A recent decision by the Federal Court of Appeal in Canada (Human Rights Commission) v Canada (Attorney General) (Cruden) has suggested that there is no procedural duty that exists separate and apart from the substantive duty to accommodate an employee with a disability.
Cruden involved an employee of the Canadian International Development Agency ("CIDA"). The employee was posted to two temporary assignments in Afghanistan. The employee, an insulin dependent type 1 diabetic, suffered a hypoglycemic incident during the second posting in 2008. As a result of the incident, the employee was sent home against her wishes. Following the incident, CIDA instituted a policy requiring that individuals posted temporarily to Afghanistan undergo a medical assessment before beginning their assignments. Because of this policy and her type 1 diabetes, the employee was unable to obtain another posting in Afghanistan.
The employee filed a human rights complaint under the Canadian Human Rights Act (CHRA). The Canadian Human Rights Tribunal concluded that, though the health policy employed by CIDA was discriminatory and CIDA had not met its procedural duty to attempt to accommodate the employee, any possible accommodation of this employment would have resulted in undue hardship for CIDA, which reduced the remedies available to the plaintiff. On Judicial Review, the Federal Court concluded that once the tribunal had concluded that there was undue hardship the case should have been dismissed, and then dismissed the employee's complaint.
The Federal Court of Appeal (FCA) agreed with the Federal Court using both the correctness and reasonableness standards of review. The FCA held that there is only one reasonable interpretation of the relevant provisions of the CHRA – that if accommodating the employee would result in undue hardship then the employee's complaint should be dismissed. The FCA suggested that any actions taken by an employer in attempting to accommodate an employer may be helpful to establish undue hardship, but that they are not a necessary requirement where accommodation will not be reasonably possible. In other words, there should not be any "stand-alone" procedural duty if no substantive duty is found in the circumstances.
The Federal Court of Appeal's decision suggests that where an employee requires accommodation and the employer knows that they are not able to accommodate the employee without undue hardship, the employer is not required to demonstrate it has met its procedural duty to accommodate. The Ontario Human Rights Tribunal has already taken steps to limit Cruden's application. The Ontario Human Rights Tribunal, which has found that procedural duties may exist independent of substantive duties, noted in Lee v Kawartha Pine Ridge District School Board that Cruden is a Federal case interpreting the CHRA and cannot be applied to the Ontario Human Rights Code. The tribunal in Lee concluded that there is, in fact, a procedural duty to accommodate in Ontario independent of the substantive duty. As such, Ontario employers must be cautious to fulfill its procedural duties to consider and document possible accommodations and attempts at accommodations, even where it may ultimately be determined that no accommodation is possible without undue hardship.
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