Mandate #5 Rethink "Undue Hardship"

'Tis the season for telling government officials what to do.  The Premier is distributing Mandate Letters to all departments. In that spirit, and so he doesn't feel left out, there are some chores for him too.  There are seven of them, and I will take each in turn.

Mandate #5:  Rethink "Undue Hardship"

Some clever lawyer once made the case that accommodating a disability was an 'undue hardship" on an employer or retailer or restaurant.  Usually the government is all for this argument, listening carefully to business interests and not-so-carefully to people.

Ask yourself the question though - what is the opposite?  Is it "due hardship" or "undue leniency"?

"Undue Leniency" is what you get by letting people off the hook completely.  If an employer doesn't hire the best candidate for a job because they use a wheelchair, the business is on the second floor and there's no elevator, have they violated any law? 

Maybe, maybe not, but they've tromped on several Charter Rights and a social contract or two.  Taxpayers license the business, deliver customers by Metro, plow the street and pick up the trash.  Shouldn't they all benefit, wheelchair users included?

"Due Hardship" is a better principle.  The business may be unaware of its obligations.  The Human Rights Act is distant and obscure, it's easy enough to get a license to operate.  Ignorance is no excuse, but the government does a lousy job of enforcing things like the Building Code - I doubt there's any checkbox on a business license application that says "I understand that discrimination is illegal" .

In "Undue Hardship" cases should the victim pay the entire price?  It's partly society's fault (channeled through an inattentive government) and partly the business owner's fault, but certainly not the prospective employee's fault.

If the injured party feels strongly, they can file a Human Rights action.  If it goes in their favor, it can all come undone if the "Undue Hardship" defense is mounted.  The trick is to find the point of "due hardship", where society's  aspirations balance business needs.

Much of the problem has simply vanished in the time of Covid.  People work from home, shop from home, get takeout - the new normal is disability friendly.   There are some services that absolutely require access - dentists, WalMarts, the library.

It's not a simple problem, but it can be done.  The cost to accommodate should account for some government participation, at-home alternatives, a reasonable time to comply, penalties for noncompliance and incentives to comply.  Distinction should be made between landlords and tenants.  The outlines of the algorithm should be published so establishments can make an informed decision.

Here's a restaurant example with a set of rules that favors tenants, breaks even for landlords in 7 years, and has moderate incentives:

	Item	Cost
Expense	Accessible Washroom	$ 40,000.00
	Government incentives due to past omissions	$ (10,000.00)
	Net	$ 30,000.00
	Years to comply	3
COMPLIANCE	Cost/ yr	$ 10,000.00
	Landlord	$ (5,000.00)
	Tenant	$ (5,000.00)
	OR
NONCOMPLIANCE PENALTIES	Landlord share	$ 2,500.00
	No government expenses/procurement for noncompliant business (just a guess)	$ 1,500.00
	BusIness Share	$1,000
BREAK EVEN YEAR	Landlord	7
	Tenant	6

and a chart:

Some general principles:

• There is no such thing as "Undue Hardship"
• The window for compliance is always 3 years
• The government accepts responsibility for some share
• Since accessibility often includes property upgrades, landlords bear a bigger share
• This principle can be optimized