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Duty to accommodate disability

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Under the Ontario Human Rights Code, persons with disabilities have the right to equal treatment in accessing services such as those provided by restaurants, shops, hotels, movie theatres and other public places. Businesses have an obligation to make their facilities accessible. A failure to provide persons with disabilities equal access to a facility or equal treatment in a service would constitute discrimination under the Code and can be the subject of a human rights complaint to the Commission.

A restaurant would have to demonstrate as a defence to such discrimination that providing access or accommodating services would amount to undue hardship with regard to cost, outside sources of funding, or health and safety factors.

Moreover, the Canadian Charter of Rights and Freedoms, as well as the different levels of government and the courts, have all recognized the right of persons with disabilities to accessibility. The Supreme Court of Canada in particular has noted the need to ‘fine-tune’ society so that its structures and assumptions do not exclude persons with disabilities from participating in society[1] and has affirmed that standards should be designed to reflect all members of society, insofar as this is reasonably possible.[2]

The Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (the “Disability Policy”) is central to this initiative as it sets out the relevant provisions of the Code, applicable case law, the legal tests for accommodation, undue hardship etc. and makes clear that services and facilities such as restaurants should be accessible by making choices for inclusive design from the outset.

Where barriers already exist, steps should be taken to remove them. A business might sometimes be able to demonstrate objectively that immediate implementation of the most appropriate solution would result in undue hardship. In such cases, businesses still have a duty to consider and implement interim or next-best measures that would not result in undue hardship. Such measures should be in place only until such time that more ideal solutions could be attained or phased in, if possible.

In addition to responding to the needs of customers or employees with disabilities, barrier removal is also valuable to others such as older persons and families with young children who can benefit from increased accessibility.

It should be noted that the Human Rights Code has primacy over all other legislation in Ontario, unless the other legislation states that it prevails over the Code. The Ontario Building Code Act contains no such provision. Reliance solely on relevant building codes has been clearly rejected as a defence to a complaint of discrimination under the Human Rights Code.[3]

Consequently, businesses, architects, designers and builders that choose to comply only with the requirements of the Building Code, and fail to consider and adhere to the legal obligations they also have under the Human Rights Code, are leaving themselves vulnerable to the possibility of a human rights complaint.

[1] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 67.
[2] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 atpara. 68.
[3] In Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474, an Ontario Human Rights Tribunal stated that compliance with building codes does not, in itself, justify a breach of human rights legislation.

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