Disability Law Primer (PDF) - ARCH Disability Law Centre

II. PARTICULAR LAWS AND LEGAL CONCEPTS RELATING TO DISABILITY

A. The Duty to Accommodate Disability

The widespread inaccessibility of physical, social, economic, and legal systems and the
failure of these systems to accommodate people with disabilities to ensure their full
participation in society constitute a form of systemic discrimination. For people with
disabilities “...the right to be free from discrimination is associated with a right to be
accommodated short of undue hardship.”^34 Facilitating the ability of people with
disabilities to do things differently than others is called accommodation.^35

The duty to accommodate is a central concept in human rights jurisprudence.
“’Accommodation’ refers to what is required in the circumstances to avoid
discrimination.”^36 The Supreme Court of Canada in Council of Canadians with
Disabilities v. VIA Rail Canada Inc.^37 elaborated on the duty to accommodate people with
disabilities as follows:

The concept of reasonable accommodation recognizes the right of persons with

disabilities to the same access as those without disabilities, and imposes a duty on

others to do whatever is reasonably possible to accommodate this right. The

discriminatory barrier must be removed unless there is a bona fide justification for

its retention, which is proven by establishing that accommodation imposes undue

hardship on the service provider.^38

The principles underlying the duty to accommodate include: respect for dignity,
individualized accommodation and integration and full participation.^39

The requirement for individualized accommodation has been articulated by the Supreme
Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia

34 Bill Holder, “Accommodation of Disability in Ontario” (July 2004) at 4, online: ARCH Disability Law
Centre http://www.archdisabilitylaw.ca/sites/all/files/02_accommodation%281%29.pdf.
35 Ibid.at 1.
36 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),
[1999] 3 S.C.R. 868 at para 22. [Grismer]
37 [2007] 1 S.C.R. 650.
38 Ibid, at para 121.
39 Guidelines on Disability, supra note 5 at 12 to 14. Relevant cases include: Grismer supra note 36 at
para. 22; British Columbia (Public Service Employee Relations Commission) v. British Columbia
Government and Service Employee’s Union, [1999] 3 S.C.R. 3 at para. 54 [Meiorin].