Perception of disability (e.g. a gay man refused a job because it is assumed he has AIDS)
Physical Disability “ Any degree of disability, infirmity, malformation or disfigurement of a physical nature caused by bodily injury, illness or birth defect and, without limiting the generality of the foregoing, includes any disability resulting from any degree of paralysis or from diabetes mellitus, epilepsy, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair, cane, crutch or other remedial device or appliance.” (Article 2, New Brunswick Human Rights Act )
Mental Disability “ mental disability” means (a) any condition of mental retardation or impairment (b) any learning disability, or dysfunction in one or more of the mental processes involved in the comprehension or use of symbols or spoken language, or (c) any mental disorder (Article 2, New Brunswick Human Rights Act )
Prevents an employee from performing significant functions that most people can perform;
Is ongoing rather than temporary; and
Cannot be controlled by the employee
Generally, courts will find a physical or mental condition to be a disability if it
Disability Case Law Tribunals have recognised temporary conditions as disabilities where they are significant or ongoing. Morgoeh v. Ottawa (City) (1989) 11 CHRR D/80 (seasonal allergies) Wilson v. Douglas Care Manor (hysterectomy)
Every complaint of discrimination must be determined on its own merits.
Courts have refrained from drawing a clear line as to how far employers are required to go in order to meet their duty to accommodate.
Acceptable Defenses Employers are permitted to maintain a discriminatory limitation, specification or preference if they can establish a bona fide occupational qualification . They must design their workplaces and employment standards in inclusionary terms aimed at the full participation of all members of the labour force.
Unions’ duty to accommodate (employer cannot plead collective agreement constraints as undue hardship)
Nature of the work
Reliability of adaptive technologies or devices
Creative design or process solutions
Costs as Undue Hardship The Supreme Court of Canada has said “one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment”. (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)  3 S.C.R. 868)
So substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affects its viability
According to the Supreme Court, costs will amount to undue hardship if they are:
Case Law - Costs Decision makers have also stated that with regard to proving that an employer attempted to accommodate the complainant, impressionistic evidence of increased cost will not generally suffice … (Irvine v. Canada (Canadian Armed Forces) (2001),C.H.R.D. No. 39)
In human rights cases, the duty to accommodate will invariably extend beyond the legislated period during which an employer is required to hold an injured worker’s position available.
(Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001) 41 CHRR D/349 (back wages for 11 years)
Return to Work If accommodation could result in health and safety violations or substantial risk of injury to the employee, the employer may claim that this is undue hardship. Impressionistic evidence will not be acceptable in assessing risks. Objective evidence, empirical data and expert opinions will be required. Potential increases in a workers’ compensation premiums or the mere prospect of tort liability will not amount to undue hardship.
Return to Work Case Law When an employee returning to work is unable to perform certain job functions that are not central to the position that the employee holds, employers are expected to accommodate the employee to the point of undue hardship. Irvine v. Canada (Canadian Armed Forces) (2001) 41 CHRR d/466)
Return to Work Case Law When an employee returning to work is unable to perform specific job functions, moving the employee to a lower paying job is not accommodation. Cape Breton Health Care Complex and Canadian Auto Workers, Local 4600 90 L.A.C. (4 th ) 403