Update on Cruden: Procedural Duty of Accommodation

The winter edition of EMPLAWYERS’ UPDATE informed our readers about the Federal Court decision that determined the Canadian Human Rights Act (the “Act”) does not impose procedural duties on employers in the course of fulfilling the duty of accommodation.

On May 20, 2014, dismissing an appeal by the Canadian Human Rights Commission (“the Commission”), the Federal Court of Appeal agreed that the Act does not impose stand-alone procedural duties.

Ms. Cruden was an employee of the Canadian International Development Agency (CIDA, “the Agency”) with type 1 diabetes. She applied for a posting in Afghanistan to gain field experience, in order to become a development officer within the Agency. During her second posting in Afghanistan, she experienced a hypoglycemic incident and was returned to Canada. Following this incident, CIDA mandated medical assessments, as well as adherence to newly developed Medical Evaluation Guidelines for Posting, Temporary Duty or Travel to Afghanistan (“the Guidelines”), applicable to all postings in Afghanistan. That Cruden was not posted in Afghanistan due to the application of the medical assessments and the Guidelines was undisputed.

Cruden complained to the Canadian Human Rights Tribunal (“the Tribunal”) which determined that while CIDA’s practices were discriminatory, it would constitute an undue hardship on the Agency to accommodate Cruden in Afghanistan. However, the Tribunal also ruled that the Agency had not met its procedural duty to accommodate Cruden, and awarded certain monetary and administrative remedies on this basis.

At the Federal Court, the Commission was unsuccessful in arguing that while CIDA had not breached Cruden’s substantive rights, procedural duties in the accommodation process constitute a separate source of liability.

On appeal, the Federal Court of Appeal held that the Federal Court was correct in interpreting the Act as providing a bona fide occupational requirement, and that the undue hardship to the employer was a complete defense to the allegations of discrimination. Accordingly, the Tribunal had not erred in holding that the Act had not been violated. Further, the Court held that it was reasonable for the Federal Court to interpret the Act as requiring the Tribunal to dismiss the complaint as soon as it found that it would be an undue hardship on the employer to accommodate the employee. The Court concluded that there is no statutory nor jurisprudential support for a separate, procedural duty to accommodate.

In Ontario, the Human Rights Tribunal and 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. For example, 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. Accordingly, this issue may be treated differently in other jurisdictions. Nevertheless, for federal employers, this decision maintains that there is no right to procedural accommodation independent of the substantive rights provided for under the Act.