Organizations covered by the Code have a duty to accommodate to the point of undue hardship. Some degree of hardship may be expected – it is only if the hardship is “undue” that the accommodation will not need to be provided.[238]
In many cases, it will not be difficult to accommodate a person’s disability. Accommodation may simply involve making policies, rules and requirements more flexible. While doing this may involve some administrative inconvenience, inconvenience by itself is not a factor for assessing undue hardship.
The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship:
- cost
- outside sources of funding, if any
- health and safety requirements, if any.
No other considerations can be properly taken into account under Ontario law.[239] Therefore, factors such as business inconvenience,[240] employee morale[241] and customer and third-party preferences[242] are not valid considerations in assessing whether an accommodation would cause undue hardship. [243]
To claim the undue hardship defence, the organization responsible for making the accommodation has the onus of proof.[244] It is not up to the person with a disability to prove that an accommodation can be accomplished without undue hardship.
The nature of the evidence required to prove undue hardship must be objective, real, direct and, in the case of cost, quantifiable. The organization responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on speculation or stereotypes will not be sufficient.[245]
Objective evidence includes, but is not limited to:
- financial statements and budgets
- scientific data, information and data resulting from empirical studies
- expert opinion
- detailed information about the activity and the requested accommodation
- information about the conditions surrounding the activity and their effects on the person or group with a disability.
9.1 Collective agreements
The Code also prevails over collective agreements.[246] Collective agreements or other contractual arrangements cannot act as a bar to providing accommodation.[247] To allow otherwise would be to permit the parties to contract out of the provisions of the Code under the umbrella of a private agreement,[248] and would run counter to the purposes of the Code.[249]
Accordingly, subject to the undue hardship standard, the terms of a collective agreement or other contractual arrangement cannot justify discrimination that is prohibited by the Code. Where respondents attempt to argue undue hardship based on factors that are not specifically listed in the Code, decision-makers should treat these arguments with skepticism.[250]
Employers and unions are responsible for accommodating employees. They are jointly responsible for negotiating collective agreements that comply with human rights laws. They must build conceptions of equality into collective agreements[251] and where they do not, it will be more challenging to argue that the collective agreement prevents them from making an accommodation. A union may cause or contribute to discrimination by participating in the formulation of a work rule, for example in a collective agreement, that has a discriminatory effect.[252]
Example: When a union and employer are negotiating a collective agreement, the principle of seniority is maintained as a general principle. However, the collective agreement cites obligations under the Ontario Human Rights Code and accounts for situations where accommodating employees with disabilities may override other provisions of the collective agreement.
If an employer and a union cannot reach an agreement on how to resolve an accommodation issue, the employer may need to make the accommodation in spite of the collective agreement. If the union opposes the accommodation, or does not co-operate in the accommodation process, it may be named as a respondent in a complaint filed with the HRTO.[253]
In exceptional circumstances, where an accommodation measure requires significant interference with the rights of other employees, and there are no other accommodation options available, accommodation may not be required. The HRTO has stated that substantial interference with the rights of other employees can be relevant to assessing undue hardship.[254] In these situations, the employer and the union should be prepared to show that there were no other viable accommodation options available.[255]
Ultimately, the same kind of flexible arrangements that would be considered in a non-union environment should be considered in a unionized one, even if they fall outside a collective agreement. In other words, unionized environments should be held to the same standard as non-unionized ones.
9.2 Elements of the undue hardship defence
9.2.1 Costs
The Supreme Court of Canada has said “one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment.”[256] The cost standard is therefore a high one.
Costs will amount to undue hardship if they are:
- quantifiable
- shown to be related to the accommodation, and
- so substantial that they would alter the essential nature of the enterprise,
or so significant that they would substantially affect its viability[257]
The costs that remain after all benefits, deductions and other factors have been considered will determine undue hardship. All projected costs that can be quantified and shown to be related to the proposed accommodation will be taken into account.[258] [259] However, mere speculation (for example, about financial losses that may follow the accommodation of a person with a disability) will not generally be persuasive.[260]
9.2.2 Outside sources of funding
To offset costs, an organization has an obligation to consider any outside sources of funding it can obtain to make the accommodation. Government programs, for example, may help to alleviate accommodation costs.[261]
A person seeking accommodation is also expected to avail themselves of any available outside sources of funding to help cover expenses related to their own accommodation.[262] Resources, such as government services or programs, might be available to accommodate the needs of people with disabilities that could also aid them at work, in their apartment or while accessing a service.
Example: A tenant in a supportive housing building requires modifications to her unit to allow her to move freely in her wheelchair. To make the accommodation, the supportive housing provider applies for funds through its funder and the woman accesses a government-funded accessibility grant for people with disabilities to help alleviate the costs.
Other outside accommodation resources might be available to a person with a disability when more than one organization has an overlapping or interconnected sphere of responsibility for the duty to accommodate.
Example: A lawyer who is deaf, and who works for a large law firm, receives real-time captioning or sign language interpreter accommodation funded and provided by a court. While the lawyer is acting in court, the court takes responsibility for the duty to accommodate, relieving the lawyer’s employer of its responsibility during this time period only.
Before being able to claim that it would be an undue hardship based on costs to accommodate someone with a disability, an organization would have to show that they took advantage of any available government funding (or other) program to help with such costs.
9.2.3 Health and safety
If an accommodation is likely to cause significant health and safety risks, this could be considered “undue hardship.”[263] Employers, housing providers and service organizations have an obligation to protect the health and safety of all their employees, clients and tenants, including people with disabilities, as part of doing business safely, and as part of fulfilling their legal requirements under Ontario’s health and safety laws. The Code recognizes that the right to be free from discrimination must be balanced with health and safety considerations.
Organizations have a responsibility to take precautions to ensure that the health and safety risks in their facilities or services are no greater for persons with disabilities than for others. Where a health and safety requirement creates a barrier for a person with a disability, the organization should assess whether the requirement can be waived or modified.[264] Relevant questions to ask include:
- Is the person seeking accommodation willing to assume the risk in circumstances where the risk is solely to their own health or safety?
- Would changing or waiving a requirement or providing any other type of accommodation be reasonably likely to result in a serious risk to the health or safety of other employees, tenants, staff or other service users?
- What other types of risks are assumed within the organization, and what types
of risks are tolerated within society as a whole?
The onus is on the accommodation provider to establish that it cannot accommodate a person due to dangers related to health and safety.[265]
Assessment of whether an accommodation would cause undue hardship based on health and safety must reflect an accurate understanding of risk based on objective evidence rather than stereotypical views. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications.[266] Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences “might” or “could” result if the person is accommodated.[267]
Example: A long-term care home canvasses ways to facilitate the use by some of its residents of motorized wheelchairs inside the building’s common living areas. In response to historical concerns that such use may raise safety issues, a staff team develops a plan to assess the actual risk and to explore ways to reduce risk. It then drafts a proposal of rules and regulations to be followed by all residents and staff to ensure safety.[268]
In evaluating the seriousness or significance of risk, the following factors may be considered:
- The nature of the risk: what could happen that would be harmful?
- The severity of the risk: how serious would the harm be if it occurred?
- The probability of the risk: how likely is it that the potential harm will
actually occur? - Is it a real risk, or merely hypothetical or speculative? Could it occur often?
- The scope of the risk: who will be affected if it occurs?
If the potential harm is minor and not very likely to occur, the risk should not be considered serious. If there is a risk to public safety, consideration will be given to the increased numbers of people potentially affected and the likelihood that a harmful event may happen.
Example: The HRTO found that requiring a transit provider in a major city to consistently and clearly announce its transit stops to facilitate access to patrons with visual disabilities was not an undue hardship on the basis of health and safety. It rejected the transit operator’s argument that it would be dangerous to have the drivers announce the stops when they have many other duties to perform.[269]
Organizations must try to mitigate risks where they exist. The amount of risk that exists after accommodations have been explored and precautions have been taken to reduce the risk (short of undue hardship based on cost) will determine whether there is undue hardship.
Where policies or procedures implemented in the name of minimizing risk intrude on the dignity and equality of people with disabilities, the responsible organization will need to show that the policy, procedure, etc. is a bona fide and reasonable requirement.[270]
Where a person’s conduct is objectively disruptive due to disability and causes a risk, employers, housing providers and service providers must consider a range of strategies to address the behaviour. Strategies will include assessing, and where necessary, reassessing and modifying any accommodations that are already in place for the person, and/or providing or arranging for additional supports.
The dignity of the person must be considered when addressing health and safety risks. Even where behaviour is correctly assessed to pose a risk, organizations should apply a proportionate response. If a real risk exists, the least intrusive means to address the risk must be used.
High probability of substantial harm to anyone will constitute an undue hardship. In some cases, it may be undue hardship to attempt to mitigate risk, such as where the risk is imminent and severe.[271]
9.3 Minimizing undue hardship
Organizations must consider strategies to avoid undue hardship and meet their duty to accommodate under the Code. For example, making reasonable changes to business practices or obtaining grants or subsidies can offset the expense of accommodation.[272]
The costs of accommodation must be distributed as widely as possible within the organization so that no single department, employee, customer or subsidiary is burdened with the expense. The appropriate basis for evaluating the cost is based on the budget of the organization as a whole, not the branch or unit where the person with a disability works or has made an application.[273]
Organizations and others responsible for accommodation are expected to consider whether accommodating the needs of a person with a disability may improve productivity, efficiency or effectiveness, expand the business, or improve the value of the business or property.
Example: An accommodation that affects a significant number of people with disabilities, such as the installation of an elevator and automatic door-opener, could open up a new market for a storekeeper or a service provider. By installing an elevator, several more people will be able to access a store, including families with children in strollers.
Creative design solutions, as part of a broader inclusive design strategy or in response to the needs of one person, can often avoid expensive capital outlay. This may involve specifically tailoring design features to a person’s functional capabilities.
Where undue hardship is claimed, cost and risk estimates should be carefully examined to make sure they are not excessive in relation to the stated objective. If they are, an organization should determine if a less expensive or lower risk alternative exists that could accomplish the accommodation (either as an interim measure to a phased-in solution or permanently) while still fully respecting the dignity of the person with a disability.
Some accommodations will be very important but will be difficult to accomplish in a short period of time.
Example: A small municipality may be able to show that to make its community centre accessible in a single year would cause undue hardship. Or, a small employer may find it impossible to make its entrance and washroom facilities accessible immediately without undue hardship.
In these situations, undue hardship should be avoided by phasing in the accessible features gradually.
Some accommodations will benefit large numbers of people with disabilities, yet the cost may prevent them from being accomplished. Hardship may be reduced by spreading the cost over several years.
Example: A commuter railroad might be required to make a certain number of stations accessible per year.
In many cases, it may be possible to provide interim accommodation for people while long-term accommodation is being phased in over an extended period of time. If both short- and long-term accommodation can be accomplished without causing undue hardship, then both should be considered simultaneously.
Another method of reducing the impact of the cost of an accommodation is to establish a reserve fund the person or organization responsible for accommodation pays into under specified conditions. One of the obvious conditions should be that the reserve fund is to be used only to pay for accommodation costs in the future. Accommodations could gradually be accomplished by expenditures out of the reserve fund or could eventually be accomplished once enough funds had been set aside.[274] Both phasing in and establishing a reserve fund are to be considered only after the organization responsible for accommodation has shown that the most appropriate accommodation could not be accomplished immediately. Phasing in, wherever possible, is to be preferred to establishing a reserve fund.
After all costs, benefits, deductions, outside sources of funding and other factors have been considered, the next step is to determine whether the remaining (net) cost will alter the essential nature or affect the viability of the organization responsible for making the accommodation. The organization would need to show how it would be altered or its viability affected. It will not be acceptable for the organization to merely state, without evidence to support the statement, that the company operates on low margins and would go out of business if required to undertake the required accommodation. If undue hardship can be shown, the person with a disability should be given the option of providing or paying for that portion of the accommodation that results in undue hardship.
Where an undue hardship analysis anticipates assessing substantial capital or operating expenditures or procedural changes (for example, in making physical alterations to an apartment building, work site, vehicle or equipment or changing health and safety requirements), it might be advisable for the organization responsible for accommodation to obtain a proposal and estimate from experts in barrier‑free design and construction.
[238] Renaud, supra note 208 at para. 984.
[239] There have been cases originating from other jurisdictions that have included other factors such as employee morale, or conflict with a collective agreement. For example, the Supreme Court of Canada considered additional undue hardship factors in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990), 72 D.L.R. (4th) 417 (S.C.C.) [Central Alberta] and Renaud, ibid. However, both of these cases were decided under legislation that does not set out enumerated factors for undue hardship (Alberta, and British Columbia, respectively). See also Fair, supra note 158, which references Central Alberta. The Ontario legislature enacted a higher standard by specifically limiting undue hardship to three particular components as set out in the Code. In Meiorin, supra note 66, the Supreme Court of Canada stated at para. 63 that “The various factors [in assessing undue hardship] are not entrenched, except to the extent that they are expressly included or excluded by statute” [emphasis added]. For HRTO cases following this approach, see McDonald v. Mid-Huron Roofing, 2009 HRTO 1306(CanLII) [McDonald] at paras. 35 and 42; Dixon, supra note 38 at para. 42; Noseworthy v. 1008218 Ontario Ltd., 2015 HRTO 782 at para. 55 (CanLII). Cases decided under the Code before it was amended to limit the undue hardship factors to costs, health and safety and outside sources of funding, such as Roosma v. Ford Motor Co. of Canada (No. 4), (1995), 24 C.H.R.R. D/89 and Ontario (Human Rights Commission) v. Roosma, 2002 CanLII 15946 (ON SCDC), do not reflect the legislature’s later decision to expressly limit the undue hardship factors.
[240] "Business inconvenience" is not a defence to the duty to accommodate. In amending the Code in 1988, the Legislature considered and rejected “business inconvenience” as a possible enumerated factor in assessing undue hardship. If there are demonstrable costs attributable to decreased productivity, efficiency or effectiveness, they can be taken into account in assessing undue hardship under the cost standard, providing they are quantifiable and demonstrably related to the proposed accommodation.
[241] Meiorin, supra note 66. In some cases, accommodating an employee may generate negative reactions from co-workers who are either unaware of the reason for the accommodation or who believe that the employee is receiving an undue benefit. The reaction may range from resentment to hostility. However, those responsible for providing accommodation should make sure that staff are supportive and are helping to foster an environment that is positive for all employees. It is not acceptable to allow discriminatory attitudes to fester into hostilities that poison the environment for people with disabilities. In McDonald, supra note 239, the HRTO stated at para. 43: “If a respondent wishes to cite morale in the workplace as an element of undue hardship, it should also be able to cite its own efforts to quell inaccurate rumours that accommodation is being requested unreasonably.” Further, people with disabilities have a right to accommodation with dignity. It is an affront to a person’s dignity if issues of morale and misconception stemming from perceived unfairness are not prevented or dealt with. In such cases, those responsible will not have met their duty to provide accommodation with dignity. In Backs v. Ottawa (City), 2011 HRTO 959 (CanLII), the respondent argued that employee morale was a factor contributing to undue hardship. The adjudicator stated (at para. 58): “…As regards the…issue of employee morale…it must be acknowledged that workplace accommodations can result in these kinds of problems for management. However while a challenge for management, such issues are not normally considered a legitimate consideration in an undue hardship analysis.”
[242] See Qureshi v. G4S Security Services, 2009 HRTO 409 at para. 35 (CanLII). The issue of customer, third-party and employee preference is also discussed in J. Keene, Human Rights in Ontario, 2nd ed. (Toronto: Carswell, 1992) at 204-5.
[243] Note that in rare cases the HRTO has indirectly considered other factors as part of costs or health and safety. See, for example, Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII); Wozenilek v. City of Guelph, 2010 HRTO 1652 (CanLII); Espey v. London (City), 2009 HRTO 271 (CanLII).
[244] Grismer, supra note 122 at para. 42.
[245] Meiorin, supra note 66 at para. 78-79; Grismer, ibid. at para. 41; Miele v. Famous Players Inc. (2000), 37 C.H.R.R. D/1 (B.C.H.R.T.).
[246] Renaud, supra note 208.
[247] Some labour arbitrators in Ontario have considered a breach of a collective agreement as a factor in assessing undue hardship: see, for example, Chatham-Kent Children's Services v. Ontario Public Service Employees' Union, Local 148 (Bowen Grievance), [2014] O.L.A.A. No. 424 (note, however, that the arbitrator in this case relied on Renaud, supra note 208, a case that arose under British Columbia’s Human Rights Act, S.B.C. 1984, which did not enumerate specific factors for assessing undue hardship, as the Ontario Human Rights Code does). Other arbitrators have restricted their undue hardship analysis to the three factors stipulated in the Code. While not binding on human rights adjudicators, arbitral jurisprudence can raise interesting employment issues and has been used by the OHRC to inform a broad and purposive interpretation of the Code. It is not used, however, as the basis for taking a restrictive interpretation of the Code in the formulation of OHRC policy.
[248] In Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 SCR 202 [Etobicoke], the Supreme Court of Canada stated (at p. 213): “Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy.”
[249] The Supreme Court of Canada has repeatedly held that human rights legislation has a unique quasi-constitutional nature and should be interpreted in a liberal and purposive manner to advance the broad policy considerations underlying it: see, for example, Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571, at para. 120; University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, at p. 370; Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, at pp. 89-90; Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at pp. 157-58.
[250] Westfair Foods Ltd. v. United Food & Commercial Workers International Union, Local 1000A (Walkosz Grievance), 2014 CanLII 31669 (ON LA); Re Mohawk Council of Akwesasne and Ahkwesasne Police Association (2003), 122 L.A.C. (4th) 161 (Chapman).
[251] Meiorin, supra note 66 at para. 68. In McGill, supra note 129, the Supreme Court of Canada stated at para. 20, “[s]ince the right to equality is a fundamental right, the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation…”
[252] Renaud, supra note 208.
[253] Ibid.
[254] See Carter, supra note 161 at para. 88 where the HRTO stated: “Under the Code, if a disabled employee cannot do his regular job, the employer is first obliged, in conjunction with the employee, to
see whether the employee can continue to do the regular job with accommodation. If that is not possible, the employer is obliged to look for other jobs that the disabled employee can do. That obligation can include measures that impact on other employees, for example as a result of changing job duties of other employees to accommodate the disabled employee. However, the duty to accommodate does not include an obligation to displace another employee out of his or her job.” See also Chadwick v. Norfolk (County), 2013 HRTO 2101 (CanLII); Bubb-Clarke, supra note 211. In a 2015 article entitled, "One Law for All : Perspectives from a Statutory Tribunal" (available online at: www.queensu.ca/clcw/sites/webpublish.queensu.ca.clcwwww/files/files/Weber%20Symposium/
Jo-Anne%20Pickel%20Paper.pdf ), Jo-Anne Pickel, a Vice-Chair at the HRTO, commented on the challenges of adjudicating cases that involve conflicts between human rights and collectively bargained rights. She writes at page 36, “Although the Tribunal has had occasion to comment on the challenges posed by such cases, the Tribunal does not appear to have been called upon to decide a case in which there was a direct conflict between rights under the Code, and rights, such as seniority rights, under the collective agreement.”
[255] In meeting their accommodation obligations, employers should seek out the alternatives that least intrude on the rights of others: Hamilton Police Association v. Hamilton Police Services Board, 2005 CanLII 20788 (ON SCDC); Renaud, supra note 208.
[256] Grismer, supra note 122 at para. 41.
[257] To determine whether a financial cost would alter the essential nature or substantially affect the viability of the organization, consideration should be given to:
- the ability of the organization to recover the costs of accommodation in the normal course of business
- the availability of any grants, subsidies or loans from the federal, provincial or municipal government or from non-government sources, which could offset the costs of accommodation
- the ability of the organization to distribute the costs of accommodation across the whole operation
- the ability of the organization to amortize or depreciate capital costs associated with the accommodation according to generally accepted accounting principles, and
- the ability of the organization to deduct from the costs of accommodation any savings that may be available as a result of the accommodation, including:
- tax deductions and other government benefits
- an improvement in productivity, efficiency or effectiveness
- any increase in the resale value of property, where it is reasonably foreseeable that the property might be sold
- any increase in clientele, potential labour pool, or tenants, and
- the availability of the Workplace Safety and Insurance Board's Second Injury and Enhancement Fund (for more information, see www.wsib.on.ca).
[258] The financial costs of the accommodation may include:
- capital costs, such as for installing a ramp, buying screen magnification or software, etc.
- operating costs such as sign language interpreters, personal attendants or additional staff time
- costs incurred as a result of restructuring that are necessitated by the accommodation, and
- any other quantifiable costs incurred directly as a result of the accommodation.
[259] Concerns may arise about the potential increase in liability insurance premiums by the perceived health and safety risks of having people with disabilities on particular job sites. Increased insurance premiums or sickness benefits would be included as operating costs where they are quantified, such as actual higher rates (not hypothetical), and are shown not to be contrary to the principles in the Code with respect to insurance coverage. Where the increased liability is quantifiable and provable, and where efforts to obtain other forms of coverage have been unsuccessful, insurance costs can be included.
[260] More information about how to offset costs can be found in sections 9.2.2 and 9.3.
[261] Governments have a positive duty to make sure that services generally available to the public are also available to people with disabilities. Governments should be mindful of their human rights responsibilities and the impact on people with disabilities when delegating implementation of their policies and programs to private entities: Eldridge, supra note 1. People with disabilities should not be worse off as a result. An organization that assumes responsibility for a government program must attend to the accommodation needs of its users.
[262] Such resources should most appropriately meet the accommodation needs of the individual, including respect for dignity.
[263] See, for example, Ivancicevic , supra note 85 at para. 211 and Gibson v. Ridgeview Restaurant Limited, 2013 HRTO 1163 (CanLII) at para. 100, both of which dealt with the use of medical marijuana in the service context.
[264] If waiving the health and safety requirement is likely to result in a violation of the OHSA, supra note 94, the employer should generate alternative measures based on the equivalency clauses in the regulations of the OHSA. The employer is required to show an objective assessment of the risk as well as how the alternative measure provides equal opportunity to the person with a disability. The employer might be able to claim undue hardship if a significant risk still remains after taking these measures. Fulfilling the OHSA provision, however, does not necessarily mean that the test for undue hardship or bona fide requirements under the Code has been satisfied. The Code has primacy over the OHSA and may sometimes prevail where these conflict with one another.
[265] Ouji v. APLUS Institute, 2010 HRTO 1389 (CanLII); Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10 (CanLII).
[266] See Etobicoke, supra note 248; VIA Rail, supra note 6 at para. 226; Buttar; supra note 167 at para. 132; R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (CanLII).
[267] Lane, supra note 6; ADGA, supra note 6. See also Bobyk-Huys v. Canadian Mental Health Assn., [1994] O.J. No. 1347 (Gen Div.).
[268] Example adapted from information provided to the OHRC in a written submission from the Advocacy Centre for the Elderly (April 2015).
[269] Lepofsky v. TTC, 2007 HRTO 23 (CanLII).
[270] Meiorin, supra note 66. See Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302.
[271] See Barton v. Loft Community Centre, 2009 HRTO 647 (CanLII).
[272] Organizations should consider spreading the financing of accommodation over time by taking out loans, issuing shares or bonds, or other business methods of financing. Amortization or depreciation is another means that an organization might be expected to use to reduce the financial burden, where possible. Tax deductions or other government benefits flowing from the accommodation will also be taken into account as offsetting the cost of accommodation. The effects of the Second Injury and Enhancement Fund of the Workplace Safety and Insurance Board must also be considered (for more information, see www.wsib.on.ca).
[273] Moore, supra note 6. In the case of government, the term “whole operation” should refer to the programs and services offered or funded by the government. There may be accommodations that require substantial expenditure, which, if implemented immediately, would alter the essential nature of government programs or substantially affect their viability in whole or in part. In these instances, it may be necessary to implement the required accommodation incrementally.
[274] A reserve fund should not be considered as an alternative to a loan where the accommodation could be made immediately and the cost paid back over time. Rather, the reserve fund is to be used in circumstances where it would create undue hardship for the organization responsible for accommodation to obtain a loan and accomplish the accommodation immediately. The reserve fund is one of several financing options to be considered in assessing the feasibility of an accommodation. If a reserve fund is to be established, provision should be made for considering future changes in circumstances.