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Brief on Undue Hardship & Voluntary Assumption of Risk

Editor's Note: Editor's Note: In October, 1999, NFB:AE was asked to participate in a series of consultations sponsored by the Ontario Human Rights Commission concerning possible revisions to the Undue Hardship Standards and Voluntary Assumption of Risk. Both of these concepts are central in assessing whether employers, service providers or others have met their duty to accommodate people with disabilities.

The National Federation of the Blind: Advocates for Equality, is pleased to participate in the consultations conducted by the Ontario Human Rights Commission on possible changes to the undue hardship guidelines. Founded in 1992, the National Federation of the Blind: Advocates for Equality, ("NFB:AE"), is a national consumer group of blind people whose mandate it is to protect and enhance the rights of blind and vision-impaired people in Canadian society through advocacy, public education and other initiatives. Approximately one third of NFB:AE's members reside in Ontario.

Reasons for the Commission's Review

NFB:AE does not believe that this review of the undue hardship guidelines is necessary. No Canadian courts have criticised the existing guidelines. The Barber v. Seers

Canada decision cited by the Commission in its consultation paper cannot be used to justify this review since the commentary in that decision is based on a wrong assumption that the current guidelines for establishing undue hardship go beyond what is required under the Ontario Human Rights Code. Apart from referring to the concept of undue hardship in several sections of the Code, the term "undue hardship" is not defined in the legislation. This problem could be rectified in the legislation by giving the Commission the power to enact regulations with the approval of the governor in council to define terms such as undue hardship and to set evidentiary criteria for proving the same. The concern of the Board of Inquiry in Barber, supra, could be addressed by the Commission proposing that the existing guidelines be enacted in regulation form by cabinet. It appears that a substantial reason for conducting this review is based on Recommendation 38 of the Red Tape Task Force Report. This recommendation reads: "38. In Consultation with a representative group of stakeholders, including a sufficient sample of small to medium-sized employers, develop and implement clear and reasonable criteria for determining "undue hardship". In NFB:AE's submission, the existing undue hardship guidelines identified by the Commission are both clear and reasonable. They already specify the financial and other conditions which must be met before undue hardship is established, the type of evidence which must be provided by an employer or a provider of goods, services and facilities to establish undue hardship to defend a claim of discrimination and appropriate safeguards to allow blind and vision-impaired people to assume the risks of working under certain conditions in performing their job duties if they so choose. There is no reason to depart from these guidelines based on the wording of Recommendation 38 from the Red Tape Task Force since the concerns identified by the Commission are not supportable based on current human rights jurisprudence before the courts or Ontario Boards of Inquiry. In addition, the Red Tape Task Force makes no specific reference in Recommendation 38 to place any weight on the views of people with disabilities in the consultation process which it had envisioned.

The Undue Hardship Standard

NFB:AE submits that the undue hardship standard as expressed in the guidelines still remains appropriate in spite of the Supreme Court of Canada's decision in Eldridge v. BC Medical Services Commission which is referred to in the consultation paper. The guidelines specify that in order for a respondent to succeed in advancing an undue hardship defence, the "accommodation would have to alter the substantial nature of the enterprise or substantially affect its viability". There is nothing in Eldridge, supra to suggest that this standard is no longer appropriate. The Eldridge decision only stands for the proposition that courts may consider whether an accommodation would pose an undue hardship on government when the accommodation is being evaluated under Section 1 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada gives no guidance at all in Eldridge on what would or what would not constitute an undue hardship. Accordingly, the reasoning in Eldridge, supra, does not provide a good reason for re-visiting these guidelines especially when they have not been rejected by any Canadian courts.

Voluntary Assumption of Risk

NFB:AE sees no reason to vary the guidelines identified in Question 2 of the consultation paper. Again, no courts have made any comments criticising these guidelines. The guidelines themselves assist people with disabilities in achieving the dignity and respect they deserve within Canadian society. Placing further restrictions on a disabled person's job choice by reducing their ability to agree to assume certain risks in order to perform the job is not in keeping with Section 15 of the Charter and other basic legal trends in Canada. The current trend of requiring the employer, housing provider or service provider to explain the material risks to the individual with a disability is appropriate and should continue. If the individual decides to assume the material risk in question in order to perform a certain job, live in a certain place or obtain access to certain goods, services or facilities, a respondent should not be permitted to rely on undue hardship to deny such basic access.

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