December 2, 2025
The duty to accommodate is just such a principle. Just like employers, courts and tribunals have a duty to accommodate a party’s disability related needs. However, the mere existence of a disability is not in itself enough to establish the boundaries of that duty.
THE ISSUE
Before the duty is triggered, the court or tribunal must find that the impact of the disability affects the party’s ability to access justice.
THE CASE
In Zarabi-Majd v. Toronto Police Service, the applicant suffered from PTSD. Because of the PTSD she claimed to be unable to participate in a discipline hearing. The Hearing Officer accepted the existence of the PTSD but found that this did not prevent the applicant from participating in the hearing. The hearing proceeded in her absence and not surprisingly, the employer established that she ought to be subject to discipline.
An appeal was unsuccessful, so off she went for judicial review by the Divisional Court, the branch of Ontario’s Superior Court that deals with such things.
The test on judicial review was whether or not the refusal of the adjournment was reasonable.
It is very difficult, almost impossible, to win a judicial review where the decision under review was solely based upon findings of fact.
To make it more difficult for the applicant, the Hearing Officer had engaged her in a discussion of ways she could be accommodated short of adjournment. She refused to consider accommodations other than an indefinite adjournment of the hearing.
As the Divisional Court points out, the process “of devising appropriate accommodations for a health-related disability must be collaborative”.
The Court was satisfied that the Hearing Officer’s efforts were reasonable in the absence of cooperation from the applicant.
They went on to rule that the decision to proceed in her absence was not procedurally unfair. She was aware of the hearing dates and had been warned of the risk that the hearing might proceed in her absence.
The applicant raised a Charter argument that the penalty of dismissal from employment was disproportionate to the infringement upon her rights under sections 7 and 15 of the Charter (the right of security of the person and of equality respectively). The Court agreed with the appeal tribunal that the penalty was “necessary to protect public confidence in policing”.
The application for judicial review was dismissed.
TAKEAWAYS
- Adjournments are discretionary.
- This means that they must be reasonable, but that is something less than correctness.
- If the adjournment is refused, failing to appear may be fatal to your case.
WHAT WEILERS LLP CAN DO TO HELP YOU
The employment law and administrative law lawyers at Weilers will use their knowledge, skills, and experience to advocate strongly for your case. We have credibility with judges and tribunals and understand their expectations. We are skilled story tellers.
If an adjournment is appropriate, we will do our best to obtain one for a good reason, in a timely manner. We will be honest with you about the prospects of an adjournment, just as we will be honest with you about the prospects of your case as it progresses.
If you want hard work and straightforward advice from your lawyers, give us a call. We might be the right lawyers for you.