Sack Goldblatt Mitchell LLP

Sack Goldblatt Mitchell LLP
When is accommodation necessary?

In the presence of discrimination, whether
direct or indirect

5.(1) Employment – Every person has a right
to equal treatment with respect to
employment without discrimination because
of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual
orientation, age, record of offences, marital
status, family status or disability.

(2) Harassment in employment – Every
person who is an employee has a right to
freedom from harassment in the workplace
by the employer or agent of the employer or
by another employee because of race,
ancestry, place of origin, colour, ethnic origin,
citizenship, creed, age, record of offences,
marital status, family status or disability.
11.(1) Constructive discrimination – A right of a person
under Part I is infringed where a requirement, qualification or
factor exists that is not discrimination on a prohibited
ground but that results in the exclusion, restriction or
preference of a group of persons who are identified by a
prohibited ground of discrimination and of whom the person
is a member, except where
 (a) the requirement, qualification or factor is reasonable and
bona fide in the circumstances; or
 (b) it is declared in this Act, other than in section 17, that to
discriminate because of such ground is not an infringement
of a right.



(2) Idem – The Tribunal or a court shall not find that a
requirement, qualification or factor is reasonable and bona
fide in the circumstances unless it is satisfied that the needs
of the group of which the person is a member cannot be
accommodated without undue hardship on the person
responsible for accommodating those needs, considering the
cost, outside sources of funding, if any, and health and safety
requirements, if any.
(3) Idem – The Tribunal or a court shall consider any
standards prescribed by the regulations for assessing what is
undue hardship.
What is the duty to accommodate?
 Employers and unions in Canada are required
to make every reasonable effort , short of
undue hardship, to accommodate an
employee who comes under a protected
ground within human rights legislation
What is undue hardship?

Factors set out in legislation:
 Health and/or Safety
 Cost
 Outside sources of funding

Accommodation is based on the individual

Accommodation must address the person’s
needs, not their preferences

It is the employer who is responsible for the
accommodation; however, the union and
the employee have a role in the process

The employee must cooperate and facilitate the
accommodation process:
▪ Provide information about accommodation needs
▪ May make suggestions but cannot demand a perfect
solution
▪ Provide medical evidence where necessary
▪ May be required to see specialists
▪ May be required to seek rehabilitation in the case of
drug or alcohol addiction
▪ May be required to undergo training or learn new skills
What are the employer’s duties?
 Investigate possibilities for accommodation
 Consult with the union and the employee
regarding accommodation
 Take reasonable measures up to the point of
undue hardship
 May be responsible for initiating the
accommodation, particularly in the case of
mental illness or condition
Provide information/advice to the employee about
the accommodation process
 Facilitate the accommodation process
 Ensure fair treatment of other members of the
bargaining unit affected by the accommodation

▪ BUT… Human rights often trump provisions of the collective
agreement – the union must be flexible in its application of the
collective agreement

Negotiate collective agreement provisions that are
consistent with human rights law
Ontario Human Rights Code, s. 10
1.
a) any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness and,
without limiting the generality of the foregoing, includes diabetes
mellitus, epilepsy, a brain injury, any degree of paralysis, amputation,
lack of physical co-ordination, blindness or visual impediment, deafness
or hearing impediment, muteness or speech impediment, or physical
reliance on a guide dog or other animal or on a wheelchair or other
remedial appliance or device,
1.
Ontario Human Rights Code, s. 10
a condition of mental impairment or a developmental disability,
a learning disability, or a dysfunction in one or more of the
processes involved in understanding or using symbols or spoken
language,
d) a mental disorder, or
e) an injury or disability for which benefits were claimed or received
under the insurance plan established under the Workplace Safety
and Insurance Act, 1997.
…end/
b)
c)

Ontario Human Rights Code, s. 17
17.(1) Disability – A right of a person under this Act is not infringed for the
reason only that the person is incapable of performing or fulfilling the
essential duties or requirements attending the exercise of the right
because of disability.

(2) Accommodation – No tribunal or court shall find a person incapable
unless it is satisfied that the needs of the person cannot be
accommodated without undue hardship on the person responsible for
accommodating those needs, considering the cost, outside sources of
funding, if any, and health and safety requirements, if any.

(3) Determining if undue hardship – In determining for the purposes of
subsection (2) whether there would be undue hardship, a tribunal or
court shall consider any standards prescribed by the regulations.
Examples of disability:
Physical injuries , illnesses or conditions that cause
permanent impairment or limitations
 Temporary conditions
 Episodic conditions
 Mental illnesses and conditions
 Learning disabilities
 Conditions that have an element of voluntariness, such as
certain addictions
 Conditions that cause impairment, but may not be evident
to others

Disability also includes:

Conditions that do not cause impairment, but are perceived
by others to have the potential to cause future impairment

Conditions which may not cause actual impairment, but are
perceived by others to cause impairment

Past conditions that may no longer cause actual impairment,
but are perceived by others to cause impairment
Forms of accommodation include:
 Temporary leave
 Gradual return to work
 Modification of duties
 Modification of equipment
 Reassignment of duties
 Rebundling of duties
When assessing a request for accommodation, the
employer is entitled to information reasonably
required to meet its obligations to accommodate.
 At the same time, the employer is required to
respect the privacy and confidentiality of the
employee’s medical information.
 Balancing these competing goals often becomes
the focus of the Union’s role when helping an
employee seeking accommodation.


How do we reconcile the competing goals of
protection of the employee’s privacy regarding
personal health information and providing
information to the employer that is reasonably
required to assess the request for accommodation?
For example, can the employer require an
independent medical examination, and if so, under
what circumstances? See, for example, British
Columbia Crown Counsel Association v. British
Columbia [2010] B.C.C.A.A.A. No. 46 (QL).

Generally speaking, the employer is entitled to
confirmation that the employees suffers from a
disability, information about prognosis, functional
limitations, and the expected duration of the
limitations, but not diagnosis.

The importance of the provision of timely,
relevant and sufficiently detailed medical
documentation by the employee cannot be
overstated in cases of accommodation on the
basis of disability.
As noted above, s. 17 of the Code in effect permits
discrimination on the basis of disability if the person
is “ incapable of performing or fulfilling the essential
duties or requirements attending the exercise of the
right because of disability.”
 In the University setting, the traditional
requirements of the faculty member are
scholarship, teaching and service.
 What duties or requirements of the position are
“essential”? When can a faculty member demand
“rebundling” of duties?


When dealing with claims for
accommodation on the ground of disability,
it is important to be aware of the provisions
of the health care and LTD schemes provided
by the employer and the WSIB in terms of
support for reintegration and
accommodation.

Sometimes, it becomes apparent that the
level of benefits provided for mental disability
are different from or inferior to the level of
benefits provided for physical disability. Are
such differentiations discriminatory?

Battlefords and District Co-operative Ltd v. Betty-Lu Gibbs, [1996] 3
S.C.R. 566

See also the Ontario Human Rights Code, ss. 22 and 25.
Accommodation and Pregnancy
 Pregnancy falls under the protected ground of
sex rather than disability (s. 10(2))
 However, there is an important medical
component and principles related to medical
accommodation may apply
 Decisions should be based on medical evidence,
not perceptions or beliefs of what the employee
can or cannot do during pregnancy
Ontario Human Rights Code , s. 10 (1)
“family status” means the status of being in a parent and child relationship;…
There are two competing interpretations of the degree to which parental
obligations have to be accommodated in the workplace:
Hoyt v. Canadian National Railway [2006] C. H. R. D. No 33:
117 Discrimination on this ground has been judicially defined as
‘…practices or attitudes which have the effect of limiting the conditions of
employment of, or the employment opportunities available to, employees
on the basis of a characteristic relating to their…family.’ Ontario (Human
Rights Commission) v. Mr. A et al [2000] O.J. No. 4275 (C.A.); affirmed
[2002 S.C.J. 67].
Health Sciences Assn. of British Columbia v. Campbell River and North Island
Transition Society, [2004] B.C.J. No 922:
[A prima facie case of discrimination is made out] when a change in a term or
condition of employment imposed by an employer results in serious interference
with a substantial parental or other family duty or obligation of the employee.
Recent decisions of CHRT adopt Campbell River approach. See, for example,
Richards and Canadian Human Rights Commission and Canadian National Railway,
2010 CHRT 24:
The Tribunal is of the opinion that the effect of the approach in Campbell River is
to impose a hierarchy of grounds of discrimination, some grounds, as the ground
of family status, being deemed less important than others. This approach is not
supported by the purpose of the CHRA. Furthermore, all of the permutations of
the approach applied to the ground of family status in British Columbia
subsequent to the Campbell River Decision, support the Tribunal’s conclusion
that family status should not be singled out for a different and more onerous or
more stringent prima facie standard. The only solution is to apply the same test
as for the other grounds enumerated in section 3 of the CHRA.

The courts have held that providing paid time off for observance of Christian
holy days (e.g Christmas Day and Good Friday) while not providing employees of
other faiths with paid time off for days of equal significance to other religions is
prima facie discriminatory, and that the employer is required to accommodate
religious to the point of undue hardship. (Commission scolaire régionale de
Chambly v. Bergevin. 1994 CanLII 102 (S.C.C.))
The issue is whether employees are entitled to paid days off for religious
observance.
The answer is that employees seeking accommodation for religious observance
are not necessarily entitled to paid days off. In this regard, the courts have
endorsed the “menu of options” approach

See: Ontario (Ministry of Community and Social Services) v. Grievance
Settlement Board, 2000 CanLII 16854 (ON C.A.) . See also Marcovic and
Ontario Human Rights Commission and Autocom Manufacturing Ltd.et al,
2008 HRTO 64:
…[T]he obligation on the employer is to design its workplace standards in
a way that recognizes differences in religion amongst its individual
employees, and accommodates those differences. The task is to mesh its
workplace rules with the needs of a diverse workforce, with the goal of
enhancing participation and inclusion. In the case of religious
observances, those goals can be met through the provision of options for
scheduling changes that do not result in loss of pay.
….I find, therefore, that Chambly does not require the employer in this
case to include the option of two paid days off for religious observances in
its Policy.

Case study – Regina Professional Fire
Fighters Association (Local 181, International
Association of Fire Fighters) v. Regina (City),
2006 CanLII 63574 (SK L.A.)

How does the duty to accommodate relate
to processes under the collective agreement
such as tenure and promotion?