disability. The employer may be considered to have received constructive notice of the
need for accommodation, and will be under a duty to inquire as to the whether there is a
need for disability accommodation.^90 91
With respect to the substantive duty to accommodate, the Commission has stated that,
“(t)he essence of accommodation is individualization.^92 In McGill, the Supreme Court of
Canada confirmed the need to take an individualized approach to the accommodation of
persons with disabilities.^93 There are a “virtually infinite variety” of disability related
needs.^94 Employers, service providers, landlords and others must tailor
accommodations to a person’s particular needs and abilities. Indeed, Day and Brodsky
have argued that complainants with disabilities have an increased claim for
individualization.^95
Another principle is that appropriate accommodation must be provided. An appropriate
accommodation is one that is most consistent with the dignity of the person being
accommodated, meets the person’s individual needs, best promotes interaction and full
participation, and ensures confidentiality. The Commission has described the concept
as:
(^90) Accommodation of disability in Ontario, supra note 17 at 23. Holder wrote that “...[w]hen an employer
terminates an employee with an apparent but undisclosed mental health disability due to unusual
behaviours exhibited by the employee, the employer runs the risk of having constructive knowledge of the
employee’s mental health disabilities imputed to it”. 91
Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 43 C.H.R.R.D/55
(British Columbia Human R 92 ights Tribunal).
93 Policy and guidelines on disability and the duty to accommodate, supra note 12 at 13.^
McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’Hopital
general de Montreal, 2007 SCC 4 (CanLII). At para. 22 the Court stated, “The importance of the
individualized nature of the accommodation process cannot be minimized. The scope of the duty to
accommodate varies according to the characteristics of each enterprise, the specific needs of each
employee and the specific circumstances in which the decision is to be made.“ See also Nova Scotia
(Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003]
2 S.C.R. 504 at para. 81. The Court set out that “[t]he question, in each case, will not be whether the
state has excluded all disabled persons or failed to their needs in some general sense, but rather whether
it has been sufficiently responsive to the needs and circumstances of each person with a disability.” 94
Ibid. In Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation
Board) v. Laseur the Court continued at para. 81, “[d]ue sensitivity to these differences is the key to
achieving substantive equality for persons with disabilities.” 95
Shelagh Day & Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Can Bar Rev
33 at 462. The authors stated: “Because of the wide range of abilities...and the particularity of (dis)ability,
individual accommodation, such as customizing a work site to suit the capacities of a person with a
particular manifestation of a particular (dis)ability, is vital to the equality project.”