- Accommodation Would Have Resulted in Undue Hardship
Another justification open to respondents is to establish that it was not possible to have
accommodated the applicant’s disability without incurring undue hardship. Given that it
is a defence to the violation of a fundamental human right, the undue hardship standard
has been interpreted narrowly.^136 In Renaud, the Supreme Court held that the term
"undue" signifies that some hardship is acceptable and that more than a "mere
negligible effort" is required to satisfy the duty to accommodate.^137 In Via Rail the
Supreme Court stated that, “(t)he point of undue hardship is reached when reasonable
means of accommodation are exhausted and only unreasonable or impracticable
options for accommodation remain.”^138
The Code prescribes only three considerations in assessing whether an
accommodation would cause undue hardship: cost, outside sources of funding, and
health and/or safety risks.^139 Business inconvenience, resentment from other co-
workers and customer preferences must be excluded from consideration of what
constitutes undue hardship.^140 In Bernard v. Waycobah Board of Education, the
complainant was a receptionist at a school. She alleged that her employment was
terminated because of behaviour associated with her mental health issues. The Board
of Education argued that parents threatened to withdraw students from the school if the
complainant was not dismissed. The Canadian Human Rights Tribunal found that the
Board of Education could not justify its own conduct by blaming the parents’ threats,
which were based on discriminatory grounds. The Tribunal cited Beatrice Vizkelety as
follows:
(^136) Kevin MacNeill, in The Duty to Accommodate in Employment (Aurora: Canada Law Book, 2004) at 11-
3 states that “(o)verall, the balance of case law characterizes undue hardship as an onerous standard. 137
Renaud, supra note 84 at para. 19; in Council of Canadians with Disabilities v. VIA Rail Canada Inc.,
2007 SCC 15, [2007] 1 SCR 650, at para 122,the Supreme Court stated that undue hardship implies that
there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship
imposes 138 an undue or unreasonable burden, it yields to the need to accommodate.
139 Ibid., at para 130; see also: Moore, supra note 62 at para 49.^
140 Code, supra^ note 4 at s. 11.2.^
Policy and guidelines on disability and the duty to accommodate, supra note 12 at 22-24.