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.

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.

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.

TST-52022-14 (Re), 2014 CanLII 71137 (ON LTB)

1. At the heart of this application lies the Tenant’s allegation that the Landlord failed to respond reasonably to her complaints about the residential complex and the tenants she shared it with. She relies on the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2. The Tenant lives with a significant mental health disability; she self-identifies as having bipolar disorder. The Landlord is a social housing provider that aims to house vulnerable and hard to house tenants and provide some supports to its tenants.

3. The Tenant feels the Landlord abandoned her to the not so tender mercies of her housemates and left her struggling to cope on her own in dirty and poorly maintained housing. She seeks to hold the Landlord accountable for what happened to her.

4. The Landlord takes the position it acted reasonably in all the circumstances. It says the Tenant refused to co-operate with the Landlord’s attempts to mediate the conflicts that arose between the Tenant and her housemates; it addressed in a timely manner all of the Tenant’s complaints of disrepair; and if the residential complex was dirty, that was the responsibility of the Tenant and her housemates and not the Landlord.

The Accommodation Request

7. Prior to the start of the hearing the Tenant requested accommodation from the Board under the Code. She essentially stated that the nature of her disability was such that she could not participate fully and meaningfully in a hearing without some supports. She asked that a friend be permitted to accompany her, arrange presentation of documents and evidence on her behalf, and represent her. This request was granted at the commencement of the hearing.

8. The Landlord quite rightly objected when the Tenant’s friend veered into giving oral testimony on the Tenant’s behalf concerning events she has no personal knowledge of. In order to deal with this issue without slowing the hearing down or interfering with the Tenant’s ability to present her case with her friend’s assistance, I indicated to the parties that any such statements would not be considered as evidence for consideration properly before the Board and omitted them from my hearing notes.

96. On September 17, 2013 the Landlord wrote a letter to the Tenant asking her to attend a meeting with SA and the Housing Support Coordinator. In response to this short letter the Tenant wrote back the next day. Her letter of September 18, 2013 says in part:

I won’t be there on Friday because I am NOT ON DISABILITY, I might be BI-Polar but I am NOT a Mentally Unstable person, I am a fully active person; I know how to take care of myself just fine and get along with society fine. I am a nice person and people like me (people need to educate themselves on the different levels of Bi-Polar disorder) and realize it has nothing to do [with] Psychotic behaviour or tendencies… I am NOT Dangerous OR Crazy!! I am so tired of the stigma that people always seem to relate to ALL Emotional or mental disorders, they are not the same. In short writing letters is a better way for me to communicate my thoughts, because they come out clear this way and I write in a slower manner to properly express myself; when stressed emotionally it elevates my brain activity and I speak quicker because of the pressure, so I will use letters as a normal way of communicating with you because it is what works best for me! Thank-you for understanding.

[Emphasis added.]

97. This letter clearly states that the Tenant’s illness makes it difficult for her to communicate face to face in stressful situations; she explains in it that under pressure she tends to speak manically. I accept this is true because it was undisputed by the Landlord and it is consistent with the behaviour of the Tenant that I observed in the hearing room. It is also consistent with the Landlord’s case notes in which the Tenant is described as speaking too fast to be understood clearly.

98. That being said I note that a few lines after the paragraph quoted above the Tenant also says “I do not mind coming to the office to speak with you one on one…” thus creating some ambiguity about the Tenant’s needs and desires regarding accommodation of her disability. However, the Landlord’s case notes of September 18, 2013 indicate when the Tenant dropped off this letter in the Landlord’s office she said:

I cannot talk to you, I have no time, just read my letters, I don’t want to meet with you.

99. That statement is consistent with the paragraph quoted above from the Tenant’s letter of September 18, 2013. She did not want to meet with the Landlord. Her letter clearly connected that wish with the symptoms related to her disability and asked the Landlord to accommodate her by permitting the Tenant to use writing to explain herself.

100. The Landlord argues that the Tenant did not request accommodation of her disability. I disagree. In making the request of the Landlord set out above the Tenant was clearly doing exactly that.