Under the Code, every student with a disability is entitled to accommodation up to the point of undue hardship. The Code sets out only three elements that may be considered in assessing whether an accommodation would cause undue hardship:
- outside sources of funding, if any
- health and safety requirements, if any.
It is the OHRC’s position that this means that only factors that can be brought within these three elements should be considered.
Example: A union opposes the hiring of a specialized education professional to assist in the accommodation of a student with a learning disability because the professional is not part of the bargaining unit. Unless the union can show that the hiring will cause undue hardship on the basis of one of the three elements set out above, disruption to the collective agreement will not, in and of itself, be enough to establish undue hardship.
To claim the undue hardship defence, the education provider has the onus of proof. The student requesting accommodation does not have 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 education provider 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.
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.
Elements of the undue hardship defence
What the courts say: 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.”
The costs standard is a high one. Where possible, an education provider must take steps to recover the costs of accommodation. This can be done, for example, by obtaining grants, subsidies and other outside sources of funding that help to offset accommodation expenses. Tax deductions and other government benefits flowing from the accommodation must also be considered. In addition, inclusive design and other creative design solutions can often avoid expensive capital outlay.
In determining whether a financial cost would alter the essential nature or substantially affect the viability of the educational institution, consideration will be given to:
- The size of the institution – what might prove to be a cost amounting to undue hardship for a small educational institution will not likely be one for a larger educational institution.
- Can the costs be recovered in the normal course of operation?
- Can other divisions, departments, etc. of the educational institution help to absorb part of the costs?
- Can the costs be phased in – so much per year?
- Can the education provider set aside a certain percentage of money per year to be placed in a reserve fund to be used for accommodation issues?
- Will the educational programs and services for all students be substantially and permanently altered? For example, will a school board be forced to cancel its music programs to fund an accommodation?
The government is required to ensure that school boards have access to sufficient funding to ensure equal access to education. School boards, in turn, have a responsibility to provide adequate funding to schools to enable the provision of accommodations. Where an education provider receives funding from government for the purposes of promoting accessibility and meeting the needs of students with disabilities, the education provider should track accommodation data and alert the government to any funding deficiencies that exist.
Education providers cannot use limited resources or budgetary restrictions as a defence to the duty to accommodate without first meeting the formal test for undue hardship based on costs. Further, education providers are not to decide which accommodations are most appropriate for a student based on financial considerations or budgetary constraints. Whether an accommodation is “appropriate” is a determination completely distinct and separate from whether the accommodation would result in "undue hardship." If the accommodation meets the student’s needs and does so in a way that most respects dignity, then a determination can be made as to whether or not this “most appropriate” accommodation would result in undue hardship.
Where the most appropriate accommodation would result in undue hardship, education providers should consider “next best” alternatives or interim measures while the most appropriate accommodation is being phased in or implemented at a later date.
If an accommodation exceeds an education provider’s pre-determined special education budget, the education provider must look to its global budget, unless to do so would cause undue hardship.
Example: A publicly-funded school informs the parents of a student with a learning disability that they cannot provide their son with the services of a special needs assistant. The school principal states that he only has a certain amount of resources to fund accommodations to students with disabilities, and that he has already spent the money on the “most needy” students. The school board in this instance would be required to review its overall budget before supporting a conclusion that the accommodation could not be provided without causing undue hardship based on costs.
Costs of accommodation must be distributed as widely as possible within the institution responsible for accommodation so that no single school or academic department is disproportionately burdened with the costs of accommodation. The appropriate basis for evaluating the costs is based on the budget of the institution as a whole, not the school or academic department in which the student with the disability has requested an accommodation.
Example: A college student requires the services of a sign language interpreter in his classes. The college has received several accommodation requests in the given academic year and has depleted its disability accommodation budget. Before denying the student’s request, however, the college reviews its overall budget and finds a surplus in the budget of the business department which is then used to fund the student’s request.
Larger organizations, governments in particular, 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.
Health and safety requirements
Maintaining a safe learning environment for students, school staff and educators alike is an important objective. Health and safety issues will arise in various educational contexts and have the potential to affect individual students with disabilities, other students, educators and school staff. Depending on the nature and degree of risk involved, it may be open to education providers to argue that accommodating a student with a disability would amount to an undue hardship.
Where a health and safety requirement creates a barrier for a student with a disability, the education provider should assess whether the requirement can be modified or waived. However, modifying or waiving health and safety requirements may create risks that have to be weighed against the student's right to equality.
In practice: A teacher has reservations about allowing a student who uses a wheelchair to accompany the class on a field trip to a local zoo because of her belief that it will be too dangerous. The school principal decides to make further inquiries, including contacting the zoo’s management, and determines that most of the facility is accessible and that patrons who use wheelchairs and other motorized devices regularly visit the premises without incident. It is important to substantiate the actual degree of risk in question, rather than acting on inaccurate or stereotypical perceptions that may have little to do with a student’s actual limitations.
An education provider may believe that accommodation that would result in the modification or waiver of a health or safety requirement could place the student at risk. The education provider is obliged to explain the potential risk to the student or his or her parent, where appropriate. The student, or his or her parent, will usually be in the best position to assess the risk. This applies only if the potential risk is to the student's health or safety alone. Where the risk that remains after considering alternatives and after accommodation is so significant as to outweigh the benefits of enhancing equality, it will be considered to be undue hardship.
Where a student is placed in an educational setting outside the regular classroom due to health and safety risks, the student is entitled to periodic reassessment to determine, in cases where the student’s status changes, whether re-inclusion in the regular educational program is appropriate.
In practice: A student with bi-polar disorder is unable to attend college due to uncontrollable and violent outbursts associated with his disability. After a period of medical treatment and with the aid of medication, he is able to manage his disability effectively. At this point, the college arranges to meet with and reassess the student’s accommodation needs. The duty to accommodate is dynamic and ongoing and must be responsive to changes in the nature of a student’s disability.
Where modification or waiver of a health or safety requirement is believed to result in a risk to the health or safety of others, the degree of risk must be evaluated. The education provider must consider other types of risks assumed within the institution. A potential risk created by accommodation should be assessed in light of those other more common sources of risk in the educational institution. The seriousness of the risk is to be judged based on taking suitable precautions to reduce it.
An education provider can determine whether modifying or waiving a health or safety requirement creates a significant risk by considering the following:
- Is the student (or his or her parents) willing to assume the risk in circumstances where the risk is solely to his or her own health or safety?
- Would changing or waiving the requirement be reasonably likely to result in a serious risk to the health or safety of other students, educators or school staff?
- What other types of risks are assumed within the institution or sector, and what types of risks are tolerated within society as a whole?
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 frequently?
- The scope of the risk: Who will be affected by the event 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 the harmful event may occur.
Where a student with a disability engages in behaviour that affects the well-being of others, it may be open to education providers to argue that to accommodate that student would cause undue hardship on the basis of health and safety concerns, specifically, that the accommodation would pose a risk to public safety. However, the seriousness of the risk will be evaluated only after accommodation has been provided and only after appropriate precautions have been taken to reduce the risk. It will be up to the education provider to provide objective and direct evidence of the risk. Suspicions or impressionistic beliefs about the degree of risk posed by a student, without supporting evidence, will not be sufficient.
A claim of undue hardship must stem from a genuine interest in maintaining a safe learning environment for all students, rather than as a punitive action. Even where a student poses a risk to him or herself or the safety of others, an education provider still has a duty to canvass other accommodation options, including separate services, where possible and appropriate.
Ultimately, an education provider must balance the rights of the student with a disability with the rights of others. There may be situations where a student poses a health and safety risk to him or herself or to others that would amount to an undue hardship, or an otherwise appropriate accommodation is impossible to implement in the particular circumstances. However, it is important that education providers not rush to such a conclusion. Further training for staff, or further supports for the student may resolve the issue. The accommodation process must be fully explored, to the point of undue hardship.
 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. There are a number of cases that confirm this approach to the interpretation of human rights statutes. Most recently, in Mercier, supra note 8, the Supreme Court summarized these cases and outlined the relevant principles of human rights interpretation. Moreover, the Code has primacy over other legislation (see sub-section 47(2) of the Code).
 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 [“Grismer”] at para. 41.
 Outside sources of funding may include:
- Funds that may be available to the student only, provided through government programs and that are linked to the student’s disability. Students might be expected to take advantage of these programs when making accommodation requests of an education provider. However, such resources should most appropriately meet the accommodation needs of the student, including respect for dignity.
- Funds that would help education providers defray the costs of accommodation. Other outside accommodation resources might be available to a student with a disability when more than one organization has an overlapping or interconnected sphere of responsibility for the duty to accommodate.
- Funding programs to improve accessibility for persons with disabilities – a corporate or organizational responsibility.
 It should be noted that both phasing in and establishing a reserve fund are to be considered only after the accommodation provider has demonstrated that the most appropriate accommodation could not be accomplished immediately.
 This is consistent with the OHRC’s approach in the employment context, where an employer or other entity cannot refuse to accommodate an employee with a disability because the accommodation would exhaust the funds that the employer had earmarked for employees with disabilities.
 Risk is evaluated after all accommodations have been made to reduce it.