Monday, 9 February 2015

Federal Court of Appeal Upholds Decision That There is No Independent Procedural Duty to Accommodate

In a brief decision that will hopefully clarify the law, the Federal Court of Appeal has found that there is no independent procedural duty to accommodate an employee, despite previous findings to that effect.  In the Court's opinion, once an employer establishes that it cannot accommodate an employee without incurring undue hardship, it is unreasonable for an adjudicator to award remedies to a claimant on the basis that the accommodation process was flawed or inadequate.
In Canada (Human Rights Commission) v. Canada (Attorney General), the Court was considering an appeal from the Canadian Human Rights Commission (the "CHRC") of a decision by the Federal Court, which had overturned the Commission's decision in the case of Bronwyn Cruden.  Ms. Cruden had been seeking overseas experience, so that she could qualify for the position of Development Officer with the Canadian International Development Agency ("CIDA"), and was successful in obtaining two temporary assignments to Afghanistan.  Ms. Cruden has Type 1 Diabetes, but CIDA did not initially require medical clearance for assignments to Afghanistan. There were no issues during Ms. Cruden's first stint in Afghanistan, but during her second assignment she experienced a hypoglycemic episode and was sent back to Canada.  Shortly thereafter, Health Canada introduced its Afghanistan Guidelines, which required medical assessments prior to posting to Afghanistan, and which precluded anyone with a chronic medical condition from serving in Afghanistan.  Although Ms. Cruden was a satisfactory employee, she was not offered any further assignments in Afghanistan because of her medical condition.
Ms. Cruden filed a complaint against CIDA and Health Canada, alleging discrimination on the basis of disability.  In its decision, the Canadian Human Rights Tribunal found that neither Health Canada nor CIDA had complied with their procedural duty to accommodate the complainant, as they had not explored accommodative options short of a complete prohibition.  However, the Tribunal also found that in the circumstances, there was nothing that CIDA could have done to accommodate Ms. Cruden in an assignment to Afghanistan without incurring undue hardship.  Despite this finding, the Tribunal awarded Ms. Cruden certain remedies for the violation of the procedural duty to accommodate.
On judicial review, the CHRC did not challenge the finding that CIDA could not accommodate the complainant without undue hardship, but supported the Tribunal's decision on the existence of an independent procedural duty.  The Federal Court found that the Canadian Human Rights Act (the "CHRA"), interpreted correctly, did not provide for a separate procedural duty to accommodate.  Once a respondent employer established that a workplace rule was a bona fide occupational requirement, on the basis of the test in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union ("Meiorin"), [1999] 3 S.C.R. 3, it was unreasonable for an adjudicator to find a procedural breach and provide any kind of remedy.  The essence of the analysis to be conducted is to determine whether substantive accommodation was or was not possible without undue hardship.  The wording of the CHRA did not provide for a separate analysis of the process by which accommodation was sought. In the result, the Federal Court held that the Tribunal's decision could not stand.
On appeal, the Federal Court of Appeal upheld the decision of the Federal Court below. At paragraph 21, Justice Webb (writing for a unanimous Court) wrote:
I agree with the Federal Court Judge that the Supreme Court of Canada [in Meiorin] was not intending to create a separate procedural right to accommodate. There is simply one question for the purposes of the third step of the test: has the employer “demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”? Once the employer has established this, then it has satisfied the requirements of the third step. Assuming that the first two steps are also satisfied (which they were in this case), it is a bona fide occupational requirement and it is not a discriminatory practice.

The Court acknowledged that a separate procedural duty to accommodate had been recognized in other decisions of lower courts, such as that of the Ontario Divisional Court in ADGA Group Consultants Inc. v. Lane, but held that the court in that case "did not examine the statutory basis for this procedural duty but rather it appears to have assumed its existence as it commenced its analysis of the procedural duty to accommodate" (para. 23).  Given that this decision, and those of other human rights tribunals, upholding the existence of a procedural duty were not grounded in an interpretation of the underlying legislation, they did not constitute authority for the proposition that there was such a free-standing duty.  Given that there was no dispute that CIDA could not accommodate Ms. Cruden in a posting to Afghanistan without undue hardship, the Tribunal should have dismissed the complaint against both CIDA and Health Canada, and no remedies were available to the complainant.
This decision, if it is followed and applied under other provincial human rights legislation (such as the Ontario Human Rights Code), should bring much needed clarity to an area of law that has grown muddied over the years.  While employers still must ensure that they take all reasonable steps to assess the availability of accommodation for employees, flaws in that process should not become more important than the question of whether accommodation is possible without undue hardship, no matter how flawed the search for accommodation may be.  Unless it can be established that the employer has discriminated (by imposing workplace rules that cannot be justified under the test in Meiorin), the procedural aspects of the duty to accommodate cannot give rise to a remedy.  It remains to be seen whether this decision will be appealed further and whether the Supreme Court of Canada will weigh in.
Do you have questions about the accommodation process?  Need guidance on the forms of accommodation that an employer may be required to provide?  Contact Lance Ceaser for expert legal advice.


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