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The Meiorin and Grismer Cases

The 1999 Supreme Court decision in the case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3, (known also as the Meiorin case) is particularly useful in interpreting the duty to accommodate. This case resulted in a unified test for determining whether or not the defence of bona fide occupational requirement applies. Shortly thereafter, the Supreme Court extended the application of the Meiorin test to the provision of services and claims of bona fide justification in a case formally known as British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (referred to as the Grismer case).

The Supreme Court also clarified the responsibility of employers and service providers to ensure that all barriers to participation, for people protected under human rights law, are eliminated from their policies, rules, standards, practices, and services at the design stage.

In effect, the Court proposed that employers should no longer simply rely on an individualized accommodation response to requests from employees who face barriers in the workplace. Employers and service providers must make sure that they build accommodation into their policies and practices as far as possible, up to the point of undue hardship:

"Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, insofar as this is reasonably possible. Courts and Tribunals must bear this in mind when confronted with a claim of employment related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that allows for such accommodation may be only slightly different from an existing standard but is a different standard nonetheless." [Emphasis added]. Paragraph 68, British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union.

"Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups with their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards." Paragraph 19, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights).

This means that employers and service providers should ensure that all their corporate programs and activities, including policy-making, development of rules, standards or programs, purchases of new technology or equipment, real property decisions, and information provision are barrier-free. Workplace standards must be designed to reflect all members of society, as opposed to being designed on the basis of a current (unrepresentative) workforce.

Even when every effort has been made to ensure corporate activities are free from discrimination, there will be circumstances where the needs of a specific employee will require an individualized adjustment in the workplace. In these circumstances, an employee should have access to an individual accommodation.

For more information on the Meiorin and Grismer cases, see the Canadian Human Rights Commission’s publication entitled Bona Fide Occupational Requirements and Bona Fide Justifications Under the Canadian Human Rights Act, available from the Canadian Human Rights Commission or on our website.

Another case of note is Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, which states that a union shares joint responsibility with the employer to seek to accommodate an employee, and both are equally liable if nothing is done. In particular, a union may be found liable if it has participated in the formulation of a work rule that has a discriminatory effect on an employee or if it impedes the reasonable efforts of an employer to accommodate.

On the issue of disability, the Supreme Court ruled that employees who are perceived to have disabilities are protected by prohibitions against discrimination on the basis of handicap or disability. The Court said:

"a "handicap" may exist even without proof of physical limitations or the presence of an ailment. The "handicap" may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future." Paragraph 81, Québec (Commission des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal, [1999] 1 S.C.R. 381.