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No procedural duty to accommodate

The Federal Court of Appeal recently ruled in Canada Human Rights Commission v Attorney General of Canada and Bronwyn Cruden (“Canada (Attorney General”), that employers do not have a separate procedural duty to accommodate employees and any procedural inadequacy throughout the accommodation process is not critical where the employer’s actions do not constitute discrimination.

In addition, where the employer has been able to establish that accommodating the employee would create undue hardship, any procedural deficiencies are irrelevant. Nevertheless, where discrimination has been established, an employer’s failure to adhere to the correct procedural approach could and will likely expose the employer to an increased monetary penalty.

Prior to this case, the majority of tribunals and arbitration boards accepted the Supreme Court of Canada’s 2009 decision in Meiorin which established that the duty to accommodate had both a substantive and procedural component, and that any failure to meet the procedural component amounted to discrimination.

In Meiorin, the Court stated

Notwithstanding the overlap between the two inquiries, it may often be useful…to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content…”

Yet in Canada (Attorney General), the Appeal Court upheld the lower Court’s decision and concluded that despite procedural inadequacies, the employee’s complaint should have been dismissed upon the finding of undue hardship. The Court stated,

[We] agree… that the Supreme Court of Canada was not intending to create a separate procedural right to accommodate. There is…one question for the purposes…of the test: has the employer “demonstrated that it is impossible to accommodate individual employee’s sharing the characteristics of the complainant without imposing undue hardship on the employer”?

There is no contravention of the Ontario Human Rights Code simply because there was a failure to investigate a complaint of discrimination where there was in fact no finding of discrimination.

Despite this ruling, procedural considerations do remain important. The Human Rights Tribunal of Ontario concluded in Scaduto v. Insurance Search Bureau that “employers are well-advised to investigate human rights complaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations can provide employers with the opportunity to remedy discrimination… they can also limit employers’ exposure to greater individual and systemic remedies… but if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the Code.”

By Marty Rabinovitch and Michelle Farb (Student-at-Law)

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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