Undue Hardship & Accommodation

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-10
CLNP Page ID:	122
Page Categories:	[Human Rights], [Human Rights (LTB)]
Citation:	Undue Hardship & Accommodation, CLNP 122, <https://rvt.link/6v>, retrieved on 2024-11-10
Editor:	Sharvey
Last Updated:	2024/09/09

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Human Rights Code, R.S.O. 1990, c. H.19

Disability
17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Residential Tenancies Act, 2006, S.O. 2006, c. 17

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

...

(f) make any other order that it considers appropriate. 2006, c. 17, s. 31 (1).

Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC)

Held: The appeal should be allowed.

An employer must take reasonable measures short of undue hardship to accommodate an employee's religious beliefs and practices. While the words "short of undue hardship" limit this duty, the use of the term "undue" infers that some hardship is acceptable. More than a mere negligible effort is required. The qualification that the measures be reasonable was an alternate way of expressing the same concept and is a question of fact varying with the circumstances of the case.

Private arrangements, by contract or collective agreement, must give way to the requirements of the Act. In cases of direct discrimination not justified under the Act, the whole of the provision is invalid because its purpose as well as effect is to discriminate on a prohibited ground. In cases of adverse effect discrimination, the provision is upheld in its general application and the complainant is accommodated so that it does not affect him or her in a discriminatory fashion. An employer must establish compliance with the duty to accommodate.

The effect of the collective agreement is relevant in assessing the degree of hardship caused by interference with its terms. Substantial departure from the normal operation of its conditions and terms of employment may constitute undue interference in the operation of the employer's business. The cost of defending a threatened grievance, however, did not constitute undue hardship justifying a refusal to accommodate the appellant.

Considerations as to the effect on employee morale, while a factor to be considered in deciding whether accommodating measures would constitute undue interference, must be applied with caution. Well‑grounded concerns that the employees' rights will be affected must be considered. Objections based on attitudes inconsistent with human rights, however, are irrelevant. This category includes those objections based on the view that the integrity of a collective agreement is to be preserved irrespective of its discriminatory effect on an individual employee on religious grounds. A contrary conclusion would enable an employer to contract out of human rights legislation provided the employees were ad idem with their employer. The employer failed to establish that it discharged its duty to accommodate.

A union causing or contributing to the discriminatory effect incurs liability under the Act. In order to avoid imposing absolute liability, a union must have the same right as an employer to justify the discrimination by discharging its duty to accommodate.

A union may become a party to discrimination in two ways. First, it may cause or contribute to the discrimination by participating in the formulation of the work rule that has the discriminatory effect on the complainant ‑‑ e.g., if the rule forms part of the collective agreement. Second, a union may be liable if it impedes the reasonable efforts of an employer to accommodate. If reasonable accommodation is only possible with the union's co‑operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination.

The focus of the union's concern about the impact of accommodating measures is mainly on its effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will amount to an undue hardship and will ordinarily justify the union's refusing to consent to a measure which would have this effect.

Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC)

[33] The ORHT is not the Commission or a board of inquiry under the Code, nor is it a court. Therefore, counsel submitted that this section did not apply.

[34] In our view, such an interpretation does not comply with the direction in Rizzo to read the words in their full context and to best achieve the purpose of the Act. The court is also bound to reject an interpretation that would lead to an absurd result. The purpose of the Code is to stamp out discriminatory behaviour, including such behaviour in rental accommodation. The limitation on the rights of a disabled person in s. 17 must be read narrowly, as befits the purpose of the Act, and the requirement for accommodation to the needs of the person is a keystone of the Code. The clear intent of the legislature, as shown in s. 47(2) of the Code and s. 2 of the TPA, is to require [page255] landlords to comply with the Code. Prior to the enactment of the TPA, landlord and tenant disputes in Ontario were dealt with by the courts, which would have had to comply with the limitation in s. 17(2). It seems absurd to suggest that the legislature intended to exclude the ORHT from this subsection when it did not expressly say so in the TPA, but rather, by s. 2, confirmed the primacy of the Code. Bearing these factors in mind, we find that the intention of the legislature was to require the ORHT to consider the Code in all of its decisions, just as the courts must. The legislature has simply overlooked the amendment to s. 17(2) which would clarify the situation created by the establishment of the ORHT to assume the former jurisdiction of this court.

[35] For these reasons, we are of the view that the ORHT is bound by the legislation to comply with s. 17 in full in its decision-making and in particular when exercising its discretion under s. 84 as to whether it would be unfair to the landlord not to evict a person suffering from a disability. The ORHT must consider whether any disruption in the enjoyment of other tenants may be sufficiently alleviated by a reasonable accommodation of the disabled tenant without undue hardship to the landlord.

[36] Counsel for the tenant submitted that the noise and other disturbances were involuntary and as a consequence of her disease, and so could not fairly be the cause of her eviction. It may be that there is merit in the argument, but it is not possible to make it on the evidence before us. There would need to be medical evidence to support such a contention and there is none.

[37] In the present case, the tenant's behaviour is acceptable so long as she is on her medication and the accommodation proposed by the tenant's relatives is a reasonable one.

Creary v. Bajaj, 2017 HRTO 411 (CanLII)

[36] It is well-established that the accommodation process is a shared responsibility. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), (1992) 2 S.C.R. 970 at para. 43. In order to trigger the duty to accommodate, the tenant is not required to inform the landlord of all the details of her disability, but she should inform the landlord that she has disability-related needs, and endeavour to provide as much information as possible to facilitate the search for accommodation. See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 (CanLII) at para. 35.

[37] Once the duty to accommodate has been triggered, the landlord must meet its obligation. The duty to accommodate requires the landlord to show that it could not have accommodated the tenant’s disability-related needs short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. A respondent is not required to accommodate past the point of undue hardship, and sometimes, little or no accommodation may be possible. See McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 (CanLII) at para. 29. The landlord has to present cogent evidence to support its position that it cannot accommodate the tenant’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), (1999) 3 S.C.R. 3, at paras. 78-79.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3

81 The Court of Appeal suggested that accommodating women by permitting them to meet a lower aerobic standard than men would constitute “reverse discrimination”. I respectfully disagree. As this Court has repeatedly held, the essence of equality is to be treated according to one’s own merit, capabilities and circumstances. True equality requires that differences be accommodated: Andrews, supra, at pp. 167-69, per McIntyre J.; Law, supra, at para. 51, per Iacobucci J. A different aerobic standard capable of identifying women who could perform the job safely and efficiently therefore does not necessarily imply discrimination against men. “Reverse” discrimination would only result if, for example, an aerobic standard representing a minimum threshold for all forest firefighters was held to be inapplicable to men simply because they were men.

82 The Court of Appeal also suggested that the fact that Ms. Meiorin was tested individually immunized the Government from a finding of discrimination. However, individual testing, without more, does not negate discrimination. The individual must be tested against a realistic standard that reflects his or her capacities and potential contributions. Having failed to establish that the aerobic standard constitutes the minimum qualification required to perform the job safely and efficiently, the Government cannot rely on the mere fact of individual testing to rebut Ms. Meiorin’s prima facie case of discrimination.

J.O v. London District Catholic School Board, 2012 HRTO 732 (CanLII)

[49] The parties devoted most of their efforts in this case to the issue of accommodation. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213 (CanLII), the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination and the respondent defends its otherwise discriminatory actions. The Supreme Court of Canada noted in Meoirin and Grismer that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

[56] Having found that the Primary Address Policy is prima facie discriminatory, I must determine whether the policy is a bona fide requirement in the circumstances, pursuant to section 11(1)(a) of the Code. As the respondent noted, the Supreme Court of Canada set out the test for assessing whether a requirement is bona fide in Meoirin and Grismer, which the Tribunal has adopted. Accordingly, I find the respondents must show the following in order to establish the Primary Address Policy is a bona fide requirement:

(1) that the respondents adopted the policy for a purpose rationally connected to the delivery of school bus services;

(2) that the respondents adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that purpose; and

(3) that the standard is reasonably necessary to the accomplishment of this purpose. To show that the standard is reasonably necessary, the respondent must show that it could not accommodate the needs of the group of which the applicant is a member without undue hardship.

"In Meiorin, the Supreme Court of Canada also established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship."

[58] In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), (1992) 2 S.C.R. 970 the Supreme Court of Canada described the accommodation process as a multi-party inquiry. The party seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. In this respect, the Court noted that an accommodation seeker cannot expect a perfect solution, but accommodation that is reasonable in all the circumstances of the case. The party from whom accommodation is sought is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for originating proposals to provide reasonable accommodation to the point of undue hardship. The Court also noted that the term “undue hardship” infers that some hardship is acceptable and that an accommodation provider must show actual and substantial interference with its operations to establish undue hardship. Minor inconvenience or interference does not suffice. Under section 11(2) of the Code, undue hardship is assessed “considering the cost, outside sources of funding, if any, and health and safety requirements, if any”. Accordingly, a respondent may be required to incur some level of cost or additional safety risk without experiencing undue hardship.

Bain v. River Poker Tour, 2015 HRTO 734 (CanLII)

[22] The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), (1999) 3 S.C.R. 3, 176 D.L.R. (4th) 1 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), (1999) 3 S.C.R. 868 (“Grismer”). The Court found that the procedural component requires an individualized investigation of accommodation measures and assessment of the applicant’s needs.

[23] There was no dispute the applicant has a disability and that he has a right to equal treatment with respect to services. The question is whether he suffered discrimination, and whether the respondents accommodated his disability in a manner which complied with the Code.

[24] I find that the applicant suffered discrimination and that River Poker’s actions and inactions amount to a breach of its procedural and substantive duty to accommodate the applicant.

[31] River Poker must meet both the procedural and substantive obligations of the duty to accommodate. With respect to the procedural duty, it must show it has obtained all relevant information about the applicant’s disability and then seriously consider how it can accommodate the applicant. If it fails to give any or insufficient thought to what steps could be taken, then it fails to satisfy the procedural obligation. To satisfy the substantive obligation, River Poker has to show it could not have accommodated the applicant’s disability-related needs short of undue hardship.

Kittmer v. Shepherd Gourmet Dairy (Ontario) Inc., 2019 HRTO 1445 (CanLII)

[63] While the overall onus to make out a claim of discrimination under the Code is on the applicant, the evidentiary onus is on the respondent to make out a s. 17 defense. That is, the evidentiary onus is on the respondent to prove incapacity on the part of the applicant and to make out a claim of undue hardship under 17(2). Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII) at para. 112 and Pieters at paras. 66-69; ADGA Group Consultants Inc. v. Lane, (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 at para. 104 (“ADGA”).

[64] Factors that may amount to “undue hardship” will depend on the particular circumstances of each case. The use of the term “undue” infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, above, at para. 118, and the cases cited therein.

Koroll v. Automodular, 2011 HRTO 774 (CanLII)

[56] The Supreme Court of Canada explained this in Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d’Hydro-Quebec, (2008) SCC 43 (CanLII):

"… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration…

The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work (at para. 14-16)."

[57] The Ontario Court of Appeal reached a similar conclusion in Orillia Soldiers. At issue in that case was whether the duty to accommodate nurses off on disability leave required the employer to compensate them on the same basis as nurses actively employed. The court found that the duty to accommodate does not impose on employers “the burden of simply topping up the wages of the disabled employees,” a suggestion it found to be “inimical to the principles underlying the Code.” (at para. 54) The court confirmed that the goal of accommodation is to put the employee in a position where he can do the available work, not to compensate him according to a different standard than the one applicable to his peers (at paras. 55 to 56).

Austin v. London Transit Commission, 2013 HRTO 1936 (CanLII)

[50] As the Tribunal explained in Baber v. York Region District School Board, 2011 HRTO 213 (CanLII) at para. 88, the duty to accommodate is not a free-standing obligation under the Code. The Tribunal in Baber provided the following comments with respect to the duty to accommodate in cases alleging discrimination in employment, at paras. 91 to 93:

"As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), (1985) 2 S.C.R. 536 at para. 28.

In this case, if the duty to accommodate does arise, it must arise under s. 11 of the Code. It does not arise under s. 17 of the Code because the respondent does not assert that the applicant was incapable of performing the essential duties of her job and/or seek to avail itself of the defence in s. 17(1) of the Code.

In order to trigger the duty to accommodate under s. 11 of the Code, the applicant would have to show that a neutral “requirement, qualification or factor” – such as the requirement that she undergo a TPA or perform her regular teaching assignment – had an adverse effect on because of her disabilities. If the applicant thus made out a prima facie case of adverse effect discrimination, the onus would shift to the respondent to show that its requirement(s) were reasonable and bona fide, including, but not limited to, by showing that the applicant’s disability-related needs could not be accommodated without undue hardship (s. 11(1)(a) and s. 11(2)). (See also British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), (1999) 3 S.C.R. 3 (“Meiorin”), at para. 54)."

[65] The Supreme Court of Canada held that where an applicant establishes that a rule is prima facie discriminatory, the onus shifts to the respondent to prove on a balance of probabilities that the discriminatory rule has a reasonable and bona fide justification. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), (1999) 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), (1999) 3 S.C.R. 868 at para. 20 (“Grismer”). In Entrop v. Imperial Oil, (2000), 50 O.R. (3d) 18, 2000 CanLII 16800 at paras. 77-85, the Ontario Court of Appeal found that the Meiorin/Grismer approach also applies in Ontario.

[66] Under this approach, as noted in Grismer at paragraph 20 and Meiorin at paragraph 54, a respondent must show that:

(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;

(2) it adopted the standard in good faith, in the belief that it is necessary to the fulfilment of the purpose or goal; and

(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.

TEL-83147-17-RO (Re), 2018 CanLII 111864 (ON LTB)

17. Under the Code the Landlord has a duty to accommodate the Tenant’s disability related needs up to the point of undue hardship. But the duty to accommodate is not a one way street. A tenant has an obligation to disclose disability related needs and to reasonably co-operate with the development and implementation of a landlord’s reasonable accommodation plan.

18. Based on the evidence before me, I am satisfied that the Landlord has met its obligation to accommodate under the Code. The Landlord re-housed this Tenant and moved her from a townhouse into a smaller apartment in order to accommodate her disability. The Landlord then entered into a mediated agreement with the Tenant in an effort to obtain her co-operation to de-clutter the rental unit. The Landlord then assigned SM to actively engage with the Tenant to determine her needs and what services could be offered to her. SM then offered numerous services to the Tenant which were initially refused, and then ultimately cancelled by the Tenant.

TSL-74673-16 (Re), 2016 CanLII 71617 (ON LTB)

16. In Walmer Developments v. Ava Wolch, (2003) 2003 CanLII 42163 (ON SCDC), 67 O.R. (3d) 246, a case involving schizophrenia, the Divisional Court concluded that landlords are required to accommodate the needs of disabled tenants to the point of undue hardship. Accordingly, the Board, when exercising discretion under section 83 of the Act, must have regard to a landlord’s obligations under section 17 of the Ontario Human Rights Code.

17. In Walmer v. Wolch the tenant’s behaviour was acceptable so long as she was on her medication. In addition, the tenant requested reasonable accommodation from the Landlord, specifically, that the Landlord immediately inform the tenant’s relatives if the tenant’s conduct became disturbing. The court also stated that if the tenant’s behaviour did not improve promptly, the Landlord could proceed under what was then the Tenant Protection Act.