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Follow us on TwitterWhat do you do when human rights of one person compete with another’s? Employers, housing providers, and other public service providers have a duty to accommodate those with disabilities under the Ontario Human Rights Code (the Code). Sometimes, however, these obligations lead to conflict between multiple people in need of accommodation. An example of this that has been felt by housing providers and employers is the tension between persons with service animals and other persons with allergies. Some people in need of accommodation rely on service animals to assist them. But people suffering from allergies to dogs can’t be expected to live and work in an environment that does not accommodate their needs. How does an employer or a housing provider address these competing obligations to accommodate these persons in a fair manner that complies with the Code?
Recent British Columbia Court of Appeal Case on Accommodation
The case of McCreath v Victoria Taxi, which recently came out of the British Columbia Court of Appeal, dealt with these very issues. Mr. McCreath is a blind man who has a guide dog. When a taxi arrived to pick him and his friends up after dinner, they were refused entry into the cab because the driver had allergies to his dog. The company sent a different cab to pick them up within one to two minutes.
Mr. McCreath claimed discrimination under the British Columbia Human Rights Code because he was refused the first cab. He argued that Victoria Taxi had not met its duty to accommodate his disability. Other ways they could have accommodated him included requiring drivers to take allergy medication, or using fans or partitions to minimize impacts on the driver.
Victoria Taxi, for its part, pointed out its conflict in having to accommodate the disabilities of patrons, as well as the disabilities of its employees in the form of their allergies. Their policy was that drivers with serious allergies to dogs could file a medical certificate annually with the office so that they know not to send those drivers to pick up customers with service animals, as long as they are told about the dog in advance. Only 11 out of their 225 drivers had one of these certificates.
The British Columbia Human Rights Tribunal decided that Victoria Taxi appropriately balanced the competing obligations and satisfied its duty to accommodate Mr. McCreath. On appeal, Mr. McCreath argued that the Tribunal should not have engaged in a balancing analysis. The claim was meant to be about Victoria Taxi’s duty to accommodate Mr. McCreath and it was inappropriate to balance his rights with those of someone else. The Court of Appeal disagreed.
Balancing Competing Human Rights
In Ontario, the duty to accommodate will be satisfied when there has been accommodation to the point of undue hardship (Code, s. 17(2)). Under British Columbia human rights legislation, the language is of a “bona fide and reasonable justification” for discrimination (s. 8(1)). However, case law coming out of the British Columbia Human Rights Code uses the language of undue hardship, as does the Court of Appeal in the McCreath decision. Therefore, the decision would appear to be applicable to the Ontario context.
If Victoria Taxi was required to infringe on the rights of its employees to accommodate Mr. McCreath, that would constitute undue hardship, said the Court of Appeal in this case. In the words of the Court, “It was the duty to accommodate the drivers with disabilities that provided the bona fide and reasonable justification for the discrimination against Mr. McCreath because any further effort to accommodate Mr. McCreath would have resulted in discrimination against the driver” (para 28). Therefore, some degree of balancing is required. The decision recognizes the difficulty in trying to balance competing human rights.
Impacts on Service Providers
What does this mean for our clients who are employers, housing providers, or other service providers? The McCreath case supports the idea that courts will take into account competing responsibilities when determining if the duty to accommodate was satisfied. This should bring some comfort to those facing these types of conflicts.
It is important to note, however, that the impact on Mr. McCreath was minimal. He was required to wait for a different taxi for a few minutes. This is not to discount or minimize the many systemic challenges faced by those with visual impairments on a constant basis. But if the effect of the discrimination means denying someone housing, for example, or an impact of a similar magnitude, the courts will likely take that into account when considering if the duty to accommodate has been met.
Service providers, housing providers and employers should continue to do everything they can to accommodate the persons with disabilities to whom they owe a duty to accommodate. The Code specifies that in considering whether the standard of undue hardship has been met, courts and tribunals will look to cost, outside funding and health and safety (s. 17(2)). When faced with a case of competing disabilities, such as those with service animals and allergies, be sure to explore all possible avenues of accommodations.
