The employee’s claim of discrimination (based on epilepsy) was dismissed in Canadian Mental Health Assn. (2012), 217 L.A.C. (4th) 250 (Surdykowski).
In stating that the Ontario Human Rights Commission’s policies were not legally binding, the arbitrator cited, as part of an employee’s enumerated obligations under the policy, that the person with the disability is required to “advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)”.The bracketed portion is simply wrong at law.
The union had argued that all it had to establish was that the employee had been treated adversely on the basis of a prohibited ground under the Code, and that once the union has done so, the onus shifts to the employer to prove that it has complied with its procedural and substantive obligations under the Code. In rejecting this contention, arbitrator Surdykowski stated:
There is an evolving theory that the onus is on the employer to establish that it has met separate procedural and substantive duties to accommodate employees with a disability to the point of undue hardship, rather than the employee having to establish that the employer has breached the Code. Perhaps the clearest statement of this proposition that I am aware of is in the Divisional Court’s decision in ADGA Group Consultants cited by the Union.
Arbitrator Surdykowski noted that the ADGA case had specifically relied on the Supreme Court of Canada decisions in both Grismer and Meiorin, (both of which are discussed in Sections 14:203 and 14:204 of the Illness and Absenteeism manual). After considering those two cases, arbitrator Surdykowsky stated:
Meiorin and Grismer both concerned safety based standards imposed generally without any individualized consideration of accommodation and rightly determined that where a standard is prima facie discriminatory, or makes no provision for individualized assessment the onus is on the employer or service provider to establish that the standard in issue is reasonably necessary and appropriate. That is, with respect, a far cry from being authority for the more general proposition that the onus is on an employer to establish in every case that it has met separate procedural and substantive duties to accommodate an employee with a disability to the point of undue hardship.
Arbitrator Surdykowski then set forth the following summary of onus in cases where an employee is seeking accommodation:
Grievance arbitrations are in the nature of civil proceedings and the general civil litigation proposition is that “he who asserts must prove” and that a party should not be obliged to prove a negative unless a statutory (or contractual) provision specifies, or fairness and the nature of the case clearly call for such a reverse onus. In my respectful view, in a case where an employee asserts that the employer violated her right to accommodation under the Ontario Human Rights Code, the employee properly bears the onus of proving that she has a disability, that she requires accommodation in the workplace, that she did what was required to inform the employer of her disability and need for accommodation, and that the employer did not accommodate her. It is only then that the onus shifts to the employer to prove that it has or is unable to accommodate the employee.
In any event, in this, as in most cases onus does not determine the result.
Arbitrator Surdykowski then considered the suggestion that “a flawed accommodation process is by itself sufficient … to constitute a breach of the employer’s duty to accommodate.” While acknowledging that a procedural breach may constitute a breach of the employer’s duty to accommodate, such is not necessarily so:
Although a flawed process is more likely to lead to a flawed result, it will not necessarily do so. The purpose of the process is to facilitate an employee’s substantive rights and the employer’s substantive obligations under the Code. Neither the procedural nor the substantive components of the duty to accommodate are “one size fits all”. What is required in terms of both process and substance depends on the circumstances. If accommodation to the point of undue hardship is demonstrably unnecessary or impossible, an employer’s procedural failings will not constitute a breach of the Code.
… In any event, the point is that the focus in human rights matters should be on substance and substantive rights, not on process.