5. Undue hardship

The Code prescribes three considerations in assessing whether an accommodation would cause undue hardship. These are:

• cost
• outside sources of funding, if any
• health and safety requirements, if any.

Accommodating someone with a disability is seldom as expensive or difficult as is sometimes imagined. Over two-thirds of job accommodations cost under $500; many cost nothing at all.^[52]

The Code sets out only three considerations. This means that no other considerations, other than those that can be brought into those three standards, can be properly considered under Ontario law. There have been cases that have included such other factors as employee morale or conflict with a collective agreement. However, the Ontario legislature has seen fit to enact a higher standard by specifically limiting undue hardship to three particular components. The broad and purposive interpretation of the Code and human rights generally means that rights must be construed liberally and defences to those rights should be construed narrowly.^[53] Moreover, the Code has primacy over legislation,^[54] and also prevails over agreements such as collective agreements.^[55]

Several factors are therefore excluded from considerations that are frequently raised by respondents. These are business inconvenience, employee morale, customer preference and collective agreements or contracts.^[56]

5.1 Excluded factors

5.1.1 Business inconvenience

"Business inconvenience" is not a defence to the duty to accommodate. 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.

5.1.2 Employee morale

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, the person responsible for providing accommodation should ensure 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 workplace hostilities that poison the environment for disabled workers.

Moreover, 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.

5.1.3 Third-party preference

Human rights case law notes that third party preferences do not constitute a justification for discriminatory acts, and the same rule applies to customer preferences.^[57]

5.1.4 Collective agreements or contracts

Collective agreements or other contractual arrangements cannot act as a bar to providing ccommodation. The Courts have determined that collective agreements and contracts must give way to the requirements of human rights law. To allow otherwise would be to permit the parties to contract out of their Code rights under the auspices of a private agreement. 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.

A union may cause or contribute to discrimination by participating in formulating a work rule, such as a provision in the collective agreement, that has a discriminatory effect.^[58] Unions and employers are jointly responsible for negotiating collective agreements that comply with human rights laws. They should build conceptions of equality into collective agreements.^[59]

Example: When a union and employer are negotiating a collective agreement, the principle of seniority is maintained as a general principle. However, the union and employer can together address how employees with disabilities will be accommodated.

However, if an employer and a union cannot reach an agreement on how to resolve an accommodation issue, the employer must make the accommodation in spite of the collective agreement. If the union opposes the accommodation, or does not co-operate in the accommodation process, then the union may be named as a respondent in an application filed with the Tribunal.

Unions will have to meet the same requirements of demonstrating undue hardship having regard to costs, and health and safety. For example, if the disruption to a collective agreement can be shown to create direct financial costs, this can be taken into account under the cost standard. Issues surrounding terms of a collective agreement relating to health or safety are dealt with under the section dealing with “Health and safety.”

In non-unionized environments, employers can make flexible employment arrangements to meet their duty to accommodate. The same sort of flexible employment arrangements should be considered in unionized environments, although they may fall outside the collective agreement where the duty to accommodate arises.

5.2 Onus of proof and objective evidence

To claim the undue hardship defence, the person who is responsible for making the accommodation has the onus of proof.^[60] It is not up to the person with a disability to prove that the 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 person 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 impressionistic views or stereotypes will not be sufficient.^[61]

Example: A deaf patient requires a sign language interpreter in a hospital. The hospital administrator refuses to provide the accommodation, stating, “if everyone wanted signers, it would bankrupt us.” The hospital administrator does not provide financial information to justify this claim, and does not provide demographic evidence to show the likely number of patients who may require signers. As a result, the hospital’s defence will be unlikely to succeed.

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.

5.3 Elements of the undue hardship defence

5.3.1 Cost

The Supreme Court of Canada has said that, “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”.^[62] 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.

This test will apply whether the accommodation will benefit one person or a group.

The costs that remain after all costs, 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. However, mere speculation (for example, about monetary losses that may follow the accommodation of the person with a disability) will not generally be persuasive.

The financial costs of the accommodation may include:

• capital costs, such as the installation of a ramp, the purchase of screen magnification or software
• 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
• any other quantifiable costs incurred directly as a result of the accommodation.

Concerns may arise about the potential increase in liability insurance premiums by the perceived health and safety risks of having persons 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.^[63] 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.

For the purposes of determining whether a financial cost^[64] would alter the essential nature or substantially affect the viability of the organization, consideration will be given to:

• the ability of the person responsible for accommodation to recover the costs of accommodation in the normal course of business (see section 4.4.1)
• 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 person responsible for accommodation to distribute the costs of accommodation throughout the whole operation (see section 4.4.2)
• the ability of the person responsible for accommodation to amortize or depreciate capital costs associated with the accommodation according to generally accepted accounting principles,
• the ability of the person responsible for accommodation 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 (see section 4.4.4)
  • an improvement in productivity, efficiency or effectiveness (see section 4.4.5)
  • 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
• the availability of the Workplace Safety and Insurance Board's Second Injury and Enhancement Fund ^[65] (see section 4.4.6).

Larger organizations, including businesses and governments, may be in a better position to set an example or provide leadership in accommodating persons with disabilities. Accommodation costs will likely be more easily absorbed by larger organizations. Large employers, for example, are more likely to have the opportunities and the means to provide employment opportunities for greater numbers of persons with disabilities in a manner that accommodates their needs.

The phrase "benefits of enhancing equality" is intended to include consideration of benefits from the accommodation that may accrue to a person's co-workers, family, friends, fellow students or the general public by the accommodation being made.

5.3.1(a) Heritage buildings

The accessibility of heritage buildings raises controversial issues. A general exemption from accessibility requirements for heritage properties is not included in the Policy because it would result in broad exclusions as more and more buildings gain protection because of their heritage status. In a situation involving a heritage property, it is recognized that the cost of making the proposed accommodation may be increased by the necessity to preserve defining historic design features. However, aesthetic features, in and of themselves, that are not historic design features, are not to be included in the assessment.

The test of altering the essential nature or substantially affecting the viability of the enterprise allows the preservation of the defining features of a heritage property to be taken into account as a justifiable factor in assessing undue hardship.

5.3.2 Outside sources of funding

The availability of outside sources of funding may alleviate accommodation costs.^[66] Organizations can make use of outside resources to meet their duty to accommodate and must first do so before claiming undue hardship.

There are three potential sources of funding to consider:

1. Funds that may be available to the individual only, provided through government programs and that are linked to the individual’s disability.
Resources such as services or programs, might be available to accommodate the needs of persons with disabilities that could also aid them at work, in their apartment or while accessing a service.

Persons with disabilities might be expected to first avail themselves of outside resources available to them when making accommodation requests to an employer or service provider. However, such resources should most appropriately meet the accommodation needs of the individual, including respect for dignity.

2. Funds that would assist employers and service providers defray the cost of accommodation.
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.

3. Funding programs to improve accessibility for persons with disabilities – a corporate or organizational responsibility.
Governments have a positive duty to ensure that services generally available to the public are also available to persons with disabilities. Governments should not be allowed to evade their human rights responsibilities by delegating implementation of their policies and programs to private entities.^[67] An organization that assumes responsibility for a government program must attend to the accommodation needs of its users.

5.3.3 Health and safety

Health and safety requirements may be contained in a law or regulation, or result from rules, practices or procedures that have been established independently or in conjunction with other businesses or services engaged in similar kinds of activity.

Organizations have a responsibility to undertake health and safety precautions that would 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 accommodation provider should assess whether the requirement can be waived or modified. If waiving the health and safety requirement is likely to result in a violation of the Occupational Health and Safety Act (OHSA), the employer should generate alternative measures based on the equivalency clauses of the OHSA.^[68] The employer is required to show an objective assessment of the risk as well as demonstrate how the alternative measure provides equal opportunity to the person with a disability. The employer might be able to claim undue hardship after these measures were undertaken and a significant risk still remains.

5.3.3(a) Bona fide and reasonable requirements

Health and safety risks will amount to undue hardship if the degree of risk that remains after the accommodation has been made outweighs the benefits of enhancing equality for persons with disabilities. The person responsible for accommodation will have to satisfy the three-step test set out in Section 3.2.

Health and safety standards that are genuinely adopted for the protection of workers, clients or the public will usually meet the second step of the test. On the other hand, a standard that is established to circumvent human rights legislation will not meet this test.

The third step requires the organization to demonstrate that the standard is reasonably necessary and that accommodation cannot be accomplished without incurring undue hardship.

Health or safety risks that result in undue hardship could be reduced to acceptable levels over time (for example, by adding safety features or changing job descriptions to accommodate an employee with a disability). Development of a new technology to allow an employee with a disability to operate certain machinery more safely, for example, may take some time. In principle, therefore, a person responsible for accommodation could be required to phase in an accommodation that would lessen the health or safety risk over time, provided that the delay is reasonable and justified in relation to the development time attributed to the accommodation.

5.3.3(b) Assumption of risk

A person with a disability may wish to assume a risk. The risk created by modifying or waiving a health and safety requirement is to be weighed against the right to equality of the person with a disability. Where the risk is so significant as to outweigh the benefits of equality, it will be considered to create undue hardship.

In determining whether an obligation to modify or waive a health or safety requirement, whether established by law or not, creates a significant risk to any person, consideration will be given to:

• the significance, probability and seriousness of the risk
• the other types of risks that the person responsible for accommodation is assuming within the organization
• the types of risks tolerated within society as a whole, reflected in legislated standards such as licensing standards, or in similar types of organizations.

The “risk” that remains after all precautions including accommodations (short of undue hardship based on cost) have first been made to reduce the risk will determine undue hardship.

Where a modification or waiver of a health and safety requirement could place an individual with a disability at risk, the person responsible for accommodation is obliged to explain the potential risk to the person. Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard. At the same time, the organization has an obligation under health and safety legislation not to place persons in a situation of direct threat of harm. High probability of substantial harm to anyone will constitute an undue hardship.

Seriousness of the risk

The fact that a person has a disability, in and of itself, is not sufficient to establish that there is a risk. Evidence will be required to prove the nature, severity, probability and scope of the risk.

In determining the seriousness or significance of a risk, the following factors should 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 frequently?
• the scope of the risk
  • who will be affected by the event if it occurs?

These five factors should be considered together to determine the seriousness of the risk. If the potential harm is minor and not very likely to occur, the risk should not be considered to be serious. A risk to public safety shall be considered as part of the scope of the risk, while the likelihood that the harmful event may occur would be considered as part of the probability of risk.

The seriousness of the risk is to be determined after accommodation and on the assumption that suitable precautions have been taken to reduce the risk.

Example: An ambulance dispatcher with a hearing impairment manages emergency calls over the telephone. Her capacity to do so safely and reliably is properly assessed while using a prescribed hearing aid and a hearing aid-compatible telephone.

Consideration of other types of risk

When assessing the seriousness of the risk posed by the obligation to modify or waive a health or safety requirement, consideration must be given to the other types of risks that are assumed within an organization. For example, many jobs have risks that are inherent to the nature of the work itself.

As well, job applicants may be denied employment on the basis of limitations related to their disabilities. Yet these same or similar limitations may be developed by employees who have been on the job for several years, with little or no effect on their ability to satisfactorily perform their duties and with no impact on their careers.

Everyday risk

Many sources of risk exist in the workplace, aside from those risks that may result from accommodating an employee with a disability. All employees assume everyday risks that may be inherent in a work site, or in working conditions, or which may be caused by a co-worker's fatigue, temporary inattentiveness or stress. Employers have recognized that not all employees are 100% productive every day, and many provide counselling programs or other means of coping with personal problems, emotional difficulties or other problems that may arise. Risks created by these situations are factored into the level of safety or risk that we all accept in our lives every day.

A potential risk that is created by accommodation should be assessed in light of those other, more common sources of risk in the workplace.

Risks in society as a whole

Risks that are present in comparable enterprises or in society as a whole should be considered. While maximizing safety is always desirable, as a society we constantly balance the degree of safety to be achieved against competing benefits. For example, we balance the risk of injury in contact sports against the benefits of participating in sports activities or because of the economic and entertainment benefits. We balance the risks involved in permitting higher speed limits against the benefits of increasing the efficient flow of traffic. We balance the risks involved in driving affordable cars against the costs that would be involved in making them even safer.

5.4 Minimizing undue hardship

The following factors and strategies must be considered to avoid undue hardship and meet the duty to accommodate under the Code:

5.4.1 Cost recovery

Persons responsible for accommodation should take steps to recover the costs of accommodation. For example, by making reasonable changes to business practices or obtaining grants or subsidies, the expense of making accommodation can be offset. If the person responsible for accommodation believes that such measures will not be effective in avoiding undue hardship, s/he will have to demonstrate that such steps to recover costs are inadequate in the circumstances, are impossible or will not yield the needed resources.

In other words, the person responsible for accommodation would be required to establish that the costs, that remain after steps are taken to recover costs will alter the essential nature or substantially affect the viability of the enterprise.

5.4.2 Distributing costs

Costs of accommodation must be distributed as widely as possible within the organization responsible for accommodation so that no single department, employee, customer or subsidiary is burdened with the cost of an accommodation. The appropriate basis for evaluating the cost is based on the budget of the organization as a whole, not the branch or unit in which the person with a disability works or to which the person has made an application. 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 such instances, it may be necessary to implement the required accommodation incrementally.

5.4.3 Reducing financial burden

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.

5.4.4 Tax deductions

Tax deductions or other government benefits flowing from the accommodation will also be taken into account as offsetting the cost of accommodation.

5.4.5 Improvements to productivity, efficiency or effectiveness

The person responsible for accommodation is expected to consider whether accommodation of 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 persons requiring wheelchair access, could open up a new market for a storekeeper or a service provider. By building a ramp, several more persons will be able to access a store.

5.4.6 Second Injury and Enhancement Fund[69]

The effects of the Second Injury and Enhancement Fund of the Workplace Safety and Insurance Board (the WSIB) must be considered. In the event of an injury to a worker, where the injury is caused by the worker's disability, a claim may be made against this fund even if the employer did not have knowledge of the employee's pre-existing condition. The rates for the employer will not be increased as a result of making claims on the fund.

Approximately 90% of employees in the province of Ontario are under the protection of the WSIB. Since the fund is available to most employers, there will be few instances where increased liability insurance premiums for risk of injury to a person due to a pre-existing condition or disability will be a factor in creating undue hardship.

5.4.7 Creative design solutions

Creative design solutions can often avoid expensive capital outlay. This may involve specifically tailoring design features to the personl's functional capabilities. Design solutions must be most respectful of dignity.

5.4.8 A less expensive alternative

Where undue hardship is claimed, cost and risk estimates should be carefully examined to ensure that they are not excessive in relation to the stated objective. If so, a determination should be made as to whether 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.

5.4.9 Phasing in accommodation

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 or transportation system 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 persons with disabilities, yet the cost may prevent them from being accomplished. One approach that may reduce the hardship is to spread the cost over several years by phasing in the accommodation gradually.

Example: A commuter railroad might be required to make a certain number of stations accessible per year.

In many cases, while accommodation is being phased in over an extended period of time, it may still be possible to provide interim accommodation for the individual. If both short- and long-term accommodation can be accomplished without causing undue hardship, then both should be considered simultaneously.

5.4.10 Establishing a reserve fund

A second method of reducing the impact of the cost of an accommodation is to establish a reserve fund into which the person responsible for accommodation makes payment 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.

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 person 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.

Both phasing in and establishing a reserve fund are to be considered only after the person responsible for accommodation has demonstrated that the most appropriate accommodation could not be accomplished immediately. Phasing in is to be preferred to establishing a reserve fund wherever possible.

5.4.11 Assessing the impact of remaining costs

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 person responsible for accommodation would need to show how it would be altered or its viability affected. It will not be acceptable for the person responsible for accommodation 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.

Finally, 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.

5.4.12 Expert assessment

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 person responsible for accommodation to obtain a proposal and estimate from experts in barrier-free design and construction.

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^[52] A. Cantor, “The Costs and Benefits of Accommodating Employees with Disabilities” (Toronto: 1996), online: Cantor + Associates Workplace Accommodation Consultants: http://www.cantoraccess.com/publications/accomm_1996_worksitenews_2.shtml   
^[53] There are a number of cases that confirm this approach to the interpretation of human rights statutes. In Mercier, supra note 10 the Supreme Court summarized these cases and outlined the relevant principles of human rights interpretation.
^[54] Section 44 of the Code.
^[55] Renaud, supra note 49.
^[56] This is not an exclusive list. During the consultations, the issue of whether academic freedom may be a component of undue hardship was raised. Academic freedom is unrelated to the duty to accommodate and should not be a defence to accommodating persons with disabilities. For example, a student may require a more accessible classroom, or need more time in an examination because of a disability-related need. These are legitimate requests that do not diminish academic freedom. If an accommodation need places such a financial burden on the institution that it would amount to undue hardship by reason of cost or because it would substantially change the nature of the enterprise, or its viability, it would then meet the undue hardship standard. For more information, please see the OHRC’s Guidelines on Accessible Education at www.ohrc.on.ca.
^[57] The issue of customer, third party and employee preference is discussed in J. Keene, Human Rights in Ontario, 2nd ed. (Toronto: Carswell, 1992) at 204-5.
^[58] Renaud, supra note 49.
^[59] Meirion, supra note 6 at para. 68. Those setting standards and rules must be aware of the differences between individuals and groups of individuals. Standards and rules should not just be based on the ‘mainstream’ e.g. employees who do not have disabilities.
^[60] Grismer, supra note 29 at para. 42.
^[61] Meiorin, supra note 6 at para. 78-79 and Grismer, supra note 29 at para. 41. Cases since Meiorin and Grismer have also applied this stringent requirement for objective evidence; see, for example, Miele v. Famous Players Inc . (2000), 37 C.H.R.R. D/1 (B.C.H.R.T.).
^[62] Grismer, supra note 32 at para. 41
^[63] Section 25(1) of the Code.
^[64] For further discussion on minimizing costs, please refer to section 4.4 “Minimizing Undue Hardship.”
^[65] Second Injury and Enhancement Fund (S.I.E.F), Policy Document (08-01-05) in the Pre-Bill 99 Operational Policy Manual of the Workplace Safety and Insurance Board (W.S.I.B).
^[66] The Access Fund is an example of an outside source of funding. It helps community organizations develop barrier-free facilities, so persons with disabilities can be active volunteers and participate in potential employment opportunities. The Access Fund is part of Ontario's Equal Opportunity and Disability Partnerships and designed in partnership with the Ontario Trillium Foundation, which delivers the program.
^[67] See Eldridge, supra note 5.
^[68] R.S.O. 1990 c. 0-1. The OHSA regulations have equivalency clauses that allow for the use of alternative measures to those specified in its regulations, provided the alternative measures afford equal or better protection to workers.
^[69] Supra, note 65.