In Flinn v Halifax Regional School Board, 2014 NSCA 64 the Nova Scotia Court of Appeal considered the issue of accommodating a high school teacher’s mental illness in the workplace. The Court found that the risk of recurrence, and the recommended monitoring of the employee for recurrence, amounted to undue hardship. While the case is particularly relevant to the education sector, it will also affect other areas where employees work with vulnerable people in positions of trust and safety is at issue.
The Appellant teacher had over 15 years’ experience and a clean record. Over the summer of 2008, he engaged in email communications with a grade 10 student. Some of the messages were disturbing. For example, the Appellant:
- Recommended that the student kill her parents with a chainsaw while they slept;
- Used terms like “child beater” and “cow woman” to describe her father and mother;
- Suggested that she purge food;
- Criticized the therapy her parents had arranged for her;
- Told her he wanted to leave his wife for another woman; and
- Mentioned that he thought about taking her out of town for lunch.
The student’s parents went to the school principal after finding the emails. The Appellant called in sick the day after school officials confronted him about the emails (which he did not deny sending) and did not return to work before he was terminated. The day after being confronted, he went to his family physician and was then referred to mental health services. Several months later, he was diagnosed with a bipolar disorder that could cause drastic mood changes (including periods of “hypomania”).
The Union took the position that the Appellant did not have control over his actions at the time he sent the emails because of his untreated bipolar disorder.
A psychiatrist conducted an independent medical examination of the Appellant, and suggested that he could return to the classroom as long as his mood was being monitored. Based on the IME, the Appellant then provided the School Board with a list of warning signs that would indicate an onset of hypomania, and “proposed that the principal could monitor [him] for any of those signs.”
However, on the recommendation of the School Board’s Human Resources Director, the Appellant was dismissed in the spring of 2010. The Director’s report gave two possible grounds for dismissal: (a) on the basis that the Appellant’s conduct was culpable because he knew what he was doing was wrong and could therefore be terminated for cause, or (b) even if his judgment was impaired by his disability and his behaviour was non-culpable, on the basis that the School Board could not provide adequate supervision to accommodate his disability.
The Appellant challenged the dismissal before an Appeal Board, which upheld the termination. Although concluding that the Appellant’s conduct was “not culpable” (i.e., due to his disability), the Appeal Board found that requiring the School Board to accommodate the Appellant would constitute undue hardship as it would be “impractical” to have the principal monitor him. Furthermore, the incidents in question happened over the summer when no supervision would have been possible. Ultimately, there was too much risk for students to justify reinstating the Appellant.
The Appellant unsuccessfully sought judicial review of that decision in the Supreme Court of Nova Scotia, which found that the Appeal Board’s decision to terminate the employment relationship was reasonable. The Court of Appeal upheld this decision. Both Courts discussed the interpretation and application of the bona fide occupational requirement standard.
WHAT THIS MEANS FOR EMPLOYERS
The Court’s analysis is positive for employers. Although the decision focused largely on reasonableness and the standard of review, the Court commented specifically on the limits on the duty to accommodate, particularly in the context of mental illness.
Critically, the Court recognized that the steps in the proposed accommodation, namely monitoring the Appellant’s blood levels and having the school principal and other teachers oversee the Appellant’s behaviour, were impractical. This, coupled with (a) the uncertainty of detecting the onset of the Appellant’s mental illness; (b) the previous misuse of his authority; (c) the need to have safe schools; and (d) the severity of the consequences if another student was drawn into a similar scenario, meant that the level of acceptable risk had to be extremely low. The risk level was too high here, so the circumstances were sufficient to establish undue hardship.
Where accommodation of a mental illness arises, employers need to carefully balance the procedural and substantive elements of the duty to accommodate. The duty to accommodate is not easily discharged. However, this case shows that where there is a high probability of recurrence; the employee is in a position of trust and working with vulnerable people; and the proposed accommodation would place onerous obligations on management and other employees, undue hardship may be established.