Case Note: On The Existence Of An Independent Procedural Duty To Accommodate

In Canada (Attorney General) v Cruden, 2013 FC 520, a Federal Court justice denied the existence of a separate procedural duty to accommodate that could be breached even if the substantive duty had been met. In Canada (Human Rights Commission) v Canada (Attorney General), 2014 FCA 131, that finding was upheld.

The Federal Court of Appeal held that, whether the standard to be applied to the Tribunal's decision was correctness or reasonableness, the provisions of the Canadian Human Rights Act led to only one reasonable (or correct) conclusion. Once the Tribunal found that accommodation of the grievor would have imposed undue hardship on the employer, the complaint should have been dismissed. There was no separate procedural duty to accommodate under the Act that could give rise to remedies if the employer had successfully shown that compliance with an employment standard was a bona fide occupational requirement.