Accommodation

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.