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BC Human Rights Tribunal: Duty to Accommodate Requires Individualized Assessment
May 20, 2004

A recent decision of the BC Human Rights Tribunal illustrates the importance of individualized assessments of an employees’ disabilities and abilities when employers are considering the duty to accommodate disabled individuals.

The Complainant in this case had a congenital visual disability resulting in diminished capacity of the optic nerves. The condition was not fully correctible with glasses or contact lenses. As a result, the Complainant’s visual acuity did not meet the standards used by the Office of the Superintendent of Motor Vehicles (the “OSMV”) in assessing fitness to drive. Despite his disability, the Complainant had obtained a driver’s licence in 1982 and had worked as a commercial truck driver for thirteen years.

In September 1998, the OSMV received an unsolicited report from a doctor indicating that the Complainant’s vision did not meet driving standards. Based on this report, the OSMV cancelled the Complainant’s driver’s licence, and, as a result, the Complainant lost an independent contract he held with a trucking company.

The Complainant filed a human rights complaint alleging that, in cancelling his licence and failing to reinstate it, the OSMV had discriminated against him regarding a service or facility customarily available to the public, on the basis of his physical disability contrary to Section 8 of the Human Rights Code.

While recognizing the OSMV is responsible for protecting the travelling public from individuals who might pose a safety risk, the Tribunal determined that the OSMV had discriminated against the Complainant by removing his licence without conducting an individualized assessment. For example, the OSMV could have granted the Complainant an opportunity to demonstrate his driving abilities. Instead, the OSMV focused on the disability at issue, and relied on the Complainant’s failure to meet its visual standards as the basis for removing his licence. The Tribunal concluded that this did not result in a fair assessment of the risks posed by the Complainant.

The Tribunal awarded the Complainant 53 months of earnings, reduced by 15 percent as a result of some income he had earned during this period of time. He was also awarded compensation for any additional income tax liability resulting from the lump sum award. The Tribunal also awarded the Complainant $5,000.00 for injury to feelings, dignity and self-respect.

Bolster v. B.C. (Minister of Public Safety and Solicitor General), 2004 BCHRT 32, April 22, 2004