Journal

Otherwise known as
Michael’s soapbox

2018-04-30T11:38:00+00:00 May 1, 2018|Uncategorized|

Limits on the Duty to Accommodate

The Human Rights Tribunal of Ontario dismissed an application under the Human Rights Code in Danso v. Maximum Seafood, 2018 HRTO 486 (CanLII).  The case involved an allegation that the employer had breached its duty to accommodate the applicant to the point of undue hardship under the Code

The applicant alleges that after several weeks of doing regular duties his condition worsened. The applicant provided a medical report to the employer and in response the he was sent home. On October 14, 2015 the employer advised the applicant that it could not provide him with accommodation. 

The Tribunal stated the issue as follows:

The human rights issues arising from the pleadings appear to be whether or not the respondent provided the applicant with reasonable accommodations and whether in light of the applicant’s restrictions at the time the respondent was able to provide accommodation to the point of undue hardship.

Although the employee tried his position as a truck driver it became clear that he was struggling and that the work may well have aggravated his condition. 

The Tribunal noted that:  

It was common ground that the only way that the applicant could perform his work was if the respondent hired a helper to assist him with loading and unloading the truck. It was not controversial that an essential duty of his position was loading and unloading the truck.

***

The ultimate question is whether or not the respondent was required to hire another worker to assist the applicant in the performance of the essential duties of his work. The applicant provided me with no authority for this position and in my view the duty to accommodate does not require an employer to hire a helper for a worker who is unable to perform the essential duties of their work.

The Tribunal went on to discuss the limit on the duty to accommodate and the case of Pourasadi v. Bentley Leathers Inc., 2017 HRTO 1418 (CanLII):

As the Tribunal has held in many cases, the duty to accommodate may require arranging an employee’s workplace in a way that enables the employee to perform the essential duties of his or her work. However, it does not require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees. The duty to accommodate also does not require exempting employees from performing the essential duties of their position. See Brown v. Children’s Aid Society of Toronto, 2012 HRTO 1025 (CanLII) at para. 99; Briffa v. Costco Wholesale Canada Ltd., 2012 HRTO 1970 (CanLII) at para. 60; Yeats v. Commissionaires Great Lakes, 2010 HRTO 906 (CanLII) at paras. 58-59; and Perron v. Revera Long Term Care Inc., 2014 HRTO 766 (CanLII) at para. 16.  [Emphasis added]

In the circumstances, the Tribunal held that the employer was not required to hire a helper for an employee who was unable to perform the essential duties of his position. Having explored other options, it concluded that given the nature of the work, that it could not accommodate the employee short of undue hardship and he was sent home. 

The case is an excellent reminder of the limits of the duty to accommodate and a practical application of the Supreme Court of Canada’s decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561.