Volume I, Issue I

September 2004

 Queen's Human Rights Bulletin

Disabilities and the Duty to Accommodate

The Grismer Case

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How do you reconcile a standard that is meant to apply universally with the need to accommodate an individual with a disability?

Facts:

In 1984, Terry Grismer, a mining truck driver, developed Homonymous Hemianopsia (H.H) after suffering a stroke. The B.C Superintendent of Motor Vehicles cancelled Grismer’s license and refused to renew it on four occasions over the next seven years. Although Grismer repeatedly passed driving tests and standard visual tests, he always failed to meet the minimum, 120-degree standard for peripheral vision. Grismer, who was able to compensate for his poor peripheral vision by wearing special prism glasses, complained that he had been unfairly discriminated against on the basis of physical disability. The Supreme Court of Canada used the Meiorin three-part test to demonstrate that the 120-degre standard was not a bona fide occupational requirement.  British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human rights)  (1999), 36 C.H.R.R. D/129 (S.C.C.). 

Question:

• Does the 120-degree standard meet the Meiorin three-part test for bona fide occupational requirements in these circumstances?

Ruling:

• No, because it fails to accommodate individually.

Reasoning:

1. The standard in this instance is rationally connected to a purpose (the maintenance of moderate highway safety) and to a public function (the issuing of licenses).

2. The standard was adopted in good faith and with the honest belief that it was necessary for the accomplishment of that purpose

3. The absolute standard is not reasonably necessary for the maintenance of moderate highway safety because it discriminates unfairly against a specific subset of visually disabled clients, some of whom are able to compensate for their peripheral impairment.

4. Furthermore, the respondent failed to accommodate Grismer individually in three ways:

A) They failed to use one of three existing tests to evaluate his ability to compensate.

B) They failed to consider plausible measures to decrease the safety risk associated with 1) conducting tests for people with H.H. (use of a vehicle with dual controls); and 2) allowing certain individuals with H.H. to drive on highways  (required use of special glasses and a conditional license); and

C) They did not produce any cogent evidence establishing the cost of testing Grismer individually. Furthermore, they did not propose any cost-reduced alternatives.                                  

Relevant Links:

1. Individualized Accommodation

2. Appropriate Accommodation

3. Individualized Accommodation