14. Undue hardship

Organizations covered by the Code have a duty to accommodate to the point of undue hardship. Accommodation need not be provided if it causes undue or excessive hardship. However, some degree of hardship is acceptable.

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 considered. For example, business inconvenience, employee morale, third-party preferences, etc. are not valid considerations in assessing whether an accommodation causes undue hardship.[246]

In many cases, it will not be costly to accommodate someone’s mental health issue or addiction. 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.

To claim the undue hardship defence, the organization responsible for making the accommodation has the onus of proof.[247] 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 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 impressionistic views or stereotypes will not be sufficient.[248]

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.

14.1 Costs

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.”[249] 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

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 financial losses that may follow the accommodation of a person with a mental health disability or addiction) will not generally be persuasive.

If an accommodation exceeds an organization’s pre-determined accommodation budget, the accommodation provider must look to its global budget, unless to do so would cause undue hardship. The costs of accommodation should be distributed as widely as possible within the operation so that no division disproportionately assumes the costs of accommodation.[250]

Where an accommodation would cause undue hardship, the accommodation provider is required to find the next-best solution. For example, interim accommodation could be provided while the organization establishes a reserve fund to phase in the accommodation that is the most appropriate.

14.2 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. 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.

Example: A tenant in a supportive housing building in a street-level unit has post-traumatic stress disorder, which is exacerbated by exposure to noise. The person requires sound-proofing of his apartment to accommodate his disability. To make the accommodation, the supportive housing provider applies for funds through its funder and the tenant accesses a government-funded accessibility grant for people with disabilities to help alleviate the costs.

Before being able to claim that it would be an undue hardship based on costs to accommodate someone with a psychosocial disability, an organization would have to show that they took advantage of any available government funding (or other) program to help with such costs.

14.3 Health and safety

If an accommodation is likely to cause significant health and safety risks, this could be considered “undue hardship.” 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 mental health issues or addictions, as part of doing business safely, and as part of fulfilling their legal requirements of the Occupational Health and Safety Act. The Code recognizes that the right to be free from discrimination must be balanced with health and safety considerations.

An employer, housing provider or service provider can determine whether modifying or waiving a health or safety requirement or otherwise providing an accommodation will create a significant risk by considering:

  • 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?

Accommodation could involve addressing a health and safety risk arising from behaviour caused by someone’s disability. 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.[251] 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.[252]

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.

Organizations must try to mitigate risks where they exist. The amount of risk that exists after accommodations have been made and precautions have been taken to reduce the risk (short of undue hardship based on cost) will determine whether there is undue hardship.

Wherever possible, organizations should train their staff on effective and appropriate de-escalation strategies that can be used to defuse situations where a person’s disability-related behaviour may present challenges. In many situations, effective intervention can mean the difference between peaceful conflict resolution and a full-blown crisis.

Example: A police service trains all of its officers on de-escalation techniques with a specific focus on how to interact effectively with people who may be experiencing a mental health crisis. In addition, the service liaises with organizations that have expertise in mental health advocacy and support. In response to a call that a man in a public library was in distress and appeared to have a knife, police were called to the scene, and a mobile mental health crisis unit was put on standby. Using de-escalation techniques, the police were able to convince the man to drop his weapon. Then, the police and psychiatric nurses were able to speak to the man, reassure him, and calm him down.

Where policies or procedures implemented in the name of minimizing risk intrude on the dignity and equality of people with psychosocial disabilities, the responsible organization will need to show that the policy, procedure, etc. is a bona fide and reasonable requirement.[253]

“Zero tolerance” policies will often have a disproportionate impact on people with mental health disabilities or addictions, and do not negate an organization’s obligation to accommodate to the point of undue hardship by assessing and reducing risk. 

Example: A service user attends a mental health service, is upset and starts yelling and making intimidating gestures at front counter staff. Security staff speak to the person, but the person continues yelling, and is ejected from the office. The service has a strict policy to prevent abuse of staff and bans people who are perceived as threatening from using the service. However, staff believe that the incident relates to the person’s mental health issue. Instead of banning the person from using the service, the service provider contacts the person and explains their concerns and what led to them becoming upset, identifies any accommodations needed, and works with the person to identify how the person can continue taking part without repeating the incident.

Where a person’s conduct is objectively disruptive, employers, housing providers and service providers must consider a range of strategies to address behaviour.

Example: The behaviour of a woman with schizophrenia had the potential to endanger the safety of other tenants in her building. For example, on several occasions, she screamed loudly in the halls and other common areas, and once she left food on her stove unattended. By working with the woman and members of her family, a housing provider developed a crisis response plan, which included the woman’s brother and mother being available by phone and being willing to intervene when her behaviour was disruptive.[254]

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.

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.[255]

The dignity of the person must be considered when addressing health and safety risks. Even where people are 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.

[246] Note that, in rare cases, the HRTO has indirectly considered other factors as part of costs or health and safety. See, for example, Espey v. London (City), 2009 HRTO 271 (CanLII); Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII); and Wozenilek v. City of Guelph, 2010 HRTO 1652 (CanLII). Also, in Bubb-Clarke v. Toronto Transit Commissionsupra, note 203, the HRTO speculated in obiter that an accommodation that could result in bumping another employee from a job may result in undue hardship. But see also Fair v. Hamilton-Wentworth District School Boardsupra, note 189.

[247] Grismer, supra, note 165 at para. 42.

[248] Meiorin, supra, note 67 at para. 78-79; Grismeribid. 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.).

[249] Grismer, ibid. at para. 41.

[250] Moore v. British Columbia (Education)supra, note 94.

[251] See Buttar v. Halton Regional Policesupra, note 189 at para. 132. See also, R.B. v. Keewatin-Patricia District School Boardsupra, note 94.

[252] Lane v. ADGA Group Consultants Inc., supra, note 60; ADGA Group Consultants Inc. v. Lanesupra, note 60. See also Bobyk-Huys v. Canadian Mental Health Assn., supra, note 238.

[253] Meiorinsupra, note 67. See Radek v. Henderson Development (Canada) Ltd.supra, note 87.

[254] See Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC).

[255] See Barton v. Loft Community Centre, 2009 HRTO 647 (CanLII).