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LEGAL REPORT: LABOUR AND EMPLOYMENT 'Reasonable accommodation not a one-way street' Supreme Court erases massive punitive damages award against Honda Canada. BY ROBE R T TODD E mployers across the country are breathing a little easier when it comes to handling issues of accom- modation and absenteeism after the Su- preme Court of Canada threw out what had been the largest punitive damages award in a wrongful dismissal case in Canadian history. "Reasonable accommodation is not a one-way street, it is a multi-party pro- cess involving the employer, the em- ployee, his or her union, and physicians," says Michael Fitzgibbon, who practises management-side labour relations and employment law at Borden Ladner Ger- vais LLP in Toronto, in reflecting on the Honda Canada Inc. v. Keays decision. "Where the employer adopts a proactive approach to returning an absent em- ployee to work or dealing with absentee- ism, this will not, in an of itself, demon- strate that it is acting in a 'hardball' or offensive way." The court, in its June 27 decision, erased a $100,000 punitive damages award and nine-month reasonable notice extension for bad faith that Honda Can- ada employee Kevin Keays received after being fired in the midst of a battle over chronic fatigue syndrome. The Ontario Court of Appeal had already reduced the amount from the initial trial judge's award of $500,000. Justice Michel Basta- rache, writing for the 7-2 majority, dis- agreed with the appeal court's finding in terms of Honda's treatment of Keays. "A proper reading of the record shows that 60 A UGUST 2008 www. Law ye rmag.com Honda's conduct in dismissing Keays was in no way an egregious display of bad faith justifying an award of damages for conduct in dismissal," he wrote. Keays was an employee at the Honda plant in Alliston, Ont. for 11 years. In 1997, after working on an assembly line before moving into a data entry posi- tion, Keays was diagnosed with chronic fatigue syndrome and placed in the com- pany's disability program that allowed him to miss work on the condition he provide a doctor's note confirming his absences were related to his disability. Honda alleged, however, that as Keays' absences became more frequent, his doctor's notes grew cryptic, causing the company to suspect the notes were not an independent assessment of his fit- ness to work. When he refused in 2000 to meet with a doctor selected by Honda, the company fired him. At trial, Ontario Superior Court Jus- tice John McIsaac awarded Keays a re- cord-setting $500,000 in punitive dam- ages, and 24 months' salary, for wrongful