B. Justification of Discrimination- Respondent Provided Appropriate Accommodation
Where the applicant makes out a prima facie case of discrimination, the
respondent may avoid liability by establishing that it provided accommodation
appropriate for the applicant’s disability. For example, in K.M. v. North Simcoe
Muskoka Community Care Access Centre, the applicant, a person with autism,
complained that the CCAC’s assessment of her disability and need for speech therapy
services was discriminatory because the person conducting the assessment was not
sufficiently knowledgeable about autism, insufficient time was spent, and the
assessment was not autism-specific. The Tribunal found that the respondent had
assessed the applicant in a non-discriminatory manner by modifying the screening
process to meet the applicant’s needs. Specifically, the assessor modified the
screening process by restating particular words, using physical objects to help with
identification, and spending more time than usual.^132
Respondents may also avoid liability by demonstrating that the person with a disability
could not have fulfilled the essential duties or requirements of the job, service or other
social ground, even with appropriate accommodation.^133 The issue of essential duties
most often arises in cases alleging discrimination on the basis of disability in
employment.^134 However, more recently the concept has been applied to cases
alleging discrimination in education services. For example, universities and colleges
have argued that students entering specialized, professional or academically
challenging programs must be able to complete courses at a certain set pace or
demonstrate their knowledge in a certain set format. It has been argued that these
requirements are essential, and therefore it is not discriminatory to refuse admission to
students who cannot meet them, even with accommodation.^135
(^132) K. M. v. North Simcoe Muskoka Community Care Access Centre, 2011 HRTO 695 (CanLII).
(^133) Code, supra note 4 atss. 17(1) and (2).
(^134) There is a body of human rights and labour arbitration jurisprudence regarding what constitutes an
essential duty in the context of human rights and employment. The Ontario Human Rights Commission’s
Policy and guidelines on discrimination and the duty to accommodate 135 discusses essential duties at 15-16.
At the time of writing, there were several decisions pending on this point.