Contributed by Annelise Harnanan
In 2015, the government of Canada released its “Report from the Canadian Chronic Disease Surveillance System: Mental Illness in Canada.” The report used data from provincial and territorial administrative health databases to identify cases of mental illness in Canada. The report’s findings indicated that “one in three Canadians will experience a mood disorder, generalized anxiety disorder or substance abuse dependence in their lifetime”. Many people with mental health conditions, however, can and do remain in the Canadian workforce. Based on data from 2011, the Mental Health Commission of Canada stated that “21.4% of the working population in Canada currently experience mental health problems and illnesses.” Considering this, the question arises: what protections does the Canadian legal system offer to persons who face discrimination at work in relation to a mental health condition? This article briefly examines the protections that anti-discrimination law can offer to these individuals.
The Anti-Discrimination Law Framework
Federal and provincial human rights acts endeavor to prevent discrimination in the workplace based on various enumerated grounds such as age, religion, disability and sex. Under the legislation, mental illness typically falls under the ground “disability.” For example, the Nova Scotia Human Rights Act explicitly prohibits discrimination based on “physical and mental disability.” If an individual with a mental illness feels that they have been discriminated against because of their condition by an employer, they can file a complaint with their provincial human rights commission or tribunal.
The definition of discrimination comes primarily from case law, which has established a two-part test for discrimination. At the first step, described in detail in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), a complainant must prove a prima facie case of discrimination. This means that once certain elements are shown, courts will accept that there has been discrimination unless the evidence is successfully refuted by another party (such as an employer). To show a prima facie case of discrimination, the complainant must show three elements: that they have a characteristic which the relevant human rights legislation protects from discrimination, that they experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact they experienced.
Over a fifth of the Canadian workforce experiences mental health problems and illnesses. || (Source: Behance // Zecc Archtiects)
At the second step, in BC (Public Service Employee Relations Commission) v BCGSEU, the Supreme Court of Canada explained that once a prima facie case of discrimination has been established, employers bear the burden to justify the discrimination. This entails proving that they have provided reasonable accommodation. Employers only need to accommodate an individual up to the point where they experience undue hardship. If an employer can prove that to accommodate an employee with a disability would cause them undue hardship, the employer does not need to provide that degree of accommodation. Although some provincial human rights acts define “undue hardship,” the term is still somewhat vague. The Supreme Court has observed that this is largely a fact-based inquiry that will be dependent on the circumstances of every case. Factors relevant to deciding whether an accommodation will cause undue hardship for an employer can include financial cost and whether the accommodation would interfere with the rights of other employees.
A Straightforward Example – Gibbs
In Battlefords and District Co-Operative Ltd v Gibbs (Gibbs), an individual with a mental illness in Saskatchewan made a complaint to the province’s Human Rights Commission. She claimed that she had been discriminated against at work due to her employer’s insurance policy, contrary to section 16 of the Saskatchewan Human Rights Code, which prohibited discrimination at work based on various grounds. The insurance policy provided a replacement income for all employees who became unable to work for as long as they were unable to return to their jobs. However, the policy included a clause that said if an individual were unable to work due to a mental illness or disability, the replacement income would be terminated after two years unless that individual “remained in a mental institution” (para 3). Gibbs argued that this was discriminatory because it limited the benefits received by individuals who had a mental disability.
One is left to wonder what happens when a person has a mental illness that is not entirely understood. Moreover, what happens when a policy is not evidently discriminatory, but may still have the effect of harming individuals with a mental illness?
The employer argued that its policy was not discriminatory. It claimed that when employees entered into the insurance contracts, they each received the same protection from the harm of future disability. However, the Board of Inquiry and each subsequent appellate court ruled in favour of the complainant. They agreed that the employer’s policy, in limiting the benefits available to Gibbs solely because of her mental disability, discriminated against her and did in fact contravene section 16 of the Saskatchewan Human Rights Code.
This case demonstrates that the courts are willing to protect individuals with mental illness at work in certain circumstances. However, one is left to wonder what happens when a person has a mental illness that is not entirely understood. Moreover, what happens when a policy is not evidently discriminatory, but may still have the effect of harming individuals with a mental illness? The following case illustrates the complicated nature of mental illness.
The Complexities of Mental illness – Elk Valley
The case Stewart v Elk Valley Coal Corporation (Elk Valley) highlights the complex issues that can arise when an individual with a mental illness complains of being discriminated against at work. The employer, Elk Valley Coal Corporation, had a policy which required employees to disclose dependence or addiction issues. If the employees did, they would be offered rehabilitation treatment. If not, and they were involved in an accident, and then tested positive for drugs, they would be terminated. Stewart, an employee, did not disclose to the employer that he used cocaine on his days off. He was then involved in an accident at work where no one was hurt. After testing positively for cocaine, he was terminated.
In Justice Gascon’s opinion, the Tribunal’s emphasis on choice in determining whether there was prima facie discrimination reinforced stigma and ran counter to the goals of human rights legislation.
Although the Alberta Human Rights Tribunal agreed that Stewart was addicted to cocaine and had been adversely treated at work, it concluded that there was not a prima facie case of discrimination. Having found that Stewart maintained some level of choice and control over when and where he took drugs, the Tribunal found that Stewart was terminated for his failure to comply with company policy and not because of his disability. The Tribunal also found that because the company policy provided the opportunity for individuals to disclose their addiction issues, access treatment and then apply for re-employment in six months, it reasonably accommodated the disability. Stewart’s subsequent appeals of this decision were unsuccessful, and the Supreme Court of Canada ultimately dismissed the appeal on the basis that the decision of the Alberta Human Rights Tribunal was reasonable. At the Supreme Court of Canada, a majority of judges found there was no prima facie discrimination. Two concurring justices disagreed with that conclusion and found that here had been prima facie discrimination because in their opinion, Stewart was adversely affected at work and his mental disability was a factor in this adverse treatment. Nevertheless, they held that the appeal should be dismissed because the employer discharged its duty to accommodate Stewart.
The sole dissenting judge at the Supreme Court, Justice Gascon (as he then was) provided a thought-provoking opinion on why the decision of the Human Rights Tribunal was unreasonable. First, he took issue with the Tribunal’s finding that Stewart maintained an element of control over his drug use despite his addiction, and therefore his termination “flowed from his choice to use drugs, not his dependence” (para 102). In Justice Gascon’s opinion, the Tribunal’s emphasis on choice in determining whether there was prima facie discrimination reinforced stigma and ran counter to the goals of human rights legislation. He contended that this emphasis on choice would effectively deny human rights protections to most drug-dependent people who likely maintain some control over their drug use.
Justice Gascon also objected to the Tribunal’s finding that the employer reasonably accommodated Stewart. He noted that although the policy gave employees the opportunity to disclose their addiction issues and access treatment, this was not available to Stewart, who could not seek accommodation for a disability he did not know he had. In addition, Justice Gascon said that allowing Stewart to reapply to the company in six months and offering to subsidize his rehabilitation (if successful) was not reasonable accommodation. This could not count as reasonable accommodation because at that point, he had already been terminated. Accommodation is meant to assist employees in their continued employment, and “not former employees who may, or may not, successfully reapply for the position they lost […]” (para 61).
Although provincial human rights acts prohibit discrimination on the basis of mental disability, these protections are not always guaranteed. The divided court in Elk Valley demonstrates that the notions of reasonable accommodation and undue hardship are far from settled. These concepts must remain somewhat flexible due to the broad nature of employment: what may be considered to be undue hardship for one employer may not be for another. For this reason, courts should perform a close examination into the circumstances of each case. Judges should attempt to understand employers’ capabilities in order to determine whether or not they did in fact provide reasonable accommodation.
In addition, Justice Gascon’s analysis in Elk Valley reminds us that mental illnesses, including addiction, are often complex. Because of this, courts should be careful to approach mental illness-based discrimination cases in a nuanced manner and attempt to understand the mental illness at hand. For example, due to the nature of the mental illness, an individual may not be aware that they have it, which could result in an inability to seek support from their employer. This may make it difficult for employers to accommodate these individuals, but ideally, it should not preclude employees from receiving certain employment benefits. As a preliminary measure, employers should consider how their policies may adversely affect any individual with disabilities and whether it is within their means to be more inclusive.
Annelise Harnanan is a Senior Online Editor with the McGill Journal of Law and Health. She is in her second year of the B.C.L./J.D. program at McGill University’s Faculty of Law, and has a keen interest in health policy. She holds a BA with distinction in Political Science from Dalhousie University.