Top court limits duty to accommodate

Ruling in case involving disabled Hydro-Quebec employee touted as a win for employers

Stuart Rudner
Employers just got some good news from the country’s top court when it comes to the duty to accommodate disability: The Supreme Court of Canada has allowed an appeal by Hydro-Québec and found the company had shown that it would have been impossible to accommodate an employee any further without undue hardship.

In Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), the unionized employee of Hydro-Québec had a number of physical and mental problems which led to severe absenteeism. Over a period of about seven-and-a-half years, she missed 960 days of work. Hydro-Québec made efforts to accommodate her disability by adjusting her working conditions in order to reflect her limitations. However, prior to her dismissal on July 19, 2001, the worker had been off work since February of that year. Her doctor had recommended she stop working for an indefinite period.

Upon termination, the worker filed a grievance which was dismissed by the arbitrator on the basis that, at the time of dismissal, the complainant was unable to work steadily and regularly for the reasonably foreseeable future. Furthermore, according to the arbitrator, the conditions required for a return to work would have constituted an undue hardship. A motion for judicial review was dismissed by the Superior Court, but Quebec’s Court of Appeal set that judgment aside and found Hydro-Québec had not established that it was impossible to accommodate the disability.

The Meiorin test

In it ruling, the Supreme Court noted the duty to accommodate is a source of frustration for many: "Despite the large number of decisions concerning the rules developed in Meiorin, the concept of undue hardship seems to present difficulties."

The approach established in Meiorin can be summarized as follows:

An employer may justify an impugned standard by establishing on the balance of probabilities:

• the employer adopted the standard for a purpose rationally connected to the performance of the job;

• the employer adopted the particular standard in an honest and good faith belief it was necessary to the fulfilment of that legitimate work related purpose; and

• the standard is reasonably necessary to the accomplishment of that legitimate work related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Undue hardship, not impossibility

The Supreme Court found the Court of Appeal had placed too much emphasis on the word "impossible" in the third part of the test. According to the court, the test to be applied is not one of impossibility, but of undue hardship.

The court confirmed that "the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing an employer undue hardship, will ensure that the employee can work."

The balancing that is necessary requires "that the employer must be flexible in applying its standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship."

The Supreme Court noted that in situations where the employer can, without a new hardship, provide a variable work schedule, or lighter duties, or even arrange for staff transfers in order to allow the employee to do her work, it must do so as part of the accommodation process.

That said, the Supreme Court was clear that the duty to accommodate does not require an employer to "completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration."

Employers don’t have to fundamentally change working conditions

The court confirmed that employers do not have to change working conditions in a fundamental way. According to the court: “In a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof than established undue hardship.”

The court went on to clarify that "the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test."

In such circumstances, the court agreed with the notion that "it is less the employee's handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship."

The court noted that undue hardship “can take as many forms as there are circumstances." However, they did reference some issues, such as the financial cost of the proposed method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees, as potentially relevant factors in the assessment.

No black and white rules

As most employers will know by now, there are no black-and-white rules with respect to what constitutes undue hardship. Much will depend upon the nature of the organization itself. Anyone hoping for more specific guidelines may well be disappointed by this most recent decision, in which the Supreme Court confirmed that "because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided."

That said, this decision confirms that the duty to accommodate has limits, and that those limits arise before one enters into the realm of impossibility. When the employer can show that potential accommodation would cause it to suffer undue hardship, it will not be required to provide such accommodation.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].

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