Undue Hardship & Accommodation

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.

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).