Canada: Local Doesn't Make The Grade: The Need To Accommodate Employees With Anxiety When Writing Qualifying Exams

John Betts, (the "Applicant") was a carpenter and member of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the "Union"). While the parties were not engaged in a traditional employer-employee relationship, the Applicant was protected from discrimination by the employment related sanctions of the Ontario Human Rights Code (the "Code").

Like most regulated trades, carpenters undertake an apprenticeship program which consists of on-the-job and in school training. Upon completing the apprenticeship program the Ministry of Training Colleges and Universities administers a qualifying exam. Those who receive a passing grade on the qualifying exam will be issued with a Certificate of Qualification ("CoQ").

At all material times, the Applicant was an apprentice carpenter. Having completed the requisite training, the Union encouraged the Applicant, and other eligible apprentices, to write the qualifying exam and obtain his CoQ. Specifically, the Union established a three month time frame for all eligible apprentices to obtain the CoQ. Those who failed the qualifying exam were mandated to challenge it every 15 days until they succeeded.

The Applicant made several attempts at the qualifying exam. After his third failed effort, he began to experience extreme anxiety and panic attacks. Between June 2010 and July 2012, the Applicant had failed the exam six times, and cancelled nine scheduled attempts. These issues came to a head when in October of 2012, the Union wrote to the Applicant and imposed a deadline by which he had to obtain his CoQ. In December of 2012, when the Applicant had failed to meet the Union's deadline, the Union wrote to the Applicant's employer to advise that he was no longer a member in good standing, and request that he be laid off until he was able to pass the qualifying exam and obtain his CoQ.

The main issue addressed by the Tribunal in this case was whether the Union's actions in effecting the Applicant's layoff constituted adverse impact discrimination. Specifically, the Tribunal questioned whether the objectively neutral deadline to obtain the CoQ had a negative impact on the Applicant due to his unique disability. Finding in favour of the Applicant, the Tribunal applied the definition of adverse effect discrimination established by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC):

It arises where an employer... adopts a rule or standard... which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.

The Applicant had no difficulty demonstrating a prima facie case of adverse impact discrimination. Simply put, the Applicant had a disability, and the neutral deadline imposed by the Union aggravated the Applicant's disability and impaired his ability to succeed in his employment.

The next question facing the Tribunal was whether the Applicant was accommodated to the point of undue hardship. While the Applicant suffered from debilitating anxiety from June 2010 onwards, it was only in January of 2013 that the Applicant provided the Union with medical documentation linking his disability to his ability (or inability) to write the qualifying exam. Interestingly, the Tribunal held that the Applicant's statement to the Union that he had "test taking anxiety" did not trigger the Union's duty to inquire. In coming to this determination the Tribunal considered the Applicant's ability to be forthcoming about his disability related needs. While the Tribunal acknowledged that some mental illneses, by their very nature, preclude forthrightness and disclosure – this was not one of those cases. For this reason, the Union's actions would only be scrutinized from January 2013 onwards, when the Union was clearly and unequivocally advised of the Applicant's disability and treatment program.

While the Tribunal admonished the Applicant for failing to provide medical documentation earlier in the process, it ultimately held that the Union failed in its duty to accommodate. From January 2013 onwards the Union had uncontroverted evidence of the Applicant's disability and failed to re-consider the deadline for the Applicant to obtain his CoQ or the manner in which the qualifying exam was being administered. Further, the Union continued to pressure the Applicant to pass the exam and insisted that he obtain his CoQ as a condition for active employment.

While the Union was ordered to pay the Applicant special damages for injury to dignity, feelings, and self-respect, and amounts for lost wages, the Tribunal gave the Union a significant discount on account of the Applicant's failure to disclose his disability related needs earlier than January 2013. Where the Applicant sought $20,000.00 in special damages, he was awarded only $8,000.00 and where the Applicant was on lay-off for 16 months, he was awarded lost wages for only eight months. As a further remedy, the Union was ordered to develop an anti-discrimination and accommodation policy.

Despite the unique challenges that arise when accommodating mental health issues, the duty to accommodate is never a one-way street. Whether an applicant is suffering from a physical or mental disability, the Tribunal will conduct a case by case analysis to determine whether and when an Applicant is capable of fulfilling his duty to disclose. While some forms of mental illness preclude disclosure, the mere existence of mental illness in and of itself will not diminish an applicant's duty to raise their hand and, where they are capable, initiate the accommodation process. Here, the Applicant's failure to discharge his duty to disclose significantly compromised his damages award.

At the same time, unions and employers are reminded of their broad duty to inquire. The duty reaches far beyond the obvious measures. It is incumbent upon unions and employers to learn about the multi-faceted nature of mental illness and provide individualized accommodations. In the instant case, the Tribunal held that the Union ought to have contacted the Applicant's doctors and obtained more information on his restrictions. The Union's failure to adequately educate itself on the Applicant's disability related needs lead to its failure on both the procedural and substantive duty to accommodate.

In order to be successful in the duty to accommodate and achieve full integration in the workplace, employees, unions, and employers must openly communicate and work together to create a supportive environment. This is essential in all accommodation cases, and particularly in the ongoing fight to remove the stigma from mental illness.

Written in collaboration with Justine Smith, articling student.

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