Noteworthy Cases – Mould v. JACE Holdings Ltd. (Thrifty Foods) (No. 2), 2012 BCHRT 77
Nov 06, 2012
In March 2012, the B.C. Human Rights Tribunal decided that the employer had breached the B.C. Human Rights Code when it terminated a disabled employee who had been absent from work for 30 months.
Ms. Mould began working at Thrifty in 1996 and worked her way up to assistant manager. In December 2007, she went on medical leave. She had surgery on her left knee in January 2008 and on her right knee in June 2009. During this period, she received disability benefits (LTD).
In June 2010, the insurance carrier found that Ms. Mould could return to work in a limited capacity, and it terminated her LTD benefits. Ms. Mould appealed the insurer’s decision and provided additional medical documentation to support her claim. However, her appeal failed, and the insurer notified Thrifty that, in its view, Ms. Mould was able to do sedentary work and thus her LTD benefits would have to end.
Thrifty did not respond or make arrangements for Ms. Mould to return to work. Instead, on May 26, 2010, Thrifty’s wrote to Ms. Mould informing her that since she had been off work since December 2007 and would be unable to return to work before June 17, 2010, they considered her employment to be “frustrated”. As such, her employment with the company had ceased.
In response, Ms. Mould requested to be accommodated back to work for 4-5 hour shifts per day or to do only specific tasks from her original job. Thrifty refused, saying that she had not provided any medical information to allow it to make an accommodation decision. Ms. Mould then filed a complaint against Thrifty with the B.C. Human Rights Tribunal.
The Tribunal found that the employer had failed to make any meaningful attempt to accommodate Ms. Mould’s return to work. As such, it had breached its duties under the Human Rights Code. The fact that Ms. Mould had been on medical leave for 30 months, did not give the employer the right to ignore its duty to accommodate her return to work.
This case is a reminder to employers that they must take active steps to determine how they can accommodate an employee’s return to work. The mere fact that an employee has been off of work with a bona fide disability or illness for a lengthy period does not give an employer the right to treat the employment relationship as being over. In all cases, employers must ensure that they have taken meaningful steps to satisfy their duty to accommodate under the applicable human rights legislation.
Noteworthy Cases – Pridgen v. University of Calgary, 2012 ABCA 139
Nov 06, 2012
In May 2012, the Alberta Court of Appeal found that the University of Calgary was unreasonable in its severe punishment of two of its undergrad students who criticized one of their professors on Facebook.
Two brothers, the Pridgens, were undergrad students at the University of Calgary. They, among several classmates, were unhappy with one of their professors. One of their classmates created a Facebook Page, a publicly accessible online group, where students could join and post comments on the page’s Wall. Ten students joined this group including the Pridgens. The brothers posted one comment each. The professor complained to the Faculty Dean about the Facebook group once she was alerted to it by colleagues. At the time, she was no longer employed at U of C.
The Dean found that the students were guilty of non-academic misconduct. After meeting with the Dean, sanctions were imposed, including 24 months of probation, a required letter of apology and a prohibition from posting similar comments about the professor. The Pridgens made several unsuccessful attempts to appeal the sanctions, and eventually sought judicial review by the Alberta Court of Queen’s Bench. The Court decided that the University had breached the Pridgens’ right to freedom of expression under the Charter by imposing sanctions for their Facebook comments. U of C appealed the Court’s decision to the Alberta Court of Appeal. The Court of Appeal agreed with the Court of Queen’s Bench and Justice Paperny found that the Pridgens’ right to freedom of expression had been infringed.
This case is a reminder that Courts will carefully scrutinize any attempts to limit the freedom of expression of individuals. Where a government-funded or affiliated entity such as a University attempts to limit the freedom of expression of its students it must carefully consider the students’ Charter right to freedom of expression, and ensure that any limitation is reasonable, justified and compliant with the Charter. In this case the Dean and the University failed to give any consideration to the Pridgens’ right to freedom of expression and as a result their decision to impose sanctions was invalid.
Micheline Dumont – Feminist History Society
Nov 05, 2012
Beth Symes is one of the founders of the Feminist History Society. The goal of the FHS is to publish books about the women’s movement in Canada between 1960 and 2010, which reflect the diversity and dynamism, strength and spirit of the movement.
This year, the FHS is pleased to present its third book: a compelling story by the erudite historian Micheline Dumont, celebrating the change created and sustained by Québec feminists towards conditions for women. Translated by Nicole Kennedy, this story is available in English for the first time. To order this book or to learn more about the FHS please visit: