Journal

Otherwise known as
Michael’s soapbox

2018-11-08T17:55:31+00:00 November 9, 2018|Publications|

There is no Freestanding Duty to Accommodate

This is worth repeating – there is no free-standing duty to accommodate under the Human Rights Code.  Before the duty to accommodate is triggered the applicant (complainant) must demonstrate a prima facie case of discrimination on a prohibited ground listed in the Code (e.g. disability, sex, creed etc…).  If the applicant can’t prove that he or she was discriminated against on a prohibited ground under the Code, the case will be dismissed. 

And that’s a misunderstood concept by many employers who jump to accommodation without first confirming that the employee is entitled to be accommodated because he or she has suffered some adverse treatment on a prohibited ground under the Code.  That is why employer’s are entitled to request information and engage the employee in a collaborative way in figuring out whether the employee falls within a class or category under the Code and has suffered some adverse treatment. 

Michael Gottheil the Executive Chair of the Human Rights Tribunal of Ontario discussed this in a “services” case (not an employment case) called J.S. v. Dufferin-Peel Catholic District School Board, 2018 HRTO 644 (CanLII).  Specifically, the application alleged that he was discriminated against on the basis of disability in the provision of educational services by the respondent school board.

This case had a long history and the Executive Chair took the unusual step, during cross-examination of a witness to consider (and ultimately dismiss) the request of the respondent for a summary hearing to determine whether the Application has a reasonable prospect of success and should continue or be dismissed.  Notwithstanding the dismissal of the request the Chair provided directions regarding the “first stage of the proceedings”. 

The Chair was clearly troubled by certain things and provided directions to get the case on the proper track.  Specifically, the Chair stated:

I have decided to make these directions because, as I mentioned above, the way this case has unfolded to date, and will likely continue, absent specific directions has led to the introduction of irrelevant evidence, a disproportionate use of resources, and unfairness to the respondent and interveners.

In providing directions to the parties about the manner in which the case was to proceed the Chair observed:

In order to move to the defence of accommodation, an applicant must first establish discrimination under the Code. There is no free-standing duty to accommodate. In some cases, there may be no dispute that an individual is being denied a service on the basis of a disability, and the question is whether it is possible to accommodate the disability, or what the appropriate accommodation should be to meet the needs of the individual. In this case the duty to accommodate only arises if the applicant establishes a denial of service on the basis of his disability.  We have not reached that point yet.

***

Therefore, the applicant must prove that the respondent’s denial of IBI/ABA in the classroom by individuals who are specially trained, has denied him meaningful access to public education. It is evidence related to that particular issue and question that is relevant at this stage. When and if I determine that the applicant has been denied meaningful access to education, then evidence about the respondent’s defence such as whether such therapy is an educational service, and whether it can accommodate the applicant by providing IBI/ABA in the classroom will all become relevant. Until that time, I direct that only evidence and argument related to the threshold issue is to be addressed. [Emphasis added]

With those directions, and a process laid out by the Chair, the case proceeded  (see JS v. Dufferin-Peel Catholic District School Board, 2018 HRTO 1284 (CanLII)).

Conclusion

To make out a prima facie case of discrimination, the applicant must only show that there is a “connection” between the protected ground under the Code and the adverse effect/treatment.  Notwithstanding that it is a fairly low threshold, it is important not to ignore it.  It is only where the employee can establish adverse treatment is shown on the basis of a prohibited ground that the onus shifts to the employer to raise a defence (for example, the employee could not be accommodated without undue hardship).