Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada

Abstract

The rise of the accommodation duty, and particularly the accommodation rights of employees with disabilities, has been the greatest single innovation within Canadian labour law over the past twenty years. High Law principles on disability accommodation have been developed through a series of Supreme Court of Canada rulings, and these principles have been applied through the voluminous Low Law decisions of labour arbitrators and human rights tribunals. This article examines the dismal employment status of employees with disabilities in Canada, traces the emergence of the Supreme Court of Canada rulings, and critically examines the caselaw on disability accommodation from labour arbitrators, human rights tribunals and the common law courts. Although Canadian labour law transplanted the accommodation duty from the early civil rights jurisprudence in the United States, recent Canadian law on disability accommodation has headed in a much different direction than its American progenitor.