Canada: Recent Developments And Limits On The Duty To Accommodate

I. INTRODUCTION

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.

II. THE ONTARIO HUMAN RIGHTS CODE

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:

Employment

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.

Idem

(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:

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.

Accommodation

(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]

III. THE CANADIAN HUMAN RIGHTS ACT

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.

Employment

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.

Exceptions

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]

IV. THE EMPLOYER'S DUTY TO ACCOMMODATE

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

V. THE EMPLOYEE'S DUTY TO ASSIST IN THE ACCOMMODATION PROCESS

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

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Footnotes

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).

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