With the recent death of Ontario Superior Court Justice Randy Echlin, a giant in the employment law world, it’s an appropriate time to discuss how the law treats cancer.
That cancer in most of its forms is considered to be a disability and a trigger for the right of accommodation for purposes of human rights laws is beyond controversy. But outside of human rights codes, how does the law protect cancer patients?
The Superior Court decision in
Altman v. Steve’s Music provides all employers with a primer on how not to treat cancer patients. The plaintiff, Shelley Altman, began working for Steve’s Music in 1978. She was diagnosed with lung cancer in 2007.
With radiation and chemotherapy treatments, Altman could only work reduced hours. In October 2008, without warning, she received a lawyer’s letter from a bailiff stating she’d be terminated unless she resumed her regular working hours.
Two days later, Altman began a medical leave for about six months. On April 1, 2009, she informed Steve’s Music she’d be returning to work on April 8. But on April 6, she told her employer she would delay the return date by two weeks due to a fracture. The next day, a bailiff delivered a lawyer’s letter terminating the employment.
The case turned on the application of the doctrine of frustration. Frustration is one of those fascinating common law doctrines we study in law school that applies in situations where a contract becomes impossible to perform due to some catastrophic event that neither party is responsible for or has contemplated.
In employment law, it turns largely on whether the disability is temporary or permanent. This determination stems from the knowledge of the parties at the date of the termination without regard to future events.
At the date of the termination, Steve’s Music had no information concerning Altman’s ability to work other than that she’d be returning in late April.
As it turned out, Altman was diagnosed with bone and brain metastases in the fall of 2009, but as of the date of termination, there was no medical evidence she was permanently unable to return to work. The frustration argument was therefore unsuccessful.
In addition to a significant award for wrongful dismissal, the court added additional compensatory damages for the failure to act in good faith and the manner in which the termination occurred as well as punitive damages.
The frustration doctrine received another blow in
Naccarato v. Costco, another Superior Court matter. This case considered an employee who hadn’t worked but had been on disability (albeit not on a cancer-related illness) for five years.
The employer relied on the frustration doctrine to justify its dismissal after receiving a doctor’s note stating, “I can’t predict when Mr. Naccarato will be able to return to his job” and that “further treatment” was possible.
In rejecting the frustration argument, the court focused on the lack of evidence to support a finding that Naccarto would be unable to return in the “reasonably foreseeable future” as well as the lack of disruption to the employer’s business.
Both the Altman and Naccarato decisions leave open the question of whether the frustration doctrine can ever apply while an employee is in receipt of long-term disability insurance benefits.
There may be a persuasive argument that the frustration doctrine should never apply where a disability policy is in place as the parties have expressly anticipated that the employee may become disabled and unable to work for indeterminate periods of time.
If course, I can’t end this discussion of Echlin and how the law treats cancer patients without mentioning one of Echlin’s decisions earlier this year:
Brito v. Canac Kitchens.
One of the plaintiffs in the case was Luis Romero Olguin, who had been terminated at the age of 55 after 24 years of service. Canac provided the minimum Employment Standards Act payout of 32 weeks.
Canac also provided Olguin with eight weeks of disability coverage but didn’t offer it for the period of reasonable notice.
Olguin obtained alternate employment in the month following the termination but was diagnosed with cancer the following year.
Echlin concluded that Canac ought to have provided 22 months of reasonable notice or compensation in lieu and that it should make Olguin whole for that period.
Since Olguin became disabled during the reasonable notice period, making him whole required Canac to be responsible for damages for the absence of the disability coverage.
It was a just result for Olguin and a powerful precedent for other patients. Echlin’s keen eye for justice, then, will be missed.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
