accommodation

Federal Employers: No Independent Right to Procedural Accommodation

The Federal Court of Canada recently held that a federal employer’s duty to accommodate does not include a procedural element that can be breached independently of the employee’s substantive rights.

An employee of the Canadian International Development Agency (CIDA) applied for a number of postings in Afghanistan. CIDA’s Afghanistan Guidelines, which governed deployment, prohibited employees from serving there if they suffered from a medical condition that was likely to lead to a life-threatening medical emergency. The complainant suffered from Type I Diabetes, and CIDA believed that attempting to accommodate her in Afghanistan would impose undue hardship. As a result, they concluded she was unfit for deployment.

The complainant filed a complaint with the Canadian Human Rights Commission, which held that she was discriminated against on the basis of disability due to her diabetes. The Commission found CIDA’s failure to obtain an independent medical opinion or to offer her an alternative position outside Afghanistan was a breach of the procedural aspect of the duty to accommodate under the Canadian Human Rights Act. However, the Commission also found that accommodating the employee in Afghanistan would have caused CIDA undue hardship, and so the substantive aspect of the duty to accommodate had not been violated.

The Federal Court of Canada allowed CIDA’s appeal of the Commission’s decision. The Court noted that under section 15 of the Act a discriminatory action is justifiable if it can be established that it was based on a bona fide occupational requirement. Because the Commission had determined that accommodating the complainant’s disability would impose undue hardship on CIDA, the Court found that the Afghanistan Guidelines amounted to a bona fide occupational requirement. As a result, CIDA had fulfilled its obligation under the Act. The Court then concluded that because the complainant’s substantive right to accommodation had not been violated, an independent action regarding her procedural rights could not survive because the Act does not provide for such an action. The Court found that the Commission did not have the jurisdiction to order any remedies for CIDA’s breach of the complainant’s procedural rights and it set aside the Commission’s decision.

This decision is significant for federal employers given the conclusion that the duty to accommodate cannot be breached by a mere failure to accommodate procedurally: there must be a contravention of the employee’s substantive right to accommodation. This is in contrast to the recognition by the BC Human Rights Tribunal of an independent right to process. Damages have been awarded against BC employers for failing to follow a proper accommodation process even when any possible accommodations amounted to undue hardship.

Canada (Attorney General) v. Cruden

For further information on the information presented in this article, please contact Matthew Cooperwilliams, Partner.