Time To Re-Think Accommodation Lists? WSIB Injuries Can Be Given Preferential Treatment

The Ontario Divisional Court has upheld the Ontario Human Rights Tribunal decision of Carter v. Chrysler Canada Inc. which found that an employer was permitted to have preferential treatment for accommodations for work-related injuries as opposed to non-occupational injuries. This is an important decision to keep in mind as employers determine how to meet their duty to accommodate under both the Ontario Human Rights Code ("the Code") and the Workplace Safety and Insurance Act ("the WSIA").

Under the Code all employers are required to accommodate an employee's disability to the point of undue hardship. This obligation extends to both work-related and non-work related injuries. The requirement to accommodate to the point of undue hardship is further established under the WSIA – and the WSIA establishes incentives and penalties that can affect payments into the insurance scheme depending on how long it takes for an appropriate accommodation to be found.