September 10, 2019

Decisions by arbitrators, courts, and tribunals on the duty to accommodate employees are legion – and their number increases every day – but familiarity with the foundational cases and key recent decisions can provide the solid legal foundation you need to address disability accommodation issues in the workplace. In this session, leading lawyers practising labour and human rights law will review the seminal cases in this area and provide in-depth analysis of important human rights principles. The final selection of recent cases to be discussed will take place a few weeks before the live audio session to ensure up-to-date coverage.

Defining disability and establishing discrimination: What must a claimant prove in order to establish discrimination on the basis of disability? What constitutes a “disability” for the purposes of human rights legislation? Is stress a recognized mental health disability giving rise to the duty to accommodate in law?

Foundational cases:

  • Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (CanLII)
  • Moore v. British Columbia (Education), 2012 SCC 61 (CanLII)

Roles of workplace parties in the accommodation process: What rights and obligations do employers, unions, and employees have in the accommodation process? Does the employer have a duty to make inquiries where it suspects that an employee might have a physical or mental condition that requires accommodation? What is the union’s role in the accommodation process?

Foundational case:

  • Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC)

Bona fide occupational requirements: What is the test for establishing that a workplace requirement is a bona fide occupational requirement or qualification that is, therefore, a defence to an allegation of discrimination? What has been the effect of this test on the concept of accommodation to the point of undue hardship for the employer? What type of evidence will be required to prove that a particular qualification is a bona fide occupational qualification?

Foundational case:

  • British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (“Meiorin“), 1999 CanLII 652 (SCC)

Undue hardship: In what circumstances will accommodation reach the point of undue hardship? What criteria should be considered in determining undue hardship? What role does concern for safety play in the undue hardship analysis when accommodating an employee with a mental illness? What safety concerns can be attributed to stigma and false stereotypes?

Foundational case:

  • Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (CanLII)

Disability-related misconduct: When is an employer obligated to inquire as to whether a disability played a role in an employee’s misconduct? How does an employee’s failure to disclose his or her disability affect the duty to accommodate? What medical evidence is needed to establish a causal link between misconduct and an employee’s disability?

Foundational case:

  • British Columbia v. British Columbia Government and Service Employees’ Union (“Gooding“), 2008 BCCA 357 (CanLII)