How an exaggerated disability claim is found out: D'Arienzo v. Toronto Transit Commission (2025 HRTO 1632)

How an exaggerated disability claim is found out: D'Arienzo v. Toronto Transit Commission (2025 HRTO 1632)

When can employers validly use surveillance in respect of employee disability claims?

Overview

An assistant foreperson at the Toronto Transit Commission (TTC) claimed discrimination based on disability after being terminated while on sick leave for back pain. The Human Rights Tribunal of Ontario dismissed his application, finding no discrimination occurred.

Key Facts

• The employee went on sick leave in May 2018 claiming total disability from lower back pain.

• The employer repeatedly offered modified/accommodated work within the employee’s medical restrictions.

• Surveillance footage showed the employee engaging in activities inconsistent with claimed limitations.

Surveillance Sidebar (when and how can an employer use surveillance?)

In this case, the employer (TTC) conducted two rounds of surveillance regarding the employee’s physical ability/disability:  Round 1, August 31 - September 13, 2018, was commenced after the employee refused medically-sanctioned modified work; and Round 2, September 29 - October 6, 2018, was initiated after the employee claimed a relapse of his back pain that required hospitalization but in respect of which provided conflicting medical evidence.

Key Factors Justifying Surveillance

The Tribunal accepted the surveillance evidence because TTC demonstrated:

1.       Reasonable Suspicion

TTC had good reason to suspect that the employee’s claim of disability was false, given that:

a.       There was a pattern of suspicious absences (this absence had similar timing to a previous year's "suspicious" absence);

b.       There was conflicting medical evidence (for example, the employee's claims differed from functional assessment results);

c.       The employee refused to accept an offer of accommodated work despite medical clearance;

d.       Inconsistent statements were provided to the employer about the employee’s capabilities.

2.       Progressive Approach

Before engaging in surveillance, TTC used less intrusive measures - medical questionnaires and functional assessments. It only moved to surveillance when factual inconsistencies concerning the employee’s disability persisted.

3. Legitimate Business Purpose

  The arbitrator found that TTC had a legitimate business purpose for using surveillance, which included:  investigating potential abuse of sick benefits; verifying whether the employee could perform modified duties; and protecting the integrity of the employer’s disability management system.

Using surveillance video and expert medical evidence based on the video, TTC concluded that the employee had fraudulently claimed sick pay on the basis of an invalid assertion of total disability. The employee was terminated in November 2018 for just cause.

The Arbitration Decision

The arbitration panel found that:

• While the employee may have had some back pain, he was not totally disabled.

• Video surveillance contradicted the employee’s assertions of being unable to perform any work.

• The employer made genuine efforts to accommodate and offer modified duties.

• The employee had been dismissed for dishonesty, not discrimination based on disability.

Important Lessons

For Employers

1. Document accommodation efforts thoroughly: TTC's detailed records of offered accommodations were crucial to its defence.

2. Seek objective medical information: Requesting functional assessments and detailed medical documentation helped clarify actual restrictions.

3. Consider surveillance carefully:  When medical evidence conflicts with employee claims, surveillance may be appropriate but should be used judiciously (based on reasonable suspicion, following a progressive approach, and founded on legitimate business purposes).

4. Provide opportunities to explain: TTC gave the employee a chance to review surveillance and explain before terminating.

For Employees

1. Cooperate with accommodation process: Employees have a duty to participate in return-to-work planning.

2. Be honest about disability and limitations - Exaggerating disabilities can lead to termination for cause, even if some impairment exists.

3. Accept suitable modified work - Refusing accommodated work within your restrictions while claiming benefits can be seen as fraudulent.

4. Provide consistent medical documentation - Contradictory medical information undermines credibility.

5. Understand "total disability" - Claiming total disability means unable to do any work, not just regular duties.

Key Takeaway

This case demonstrates that having a legitimate medical condition does not protect an employee who misrepresents their limitations to avoid returning to accommodated work. Both parties must engage honestly and cooperatively in the accommodation process.