Canada: Doctor Who? Complainant Cannot Generally Rely On Self-Diagnosis When Trying To Establish An Invisible Disability

A recent decision of the B.C. Human Rights Tribunal,Cummings v. Nenan Dane Zaa Deh Zona Family Services Society, demonstrates that a complainant cannot rely as a general matter on a self-diagnosis when trying to establish a mental disability or a disability that is not self-evident. Objective, credible medical evidence is generally required.

Background Facts

The complainant, Allen Cummings, was employed as the executive director of the respondent, Nenan Dane Zaa Deh Zona Family Services Society (the "Society"). He complained to the Tribunal that he was subjected to discrimination in employment on the basis of disability.

The Society provides family support services for First Nations people living in the Peace River region of British Columbia and relies on annual funding through the B.C. Ministry of Children and Family Development (the "Ministry").

Mr. Cummings was hired in 2008 as the Society's planner. He was responsible for managing the relationship between the Society and the Ministry. Early in his time on the job, Mr. Cummings engaged in inappropriate behaviour. For instance, he e-mailed a member of the Blueberry River First Nation and said, "I decided you don't know what you are doing" and "I wish you would wake up and be Indian again". This caused the band to sever its relationship with the Society. Mr. Cummings also promoted himself to the position of executive director, with a resulting $15,000 salary increase, without requesting approval from the Society's board of directors.

Mr. Cummings testified that he began drinking excessively in 2011 as a result of conflict he experienced in his relationship with the Ministry. He attributed the conflict to the appointment of a new deputy minister who allegedly used oppressive tactics that were a "trigger" for him. He testified that he never drank during work hours but, after work, he would go to a pub and often drink to the blackout stage. He also testified that he was later diagnosed with obsessive compulsive disorder (OCD). Mr. Cummings stated that his drinking reached an apex in 2012 and he began attending Alcoholics Anonymous meetings in November of that year. He did not see a doctor and was not diagnosed as an alcoholic.

During the time that Mr. Cummings was allegedly drinking heavily, he wrote several inappropriate e-mails to the Ministry's Regional Executive Director. He made accusations of incompetence and gross negligence, described the system as "the good old IDIOT Ministry system" and said he was ready to kill someone.

In 2012, as a result of Mr. Cummings' failure to submit progress reports, one of the Society's contracts was not renewed by the Ministry and the Society suffered a $400,000 loss of funding. He nonetheless proceeded to commit the Society to a 5-year lease for three vehicles without seeking authorization from its board of directors.

In November 2012, Mr. Cummings sent further disrespectful and unprofessional e-mails to Ministry staff in response to a change in travel expenditure requirements. He e-mailed the Assistant Deputy Minister and stated, "Your [sic] a coward and I hope you have the morals and integrity to show your face like a real man!" He e-mailed another Ministry employee and said, "Your horrendous mismanagement of the ICM process and hundreds of millions of dollars in money that should go to our Indian people and agencies is nothing less than ... morally reprehensible and sheet utter incompetence!"

He went on to write two e-mails to the Deputy Minister, one of which ended with the statement, "You people make me sick to my stomach!" He also copied a Ministry employee on an e-mail to a co-worker in which he made the following threat:

Make a flight regardless of what they say. I will show up at mcfd provincial office all week next week.

[The deputy minister] will meet with me, or he will meet me on the street.

I want this flight and meeting [confirmed] ASAP!

In response, the Ministry indicated that it would no longer be collaborating with the Society, in part because of the difficult relationship with Mr. Cummings.

In January of 2013, Mr. Cummings wrote to the Society's board of directors. He stated that he was attending counselling to manage his anger problems and was also enrolling in a day program for substance abuse and post-traumatic stress disorder (PTSD). He informed the board that he was diagnosed with OCD and was taking a medication named Paxil.

Mr. Cummings attended the February meeting of the board in order to discuss his conduct. He did not provide the board with any medical documentation. He did not speak about how his OCD was affecting him and did not indicate that his attendance at the day program was related to substance abuse or PTSD. It was later discovered by the Society that Mr. Cummings had attended the day program partially during work hours with pay, once again without the approval of the board of directors.

At its next meeting, the board of directors voted to discharge Mr. Cummings from his employment.

Decision of the Tribunal

The Tribunal dismissed Mr. Cummings’ complaint because he had failed to make out even a prima facie case of discrimination.

In Moore v. British Columbia (Education), the Supreme Court of Canada stated that order to succeed, a complainant such as Mr. Cummings must establish that:

1) he or she has, or is perceived to have, a disability;

2) that he or she was subjected to adverse treatment; and

3) that the disability was a factor in the adverse treatment.

Although the Tribunal acknowledged that both alcoholism and OCD have been recognized as disabilities under the B.C. Human Rights Code, Member Blasina noted that medical evidence is often an important part of the evidentiary burden on a complainant in the case of a mental disability or a disability that is not self-evident. Medical evidence is not absolutely necessary but a complainant's self-assessment and self-reporting may not be enough.

Member Blasina found that Mr. Cummings was not a credible witness. He claimed that he was addicted to alcohol but provided no medical evidence to support his claim. Rather, his evidence consisted of his own testimony that he often drank to the blackout stage and was attending AA meetings. In the circumstances, the adjudicator held that it was incumbent on Mr. Cummings to provide medical or expert evidence to establish or corroborate that he had an alcohol addiction. His self-assessment and self-reporting were insufficient.

Mr. Cummings also failed to provide any medical evidence to confirm that he suffered from OCD and that there was a link between his alleged OCD and his job performance problems. He testified that his counsellor told him he had OCD and he was then prescribed Paxil by his family doctor. Member Blasina noted that the evidence about what the counsellor said was hearsay and questioned whether the counsellor was actually qualified to diagnose OCD. The Tribunal held that "by failing to provide medical or expert evidence, Mr. Cummings failed to establish he has OCD, or the nature of his alleged OCD, or how it affected or would have affected his behaviour".

Overall, Mr. Cummings’ self-assessment of his alleged disabilities was insufficient to ground a successful human rights complaint.

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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James Kondopulos
Sarah Dickson
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