1. The Duty to Accommodate
Anya Kater
Ontario Human Rights
Commission

2. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Accommodation
Principles
• Respect for dignity
• Treat people as individuals
• Right to integration and full
participation

3. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Achieving Integration
• Inclusive design
• Barrier removal
• Accommodate remaining needs

4. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Examples
• Granting deferral of a hearing date
because of an applicant’s mental
health-related symptoms
• Appointing amicus curiae for someone
with capacity issues who is
unrepresented during a hearing
• Providing flexible deadlines for
application forms for someone with a
learning disability
• Ensuring quiet hearing surroundings
for someone with PTSD

5. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Bona Fide Requirements
(s. 11)
Standard, rule, requirement or
factor:
• Purpose rationally connected to
function?
• Adopted in good faith?
• Reasonably necessary in the sense
that it is impossible to
accommodate without undue
hardship?

6. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Appropriate
Accommodation
• Separate from undue hardship
analysis
• Continuum
• Promotes three principles
• Equal opportunity to attain same level
of performance or enjoy same level of
benefits and privileges
• Proposed or adopted for purpose of
achieving equal opportunity

7. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Accommodation
Seeker
• Inform the accommodation
provider of their needs
• Co-operate in obtaining
necessary information
• Participate in discussions about
solutions
• Work with the other parties on an
ongoing basis to manage the
process

8. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Accommodation
Provider
• Accept accommodation requests in
good faith
• Request only information required
to make accommodation
• Obtain expert advice where
necessary
• Bear the cost of any required
medical information or
documentation

9. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Accommodation
Provider
• Maintain confidentiality of
persons seeking accommodation
• Take an active role in ensuring
possible solutions are examined
• Deal with accommodation
requests in a timely way

10. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Limits of
Accommodation
• Accommodation need not be
provided if it causes “undue
hardship”
• Standard for undue hardship is a
high one
• Onus of proof is on the
accommodation provider

11. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Limits of
Accommodation
FACTORS CONSIDERED
• Costs
• Outside sources of funding
• Health and Safety

12. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Limits of
Accommodation
FACTORS NOT CONSIDERED
• Collective agreements
• Business inconvenience
• Resentment or hostility from
co-workers
• Customer “preferences”

13. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Costs
• Quantifiable
• Related to the accommodation
• Look at whole organization, not
just branch/unit
• Altering the essential nature or
affecting viability of business

14. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Health and Safety
• Requirements bona fide and reasonable
• Look at alternate means of
accommodation to avoid risk
• Risk assessed after precautions have been
taken to reduce it
• Assess nature/severity/probability/scope
of risk
• Does risk remaining after accommodation
outweigh benefits of enhancing equality?

15. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Elements of accommodation
policy and procedure
• Statement of commitment
• Objectives of policy and
procedure
• Application – who is covered
• How to request accommodation
• Privacy and confidentiality

16. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Elements of accommodation
policy and procedure
• Undue hardship
• Efforts to do barrier removal &
inclusive design
• Examples of appropriate
accommodations
• Training

17. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Example
During the first hearing day, it becomes evident
that the respondent has trouble with memory
and presenting evidence over long periods of
time. Sometimes she appears to have difficulty
keeping on track when responding to questions.
The complainant’s counsel suggests that
because of this, the respondent’s evidence is
not credible.

18. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Example continued
After the first hearing date, the respondent
advises that due to an anxiety disorder and
depression, she cannot be present in the same
room with other parties and key witnesses
without exacerbating her symptoms, to the
point where she will no longer be able to
participate in the process. She also indicates
that she cannot participate in any event that
lasts for more than two hours or is scheduled
for two or more consecutive days.

19. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Example continued
The respondent wants to be involved in
the hearing process and present her
evidence in person, taking these needs
into account.
The complainant’s lawyer raises
objections to this request, indicating
that this would be an abuse of the Tribunal’s
process, especially given that the respondent
did not make this request before the hearing
started.

20. SOAR
June 1, 2011
April 4, 2012
Environment and Land
Tribunals Ontario
Questions
• What human rights issues does
this scenario raise?
• What are the factors to consider
when responding to the
respondent’s request?