105 in
compensation for lost pay and $6,500 in moral damages. This is the first
time the Tribunal has ruled in a matter of job discrimination based on the
use of a seeing-eye dog. In case law, moral damages awarded to individuals
who are blind range, on average, from $1,000 to $3,000. However, those
decisions are different in that they concern refusals of access to public
places and, consequently, time-limited, one-time events, whereas, in this
instance, the situation took place over a period of two months. Also, in the
case at issue, the person was not accommodated and was deprived of the right
to earn her living honourably-an element essential to her autonomy and
dignity. The Tribunal therefore awarded a larger amount.

As for punitive damages, the Tribunal ruled that they were not warranted in
this situation as there was nothing to show that the employer had intended
to discriminate or had been negligent within the meaning of the applicable
case law.

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