104 | Zimbabwe Rule of Law Journal
Thus the CRPD provision compels the employer to adjust the work environment to ensure the inclusion
of PWDs,42 at the work place for example. Nevertheless, the duty bearer of the right can show that the
requested modifications cause undue burden, and will not be bound to provide such accommodation.
In the Canadian case of Central Alberta Dairy Pool v Alberta43 the Supreme Court listed criteria for
consideration in identifying whether the provision of accommodation would create undue burden.
These criteria include:
(a)
Financial costs;
(b)
Impact on collective bargaining agreements;
(c)
Disruption of service to the public;
(d)
Effects on employee morale;
(e)
Interchangeability of workforce and facilities;
(f)
Size of the employer’s operations;
(g)
Safety;
(h)
Overall economic climate; and
(i)
Financial resources required for the accommodation
The inviolability of reasonable accommodation was further strengthened through another Canadian case,
Eldridge v British Columbia44 where the Supreme Court held that the right to disability non-discrimination
(under the Canadian Charter of Fundamental Rights) is not only a negative right but also a positive
right that compels the state to take positive measures to ensure that PWDs enjoy rights as all other
members of the society. In clarifying its position, the court held as follows:
“The principle that discrimination can accrue from a failure to take positive steps to ensure that
disadvantaged groups benefit equally from services offered to the general public is widely accepted
in the human rights field. It is also a cornerstone of human rights jurisprudence that the duty to
Benefit?’ Canadian Bar Review Volume 75:433-473.
42
CRPD, Article 2.
43
The Central Alberta Dairy Pool v Alberta [1990] 2 SCR 489.
44
Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624.
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