Cruden involved an employee of the Canadian
International Development Agency ("CIDA"). The
employee was posted to two temporary assignments in
Afghanistan. The employee, an insulin dependent type 1
diabetic, suffered a hypoglycemic incident during the second
posting in 2008. As a result of the incident, the employee
was sent home against her wishes. Following the incident,
CIDA instituted a policy requiring that individuals posted
temporarily to Afghanistan undergo a medical assessment before
beginning their assignments. Because of this policy and her
type 1 diabetes, the employee was unable to obtain another posting
The employee filed a human rights complaint under the
Canadian Human Rights Act (CHRA). The
Canadian Human Rights Tribunal concluded that, though the health
policy employed by CIDA was discriminatory and CIDA had not met its
procedural duty to attempt to accommodate the employee, any
possible accommodation of this employment would have resulted in
undue hardship for CIDA, which reduced the remedies available to
the plaintiff. On Judicial Review, the Federal Court
concluded that once the tribunal had concluded that there was undue
hardship the case should have been dismissed, and then dismissed
the employee's complaint.
The Federal Court of Appeal (FCA) agreed with the Federal Court
using both the correctness and reasonableness standards of
review. The FCA held that there is only one reasonable
interpretation of the relevant provisions of the CHRA
– that if accommodating the employee would result in undue
hardship then the employee's complaint should be
dismissed. The FCA suggested that any actions taken
by an employer in attempting to accommodate an employer may be
helpful to establish undue hardship, but that they are not a
necessary requirement where accommodation will not be reasonably
possible. In other words, there should not be any
"stand-alone" procedural duty if no substantive duty is
found in the circumstances.
The Federal Court of Appeal's decision suggests that where
an employee requires accommodation and the employer knows that they
are not able to accommodate the employee without undue hardship,
the employer is not required to demonstrate it has met its
procedural duty to accommodate. The Ontario Human Rights
Tribunal has already taken steps to limit Cruden's
application. The Ontario Human Rights Tribunal, which has
found that procedural duties may exist independent of substantive
duties, noted in Lee v Kawartha Pine Ridge District School
Board that Cruden is a Federal case
interpreting the CHRA and cannot be applied to the Ontario
Human Rights Code. The tribunal in Lee
concluded that there is, in fact, a procedural duty to accommodate
in Ontario independent of the substantive duty. As such,
Ontario employers must be cautious to fulfill its procedural duties
to consider and document possible accommodations and attempts
at accommodations, even where it may ultimately be determined that
no accommodation is possible without undue hardship.
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