Undue Hardship

In Nova Scotia, the single reference on the Human Rights webpage to "Undue Hardship" is in the context of employment:

Duty to Accommodate

Employers must not discriminate against employees based on protected characteristics, such as disability or gender. In fact, an employer has what is called a “duty to accommodate." This means they must do what is reasonable to allow a person to get, or keep, a job.

Accommodating a person may mean allowing shorter work hours, changing job duties, or providing equipment that will let a person continue to work. All employers must try to accommodate the needs of their employees up to the point of undue hardship. Where this point is depends on several things, including the size of the organization and the role of the employee within the organization. For example, the larger the organization, the greater is the ability to accommodate. Accommodation does not have to be perfect, but it should be reasonable.

Those of us on the receiving end of ''accommodation" are accustomed to hearing "undue hardship" used in the context of physical barriers.

• "We don't provide level access to our business because a ramp isn't feasible and a lift is too expensive"
• "Our doorways are 800mm wide and it would be an undue hardship to renovate them to 1000mm"
• "Our washroom is downstairs and it would cost a fortune to move it"

There's a lengthy section in in Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 (CanLII), released on March 23, 2007 which includes this interesting paragraph:

225 The threshold of “undue hardship” is not mere efficiency. It goes without saying that in weighing the competing interests on a balance sheet, the costs of restructuring or retrofitting are financially calculable, while the benefits of eliminating discrimination tend not to be. What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment? It will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.

To me this introduces the important idea that it's not just the undue hardship of a business or process that counts, but also the undue hardship of the user or patron and the undue hardship of the community.  So instead of just:

The cost to accommodate is unreasonable.

it becomes

The cost to accommodate + the cost to the individual + the cost to the community is unreasonable.

As an example, consider situation of a newly-minted social worker who is deaf.  A complete accounting of "undue hardship" might start with the cost of having an ASL interpreter at meetings and some technology, but should include the fact that we all have quite an investment in her education and that we collectively stand to benefit from her employment.  So it the cost to accommodate is

ASL Interpreter + fancy voice recognition device

- what we spent on her education

- the benefit of having a social worker 

I would feel better if the new Accessibility Standards had this a a principle - that accommodation has benefits as well as costs.  They can be harder to quantify, but the effort must be made.

VIA gets its knuckles rapped

Seven years after the Supreme Court of Canada chastised VIA Rail for not being wheelchair accessible, VIA has finally gotten around to begrudging compliance with the decision.  Times have certainly changed since W.C. Van Horne built a whole railroad from Ontario to Vancouver in the four years from 1881 to 1885.

Today is the inaugural trip of the accessible cabin on The Canadian, which runs from Vancouver to Toronto.  The sleeper looks pretty spiffy.

It took the determination of an artist from Iles de la Madeleine to make this happen.  Gaetane Cummings received reimbursement for her ticket, lawyer's fees and $30,000 damages.

La Madelinienne Gaetane Cummings

It's informative to read the Toronto Sun's 2010 article on the lawsuit.  In it they mistakenly assert that Cummings is 'wheelchair bound' when it is crystal clear that she is a Canadian traveler like any other who wants to see her country.  Doesn't sound like she is a prisoner.  They also say she is a 'multiple sclerosis sufferer' when it's abundantly clear that MS does not control her life in any way.  One expects a certain level of cluelessness from the Sun, and they don't disappoint.

You can read the settlement,  and the decision and decide for yourself if VIA got off lightly.  I love the parts of the settlement, obviously written by the Mad Hatter in Wonderland, where VIA denies everything before paying up.

For those of you who are 'wheelchair reliant' (nice try, but not as good as 'wheelchair liberated'), you can exact your own punishment of VIA by getting a 50% discount on the use of this accessible sleeper.  Looks to me like this is an amount in the thousands of dollars.

H/T Claredon Robichau

PS Not too late to take a stand on the Hydrostone Market.  Be like Gaetane!

Ban ki-Moon, meet Larry Swinamer

Larry Swinamer

Ban ki-Moon
8th Secretary General of the United Nations

Thanks to Elizabeth Braid, we learn that the UK is the first country to be investigated for human rights violations under the United Nations Convention on the Rights of Persons with Disabilities.   Where the mother country is concerned, can Canada be far behind?

I have written about Canada's foot-dragging on the Convention, which it ratified in 2010.  I have been a skeptic and made fun of the thought of calling up buddy Ban to complain.  I haven`t even bothered to comment on Canada`s pathetic and tardy first report on its efforts to comply.  2 years late, irrelevant, inadequate.

Shame on me.  Maybe I should invite Mr. ki-Moon to tour the Hydrostone Market, where he will see the results of Canada`s efforts on Article 4:

• (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
• (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
• (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
• (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
• (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;

Or how Larry is complying with Article 5:

• 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
• 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
• 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
• 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Or Article 9, or Article 12, or Article 19.  Or especially Article 27, Work and Employment.  You can`t work where you can`t get to.

So maybe a complaint to Ban ki-Moon is the way to go.  I`ll give it a try.  Nothing else seems to work.

Gus Reed
PS You can still sign the petition to make Hydrostone accessible: