An Overview of the Duty To Accommodate and Undue Hardship in Human Rights Jurisprudence

Prepared for the Council of Canadians with Disabilities CURA "Disabling Poverty/Enabling Citizenship" by Nathan Irving (LL.B. student, University of Manitoba), September 6, 2009

I. Introduction

This report was prepared as a backgrounder for a larger future research project that intends to explore the impact of the human rights principle of the "duty to accommodate" on persons with disabilities. It is one of five reports prepared for further research purposes.

This report highlights the key human rights cases that have contributed to the principle of the duty to accommodate and the defence of undue hardship under human rights legislation. It further assesses how the duty to accommodate has affected the claims of persons with disabilities.

II. Impact of Meiorin and Grismer

In statutory human rights litigation, once a complainant has established a prima facie case of discrimination, the onus shifts to the respondent to justify its impugned standard or conduct. In 1999, the Supreme Court of Canada issued two rulings, Meiorin[1] and Grismer,[2] which set out what a respondent must prove in order to rebut a prima facie case of discrimination. Among other things, respondents must demonstrate that they have done everything to accommodate a complainant short of undue hardship. The Court in Meiorin, dealing with a case of alleged discrimination in employment, held that the respondent must demonstrate that "it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer."[3] The Court in Grismer subsequently adapted this requirement for a case of alleged discrimination in the provision of services, holding that the respondent must show that it "cannot accommodate persons with the characteristics of the claimant without incurring undue hardship."[4] The Court in both cases noted that the task of the respondent is not to demonstrate what they have already done to accommodate the complainant, but rather that "no further accommodation is possible without imposing undue hardship"[5] or, put another way, "that the standard incorporates every possible accommodation to the point of undue hardship".[6]

III. Post Meiorin and Grismer: The McGill and Hydro-Quebec Decisions

Ten years have passed since the Supreme Court of Canada issued its rulings in Meiorin and Grismer, but these decisions are still regarded as authority for what respondents must prove to justify prima facie discrimination. That being said, courts and tribunals have now applied this accommodation framework in hundreds of cases resulting in considerable jurisprudence on the subject. In this report, I begin by considering two recent Supreme Court of Canada decisions, McGill[7] and Hydro-Québec[8] which, according to some, have changed the accommodation framework and lowered the high standard which Meiorin and Grismer set for respondents. Next, I describe how adjudicators have interpreted and applied these two recent Supreme Court decisions in order to provide a sense of whether they are, in effect, lessening the onerous burden that was once put upon respondents. Lastly, I examine some of the obstacles facing complainants at this second stage of the discrimination analysis, obstacles which predate the McGill and Hydro-Québec decisions and that continue to pose problems for rights claimants.

In preparing this report, I reviewed all post-Meiorin and post-Grismer court cases which involved statutory human rights claims and at least some analysis of discrimination and/or the duty to accommodate, totalling 118 court decisions.[9] In addition, I reviewed tribunal and labour arbitration cases for the years 2008 and 2009 which involved both allegations of discrimination on the basis of disability and at least some analysis of discrimination and/or the duty to accommodate, totalling eighty-one tribunal and fifty-five arbitral decisions.[10]

The facts giving rise to the McGill decision are straightforward. After three years off work for reasons of disability, an employee was dismissed. The employer, citing lengthy absence as the reason for her termination, acted in accordance with a clause in the collective agreement which provided that an employee shall be dismissed after three years of absence owing to illness or accident. The issue before the Supreme Court of Canada was the scope of the duty to accommodate and whether an employer and union can agree on the substance of this duty in advance in a collective agreement.[11] Applying the test set out in Meiorin, the majority noted that "[t]he employer must demonstrate that it cannot accommodate the complainant without suffering undue hardship."[12] Again citing Meiorin, the majority noted that the factors to consider when applying the undue hardship analysis "are not entrenched and must be applied with common sense and flexibility."[13] Additionally, the majority recognized that "the right to accommodation is not absolute."[14] Ultimately, the majority of the Court held that while not determinative, the collective agreement is a significant factor to consider in determining the scope of an employer's duty to accommodate and that, in this case, the three year period of absence provided in the collective agreement was a reasonable accommodation.[15]

In considering how the lower courts approached the issues in McGill, the majority of the Supreme Court of Canada laid the foundations for principles which would be elucidated and confirmed the following year in Hydro-Québec. First, with respect to the appropriate time frame for assessing undue hardship, the majority had this to say:

The Court of Appeal appears to have held that the duty to accommodate must be assessed as of the time the employee was effectively denied an additional measure (para. 31). In my view, this approach is based on a compartmentalization of the employee's various health problems. Undue hardship resulting from the employee's absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period.[16]

Second, the Court made a link between undue hardship and continuing to employ a person who has been declared disabled for an indeterminate period:

The arbitrator thus did not limit himself to automatically applying a clause of the collective agreement. He was aware of the scope of the employer's duty to accommodate but could not anticipate that the employee would be returning to work in the foreseeable future. He therefore correctly concluded that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period.[17]

Lastly, the Court pointed out that the employee has a role to play in the accommodation process:

The duty to accommodate is neither absolute nor unlimited. The employee has a role to play in the attempt to arrive at a reasonable compromise. If in Ms. Brady's view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour.[18]

The facts in Hydro-Québec are similar to those in McGill. A union brought a grievance on behalf of an employee who had been dismissed on the basis of her history of disability-related absences, a recommendation from her physician that she go off work for an indefinite period, and a psychiatric assessment concluding that she would be unable to work on a regular and continuous basis without continuing to have a number of absences. The union grieved her dismissal, which was ultimately defeated by a unanimous Supreme Court.

The main issue which faced the Court in Hydro-Québec was the interpretation and application of the undue hardship standard.[19] After confirming the appropriateness of applying the test in Meiorin, the Court sought to clear up some apparent confusion with regard to the use of the term "impossible." The Court held that "[w]hat is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances."[20] To justify this conclusion, the Court cited passages from Meiorin which connect the language of impossibility to that of undue hardship. For example, Justice McLachlin (as she then was) stated in Meiorin that "unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands [emphasis added]".[21]

Despite highlighting the need to apply this standard with flexibility,[22] the Court in Hydro-Québec proceeded to set concrete limits on employers' duty to accommodate. The Court stated that "[t]he employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work."[23] Moreover,

If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.[24]

And in summary, "[t]he employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future."[25]

The Court in Hydro-Québec also confirmed the ruling in McGill that undue hardship is to be assessed globally, which, in the case of absences, means from the time that the absences began:

A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship.[26]

Having outlined the facts and holdings in McGill and Hydro-Québec, I turn to the question of whether these cases have modified the standard which respondents must meet to justify prima facie discrimination.

Taken together, McGill and Hydro-Québec set out four major principles. First, both emphasized that undue hardship is to be assessed globally. The Court in Meiorin did not address this issue; therefore, the Court cannot be said to have changed the existing standard. Second, the Court in McGill noted that an employee has a role to play in the accommodation process. This is not a novel principle, but one which predated and was recognized in Meiorin. Citing a 1992 Supreme Court of Canada decision, Renaud,[27] the Court in Meiorin noted that "the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union."[28] Third, the Court in Hydro-Québec clarified that respondents are not required to demonstrate that further accommodation is impossible, but rather that further accommodation is not possible short of undue hardship. While some might disagree, I would argue that the Court did not change the standard but rather clarified its meaning for those who had divorced the word "impossible" from the rest of the standard, to wit, "short of undue hardship." Finally, the Court in McGill suggested, and the Court in Hydro-Québec confirmed, that accommodation ends where an employee can no longer fulfill her basic employment obligations for the foreseeable future. This, I would argue, did change the standard in certain circumstances. It defied the Court's own admonition to avoid rigid rules when applying the standard. Furthermore, it is worth noting that equating these circumstances with undue hardship will not always coincide with reality in all circumstances. Many employers will not, in actuality, experience significant hardship while awaiting an employee's prognosis. At any rate, the Court's ruling on this matter has provided respondents with a ready-made undue hardship argument, which could render their task of justifying prima facie discrimination a whole lot easier.

While I have argued that the standard set out in Meiorin was, for the most part, left intact by the Supreme Court of Canada, my position is based solely on abstract principles. A more telling indication of change lies in the cases which followed. Are the cases revealing a shift in the standard in the wake of McGill and Hydro-Québec? I turn now to this question.

IV. Impact of McGill and Hydro-Québec

Although the ruling in Hydro-Québec respecting the use of the term "impossible" in the Meiorin test has often been reproduced in cases and, in some instances, has been cited by respondents arguing that this lessened their burden,[29] the impact of this ruling on the cases appears minimal. I speculate that the reason is that the question before the Courts remains the same (except, perhaps, in those few cases where the decision maker interpreted Meiorin to mean that the respondent had to prove that accommodation was impossible per se.[30]) Ultimately, adjudicators are still required to inquire as to whether or not it was possible for respondents to accommodate short of undue hardship. That being said, the potential for courts to misinterpret this ruling is apparent, and I did come across one egregious example of a complainant being thwarted by such a misinterpretation. The case is a 2009 decision of the British Columbia Supreme Court, Coast Mountain Bus Co. v. C.A.W., Local 111.[31] The court found that the tribunal made an error of law by asking whether the respondent had shown that it would be impossible to further accommodate individual employees without experiencing undue hardship.[32] Despite the fact that the tribunal's wording was imported almost word-for-word from Meiorin, and despite the fact that the tribunal linked its use of the term "impossible" with "undue hardship," the court nevertheless held that "[g]iven its incompatibility with the reasoning in Hydro-Quebec, the Tribunal member's conclusion that the issue before her was whether the petitioner had demonstrated impossibility is incorrect."[33] Thus, while it might be the case that Hydro-Quebec did not, in theory, change the standard, this case showed how the ruling can still pose problems for complainants.

More problematic for complainants has been Hydro-Quebec's ruling that the duty to accommodate ends when an employee can no longer fulfill the basic obligations of her employment for the foreseeable future. In my review of the cases, I encountered three where this ruling ultimately defeated the claim.[34]

While the above principles in McGill and Hydro-Quebec have precluded successful claims in a few instances, complainants were more likely to encounter one of a number of other obstacles which predated these decisions. This report concludes by highlighting these obstacles and the impact which they have had on complaints at the second stage of the discrimination analysis.

V. Impediments from Renaud

Two of the most serious impediments to successful claims at the second stage of the analysis date back to at least 1992 when they were set out in the Supreme Court of Canada decision, Renaud.[35] These obstacles are both apparent in the following passage:

The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation… Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered. This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution…When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.[36]

Although this passage is dense, it ultimately boils down to two major principles: 1) A complainant has a duty to facilitate the search for an accommodation, and 2) a complainant has a duty to accept reasonable accommodation without expecting a perfect solution. Citing the first principle, numerous courts, tribunals, and arbitrators, particularly in the employment context, have dismissed claims based on the conduct of the complainant. Of the ninety-one employment-related court cases I reviewed for this report, ten were defeated on the basis of the complainant's conduct in the search for accommodation.[37] In addition, six employment-related cases at the tribunal level,[38] and six cases at arbitration[39] were thwarted on the basis of this principle. By contrast, just one claim of discrimination in services was dismissed due to the complainant's failure to facilitate the search for accommodation.[40] Some of the cases noted above failed because a complainant did not try out a particular accommodation proposed by their employer.[41] In others cases, decision makers reproached the complainant for being uncooperative in the process.[42] Some decision makers required complainant's to take a number of steps before the employer's duty would even be engaged. Consider the following from a 2008 decision of the British Columbia Human Rights Tribunal:

It is well-established that the employee has a duty to bring to the attention of the employer the facts relating to discrimination… It is also a generally accepted principle that a respondent must know, or ought reasonably to know, that an employee is suffering from a disability before the duty to accommodate will arise. The obligation is normally on the complainant to communicate the nature of the disability to the Respondent…The Complainant is also obliged to participate in the efforts at reasonable accommodation.[43]

In this particular case, the Tribunal found that even though the complainant had written two letters requesting accommodation, the second of which identified the nature of his disability, he had not done enough to trigger the employer's duty to accommodate.

Before leaving this subject, I should point out that not all decision makers have been so quick to dismiss claims based on the fact that a complainant could have been more cooperative or forthcoming in the accommodation process. In at least a couple of cases, adjudicators proceeded to examine whether the respondent had fulfilled its duty to accommodate despite the complainant's communicative shortcomings.[44]

The second principle in Renaud, the duty of the complainant to accept reasonable accommodation, was also applied by decision makers to the detriment of claims in 3 employment-related tribunal cases,[45] three cases at arbitration,[46] one service-related court case,[47] and one service-related tribunal case.[48] In some instances, adjudicators applied this principle in a manner that was incompatible with substantive equality, by essentially stripping the requirements of accommodation to a bare minimum. Consider the following:

…the obligation to accommodate an employee does not mean that the employee is entitled to the ideal situation. Rather, it is question of developing working conditions that meet the minimum medical needs of the individual employee based on his disability [emphasis added].[49]

An additional difficulty for complainants at the second stage of the analysis was evident whenever decision makers, who claimed to be applying Meiorin, deviated from its clear instructions that the duty to accommodate is not satisfied unless "no further accommodation is possible without imposing undue hardship".[50] While purporting to apply this test, decision makers often made their rulings on the basis of the reasonableness of accommodations already provided, whereas what they were supposed to consider was whether the respondents had proved that further accommodation was not possible short of undue hardship.[51] In some instances, decision makers only considered whether a particular accommodation requested by the complainant was reasonable and then proceeded to make their ruling on this basis alone.[52]

VI. Conclusion

The above discussion demonstrates that regardless of whether McGill and Hydro-Québec lowered the standard that respondents must meet to justify prima facie discrimination, decision makers have frequently applied a lower standard—a standard for which there is no authority in the jurisprudence. What is clear is that while the onus is, in theory, on respondents at the second stage of the analysis, complainants have still encountered a number of obstacles at this stage.

• [1] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257 [Meiorin].
• [2] British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129 [Grismer].
• [3] Meiorin, supra note 1 at para. 54.
• [4] Grismer, supra note 2 at para. 20.
• [5] Meiorin, supra note 1 at para. 55.
• [6] Grismer, supra note 2 at para. 32.
• [7] McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, 59 C.H.R.R. D/259 [McGill].
• [8] Hydro-Québec v. Syndicat des employées de techniques professionelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, 63 C.H.R.R. D/301 [Hydro-Québec].
• [9] This statement is qualified by the fact that I only reviewed the highest level court decision for each case.
• [10] I did not review decisions arising from preliminary motions, including motions to dismiss.
• [11] McGill, supra note 7 at para. 9.
• [12] Ibid. at para. 14.
• [13] Ibid. at para. 15
• [14] Ibid.
• [15] Ibid. at para. 1.
• [16] Ibid. at para. 33.
• [17] Ibid. at para. 36.
• [18] Ibid. at para. 38.
• [19] Hydro-Québec, supra note 8 at para. 9.
• [20] Ibid. at para. 12.
• [21] Meiorin, supra note 1 at para. 55.
• [22] Hydro-Québec, supra note 8 at paras. 13 & 17.
• [23] Ibid. at para. 16.
• [24] Ibid. at par. 18.
• [25] Ibid. at para. 19.
• [26] Ibid. at para. 21.
• [27] Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 [Renaud].
• [28] Meiorin, supra note 1 at para. 65.
• [29] See e.g. Kruger Paper Products Ltd. v. Communications, Energy and Paperworkers' Union of Canada, Local 456 (Cuipka Grievance), [2008] B.C.C.A.A.A No. 217 at para. 93 [Kruger].
• [30] See e.g. Syndicat des employées et employés de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) c. Hydro-Québec, 2006 QCCA 150, [2006] R.J.Q. 426.
• [31] Coast Mountain Bus Co. v. C.A.W., Local 111, 2009 BCSC 396, CHRR Doc. 09-0617 [Coast Mountain].
• [32] Ibid. at paras. 145-146.
• [33] Ibid. at para. 146.
• [34] See Asante v. Pastcoat, A Division of Magna International Inc., [2009] O.H.R.T.D. No. 296 [Asante]; David Thompson Health Region v. United Nurses of Alberta, Local 2 (Leimert Grievance), [2009] A.G.A.A. No. 11 [Leimert]; and English-Baker v. Treasury Board (Department of Citizenship and Immigration), [2008] C.P.S.L.R.B. No. 24 [English-Baker].
• [35] Renaud, supra note 27.
• [36] Ibid. at paras 43-44.
• [37] See Brewer v. Fraser Milner Casgrain LLP (No. 3), 2008 ABCA 435, C.H.R.R. Doc. 08-1135 [Brewer]; Grant v. Newfoundland (Human Rights Comm.), 2003 NLCA 22, 46 C.H.R.R. D/387 [Grant]; Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA 57, CHRR Doc. 06-905 [Health Employers]; Layzell v. Ontario (Human Rights Comm.) (2003), CHRR Doc. 03-325 (Ont. Div. Ct.) [Layzell]; Quackenbush v. Purves Ritchie Equipment Ltd., 2006 BCSC 246, 56 C.H.R.R. D/330 [Quackenbush]; United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra), 2008 ABQB 126, 442 A.R. 64 [United Nurses]; Holm v. Canada (Attorney General), 2006 FC 1170, 300 F.T.R. 181 [Holm]; Public Service Alliance of Canada v. Greater Toronto Airports Authority, [2005] O.J. No. 5941 (Ont. Sup. Ct.) [Greater Toronto]; and Price v. Fredericton (City), 2004 NBQB 319, 280 N.B.R. (2d) 59; L.B. (Committee of) v. Newfoundland (Human Rights Commission), 2002 NFCA 38, 214 Nfld. & P.E.I.R. 183 [Price].
• [38] Wheatley v. Emergency Health Services Comm. (No. 3), (2009) CHRR Doc. 09-0397, 2009 BCHRT 106 [Wheatley]; Cudmore v. Inter Cap Industries Ltd., [2009] O.H.R.T.D. No. 180 [Cudmore]; Thibodeau v. Transport Solutions Ltd., [2009] C.L.A.D. No. 14 [Thibodeau]; Francoeur v. Capilano Golf & Country Club Ltd. (No. 2), (2008) 63 C.H.R.R. D/120, 2008 BCHRT 171 [Francouer]; Yee v. West Telemarketing Canada, [2008] B.C.H.R.T.D. No. 119 [Yee]; and Clarkson v. Spa Refreshed Ltd. (c.o.b. Just Curl up and Dye), [2008] B.C.H.R.T.D. No. 93 [Clarkson].
• [39] British Columbia v. British Columbia Government and Service Employees' Union (Lenihan Grievance), [2008] B.C.C.A.A.A. No. 69 [Lenihan]; Alberta v. Alberta Union of Provincial Employees (Gregoire Grievance), [2008] A.G.A.A. No. 35 [Gregoire]; United Food and Commercial Workers, Local 1288P v. Maple Leaf Consumer Foods Moncton Ltd. (Nugent Grievance), [2008] N.B.L.A.A. No. 1 [Nugent]; Cornwall (City) v. Canadian Union of Public Employees, Local 3251 (Greggain-O'Brien Grievance), [2008] O.L.A.A. No. 76 [Greggain-O'Brien]; Gibson v. Treasury Board (Department of Health), [2008] C.P.S.L.R.B. No. 68 [Gibson]; and Canada Post Corp. v. Canadian Union of Postal Workers (Eydt Grievance, CUPW 846-07-00871, Arb. McPhillips), [2009] C.L.A.D. No. 79 [Eydt].
• [40] See Epp v. Strata Plan VR2692, (2009) CHRR Doc. 09-0354, 2009 BCHRT 97 [Epp].
• [41] See e.g. Brewer, supra note 37.
• [42] See e.g. Layzell, supra note 37.
• [43] Yee, supra note 38 at para. 92.
• [44] See e.g. Wyse v. Coastal Wood Industries Ltd., (2009) CHRR Doc. 09-0808, 2009 BCHRT 180.
• [45] Thibodeau, supra note 38; Buchner v. Emergency and Health Services Comm. (No. 2), (2008) 64 C.H.R.R. D/41, 2008 BCHRT 317 [Buchner]; and Smith v. Canadian National Railway Co. (2008), CHRR Doc. 08-262, 2008 CHRT 15 [Smith].
• [46] Spooner v. Treasury Board (Correctional Service of Canada), [2009] C.P.S.L.R.B. No. 60; Lenihan, supra note 39; and Toronto District School Board v. Ontario Secondary School Teachers' Federation (Cherry Grievance), [2008] O.L.A.A. No. 153 [Cherry].
• [47] National Capital Comm. v. Brown (No. 1), 2008 FC 733, 63 C.H.R.R. D/359 [Brown].
• [48] Epp, supra note 40.
• [49] Thibodeau, supra note 38 at para. 27.
• [50] Meiorin, supra note 1 at para. 55.
• [51] See e.g. Quigley v. Ocean Construction Supplies Ltd., 2004 FC 631, 50 C.H.R.R. D/40 [Quigley]; Corbiere v. Wikwemikong Tribal Police Services Board, 2007 FCA 97, 361 N.R. 69 [Corbiere]; Neumann v. Lafarge Canada Inc. (No. 6), (2009) CHRR Doc. 09-0891, 2009 BCHRT 187 [Neumann]; Leckie v. Hamilton-Wentworth Dist. School Board (No. 4) (2009), CHRR Doc. 09-0913, 2009 HRTO 668 [Leckie]; and Buchner, supra note 45.
• [52] See e.g. Quigley, ibid.