Disability Law Primer (PDF) - ARCH Disability Law Centre

employer has only to demonstrate that it was impossible to accommodate an employee
short of undue hardship, not that it was impossible to accommodate the employee at all:

The employer does not have a duty to change working conditions in a

fundamental way, but does have a duty, if it can do so without undue

hardship, to arrange the employee's workplace or duties to enable the

employee to do his or her work....If the characteristics of an illness are

such that the proper operation of the business is hampered excessively or

if an employee with such an illness remains unable to work for the

reasonably foreseeable future even though the employer has tried to

accommodate him or her, the employer will have satisfied the test.^150

The BFOR test is most often applied in the context of employment cases^151 ; however it
may be applied to cases alleging discrimination in the receipt of services or other social
grounds.

4. Alleged Discrimination is Immune from Code Liability

Section 14 of the Code provides:

A right under Part I is not infringed by the implementation of a

special program designed to relieve hardship or economic

disadvantage or to assist disadvantaged persons or groups to

achieve or attempt to achieve equal opportunity or that is likely to

contribute to the elimination of the infringement of rights under Part

I.^152

Section 14, also known as the “special programs defence”, recognizes that special
programs designed to ameliorate the barriers faced by people with disabilities or other
disadvantaged groups are an important way to proactively address individual and
systemic discrimination.^153 In Ontario Human Rights Commission v. Ontario (Roberts),

(^150) Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-
Québec, section locale 2000 (SCFP 151 -FTQ), 2008 SCC 43 at paras. 16 and 18.
152 There is a body of labour arbitration jurisprudence on this point.^
153 Code, supra note 4 at s. 14(2).^
For a critical analysis of the application of the special programs and ameliorative programs defence,
see Tess Sheldon, The Shield Becomes the Sword: The Expansion of the Ameliorative Program Defence
to Programs that Support Persons with Disabilities, July 29, 2010 available online: ARCH Disability Law
Centre http://www.archdisabilitylaw.ca/?q=shield-becomes-sword-expansion-ameliorative-program-
defence-programs-support-persons-disabilities.