Mental Disability & Human Rights

Written on behalf of Peter McSherry

The Basics

Employers in Ontario are required to take reasonable steps to accommodate a disability, including a mental disability. This is often a difficult task for the employer as the obligation is indeed a strict one which must be provided unless there is “undue hardship” preventing this.

Recent Case

A court in Saskatchewan recently reviewed this question.[1] The facts were unusual as is often the case with such an issue. The employee in question was a neurologist suffering from a recognized mental illness of kleptomania. He had agreed as a term of admission to continue with psychiatric treatment and indeed he did do so.

Nonetheless, he was found to have attempted to steal textbooks from the University bookstore. No criminal charges were laid. He was terminated from his position with the University for this conduct.

Decision

The Court of Appeal found in favour of the physician and ordered a new hearing take place. It noted that relapses, even while undergoing treatment, are not uncommon. The impact of the adverse conduct must be examined in context, similar to that extended to a drug addict or an alcoholic.

The Court was critical of the University’s failure to take reasonable steps to accommodate the mental disability. This was particularly evident in this case where there clearly was no evident harm or prejudice suffered by the University.

Employees’ Take Away

This duty to accommodate applies to all forms of human rights violations. It arises most frequently in disability cases. The failure to do so can lead to significant findings against the employer as there is a ticking time clock on a claim for lost income through to the date of the hearing.[2] It can often include a claim for reinstatement and a claim for damages for injured feelings.

Get Advice and Know Your Rights

Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] Haghir v University Appeal Board Saskatchewan Court of Appeal

[2] As in Hamilton-Wentworth v Fair where a claim for 11.5 years of lost income and reinstatement was allowed.