Origins
According to Professor Pierre Bosset, obligatory accommodations stem from two distinctive ideas:
-The right to equality
-Discrimination
The idea of accommodation did not appear until the mid-80s. It was enshrined by “quasi-constitutional” laws and charters such as the Canadian Human Rights Act and the Charter of Rights and Freedoms of Quebec whose main role is to ensure the right to equality and, therefore, to prohibit discriminatory practices [2].
Definitions
Legislative
The concept of reasonable accommodation has not been defined by any Canadian laws. However, several areas affected by the notion of accommodation are covered by:
- Article 10 of the Quebec Charter of Human Rights and Freedoms
- Article 3 of Canadian Human Rights Act
- Article 15 from the Canadian Charter of Rights and Freedoms
The Quebec Charter of Human Rights and Freedoms applies to:
Private space
For example: restaurants, theatres, parks, and campgrounds
Public space (Provincial Jurisdiction)
For example: Universities, schools, government enterprises (like Hydro-Quebec).
Article 10 covers the idea of “disability” and “the use of means to overcome a disability”:
“Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, color, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.”
“Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”
The Canadian Human Rights Act is a federal law of quasi-constitutional nature which applies specifically to cases of discrimination in private cases under federal jurisdiction.
For example: federal departments, crown corporations, federal undertakings (Bell Canada, Via Rail)
Paragraph 1 of Article 3 lists the prohibited grounds of discrimination, and reads as follows:
“3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, disability and conviction for which a pardon has been granted.”
The Canadian Charter of Rights and Freedoms
Article 15 of the Canadian Charter of Rights and Freedoms guarantees that individuals living with a disability have equal protection and equal benefit of law, provincially and federally, because the law makes no exceptions, it applies equally to all.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
It should be stressed however, that section 15 of the Canadian Charter of Rights and Freedoms, in contrast to the Quebec charter, only controls:
- The Law (For Example: municipal regulations, code of school life, etc.) and;
- Enforcement by officials (For example: the direction of a school board, a hospital, etc.)
**Attention: It is necessary that the various rules and applications are sourced directly into the law before invoking the Canadian Charter.
Definition of Accommodation
The AQEIPS uses the definition given by the Commission des droit de la personne et des droits de la jeunesse (CDPDJ) to define the notion of reasonable accommodation:
“It involves the construction of a standard or universal practice of giving differential treatment to a person who would otherwise be penalized by the application of this standard.”
The CDPDJ adds that there is no obligation to accommodate in cases of undue hardship.
What is undue hardship?
In a situation of discrimination, it must be assessed whether a request for accommodation is unreasonable through a series of factors:
- The cost of the accommodation being asked
- The impact on the proper functioning of the enterprise or the organization or;
- On the rights of others (for example: the employer, employees, the students of a university, etc.)
Why were accommodations created?
Accommodation methods were created to provide equal opportunity to individuals living with a disability so they can fully benefit from services such as:
- Education
- Transportation
- Health
** The AQEIPS would like to thank Anita Ho-Tieng, law student and volunteer from the ProBono-UQAM Program for her collaboration in writing this section of the guide under the supervision of her teachers.
[1] UQAM professor, lawyer, M. Phil. (Cambridge University), LL.M. (Essex University), LL.L. (Université de Montréal). Research and planning director at the Commission des droits de la personne et des droits de la jeunesse du Québec.
[2] Pierre Bosset, « Limites de l’accommodement : le droit a-t-il tout dit ? », April 2007, Éthique publique magazine (volume 8, number 3), p. 2.