FAQ's Cases - Stewart McKelvey

the respondent met its duty to accommodate the applicant’s disability. Failure to do sowould constitute discrimination on the basis of disability.[48] The applicant’s allegation of discrimination on the basis of age was raised in thehearing in one specific context which is when the applicant alleged that Mr. Castellanomade an offensive comment about his age during a conversation on May 22. I will dealwith allegations of age discrimination in the context of this incident.[49] The applicant’s allegation of reprisal arises in relation to the termination of theapplicant’s employment and I will address it in this context.2012 HRTO 1455 (CanLII)The Application relates to sections 5, and 17 and 8 of the Code. Section 5 provides:5. (1) Every person has a right to equal treatment with respect toemployment without discrimination because of… disability.(2) Every person who is an employee has a right to freedom fromharassment in the workplace by the employer or agent of the employer orby another employee because of… disability and age.Section 17 sets out an employer’s duty to accommodate a disability. It provides:17. (1) A right of a person under this Act is not infringed for the reasononly that the person is incapable of performing or fulfilling the essentialduties or requirements attending the exercise of the right because ofdisability.(2) No tribunal or court shall find a person incapable unless it is satisfiedthat the needs of the person cannot be accommodated without unduehardship on the person responsible for accommodating those needs,considering the cost, outside sources of funding, if any, and health andsafety requirements, if any.Section 8 sets out the Code’s provisions on reprisal. It provides:8. Each person has a right to claim and enforce his rights under this Act,to institute and participate in proceedings under this Act and to refuse toinfringe the right of another person under this Act without reprisal or threatof reprisal for doing so.14