Proving undue hardship not impossible (Legal view)

Acting in haste hurts employers’ chances of showing hardship
By Catherine Milne
|Canadian HR Reporter|Last Updated: 01/21/2009

There were three important court decisions last year that examined the notion of “undue hardship” in accommodating employee disabilities and return to work following an extended disability-related absence. Two of the decisions from the Supreme Court of Canada — Syndicat des employé-e-s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil and Keays v. Honda Canada Inc. —exonerated employers. In the third, ADGA Group Consultants Inc. v. Lane, the Ontario Divisional Court reprimanded the employer for a hasty and incomplete assessment of its ability to accommodate.

For years, employers had been counselled about the three-step Meiorin accommodation test. It included a requirement for proof that it was impossible to accommodate a worker without suffering undue hardship. As tribunals and courts stringently applied the Meiorin principle, it became difficult for employers to meet the test for undue hardship.

But in 2008, the Supreme Court of Canada seized upon the opportunity to redefine and narrow the concept of “impossibility” and clarify the scope of the employer’s obligation. In Hydro-Québec, the Supreme Court found the employer had sufficiently met the standard of proving undue hardship after several adjustments to the employee’s working conditions based on her medical condition, including light duties and incremental returns to work. After doctors said the employee was unable to resume work in the foreseeable future, Hydro-Québec was justified in terminating her.