Accommodating Mental Health Illness

Mental health illnesses affect approximately 20% of Canadian workers and cost the country billions of dollars. According to the Centre for Addiction and Mental Health and the Canadian Mental Health Association, at least 500,000 employees are unable to work due to mental health issues in any given week.

The ability to engage in meaningful, paid work is a basic human right for every person.

In this article, we will discuss how employers are required to respond promptly and effectively when employees declare or display mental health issues. This response is referred to as the duty to accommodate and we will outline why accommodation is necessary, forms of accommodation, how to identify the need for accommodation and some solutions organizations can apply to ensure duty to accommodate can be met.

Why is accommodation necessary?

The goal of any accommodation is to ensure that any employee who is able to work yet who is experiencing some form of mental health issue or addiction issue has been offered options to be able to continue to work in a modified manner. It is an employer’s obligation under the Human Rights Code to respond immediately and appropriately when employees experience mental health problems. Proper support must be put in place to manage performance and productivity issues.

What is considered accommodation?

Mental health issues and the way they manifest themselves vary greatly. As a result, accommodations must be developed and applied on a case-by-case basis. The employer does not have a duty to change working conditions fundamentally but the employer must accommodate the employee in a way that will ensure that the employee can work as long as it does not provide undue hardship to the employer.

The standard of undue hardship is a very high standard for an employer to meet and it often means they are required to go to extreme lengths and even expense to accommodate.

Accommodation may include job restructuring, job bundling, reassignment to other positions, or retraining for other positions.

Examples of Duty to Accommodate

  • Providing stress leave for a person suffering depression or anxiety
  • Allowing a flexible work schedule to accommodate psychiatric or therapy appointments
  • Providing a quiet work environment with opportunity to work from home
  • Time off with pay to attend treatment programs for drug or alcohol dependency

How do employers identify the need to accommodate?

Often employers are afraid of saying or doing the wrong thing, so they say nothing. This can lead to poor productivity, lower morale, and conflict in the work environment.  However, employers should be aware that employees could be reluctant to disclose mental health issues. Where behaviour in the workplace makes it apparent that the employee is having mental health issues, the employer cannot simply terminate an employee who is not performing his or her job.  For example, a worker may be found to be crying at his desk and not completing his work or being repeatedly absent from work. This creates a duty to inquire on the part of the employer who must give the employee an opportunity to explain

Stigma around mental health often makes it difficult to identify needs to accommodate. Sometimes employees are unable to accurately pinpoint their disability needs, which make it difficult for employers to determine if a duty to accommodate exists.  Depending on the situation, the failure to accommodate an employee’s mental illness may constitute discrimination and give rise to human rights complaints or employment law claims. Employers must ensure that requests for accommodation are adequately addressed to avoid such claims.

Accommodating a disabled employee can cause frustrations both on the part of the employer and employee. Often they are suspicious of each other and do not understand their respective rights and obligations. Additionally, the employees are very vulnerable – financially, physically, and/or psychologically which complicates situations and raises the stakes for Human Rights Code violations. Potential liabilities can be significant if taken to court. 

The court has emphasized that employers need to act with empathy. What constitutes reasonable measures to meet the duty to accommodate is a question of fact and will vary with the circumstances of the case. The onus is on the employer to establish that it could not accommodate the employee without “undue hardship”.

What if accommodating an employee is too difficult for an employer? What is Undue Hardship?

There are no formal criteria for determining undue hardship. The courts will consider the context, health and safety of the employee, the cost to the employer in providing accommodations, collective agreements, workplace policies and procedures, the inter-changeability of the employer’s workforce and facilities and the operational requirements of the employer’s workplace. 

There is a reasonable limit to how far an employer or service provider has to go to accommodate an employee’s needs. They can claim undue hardship as the reason why certain policies or practices need to stay in place, even though they may have a negative effect on the employee. Although company policies and procedures may be robust, the need to go beyond them to accommodate an employee does not necessarily constitute undue hardship. For that reason, each case requires a tailored approach.  Sufficient evidence is necessary to assess claims for undue hardship. 

Generally, it will be more difficult for a larger organization with a large workforce to establish undue hardship.  This is because the cost of an individual accommodation will be proportionately less and because there are more alternative work opportunities if required in the accommodation plan. Conversely, a small employer may not be reasonably able to bear the financial burden of accommodation or may not have other employees who can do the work that the disabled employee is unable to complete.  Accommodation in such a case would more easily amount to undue hardship, which relieves the employer of having to accommodate the disability.

The Jurisprudence

The case of Harden v The Ottawa Hospital illustrates some interesting points regarding the collaborative nature of the duty to accommodate process such as an employer’s obligation to offer acceptable levels of duty to accommodate, be responsible to diligently investigate accommodation and propose job options, as well as an employee’s obligation to actively participate in the accommodation process by promptly providing medical information, be truly committed to seeking work that accommodates restrictions and make sincere efforts to secure positions. The duty to accommodate process demands active participation on the part of both the employer and employee.

In this case, the employee has a mental health condition that prevented her from working in her regular job as a registered nurse providing bedside nursing in a critical-care hospital setting. In the end, the employee resigned despite the fact that a reasonable offer of temporary accommodated employment by the hospital was available. She firmly believed she was discriminated against because her employer did not find a permanent job, which met her substantial restrictions, and because the hospital did not offer her several years of salary in exchange for her resignation from employment. The employee felt the hospital owed her more than it was prepared to offer by following its standard process of accommodation. She was seeking a financial package in exchange for her resignation as part of the duty to accommodate.

Ultimately, this position demonstrates a misunderstanding of the duty to accommodate. The duty to accommodate mandates that the employer to carefully consideration the individuals situation and provide meaningful attempts to find appropriate accommodations. It does not dictate that employer needs to provide new jobs or offer any sort of “buy-outs”.

The court concluded that the employer had discharged its duty to accommodate the employee to the point of undue hardship and dismissed the application.

Finding Solutions

Employers must engage in creative problem solving when asked to accommodate a mental health issue. Insurance benefit plans must treat disabilities equally and workplace policies and procedures must be flexible and adaptable to those having a mental disability. 

Organizations need to make sure they openly address stereotypes and make their organizational cultures more responsive to people with psychosocial disabilities. Under the Code, organizations are obliged to ensure they offer an inclusive work environments that meets the needs of people with mental health disabilities and addictions – thus promoting full inclusion and participation. 

Employers are not required to:

  • Continue to employ persons who are unable to fulfil basic employment obligations over the foreseeable future;
  • Create completely new positions or provide employees with meaningless work where the employee is incapable of anything else;
  • Cater to any specific form of accommodation preferred by the employee

Employees are required to cooperate and accept reasonable alternatives when presented and to provide all information requested by employers about the disability.

In summary

The costs and impact of disability and illness are very high:

  • For workers it translates into loss of income and impacts on self, family, and social environments;
  • For employers it translates into increased insurance premiums, loss of productivity by trained workers, and increased recruitment costs;
  • For society it translates into costs of social programs for individuals who may otherwise be productive and active members of the workforce.

Offering appropriate accommodations (temporary or permanent) to employees due to illness, injury or disability is a win-win for both employers and employees and is what the law in Ontario requires.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Age Discrimination and Forced Retirement

Currently, there are approximately 1.5 million older persons in Ontario. By the year 2021, Ontario will be home to three million people over the age of 65. Older workers make a valuable contribution to this province every day.

The Ontario Human Rights Code (the “Code“) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. Employment is central to an individual’s financial health, sense of worth, dignity as well as their satisfaction in feeling able to participate fully in society and be a part of a community.

So, are People Age 65 and Older Subject to Mandatory Retirement?

The answer is no, with limited exceptions.

This article reviews when mandatory retirement is permitted in Ontario. We will review:

  • Some of the protection available under Human rights legislation;
  • Explore how courts evaluate age discrimination cases and cite a couple of tribunal cases where age discrimination was allowed; and
  • Finally, we will offer some pointers for employers and outline the steps employees can take to file a claim.

The History of Mandatory Retirement

Until December 31, 2009, the mandatory retirement age in Canada was 65. At age 65, an employer could terminate your employment for the simple reason of your being 65.

The Federal government prohibited mandatory retirement in 2009. However, the prohibition against mandatory retirement has two exceptions — Supreme Court justices who must retire at age 75 and judges, magistrates and justices of the peace in Provincial courts who must retire between 70 and 75.

Other than these two exceptions, there is no law in Ontario that requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs.

What is Age Discrimination and How are Workers Protected?

Imposing an employment decision (such as forced retirement) based solely on age and not on the ability to do the job, is age discrimination under the Code.

In Canada, both federal and provincial human rights law protects Canadians from age discrimination. Ontario`s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age.

The Code specifically prohibits mandatory retirement – protecting employees aged 65 or more from being forced to retire, except in cases where the retirement age can be justified as a “bona fide occupational requirement”.

A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.

One example of bona fide occupational qualifications is mandatory retirement ages for bus drivers and airline pilots for safety reasons.

Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a claim of discrimination on the basis of age with the Ontario Human Rights Commission.

The Bona Fide Occupational Requirement Test (BFOR)

The Courts justify discrimination through a test called “Bona Fide Occupational Requirement” (BFOR) which is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if and only if there is a legitimate reason that is connected to the employee’s ability to do the job.

The “test for a BFOR” in the context of age discrimination was discussed in 1982 by the Supreme Court of Canada in Ontario v. Etobicoke. In this case, the complainant, a firefighter, was required to retire at age 60.  The Court set out a two-part test to determine whether a mandatory retirement scheme is justifiable:

  1. Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the [Human Rights] Code.
  2. Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

What’s the Bottom line?

The bottom line is that it is contrary to law for employers to require employees to retire at a fixed age, whether it be 65, or older or younger, unless the employer can establish to the satisfaction of the court or the Human Rights Commission that the established age is based on a bona fide occupational requirement.  So it is the exception, not the rule, where mandatory requirement is allowed

Employers must be able to provide evidence that the retirement age is justifiable in law. This can be best achieved through the development and communication of a retirement policy that sets out the objective justification for the retirement age. Such policies can later be relied upon in the event of any claim.

Age Discrimination Tribunal Case Review

In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given was that there would no longer be a need for his position. However the employee was not declared redundant and the position was filled by a younger person. A case of age discrimination was successfully made out.

In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [Hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.

What these two cases tell us is that an employer cannot avoid the prohibition on mandatory retirement by trying to lay off employees based on redundancy, where the real motive is age related. 

Lessons for Employers:

Employers are bound by three rules in the Code as follows:

  1. They cannot refuse to hire, train or promote people because of their age;
  2. They cannot unfairly target older workers, or other age groups, when it comes to reducing staff or reorganizing; and
  3. They must make sure that the workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.

In our aging population, age discrimination is common and is on the rise. Claims of age discrimination due to forced retirement are becoming increasingly common and can be costly to employers

Employers can have mandatory retirement programs based on a certain age but these programs must be based on a bona fide occupational requirement for performing the job.

Employers can protect themselves by taking the following steps:

  • Have a retirement age in place which is fixed and communicated clearly to employees, along with the explanation for why this age has been determined to be a necessary qualification for the job.
  • Incorporate the fixed retirement age in a “retirement policy” that sets out the objective and justification for that “fixed retirement age”
  • Take measures to provide a workplace that is free of ageist stereotypes and that provides an environment where older workers are treated as individuals, assessed on their own merits instead of against presumed group characteristics
  • Ensure older workers are subject to the same performance management practices as every other worker
  • Define the eligibility criteria for any voluntary retirement program
  • Share the criteria with all staff, irrespective of age, through a neutral medium such as a written document

Tips for Employees:

If you feel you are experiencing age discrimination at work there are a few things you can do:

  • If you need human rights legal advice or help filing an application with the Human Rights Tribunal of Ontario, contact the Ontario Human Rights Legal Support Centre at: 416-597-4900 or 1-866-625-5179 and speak with a Human Rights lawyer.
  • To file an application with the Human Rights Tribunal of Ontario, visit their website and follow the instructions for how to file an application.
  • To learn more about your rights, responsibilities and options, contact/hire an employment lawyer

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Shifting Balance Between Privacy and Openness in the Tribunal World of Justice

Public access to court proceedings is the normal practice in Court proceedings to the justice system (courts and tribunals) as it ensures justice is administered in a fair manner, in accordance with the principle of freedom of expression, found in the Charter of Rights and Freedoms. However, until recently, openness and transparency did not extend to Ontario’s Tribunals, which make decisions on a wide range of matters

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. Tribunals, were part of the justice system but operated outside of the principles of openness and transparency.

This article highlights a recent decision of the Superior Court of Justice in Ontario leading case that initiated significant change to the operation of Tribunals in Ontario. We will highlight some emerging issues facing Tribunals in finding the balance between protecting privacy while being accountable to foundational principles of openness and transparency.

Tensions between privacy and openness

In this age of the Internet, the publication of justice system information can lead to serious privacy consequences. As a result, tensions arise between two competing justice values – an open and accessible justice system and the right to privacy.

Questions arise about how to protect the personal information of individuals involved in court and tribunal processes while continuing to foster openness and accountability. It is a difficult balance to reach.

Rules for privacy differ between courts and tribunals

Seeking justice through the criminal court system can be a gruelling, intimidating and de-humanizing process for individuals. This is evidenced through media coverage of high profile cases where credibility goes on trial, private lives go under the microscope and the victims forced to re-live the trauma every day in the courtroom.

The Province’s various administrative tribunals make decisions on a range of issues from landlord and tenant disputes to human rights complaints. Documents and records have in the past typically not been readily accessible. Up until May 2019 the rules of disclosure in the formal court system as well as the principles of transparency and openness were not considered a part of the tribunal system. Access to administrative tribunal records and proceedings was inconsistent — either at the discretion of the respective tribunal or through access-to-information requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

What changed?

In April 2018, the Ontario Superior Court of Justice released its decision in Toronto Star v. AG Ontario, finding that the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals violates the principle of freedom of expression embedded in section 2(b) of the Charter of Rights and Freedoms. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible, transparent and rigorous – necessary to maintain the integrity of the system. Previously, there had been a good deal of secrecy, misinformation, selective disclosure of information, delay, and cost. The result is that the public has had no consistent right and ability to see how decisions are made and on what basis.

The decision in this case significantly transformed how tribunals operate. The outcome had broad ramifications for all judicial tribunals. The court clearly confirmed that tribunals are not simply a function of government, but have adjudicative powers like courts and need to operate openly, like courts.

Bringing Openness into the World of Tribunals

As a response to the decision in the Star case, in May 2019, Tribunals Ontario released a new policy confirming they are now guided by the open court principle and committed to transparency, accountability and accessibility in decision-making and operations.

The open court principle allows the public and media access to tribunal proceedings. It ensures effectiveness of the evidentiary process, encourages fair and transparent decision-making, promotes the integrity of the justice system and informs the public about its operation.

Openness and access to information is fundamental to gaining public confidence in the justice system and in building public understanding of how the administration of justice is maintained.

New challenges for Tribunals

Tribunals now must refine the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information during proceedings. Most decisions and orders of Tribunals Ontario tribunals are available online without charge on CanLII and in some cases on boards’ or tribunals’ websites.

Privacy should never defeat the foundational principles of openness and accountability in tribunal processes, however, where individuals are involved in tribunal processes, their privacy deserves respect and protection.

Maintaining consistency in the balance of privacy and openness

The Canadian Judicial Council plays a leadership role in initiating discussions and debate about the development of electronic access policies. The Council has stipulated that it is important to encourage, to the extent possible, a consistent approach to the use of personal information by courts and administrative tribunals in their decisions and the posting of those decisions on websites.

The CJC’s model protocol on publication of personal information in court decisions, published in 2005, places the onus on judges, not publishers, to limit disclosure of personal information. It provides specific recommendations for protecting the privacy of personal information, characterized as “omitting personal data identifiers which by their very nature are fundamental to an individual’s right to privacy.” It identifies certain information, such as name and date of birth, social insurance number and financial account numbers, as being worthy of protection in written decisions because of the risks associated with disclosing them:

Concluding remarks:

  1. Openness and transparency are fundamental principles of our justice systems – courts and tribunals must respect these principles in their operations.
  2. Withholding public access to records or information for proceedings is unconstitutional and no longer allowed
  3. Privacy and protection of personal information are secondary to the principles of accessibility and transparency
  4. Development of specific electronic policies and promoting wide-spread adoption of them is an important step towards maintaining consistency in the balance of privacy and openness in the justice system.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.