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Even after Fretz v BDO Canada LLP, people with disabilities retain the right to request accommodations that meet their needs

A decision a few months back of the Human Rights Tribunal of Ontario (“HRTO”), Fretz v BDO Canada LLP, 2014 HRTO 1288, has attracted the attention of employer-focused law firms and commentators, while also raising eyebrows within organizations supporting persons with disabilities. Fanning those flames is an article by Stuart Rudner of Rudner MacDonald LLP, “Workers must play active role in accommodation: Employees entitled to ‘reasonable form’ of accommodation – not always their ‘preferred’ form”, published February 3rd, 2015. 

Background

This case involved a prospective client of a financial services firm who was deaf, and whose first language was American Sign Language. ASL is not merely a different representation of the English language but has its own syntax and structure – as a result, those who are fluent in ASL may or may not necessarily have great skills reading or writing English. The prospective client requested that a sign language interpreter be provided by the firm for her initial consultation meeting. The firm declined to do so, and suggested instead that they simply communicate by typing back and forth on a PC that would be in the meeting room. The prospective client filed a complaint with the HRTO who ultimately found that the firm had not discriminated against her by refusing to provide her with her “preferred” form of accommodation – an interpreter – given the readily available, less expensive alternative. 

The Controversy

Mr. Rudner’s concluding remarks and “takeaway points” bear repeating for the sake of the discussion which follows, because they eloquently sum up the position and understanding of the Fretz case that many in the disability community are so affronted by:

Employers, or anyone being asked to accommodate a disability, must assess the need for accommodation and the options that might be available. They are entitled to choose an option that is reasonable in the circumstances, regardless of the preference of the individual with the disability. This case is a reminder that the parties to a search for accommodation are to work collaboratively, and that neither one is entitled to take an unreasonable position. Those being asked to accommodate cannot simply refuse, but must assess the need and options available. Those seeking accommodation cannot refuse reasonable forms of accommodation, nor can they refuse to provide medical evidence to support their request.

 

Why Fretz doesn’t matter that much

While some have suggested that Fretz could result in those providing accommodations disregarding the wishes of the accommodated individual, I disagree that Fretz will or could have as fundamental impact as all that, because:

 

  1. This notion that a person is ‘entitled to accommodation but not necessarily their preferred accommodation’ is not a new phenomenon. There have been many past instances where an accommodation was found to be reasonable or suitable notwithstanding that it was not necessarily the accommodation that the person with a disability would have preferred to have received: Schafer v Toronto District School Board, 2010 HRTO 403 (para. 16), Central Okanagan School District No. 23 v Renaud, [1992] 2 SCR 970.
  2. The particular facts in Fretz must be considered. Most significantly, the prospective client had indicated that communicating in writing was an acceptable alternative and was prepared to move ahead with a meeting on that basis. The firm did not unilaterally impose a particular form of accommodation on the prospective client, or impose a particular form of accommodation in the face of the strenuous objections of the client. Even the HRTO cautioned against assuming that this decision would or could set a general standard: see paras. 33 and 70 of the Fretz decision.
  3. Courts have previously cautioned against imposing a particular form of accommodation or second-guessing the person with a disability who has requested a particular accommodation. Fretz notwithstanding, other jurisprudence takes a different view of the matter: Moran c Montréal (Ville de), 2012 QCCS 1148 (paras. 50-54), Lawson v 994486 N.W.T. 2Ltd., 2008 NWTHRAP 8 (para. 41).
  4. The Supreme Court of Canada and Federal Court have been particularly vocal in recognizing that the accommodation required is necessarily a function of the factual circumstances, and that alternative means of accommodation are not necessarily reasonable substitutes if they do not maintain the dignity and independence of the person with a disability: Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 (para. 78), Jodhan v Canada (Attorney General), 2010 FC 1197 (paras. 172-174), Council of Canadians with Disabilities v VIA Rail Canada, 2007 SCC 15 (para. 162).

 

In sum, if Fretz does anything at all, it simply highlights that there are no clear answers to these questions, and that every fact situation has to be addressed on its individual merit.

1. Fretz does not change the law

In Schafer v Toronto District School Board, 2010 HRTO 403 (para. 16), the Tribunal described the degree of accommodation required as follows: 

Similarly, as long as the substantive accommodations as recommended in the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met.  The issue is not whether the accommodations implemented are what the student or parent wanted, whether they were the ideal accommodations, or whether other accommodations would have been equally appropriate.  The simple question is this; did the school board implement accommodations (generally, but not necessarily as recommended by the IPRC or IEP) that met the child's special needs?

The Supreme Court of Canada has long since taken a similar view to accommodation, as evidenced by their comments in Central Okanagan School District No. 23 v Renaud, [1992] 2 SCR 970:

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution.  While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business.  When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal.  If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed.  The other aspect of this duty is the obligation to accept reasonable accommodation.  This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution.  If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

Therefore, from a precedent standpoint, Fretz is not a revolutionary change in the law, but rather little more than a restatement of what is already the case.

2. The facts in Fretz are easily distinguished in other situations

There is a critical finding of fact in the Fretz decision upon which, in my view, the entire outcome of the case hinged.

In Fretz, there was no serious assertion that the accommodation proposed by the financial service provider was unacceptable, or that it would be ineffective, or that it would be so inferior to other available forms of accommodation so as to render it inappropriate. In fact, the client herself indicated to the service provider that, due to the unavailability of sign language interpreters, she “would like for the appointment ... to go on as planned assuming that you are able to write back and forth also,” and that in the absence of an interpreter, “there are certainly other means of communication” (see para. 33 of the Fretz decision). 

Fretz is therefore decidedly not a case where a person with a disability has objected (even mildly) to the use of a certain form of accommodation, much less a case of being forced to accept one.  The Human Rights Tribunal of Ontario recognized this fact, and expressly cautioned that this case was not intended to set any general standards on the duty to accommodate, or the duty to accommodate a hearing-impaired individual. In paragraph 70 of the decision, the Tribunal writes:

I accept that the applicant’s first language is American Sign Language and this would always be the preferred manner of communication for her.  Further, I can appreciate that a hearing-impaired person would need an ASL interpreter in certain service interactions.  However, this case is not about deciding general requirements of where and when sign language interpreters are required for the hearing-impaired, and whether a service provider is required to pay for sign language interpretation where the nature of the service being provided means that other forms of communication are not appropriate to the needs of the hearing-impaired person.  Rather, it is about a very specific fact situation and whether or not the applicant has led sufficient evidence to demonstrate that she was disadvantaged by the manner of communication provided.  Based on the evidence in this proceeding, I have difficulty concluding that the applicant could not access the particular service at issue by the method of communication provided for several reasons.

For these reasons alone, Fretz is not a good benchmark against which future accommodation decisions can be weighed. Fretz does not apply in generality.

3. Accepting an individual’s choice of accommodation measures is already a cornerstone of the jurisprudence

Notwithstanding the pronouncement of the Supreme Court of Canada in Central Okanagan School District and the views espoused by the HRTO in Schafer, other courts have over the years expressed clear reservations about dictating the form of accommodation that a person with a disability might be afforded.

In Moran c Montréal (Ville de), 2012 QCCS 1148, a dispute arose between a person who was hard of hearing and members of the Montreal police service. The question arose as to whether or not he absolutely needed to be accompanied by a “hearing ear’ service dog. The Court commented that where the person with a disability had chosen a particular form of accommodation, it was not the Court’s role to question that choice:

[50] It is not for the Court to conduct an inquiry into whether Mr. Moran's dog was necessary to palliate his handicap even though as a result of a cochlear implant, he is able to hear and communicate.

...

[53] Far be it then for the Court to question whether use of the dog should receive the benefit of Charter protection, particularly when the City itself does not do so and the Lions Foundation of Canada [the organization which trained and provided the dog] considered Mr. Moran a suitable candidate for possession of one of its trained dogs after he had already received the implant.

[54] Section 10 of the Charter should receive a large and liberal interpretation.  It suffices then that to be accommodated, the means should be credibly useful, physically or psychically, to palliate the handicap even if not functionally essential.

A human rights adjudicator in the Northwest Territories took a similar view in Lawson v 994486 N.W.T. Ltd., 2008 NWTHRAP 8 (para. 41), a case involving a restaurant that refused to permit Ms. Lawson to be accompanied by her service dog, Megamo. The adjudicator found it was not the restaurant’s job or place to put forward or suggest or insist upon the use of what they believe to be less "troublesome" accommodation measures because this impairs the independence of the customer, and results in those having no knowledge of the disability deciding how it should be managed:

[41] LePage testified that Lawson was presented with an option that Megamo could stay outside behind the restaurant while Lawson was served.  This type of "ultimatum" results in taking away the independence of the person with a disability by failing to allow them to access services ordinarily available to the public in a way that allows the disabled person to determine his or her needs in that particular situation. This exact point was canvassed in the case of Arsenault and Quebec Human Rights Commission v. 2858029 Canada Inc. (1995), 9 C.H.R.R. Doc. 95 -156,  wherein the Quebec Human Rights Tribunal stated:

"... The choice of the means to palliate a handicap belongs to the person affected by the handicap, and that person alone. This right would be rendered ineffectual if the choice it involved were questioned by those who do not share, and have no interest in the handicap, but nevertheless erroneously believe they have more practical and less bothersome solutions."

The recently-adopted United Nations Convention on the Rights of Persons with Disabilities, which Canada has ratified, provides some legal basis upon which a person with a disability could stand if their particular choice of accommodation were questioned by an employer or service provider. Under Article 3(a) of the Convention, a fundamental principle is “respect for inherent dignity, [and] individual autonomy including the freedom to make one’s own choices....”  Where the choice of accommodation is in part a matter of personal dignity, imposing specific accommodations may be an affront to that right.

Finally, in the past, the Supreme Court of Canada has recognized that choice is an element to accommodation and the imposition of a certain accommodation (or the failure to provide the accommodation that would permit true, effective access) can give rise to a violation of a person’s rights. Per Justice La Forest in Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 (para. 78):

The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.  In Re Saskatchewan Human Rights Commission and Canadian Odeon Theatres Ltd. (1985), 1985 CanLII 183 (SK CA), 18 D.L.R. (4th) 93 (Sask. C.A.), leave to appeal refused, [1985] 1 S.C.R. vi, the court found that the failure of a theatre to provide a disabled person a choice of place from which to view a film comparable to that offered to the general public was discriminatory.  Similarly, in Howard v. University of British Columbia (1993), 18 C.H.R.R. D/353, it was held that the university was obligated to provide a deaf student with a sign language interpreter for his classes.  “[W]ithout interpreters”, the Human Rights Council held, at p. D/358, “the complainant did not have meaningful access to the service.  And in Centre de la communauté sourde du Montréal métropolitain inc. v. Régie du logement, 1996 CanLII 19 (QC TDP), [1996] R.J.Q. 1776, the Quebec Tribunal des droits de la personne determined that a rent review tribunal must accommodate a deaf litigant by providing sign language interpretation.  Moreover, the principle underlying all of these cases was affirmed in Haig, supra, where a majority of this Court wrote, at p. 1041, that “a government may be required to take positive steps to ensure the equality of people or groups who come within the scope of s. 15”.

4. Accommodation providers do not have an unrestrained right to impose “alternatives” that reduce a person’s independence or impair their right to dignity

Lest there be any doubt as to whether Eldridge remains “good law,” one need only look to the battle that took place been Donna Jodhan and the federal government regarding the accessibility of web sites to blind and partially sighted users. Jodhan asserted that Government of Canada informational and transactional web sites were not accessible to her as a blind user. The Federal Court agreed (see Jodhan v Canada (Attorney General), 2010 FC 1197) and noted that the “failure perpetuates a disadvantage which undermines the dignity of the visually impaired. This differentiation perpetuates the stereotyping and prejudice that blind persons cannot access and benefit from online government information and services which sighted persons can.” 

The Court also noted that the possibility of obtaining the same information through other means does not change the situation any:

[172]  In the case at bar, for a blind person to rely on telephoning a government number is not substantive equality with a sighted person who can obtain the same information and services online. First, there is the frustration of trying to reach a government number. Second, there is a loss of independence and dignity when having to rely on a sighted person to provide the information and services which the blind person could obtain online if the website was accessible. Third, the loss of freedom and instantaneous responses is significant. Fourth, there is evidence before the Court of how unreliable government information is when being mailed.

...

[174]  Based on the jurisprudence, the use of alternative channels is not a reasonable accommodation unless the respondent proved that it is not technically feasible to implement the CLF Standard or it would be so expensive that it would cause undue hardship in the context of a section 1 of the Charter defence. The respondent expressly did not plead this defence even though specifically challenged on this by the applicant. The only defence pleaded was that the applicant could obtain the information and services sought through alternative channels. In three (3) of the applicant’s examples this was not so. In any event the Court has found that these other channels are so under-inclusive as to be discriminatory.

In Council of Canadians with Disabilities v VIA Rail Canada, 2007 SCC 15, the issue was whether VIA Rail should be required to modify newly purchased railcars in order to accommodate passengers with wheelchairs. VIA Rail suggested that VIA Rail staff could simply help passengers where needed on the train (such as using the washroom facilities), and have them transfer out of their own wheelchair and into smaller, on-board wheelchairs for the trip. At para. 162 of that decision, the Supreme Court rejected the idea that these “alternatives” would adequately promote the dignity and independence of such travelers:

The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.

Conclusion

There a significant body of existing jurisprudence which calls into question the notion that providing alternative forms of access will amount to “reasonable accommodation”. While the provider of that accommodation (be it an employer or a service provider) might well have some discretion to assess the various accessibility options and be justified in choosing to use the less expensive or less troublesome option, careful consideration must be given to the specific situation at hand. If that “less expensive” or “less troublesome” option could practically work but does not afford the same level of independence or dignity, or does not result in “meaningful access” being provided, it may not be considered to be sufficient.

For the prospective client in Fretz, the alternative accommodations were (by her own admission) reasonable and would have afforded her a sufficient degree of access. Had her ability to read or write English be more significantly impaired, or had the nature of her appointment been one where serious legal consequences could flow from the decisions made, the Tribunal might well have decided differently.

All in all, Fretz will not change the world, and Fretz truly offers very little substantive guidance on the duty to accommodate, or the roles and responsibilities of the parties in an accommodation scenario.

 

Disclaimer:

This blog is curated by the AEBC, but welcomes contributions from members and non-members alike. The thoughts, views, and opinions expressed in the Blind Canadians Blog are those of the contributing authors and do not necessarily reflect those of the AEBC, its members, or any of its donors and partners.
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