The Ontario Human Rights Commission (the "OHRC") has
recently published a report on people with mental health and
addiction disabilities in the province. The report examines
many different obstacles faced by such individuals but the section
of the report dealing with the labour force is of particular note
to Ontario employers. First, many readers may be surprised by
the prevalence of mental health and addiction disabilities in the
workforce. The report states that approximately 5% of
Ontarians over the age of 15 currently identify themselves as
having a mental health or addiction-based disability. The
report also notes that a staggering 90.5% of all individuals who
have mental health or addiction disabilities also have another,
concurrent form of disability. The presence of multiple,
overlapping disabilities certainly adds complexity to the
In addition, the report finds that people with mental health and
addiction disabilities are disproportionately underemployed
compared to the rest of the population and even compared to people
who have other types of disabilities. When employed, persons
with mental health and addiction issues report experiencing high
levels of harassment and discrimination. 67.7% of those
surveyed reported feeling disadvantaged at work, stating that they
had been refused interviews, refused promotions or otherwise
treated poorly because of their disability.
Most notably, the OHRC found that 1/3 of employees who identify
as having addiction or mental health disabilities do not plan to
tell their employers about their health issues and do not plan to
request any accommodation. In light of this fact, employers
should be mindful of case law that requires them to proactively
investigate whether or not an employee's unusual behaviour is
indicative of a mental disorder. For example, in a 2010
decision of the Federal Court of Canada, the Court considered
whether or not the Canadian Human Rights Commission had erred in
declining to deal with a complaint from a former employee of the
Department of Foreign Affairs and International Trade
("DFAIT"), Mr. Dupuis, who alleged that DFAIT had
discriminated against him when it accepted his notice of
resignation. Mr. Dupuis alleged that he was experiencing a
mental disorder at the time that he resigned and that DFAIT should
have refused his resignation and directed him to seek medical
attention. The Court held that it was unreasonable for the
Commission to decline to deal with the complaint. The Court
held that DFAIT ought to have known that something was amiss
because Dupuis had recently purchased a home and was being
considered for a permanent appointment within DFAIT.
Resigning at that juncture was clearly "irrational" and
merited further inquiry before DFAIT accepted his
resignation. (Dupuis v. Canada 2010 FC
Cases like Dupuis illustrate the challenges faced by
employers with employees who have undisclosed mental health
issues. Most employers would prefer to respect the privacy
and autonomy of their employees and refrain from prying into what
is obviously a very personal sphere. For more on this thorny
issue, you can . The Cassels Brock employment
group will also be discussing mental health, accommodation and
absenteeism at its fall breakfast seminar on October 7, 2015.
For more details on the seminar, please click here.
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.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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