Canada: Undue Hardship In M.H. v. College Of Nurses Of Ontario: Setting Limits On The Duty To Accommodate


Regulatory colleges must review accommodation requests from individuals with disabilities within the context of their public protection mandate. The Ontario Human Rights Code (Code) requires that they accommodate applicants and members with disabilities up to the point of undue hardship. Undue hardship is a term of art that refers to the limits on the duty to accommodate. It involves a consideration of costs, health and safety issues, and, for regulatory colleges in particular, of whether the accommodation would jeopardize their ability to meet their public protection mandate.1

Although these principles are well known, they can be difficult to operationalize in practice. Regulatory colleges often struggle to determine how far they must (or may) go to accommodate applicants and members with disabilities.

The recent decision of M.H. v. College of Nurses of Ontario2 provides regulatory colleges with guidance with respect to the limits of their duty to accommodate individuals with disabilities.

Summary of M.H. v. College of Nurses of Ontario

In M.H. v. College of Nurses of Ontario, the Health Professions Appeal and Review Board (Board) considered an appeal by the member, MH, of a decision of the College's Registration Committee (Committee) to refuse to issue him a Certificate of Registration as a Registered Nurse (RN) in the general class.

MH had originally applied for a Certificate of Registration as a RN in the general class with the College in December 2000. His application was granted in January 2001. In late 2003, the College discovered that MH had two prior convictions for assault and possession of an unregistered firearm that he had failed to declare on his December 2000 application. As a result, his Certificate of Registration was revoked in late 2003.

During that same time period in late 2003, the College received and investigated four reports relating to MH's nursing practice and professional conduct. Specifically, the reports alleged suspected incidents of improper practices relating to narcotics, including questionable withdrawals, misappropriation, and inadequate management and documentation.

In May 2010, MH applied again for a Certificate of Registration as a RN in the general class. In his application, MH explained that his criminal charges were related to stressful events in his personal life and to substance abuse issues from which he suffered at that time. He admitted to having diverted significant amounts of narcotics through narcotic waste and manipulation of narcotic record tracking and to performing nursing while impaired. MH explained that after his Certificate of Registration was revoked, he was treated for substance abuse through AA meetings. He stated that at the time of application, he had been sober for two years, three months and one day. He did not submit any medical evidence with respect to his suitability to practise.

MH's application was referred by the Registrar to the Committee. On October 25, 2012, the Committee decided to exempt him from the requirement that he not be found guilty of a criminal offence. However, it made no determination as to whether his health condition would affect his ability to practise nursing safely. The Committee therefore asked MH to attend a medical assessment with an independent addictions specialist selected and paid for by the College to determine how his prior substance abuse might impact his ability to practise. The specialist met with MH and released a report opining that he was incapacitated and would relapse if he returned to work. The specialist recommended that prior to returning to practice, MH attend the Homewood Health Centre 35-day in-patient treatment program and a 9-month aftercare program. The specialist also recommended additional terms on MH's registration should he return to practice, including that MH participate in a health professions support group indefinitely.

Based in large part on the specialist's report, on April 23, 2013, the Committee directed the Registrar to refuse to issue MH a Certificate of Registration.

In appealing this decision to the Board, MH stated that there was sufficient evidence for the College to issue him a Certificate of Registration with terms such as ongoing monitoring. MH criticized the specialist's report, arguing that it was incomplete and biased. However, he did not provide his own expert evidence to counter the report. MH also complained about the delay in processing his application, stating it was procedurally unfair as it effectively rendered his evidence of recent practice stale. MH further argued that the College was required to issue him a Certificate of Registration pursuant to its duty to accommodate his disability to the point of undue hardship.

In confirming the Committee's decision, the Board held that MH had not met his onus of proving that he satisfied the conditions of registration. It noted that the specialist's report was persuasive and MH did not file any expert evidence to counter the report. It dismissed MH's complaint about procedural unfairness, noting that even if such a complaint was warranted, it would not be in itself sufficient to warrant the granting of a Certificate of Registration.

The Board rejected MH's human rights argument, finding that he could not be accommodated without the imposition of undue hardship. It stated at para. 61:

The Board is satisfied, based upon the evidence before it, that the Applicant's desire to be registered with the College cannot be accommodated without undue hardship upon the College and the public interest that the College is mandated to protect. Specifically, the Board is satisfied based on the evidence before it, that there are no terms and conditions, such as monitoring as suggested by the Applicant, which could be imposed at this time to permit him to return to practise safely. The evidence of Dr. C. is that the Applicant requires further treatment before his safe return to work, even with terms, conditions and limitations because he was not treated appropriately and is almost guaranteed to relapse. Even though the Applicant believes he is ready to return to nursing on terms such as monitoring, in the absence of any medical information to support the Applicant's readiness to return to nursing in a safe manner (with terms such as monitoring), the Board finds the evidence of Dr. C. to be persuasive.

Lessons Learned

The Board's decision in M.H. v. College of Nurses of Ontario confirms that regulatory colleges may refuse accommodation requests that undermine their public protection mandate. Registration requirements with respect to the ability of applicants to practise safely go to the heart of this public protection mandate. In assessing whether an individual has a disability that affects his or her ability to practise in a safe manner, regulatory colleges are entitled to rely on the opinion of an independent expert, particularly where there is no expert evidence to the contrary.

Regulatory colleges are not required to register an individual who suffers from a disability that affects his or her ability to practise in a safe manner.


1 Courts defer to the expertise of regulatory colleges (and their committees) in determining what is required to fulfill this public protection mandate. See for example, College of Nurses of Ontario v. Trozzi, 2011 ONSC 4614 at para. 30.

2 M.H. v. College of Nurses of Ontario, 2014 CanLII 57012 (ON HPARB).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Debbie S. Tarshis
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.