Duty to Accommodate

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Duty to Accommodate

The right to accommodation in employment is premised on assuring persons with disabilities with work capacity are not unfairly excluded from employment. Employees with disabilities are to be accommodated up to undue hardship. Accommodation law has established obligations on employers, unions and employees in the accommodation process and has established certain limitations to the employers duty to accommodate.

Case Law

Eldridge v British Columbia (Attorney General), [1997] 2 SCR 624
R v Big M Drug Mart Ltd, [1985] 1 SCR 295
Lane v ADGA Group Consultants Inc, 2007 HRTO 34
Nova Scotia (Workers Compensation Board) v Martin
Nova Scotia (Workers Compensation Board) v Laseur
Hydro-Québec v Syndicat des Employées de Techniques Professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), (2008) 2 SCR 561
McGill University Health Centre (Montreal General Hospital) v Syndicat des Employes de l’Hopital General de Montreal, [2007] 2 SCR 561
Ramasawaksingh v Brampton (City), 2015 HRTO 1047 (interim decision)
Tombs v 1303939 Ontario LTD (cob Holiday Inn Express), 2015 HRTO 842
Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Company, 2007 ABCA 426
Entrop v Imperial Oil Limited, 2000 CanLII 16800 (ON CA)
Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34
Ontario (Human Rights Commission) v Vogue Shoes (1991), 14 CHRR D/425
Ball v Ontario (Community and Social Services), 2010 HRTO 360 (CanLII)
Turner v Canada Border Services Agency, 2014 CHRT 10 (CanLII)
Rutledge v Fitness One Peter Inc., [2010] OHRTD No 2041, 2010 HRTO 2039
Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 SCR 489
Barton v Loft Community Centre, 2009 HRTO 647
Gibson v Ridgeview Restaurant Limited, 2013 HRTO 1163
Arends v Children’s Hospital of Eastern Ontario, 2012 HRTO 1574 (CanLII)
Local 41-0 v Nestle Purina Petcare, 2012 CanLII 65216
Arumugam v Venture Industrial Supplies Inc., 2013 HRTO 1776
Darvish-Ghaderi v Evertz Microsystems, 2013 HRTO 653
Rodgers v SCM Supply Chain Management, 2010 HRTO 653 (CanLII)
Tiano v Toronto (City), 2014 HRTO 1187 (CanLII)
Canada (Attorney General) v Cruden, 2013 CF 520
Emergency Health Services Commission v Cassidy, 2011 BCSC 1003 (CanLII)
Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT 376
Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970
Holmes v Canada (Attorney General), 1997 CanLII 5101 (FC)
Yeats v Commissionaires Great Lakes, 2010 HRTO 906 (CanLII)
Morris v British Columbia Railway Co. (2003) 46 CHRR D/162, 2003 BCHRT 14
Dawson v Canada Post Corp., 2008 CHRT 41 (CanLII)
Carter v Chrysler Canada Inc., 2014 HRTO 845
Bubb-Clarke v Toronto Transit Commission, 2002 CanLII 46503 HRTO

Articles

Abbas, Maia. (2014) "Employing Disability: Deconstructing Insufficient Protections for Non-Mainstream Disabilities", 5 W J Legal Stud No2
Abbas, Maia. (2016) "Accommodating Complex Disabilities: Chronic Pain Disorders and the Canadian Workplace", Electronic Thesis and Dissertation Repository 3864
Adams, Eric A. (2016) "Human Rights at Work: Physical Standards for Employment and Human Rights Law" 41:6 Applied Physiology, Nutrition and Metabolism S63
Alon-Shenker, Pnina. (2012) "The Duty to Accommodate Senior Workers: Its Nature, Scope and Limitations", 38 Queen's LJ 165
ARCH Disability Law Centre. (2019) "Accommodating Addictions Disabilities in the Workplace" Case Summary and Analysis
Astritis, Andrew & Dayna Steinfeld. (2016) "Privacy and the Accommodation Process", as Tab 6 of The Law Society of Upper Canada's Continuing Professional Development conference on June 16, 2016 titled The Duty to Accommodate in the Workplace
Baker, David & Sarah Godwin. (2008) "All Aboard!: The Supreme Court of Canada Confirms that Canadians with Disabilities Have Substantive Equality Rights", 71 Sask L R 39
Banks, Kevin. (2016) "Reasonable Accommodation As Equal Opportunity in Canadian Employment Law" in Roger Blanpain and Frank Hendricks (eds.), Reasonable Accommodation in the Modern Workplace Potential and Limits of the Integrative Logics of Labour Law (Wolters Kluwer)
Barnett, Laura, Julia Nicol & Julian Walker. (2012) "An Examination of the Duty to Accommodate in the Canadian Human Rights Context" Background Paper on behalf of the Parliamentary Information and Research Service (Library of Parliament, Canada)
Bird, Alison J. (2015) "The Duty to Accommodate: When is the Point of Undue Hardship Reached?" First Reference Talks
Brodsky, Gwen, Shelagh Day & Yvonne Peters. (2014) "Litigating to Advance the Substantive Equality Rights of People with Disabilities" in Bruce Porter & Martha Jackman (eds) Advancing Social Rights in Canada (Irwin Law Inc)
Brodsky, Gwen, Shelagh Day & Yvonne Peters. (2012) "Accommodation in the 21st Century" for the Canadian Human Rights Commission
Caivano, Nicholas. (2016) "Inaccessible Inclusion: Privacy, Disclosure and Accommodation of Mental Illness in the Workplace", 5:1 Canadian Journal of Human Rights 97, 2016 CanLIIDocs 69
Canadian Human Rights Commission. (2008) Policy and Procedures on the Accommodation of Mental Illness
Chadha, Ena. (2010) "Human Rights Disclosure Litigation: Uncovering Invisible Medical Records", 28:1 Windsor Yearbook of Access to Justice 153
Doorey, David. (2012) "On an Employer's 'Duty to Inquire' Into an Employee's Disability", Law of Work - Archives, Regulation of Employment (Human Rights, Employment Standards)
Elwick, John & Manjit Grewal. (2013) "Emerging Issues in Disability Management - Duty to Accommodate (Prepared for the 2013 Canadian Health and Wellness Innovation Conference)" Alexander Holburn Beaudin + Lang LLP - Publications
Esonwanne, Amandi. (2018) "Discrimination and the shifting shape of accommodation in Ontario 2000-2015" 48 The Advocates' Quarterly
Fedoruk, Daphne. (2016) "Duty to Inquire When Mental Health Issues Suspected", as Tab 1 of The Law Society of Upper Canada's Continuing Professional Development conference on June 16, 2016 titled The Duty to Accommodate in the Workplace
Fenson, Andrea. (2009) Epilepsy and the law: What are the legal rights of a person with epilepsy? (Epilepsy Ontario: Thornhill)
Foreman, Brent & Patricia Kennedy. (2011) "Mental Illness and Addiction: Workplace Challenges" as part of Hamilton Law Association's 8th Annual Emerging Issues in Employment Law Seminar
Gallagher Healy, Jodi. (2015) "The HRTO and the Duty to Accommodate: How Far Does an Employer Have to Go?", Hicks Morley - Insights - Case In Point
Government of Canada. (2011) "Duty to Accommodate: A General Process For Managers" - Diversity and Inclusion in the Public Service
Gregory, Anne. (2016) "Accommodating Workplace Stress, Mental Disability, and Other Invisible Disabilities", as Tab 6A of The Law Society of Upper Canada's Continuing Professional Development conference on December 8, 2016 titled 5th Annual Human Rights Summit
Harmgardt, Julie. (2017) "Survival of the Fittest: The Failure to Accommodate and Compensate in the Canadian Armed Forces" 20:2 Canadian Labour & Employment Law Journal 379
Harris, David & Kenneth Alexander. (2017) The Law on Disability Issues in the Workplace (Edmond Publishing)
Hirschberg, Marianne & Christian Papadopoulos. (2016) "'Reasonable Accommodation' and 'Accessibility': Human Rights Instruments Relating to Inclusion and Exclusion in the Labor Market" 6:3 Societies 1
Hudson, Deborah. (2016) "Invisible Barriers: Accommodating Mental Illness in the Workplace", Industrial Relations Centre (Queen's University)
Irving, Nathan. (2009) "An Overview of the Duty to Accommodate and Undue Hardship in Human Rights" Council of Canadians with Disabilities
Jenson, Karen A & John Mastoras. (2013) "Mental Health and the Workplace: Important Issues for HR Professionals to Consider" Norton Rose LLP for the Canadian Industrial Relations Association (CIRA)
Knight, Jamie. (2014) Accommodation Issues in the Workplace; on behalf of Filion Wakely Thorup Angeletti LLP (Wolters Kluwer)
Knight, Jamie. (2016) "The Doctor's Role in the Accommodation Process - Employer's Right to Medical and Other Evidence", as Tab 4 of The Law Society of Upper Canada's Continuing Professional Development conference on June 16, 2016 titled The Duty to Accommodate in the Workplace
Koldorf, Inna. (2017) "A Doctor's Note a Day Keeps Employers at Bay", as Tab 13 of The Law Society of Upper Canada's Continuing Professional Development program June 20, 2017 titled The Six Minute Employment Lawyer 2017
Léger, Nathalie & Amy Nguyen. (2018) "The Duty to Accommodate: Does the Origin of the Disability Matter?" Ontario Bar Association - Sections - Constitutional, Civil Liberties and Human Rights Law
Letheren, Laurie & Natalie MacDonnell. (2014) "Open Court and Confidentiality: Can There Be a Balance in Light of our New Media Age?" Ontario Bar Association (OBA) - Human Rights Annual Update
Lynk, Michael. (2008) "Disability and the Implementation of the Accommodation Duty in the Canadian Workplace by Labour Arbitrators" as an updated version of his article published in R. Echlin & C. Paliare (eds), Law Society of Upper Canada Special Lectures 2007: Employment Law (Irwin Law)
Lynk, Michael. (2008) "The Duty to Accommodate in the Canadian Workplace: Leading Principles and Recent Cases" Ontario Federation of Labour
MacDonnell, Natalie. (2016) "Disability Disclosure in the Digital Age: Why the Human Rights Tribunal of Ontario Should Reform Its Approach to Anonymized Decisions" 25 Journal of L and Social Policy 109
Meyer, Lisa. (2016) "Disclosure of Disability Post Termination Won't Negate Dismissal for Cause" Hicks Morley
Mosoff, Judith. (2009) "Lost in Translation: The Disability Perspective in Honda v Keays and Hydro-Quebec v Syndicate" 3:1 McGill Journal of Law & Health 137
Ontario Human Rights Commission (2008) Human Rights at Work 2008 - Third Edition
Ontario Human Rights Commission (2009) Policy on employment related medical information
Pearce, Clarissa. (2008) "Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs", 46:1 Alberta L Rev 141
Pothier, Dianne. (2009) "How Did We Get Here - Setting the Standard for the Duty to Accommodate" 59 University of New Brunswick Law Journal 95
Prince, Michael. (2017) "Persons with Invisible Disabilities and Workplace Accommodation: Findings From a Scoping Literature Review" 46:1 Journal of Vocational Rehabilitation 75
Rosenberg, Aaron & Barbara Green. (2016) "Shared Responsibility - The Accommodation Process and Disclosure of Personal and Medical Information", as part of the Workplace Rights & Accommodations Forum 2016 on behalf of Robins Appleby LLP
Rudner, Stuart. (2017) "Medical Documentation and Disability-Related Accommodation Requests" Canadian Human Rights Reporter
Rudner, Stuart. (2014) "Accommodation: Employee Duty to Disclose - Review of Cases Shows Principles, Results Not Always Consistent" Canadian Human Rights Reporter
Shilton, Elizabeth. (2014) "Everybody's Business: Human Rights Enforcement and the Union's Duty to Accommodate", 18 Canadian Lab & Emp L J 209
Tarantino, Robert. (2017) "Frustration of Contract in Employment Due to Employee Disability or Illness", as Tab 2 of The Law Society of Upper Canada's Continuing Professional Development program June 20, 2017 titled The Six Minute Employment Lawyer 2017
Waggott, George & Paul Boshyk. (2012) "Employees are required to disclose confidential medical information for accommodation purposes" McMillan LLP - Employment and Labour Bulletin
Wolch, Shana, Justine Lindner, Dan Demers & Ben Rathelbrand. (2018) "Keep Calm and … Understanding Cannabis: What Employers in the Energy Sector Want to Know About Legalized Cannabis in the Workplace" 56:2 Alberta Law Rev 337
Zabrovsky, Andrew N. 2019 "Addiction in the Workplace - the Nature and Extent of the Duty to Accommodate" prepared for the May 2019 Ontario Bar Association Annual Update on Human Rights, on behalf of Hicks Morley
Zaman, Nadia & Stuart Rudner. (2019) "Getting Frustration of Contract Right - What Happens if a Worker Fails to Provide Medical Documentation to Support Their Ability to Work" Canadian Human Rights Reporter