What Does Undue Hardship Mean?

The Ontario Human Rights Code provides that an employer has a duty to accommodate a disabled employee to the point of undue hardship. An employer’s failure to comply with this duty constitutes discrimination on the basis of disability and can trigger a variety of different remedies, including reinstatement of employment.

A recent decision of the Court of Appeal, Hamilton-Wentworth District School Board v. Fair, provides a good illustration of the circumstances in which reinstatement can be ordered by the court in the face of a finding of discrimination by an employer.

In this decision, the complainant, Ms. Fair, suffered from generalized anxiety disorder, depression and post-traumatic stress disorder. In October 2001, she started an approved leave of absence from her position as a Supervisor with the respondent school board.

In April 2003, Ms. Fair started taking steps to return to work by contacting her employer about possible accommodations and participating in a work-hardening program. In May 2004, a psychiatrist engaged by the school board examined Ms. Fair and concluded that she was able to work in a position that did not involve responsibility for health and safety issues, a stressor that contributed to Ms. Fair’s mental illness.

Despite this finding, the school board terminated Ms. Fair’s employment on July 8, 2004 and offered her a severance package. Thereafter, Ms. Fair filed a human rights complaint, citing discrimination on the basis of disability.

In February 2012, the Ontario Human Rights Tribunal decided in favour of Ms. Fair and concluded that the school board discriminated against her by failing to accommodate her in April 2003. As a remedy, the Tribunal ordered, among other things, the reinstatement of Ms. Fair’s employment. The school board later appealed the decision.

In September 2014, the Divisional Court dismissed the school board’s appeal, upholding the Tribunal’s finding that the school board failed to accommodate Ms. Fair to the point of undue hardship, as well as the remedy granted. The school board then appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal.

In reviewing the school board’s accommodation efforts, the court noted that “the assessment of a person’s disability-related needs and the appropriate accommodation to be made is a highly individualized process.” Following guidance from the Supreme Court of Canada, the court cited a list of factors that may be considered in assessing undue hardship in accommodation, including financial cost, disruption of a collective agreement, problems of morale of other employees and interchangeability of workforce and facilities. The court also noted that this list is not exhaustive.

The court agreed with the school board’s submission that accommodation need not be perfect and that the Tribunal may not engage in speculation about available positions simply because the accommodation process followed was not successful. However, the court concluded that it would have been reasonable for the school board to consider altering Ms. Fair’s previous position, but the school board failed to do so.

With regard to the remedy of reinstatement, the court rejected the school board’s submission that this remedy was unreasonable and disproportionate after a 14 year absence. The court held that “the passage of years is not, by itself, determinative of whether reinstatement is and appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent… Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.”

The takeaway for employees is that it is important to be engaged in the return-to-work process. It is not enough simply to expect that the employer will contact the employee when the time is right.

The takeaway for employers is that accommodation is a complex process and serious consideration must be given to a wide variety of means by which a disabled employee may be accommodated.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

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