Frustrated with frustrated contracts? How the duty to accommodate applies to permanently disabled employees.

February 19, 2020

Employers are obligated to accommodate disabled employees to the point of undue hardship. Accommodation often requires arranging an employee’s job or workplace duties in such a way that the employee will be able to actively engage in the workforce despite their disability. The duty to accommodate, however, is not limitless. In Katz et al. v Clarke, 2019 ONSC 2188, the Ontario Superior Court of Justice dealt with the issue of how the duty to accommodate applies to permanently disabled employees who are unlikely to return to the workforce.


The employee was a manager with the employer’s business. The employee was off work on a medical leave from 2008 until 2013. During the employee’s medical leave, the employer’s insurance provider advised the employer that, based on the medical information, the employee was “unable to perform the essential duties of his position and there was no reasonable expectation that he would be capable of performing them in the foreseeable future”. As a result, the employer advised the employee that his employment would be terminated on December 31, 2013.

The employee advised his employer that he was attempting to “get well” and anticipated returning to work. Despite repeated requests, however, the employee did not provide the employer with any additional medical information showing that he would be able to return to work. On December 31, 2013, the employer dismissed the employee on the basis that the employee, through no fault of his own, was unable to fulfill his obligations under the employment contract and, as a result, the employment contract had been frustrated.

The employee brought an action for a declaration that he was terminated on the basis of his disability, seeking damages for lost wages and injury to dignity, feelings and self-respect.


On appeal from a motion for summary judgment in the employee’s wrongful dismissal action, the Superior Court of Justice held that the employee had frustrated his employment contract because he was permanently disabled and was unlikely to return to work in the foreseeable future.

The Court further held that an employer is unable to accommodate a permanently disabled employee, who has been deemed by their treating physician to be unlikely to return to work in the foreseeable future, unless the employee does all of the following:

  • expresses a desire to return to work;
  • provides medical evidence that they are capable of returning to work; and
  • provides information regarding any accommodation they require.

The Court applied this test and upheld the employee’s dismissal. The undisputed medical evidence established that the employee was permanently disabled and unlikely to return to work for the foreseeable future. Since the employee had failed to provide any medical documentation indicating he was, or would be, able to return to work, the employer was not able to accommodate the employee and the limit of undue hardship had been established.


Accommodation to the point of undue hardship is established where the medical evidence establishes that a permanently disabled employee is unlikely to return to work in the foreseeable future. The duty to accommodate will not be exhausted where the employee expresses their desire to return to work and provides medical evidence of their ability to return to work in the foreseeable future, including information regarding required accommodations.

If a permanently disabled employee expresses a desire to return to work, the employer should immediately request medical information from the employee, including:

  • a description of the employee’s medical condition;
  • confirmation of any medical restrictions and/or limitations;
  • whether the restrictions and/or limitations are permanent or temporary in nature;
  • the impact of the employee’s medical condition on their ability to perform their job duties;
  • risks to the safety of the employee or their co-workers associated with the employee’s return;
  • treatments or medication the employee is receiving that may impact their return to work; and
  • the employee’s prognosis.

Employers should require that employees remain off work until the requested medical information has been provided.

If the employee fails to provide any medical information establishing that they will be able to return to work in the foreseeable future, the employer should confer with legal counsel as to whether they can proceed to terminate the employee on the basis of frustration of contract.


This article was written with assistance from Katelyn Mangold, an Articled Clerk in Cox & Palmer’s Fredericton office.
Katelyn Mangold | | 506.453.9638 |

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