Accommodation

Accommodation is the cornerstone of the human rights regime. Its purpose is to “ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”. ¹

The objective is “to remove barriers of arbitrariness or stereotypical assumptions or attitudes about disability and to replace them with the mindset of inclusion”. ²

The breach of the duty to accommodate has led to the most significant awards of lost income allowed by human rights tribunals. The remedies for the failure to accommodate are nothing short of gargantuan.

This issue does not present as one of stark alternatives. The decision of accommodation is an exercise of prudent judgement. As noted by the Ontario Court of Appeal, it is a highly individualized process.³ Based on the issues at stake, it is wise to be cautiously generous as to the assessment of what steps should be taken to accommodate. An error in the scale of what accommodation should be extended, apart from the social and human issues, will expose the decision maker to substantive financial and other liabilities.

For example, an Alberta case based on gender allowed for an award of $620,000. ⁴ An Ontario case ⁵ set the lost income sum as 8.5 years back pay of $420,000 plus reinstatement due to the employer’s failure to accommodate the applicant’s disability by allowing for a return to work following her disability. The time clock for the lost income claim continued to tick pending the appeal made by the employer. ⁶

In the case of the ski patroller against Sunshine Village, the employer asserted that the female applicant was unable to meet the physical requirements. She was not allowed to be tested against the alleged standards. The employer did not even attempt to offer accommodation. ⁷ The defence failed.

This issue is considered in detail in the Employment Law Human Rights Remedies review and as relevant to the subject of frustration due to a medical disability here.