Posted by: Thixia | July 31, 2008

Law Injustice: MS patient; Addendum

 

The following is a letter from a Lawyer.

 

From: a sole practitioner <unknown_at_conspiracy.com

Date: Thu, 14 Aug 2003 11:57:35 -0400


I always believed that in Ontario an employer can terminate anyone for being excessively sick. 

Even if you get more rights to protect sick people, the end result will be that employers will demand as a condition of work a full medical and if you fail you will not be hired, just like with drug checks. 

Society should pay for sick people not single employers.  Small employers especially cannot afford to have sick people working for them.  There’s just not enough money in a small business venture.  How much or how little society pays is a sign of it’s benevolence or malevolence. 

 

More information:

 

On Wed, 13 Aug 2003 02:17:39 GMT, “liza” <cybernus_at_globetrotter.net wrote: 


RE Case law and the Canadian Charter of Rights and Freedoms sec 15 ( 1 ) and Multiple Sclerosis.  I checked out the following Superior Court judgement with a lawyer and without naming names it is summarized as follows using the court documents; An employer while accommodating a clerk’s MS disability, medically recognized and known to the employer as incurable and causing overall involuntary and uncontrollable negligence and poor performance, without an up-to-date medical exam being given first as clearance, started to discipline and treat the clerk as they would a healthy employee when accommodations for MS of many years did not work during the last year of 25 yrs service, by

The clerk asked for consideration of the MS condition when evaluating the performance.  The clerk pleaded with the employer that what they were doing was illegal.  Instead the reprimands and disciplines with threats of more to come continued and escalated in cost and frequency.  When the disciplines of suspensions without pay as therapy did not cure the poor work performance, the employer claiming constant insubordination and blatant negligence by the clerk, summarily fired the elderly clerk who had 25 yrs service, and did so arbitrarily with cause, by phone. 

With cause meant broke, as in without severance, or disability plan, with cancelled pension benefits and losses and with less than welfare for an income.  The disciplines were for MS symptoms like being slow, and memory lapses, confusion all listed in job evaluations, causing clerical errors because of oversights, incompetence, and poor typing including typos.

All were being accommodated over many years with double checks, special assistance and help from other employees, and many meetings with administrators over MS and performance problems, and failed office skills given by human resources, with an up-to-date medical advising the employer to beware of residual MS symptoms causing poor performance and.  After being fired and asked for meeting by the clerk.  The clerk was turned down by the employer and the clerk was told to sue for any compensation.  Even a newspaper article about the MS and the discipline treatment did nor change the employers mind who said about it that they had not considered the MS as cause of poor performance. 

 

The clerk lost the lawsuit without a penny of compensation.  The judge said that the incurable MS illness caused the poor performance and yet ruled on disciplinary grounds as being the only feasible way to rule considering the healthy and “fit” plea by the employer, and rather than be able to rule on the illness factor which he said would call for no discipline and a decent severance he had to rule on a discipline basis.   

He said that the MS caused errors but the disciplines for the poor performance were justified because of being healthy and fit, and the disciplines would have to be taken into consideration if they did or did not do their job.  When they did not.

He said therefore the MS illness and the disciplines called for termination with cause as the clerk failed to correct the reasons for the poor performance.   However he said compensation on moral grounds should be awarded but that since the $25,000.00 asked for was too high no compensation would be were given.   

Without a lawyer a leave to appeal was a futile effort.   I think that the employer and the judge should not have allowed what the employer’s managers did when they, as lay people, without medical knowledge inferred the invalid medical opinion of being healthy and fit and able to do any type of work was genuine and up-to-date.   

Furthermore and for the record, medically speaking it is known far and wide that MS is incurable, and any medical advice saying that a person with MS should be able to do the work would not mean that that the MS is cured and that possible impaired performance would not occur.  I believe that lay people as in this case should not judge or make medical decisions on their own.   

I believe the judgement was wrong and an error in law was made because the judge based his decision, against the clerk, using erroneous medical evidence of healthy or “fit to do any work ” is impossible in the case of MS ,and also I believe a breach of the charter of Rights and Freedoms was made.  SEC 15 ( 1 )  I believe that no disciplines should have been made or allowed, because in the case of incurable MS and it’s possible many impairing symptoms they are impractical and will not work as therapy.   

I think that what the employer should have and been made to do, in this case, by the judge when accommodations did not work is; 

a)     transfer the clerk ” employee “to another job if feasible if agreeable

b)    put the employee on long term disability and if a or b were not agreeable or feasible and

c)     in lieu of all the above rule in favour of the clerk and cancelled the disciplinary actions and termination with cause as a discipline and granted the asked for compensation with a decent severance package deserving of 25 yrs of service.   

It is too late for appeals.  The only thing left would be a call for a judicial revue and I do not think that would be entertained by the judiciary in this day and age in the case of a clerk with MS.   I feel it is a breach of the Canadian Charter of Rights and freedoms sec ( 15 ) and in case law ; Krznaric v. Chevrette Ontario Court of Justice Gen Div Nov 13 1997.   $$$$ and lack of it is the major problem and the cost to go through the judicial request is too high.  Ah yes what price justice. 

A few last months of disciplines out of 25 yrs service cost the clerk ill with MS, financial and emotional distress, a good job, and with a reputation in ruins, facing constant unemployment and less than welfare for an income “over a dozen” common everyday clerical errors like typos made by clerks and data entry clerks the world over.   

If this case surfaces would it cause a precedent that could be used against employees with MS?   Wish there was some good Samaritan with the time and the $$$$$ to take up the cause.  By the way the employer is large and world renowned and in this case of David and Goliath, David lost.   

Regards liza cybernus_at_globetrotter.net   _at_globetrotter.netwrote in message news:GifYa.16391$Yz.15580_at_charlie.risq.qc.ca…  Hi Thank you for your answer.  “David Nicholson” <davidnicholson_at_sympatico.cawrote in message news:AMkXa.657$_a4.155356_at_news20.bellglobal.com…  “liza” <cybernus_at_globetrotter.netwrote in message news:BGjXa.9181$Yz.9087_at_charlie.risq.qc.ca… 

Does any one know if there is case law or juriprudence chartered or anywhere that makes and declares that multiple sclerosis is a handicap?  There are a number of cases in which multiple sclerosis has been held to be a handicap.  I would say there is no doubt about it.  What is arguable, however, is the extent to which employers must accommodate a person who has MS.  Most of the cases lost, on those grounds.  One which didn’t is the following. 

I have provided the headnote:  Krznaric v. Chevrette (Ontario Court of Justice (General Division, November 13, 1997).    Civil rights – Discrimination – Employment – What constitutes discrimination – Duty to accommodate – On basis of physical or mental handicap – Police officers.   Action by Krznaric against the defendant police force for failing to accommodate his medical condition.  The plaintiff was a police officer for 27 years when he contracted multiple sclerosis.  He was unable to continue to carry out his ordinary duties as a sergeant.  He asked for the nature of his duties to be modified.  This was done, but his request to work an eight-hour shift rather than a 12-hour shift was denied.  The Police Services Act provided that if a member of the police force became disabled, the board was to accommodate his or her needs in accordance with the Human Rights Code.   

HELD: Action allowed.  An officer who complained that a board was in breach of the Act had recourse to the comprehensive enforcement mechanisms of the Human Rights Code.  The plaintiff clearly stood in a relationship of proximity to the board, and harm was foreseeable in the event the board failed to accommodate his needs arising from disability.  The obligations of the defendant to the plaintiff were regulated by a collective agreement and by statute. 

The defendant was also a government authority bound by the Canadian Charter and Rights and Freedoms.  The plaintiff had a cause of action for breach of the section 15(1) of the Charter duty to reasonably accommodate the needs of a disabled person.  The Chief of Police made no serious effort to accommodate the plaintiff’s request for eight hour shifts.  He treated the plaintiff’s request in the same manner as he would have treated a similar one from a healthy officer.  There was no evidence that permitting the eight hour shifts would have caused the defendants undue hardship, or that any policy was adopted regarding accommodation of disabled police officers generally.  The defendants’ conduct was neither reckless nor wilful, but failed to reasonably accommodate the needs of the plaintiff. 

A finding of malice was not a necessary precondition to an award of damages.  The plaintiff was to be fully compensated for his financial loss.  Special damages for loss of sick leave were $7,773, and general damages for loss of the opportunity to continue working were $5,000.

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Responses

  1. Since multiple sclerosis is incurable and unpredictable why did McGill university not consider the clerk’s mutiple sclerosis confition

    The court decision was allowed to proceed on misleading evidence about multiple sclerosis as being predictable and or cured


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