It happens that respondents will try to justify unequal treatment by blaming
“others” for their actions, but, where they do, the discrimination is no less
real and apparent. Moreover, the objections of these “others” – assuming
they are real – may themselves be founded upon prejudice or
stereotypes.^141The Ontario Human Rights Commission has described a cost as "undue" if it is so high
that it impacts the survival of the business or changes its essential nature. If the
accommodation requires the business to fundamentally change what it does, that may
also be considered "undue.”^142 Clearly, different businesses have different financial
circumstances: what may be an "undue cost" for a small business may not be undue for
a larger one. With respect to costs, the Supreme Court has stated that, “...one must be
wary of putting too low a value on accommodating the disabled. It is all too easy to cite
increased cost as a reason for refusing to accord the disabled equal treatment.”^143
Respondents seeking to rely on undue costs as a justification for discrimination must
present objective evidence of actual costs associated with providing the accommodation
as well as evidence that such costs would be undue.^144 Objective evidence of costs
may include financial statements and budgets, data from empirical studies, expert
opinion, or detailed information about the activity and the requested accommodation.
Any funding sources available to the respondent to offset costs of accommodation, such
as government programs or community grants, must be taken into account when
determining the actual cost of an accommodation.
Respondents may also rely on health and safety considerations to support an undue
hardship argument. Respondents have an onus of proving that their health and safety
(^141) 1999 (CanLII) 1914 (CHRT).
(^142) Ontario Human Rights Commission, “Fact Sheet: How Far does the Duty to Accommodate Go?”
online: Ontario Human Rights Commission,http://www.ohrc.on.ca/en/resources/factsheets/disability4.
The Ontario Human Rights set out, “(s)uch costs must be quantifiable and can include costs such as
capital and operating costs and the cost of re-structuring. Human rights law recognizes that different
businesses have different financial circumstances. What may be an "undue cost" for a small business,
may not be undue for a larger one.” 143
144 Grismer, supra note 75 at para 41.^
See, for example, the Tribunal’s detailed analysis of costs in Williams v. Town of Iroquois Falls, 2012
HRTO 1483 (CanLII).