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4. The duty to accommodate

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4.1 General principles

4.1.1 Respect for dignity

The duty to accommodate persons with disabilities means accommodation must be provided in a manner that most respects the dignity of the person, if to do so does not create undue hardship.[19] Dignity includes consideration of how accommodation is provided and the individual’s own participation in the process.

Human dignity encompasses individual self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. It is harmed when people are marginalized, stigmatized, ignored or devalued.[20] Privacy, confidentiality, comfort, autonomy, individuality and self-esteem are important factors as well to show whether an accommodation maximizes integration and promotes full participation in society.

Different ways of accommodating the needs of persons with disabilities should be considered along a continuum from those ways that are most respectful of privacy, autonomy, integration and other human values, to those that are least respectful of those values.

Perhaps the most common example of an accommodation that demonstrates little respect for the dignity of a person with a disability is a wheelchair entrance over a loading dock or through a service area or garbage room. Persons with disabilities should have the same opportunity as others to enter a building in a manner that is as convenient and pleasant for them as it is for others.

4.1.2 Individualized accommodation

The essence of accommodating people with disabilities is individualization. As a result of the three-step test proposed by the Supreme Court of Canada and re-affirmed by the Ontario Court of Appeal in Entrop,[21] each person with a disability must be considered, assessed and accommodated individually.

Example: A corporate policy provides for obligatory termination in the event that an employee in a safety-sensitive position tests positive after a breathalyzer test. This blanket policy does not provide for individualized assessment or the appropriateness of the outcome in the circumstances and, accordingly, does not accommodate employees on an individual basis.

There is no set formula for accommodating people with disabilities. Each person's needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person's requirements but not another's, although many accommodations will benefit large numbers of persons with disabilities.

4.1.3 Integration and full participation

International human rights standards point to the importance of full participation and enjoyment of life for persons with disabilities. The United Nations’ Declaration of the Rights of Disabled Persons[22] provides in sections 3 and 8 that:

3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.

8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.

With these principles in mind, achieving integration and full participation for persons with disabilities requires barrier-free and inclusive design and removal of existing barriers. Preventing and removing barriers means persons with disabilities should be able to access their environment and face the same duties and requirements as everyone else with dignity and without impediment. Where barriers continue to exist because it is impossible to remove those barriers at a given point in time, then accommodation should be provided to the extent possible, short of undue hardship.

It is well established in human rights law that equality may sometimes require different treatment that does not offend the individual’s dignity. In some circumstances, the best way to ensure the dignity of persons with disabilities may be to provide separate or specialized services. However, employment, housing, services and facilities must be built or adapted to accommodate people with disabilities in a way that promotes their integration and full participation. Segregated treatment in services, employment or housing for individuals with disabilities is less dignified and is unacceptable, unless it can be shown that integrated treatment would pose undue hardship or that segregation is the only way to achieve equality.[23]

4.1.3(a) Design by inclusion 

Integration requires up-front barrier-free design and inclusion-by-design to fully integrate persons with disabilities into all aspects of society as much as possible.

This approach combats "social handicapping" and recognizes that social attitudes and actions often contribute to "handicaps": a person may have few or even no limitations other than those created by non-inclusive thinking. The Supreme Court has noted the need to “fine-tune” society so that structures and assumptions do not exclude persons with disabilities from participation in society[24] and it has affirmed that standards should be designed to reflect all members of society, insofar as this is reasonably possible.[25]

When constructing new buildings, undertaking renovations, purchasing new computer systems, launching new websites, setting up new policies and procedures, offering new services, or implementing new public transit routes, design choices should be made that do not create barriers for persons with disabilities.

Inclusive design is the approach that is most respectful of the dignity of persons with disabilities.

4.1.3(b) Removing barriers

Persons with disabilities are currently excluded by many kinds of barriers, including physical, attitudinal and systemic ones. Significant changes are required as part of the duty to accommodate to provide equal access to employment (including collective agreements), transportation systems, buildings (except private residences), rental accommodation, services, restaurants, shopping centres, stores and other places and activities. These changes are necessary to give meaning to the right to equality and freedom from discrimination guaranteed to persons with disabilities under Part I of the Code.

A systemic barrier is not just a single rule or policy but a combination of policies and/or guidelines that result in the exclusion of people identified by a Code ground such as disability. Organizations should understand and be aware of the possibility that systemic barriers may exist within their organization, and actively seek to identify and remove them.

Barrier removal maximizes integration with one’s environment so ideally everyone is able to participate fully and with dignity. Identifying and removing systemic barriers also makes good business sense. It may reduce and prevent the filing of human rights complaints and can make facilities and procedures more comfortable for other groups such as seniors and for all people in general.

4.1.3(c) Accommodating remaining needs

Even up-front barrier-free or inclusive design and systematic removal of existing barriers may not result in full participation for persons with disabilities. At this point, differential treatment might be required to provide equal opportunity to full participation.

Again, accommodating remaining needs through differential treatment must be done in a manner that maximizes integration and dignity.

4.2 Legal principles

Once a prima facie case of discrimination is found to exist, the legal burden shifts to the person responsible for accommodation to show that the discrimination is justifiable. The following sections will deal with the basic legal test that persons responsible for accommodation must meet, and with the shared responsibilities of all parties to the accommodation process.

Section 11 of the Code, combined with section 9, prohibits discrimination that results from requirements, qualifications,or factors that may appear neutral but which have an adverse effect on persons with disabilities. This is often called “adverse effect,” or “constructive” discrimination. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.

Section 17 also creates an obligation to accommodate, specifically under the ground of disability. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship.

Section 17 addresses two important differences between disability and other Code grounds.[26] First, it recognizes that discrimination against persons with disabilities is not always grounded in negative stereotypes but rather can be based on society’s failure to accommodate actual differences. Second, it emphasizes the need for individualized accommodation, because the ground of disability “means vastly different things depending upon the individual and the context.”[27]

The Ontario Court of Appeal has confirmed that both sections 11 and 17 apply to persons with disabilities.[28] However, as a result of two landmark decisions of the Supreme Court of Canada,[29] the distinction between direct discrimination and adverse effect discrimination has become of much less practical significance. The Ontario Court of Appeal has confirmed that this “unified approach” should be applied to Ontario human rights law as well.[30] The practical result is that in most cases of discrimination on the ground of disability, individualized accommodation will be necessary.

The Supreme Court of Canada sets out a framework for examining whether the duty to accommodate has been met.[31] If prima facie discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the standard, factor, requirement or rule:

  1. was adopted for a purpose or goal that is rationally connected to the function being performed,
  2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal, and
  3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.[32]

The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship. In this analysis, the procedure to assess accommodation is as important as the substantive content of the accommodation.[33]

The following non-exhaustive factors should be considered in the course of the analysis:[34]

  • whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect
  • reasons why viable alternatives were not implemented
  • ability to have differing standards that reflect group or individual differences and capabilities
  • whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner
  • whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies
  • whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

4.3 Most appropriate accommodation

The duty to accommodate requires that the most appropriate accommodation be determined and then be undertaken, short of undue hardship. The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality.

Accommodation is a process and is a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be full accommodation that most respects the person's dignity. Next is phased-in accommodation over time, followed by the most appropriate accommodation only being implemented once sufficient reserve funds have been set aside. Alternative accommodation (that which would be less than “ideal”) might be next on the continuum when the most appropriate accommodation is not feasible. Alternative accommodation might also be accomplished at a later date if immediate implementation would result in undue hardship. Or, alternative accommodation might be implemented as an interim solution while the most appropriate accommodation is being phased in or implemented at a later date.

Whether an accommodation is “appropriate” is a determination completely distinct and separate from whether the accommodation would result in "undue hardship" (the test that has to be met under sections 11 and 17(2) of the Code).

Accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges experienced by others or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the individual’s disability-related needs. If the accommodation meets the individual’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.

The Tribunal has ruled that short of undue hardship, the highest point in the continuum of accommodation must be achieved.[35] However, if there is a choice between two accommodations which are equally responsive to the person’s needs in a dignified manner, then those responsible are entitled to select the one that is less expensive or that is less disruptive to the organization.

4.3.1 Essential duties and the current job

The Code guarantees equal treatment to all persons capable of performing the essential duties or requirements of the job or service. No one can be judged incapable of performing those duties until efforts have been made to accommodate the individual up to the point of undue hardship. The first step is to separate the essential from the non-essential duties of the job. Where possible, non-essential tasks can be reassigned to another person. The person with the disability should then be assessed in terms of his or her ability to perform the essential duties, and accommodation should be considered on that basis.

There is little guidance on how to distinguish between essential duties and others. In one Tribunal decision, the word “essential” was defined as follows:

“Essential” means that which is “needed to make a thing what it is; very important; necessary” -Synonyms are “indispensable, requisite, vital.” Thus, peripheral or incidental, non-core or non-essential aspects of a job are not pertinent to a determination under [s. 17(1)].[36]

Conclusions about inability to perform essential duties should not be reached without actually testing the ability of the person. It is not enough for the employer or person to assume that the person cannot perform an essential requirement. Rather, there must be an objective determination of that fact.[37]

The duty to accommodate may require employers to consider modifying performance standards or productivity targets. The term “performance standard” refers broadly to qualitative or quantitative standards that may be imposed on some or all aspects of work, whether they are set by the employer or through collective bargaining. A productivity target is a performance standard that relates specifically to the output of work expected by the employer. Performance standards generally can be distinguished from qualification standards, which are the skills or attributes that one must have to be eligible for a particular job:

Production standards identify the level at which an employee must perform job functions in order to perform successfully. Qualification standards, on the other hand, identify the skills and abilities necessary to perform the functions at the required level.[38]

The central issue in determining whether or how performance standards should be modified is whether the standards in question are essential duties or requirements within the meaning of section 17 of the Code. If the person is unable to perform the standard, but the standard is not considered an essential part of the job, it can be changed or the function removed from the employee altogether and reassigned.

If the standard is essential, the employer is nevertheless required to accommodate the employee under section 17(2) of the Code. Keeping in mind the overall objective of the inclusion of employees with disabilities in the workplace, sections 17 (1) and (2) of the Code together include an employer’s obligation to accommodate a person. This accommodation may include an adjustment of that performance standard zs long as doing so does not result in undue hardship. If it does amount to undue hardship, the employer has a defence.

This does not preclude the employer from enforcing performance standards that are unrelated to the disability. The employer is entitled to a productive employee and to develop standards and targets that maximize organizational objectives.

4.3.2 Alternative work

Although accommodation in the pre-disability job is always preferable, it may not always be possible. The issue of whether an employee is entitled to have access to a job other than the pre-disability job is a matter of some debate. Nothing in the Code or in section 17 specifically restricts the requirement to accommodate a worker with disability to the pre-disability position. Conversely, nothing in section 17 expressly authorizes it either. Nevertheless, in light of the broad and purposive interpretation that should be afforded to human rights legislation, it is the OHRC’s view that accommodation in a job other than the pre-disability job may be appropriate in some circumstances. Section 17 may therefore include access to alternative work. Some of the following considerations may assist employers in determining whether such accommodation is available under section 17(2).

The following questions should be considered:

  • Is alternative work possible and available, at present or in the near future?
  • If it is not available, can a new position be created without causing undue hardship?
  • Does it require additional training and does the training impose undue hardship?
  • Do the tasks performed match the job description, or is there flexibility in the workplace with regard to an employee’s responsibilities?
  • Does the alternative work policy contravene a collective agreement?
  • What are the terms of the collective agreement or individual contract of employment?
  • What are the past practices of the workplace? How interchangeable are workers? Do employees frequently change positions either permanently or temporarily for reasons other than disability accommodation?[39]

Depending on how the previous questions are answered, accommodation may therefore include job restructuring, reassignment to open positions, retraining for alternative positions or job bundling if that would not constitute undue hardship for the employer. This will depend on the circumstances of the employment and the labour environment at a given workplace. In the final analysis, the employee must be able to perform a useful and productive job for the employer.[40]

Three of these options are discussed in the following sections.

4.3.2(a) Temporary alternative work

The term "alternative work" means different work or work that does not necessarily involve similar skills, responsibilities and compensation. Temporary alternative work may be an appropriate accommodation either in a return to work context, or in a situation where a disability renders an employee temporarily unable to accomplish the pre-disability job.

Temporary alternative work can be an appropriate accommodation to assist a person where the nature of the disability and its limitations are temporary or episodic.

4.3.2(b) Permanent alternative work

An employer-initiated alternative work arrangement must consider the circumstances of the individual's return to work. When an employee asks to be reinstated in a previous position, the employer may make the appropriate inquiries to assess whether the employee is fully able to carry out the essential functions of the job. Whenever possible, the returning employee should be given an opportunity to prove his or her ability to perform the pre-disability job.[41]

Where the employee can no longer perform his or her current job and if alternative work is appropriate based on the analysis described above, the OHRC is of the view that the employer should consider permanent alternative work. This is consistent with a line of labour arbitration cases that have found that the duty to accommodate may include significant workplace reorganization[42] as well as with the obligation to provide suitable work in order to satisfy the duty to re-employ injured workers.[43]

Reassignment to a vacant position should be considered an appropriate accommodation only when accommodation in the current position would cause undue hardship. The vacant position must be vacant within a reasonable amount of time, but the employer is not required to "promote" the employee. Reassignment is not available to job applicants. If reassignment creates a conflict because of a collective agreement, accommodation needs should prevail over the collective agreement. When reassignment takes place, the person must be qualified for the reassigned position. The vacant position must be equivalent to the current one, although a less equivalent position would be acceptable if no equivalent one exists.

4.3.3 Return to work

Accommodating a person who has been absent from work may involve any of the above forms of accommodation but also raises unique issues. People who return to work after an absence related to a ground in the Code are protected by the Code.[44] They generally have the right to return to their jobs, and this is frequently referred to as the “pre-disability job.” Both employers and unions must co-operate in accommodating employees who are returning to work. Accommodation is a fundamental and integral part of the right to equal treatment in the return to work context.

The right to return to work for persons with disabilities only exists if the worker can fulfil the essential duties of the job after accommodation short of undue hardship.[45] If a person cannot fulfil the essential duties of the job, despite the employer's effort to accommodate short of undue hardship, there is no right to return to work. As noted in the preceding section, there may also be a right to alternative work.

Under the Code, there is no fixed rule as to how long an employee with a disability may be absent before the duty to accommodate has been met. This will depend on the ability of the employee to perform the essential duties of the job considering the unique circumstances of every absence and the nature of the employee’s condition, as well as circumstances in the workplace. Also important is the predictability of absence, both in regards to when it will end and if it may recur and the frequency of the absence. The employee’s prognosis and length of absence are also important considerations. It is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence.

The duty to accommodate does not necessarily guarantee a limitless right to return to work. On the other hand, a return to work program that relies on arbitrarily selected cut-offs or that requires an inflexible date of return may be challenged as a violation of the Code. Ultimately the test of undue hardship is the relevant standard for assessing return to work programs.

4.4 Duties and responsibilities in the accommodation process

The accommodation process is a shared responsibility. Everyone involved should co-operatively engage in the process, share information and avail themselves of potential accommodation solutions.

The person with a disability is required to:

  • advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
  • make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
  • answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
  • participate in discussions regarding possible accommodation solutions
  • co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
  • meet agreed-upon performance and job standards once accommodation is provided[46]
  • work with the accommodation provider on an ongoing basis to manage the accommodation process
  • discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

The employer is required to:

  • accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
  • obtain expert opinion or advice where needed
  • take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated,[47] and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate[48]
  • keep a record of the accommodation request and action taken
  • maintain confidentiality
  • limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
  • grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
  • bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.

Unions and professional associations are required to:

  • take an active role as partners in the accommodation process[49]
  • share joint responsibility with the employer to facilitate accommodation[50]
  • support accommodation measures irrespective of collective agreements, unless to do so would create undue hardship.

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.

Example: An employer is unaware of an employee's drug addiction but perceives that a disability might exist. The employer sees that the employee is having difficulty performing, and is showing signs of distress. If the employer imposes serious sanctions or terminates the employee for poor performance, without any progressive performance management and attempts to accommodate, these actions may be found to have violated the Code.[51]

Before terminating or sanctioning an employee for “unacceptable behaviour,” an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. Employers should always inform all employees that a disability-related assessment or accommodation can be provided as an option to address performance issues. Progressive performance management and discipline as well as employee assistance supports ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered. For example, severe change in an employee’s behaviour could signal to an employer that the situation warrants further examination.

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs.

Example: John has bipolar disorder. He has chosen not to disclose to his employer because he is concerned about how he would be treated at work if it were known that he had a mental disability. He experiences a crisis at work, followed by a failure to appear at work for several days. The employer is concerned about John’s absence and recognizes that termination for failure to report to work may be premature. The employer offers John an opportunity to explain the situation after treatment has been received and the situation has stabilized. Upon learning that a medical issue exists, the employer offers assistance and accommodation.

Once disability-related needs are known, the legal onus shifts to those with the duty to accommodate. For example, counselling or referral through Employee Assistance Programs (EAPs) could be the solution for an underlying disability that might be aggravated by workplace or personal stress.

There may be instances where there is a reasonable and bona fide basis to question the legitimacy of a person’s request for accommodation or the adequacy of the information provided. In such cases, the accommodation provider may request confirmation or additional information from a qualified health care professional to obtain the needed information. No one can be forced to submit to an independent medical examination, but failure to respond to reasonable requests may delay the provision of accommodation until such information is provided.

4.4.1 Confidentiality

Persons with disabilities are not necessarily required to disclose private or confidential matters, and should disclose information to the accommodation provider only as it pertains to the need for accommodation and any restrictions or limitations.

Example: An employee with AIDS has provided documentation to demonstrate her need for a flexible schedule, rest periods to manage periods of fatigue, and time to attend appointments with health care professionals. However, it is not necessary for the employee to disclose that she has AIDS. The employer is entitled to know that the employee has a disability and that she needs certain accommodations to remain productive at work.

Maintaining confidentiality for individuals with mental illness may be especially important because of the strong social stigmas and stereotyping that still persist about such disabilities.

Documentation supporting the need for particular accommodation (flexible hours, a different supervisor, a particular technical aid, for example) should be provided only to those who need to be aware of the information. It may be preferable in some circumstances for information to be provided to the company's health department or human resources staff rather than directly to the supervisor, to further protect confidentiality. Medical documentation should be kept separate from the person’s corporate file.

[19] The Supreme Court’s recent decisions in Law, supra note 14 and Granovsky, supra note 4 have confirmed that the concept of human dignity is central to discrimination analysis. These cases indicate that if an accommodation marginalizes, stigmatizes or demeans the person with a disability’s sense of worth or dignity as a human being, it will not be appropriate. In commenting on the Eaton case, the Court said in Granovsky, supra note 4 at para. 74:...Emily’s claim might have succeeded if ...the Court had been persuaded that the Board’s response to the challenge posed by Emily’s placement [the accommodation] had itself violated Emily’s dignity as a human being equally deserving of consideration, or placed discriminatory obstacles in the way of her self-fulfillment. [Emphasis added.]
[20]Law, supra note 14 at para. 53.
[21]Entrop v. Imperial Oil Limited (21 July 2000), Docket C29762 at para. 77-81 (Ont. C.A.), online: Court of Appeal for Ontario [hereinafter “Entrop”].
[22] United Nations, Declaration of the Rights of Disabled Persons, proclaimed by General Assembly resolution 3447 (XXX) of 9 December 1975.
[23]Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [hereinafter “Eaton”]. The Supreme Court stated that “integration should be recognized as the norm of general application because of the benefits it generally provides” (at para. 69). However, the Court found that in Emily Eaton’s circumstances, segregated accommodation was in her best interests. The Court was of the view that this was one of those unusual cases where segregation was a more appropriate accommodation.
[24]Eaton, ibid at para. 67.
[25]Meiorin, supra note 6 at para. 68.
[26]Eaton, supra note 23 at para. 66-7. The unique nature of disability has been recognized by the Supreme Court of Canada.
[27]Ibid, at para. 69.
[28]Supra, note 21.
[29]Meiorin, supra note 6, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [hereinafter “Grismer”].
[30]Entrop v. Imperial Oil Limited (21 July 2000), Docket C29762 at para. 77-81 (Ont. C.A.), online: Court of Appeal for Ontario [hereinafter “Entrop”].
[31]Meiorin, supra note 6.
[32]Grismer, supra note 29 at para. 20.
[33]Ibid, at para. 66.
[34]Meiorin, supra note 6 at para. 65.
[35]Quesnel v. London Educational Health Centre, (1995) 28 C.H.R.R. D/474 at para. 16 (Ont. Bd. of Inq.) [hereinafter “Quesnel”].
[36]Cameron v. Nel-gor Nursing Home (1984), 5 C.H.R.R. D/2170 at D/2192 (Ont. Bd. of Inq.) [dictionary citations omitted].
[37]Ibid. See also Crabtree v. 671632 Ontario Ltd. (c.o.b. Econoprint (Stoney Creek)), [1996] O.H.R.B.I.D. No. 37 (Ont. Bd. of Inq.), online: QL (HRBD).
[38] Robert L. Burgdorf, Disability Discrimination in Employment Law (Washington D.C.: Bureau of National Affairs, 1995) at 241.
[39] See M. K. Joachim, "The Duty To Accommodate Disabled Workers and the Provision of Alternative Work: An Unexplained Assumption” (2000) 7 Charter and Human Rights Litigation 407 for an excellent review of labour and human rights case law. Although Joachim locates the right to alternative employment in section 17(1), it can also be viewed as being located in the section 17(2) and the duty to accommodate. Whichever is the correct reasoning, employees should have some access to alternative employment.
[40]Hamilton Civic Hospitals and CUPE, Local 794 (1994), 44 L.A.C. (4th) 31 [Ont. Arb. Award.]
[41] In Chamberlin v. 599273 Ontario Ltd cob Stirling Honda (1989), 11 C.H.R.R. D/110 (Ont. Bd. of Inq.), the Board of Inquiry (Tribunal) found that the employer should have given the complainant the opportunity to prove he could still perform his old job.
[42] An employer may have to move an employee to a job more consistent with the employee’s health status; Re Calgary District Hospital Group and U.N.A. Loc. 121-R (1994), 41 L.A.C. (4th) 319 (Alta. Lab. Rel. Bd.). The employer may have to look for work comparable to the original job rather than giving the employee an inferior position; Re York County Hospital and Ontario Nurses’ Association (1992), 26 L.A.C. (4th) 384 (Ont. Lab. Rel. Bd.). The employer may even need to create a new job by joining together all the light duties and then reassigning the heavy duties to other employees; Re Greater Niagara Hospital and Ontario Nurses Association (1995), 50 L.A.C. (4th) 34 (Ont. Lab. Rel. Bd.). In one decision, the
employer’s duty to accommodate included not only the duties and requirements associated with the current job but also the duties and requirements associated with a bundle of tasks within the ability of an employee with a disability; Re Mount Sinai Hospital and the O.N.A. (1996), 54 L.A.C. (4th) 261 (Ont. Lab. Rel. Bd.).
[43]Workplace Safety and Insurance Act, S.O. 1997 c. 16 Sch. A, s. 40 and 41 [hereinafter “WSIA”].
[44] There are also rights and obligations pertaining to return to work set out in the WSIA that may exist concurrently with human rights protections.
[45] See Section 17 of the Code.
[46] In some cases, accommodation may require the modification of job standards. See the section entitled “Essential duties and the current job.”
[47]Meiorin, supra note 6 at para. 65-66.
[48] Human Rights Digest, vol. 1 no. 2 (February/March 2000) citing Conte v. Rogers Cablesystems Ltd. (1999), C.H.R.R. Doc. 99-227 (Can. Human Rights Tribunal), Mazuelos v. Clark (2000) C.H.R.R. Doc. 00-011 (B.C. Human Rights Tribunal) and Gordy v. Oak Bay Marine Management Ltd. (2000) C.H.R.R. Doc.00-040 (B.C. Human Rights Tribunal).
[49] The Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 [hereinafter “Renaud ”] sets out the obligations of unions.
[50]Ibid at 988.
[51] For further information about drug and alcohol related disabilities, see Ontario Human Rights Commission, Policy on Drug and Alcohol Testing (1996, revised September 27, 2000), Online: Ontario Human Rights Commission website:

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