mother, it was insufficient to justify the discrimination experienced by the
student.^138
In Ontario, the Code specifically articulates three considerations when assessing
whether an accommodation would cause undue hardship to the service provider:
- cost; 2) outside sources of funding, if any; and 3) health and safety
requirements, if any.^139 The defence of undue hardship implies that hardship
must be endured in order to avoid discrimination. It is only when the hardship
reaches the point of becoming “undue” that the defence is made out.^140
- Cost and outside sources of funding
The onus on the accommodation provider is high to demonstrate that the cost of
accommodating would “alter the essential nature or substantially affect the
viability of the educational institution”.^141 The HRTO in M.O. v. Ottawa Catholic
District School Board, found a school board’s defence of undue hardship to be
insufficient in its analysis, and furthermore dismissed the concern of costs
associated with a possible precedent that such an accommodation may set if
provided.^142
- Health and Safety Concerns
As with cost, it is accepted that some risk can be tolerated until it is “undue”. This
element of the undue hardship defence is often raised in the context of a
student’s disability related behaviour as posing a safety risk to other students
and/or staff. The recent amendments to the Occupational Health and Safety Act,^
(^138) Ibid at paras 255 – 266.
(^139) Code, supra note 4, ss 11(2), 17(2), 24(2). See Chapter 3 on “Human Rights and Disability
Law” in this 140 Disability Law Primer for analysis on undue hardship.
141 Renaud^ v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 970 at 984.^
142 OHRC Guidelines, supra note 119 at 35-36.^
M.O. v. Ottawa Catholic District School Board, 2010 HRTO 1754 at 79 – 86.