Canada: The Duty To Accommodate: When Is The Point Of Undue Hardship Reached?

Last Updated: July 31 2015
Article by Alison Bird

Under human rights legislation, employers have a duty to accommodate an employee's needs related to a prohibited ground of discrimination to the point of undue hardship. It can often be difficult for employers and their legal counsel to assess when the point of undue hardship is reached.

The authorities establish that the undue hardship standard necessitates that the employer will suffer some hardship in its accommodation efforts, and that undue hardship occurs if an accommodation would create onerous conditions, such as intolerable financial costs or serious disruption to its operations. In practice, it can be difficult to apply these principles with certainty. The assessment of whether undue hardship is reached is very contextual, which results in a degree of uncertainty as to how it will be applied in a particular matter. The same accommodation may constitute undue hardship for one employer, but not for another employer in different circumstances.  

A recent case from a Nova Scotia Human Rights Board of Inquiry sheds some insight on when the point of undue hardship is reached. In LeFrense v IBM Canada Ltd, 2015 CanLII 1720, Mr. LeFrense alleged that his employer, IBM, breached its duty to accommodate his physical disability (sleep apnea) by failing to adjust his shifts. Mr. LeFrense worked as an IT maintenance specialist, and he was required to be on-call one weekend every eight weeks and one night every two weeks. Mr. LeFrense requested that IBM accommodate his sleep apnea by relieving him of the on-call requirements of his position. IBM rejected this request, but proposed that Mr. LeFrense would only be required to work a maximum of 8 hours per day on two Saturdays per month. Mr LeFrense made a counter-proposal that he only be required to work one Saturday per month. IBM ultimately took the position that it could not adapt his work schedule as an IT maintenance specialist without suffering undue hardship, and offered him a different position at a reduced salary.  Mr. LeFrense accepted this position, but later filed a Human Rights complaint.

The Board of Inquiry noted that IBM's business was to serve the immediate and pressing technological needs of its customers, and that those employed in the business had to live that reality. It concluded that Mr. LeFrense's job was not in its nature a "nine to five" position, and that IBM's customers' required IT maintenance specialists to be available on evenings and weekends.

Mr. LeFrense was part of an eight or nine person team, and they rotated their on-call requirements. If a person was unable to work an on-call shift, then someone else on the team had to take it on. Accordingly, the Board concluded that if Mr. LeFrense was relieved of the requirement of working the on-call shifts, this would significantly disrupt the other members of Mr. LeFrense's team.

The Board further concluded that IBM's requirement of on-call weekend and overnight work was a bona fide occupational requirement within the Nova Scotia Human Rights Act.

In considering whether IBM met the duty to accommodate, the Board indicated that some deference is owed to an employer's good faith efforts to accommodate an employee:

At some point, it seems to me, we have to defer to an employer's good faith efforts to accommodate an employee and manage the work place.  We do not, I think, want to put ourselves in a position where we are second guessing management's reasonable and good faith decisions on accommodation, nor do we want to put ourselves in a position where we are fiddling with a return to work plan, saying that one is acceptable, but another with a minor variation is not. 

The Board was also critical of Mr. LeFrense's refusal to try to the modified work schedule proposed by IBM. It suggested that he ought to have tried the proposed accommodation and if it was not workable, then it could have been addressed at that time. It was also critical of Mr. LeFrense's failure to propose alternate accommodations to IBM. It stated that "[o]ne is left with the impression that he felt entitled to tell IBM he could not work and then expected IBM to adapt itself and the rest of the team to suit his requirements even if this meant burdening his colleagues with his on-call shifts or adding personnel while holding his position open for him."

Based on all of the foregoing, the Board of Inquiry was satisfied that IBM met its duty to accommodate Mr. LeFrense. It concluded that Mr. LeFrense's proposed accommodations to his work schedule would have imposed "too great a burden on the rest of the team and on IBM's needs to manage its work force to service its clients' urgent and pressing needs." Therefore, the Board dismissed the complaint.

While IBM was successfully able to establish that it met the point of undue hardship in this matter, it is important to recall that it engaged in significant accommodation efforts before it met this threshold. It paid Mr. LeFrense disability benefits while he was off work for two years, actively engaged in accommodation discussions with Mr. LeFrense and his physician, and ultimately found him a different position within the company. The employer's accommodation efforts, the effect of Mr. LeFrense's proposed accommodation on other employees, and Mr. LeFrense's refusal to try IBM's proposed accommodation were important factors in the Board's conclusion. This case serves as a reminder to employers that it is possible to reach the point of undue hardship, but they will typically be required to engage in significant accommodation efforts before taking the position that they have met the duty to accommodate.

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.

Similar Articles
Relevancy Powered by MondaqAI
Integritas Workplace Law Corporation
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Integritas Workplace Law Corporation
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions