No Stand-Alone Procedural Rights under the Canadian Human Rights Act

The Federal Court has recently ruled that the Canadian Human Rights Act (the Act) does not include a stand-alone right to procedural accommodation.

In a recent application to the Federal Court, the Canadian International Development Agency requested that the Court overturn a decision of the Canadian Human Rights Tribunal. The Tribunal had allowed a complaint by an employee, Bronwyn Cruden, in which she had alleged that she was denied a posting to Afghanistan on the basis of Health Canada’s finding that her Type I diabetes may lead to a life-threatening medical emergency, making her unfit to serve in that country.

Notwithstanding that the Tribunal found the complainant had established a prima facie case of discrimination and that it would have caused undue hardship to the employer to accommodate her, it allowed the complaint based on a breach of the employer’s procedural duty to accommodate. The Tribunal thought the employer ought to have offered the complainant an alternate deployment or sought a medical opinion apart from that of Health Canada. Further, the Tribunal found the health guidelines for Afghanistan to be discriminatory because they did not permit individualized assessments.
Accordingly, the complainant was awarded damages and ordered to be deployed to a country that was one of her top three choices. The Tribunal also ordered that the health guidelines for Afghanistan be clarified in order to ensure that they did not constitute a complete ban for anyone with a chronic medical condition.

Justice Zinn for the Federal Court allowed the employer’s application for judicial review on the basis that the Tribunal’s decision was unreasonable.

The Court found that there was no reasonable interpretation of the Act that permitted the Tribunal to continue to examine a complaint once it found that accommodation was not possible without undue hardship. The procedural analysis is simply an analytical tool for determining whether or not the employer had established undue hardship; where undue hardship is found, a bona fide occupational requirement is also established. As Justice Zinn stated (at paragraph 70):

That is not to say that the procedure used by the employer when considering accommodation cannot have significance in any given case; indeed, in practical terms, if an employer has not engaged in any accommodation analysis or attempts at accommodation at the time a request by an employee is made, it is likely to be very difficult to satisfy a tribunal on an evidentiary level that it could not have accommodated that employee short of undue hardship [citations omitted]. That is the very real and practical effect of the evidentiary burden to establish a BFOR resting with the employer.

Thus, a finding of undue hardship is a full defence for the employer, upon which the complaint is dismissed and no remedies may be ordered. The Federal Court concluded that there is no further and separate procedural duty under the Act that could be breached.

In light of the finding that the complainant could not be accommodated without undue hardship, the decision was quashed and not referred back to the Tribunal.

It is worth noting that this issue may be treated differently in different jurisdictions. In Ontario, the Human Rights Tribunal and the reviewing courts have repeatedly found that, even where undue hardship has been substantively established, damages may be awarded if a separate, procedural duty of accommodation has been breached. Procedural deficiencies such as failure to conduct a thorough investigation or a detailed search of alternative suitable employment have given rise to awards of damages in Ontario.

For employers in the federal sphere, however, this decision is significant, as it dissuades the possibility of a right to procedural accommodation independent of the substantive rights provided for under the Act.