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Section 17 of the Ontario Human Rights Code (“Code”) requires an employer to accommodate an employee’s disability, as it relates to performing essential employment duties, to the point of undue hardship. What falls within the definition of “disability” is set out in section 10 of the Code. For example, when an employee becomes injured while at work and must return to work on a graduated basis to account for their injuries, they will generally fall within the definition of “disability”.

Based on section 17 above, the onus is on the employer to establish that it discharged its duty to accommodate a disabled employee to the point of undue hardship.

As stated by the Supreme Court of Canada in Renaud v. Central Okanagan School District No 23, an employer must put forth more than mere negligible effort in order to satisfy its duty to accommodate:

“The use of the term “undue” infers that some hardship is acceptable; it is only “undue” hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words “reasonable” and “short of undue hardship.” These are not independent criteria but are alternate ways of expressing the same concept.”

Even though the Code lists only three factors in determining whether the threshold of undue hardship has been met, namely the cost, outside sources of funding, if any, and health and safety requirements, if any, the Supreme Court of Canada set out its own list of factors for making such a determination in Central Alberta Dairy Pool v. Alberta (Human Rights Commission):

“…financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations.”

The above list is not exhaustive and should be applied with common sense and flexibility in the context of the factual situation presented in each case. However, the threshold is not an impossible one to meet: where an employee 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 according to the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ).

Apart from a determination of when the undue hardship threshold will have been reached, is the process an employer must go through to accommodate a disabled employee prior to claiming that no other options were available without undue hardship. For example, the standard approach to accommodating employees with physical injuries is to assess their limitations and find work in line with their restrictions. It will then fall upon the employer to demonstrate what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship.

An employer’s obligation to accommodate their employees flows from the applicable human rights legislation and rulings of the Supreme Court of Canada. The Supreme Court has held that accommodation is a significant obligation and a central feature of the Canadian workplace. It is an ongoing duty that may require an employer to review other positions, beyond the disabled employee’s own position, and even consolidate a number of tasks into a new job. However, the duty would not require an employer to create a permanent unproductive position.

Even though the primary responsibility rests with the employer, as it has ultimate control over the workplace and is thus in the best position to determine how best to accommodate an employee, the union must cooperate and not unreasonably block a viable accommodation option. The employee is expected to communicate the need for accommodation, provide relevant information about any restrictions, and cooperate when reasonable accommodation is offered. Absent a provision within the collective agreement conferring a right to be consulted, there is no independent right to be consulted about the employer’s proposed accommodation, even though it is good practice for the employer to discuss a proposed accommodation with the union and the employee.

Therefore, all three parties involved, namely the employer, the union and the employee, play an important role with respect to an employer’s obligation to accommodate an employee. As usual, collective agreement provisions must be respected; however, in order to comply with accommodation obligations, some provisions may need to be waived if they unreasonably block a viable accommodation option as the provisions of a collective agreement “cannot absolve the parties from the duty to accommodate.” (Brant (County) v. OPSEU, Local 256).

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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