whether the accommodation is appropriate and whether it would result in undue
hardship to the person responsible for providing it.
In Adga Group Consultants Inc. v. Lane, the Divisional Court described the procedural
and substantive components of the duty to accommodate as follows:
The procedural duty to accommodate involves obtaining all relevant
information about the employee’s disability, at least where it is readily
available. It could include information about the employee’s current
medical condition, prognosis for recovery, ability to perform job duties, and
capabilities for alternate work. The term undue hardship requires
respondents in human rights cases to seriously consider how
complainants could be accommodated. A failure to give any thought or
consideration to the issue of accommodation, including what, if any, steps
could be taken constitutes a failure to satisfy the “procedural” duty to
accommodate.
...
The substantive duty to accommodate requires the employer to show that
it could not have accommodated the employee’s disability short of undue
hardship. “Accommodation” refers to what is required in the
circumstances to avoid discrimination. The factors causing “undue
hardship” will depend on the particular circumstances of the every case.
For example, undue hardship could arise due to excessive cost or safety
concerns.^80In Machado, the Tribunal found that:
To fulfill the procedural obligations of the duty to accommodate an
employer must take active steps to inquire into the duty to accommodate,
including how duties could be altered to accommodate the employee’s
needs or what alternative positions might be available that would meet the
employee’s needs.^81In order to meet their procedural duty to accommodate, respondents must be able to
demonstrate that they inquired into the applicant’s need for accommodation and
considered whether the accommodation requested could be provided.
(^80) Ibid.,at paras. 106, 112, and 117.
(^81) Machado v. Terrace Ford Lincoln Sales, 2011 HRTO 544 (CanLII) at para. 32.