Accommodation is the bedrock 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.

The issue does not present itself as one of stark alternatives. The decision of accommodation is often an exercise of prudent judgement. Based on the issues at stake, it is evidentially 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.

An Alberta case based on gender allowed for an award of $620,000. ³An Ontario case ⁴ 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 in the course of the unsuccessful Divisional Court review and subsequent appeal.⁵

An award of a potential 10 year income loss was made in 2001 by the Canadian Human Rights Tribunal due to discrimination on account of gender. ⁶

A similar lost income claim of 10 years in addition to a prospective income loss of an additional 5 years totaling $280,000 due a perceived disability was granted by a the  federal human rights tribunal.⁷

The B.C. Tribunal awarded 6 years lost income to a medical doctor who had been delayed entry into a specialist program due to a mental disability. The lost income award amounted to $385,000. ⁸

The obligation of accommodation is not limited to disability issues. It applies to all protected human rights. ⁹ It does arise frequently with respect to disability cases which often is the subject matter of the leading cases on this topic. A vivid example is the 2020 case of the ski patroller who was denied continued employment due to an alleged physical inability to perform the job. The employer failed to even allow the applicant to be tested to determine her physical capacity. There was no need to "test the test", as there was a complete failure to accommodate. The applicant was allowed compensatory damages of $25,000 and a lost income claim of  $54,472. ¹⁰