Canada: Accommodation: The Interplay Between "Frustration" And "Undue Hardship"

Last Updated: February 19 2014
Article by Jennifer Taylor

The Ontario Human Rights Tribunal ("the Tribunal") has found that an employer who does not accommodate a disabled employee may still have a successful defence if the employee was incapable of doing the job even with accommodation. In Gahagan v Campbell Inc, 2014 HRTO 14, an employee suffered a back injury on the job and was unable to work for two and a half years. She was eventually terminated, and she filed two human rights complaints: one based on discrimination, and the other based on reprisal. She was unsuccessful on both complaints.

What happened?

The complainant worked in the respondent's restaurant in Lakefield, Ontario for seven years. The respondent operated nine fast food restaurants in the region. The restaurant where the complainant worked was a smaller 'satellite' outlet connected to a gas station, with only 20 people employees (compared to 75-100 at the employer's largest restaurant) – a fact that became important in the accommodation analysis.

The employee's injury occurred in May 2009 when she "twisted her back lifting a filter pan from underneath the vat for the French fries." She received workers' compensation benefits and, in September 2009, began an occupational rehabilitation program with a physiotherapist with the goal to return to work in six-eight weeks.

She did not return to work and was terminated:

There was a meeting in November 2009 between the Return to Work ("RTW") Specialist from the Workplace Safety and Insurance Board; the complainant's physiotherapist; and the co-owner of the respondent, to discuss whether the complainant could return to work. The complainant had a number of physical restrictions: she could not lift more than 10 pounds; twist or bend; stand for longer than 10 minutes; or sit for longer than 5 minutes. She would only be able to work three days a week for three hours a day, with a rest day in between.

The respondent advised that it was unable to accommodate the complainant, and even refused to let the RTW Specialist behind the counter to see the actual work site "because of liability concerns." The respondent had three reasons why it could not accommodate:

  • "It was a small restaurant with approximately 20 staff and there was no capacity to provide shadow coverage to assist the applicant;
  • The restaurant was a fast-paced environment which did not provide the opportunity to rest or sit and take breaks;
  • The employer was concerned about the applicant having a recurrence or new injury."

The complainant was approved for a CPP disability pension in October 2010, and made a successful application for LTD benefits from her insurer in September 2011. In early October of 2011, the complainant was terminated based on the respondent's assessment that she would not "be able to return to work, with or without accommodation" so the employment contract was frustrated. The complainant had not returned to work since her injury, at the respondent's or elsewhere.

What were the human rights complaints?

The complainant made two human rights applications that were later consolidated. She filed the first one in September 2011, before she was terminated. In this application she alleged discrimination based on the respondent's failure to fully cooperate with the return to work process in November 2009, mainly by not letting the RTW Specialist behind the counter to inspect the work location.

After the complainant was terminated, she complained of reprisal—prohibited under section 8 of the Ontario Human Rights Code—based not only on the termination itself, but also on the respondent's delay in submitting its statement for her LTD application.

What did the Tribunal find?

According to the Tribunal, the respondent failed to accommodate the complainant:

[23] There is no evidence before the Tribunal that the respondent engaged any process whatsoever to determine whether it could have accommodated the applicant in 2009. On this basis alone, the applicant has established that the respondent failed to accommodate her disability-related needs. The respondent's defence is the applicant was incapable of doing her job, with accommodation.

The Tribunal turned to section 17 of the Ontario Human Rights Code, which sets out a statutory duty to accommodate a person with a disability to the point of undue hardship, but also provides a defence of incapacity:

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.

The respondent met its onus to prove that the complainant was incapable of performing the job – even with the accommodation of working three hours a day for three days per week. The Tribunal found that none of the complainant's suggested accommodations were workable:

  • Letting her sit down – Putting a chair in the grill area was a health and safety concern and also a fire hazard, as the grill and vats were in the same small area and other employees could trip over the chair and injure/burn themselves.
  • Changing her role – Letting the complainant work as a "runner" to collect the food for drive-thru orders was not feasible at this McDonald's, which was too small to require a separate runner position.
  • Hiring someone else to help – Having an extra staff person as a 'shadow' at the grill station was not feasible either, given the small number of employees at the store. On this point, the Tribunal stated: "The duty to accommodate does not require an employer to provide 'make work' or to create a job that is not productive or that, in the employer's view, does not need to be done."

The Tribunal concluded:

[29] On the basis of all of the evidence before me, I find the applicant was incapable of performing the essential duties of her job with accommodation in November 2009 because of the nature of her physical restrictions at that time. The respondent could have accommodated the applicant by providing three-hour shifts every other day, but even with this accommodation, the applicant was unable to perform the essential duties of her job. The respondent was not required to hire a shadow for the applicant and putting a chair in the grill station was not feasible. As such, the respondent has established the applicant was incapable of working in November 2009 with accommodation. This complaint is dismissed.

(emphasis added)

The Tribunal found that the respondent terminated the complainant based on frustration of contract, not because she made a human rights application. There was no evidence of a retaliatory intent.

General comments on the interplay between the doctrine of frustration and accommodation:

Determining when accommodation reaches the point of undue hardship is always a fact-specific and case-by-case exercise, and this decision provides an example of how the analysis might play out in practice.

Section 17 of the Ontario Human Rights Code governs when an employee will be found incapable of performing his or her job and lists several factors for a court or tribunal to consider in the accommodation analysis: cost; outside sources of funding; and health and safety requirements. These statutory factors echo some of the more well-known common-law factors established by the Supreme Court of Canada inBritish Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3:

  • cost
  • interchangeability of the workforce
  • substantial interference with the rights of other employees

While human rights legislation in Atlantic Canada does not list factors for assessing undue hardship, as Ontario's does, each Human Rights Act contains a general provision on when discrimination will not be found in an employment situation:

  • Newfoundland and Labrador: s. 14(2) says the prohibition on discrimination does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.
  • New Brunswick: s. 4(8)(a) says that it is not discrimination where there has been the termination of employment or a refusal to employ because of a bona fide qualification based on the nature of the work or the circumstance of the place of work in relation to the physical disability or mental disability, as determined by the Commission.
  • Nova Scotia: s. 6(e) says it is not discrimination where the nature and extent of the physical disability or mental disability reasonably precludes performance of a particular employment or activity.
  • Prince Edward Island: s. 6(4)(b) says it is not discrimination in employment where disability is a reasonable disqualification.

In Gahagan, the complainant's three suggested accommodations (letting her sit down; changing her role; hiring someone else) were deemed unworkable, and the Tribunal agreed that her permanent inability to work meant that the employment contract was frustrated.

The test for undue hardship often intersects with the law on frustration of the employment contract, as it did in this case. The Supreme Court in Hydro-Québec acknowledged this intersection of contract law with human rights obligations, and stated:

"The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future."

What does this mean for employers?

The respondent in Gahagan did not actually do anything to accommodate the complainant. Nevertheless, the Tribunal was satisfied that the complainant's suggestions were not workable for her role at that particular restaurant's location, so she was incapable of fulfilling her job requirements even with accommodation. Employers should, of course, always take a proactive approach to accommodation of employees with disabilities to the point of undue hardship, and Gahagan helps in determining when that point will be reached.

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.