In Ottawa (City), 2012 CanLII 51391 (ON LA) (Marcotte), the employee filed a grievance alleging that the employer was failing to accommodate her disability. The arbitrator framed the issue as follows:
The Employer claims that in order to deal with the merits of the grievance, the Union must establish a prima facie case of discrimination against the grievor. The union argues that it does not have to do so for [the] reason [that] the Employer is estopped from insisting that a prima facie case of discrimination be established. In the alternative, the Union position is that the Employer has waived its right to insist upon the establishment of a prima facie case of discrimination against the grievor. This award deals only with the issue of whether or not the Union is required to establish a prima facie case of discrimination against the grievor.
The arguably relevant communications giving rise to the union’s position consisted of a letter, some 7 years earlier, in which the program manager of the employer’s Health and Wellness program stated that the employee’s medical information supported the existence of a disability that required accommodation, and an Accommodation Plan, signed some 9 months later. That latter document acknowledged that the employee had a disability that led to the Accommodation Plan. The Plan also provided that it would be reviewed annually and “the medical information related to the documented disability will be reassessed at that time.”
The arbitrator acknowledged that the employer’s contention that the union must initially establish a prima facie case was supported by the jurisprudence. However, he then considered the possible application of the equitable doctrine of estoppel. He relied on the following from Brown and Beatty, Canadian Labour Arbitration, at para. 2:2211:
Thus, the essential elements of estoppel are: A clear and unequivocal representation … which may be made by words or conduct; or in some circumstances it may result from silence or acquiescence; intended to be relied upon by the party to whom it was directed; … some reliance in the form of action or inaction; and detriment arising therefrom.
The arbitrator found that the employer had made a clear and unequivocal representation to the union intended to affect the legal relations between them. This, he said, was to be found in the employer’s representation that it had a duty to accommodate the grievor, and the fact that it did so, without requiring that the union establish a prima facie case, met the first element of the doctrine. He commented that had “the Employer intended to reserve its right to require the Union to establish a prima facie case of discrimination, or had intended that in accommodating the grievor its action was without prejudice to its right, it ought to have made a clear and unequivocal representation to those effects to the Union.”
In terms of the union’s reliance on the supposed representation, the arbitrator stated:
There is, further, no doubt the Union (and the grievor) has relied on the Employer’s representation over the some seven years following the confirmation of a disability requiring accommodation and the establishment of an Accommodation Plan for the grievor. The Union has, also, relied on the Employer’s representation in filing the … grievance at hand, contending the Employer has failed in its duty to accommodate the grievor, with the reasonable expectation, in the circumstances, that the complaint can properly be dealt with on its merits.
In terms of the third element (i.e, detriment), the arbitrator stated:
As to the matter of detriment arising from reliance on the Employer’s representation, to require the Union to now establish a prima facie case of discrimination would create an unfairness in that the union would have to seek out information and evidence of some seven years past in order to present its case at arbitration. There is no guarantee that the information it requires is still available, raising the possibility of the Union suffering prejudice to its cause. Moreover, the union would be placed in the curious position of, in effect, supporting the Employer’s decision that it had a duty to accommodate the grievor. In these circumstances, I find that the Union has relied on the Employer’s representation to its detriment.
I find the Union has established the three essential elements of estoppel. Accordingly, I find the Employer is estopped from requiring the Union to establish a prima facie case of discrimination against the grievor.
Arbitrator Marcotte then stated that in the alternative, the employer had waived its right to require the union to establish a prima facie case of discrimination against the grievor. It did so, in his view, when it initially failed to rely on its right to require that a prima facie case be established.
This case is somewhat of an aberration. The reasons lack context, and it is questionable whether the essential elements of the doctrine of estoppel have actually been fulfilled. The reasons assert, without any supporting explanation, that the union would have to resurrect information and evidence from some seven years earlier in order to establish its prima facie case. That is a mistaken assumption, for the issues of disability and accommodation must be primarily addressed in the context of the present. Much may have changed in seven years, and it is the employee’s present medical condition and current work place circumstances that will be relevant. In the absence of evidence to establish the case to be met, the employer will be put at a distinct disadvantage, such that the decision might be said to deprive the employer of its right to natural justice.
Moreover, the decision has the potential to cause mischief to the grieving union. Where there has been no evidence lead to establish a prima facie case, the result may well be that the parties will find themselves in a procedural quagmire. The issue is the present nature of the disability and not the particulars of the disability when accommodation was first extended. Without current evidence having been lead by the union, there will be no evidentiary basis on which to make a determination as to the nature of any accommodation that may be required.
Finally, it is not as simple as saying that the potential mischief arising from this decision can be met by agreeing that the accommodation and the accommodation plan are being extended on a without prejudice basis. Neither of these constitute an offer to settle, and the use of the expression “without prejudice” may be inappropriate in the circumstances. In addition, the parties are unlikely to have a common understanding of the impact that this expression may have on the arrangements that are being negotiated. This may create uncertainty that will stand in the way of the parties concluding a timely resolution to an employee’s request for accommodation.
An employer who has concerns with the potential impact of this decision might consider adding a sentence to any accommodation documents to the effect that in extending accommodation, the employer is not to be taken as agreeing to waive any element that the union may have to establish in the context of a legal hearing convened to deal with the issue of discrimination or accommodation.