Prepared for the Law Society of Manitoba’s Accommodation in the Workplace Seminar held April 14, 2010. Not to be copied or distributed without permission of the Author.

In Central Alberta Dairy Pool v. Alberta (Human Rights Commission) , the Supreme Court of Canada articulated a non-exhaustive list of six factors that could be deployed by employers when defending against an accommodation complaint: safety, cost, interference with a collective agreement, size of the employer’s operations, employee morale, and the interchangeability of the workforce and facilities.

Given the significant legislative requirements imposed on employers with respect to workplace safety and health, it is probably not surprising that the undue hardship factor with the greatest rate of success has been safety.

While safety is a significant factor in every workplace, particularly in the face of the current legislative regime, the requirement to meet other legal obligations does not absolve an employer from meeting human rights obligations. As stated in The Human Rights Code, “these various protections for the human rights of Manitobans are of such fundamental importance that they merit paramount status over all other laws of the province.”

This means that the requirement to meet workplace safety and health standards is not a justification for discrimination. Human rights legislation requires employers to ensure their policies, procedures and practices comply with legislative requirements regarding reasonable accommodation, even where the policies, procedures and practices are implemented in order to comply with other legislation.

This is not to say that an employer is going to be left entirely exposed to being charged for a workplace safety and health violation by virtue of the fact that they are required to accommodate in the context of addressing workplace safety considerations. While the Supreme Court of Canada has regularly reminded employers that a tolerable range of risk to safety may have to be allowed in some circumstances in order to enable an accommodation to be accomplished, and it has been held that an employee in need of accommodation in order to continue his or her employment may assume some personal risk, it is also accepted that the risk to the employee seeking accommodation must be balanced against the employer’s obligations under workplace safety and health legislation to provide a safe workplace for all employees.

Workplace Safety and Health Legislative Framework

The obligation of the employer to provide a safe and healthy work environment can be found in the various health and safety statutes. In Manitoba, matters are governed by The Workplace Safety and Health Act, while the Canada Labour Code, Part II governs matters in the federal sphere.

Section 2 of The Workplace Safety and Health Act sets out the general object and purpose of the Act:

2(1) The objects and purposes of this Act are

(a) to secure workers and self-employed persons from risks to their safety, health, and welfare arising out of, or in connection with, activities in their workplace.

(b) To protect other persons from risks to their safety and health arising out of, or in connection with, activities in workplaces.

2(2) Without limiting the generality of subsection (1) the objects and purposes of this Act include:

(a) the promotion and maintenance of the highest degree of physical, mental and social well-being of workers;

(b) the prevention among workers of ill health caused by working conditions;

(c) the protection of workers in their employment from factors promoting ill health; and

(d) the placing and maintenance of workers in an occupational environment adapted to their physiological and psychological condition.

For those acting for employers in the federal sphere, Section 122.1 of the Canada Labour Code provides:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

Both statutes provide a list of more general duties and obligations to be met by employers. The Act sets these out in section 4(1), which states:

4(1) Every employer shall in accordance with the objects and purposes of this Act

(a) ensure, so far as reasonably practicable, the safety, health, and welfare at work of all his workers; and

(b) comply with this Act and Regulations.

Therefore, while the Act places a high standard upon employers to ensure the safety, health and welfare of all of their workers it is not an absolute standard. Rather, it is one that is reasonably practicable under the circumstances. This is significant in so far as the defence of a workplace safety and health prosecution is concerned.

Section 4(2) places further specific duties on the employer including the duty to maintain a safe workplace, provide information and instruction to workers as to hazards and working safely, co-operate with the safety committee, safety and health representative, and to ensure that supervisors are trained to ensure that work is done in a safe manner and are familiar with the provisions of the Act.

Section 124 of The Canada Labour Code places the general duty on employers in the federal jurisdiction, to ensure that the health and safety at work of every person employed by the employer is protected, and section 125 then goes on to list forty-five specific duties related to this requirement.

While the onus on employers is high, there nonetheless remains a positive duty on employees to take reasonable care so as to not expose themselves, or anyone else, to risks arising out of, or in connection with activities in the workplace. These duties are set out in section 5 of the Act. Under this section of the Act employees are required not only to wear safety and personal protective equipment provided, but to co-operate with any other person exercising a duty imposed by the Act or the Regulations, which would include employers and supervisors. Section 126(1) of the Canada Labour Code has a similar provision with respect to the duties of employees.

In order to drive home the seriousness of the obligations to provide and maintain a safe and healthy workplace, fairly stiff offences and penalties for breaches of the provisions of the Acts have been established. Under sections 54 of the Act, every person who contravenes the Act, or Regulations, or who fails to comply with an order made under the Act or Regulations, or knowingly obstructs or makes a false statement to a safety and health officer is guilty of an offence and is liable on summary conviction fines

(a) for first offence not more than $150,000 and if a continuing offence a further fine of up to $25,000 per day for each day the offence continues;

(b) for a second or subsequent offence a fine up to $300,000 and if a continuing offence a further fine of up to $50,000 per day for each day the offence continues.

In addition, under section 55(3) a person who is convicted of an offence may be imprisoned for up to six (6) months. Furthermore under section 55(4) if an individual is convicted of an offence under section 43.3(1), whereby they required a person to work in a situation that they knew or ought to have known was or was likely to be dangerous to the health and safety of a person, they are barred from working in a supervisory position for a six (6) month period. From these provisions, it is evident that persons who occupy supervisory and management positions are held to a very high standard of care when it comes to the safety and health of his or her employees.

Section 55.1(1) further provides that after considering the nature of the offence and the circumstances surrounding its commission, the Court may impose an additional financial penalty that it considers appropriate which the government must use to educate the public on matters relating to workplace safety and health. However, the total amount of this penalty coupled with the other penalties imposed cannot exceed the maximum penalties specified under the Act for the offence.

It is very important to note that liability for breaches under the Act and Regulations is not only limited to the employer and its managers and employees. Under section 56 any officer, director, or agent of a corporation, who directed, authorized, assented to, acquiesced in or participated in the commission is also a party to the offence and is liable to the same penalties for the offence.

Sections 148 and 149 of the Canada Labour Code provide for similar strict penalties, but under the Code, the fines can reach a maximum of $1,000,000 and the prison terms can go up to two (2) years.

The Act and the Canada Labour Code, however, set out the standard required to defend an allegation of a contravention of the Act or Regulations. The Act states at section 57(1)

57(1) In any proceedings for an offence under any of the provisions of this Act or Regulations consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove that it was not practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means that was in fact used to satisfy the duty or requirement.

Under section 148(4) of the Canada Labour Code, a defence of due care and due diligence exists for alleged contraventions of the Canada Labour Code. In either case, the offences are strict liability offences. Once the Crown has proven the actus reus of the offence, the onus will shift to the defence to prove that everything that was reasonable or practicable in the circumstances was done to prevent the offence, on a balance of probabilities.

In addition to the regulatory framework, in 2004, the Criminal Code was amended in an effort to make it easier to impose criminal liability on corporations and organizations that fail to take reasonable measures to protect employees and public safety. Prior to what are known as the Bill C-45 amendments, although a corporation could be subject to a charge of criminal negligence where a worker was harmed at work, this was rarely done because of a lack of direction in the Criminal Code as to how to hold an organization vs. an individual responsible. The amendments seek to focus on functions, rather than titles, in an effort to make it easier to determine the directing mind, and in turn easier to charge and convict a corporation.

The actual offence is set out in section 219(1) of the Criminal Code:

Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that is his duty to do,

shows wanton and reckless disregard for the lives or safety of other persons.

The duty is set out in section 217.1 of the Criminal Code:

“Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

The duty applies to “representatives”, defined in the Criminal Code to mean a “director, partner, employee, member, agent or contractor of the organization.” The duty also applies to “senior officers”, defined in the Criminal Code to mean “a representative who plays an important role in the establishment of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.”

Sections 22.1-22.3 of the Criminal Code provide an organization will be guilty of the offence under section 219(1), if it can be proven that, while acting in the scope of their authority,

one or more representatives commits the offence of health and safety criminal negligence as set out in Section 217.1

– and –

a senior officer departs markedly from the standard of care that could reasonably be expected to prevent a representative from committing the offence.

While there has only been one conviction to date under the new provisions of the Criminal Code, employers should nonetheless be mindful that serious consequences could result if they are convicted under this legislation. Prior to the 2004 amendments, the maximum fine on summary conviction was limited to $25,000. Following the amendments, the maximum fine on summary conviction is now $100,000. More significantly, however, is that the Crown may now proceed by way of indictable offence.

Safety as Undue Hardship

In light of these significant legislative requirements, and the serious ramifications for a failure to comply, employers are often left grappling with situations in which an employee in need of accommodation proposes a solution that leaves the employer feeling as though they will be left exposed under the workplace safety and health legislation. Given that the jurisprudence suggests a certain level of risk may be acceptable in order to facilitate an accommodation, employers are often concerned that meeting their duty to accommodate would constitute a violation of the workplace safety and health legislation.

It is important to remember, however, that human rights commissions and tribunals, and arbitrators, considering human rights issues in the context of grievance arbitration, do recognize the significant legislative obligations imposed on employers with respect to workplace safety and health, and will endeavour to balance health and safety concerns with accommodation in light of the strict obligations imposed by the legislation. Employers are simply expected to do the same.

The oft cited three part Meiorin analysis is the benchmark for determining whether a proposed safety standard, rule or practice complies with the duty to accommodate. The employer must show that:

1. it adopted the standard or rule for a purpose rationally connected to the performance of the job;
2. it adopted the particular standard or rule in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3. the standard or rule is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To establish that a standard is reasonably necessary to the accomplishment of a legitimate work-related purpose (step 3 above), an employer must show that it cannot accommodate individual employees with the characteristic of the complainant, without imposing undue hardship upon the employer.

In the context of considering undue hardship under the third aspect of the test, several human rights commissions across Canada, including the Manitoba Human Rights Commission, have set out a number of factors that will be considered in evaluating health and safety concerns in the context of determining undue hardship:

The Manitoba Human Rights Commission in its Reasonable Accommodation Guidelines, stated:

In evaluating health and safety concerns the Commission will consider a number of factors. It will assess what would be the remaining health and safety risk after reasonable accommodation is provided. Both the seriousness of the risk and the probability of the risk will be considered. Where the probability of the risk is high and the severity is great, undue hardship will be established.

The Commission will also consider who it is that will be assuming any health and safety risk. If the risk is to the health or safety of others, the Commission will look at that risk relative to other risks already being assumed by that group. Generally speaking, accommodations that result in minimal risk to health and safety of others will not be sufficient and some degree of probability will be required.

Where the health and safety concern is to the person or group requesting the accommodation, and that person or group is willing to assume the risk, an additional degree of risk may be reasonable. Each situation will be evaluated on its own facts and circumstances.

The Canadian Human Rights Commission states the following:

An employer might find that accommodating an employee creates an undue hardship based on health, safety or both.

When considering the impact of an accommodation on health and safety, look at the extent of the risk and identify anyone who would bear that risk. However, balance this risk against the right of employees to participate fully in the workplace. The goal is not absolute safety, but reasonable safety.

If the risk is borne entirely by the employee asking for the accommodation, then a higher degree of risk is acceptable. However, the employer must fully inform the employee of the nature of the risk, so that the employee can decide whether to accept that risk.

For example, an employee who wears a turban may be excused from wearing a hard hat in the workplace. In this case, the employee has a higher risk of injury, but the risk is the employee’s alone.

Where the risk affects other employees or customers, much less risk is acceptable. The employer must assess the risk to others caused by accommodation and may then decide that this risk would cause undue hardship. If so, the employer should be prepared to provide objective evidence that it honestly believed that an unreasonable risk existed.

Employers considering the health and safety impacts of accommodation must still remember their responsibilities for health and safety and to the workers compensation board. They should consult appropriate representatives before settling on an accommodation. Nevertheless, the existence of a health and safety rule (such as a hard hat requirement) does not automatically constitute a bona fide occupational requirement.

The Ontario Human Rights Commission has also set out very comprehensive guidelines regarding the various factors to consider in an assessment of health and safety risk. The comprehensive policy is included as an Appendix to this paper, but the key factors are summarized below:

• he willingness of a person seeking accommodation to assume the risk in circumstances where the risk is to his or her safety;
• Whether the modification or waiving of the requirement is reasonably likely to result in a serious risk to the health or safety of others;
• The other types of risk legally tolerated at the place of work; and
• They types of risks tolerated within society as a whole.

Below are various examples of how this balancing approach has been applied in a number of cases in different circumstances:

1. a) Shifting of Job Duties

It is generally accepted that an employee does not have a proprietary interest in any particular set of duties, and that an employer has the right to reassign duties for legitimate business reasons. It is also accepted that a redistribution of duties among a group of employees may be an appropriate form of accommodation, and that it is not unreasonable for fellow employees to incur some hardship and make some sacrifices under the duty to accommodate. However, where such a redistribution results in an increased safety risk to individuals other than the accommodated employee, the redistribution or reorganization of work duties may amount to undue hardship.

This was considered in Pannu v. Skeena Cellulose Inc. and Workers’ Compensation Board of British Columbia . The employee was a Sikh, and as a tenet of his religious faith wore a beard. His position in the workplace required him to perform emergency duties in relation to a gas chamber in the workplace. This posed a conflict with respect to the requirements imposed by the workers compensation legislation in the performance of those duties, as the legislation required that individuals performing such duties wear a self-contained breathing apparatus (“SCBA”), which was only effective if the individual was clean shaven. The employee refused to shave his beard in light of his religious beliefs, and the employer removed him from his position.

While the employee conceded that there was no respirator which would safely allow a bearded person to perform the emergency duties of the employee’s position, he argued that the employer discriminated against him by designating his position as being the one responsible for performing the emergency work, without accommodating his inability to wear an SCBA because of his beard, and that the employer ought to have designated a co-worker to perform the emergency work. The employer led evidence which indicated that other available employees did not have the experience and knowledge of the equipment that would enable them to trouble-shoot in an emergency. It is worth noting that the WCB also gave evidence that it would have been concerned if the employer had assigned employees in other positions to perform the emergency work.

The Tribunal held that transferring the duty to another position would have resulted in some increase in the magnitude of risk, as individuals in the other positions did not have the same level of experience as the complainant. However, the Tribunal placed greater significance on the change in identity of those who would bear the risk. The Tribunal stated, in dismissing the complaint, that having reviewed the authorities, it found no case in which the duty to accommodate required an employer to shift the risk to personal safety entirely from the employee in need of accommodation to another employee. The Tribunal stated as follows:

Shutting down the equipment during a major emergency gas leak rather than being able to evacuate the area is obviously very risky to the person who must enter the gas-contaminated environment to do it. The proposed accommodation would remove the risk from Mr. Pannu entirely and place it on the Utilityman on his shift.

Here, the proposed accommodation significantly reduces the risk to which Mr. Pannu will have to expose himself in a gas emergency compared to other Recaust Operators and places it entirely on the individual Utilityman on his shift. Those persons might be compensated for assuming that risk, either by being paid as a relied ARO for performing those duties during the shut down, and/or by increasing their pay generally. However, compensation does not address the fact that, if there are not enough volunteers, accommodating Mr. Pannu will mean this risk is imposed on a Utilityman, changing his job duties as compared to other Recaust Utilitymen.

Similarly, in Re IKO Industries Ltd. and U.S.W.A. (Timbers) , the Arbitrator rejected an employee’s argument that he should have been assigned the less arduous function within his restrictions that would result in another employee having to perform a more arduous function on a full time basis, as it would have increased the safety risks to the other employees. In this case, the restrictions of the disabled employee meant that he could perform only one of the two of the basic functions of the position. There was one other employee who rotated with him between the two basic functions, who would have been left to only perform the more arduous function if the disabled employee was accommodated as he argued he ought to be. The Arbitrator stated:

The obligation of the Company to accommodate to the point of undue hardship does not include the reassignment of duties in a manner that carves off all the light duties of a job for the disabled operator and leaves a fellow employee with all the heavy duties, when to do so would place the fellow operator at significant risk of injury…

The Arbitrator in Winpack Portion Packaging Ltd. v. United Steelworkers of America (Bai Grievance) also reached a similar conclusion, in the face of a disabled employee’s argument that the employer should have removed light duties from other employees and assigned them to him. The light duties were to be rotated amongst the employees, and this was designed, in part, to minimize the potential for injury, as they sought to provide the employees with a period of muscle rest. In concluding that the proposed accommodation amounted to an undue hardship, the Arbitrator held:

…that permanently carving out the repack duties from the Selector-Packer position to create a job for Mr. Bai would fundamentally disrupt the health and safety balance that has been created in the rotation of the various job duties performed by the Selector-Packers and would place the Selector-Packers at an unacceptable level of risk.

What is important to remember, however, is that employer and fellow employee concerns with respect to safety and risks posed by a proposed form of accommodation must not be based on attitudes or beliefs that are discriminatory or otherwise inconsistent with the proposition of human rights. While employee morale is a factor that often ties into safety, the Supreme Court of Canada indicated in Central Okanagan School District No. 23 v. Renaud that morale was a factor to be applied with caution:

The reaction of employees may be a factor in deciding whether accommodation measures would constitute undue interference in the operation of the employer’s business. In Central Alberta Dairy Pool, Wilson J. referred to employee morale as one of the factors to be taken into account. It is a factor that must be applied with caution. The objection of employees based on well-grounded concerns that their rights will be affected must be considered. On the other hand, objections based on attitudes inconsistent with human rights are an irrelevant consideration.

In Sushwap Lake General Hospital v. B.C.N.U., a registered nurse with a bi-polar mood disorder had made some medical errors involving patient treatment while suffering from mood swings. She took time off work, and followed the medical recovery program set out by her physician, which included a comprehensive return to work program consisting of modified duties. Ultimately, the nurse completed the program and returned to her normal duties and normal hours. Shortly after her return, she suffered an emotional breakdown and sought additional treatment. The hospital, concerned with the grievor’s stability as it related to patient and co-worker safety, wrote her doctor, asking for assurance that the nurse could meet her standards of practice on a consistent basis. The Doctor explained that due to the nature of bi-polar disorder, it was impossible to predict future relapses. As such, the hospital determined it was unable to further accommodate the nurse, citing undue hardship due to risks to patient safety and employee morale.

The Arbitrator upheld the nurse’s grievance, concluding that the hospital did not satisfy the safety standard of undue hardship. Applying the Meiorin analysis, the Arbitrator held that while the hospital was able to satisfy the first two aspects of the test, the hospital was unable to demonstrate that the nurse could not be accommodated without experiencing undue hardship. The employer was unable to identify the potential safety hazards and provide persuasive, cogent evidence that the safety concerns outweighed the obligations to accommodate the employee. The evidence relied on by the employer with respect to risks to patients was merely anecdotal and impressionistic, and the morale arguments that other employees did not want to work with the grievor because of their perceptions of her disorder and that it would pose either a safety risk or inconvenience to them were inconsistent with human rights obligations. Ultimately, the arbitrator held that the employer was attempting to impose an absolute “no risk” standard, which was not justified on the evidence.

1. b) Zero Tolerance Safety Rules/Standards

As noted above in Shuswap Lake General Hospital, where an employer has introduced a stringent rule or other safety standard, and excluded an employee from a job because of those standards, it is expected that they build in concepts of equality, or they may fail the accommodation duty, even if the rule or standard is defensible from a purposive point of view and introduced for the best of reasons. This is so even if technical experts endorse the standards and have assisted in their development.

In Meiorin and Grismer , agencies of the British Columbia government had consulted with external technical experts for the development of new standards for forest firefighting and highway traffic safety respectively, however in neither case did the government agency or technical experts truly consider whether the standards would disproportionally affect disadvantaged groups, nor did they consider whether the standard could yield to an accommodation, while maintaining reasonable safety standards. The Court also ruled that, when developing and applying safety standards, employers and institutions must accept that some moderate level of risk might be reasonably necessary in order to ensure the success of an accommodation. In addition, as indicated in Shuswap Lake General Hospital, if an employer intends to demonstrate a safety argument for undue hardship, in respect of a “no risk” standard, anecdotal or impressionistic evidence concerning the magnitude of risk will likely be insufficient to demonstrate undue hardship.

For example, in Keasley v. City of St. Catharines an applicant for a firefighter’s position passed the required physical fitness tests, but was discovered to have an asymptomatic heart condition (atrial fibrillation) which posed a very small risk of stroke. As a result, the municipality declined to hire him. An Ontario Board of Inquiry upheld his complaint, ruling that while the first two aspects of the Meiorin test were met, the City was unable to meet the third aspect of the test, as the preferred medical evidence established that the increased risk of stroke in the applicant’s case was insignificant and irrelevant to the physical demands of a fire-fighter’s position, and thus would not pose a health and safety risk greater than to that of any other firefighter.

This case can be contrasted, however, with the recent decision of Espey v. City of London and London Professional Firefighters’ Association , which demonstrates the extent to which the evidence plays a significant role in demonstrating undue hardship due to safety in the face of a zero tolerance standard or rule. Espey considered whether the mandatory retirement age of 60 for suppression firefighters constituted a bona fide occupational requirement on the basis of safety. In holding that the mandatory retirement age for suppression firefighters met the first two aspects of the Meiorin test, the Adjudicator stated:

In light of the increasing risk of cardiac events with age, and the effects of a cardiac event on the work of a firefighter, it is evident that mandatory retirement is rationally connected to the work of a firefighter, to protect health and safety. It is also evident that this standard was adopted in good faith to promote the work-related purpose of protecting health and safety.

In addressing the third aspect of the Meiorin test, and determining that mandatory retirement at age 60 was reasonably necessary to ensure the health and safety of firefighters, and that accommodation of individual firefighters would result in undue hardship to the respondents, the Adjudicator reviewed a substantial amount of evidence regarding the physical and mental demands placed on suppression firefighters, and also reviewed substantial amounts of expert medical evidence regarding the increased risk of cardiac events in those over 60 years of age.

The Adjudicator accepted the evidence that suppression firefighters work is dangerous and critical for public safety, and that if any suppression firefighter were to become incapacitated, the effectiveness of responding to an emergency would be compromised, potentially affecting the safety of other firefighters as well as the public:

A firefighter’s heart attack, angina, stroke, or ruptured aortic aneurysm will have significant effects on the ability of the fire service to deal with emergencies as required, in addition to serious consequences for the firefighters involved and his or her colleagues. A cardiac event while a firefighter is carrying out emergency duties may have disastrous health and safety consequences. I am prepared to accept…that the consequences of cardiac events make it reasonable for the respondents to “insist that firefighters not be in the position of having a substantial risk of a cardiac event”.

The evidence in this case, however, is clear, that age is a very significant contributor to the risk of cardiac events, in general, among firefighters, and among officers. It is clear that there is a significantly increased risk of cardiac disease around the age of 60, in both men and women, and that this continues to increase with age.

The dramatic effects of age on the risk of heart disease are clear, and apply at least as strongly, if not more strongly, to firefighters. Accordingly, I find that advancing age contributes significantly to the risk of a cardiac event in firefighters. The increased risk of cardiac events while firefighters are responding to an emergency is particularly high. The safety consequences of such an event for an on-duty firefighter, the public and his or her colleagues may be grave.

The Adjudicator went on to conclude that the evidence demonstrated that there was no individualized testing method that would allow for a better risk assessment of on-the-job events for fighters more accurately than age, given their occupation-related risks of heart disease. As such, the Adjudicator concluded that the employer met their burden to demonstrate that mandatory retirement was reasonably necessary to accomplish its health and safety purposes and that modifying it would cause an undue hardship.

In another example, Cotterall v. Vancouver Police Board , the British Columbia Human Rights Tribunal determined that the minimum vision standard for police officers did not discriminate against those with vision difficulties. The complainant lodged a human rights complaint when his application for employment with the Vancouver police was rejected because his uncorrected vision was poor. The complainant had worn contact lenses for years, and testified that his lenses had never dislodged and that his poor uncorrected eyesight posed minimal risks. The Tribunal, however, agreed with the employer, who led evidence to successfully demonstrate that the risk of losing a lens was significant, and as a result, an officer could pose a significant safety risk to himself, his fellow officers, and the public. The fact that officers might have to work in a dangerous situation with compromised vision therefore amounted to undue hardship.

1. c) Major Employment Offences

Given the commentary that has come out of the jurisprudence regarding zero tolerance rules, a common question that often arises is whether an employer is required to accommodate an employee whose disability has directly led to a major workplace incident or accident.

This issue was considered in Re Toronto Transit Commission, in which a bus driver consumed several beers shortly before resuming a shift. He subsequently drove the bus into the back of a garbage truck, injuring himself and several passengers. After the accident, the driver revealed he was an alcoholic. While alcoholism is recognized under human rights legislation as a disability, the Arbitrator dismissed the driver’s grievance, ruling that human rights legislation is not intended as a protective device for employees who commit major employment offences:

While there is an obligation, under the Human Rights Code, to accommodate employees who suffer from an illness, clearly such an accommodation does not mandate that such an employee be protected or be absolved from major employment offences merely because of that illness…The grievor, because of his illness, cannot be placed in a better position than other employees who commit similar offences.

Similarly, in Re Fording Coal, an employee who brought marijuana onto Company premises and tested positive for marijuana use had his termination upheld, despite the fact that the employee was addicted to the drug. The Arbitrator ruled that the workplace, a mine, was safety-sensitive, and the zero-tolerance standard was reasonable in the circumstances.

While not a case dealing with safety specifically, Re Labatt Breweries and Brewery Works, Loc. 250 (Jeroski) also demonstrates that where an employee engages in acts of misconduct of a serious nature, the duty to accommodate may be outweighed by this consideration. In this case, the decision to dismiss an employee with a limited intellectual capacity was upheld where he had engaged in acts of property destruction and vandalism. The Arbitrator held that while the duty of reasonable accommodation did arise in this case, as the evidence indicated the employee’s limited intellectual capacity fell within the definition of disability, the duty to accommodate must be balanced against an employer’s reasonable expectation that the employee’s limitations do not effectively vitiate the employee’s reliability and trustworthiness.

Note, however, that while there is jurisprudence to suggest that in the face of major employment offences, accommodating the employee will pose an undue hardship due to safety, the assessment may well turn on whether the employee’s behavior was seen as culpable or non-culpable, given the nature of the employee’s disability, and whether the disability that may have led to the employment offence is one that is identified as treatable or controllable through the effort and commitment of the employee, to the point that it would mitigate the safety risk imposed. These issues frequently arise in addiction cases or cases of mental or psychological disabilities, in which the employer may be expected to allow an employee the opportunity to seek treatment, and afford them the opportunity to return to the workplace as an accommodation, even in the face of a serious employment offence. The extent to which the duty to accommodate will outweigh the safety concerns will, of course, depend on the circumstances of each case, and the extent to which the safety concerns would be alleviated by the treatment.

It is also important to note that even with serious employment offences, where it can be demonstrated that an accommodation would pose an undue risk that would amount to undue hardship, an employer may still be seen to run afoul of the duty to accommodate if it does not satisfy the procedural aspect of the duty to accommodate.

In T.D. v. Canada Post Corporation , a supervisory employee became involved in a number of very agitated disputes at work. In light of the number and threatening nature of the disputes, the employee was examined by an independent psychiatrist, who in his report back to the employer expressed concern over workplace safety if the employee was to remain in the workplace. The independent psychiatrist recommended that the employee follow a specific course of treatment before it would be safe for him to remain in the workplace. The occupational health and safety nurse in the workplace also expressed concern for her personal safety following her examination of the employee. The employee was, therefore, placed on sick leave, and advised that the reason was a “bona fide concern” with respect to his fitness for duty. Neither the report nor the recommendations of the independent psychiatrist were given to the employee. The employee returned to work with a note from his own doctor stating that he was well and able to work, however, the employer refused to return him to the workplace insisting that he must follow the course of treatment recommended by the independent psychiatrist. It was at this point that the recommendations of the independent psychiatrist were given to the employee.

The employee alleged in his complaint that he suffered adverse treatment because of his disability (depression, anxiety disorder and obsessive compulsive personality disorder) when he was sent home on sick leave and then denied him the right to return to work even though he had presented proof of his fitness from his own doctor. The employer argued that it had no choice but to remove the employee from the workplace because he posed a serious danger to himself and others, and relied on workplace safety as a bona fide occupational requirement.

While the Canadian Human Rights Tribunal agreed with the employer that accommodating the employee by allowing him to return to work would have constituted an undue hardship to the employer, given that the medical evidence clearly established that returning the employee would have exposed others to “the serious potential of significant harm”, the complaint was allowed because the employer did not meet its obligations with respect to the procedural aspects of the duty to accommodate.

Specifically, the Tribunal held that the employer ought to have provided the independent psychiatrist’s report to the employee immediately, so that he fully understood the reasons why he was being removed from the workplace, and that there were no other alternatives that would allow for the accommodation of the employee in the face of the medical evidence. The Tribunal held that the employer’s failure to address the procedural aspects of the duty to accommodate amounted to callous disregard for the complainant’s well being, and stated as follows:

Fairness in the accommodation process is not, in my view, limited to a fair assessment of the complainant’s fitness for duty…Rather the notion of fairness extends to all facets of the accommodation process. It requires the inherent worth and dignity of the individual be respected throughout the process to the point of undue hardship.

Canada Post did not treat [the complainant] fairly in November of 2001; he was treated as a ‘safety risk’ rather than as a human being whose needs for information and support should be respected.

Although the Tribunal in T.D. v. Canada Post Corporation indicated that a failure to satisfy the procedural aspect of the duty will not automatically give rise to a violation of the duty to accommodate, the Tribunal was of the view that such a finding was warranted in this case, having regard to the impact the failure had on the employee’s dignity and self-worth.

Conclusion

While safety is often a valid justification in support of an employer’s undue hardship argument, employers must be mindful that safety obligations to not trump human rights. There remains an obligation to consider accommodation solutions within the context of the stringent safety requirements imposed on employers, from both a substantive and procedural perspective.

Where an employer intends to rely on safety to support an undue hardship argument, employers must be able to identify the specific safety hazards and provide convincing evidence that the safety concerns outweigh the obligations owed to an employee seeking accommodation. Ultimately, the duty to accommodate requires a balancing between preventing safety hazards and providing accommodation.

Appendix

Excerpt from Ontario Human Rights Commission

Policy and guidelines on disability and the duty to accommodate

Revised version approved by the Commission: November 23, 2000 (Please note: minor revisions were made in December 2009 to address legislative amendments resulting from the Human Rights Code Amendment Act, 2006, which came into effect on June 30, 2008.)

Reproduced from:

http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2?page=disability-5_.html#Heading581

5.3.3 Health and safety

Health and safety requirements may be contained in a law or regulation, or result from rules, practices or procedures that have been established independently or in conjunction with other businesses or services engaged in similar kinds of activity.

Organizations have a responsibility to undertake health and safety precautions that would ensure that the health and safety risks in their facilities or services are no greater for persons with disabilities than for others. Where a health and safety requirement creates a barrier for a person with a disability, the accommodation provider should assess whether the requirement can be waived or modified. If waiving the health and safety requirement is likely to result in a violation of the Occupational Health and Safety Act (OHSA), the employer should generate alternative measures based on the equivalency clauses of the OHSA. The employer is required to show an objective assessment of the risk as well as demonstrate how the alternative measure provides equal opportunity to the person with a disability. The employer might be able to claim undue hardship after these measures were undertaken and a significant risk still remains.

5.3.3(a) Bona fide and reasonable requirements

Health and safety risks will amount to undue hardship if the degree of risk that remains after the accommodation has been made outweighs the benefits of enhancing equality for persons with disabilities. The person responsible for accommodation will have to satisfy the three-step test set out in Section 3.2.

Health and safety standards that are genuinely adopted for the protection of workers, clients or the public will usually meet the second step of the test. On the other hand, a standard that is established to circumvent human rights legislation will not meet this test.

The third step requires the organization to demonstrate that the standard is reasonably necessary and that accommodation cannot be accomplished without incurring undue hardship.

Health or safety risks that result in undue hardship could be reduced to acceptable levels over time (for example, by adding safety features or changing job descriptions to accommodate an employee with a disability). Development of a new technology to allow an employee with a disability to operate certain machinery more safely, for example, may take some time. In principle, therefore, a person responsible for accommodation could be required to phase in an accommodation that would lessen the health or safety risk over time, provided that the delay is reasonable and justified in relation to the development time attributed to the accommodation.

5.3.3(b) Assumption of risk

A person with a disability may wish to assume a risk. The risk created by modifying or waiving a health and safety requirement is to be weighed against the right to equality of the person with a disability. Where the risk is so significant as to outweigh the benefits of equality, it will be considered to create undue hardship.

In determining whether an obligation to modify or waive a health or safety requirement, whether established by law or not, creates a significant risk to any person, consideration will be given to:

• the significance, probability and seriousness of the risk
• the other types of risks that the person responsible for accommodation is assuming within the organization
• the types of risks tolerated within society as a whole, reflected in legislated standards such as licensing standards, or in similar types of organizations.

The “risk” that remains after all precautions including accommodations (short of undue hardship based on cost) have first been made to reduce the risk will determine undue hardship.

Where a modification or waiver of a health and safety requirement could place an individual with a disability at risk, the person responsible for accommodation is obliged to explain the potential risk to the person. Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard. At the same time, the organization has an obligation under health and safety legislation not to place persons in a situation of direct threat of harm. High probability of substantial harm to anyone will constitute an undue hardship.

Seriousness of the risk

The fact that a person has a disability, in and of itself, is not sufficient to establish that there is a risk. Evidence will be required to prove the nature, severity, probability and scope of the risk.

In determining the seriousness or significance of a risk, the following factors should be considered:

• the nature of the risk
• what could happen that would be harmful?
• the severity of the risk
• how serious would the harm be if it occurred?
• the probability of the risk
• how likely is it that the potential harm will actually occur?
• is it a real risk, or merely hypothetical or speculative?
• could it occur frequently?
• the scope of the risk
• who will be affected by the event if it occurs?

These five factors should be considered together to determine the seriousness of the risk. If the potential harm is minor and not very likely to occur, the risk should not be considered to be serious. A risk to public safety shall be considered as part of the scope of the risk, while the likelihood that the harmful event may occur would be considered as part of the probability of risk.

The seriousness of the risk is to be determined after accommodation and on the assumption that suitable precautions have been taken to reduce the risk.

Example: An ambulance dispatcher with a hearing impairment manages emergency calls over the telephone. Her capacity to do so safely and reliably is properly assessed while using a prescribed hearing aid and a hearing aid-compatible telephone.

Consideration of other types of risk

When assessing the seriousness of the risk posed by the obligation to modify or waive a health or safety requirement, consideration must be given to the other types of risks that are assumed within an organization. For example, many jobs have risks that are inherent to the nature of the work itself.

As well, job applicants may be denied employment on the basis of limitations related to their disabilities. Yet these same or similar limitations may be developed by employees who have been on the job for several years, with little or no effect on their ability to satisfactorily perform their duties and with no impact on their careers.

Everyday risk

Many sources of risk exist in the workplace, aside from those risks that may result from accommodating an employee with a disability. All employees assume everyday risks that may be inherent in a work site, or in working conditions, or which may be caused by a co-worker’s fatigue, temporary inattentiveness or stress. Employers have recognized that not all employees are 100% productive every day, and many provide counseling programs or other means of coping with personal problems, emotional difficulties or other problems that may arise. Risks created by these situations are factored into the level of safety or risk that we all accept in our lives every day.

A potential risk that is created by accommodation should be assessed in light of those other, more common sources of risk in the workplace.

Risks in society as a whole

Risks that are present in comparable enterprises or in society as a whole should be considered. While maximizing safety is always desirable, as a society we constantly balance the degree of safety to be achieved against competing benefits. For example, we balance the risk of injury in contact sports against the benefits of participating in sports activities or because of the economic and entertainment benefits. We balance the risks involved in permitting higher speed limits against the benefits of increasing the efficient flow of traffic. We balance the risks involved in driving affordable cars against the costs that would be involved in making them even safer.

1. [1990] 2 S.C.R. 489
2. C.C.S.M. c. H175(preamble)
3. See Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 655; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”), [1999] 3 S.C.R. 868, British Columbia Public Service Employee Relations Commission) v. BCGSEU (“Meiorin”), [1999] 3 S.C.R. 3.
4. See the remarks of Madame Justice Wilson in Central Alberta Dairy Pool, supra note 1, regarding the Supreme Court of Canada’s decision in Canadian National Railway Co. v. Canada (Human Rights Commission (“Bhinder”), [1987] 1 S.C.R. 1114.
5. Re Kemess Mines Ltd. and International Union of Operating Engineers, Local 115 (Byer Grievance) [2003] B.C.C.A.A.A. No. 25 Q.L., and infra notes 12, 13, and 14.
6. C.C.S.M. c. W120
7. R.S. 1985, c. L-2, sections 122 to 160
8. Note that on December 3, 2009, Bill 4, The Workplace Safety and Health Amendment Act, was introduced in the Manitoba Legislature, which seeks to substantially increase maximum fine levels to $250,000 for a first offence and $500,000 for a second or subsequent offence.
9. R.S., 1985, c. C-46
10. R. v. Transpavé (Court of Quebec, March 17, 2008, unreported) was the first conviction under the new Criminal Code provisions. The fine was $100,000, pursuant to a guilty plea and a joint recommendation. The company was also ordered to pay a victim fine surcharge of $10,000. There were a number of mitigating factors, including the small size of the company, a clean record with respect to safety and health infractions, and the fact that the company spent approximately $500,000 in safety improvements post accident. In addition to Transpavé, to date there have been four cases where charges have been laid. Of the others, two are still before the courts, and in the other, the charges were withdrawn.
11. Supra note 3.
12. Reasonable Accommodation Guidelines under the provisions of the Manitoba Human Rights Code, Accommodating Equity – Manitoba Human Rights Commission, 2004, www.gov.mb.ca/hrc.
13. Canadian Human Rights Commission, Overview of the Duty to Accommodate – Preventing Discrimination, http://www.chrc-ccdp.ca/preventing_discrimination/page3-en.asp
14. Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate, http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2?page=disability-5_.html#Heading581
15. See Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Turpin v. International Air Transport Assn., [2004] C.L.A.D. No. 160.
16. (2000), 38 C.H.R.R. D./494 (British Columbia Human Rights Tribunal)
17. In British Columbia, Part 3 of the Workers Compensation Act [R.S.B.C. 1996] governs Occupational Health and Safety, and it is the WCB that is responsible for enforcing the health and safety regulations and administering prosecutions and penalties.
18. Supra note 16 at p. 25
19. (2004) 129 L.A.C. 4th 129
20. Ibid. at p. 159
21. [2003] O.L.A.A. No. 416
22. Ibid. at p 7
23. Supra note 15 at p. 988
24. [2002] B.C.C.A.A.A. No. 21 (Gordon)
25. Supra note 3
26. Supra note 3
27. Supra note 24
28. (2002), C.H.R.R. Doc. 02-052 (Ont. Bd. Inq.)
29. 2008 HRTO 412, upheld on reconsideration 2009 HRTO 271
30. Ibid. at para. 72
31. Ibid. at paras. 77, 80, 83
32. [1994] B.C.C.H.R.D. No. 19
33. (1997), 72 L.A.C. (4th) 109 (Shime)
34. Ibid. at pp. 124-5
35. (2005) 138 L.A.C. (4th) 417 (Sims)
36. See Handfield v. North Thompson School District No. 26 (1995), 25 C.H.R.R. D/452 (British Columbia Council of Human Rights) at para. 137; Fraser Lake Sawmills Ltd. and I.W.A., Local 1-424 (2002), 2003 C.L.L.C., para. 220-041; Re Castelgar & District Hospital, (2000), 86 L.A.C. (4th) 81 (Larson)
37. See Handfield v. North Thompson School District No. 26, ibid.; Fraser Lake Sawmills Ltd. and I.W.A., Local 1-424, ibid.; Re Castelgar & District Hospital, ibid.; Shuswap Lake General Hospital, supra note 24, Allbright Cleaners Ltd. (1997), 98 C.L.L.C. 230-007 (B.C.H.R.T.), Re York Region Board of Education (2000), 84 L.A.C. (4th) 90 (Shime), Turinich v. Saskatchewan (Dep’t of Municipal Government (2000), 37 C.H.R.R. D/209 (Sask. Bd. Inq.).
38. See Re Castelgar & District Hospital, supra note 36, in which an employee with a serious substance abuse problem was reinstated after steeling narcotics from his employer, the hospital. In determining that the reinstatement was appropriate in this case, the Arbitrator ruled that the employer’s duty to prove undue hardship in the circumstances may have been lessened if safety concerns were involved or the position of the worker was safety sensitive.
39. [2007] C.H.R.D. No. 41
40. Ibid.
41. Note that the Manitoba Workplace Safety and Health Act does not have similar equivalency clauses. The closest provision would be section 1.3(3) of the Workplace Safety and Health Regulation, Regulation 217/2006, which states: “When this regulation requires a person to comply with a publication, code or standard, the person may, as an alternative, comply with another equivalent publication, code or standard that the director has approved in writing”.

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