Canada: Recent Developments And Limits On The Duty To Accommodate


By this point in time, it is presumed that most employers are familiar with the need to avoid discrimination and to reasonably accommodate disabled employees to the point of undue hardship. When it comes to actually applying the duty to accommodate, however, it can be difficult to gauge what is required in order to satisfy the stringent standards applied by labour arbitrators, human rights panels and courts.

While there are many protected grounds of discrimination, this paper will provide a brief analysis of the basic principles underlying the duty to accommodate employees with disabilities, followed by a survey of recent cases of interest on the duty to accommodate more generally.


The starting point for human rights law in Ontario is the Human Rights Code. The Human Rights Code prohibits discrimination in employment based on a number of grounds. In particular, s. 5 of the Code provides as follows:


5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

The term "employment" is not defined in the Human Rights Code. However, Canadian courts have given human rights legislation a broad, liberal and purposive interpretation. In general, an employment relationship exists when an individual earns their livelihood from the relationship. It has also been held that a person is an employer where the person controls, at least to some extent, the ability of a person to earn a livelihood.

Constructive discrimination is prohibited unless the requirement, qualification or factor in question is reasonable and bona fide in the circumstances. For a requirement, qualification or factor to be reasonable and bona fide it must be established that the person cannot be accommodated without undue hardship.

The relevant section reads:

Constructive discrimination

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

  1. the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
  2. it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.


(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardshipon the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any
[emphasis added]

The Code also provides for an exception where the person is incapable of performing his or her essential duties because of a disability. The section is only available where the person cannot be accommodated without undue hardship. The relevant section reads:


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 hardshipon the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
[emphasis added]


Discrimination in employment is prohibited on several grounds under the Canadian Human Rights Act:

Prohibited grounds of discrimination

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.


7. It is a discriminatory practice, directly or indirectly,

  1. to refuse to employ or continue to employ any individual, or
  2. in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

There are several exceptions in section 15 of the Act which permit discrimination on prohibited grounds. The most relevant exception is for bona fide occupational requirements ("BFOR"). This exception is only available where the person cannot be accommodated without undue hardship.


15. (1) It is not a discriminatory practice if

  1. any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;


Accommodation of needs

15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement ... it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
[emphasis added]


Once a "prima facie" case of discrimination has been made out, the onus shifts to the employer to establish that the work rule or standard that has led to the discrimination is a BFOR.

A. Bona Fide Occupational Requirement

The three step test for establishing a BFOR was set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, ("Meiorin").1 To meet the test, the employer must satisfy the following three subtests:

  1. the employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. the employer adopted the standard in an honest and good faith belief that it was necessary to fulfilment of that legitimate work-related purpose; and
  3. the standard is reasonably necessary to the accomplishment of that legitimate workrelated purpose – to show that the standard is reasonably necessary, the employer must prove that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Importantly, there is both a procedural and a substantive element to the third part of the Meiorin test. In Meiorin, Chief Justice McLachlin suggested that at this stage of the test, it may be useful to consider separately, first, the procedure, if any, that was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer's reasons for not offering any such standard.2 Where an employer fails to properly consider whether an employee can be accommodated, it will be challenging for that employer to satisfy the Meiorin test.

B. Undue Hardship

The third element of the Meiorin test is also the most difficult to meet. It requires the employer to demonstrate that it cannot accommodate the employee without experiencing undue hardship. The use of the term "undue" implies that more than mere negligible effort is required to satisfy the duty to accommodate. Some hardship is acceptable; it is only undue hardship that satisfies the test.3

Factors to be considered in assessing undue hardship include financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of the workforce and facilities, size of the employer's operations and safety.4 Subsequent courts have adopted the above factors, with minor variations. In Meiorin, for example, Chief Justice McLachlin noted that courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated and parties should be "innovative yet practical" in considering how this can be achieved. She went on to identify the following questions that may be asked in the course of this analysis:

  1. Has the employer investigated alternative approaches that do not have a discriminatory effect such as individual testing against a more individually sensitive standard?
  2. If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?
  3. Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
  4. Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?
  5. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
  6. Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?5

In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights, Chief Justice McLachlin further elaborated on the third aspect of the test, stating:

...In order to prove that its standard is 'reasonably necessary', the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost.6

Based on the foregoing, it becomes clear that the undue hardship standard is onerous, particularly in light of Chief Justice McLachlin's use of the word "impossibility". In a recent decision, however, the Supreme Court of Canada has clarified the impossibility standard.

In Hydro-Quebec v. Syndicat des employe-e-s des techniques professionelles,7 a unionized employee exhibited several physical and mental problems which resulted in absences of 960 days over the course of seven-and-a-half years of work. The employer had endeavoured to adapt the employee's working situation so as to accommodate her and allow her to continue her employment. After the employee's doctor made the recommendation that she cease work for an indefinite period and the employer's own psychiatric assessment indicated that the employee would not be able to continue working without similar ongoing absences, the employer terminated her employment. The case proceeded to the Supreme Court of Canada, which took the opportunity to clarify the proper approach to be used in such circumstances.

The Supreme Court of Canada confirmed that the duty to accommodate does not vitiate the fundamental underpinnings of the employment relationship. Even where an employer has a duty to accommodate, the employee must still fulfill his or her obligation to provide work. The test is not whether it is impossible for the employer to accommodate the employee, nor is it total unfitness for work in the foreseeable future; rather, if the employer can show that the proper operation of the business is hampered excessively or that the employee will be unable to work for the reasonably foreseeable future, despite attempts to accommodate, then the test of undue hardship will be met.8

Following the Supreme Court of Canada's decision in Hydro-Quebec, there have been numerous cases that have considered the scope of the duty to accommodate to the point of undue hardship. The Ontario Arbitration Board determined that that a hereditary back injury sustained by a hospital porter did not require accommodation because the risk of injury to her and to patients coupled with the cost to her employer resulted in undue hardship.9 For an employee teleworking from home who could no longer be accommodated when her workload became confidential, the Canada Public Service Labour Relations Board held that the duty to accommodate does not extend so far as to require an employer to create a position "out of bits and pieces without taking operational requirements into consideration".10

A change in the employer's financial status will factor into undue hardship analysis. An employee that had been accommodated by being assigned light duties was terminated because an overall reduction in the amount of available work no longer justified having an employee solely perform light duties. The arbitrator concluded that the costs of continuing to accommodate the grievor were of a totally different magnitude than when the modified work was initially offered, such that the modified work had become undue hardship.11 Finally, it should also be noted that some jurisdictions have limited the factors that are relevant to undue hardship. For example, subs. 17(2) of the Human Rights Code states that only cost, outside sources of funding, if any, and health and safety requirements can be considered.12


Although it would seem that the majority of the duty to accommodate rests upon the employer's shoulders, the employee also has a duty to assist in the process.

In Central Okanagan School District No. 23 v. Renaud, the Supreme Court of Canada made it clear that individuals seeking accommodation must assist and actively participate in the accommodation process. The employee must bring to the employer's attention the facts relating to the discrimination and must facilitate the implementation of reasonable proposals for accommodation. While the employee is not charged with the primary responsibility of determining the best solution, the Supreme Court expressly stated:

...When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.13

More recently, the Ontario Human Rights Tribunal affirmed that an employee who is seeking accommodation has a reciprocal duty to cooperate with the employer in determining what kinds of modifications or accommodations might be necessary to permit the employee to participate in the workplace. In Baber v. York Region District School Board,14 a secondary school teacher was fired for her ongoing refusal to provide her employer with medical information to support her absence from work and/or to assist her employer to return her to work. The teacher had been diagnosed with anxiety disorder, depressive disorder and chronic lymphocytic leukemia. However, the most recent medical information provided to her employer indicated that she was capable of performing her full teaching duties. Nevertheless, she insisted that she was unable to return to work. She also sought a deferral of the employer's teacher performance appraisal, arguing she was incapable of doing so because of illness. The school board gave her three options:

  • apply for long term disability benefits with supporting medical documentation;
  • consent to a Registered Nurse employed by the school board contacting her doctor to clarify whether she was able to work as a teacher and submit to a teacher performance appraisal; or
  • undergo an independent medical examination to determine whether or not she was fit to work (including participation in the teacher performance appraisal), with or without accommodations.

Instead, the teacher provided the school board notes from her family doctor and treating psychiatrist that recommended that she be given a teacher-librarian position but did not identify her medical restrictions and limitations or identify the accommodations that she required. The school board – with the support of the teacher's union – repeatedly requested further medical documentation. Finally, the teacher was invited to suggest other options for providing medical information to substantiate her ongoing absence from work. The teacher insisted that she had already provided adequate medical information. The school board disagreed, placing her on an unpaid leave of absence and giving her a deadline to select an option for providing sufficient medical information, failing which her employment would be terminated. The teacher did not select an option and did not submit any further medical information, so the school board terminated her employment.

The Ontario Human Rights Tribunal relied on the Central Okanagan School District No. 23 v. Renaud case as authority for the proposition that, "An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee's needs may be accommodated without undue hardship." The Tribunal concluded that the teacher's mere assertion that she was medically unable to submit to a teacher performance appraisal was not evidence of that fact, such that the teacher had failed to establish any disability precluding her from submitting to such an appraisal and the school board's substantive accommodation duty therefore was not triggered. Similarly, the Tribunal rejected the mere assertion that the teacher required a teacher-librarian position:

It is not sufficient for a medical certificate to merely state that an employee would benefit from placement in a particular job. The medical practitioner's role in the accommodation process is not to identify the specific job in which an employee is to be accommodated but rather to identify the employee's disability-related needs and restrictions. It is then up to the employer, who has the ultimate responsibility for accommodation in the workplace to take that basic information and to determine whether and how the applicant's disability-related needs might be accommodated up to the point of undue hardship.

The Tribunal rejected the teacher's claim that the school board breached its duty to accommodate her when it terminated her employment rather than placing her in the teacher-librarian position or even just continuing to tolerate her absence from work:

The duty to accommodate does not give employees permission to refuse to provide their employers with information about their ability to work with or without restrictions where there is a legitimate question about that, as was the case here. Nor does the duty to accommodate require an employer to tolerate an employee's ongoing unsubstantiated absence from work. ... The applicant in this case knew that her employer required additional medical documentation either substantiating her ongoing absence from work or facilitating her return to work with or without accommodation, failing which her employment would be terminated. She consistently refused to provide the necessary medical information. The respondent did not breach its duty to accommodate the applicant when it terminated her employment for her refusal in that regard.

The employee's duty to assist in the accommodation process may also include obligations to mitigate or to undergo reasonable treatment. For example, in Re Treasury Board (Agriculture Canada) and Berard, which involved the accommodation of an employee suffering from multiple sclerosis, the Public Service Staff Relations Board held that "an employee with a disability must, in so far as possible, act so as to mitigate the changes and accommodations that his or her disability might require of the employer".15

In another case, the arbitrator found that the employer had failed to accommodate a diabetic employee, but declined to award compensation because the arbitrator was not satisfied that the grievor took the necessary precautions to control his health problem, nor did the grievor cooperate sufficiently in providing information.16

Similar principles have been applied in cases involving substance abuse. In Re Ottawa Civic Hospital and O.N.A, an employee was dismissed after excessive absenteeism due to substance abuse and her grievance was dismissed. The arbitrator specifically noted that the employee's disability was not totally beyond her control and her failure to seek treatment at an earlier date was a factor to be considered:

In the context of a disability the extent of which can be mitigated by proper care, the duty of a complainant to do her part includes taking reasonable steps to obtain treatment. While recognizing denial is a barrier to recovery from addiction, we believe the grievor bears some responsibility for not seeking help in response to her supervisor's repeated counselling.17

To read this Report in full, please click here.


1 [1999] 3 S.C.R 3.

2 Ibid at para. 66.

3 Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 970.

4 Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.

5 Meiorin, supra at paras. 64-65.

6 [1999] 3 S.C.R. 868 at para. 32.

7 Hydro-Quebec v. Syndicat des employe-e-s des techniques professionelles, 2008 SCC 43 ("Hydro-Quebec")

8 Ibid at paras. 15-19.

9 C.U.P.E., Local 1487 v. Scarborough Hospital [2009] O.L.A.A. No. 650 (Ontario, Etherington).

10 LL v. Treasury Board (Statistics Canada) [2009] C.P.S.L.R.B. No. 113 (Canada, Nadeau).

11 Retail Wholesale Union, Local 517 v. Maersk Distribution Canada Inc. [2010] A.G.A.A. No. 4 (Alberta, Sims).

12 R.S.O. 1990, c. H-19.

13 Central Okanagan School District v. Renaud, supra at para. 44.

14 2011 HRTO 213 (CanLII), request for reconsideration denied 2011 HRTO 1094 (CanLII).

15 (1993), 35 L.A.C. (4th) 172 (P.S.S.R.B.).

16 Re Thunder Bay (City) and S.E.I.U., Local 268 (1992), 27 L.A.C. (4th) 192 (Ontario, Joyce).

17 (1995) 48 L.A.C. (4th) 388 (Ontario, Brown) at para. 58. See also Re Alcan Rolled Products Co. and U.S.W.A., Local 343 (1996), 56 L.A.C. (4th) 187 (Ontario, Grey).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.