This article first appeared in the autumn 1996 issue of the Expert Witness.
Impaired earning capacity remains a significant head of damages in the evaluation of a personal injury action. The discipline of Vocational Rehabilitation has a longstanding history of assisting the Courts in understanding a disabled plaintiff’s occupational options through matching their vocational attributes, abilities, and interests with the requirements of specific jobs. (G. Wallace and D. Nordin, “Assessment of Residual Employability Potential” in E.L. Gross (ed). Injury Evaluation: Medicolegal Practices. Butterworths, Toronto, 1991). Unfortunately, in many circumstances, while appropriate occupational options may be identifiable, the reality is that disabled individuals often face significant barriers in obtaining and maintaining employment in the competitive labour market. These realities can have significant impact for the personal injury claim and therefore are important considerations for counsel to be cognizant of.
The awareness of the difficulties which individuals with disabilities face in regards to their employment is certainly not a new concern. In 1985, the report of the Parliamentary Committee on Equality Rights to the House of Commons noted that:
Disabled people suffer from extraordinarily high unemployment rates. When they are employed, they tend to be concentrated in the low paying, marginal sectors of the labour market. They also have expenses that non- disabled workers do not face, such as medication, special aids and devices, and special transportation services (page 105).
In an attempt to address some of the inequities for this and other disadvantaged populations, in January of 1985, the Federal Government introduced Bill C62 which provided for the establishment of Employment Equity Programs in all corporations under federal jurisdiction, including crown corporations with 100 or more employees. In 1990, this legislation encompassed 370 employers accounting for 630,000 employees. This covered only 5 percent of the Canadian labour force while nearly two thirds of this represented group were employed in Ontario 40 percent) or Quebec (20 percent). Almost the entire work force under this legislation was employed in service producing industries rather than good producing industries such as manufacturing and construction. The three main industrial sectors – banking, transportation and communication – each accounted for roughly 30 percent of the workforce.
Under this Bill, a person was included under the “disabled” category if they had the following three criteria:
- Have a persistent physical, mental, psychiatric, sensory or learning impairment.
- Consider themselves to be or believe that an employer or potential employer would be likely to consider them to be disadvantaged in employment by reason of impairment.
- Identify themselves to an employer or agree to be identified by an employer as a person with disabilities.
In addition to the Employment Equity Act, the government also established a Federal Contractors Program designed to influence the behavior of firms with 100+ employees submitting tenders worth more than $200,000 to the government for goods and services provision. As well, the Affirmative Action Policy had been introduced by the Treasury Board in 1983 with an objective of enabling the equitable representation and distribution in the public service of Women, Aboriginal Peoples and Persons with Disability.
Unfortunately, even with their laudable intentions, these measures appear to have had very little impact in terms of increasing the employment of individuals with disabilities. In fact, in terms of “persons with disabilities”, a review of the Statistical Summary Employment Equity Act 1987-1990 (Employment and Immigration Canada, January 1992) indicates only modest gains over the reported four years. Specifically, the labour force representation of this group increased from 1.59 percent in 1987 to 2.39 percent in 1990. However, a further analysis of the “hiring” and “termination” data for this group indicates that there had been more of the latter and less of the former! In other words, more disabled persons had been terminated or left the workforce over this period than had been hired. It has been suggested that what the numerical increase actually represents is the increased identification of present employees who would fall under the definition of having a disability. For example, individuals who wear eyeglasses could be considered as having a disability under this criterion and several large employers appear to have made greater efforts at identifying these individuals within their labour force. Therefore, any percentage increase for this group came from greater self- identification among existing employees and not from increased recruitment of individuals with disabilities (Canadian Human Rights Commission Annual Report 1991, Minister of Supply and Services Canada, 1992).
More recent information indicates that the representation of persons with disabilities was 2.56 percent in 1993 and 2.63 percent in 1994. However, this latest increase was also due primarily to a higher rate of self- identification and changes in the composition of the group of employers reporting under the Act (Employment Equity Statistical Summary, 1987-1994, Human Resources Development Canada, 1995).
Comments made by witnesses before a Parliamentary Committee established in 1991 to review the Employment Equity Act published in the report, A Matter of Fairness (May 1992) are illustrative of the difficulties experienced by individuals with disabilities. For example, Mr. Gerry McDonald, Vice Chairman of the Coalition of Provincial Organizations of the Handicapped, offered (February 19, 1992):
Canadians with disabilities are dismayed because the promise to improvements to the socio-economic status of disabled persons have not materialized. Disabled Canadians continue to confront systemic discrimination in employment. This is despite numerous national, international and regional instruments that assert equality rights. In Canada it is clear that after five years of employment equity, virtually no progress has been made in the area of acquisition of permanent full- time employment in the federally regulated work force by people with disabilities.
Ms. Carol McGregor, a spokesperson for the Disabled People for Employment Equity was even more blunt, stating (February 24, 1992):
We have seen over the past five years an Act that has proved to be utterly useless.
Mr. Maxwell Yalden, Chief Commissioner of the Canadian Human Rights Commission, testified (February 5, 1992):
Because the real gains of persons with disability have been more than offset by those leaving the work force, there has been a net outflow…. It is worse than that, because in some areas – I think women are one and perhaps visible minorities another – even in hard economic times when there were a number of people being let go, those groups still continued to increase their hold in the work force, but the disabled went down. There was a net outflow.
One of the major problems that was identified with the initial Employment Equity Act Legislation was its lack of effective sanctions. The only monetary penalty built into the legislation was for companies who fail to report what their employment equity plans are. Unfortunately, the legislation did not provide for any monetary sanctions for companies who failed to implement these programs. Subsequently, in 1994 Bill C64, designed to amend the original Act, was introduced to Parliament. This new Bill contains three main elements to amend the original Employment Equity Act, namely: 1) The inclusion of the Federal Public Service under the Act; 2) The clarification and guidance regarding obligations of employers; and 3) The creation of a mechanism to gain compliance and employment equity.
The inclusion of the Federal Public Service under this Act will increase its coverage to approximately 900,000 employees or about 8 percent of the Canadian Labour Force. Provision was also made for an independent external agency, the Human Rights Commission, to be responsible for enforcement of employer obligations with a mandate for this organization to conduct employer audits to ensure obligations under this legislation are met. However, there has been little change in the area of sanctions with monetary ones still only being applicable to those employers who fail to report their employment equity plans. No financial sanctions are yet available for those employers who do not actually carry through on their plans. The Canadian Human Rights Commission is however, expected to negotiate written undertakings from employers to take specific measures to remedy any inequities in the employment of the designated groups. If the Human Rights Commission Officer fails to obtain a written undertaking from an employer, the Commission has the power to issue a directive to the employer to take the specified action. Tribunal rulings constitute a final step if an employer fails to act on a written undertaking or disagrees with a direction. However, no order can be made or direction given that would:
- Cause undo hardship on the employer;
- Require an employer to hire or promote un-qualified persons;
- With respect to the public sector, require that people be hired or promoted in a manner inconsistent with merit under the Public Service Employment Act;
- Require an employer to create new positions;
- Impose a quota on an employer.
So just how far do employers have to go to create more equality in the work force under this Act? The Act specifically notes:
Every employer shall ensure that its Employment Equity Plan would, if implemented, constitute reasonable progress toward implementing employment equity as required by this Act.
The major concern here is, or course, what constitutes “reasonable progress”. To date, the experience of persons with disabilities enjoying increased employment as a result of federal legislation since 1986 has certainly been “modest” at best. Whether or not the new changes to the Act will substantially increase the employment of persons with disabilities and/or move them from “poorly paid employment ghettos” (A Matter of Fairness, Report of the Special Committee on the Review of the Employment Equity Act, May 1992) remains to be seen. Therefore, until such evidence can be documented, the complete evaluation of impaired earning capacity claims for personal injury cases need to consider this present reality of the Canadian labour market. It requires plaintiff’s counsel not only to consider the identification of alternative occupational options for their clients but to also address the reality of disabled individuals obtaining and maintaining competitive employment. In many cases, this will require assessment of the clients circumstances by both the disciplines of Vocational Rehabilitation and Economics.