Canada: Undue Hardship: Supreme Court Of Canada Clarifies The Standard – Or Does It?

Last Updated: August 6 2008
Article by David Elenbaas

Absence makes the heart grow fonder.

While that proverb may ring true for anyone separated from a loved one, for a human resources manager struggling with a frequently absent and chronically ill employee, fondness is not necessarily the foremost feeling. Accommodating an employee's absences can be challenging at the best of times.

In an important decision for employers issued on July 17, 2008, the Supreme Court of Canada has attempted to clarify an employer's obligations with respect to the duty to accommodate a chronically absent employee to the point of undue hardship. A major question remains, however, as to what the decision means for provincially regulated employers in Ontario.

Factual Background

In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000, the Court dealt with the case of a unionized employee of Hydro-Québec whose employment was terminated in July, 2001 following extensive periods of absenteeism. The employee had suffered from a number of physical and mental ailments including tendinitis, bursitis and epicondylitis (tennis elbow), hypertension, hyperthyroidism, depression and mixed personality disorder. The latter resulted in deficient "coping" mechanisms which made her working relationships with her supervisors and peers difficult. Over the years, the employer had accommodated her conditions. She missed 960 days of work between January, 1994 and July, 2001.

The employee's last active day of employment was in February, 2001 at which time her attending physician had recommended that she stop working for an indefinite period "until the work-related dispute is resolved". After the employer had obtained a psychiatric assessment which concluded that she would no longer be able to "work on a regular and continuous basis without continuing to have an absenteeism problem as in the past", the employer informed the employee of her administrative dismissal. The employee, who was represented by her union, filed a grievance.

The arbitrator appointed under the collective agreement dismissed the grievance on the basis that the employer had proven that when it dismissed the grievor, she was unable to work steadily and regularly for the reasonably foreseeable future.

Further, the arbitrator found that the conditions for the complainant's return to work as suggested by the union's expert would constitute undue hardship. The Quebec Superior Court dismissed a motion for judicial review of the arbitrator's decision. However the Quebec Court of Appeal set aside the Superior Court's judgment and held that the employer had not proven that it was impossible to accommodate the grievor's characteristics. It also held that the arbitrator should not have taken the previous absences into account, since the duty to accommodate must be assessed as of the time of the decision to terminate.

Supreme Court's Decision

In upholding the employer's appeal the Supreme Court addressed two issues: first, what standard applies to prove undue hardship when a clear duty to accommodate exists and second, at what time is the duty to accommodate to be assessed?

In assessing the standard of undue hardship, the Court stated as follows:

"The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration.

... a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of a business is hampered excessively or if an employee with such an illness remains unable to work for a reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test."

As for the timing of the assessment of accommodation the Court applied its previous decision in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, released after the Court of Appeal's judgment in this case, and held that the decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. When the employee has been absent due to illness, the employer has accommodated the employee for several years and doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship.

What This Means for Employers in Ontario

While this decision clarifies the standard of undue hardship in Quebec, in Ontario the decision must be considered in context with previous decisions of the Supreme Court. In the Montreal General Hospital decision the Court stated:

"The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made."

In Hydro-Québec, when the Court discussed the approach to accommodation first set out in its decision British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin), it cited its own comments on undue hardship as follows:

"Among the relevant factors are the financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees...The various factors are not entrenched, except to the extent that they are expressly included or excluded by statute. In all cases, as Cory J. noted in Chambly [1994] 25 S.C.R. 525], at p. 546, such consideration should be applied with common sense and flexibility in the context of the factual situation presented in each case." (emphasis added)

It appears simple – right? Accommodation must be individualized and flexible. Undue hardship factors should be applied with common sense and undue hardship itself can be demonstrated if the proper operation of a business is hampered excessively or the employee remains unable to work for the foreseeable future notwithstanding accommodation.

However, provincially regulated employers in Ontario are governed by the provisions of the Ontario Human Rights Code (the "Code"). Section 17(2) of the Code addresses the duty to accommodate in the context of disability. It reads:

"No tribunal or court shall find a person incapable [of performing the essential duties of the job] 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 costs, outside sources of funding, if any, and health and safety requirements, if any." (emphasis added)

In Ontario the undue hardship factors are entrenched in the Code, as alluded to in Meiorin, and are much narrower. The Ontario Human Rights Commission takes the position that these are the only factors that can be taken into account. How has the Commission viewed cost as a factor in assessing undue hardship? Is the Commission's policy consistent with the Hydro-Québec decision? Will the Ontario Human Rights Tribunal, which now investigates and adjudicates all complaints, find reason to limit the application of the Hydro-Québec decision based on the language of the Code which addresses undue hardship?

Interestingly recent amendments to the Code may have a significant effect on this issue. Section 30 of the Code provides that the Commission may approve policies prepared and published by it to provide guidance in the application of Parts I and II, which set out the right to be free from discrimination and the interpretation and application of that right. Section 45.5 of the Code provides not only that the Tribunal may consider policies approved by the Commission, it mandates that the Tribunal "shall" consider a policy approved by the Commission under section 30 if a party to the proceeding or an intervener requests that it do so.

The Commission approved its Policy and Guidelines on Disability and the Duty to Accommodate in 2000. The Guidelines expressly provide that costs will amount to undue hardship if they are (1) quantifiable (2) shown to be related to the accommodation, and (3) so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability. If the Guidelines are applied literally by the Tribunal, the latter factor alone would seem to take the standard of undue hardship in Ontario well beyond the standard articulated by the Supreme Court in Hydro-Québec.

All this remains to be seen. What is clear is that the Supreme Court is attempting to put some reasonable boundaries around the duty to accommodate.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2008 McMillan LLP

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.

David Elenbaas
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.