Today, the Supreme Court of Canada heard submissions in what is arguably the most important employment law case in over a decade, Honda v. Keays.  At issue are the legal consequences of firing an employee with a disability – in this case chronic fatigue syndrome.  As part of the company’s disability management program, Honda required Mr. Keays to document each absence from work with a doctor’s note, a requirement that his counsel argued was excessive given the pattern of intermittent absences from work which were part of Mr. Keays’ condition.  In addition, Mr. Keays was told that he needed to meet with a doctor hired on Honda’s behalf.  After his lawyer questioned the purpose of the meeting, Mr. Keays was told that he had to attend or else he would be fired.  When Mr. Keays did not comply, he was fired for cause, thus ending a fourteen year career with Honda.

At trial, Mr. Keays was awarded 15 months of notice and 9 additional months of notice by way of Wallace damages.  The trial judge, who was clearly appalled by Honda’s behaviour in its treatment of Mr. Keays, ordered the company pay $500,000 in punitive damages.  This amount was subsequently reduced to $100,000 by the Ontario Court of Appeal.

The courtroom today was completely full.  Not only were counsel for Honda and Keays present, but also counsel for each of the nine intervening parties.  These included the Human Rights Commissions of Canada, Manitoba and Ontario, the Human Resources Professional Association of Ontario, the Women’s Legal Education and Action Fund and the Council for Canadians with Disabilities, amongst others.  A full nine judge panel heard the case, with many questions being asked by Justices Abella, Charon, Binnie in particular.  While there is no way to predict which way the Court will ultimately decide, here are a number of questions it will likely address in its judgement:

• Is a breach of a human rights code a so called “actionable wrong” that is a prerequisite for the awarding of punitive damages?
• If punitive damages are an appropriate remedy in this case, what is the proper amount?
• Are there occasions when employers, under the guise of accommodating a disabled employee, go too far and impose unnecessarily harsh conditions – such as the provision of a doctor’s note for each absence – or is this all part of an employee’s obligation to assist in his or her own accommodation?
• What is the correct approach for employers to take when attempting to accommodate employees with “invisible” disabilities like chronic fatigue syndrome?
• Notwithstanding the existence of human rights legislation across the country that provides access to commissions and tribunals to investigate and adjudicate complaints, do the courts have jurisdiction to hear civil actions based on a tort of harassment and/or discrimination?
• What is the proper relationship between punitive damages and Wallace damages?

We predict that the outcome of this case will affect all Canadian workplaces in some fashion, particularly as employers go about accommodating the disabled employees who work within them.

Janice Rubin