Taking a Closer Look at Human Rights Commission Policy Directives - Hum Law Firm

Taking a Closer Look at Human Rights Commission Policy Directives: Policy on removing the “Canadian experience” barrier and Policy on preventing discrimination based on mental health disabilities and addictions

Ontario Bar Association 2015 Annual Update on Human Rights
Author: Lai-King Hum, Principal / Senior Lawyer, Hum Law Firm[1]
May 29, 2015

1. Introduction

Section 30 of the Ontario Human Rights Code (“Code”) authorizes the Ontario Human Rights Commission (“OHRC”) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. For those of us who practice in the area of human rights, the OHRC policies set the standards against which our clients (employers, individuals, service providers) should act to ensure compliance with the Code.

Although the OHRC policies do not have force of law, they are likely to and have been given great deference by the Human Rights Tribunal of Ontario (“HRTO”) and/or the courts in their decisions. Section 45.5 of the Code specifically provides that the HRTO may consider policies approved by the OHRC in a human rights proceeding before the HRTO, and that if presented before a proceeding, the HRTO must consider the policy.[2]

This paper will discuss and take a closer look at the two policy directives from the perspective of employment law and the regulation of professions: (i) the Policy on removing the “Canadian experience” barrier (“Canadian Experience Policy”)[3]; and (ii) the Policy on preventing discrimination based on mental health disabilities and addictions (“Mental Health Policy”)[4].

The applicant in a human rights complaint is generally required to make at least a prima facie case of discrimination by showing that (i) they have a characteristic protected from discrimination; (ii) they have experienced an adverse impact within a social area protected by the Code; and (iii) the protected characteristic was a factor in the adverse treatment. The necessary connection between the various elements has evolved over the years. Previously, the applicant had to establish, on a balance of probabilities, that there was a causal nexus between conduct on the part of the respondent and differential treatment experienced by the applicant. A recent Court of Appeal decision clarified that what is required is a “connection” or “nexus” between the adverse treatment and the ground of discrimination. [5] The ground of discrimination need only be “a” factor in the adverse treatment, it need not be “the” factor. If discrimination is only one factor among other non-discriminatory factors, that is enough to find a contravention of the Code.

These policies advocate a progressive interpretation of the necessary connection between the adverse treatment and the ground of discrimination, For instance, the Canadian Experience Policy represents the OHRC’s view that a strict requirement of Canadian experience in the employment or professional licensing context is prima facie discriminatory. Such an interpretation is in line with the applicant’s onus of having to show a “connection” or “nexus” between adverse treatment and the ground of discrimination. The Mental Health Policy proposes a more flexible and contextual analysis of the factors in determining whether a prima facie case of discrimination exists. Depending on the type of discrimination claimed or the ground alleged, the contextual factors and relevant considerations may vary.

As will be shown herein, these policies represent not only a consolidation of the law developed in recent cases, but an extension of the law as it has evolved.

2. Policy on Removing the “Canadian Experience” Barrier

2.1 Introduction

The “Canadian experience” barrier is most often seen in two contexts: that of employment or professional licensing. Employers and regulators have argued that the Canadian experience requirement is to ensure that only those candidates with the necessary qualifications for the Canadian market are hired or licensed so as to guarantee high standards of competence and performance.

Discrimination itself is only prohibited if the discrimination is based on a prohibited ground. Sections 5 and 6 of the Code lists the following specific grounds for employment and vocational associations:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in Employment

5. (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Vocational Association

6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

However, the OHRC, through extensive studies supported by the Office of the Fairness Commissioner (“OFC”), disagreed, and saw the “Canadian experience” requirement as the single most significant barrier to employment and/or licensing opportunities. In January 2013, just prior to the OHRC’s release of the Canadian Experience Policy, the OFC released a research report “A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy“.[6] The OFC report cited “Canadian experience” as a significant hurdle for all newcomers seeking registration into a regulated profession.

On July 15, 2013, the OHRC released the Canadian Experience Policy. The OHRC policy recognizes the difficulty faced by immigrants, who, in order to gain “Canadian experience” so that they can find employment or become licensed as a professional, are unable to simply because they lack “Canadian experience”. The Policy also points out that to get the requisite Canadian work experience, some newcomers turn to volunteer positions or unpaid internships — situations which are fraught with their own problems.[7]

The dilemma was addressed by the OHRC’s stance that a strict requirement for “Canadian experience” is prima facie discrimination, and that such a requirement can only be used in very limited circumstances, such as when the employer or a professional regulatory body can show that a requirement for prior work experience in Canada is a bona fide occupational requirement.

The OHRC position may be summarized as follows:

A strict requirement of “Canadian experience” is prima facie discriminatory, and may only be used in rare circumstances; and
The onus is on employers and regulatory bodies to show that a requirement of prior work experience in Canada is a bona fide

The OHRC’s position takes developments in caselaw and other decisions by courts, human rights tribunals, labour arbitrators, and regulatory decision makers, and advances them further. In doing so, Ontario’s Human Rights Commission has become the first provincial human rights commission to explicitly adopt the position that, except in rare circumstances, requiring “Canadian experience” as a condition of hiring or for accreditation is prima facie discriminatory.

The OHRC position is based partly on the Supreme Court of Canada decision in Meiorin[8] which set out a three-part test to determine when a job requirement which violates human rights legislation may be justified as a bona fide occupational requirement. Under the Code, where discrimination is found, the employer or regulatory body may establish a defence to the discrimination by showing that the policy, rule, or requirement that resulted in unequal treatment is a legitimate work standard, also known as a bona fide occupational requirement.

A bona fide occupational requirement must have all of the following elements:

The requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
It was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal; and
It is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.

The test ensures that the policy or requirement must be as inclusive as possible of individual differences and that each individual is assessed according to his or her personal abilities rather than under presumed group characteristics counter to the Code. As applied to the Canadian Experience Policy, the OHRC emphasizes the need for employers and regulatory bodies to be as specific as possible about the qualifications they are seeking, rather than using a “catch-all” term, requiring “Canadian experience”.

2.2 Employment Context

The issue of “Canadian experience”, as opposed to foreign work experience, has been legally considered in the employment context prior to the issuance of the Canadian Experience Policy.

For instance, in Clarke Institute of Psychiatry v. O.N.A.,[9] the Ontario Labour Relations Board (“OLRB”) found that the Clarke Institute of Psychiatry did not recognize nurses’ years of experience outside of Canada when the experience was not from particular countries. The nurses’ years of experience was used to calculate the salary grid level of the employee as per the collective agreement. The OLRB held that the automatic refusal to recognize experience from particular countries, in this case, Africa, amounted to discrimination based on country of origin or race. Of significance is that the Institute did not produce any rational or substantive explanation for devaluing experience from Africa.

Employers should also be cognizant that refusing a candidate with no Canadian experience, but extensive non-Canadian experience, on the basis that they are “over qualified” could also be found to be prohibited discrimination. The Canadian Human Rights Tribunal found in Sangha v. Mackenzie Valley Land & Water Board[10] that an employer who applies a policy against hiring overqualified candidates is discriminating on prohibited grounds. The Tribunal found that visible minority immigrants are disproportionately excluded from higher level positions in the job market, and therefore they apply to lower level positions, even where their qualifications exceed the job requirements. As such, an employer who establishes a rule against hiring overqualified candidates, although neutral on its face, impacts the visible minority immigrant candidates. The Tribunal also noted that native-born candidates who are rejected because of over-qualification can seek other work suited to their resumes, but immigrants do not have this option.

2.3. Professional Regulation Context

Of greater significance is the impact that the Canadian Experience Policy may have on the professions and their regulatory bodies. There are over 800,000 members of regulated professions in Ontario, and an increasing number of internationally trained and educated applicants.

Since the establishment of the OFC in 2007, there have been reductions in Canadian experience requirements in the licensing criteria for various professions. While some regulators have reduced Canadian experience requirements as part of its accreditation process, the change had not been uniform amongst Ontario regulators.[11] Some have held onto requiring Canadian experience before a candidate can be licensed for the purpose of ensuring that competency and high standards are met.

In November 2013, the OFC released yet another research report, “Academic Requirements and Acceptable Alternatives: Challenges and Opportunities for the Regulated Professions in Ontario”, which discussed mechanisms for Ontario regulators in accepting alternatives to their standard academic requirements. While acceptable alternatives bring new flexibility to the licensing and accreditation process, they do not remove all barriers for internationally educated professionals. The report cautioned that regulators must ensure that the academic requirements are not only relevant, but necessary to the practice of the profession and that acceptable alternatives must be developed with careful attention to accessibility, affordability, and sustainability.[12]

In 2011 the OFC conducted a study and found that, out of 38 professions, 26 required work experience, of which 14[13] continued to require Canadian experience, including 6 that specifically required Ontario experience. These include architects, dieticians, engineers, foresters, general accountants, land surveyors, midwives, physicians and psychologists. In OFC’s 2013-2014 assessments, it was determined that these requirements have changed very little since the 2011-2012 assessments. Despite OHRC’s Canadian Experience Policy, of the 14 professions from the previous years, 13 of the regulators have an unchanged requirement for Canadian work experience or practical training. Only the regulatory body for foresters has developed an alternative to Canadian work experience.

In its 2013-2014 assessments, the OFC made poignant recommendations, one of which is for regulators to identify the competencies associated with existing requirements for Canadian work experience or practical training, which is in line with the OHRC Policy. It should be interesting to see if regulatory bodies will change their requirement for Canadian work experience, or at least identify the specific qualifications or competencies sought after, rather than resorting to the “catch-all” term, in the 2014-2015 assessments.

As in the employment context, Canadian experience in the profession regulation context has also been legally considered prior to the issuance of the Canadian Experience Policy.

In the case of Bitonti v British Columbia (Ministry of Health)[14], the College of Physicians and Surgeons divided applicants for licenses to practice medicine into two categories: 1) those who have been educated at medical schools in approved countries; and 2) those who have been educated at medical schools outside the approved countries. The licensing requirement for both groups differed significantly. The first group, having been educated at medical schools in approved countries, was required to have twelve months of an internship at an approved hospital or two years of a residency program. The applicants belonged to the second group, all of whom were graduates of medical schools outside of the list of approved countries. The latter group was required to have two years of post-graduate study, with one year of an internship in Canada. Graduates in the second group were unable to satisfy the Canadian internship requirement given the difficulty of securing such internships.

In deciding that the College’s practice was discriminatory, the Tribunal analyzed whether the requirement for Canadian experience had a correlation with a protected characteristic, and whether there was an underlying rationale for the rule. The Tribunal found that the College did not adequately consider foreign equivalencies and that there were immediate assumptions based on the country where the training took place, as opposed to actual knowledge. The Tribunal recognized that “the problem is clearly a complex one with national dimensions” and “requires cooperation by a number of different organizations to solve”, specifically, that the organizations work together to “develop a comprehensive mechanism for ensuring that graduates of foreign medical schools are able to have their skills assessed based on merit rather than assumption” and that they be “given an opportunity to compete fairly” under these circumstances.[15]

Following the decision of Bitonti, in Gersten v College of Physicians and Surgeons of Alberta[16], the College was found not to have discriminated against an Israeli trained doctor whose application for specialist medicine certification was denied. He was required to pass a specialist certification process, and he failed the second assessment. His argument that the requirements were impossibly burdensome and virtually unattainable by foreign trained graduates was rejected. The Tribunal, in a decision in line with the reasoning in Bitonti, found that there was insufficient evidence that the specialty assessments were discriminatory. The Tribunal also found that the assessments and the six months of training were reasonable and necessary to protect patient safety.[17]

More recently, in Fazli v National Dental Examining Board of Canada[18], it was found that the National Dental Examining Board did not discriminate against an Afghan trained dentist who consistently failed to meet the Board’s requirement for certification. Mr. Fazli, was from Afghanistan and graduated with a degree in dentistry and practiced dentistry in Afghanistan, Pakistan, and India prior to immigrating to Canada. Since arriving to Canada, Mr. Fazli made extensive efforts to be certified by National Dental Examining Board of Canada, but consistently failed to meet the Board’s requirements for certification. Mr. Fazli brought the application in the HRTO and alleged that the Board’s requirement that graduates from non-accredited dental programs undergo a different process than graduates from accredited programs disadvantaged those from countries where there were no accredited programs.

The Tribunal assessed the Board’s certification requirements and held that the evidence established that the Board’s differential treatment of graduates from accredited programs was based on actual knowledge about the programs, garnered through a sophisticated and ongoing process of evaluation of the program.[19] Therefore, in the absence of any such knowledge-based assurances about graduates from non-accredited schools, it was not discriminatory for the Board to have individuals from non-accredited schools to establish that their dental training was equivalent to the accredited schools by successfully passing through the Equivalency Process.[20]

The different outcomes between the Bitonti decision and the Gersten and Fazli decisions are illustrative of the “best practices” espoused by the Canadian Experience Policy. A test that focuses on the individual’s actual competencies will not be discriminatory, whereas qualification assessments that are based solely on where an individual obtained their academic or work experience without further individualized considerations will likely be found to violate human rights. The decisions recognized the need for regulatory bodies to adequately tailor their mechanisms for accreditation so as to ensure proper and fair assessment of the credentials and work experience of foreign professionals, which is in accordance with the Canadian Experience Policy.

Another extraordinary case, currently under appeal, is Mihaly v The Association of Professional Engineers, Geologists and Geophysicists of Alberta.[21] The Alberta Human Rights Tribunal held that the APEGGA discriminated against Mr. Mihaly, who received his engineering education in Slovakia and had about twelve years international work experience, by imposing certain requirements upon him before the APEGGA would register him as a professional engineer. Since Mr. Mihaly received his education from an institution that was on the “Foreign Degree List”, he was considered eligible for registration provided he passed confirmatory examinations and the National Professional Practice Examination (NPPE). All applicants are required to take the NPPE exam regardless of where they received their education. After examining his credentials, and since there were no Mutual Recognition Agreements in place between Canada and Slovakia recognizing the latter’s accreditation system, the APEGGA also required that Mr. Mihaly complete three confirmatory examinations and take a course or pass an equivalent exam in Engineering Economics by a given deadline.

Over the course of about eight years, Mr. Mihaly failed three times to pass the NPPE. He also did not pass the confirmatory exams by the deadline. In a reconsideration of his application, the Board of Examiners for the APEGGA also determined that Mr. Mihaly had not acquired the one year required North American professional engineering in the position where he had worked because it was not at the required “D level”. He was therefore required to obtain one-year acceptable “D level” North American engineering experience.

Mr. Mihaly then claimed that the APEGGA had discriminated against him, in contravention of the Alberta Human Rights Act. In a lengthy decision released in February 2014, the Alberta Human Rights Tribunal found that the process used by the APEGGA to assess the complainant’s credentials and experience was discriminatory since it was insufficiently individualized and created undue barriers for the registration of an internationally educated engineer. Further, the Tribunal held that the APEGGA’s requirement that all applicants acquire one-year of North American engineering experience was not justified and that the standards sought could be met through other means.

The appeal of this decision is eagerly awaited by professional regulatory bodies that have maintained the importance of a “Canadian experience” or similar requirement as part of its public policy mandate to maintain high standards within a given profession.

3. Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions

3.1 Introduction

The OHRC officially released its Policy on preventing discrimination based on mental health disabilities and addictions on June 18, 2014. The Mental Health Policy deals with issues of discrimination for psychosocial disabilities[22] and provides guidance on the duty to accommodate. The Mental Health Policy furthers the position of the OHRC in its previous publication on the same issue, Minds that matter: Report on the consultation on human rights, mental health and addictions, released in 2012. This report was a consultation on the human rights issues experienced by people with mental health disabilities or addictions. The report was based on a province-wide consultation that involved more than 1,500 individuals and organizations across Ontario.

Section 10(1) of the Code provides a broad definition of disability, with subsections (b) and (d) covering mental health disabilities and addictions.[23] Both past and perceived disabilities are also protected under the Code. However, in keeping with the principle of human rights legislation, the Code does not provide an exhaustive list of conditions that could be considered a disability. Under the Code, impairments such as anxiety, panic attacks, depression, schizophrenia, alcohol dependence, and addictions to illegal drugs have all been recognized as disabilities.[24] The Mental Health Policy, however, offers the following guidance on how to better understand and recognize a psychosocial disability that might require accommodation:

Psychosocial disabilities may be temporary, sporadic, or permanent, and in many cases, may not be visible to the average onlooker.
Psychosocial disabilities encompass mental health disabilities and addictions.
Psychosocial disabilities differ from cognitive, intellectual and sensory disabilities, and learning disorders.
Psychosocial disabilities may result from bodily or mental impairments or from limitations arising from impairments that affect people’s ability to function in certain areas of living.
Psychosocial disabilities may be the result of combinations of impairments and environmental barriers that may hinder full participation by individuals with these disabilities.[25]

According to the Mental Health Policy, the barriers faced by individuals with psychosocial disabilities are largely due to stereotypes that marginalize these individuals on the basis of presumed characteristics. Individuals with psychosocial disabilities are frequently presumed to be violent or aggressive without objective evidence of such behavior. These individuals are also often defined entirely by their disability and are presumed to be less worthy of respect. These presumed characteristics are the direct result of a culture that has adopted an “ableist” attitude and one that marginalizes individuals with psychosocial disabilities while making such marginalization seem neutral.

From the OHRC’s mental health consultation, it has been found that more often than not, individuals with psychosocial disabilities are more likely to have low incomes and live in chronic poverty. There is a link between mental health, addictions, and societal factors such as poverty, lack of affordable housing, lower levels of education, and access to public assistance and other social supports. Further, the OHRC Policy recognizes the concept of intersectional discrimination, where the discrimination is based on two or more Code grounds.[26]

Additionally, as part of the legal framework that has developed to protect those with psychosocial disabilities, the Accessibility for Ontarians with Disabilities Act (“AODA”) addresses the right to equal opportunity and inclusion for people with disabilities, including mental health disabilities.[27] The AODA introduced a series of standards implemented in stages, geared toward improving accessibility for those with disabilities and mandates compliance from both public and private organizations.[28] The aim of AODA is to make Ontario fully accessible by 2025.

Unlike OHRC’s stance with respect to the requirement of Canadian experience in the employment or professional licensing context, there is no prima facie finding of discrimination just because an individual suffers from psychosocial disabilities. To establish prima facie discrimination under the Code, a claimant must satisfy the legal test and threshold as described above. While the legal test for discrimination does not change, the Policy, however, pushes for a more flexible and contextual analysis of the circumstantial evidence to determine whether substantive discrimination has taken place.

Over the years, certain cases have raised concerns that different treatment may not amount to discrimination in a substantive sense and that disadvantage is not inferred or assumed from the circumstances, but may need to be shown by the claimant, to establish adverse treatment or impact.[29] However, in Hendershott v Ontario (Community and Social Services)[30], the Tribunal stated:

An inference of stereotyping or of perpetuating disadvantage or prejudice will arise where the claimant is able to make a connection between their own identity and the prohibited ground and where the subject-matter of the claim is connected to the underlying purpose of the Code. In those cases, it will be sufficient for the applicant to prove that they have been adversely affected on the basis of a prohibited ground…

As such, it is not be necessary to go through a process of specifically proving what the disadvantage is, but rather, the disadvantage can be assumed where there is adverse treatment based on a prohibited ground.

The Mental Health Policy discusses accommodation for psychosocial disabilities in different protected social areas under the Code, most commonly known as: 1) services; 2) housing; 3) contractual relationships; 4) employment; and 5) membership in a union, professional association, or other vocational associations. Section 17 of the Code sets out the duty to accommodate for those individuals with disabilities. While it is not discriminatory to refuse a service, housing, or a job because the individual is incapable of fulfilling the essential requirements, an individual will only be considered incapable if his or her disability-related needs cannot be accommodated without undue hardship.

The accommodation process is a shared responsibility. The Mental Health Policy comments on the necessity for the players involved in the process to engage in the process, share information, and consider potential accommodation solutions. The approach adopted by the OHRC is very cooperative in nature and encourages the participants in the accommodation process to follow certain guidelines with the aim of eliminating the perpetuation of psychosocial disabilities.

In accordance with the guidelines as set out by the Mental Health Policy, the individual with a disability is required to:

Make accommodation needs known to the best of their ability, preferably in writing so that they can be properly accommodated;
Provide information about relevant restrictions or limitations as required;
Participate in discussions about possible accommodation solutions; and
Cooperate with experts whose assistance is required to manage the accommodation process.

On the other hand, the accommodation provider is required to:

Inquire into situations where there is a basis to believe the individual is suffering from a mental conditions;
Intervene in situations where the individual is clearly unwell or perceived as having a mental health concern;
Maintain confidentiality and limit requests for information to those reasonably related to the nature of the limitation or restriction given the nature and sensitivity of the matter;
Maintain a record of accommodation request and action taken;
Consult with experts where necessary;
Canvass various forms of possible accommodation and alternative solutions while accepting the individual’s request for accommodation in good faith, unless undue hardship or bona fide requirement; and
Implement accommodations in a timely way, to the point of undue hardship.

For the purposes of this paper, however, the focus will be on how psychosocial disabilities and the duty to accommodate impact actors in both the employment and professional regulatory context.

3.2 Employment Context

The Mental Health Policy incorporates the common law positions that have been developed by the courts and tribunals to strike a balance when faced with human rights issues on the basis of psychosocial disabilities. The duty of accommodation has always been at the heart of litigation between the employer and the employee.

In two recent HRTO decisions, MacLeod v Lambton (County) (No. 2)[31] and Gaisiner v. Method Integration[32], the Tribunal made a finding of discrimination when employers terminated employees with mental disabilities for performance issues without taking steps to ameliorate the symptoms of the disorder.

In MacLeod, the applicant, a manager of Emergency Medical Services at the County, suffered from bipolar disorder. However, there were no performance issues until several years after he was hired, when a change in his medication made the symptoms of his bipolar disorder more prominent. His behaviour at work became erratic, impulsive, and at times aggressive. The County ultimately conducted an investigation into its concerns over the applicant’s conduct, which resulted in the permanent removal of the applicant from his managerial position.

The Tribunal concluded that much of the conduct relied upon by the County to remove the applicant from his role as a manager was conduct that was related to his bipolar disorder. While the Tribunal agreed that the applicant’s disability-related behavior was harmful, it found that the County failed to take steps to consider whether the applicant’s conduct might have been disability-related, or whether he could have been accommodated in his position without undue hardship.

Therefore, employers are not only obligated to conduct investigations in the workplace, they must also be cognizant of disability-related issues that may trigger a duty to accommodate should the conduct investigated be a product of the disability.

Similarly in Gaisiner, the Tribunal came to a conclusion similar to that in McLeod. The Tribunal found that the employer failed in its duty to accommodate by not having considered the applicant’s disability which was impacting his job performance. The applicant was hired as a Customization Solutions Specialists. However, shortly after his hiring, supervisors found that the applicant did not follow instructions and could not adequately service clients. The applicant then disclosed to the employer that he was recently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), which was the cause for his poor performance. The company conducted online “Google searches” to learn more about ADHD and coping mechanisms but ultimately moved to terminate the applicant’s employment on the basis that he did not have the technical ability to perform the duties of his job.

Having established a prima facie case of discrimination because the employer terminated the applicant without giving due consideration to the extent to which his ADHD was contributing to his performance issues, the Tribunal also held that the employer failed to fulfill the procedural component of the duty to accommodate. The internet searches conducted by the employer were not only grossly inadequate, but the Tribunal held that internet searches would only yield general information and not individualized results. Additionally, internet searches may yield misleading, highly prejudicial, incorrect, or biased information.[33] Since the duty to accommodate should be individualized, the employer had failed in this respect.

In a unionized employment context, the labour arbitrator in Halton District School Board v Ontario Secondary Schools Teachers’ Federation, District 20[34], balanced the importance of cooperation between employees and employers in the accommodation process with the reality that individuals experiencing mental health disabilities may be unable to participate in such a process. In fact, the arbitrator made specific reference to the Mental Health Policy which recognized that persons experiencing mental health disabilities may be unable to or have limited ability to participate in the accommodation process. Nonetheless, in this situation, the organization should still have attempted to start the accommodation process and continue as appropriate. Nonetheless, it was also recognized that there will be a limit to the extent that an organization can accommodate someone’s disability in the absence of the person’s participation.[35]

In Halton, the grievor was a teacher who suffered from a mental disability but refused to acknowledge that he had any disability needs that required accommodation. While it was found that his disability was the cause of his home assignment, suspension, and ultimately termination from his position, this information was not disclosed until well after the grievance and well into the process of the hearing. The arbitrator noted that the grievor did not cooperate with either his union or employer by disclosing his need for accommodation at the relevant times. Nonetheless, the arbitrator agreed that the failure to cooperate was due to his disability as one of the features of his disability was a lack of insight into the effect the disability was having upon his behavior.

The cases discussed above, where psychosocial disabilities are at issue or believed to be at issue, put the onus on employers to inquire into the situation and take appropriate steps to ensure that it has properly exercised its duty to inquire and to accommodate. Failure to do so could well lead to an employer’s contravention of the Code. In certain circumstances, such as in Halton, employers may face a greater hurdle as it would have to take the initiative in starting and continuing an accommodation process with limited or even the complete absence of the employee’s participation in the process.

a. Professional Regulation Context

In the professional regulation context, human rights violations appear to be most prevalent in the two following areas: (1) denial of registration; and (2) disciplinary proceedings.

The decision of College of Nurses v Trozzi,[36] provides an interesting insight as to the deference that a regulatory tribunal will pay to a regulatory body’s internal decisions in human rights issues. Ms. Trozzi was a nurse suffering from depression and fibromyalgia. She sought registration as a member of the College. Although the registration Committee granted registration, conditions were imposed that were designed to protect the public. Ms. Trozzi appealed the decision at the Review Board, which found that the College had discharged its duty to accommodate by granting registration with conditions. Instead of seeking judicial review of the decision, Ms. Trozzi filed a complaint at the HRTO.

The College’s request to dismiss the complaint on the basis that the issue of discrimination had already been considered in the College’s registration process and by the Review Board was rejected by the Tribunal. However, the Ontario Divisional Court ultimately overturned the Tribunal’s decision and held that it was not open to the Tribunal to assume jurisdiction and substitute its statutory mandate for the mandate of another tribunal having responsibility and expertise in the area of regulating the profession.

Another interesting but controversial decision also involving nurses is the case of Wright v College and Association of Registered Nurses of Alberta (Appeals Committee)[37]. Two nurses who suffered from narcotic addiction appealed from the College’s Appeal Committee’s decision to confirm the disciplinary sanctions imposed by the College on the nurses. The two nurses were disciplined for professional misconduct after it was revealed that they were stealing narcotics and forging signatures of other nurses in order to remove narcotics from the hospital.

Though the College accepted that the nurses’ addictions were a mental health condition, it concluded that there was not a sufficiently close nexus between the addiction and the conduct at issue, which were theft and fraud. The Court ultimately dismissed the appeals of the nurses, finding that the College’s action in laying misconduct charges was not discriminatory since the criminal conduct which underlay the disciplinary charges was distinct from their disability. Therefore, the College’s motivation for laying the disciplinary charges did not arise from the addiction disability.

In a duty to accommodate decision, Fossum v Society of Notaries (No. 2), [38] the British Columbia Human Rights Tribunal held that the Society had met its duty to accommodate the applicant, Mr. Fossum. The applicant suffered from alcoholism, which affected his ability to carry on his practice. He alleged that the Society had failed to accommodate his disability and discriminated against him when it decommissioned him from practicing as a notary public.

There were numerous matters at issue before the Tribunal, including Mr. Fossum’s suspension, Notice of Inquiry and Undertaking, and his termination. Although the Tribunal found that the Society was discriminatory in one instance, it found that the Society had nonetheless met its duty to accommodate, that a duty to accommodate further was not required absent expert evidence that accommodation was required. The Society had justified Mr. Fossum’s termination based on its bona fide occupational requirement defence.

Unlike decisions in the employment context, these decisions recognize that the professional regulatory body have a higher standard against which the duty to accommodate is measured, that of protecting the public interest.

4. Conclusion

What do the policies mean for our clients? Our courts, tribunals and arbitrators have already grappled with issues involving discrimination arising from the “Canadian experience” barrier, as well as various mental and psychosocial disability issues. What these policies provide is awareness of the standards that the OHRC will use to assess compliance, and forewarning that the HRTO, as well as the courts, will likely give deference to the policies. As shown in Gaisiner and Halton, deference has already been shown to the OHRC directives.

The OHRC policies encourage employers and professional regulators to be proactive in anticipating and addressing the needs of those requiring accommodation. In providing advice to our clients, an appropriate appreciation of these policies and the developing law is essential.

As a final note, below are proactive measures and best practices geared towards employers and professional regulators that are also identified in the OHRC policies:

Employers:

discrimination and accommodation policies and procedures; annual training of all staff and management; training In “duty to inquire” for all HR staff / owners.
“genuine” efforts to provide accommodation without requiring employees to disclose confidential medical information or undergo an independent medical examination, unless necessary and directly relevant to providing the accommodation.
accommodation to the point of undue hardship.
develop accommodation policies and processes in advance with the assistance and benefit of research or expert consultation.
if applicable, engage labour unions in the accommodation process.
adopt progressive performance management and other processes that provide employees a chance to disclose their needs.

Professional Regulators:

genuine inquiry to ensure that disciplinary issues are not actually issues of incapacity or incompetence based on disability.
accommodation to point of undue hardship.
higher standard, in that regulator must protect the public interest.
specify the qualifications sought instead of using the catch-all term “Canadian experience” as a requirement of licensing or registration, or adopt alternative mechanisms for the purposes reviewing competency in the accreditation or registration process.
gather and collect qualitative and quantitative data to support organizational policies and practices.

[1] This paper was prepared with the assistance of Allisa Wu, Associate Lawyer.

[2] Section 45.5(1) of the Code provides: “In a proceeding…, the Tribunal may consider policies approved by the Commission…” Section 45.5(2) of the Code states: “Despite subsection (1), the Tribunal shall consider a policy approved by the Commission… in a proceeding… if a party to the proceeding or an intervenor requests that it do so.”

[3] Canadian Experience Policy: http://www.ohrc.on.ca/en/policy-removing-%E2%80%9Ccanadian-experience%E2%80%9D-barrier

[4] Mental Health Policy: http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions.

[5] In Pieters v Peel Law Association, 2010 HRTO 2411; aff’d in Peel Law Association v Pieters, 2013 ONCA 396. The Court of Appeal affirmed that the requirement of a “causal” nexus runs counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.

[6] See http://www.fairnesscommissioner.ca/index_en.php?page=highlights/afairwaytogo. Faced with increasing numbers of applications from internationally trained and educated applicants for registration into the regulated professions, the role of the Office of the Fairness Commissioner was established by the Fair Access to Regulated Professions Act and Compulsory Trades Act, 2006 (FARPA). FARPA mandates transparency, objectivity, impartiality and fairness in the policies and procedures that regulators use to license applicants in their professions. As part of the Fairness Commissioner’s mandate to ensure that the registration practices of Ontario’s profession regulators are transparent, objective, impartial and fair, the Commissioner regularly audits profession regulators.

[7] The OHRC conducted an online survey with more than 1000 respondents, including jobseekers, applicants for professional registration, and employers. The conclusion was that many newcomers end up volunteering or taking unpaid internships in order to meet the “Canadian experience” requirement. See also article: Lai-King Hum, “will work for free!”: employers, beware of offers of free work by unpaid interns, Mondaq/Lexology, July 23, 2013 https://www.thehumlawfirm.ca/articles/will-work-for-free-employers-beware-of-offers-of-free-work-by-unpaid-interns/

[8] British Columbia (Public Service Employee Relations Commission) v BCEU (1997), 149 DLR (4th) 261 (BCCA); Court upheld that fitness tests required in firefighting were discriminating and inadequate as a measure of ability, and that the standards established did not take into account the differences of the physical abilities between men and women.

[9] 2001 CarswellOn 2007, [2001] L.V.I.3193-10, 95 L.A.C. (4th) 154

[10] 2006 CHRT 9, rev’d on the question of remedy only, 2007 FC 856.

[11] Regulators have developed innovative approaches to competency-based assessments and have committed to transparency and qualifications assessment. Regulators have developed innovative approaches to competency-based assessments and have committed to transparency and qualifications assessment.

[12] In the study, alternatives have been classified into 5 broad types of categories: 1) paper-based assessment of education and experience; 2) direct assessment of knowledge and skills; 3) self-paced learning; 4) bridging programs; and 5) advanced standing.

[13] The same body regulates both pharmacists and pharmacy technicians.

[14] Bitonti v British Columba (Ministry of Health) (No. 3) (1999), 36 CHRR D/263.

[15] Ibid, at para 381.

[16] 2004 AHRC 16.

[17] Ibid, at para 63..

[18] 2014 HRTO 1326.

[19] Ibid, at para 40.

[20] Ibid, at para 41.

[21] 2014 AHRC 1. The appeal was originally scheduled to be heard in December 2014. It was postponed and re-scheduled for hearing on July 23 and 24, 2015.

[22] A “psychosocial” disability refers to both mental health issues and addictions.

[23] Section 10(b): a condition of mental impairment; (d) mental disorder.

[24] As a profession, lawyers appear to be particularly prone to psychosocial disabilities, especially depression. See “Killing Ourselves: Depression as an Institutional, Workplace and Professionalism Problem”, by Megan Seto, Western Journal of Legal Studies, Volume 2, Issue 2, Article 5, 11-19-2012.

[25] Environmental barriers include attitudinal barriers, inaccessible information, and inaccessible communication.

[26] Other Code grounds may include: race, colour, ethnic background, creed, ancestry, citizenship, gender identity and gender expression, sex, family status, marital stats, disability, sexual orientation, age, receipt of public assistance, and record of offences.

[27] Consider also that Canada ratified the United Nations’ Convention on the Rights of Persons with Disabilities (“CRPD”), an international treaty designed to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. Although international treaties or conventions are not binding on the courts, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para 69. emphasized the importance of international law and how it helps give meaning and context to Canadian law. According to the Court, domestic legislation should be interpreted to be consistent with Canada’s international commitments (Ibid, at para 70).

[28] Standards are geared towards: customer service, transportation, built environment/infrastructure, employment, information, and communications.

[29] See Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593 at paras 100, 117, and 119.

[30] 2011 HRTO 482, at para 45.

[31] 2014 HRTO 1330.

[32] 2014 HRTO 1718.

[33] Ibid, at para 157; the Tribunal also referenced OHRC’s Mental Health Policy in recognizing stereotyping and stigmatization of disabilities such as ADHD in public discussion and commentary.

[34] 2015 CanLII 1394 (ONLA).

[35] Ibid, at paras 45-46.

[36] 2001 ONSC 4614.

[37] 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573.

[38] 2011 BCHRT 310