While the Code specifies that there are only three factors that will be considered when determining whether the test for undue hardship has been met (cost, outside sources of funding and health and safety issues), in some cases, courts and tribunals have recognized that even where these three factors are not at issue, there is not a limitless right to accommodation.[275] There may be other narrow circumstances where it may not be possible to accommodate a person’s disability.
However, an organization must not jump to the conclusion that accommodation is not possible or required. It must still meet its procedural duty to accommodate by examining issues on a case-by-case basis, and seeking out next-best solutions, such as phased-in or interim accommodation. The onus will be on an organization to show the steps they have taken and the concrete reasons why accommodation is not possible. Situations where the duty to accommodate might be limited may include:
- No accommodation is available that allows the person to fulfil the essential requirements of the job, tenancy, service, etc.
There may be limited circumstances where a measure identified as a potential accommodation, that would not otherwise constitute an undue hardship based on cost and health and safety, is still not required. This is because the measure would fundamentally alter the nature of the employment, housing, service, contract, etc., or because it would still not allow the person to “fulfill the essential duties attending the exercise of the right.”[276] This may be the case even after the organization has been inclusively designed, barriers to participation have been removed, and accommodation options examined. Or, after accommodation has been tried and exhausted, there may be no further accommodation available that will help the person to complete the essential requirements of the housing, services, employment, etc. In such instances, the organization may have fulfilled its duty to accommodate.
In extreme situations – for example, where disability-related absences have spanned several years or more – human rights case law has established limits on the duty to accommodate. In such situations, it has been held that “the duty to accommodate is neither absolute nor unlimited,”[277] and does not guarantee an indefinite leave of absence.[278]
In employment, 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. Human rights case law establishes that potential accommodations that would fundamentally alter the nature of the employment relationship need not be provided.
Example: In one case, an employee argued that the duty to accommodate requires an employer to refrain from collecting an overpayment of wages, in circumstances where attempts to collect have a negative impact on the employee by reason of his/her disability. The HRTO said that the duty to accommodate does not require this as it “flies in the face of the well-established principle that the duty to accommodate does not require pay for no work in exchange.”[279]
Example: In another case, the HRTO considered whether the employer’s decision not to continue allowing an injured worker to remain in a modified position on a part-time basis, instead placing her on an unpaid medical leave, was discriminatory. The respondent argued that its obligation to the applicant did not extend to permanently creating or bundling a set of tasks that did not result in a job that was useful to the respondent’s operations. Without finding undue hardship, HRTO agreed that this was not a necessary accommodation as the duty to accommodate does not require the employer to allow the employee to perform only some of the essential duties of the job. It stated that the duty to accommodate does not require an employer to permanently assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place.[280]
There may be cases where the characteristics of an illness – for example, very lengthy absences or a very poor prognosis – are such that the proper operation of the business is hampered excessively, or where an employee remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her. The employer’s duty to accommodate may end where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future, even with accommodation.[281]
Therefore, not every accommodation will be required even where providing it might not constitute an undue hardship in terms of cost and health and safety. While the cases above were decided in the context of employment, it is likely that the same legal principles would apply in the social areas of housing, services, etc. if the accommodation would fundamentally alter the nature of the housing or service.
- Where a person does not participate in the accommodation process
The duty to accommodate is a multi-party, collaborative process. All responsible parties are expected to work co-operatively to develop accommodation solutions.[282] In some cases, an organization may have fulfilled its procedural and substantive duty to accommodate, because the person requesting accommodation may not have taken part in the process. For example, a person may be considered to have not taken part if they refuse to comply with reasonable requests for information necessary to show and/or meet their accommodation needs, or where they refuse to take part in developing accommodation solutions. [283]
Before concluding that a person has not co-operated, accommodation providers should consider if there are any disability or Code-related factors that may prevent the person from taking part in the process. These factors may then need to be accommodated. The accommodation provider should also consider whether an accommodation plan needs to be adjusted because it is not working.
It may be challenging for organizations when they perceive that a person has a disability and needs an accommodation, but the person denies that he or she has a disability. In these cases, organizations should still attempt to start the accommodation process, and continue to offer accommodation, as appropriate. However, there will be a limit to the extent that an organization can accommodate someone’s disability in the absence of the person’s participation.
Example: A teacher begins to experience tremors, speech difficulties and balance issues. He contacts his school board and asks to be accommodated with a leave of absence. The school board asks him for medical documentation to support the request, but the man refuses. The school board explains that they require medical information that sets out the man’s disability-related needs so that they can accommodate him effectively. The man refuses to see a doctor and refuses to provide any medical documentation. Without the man’s participation and cooperation, the duty to accommodate may come to an end.
- Balancing the duty to accommodate with the rights of other people
Generally, when a person makes an accommodation request, the organization or institution responsible for accommodation will be able to provide the accommodation without it affecting the legal rights of other people.
Sometimes, however, a request for accommodation may turn out to be a “competing human rights” situation. This will be the case if, while dealing with an accommodation request, it turns out that the legal rights of another person or group might also be affected.
This complicates the normal approach to resolving a human rights dispute where only one side claims a human rights violation. In some cases, only one party is making a human rights claim, but the claim conflicts with the human rights of another party or parties.
Example: A medical service provider has a serious allergy to dogs and refuses to treat a woman who is blind and uses a guide dog. The woman is told to make another appointment with a different service provider. However, the second medical office is small and it will take at least a month to get another appointment.[284]
Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to situations involving competing rights. The OHRC’s Policy on competing human rights[285] sets out a framework for analyzing and addressing competing human rights situations. It also provides concrete steps on how organizations can proactively take steps to reduce the potential for human rights conflict and competing rights situations.
Claims that affect business operations alone are properly considered within the scope of the duty to accommodate (that is, whether an accommodation is appropriate or amounts to an undue hardship) and are not competing human rights claims.
Example: An employee claims she is being discriminated against when her employer denies her request for modified work hours to allow her to attend required medical appointments related to a disability. Her request does not appear to affect the legal rights of others. Therefore, this situation is not a competing rights claim, but rather is one involving a request for human rights accommodation. The employer might try to argue undue hardship based on financial impact for his business, which could limit his duty to accommodate.
Organizations must distinguish between claims that solely affect business operations and therefore fall within the duty to accommodate, from competing claims that affect the rights of other individuals and groups.
[275] See Hydro-Québec, supra note 120; McGill, supra note 129.
[276] Section 17 of the Code, supra note 7.
[277] McGill, supra note 129 at para. 38. See also Keays v. Honda Canada, [2008] 2 S.C.R. 362 in which the Supreme Court overturned a lower court award of punitive damages that was awarded in a wrongful dismissal case where the employer had required an employee with a disability to take part in an attendance management program. The Court found that the conduct of the employer was not punitive, and accepted that the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and responsibility of the employer to manage its workforce. While these statements made by the Supreme Court are significant, they must be considered in the context of the type of claim that was before the Court. The issue was whether the conduct of the employer was sufficiently “harsh, vindictive, reprehensible and malicious” to justify an award of punitive damages in the context of a wrongful dismissal lawsuit. The Court found that creating a disability management program such as the one at issue could not be equated with a malicious intent to discriminate. The employer’s conduct was not sufficiently outrageous or egregious for there to be an award of punitive damages.
[278] Gourley, supra note 122. See also, Ontario Public Service Employees Union (Bartolotta) v Ontario (Children and Youth Services), 2015 CanLII 19329 (ON GSB) and Toronto (City) v. Canadian Union of Public Employees, Local 416 (Toronto Civic Employees' Union) (Tucker Grievance), [2014] O.L.A.A. No. 75.
[279] Arends v. Children’s Hospital of Eastern Ontario, 2012 HRTO 1574 (CanLII) at para. 29.
[280] Briffa, supra note 155 at paras. 52-54 and 60. See also Communications, Energy and Paperworkers Union of Canada, Local 41-0 v. Nestle Purina Petcare, 2012 CanLII 65216 (ON LA).
[281] Hydro-Québec, supra note 120; McGill, supra note 129.
[282] Pazhaidam v. North York General Hospital, 2014 HRTO 984 (CanLII); Remtulla v. The Athletic Club (Trainyards) Inc., 2014 HRTO 940 (CanLII) [Remtulla] .
[283] Rodgers v. SCM Supply Chain Management, 2010 HRTO 653 (CanLII); Sugiono v. Centres for Early Learning – Seneca Hill, 2013 HRTO 1976 (CanLII) (reconsideration on evidentiary ground denied in Sugiono v. Centres for Early Learning – Seneca Hill, 2014 HRTO 72 (CanLII)); Tiano v. Toronto (City), 2014 HRTO 1187 (CanLII); Cohen v. Law School Admission Council, 2014 HRTO 537 (CanLII); Remtulla, ibid.
[284] This example was adapted from information provided to the OHRC (April 2015) in a written submission from Guide Dog Users of Canada. See the OHRC’s Policy on competing human rights for guidance in resolving this and other competing rights scenarios.
[285] Available online at: www.ohrc.on.ca/en/policy-competing-human-rights.