An interesting case from the Ontario Human Rights Tribunal considers this important question. The case is Vanhelvoort v. Ontario Labour Relations Board, 2013 HRTO 1998 (CanLII) decided on December 2, 2013.
The applicant alleged discrimination on the basis of her family status. The allegation largely related to the adjudication of a claim filed by the applicant with the respondent, Ontario Labour Relations Board (the “Board”). There were additional allegations relating to the Board not having a diaper changing table in the washroom and that there was no facility to change children’s diapers.
The Tribunal, in an interim decision dismissed the allegations relating to the Board’s handling of the applicant’s claim. Accordingly, the only issue that proceeded before the Tribunal was the allegation that the failure to provide changing tables in the washrooms was discriminatory. The Board responded as follows:
In responding to the remaining allegation in its Response to the Application, the respondent submits that the washroom facilities on the three floors where it holds hearings, at 505 University Avenue in Toronto, do not have baby changing stations, but have quite large ledges (44” X 16”) in front of permanently sealed windows which could be used for diaper changing. Additionally, the main floor washroom in the building has a large sink counter which could also be used for diaper changing. The respondent also submits that the applicant did not request any assistance, or accommodation, when she attended an OLRB hearing on April 6, 2010.
In her Reply dated May 18, 2011, the applicant disagrees that a ledge is a safe place to change a baby’s diaper. She submits that her husband asked staff at the OLRB if they had a “family friendly washroom” and was told “no” and offered no alternative.
The case turned on whether the applicant asked the Board if they had a “family friendly facility”. The applicant maintained that this request was made, the Board maintained that it was not and, as such, the need for assistance was never communicated.
The Tribunal confirmed that the initial onus in a discrimination case rests upon the applicant to establish a prima facie case of discrimination. The Tribunal cited Baber v. York Region District School Board, 2011 HRTO 213 (CanLII). The Tribunal noted that, on the evidence, that:
… it is not clear to me that the applicant has established, on a balance of probabilities, that she was disadvantaged on the basis of family status, as a result of the respondent not having a specific diaper changing facility, such as to establish a prima facie case of discrimination under the Code. Put another way, it is not clear to me, in the present case, that the applicant has established that the absence of a washroom with a specific facility for changing diapers interfered with her “ability to fulfill her substantial parental obligations in any realistic way.” See Canada (Attorney General) v. Johnstone, 2013 FC 113 (CanLII), 2013 FC 113 at para. 128.
However, it was not necessary for the Tribunal to decide that issue, since they dismissed the application because the applicant had not made known to the Board her need for accommodation.
The applicant communicated, and was understood, to have asked if the Board had a baby changing facility. The Board said it did not and “there was no request for assistance, or for anything else, at the time”.
And this is important for employers. When is the process of accommodation triggered or engaged? The Tribunal set out the following principle:
The Tribunal and the courts have made it clear that a person seeking accommodation has a duty to make his or her Code ground-related needs known to the service provider in order to trigger the service provider’s duty to accommodate the person’s needs up to the point of undue hardship. See, for example, Huseynov v. Nimigan Mihailovich Reporting, 2012 HRTO 807 (CanLII), 2012 HRTO 807 at paras. 40-41, MacDonald v. Cornwall Public Library, 2011 HRTO 1323 (CanLII), 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 (CanLII), 2009 HRTO 1362; and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC),  2 SCR 970.
The Tribunal put it this way in MacDonald:
The onus must be on the individual seeking accommodation to advise the library that he or she needs accommodation. Otherwise, the library would be in the very difficult position of having to accommodate persons whose needs it had no means of knowing or investigating. The duty to cooperate as set out in the Renaud case must include an obligation to advise the service provider of the need for accommodation. It is this notice which triggers the duty to accommodate.
In the circumstances of this case, the Tribunal concluded that “I am not satisfied that any actual family status-related needs of the applicant were sufficiently made known to the respondent to trigger the duty to accommodate in the present case”. When the applicant was informed that there was no diaper changing facility, the response was “thank you” and that was the end of it. The Board offered a separate room, if needed.
In the end the application was dismissed.
Significance For Employers
The duty to accommodate is not automatic, but has to be triggered by the applicant (the person seeking accommodation). More specifically, the person seeking accommodation has a duty to “make his or her Code ground-related needs known to the service provider in order to trigger the service provider’s duty to accommodate the person’s needs up to the point of undue hardship” (Huseynov, para. 40).
In the employment context Simpson provides further guidance to employers:
In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.
The point here is that the initial onus rests on the person seeking accommodation on a Code related basis to trigger the need for accommodation.