November 22, 2011

Human rights and professionals with addictions

Administrative Law
Human Rights
Professional Regulation

Professional regulatory bodies in British Columbia should expect to be occupational associations under the Human Rights Code that must not discriminate against members. The need for such regulators to comply with human rights requirements extends not only to registration or membership, but also to matters of discipline and competence. Indeed, section 14 of the B.C. Code expressly applies to associations expelling or suspending members on prohibited grounds, such as physical or mental disability. Where, for example, a registrant or member suffers from an alcohol or drug addiction, a regulator must accommodate that disability to the point of undue hardship when addressing professional misconduct resulting from that disability, or when addressing the registrant’s competence, or when acting under any provision relating specifically to addictions that may impair the professional’s ability to practice, e.g., under sections 33(4)(e) and 39(1)(e) of the Health Professions Act.

The duty of professional regulators to comply with the Code, and the right of a registrant to address an alleged violation through a complaint to the Human Rights Tribunal, rather than through an appeal, is illustrated in the recent human rights case of Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310. In that case, a human rights complaint arose from regulatory measures taken by a governing body under the B.C. Notaries Act, RSBC 1996, ch. 334, a statute which provides members with a right to appeal disciplinary actions to the court (section 41(1)) through a de novo hearing (section 41(3)). The “mission statement” of the Society includes its commitment to the advancement and protection of the public interest by, inter alia, its supervising and disciplining its members. [43]

In Fossum, a member, whose drinking became problematic in 1997, suffered from recurring alcohol-related problems in the Spring of 2006, and the Society accepted an undertaking that he remain sober, and to resign if he could not. He later suffered a relapse which led to an inquiry for breach of undertaking at which time he was “decommissioned”. The Tribunal found that the Society breached the Code in 2006 by accepting the undertaking, but not in 2007 when it first suspended him pending a hearing, and then expelled him.

Details: In 2006, after the Society suspended the member, and after the member attending a residential treatment program, the Society drafted a Notice of Inquiry into infractions, including failing to keep clients informed, failing to answer reasonable requests, failing to respond to calls or to keep appointments, and self-induced alcohol abuse. The member signed an agreement whereby he would be reinstated, but undertake to attend Alcoholic Anonymous meetings, to report to the Society monthly, to maintain total sobriety, to undergo random testing, and to voluntarily resign should he fail to maintain total sobriety. [142] During that negotiation process, the member felt what he could do was to offer to resign if he did not maintain sobriety for one year, but the Society refused to include a one-year limit. [151]

The member abstained for 22 months, but relapsed for two days in August 2007. [174] The Society asked the member to submit his resignation upon receipt of its letter. [184] Upon the member offering to resign approximately 10 months later, the Discipline Committee suspended the member pending an inquiry into his breach of undertaking [186] and appointed a custodian over the member’s practice. [188] The Society issued a Notice of Inquiry for January 2008, [190] After failed negotiations for a consensual outcome, the Discipline Committee found that the member had breached his undertaking, and it “decommissioned” the member in December 2008. [224]

Adverse Impact: The Tribunal established a case of prima facie discrimination under section 14, which prohibits any “occupational association” (meaning any organization in which membership is a prerequisite to carrying on a trade, occupation or profession) from expelling or suspending any member, or (otherwise) discriminating against any person or member because of physical or mental disability. In particular, the member suffered from alcoholism, which is a disability. [241-243] The Society adversely treated the member through suspensions in which the member’s alcoholism was a factor, [251] through accusatory and disparaging language of the 2006 Notice of Inquiry, [267] and through the Society accepting a member’s undertaking to maintain sobriety, or in other words to avoid any reoccurrence of his addictive behaviour, and to resign if he did not. [273] While the Society could characterize the agreement as a “last chance agreement,” the undertaking “carried a potential penalty that conflated the reoccurrence of a disability with a notion of intentionality and a concept of fundamental morality expected of notaries.” [275] The Tribunal also found adverse impact from the Society’s 2008 Inquiry and its terminating the member’s membership. [278]

Accommodation and a bona fide occupational requirement: The Tribunal confirmed that the Society, which had to protect the public and discipline its members, had to carry out these functions without breaching the Code:

[306] The Society argues that it is statutorily required to ensure that its members are able to provide services authorized by the Act. It is required to protect the public and it is a self-regulated profession mandated to discipline its Members. This is accepted. However, the Society is required to do so without breaching the Code. Section 4 of the Code states that “If there is a conflict between this Code and any other enactment, this Code prevails.”

A bona fide occupational requirement requires proof of (a) a standard for a purpose or goal rationally connected to the function being performed, (b) that the Society adopted the standard in good faith, as necessary to the fulfilment of the purpose or goal, and (c) the standard is reasonably necessary to accomplish its purpose or goals. [292]

The Society established a bona fide occupational requirement by which it suspended the member in 2006, but failed to establish it would have suffered undue hardship had it not issued the 2006 Notice of Inquiry and accepted the member’s undertaking. The tribunal went on, however, to find that the Society acting to suspend the member in 2007 was reasonably necessary. [321] Furthermore, the Tribunal found that in decommissioning the member, the Society had repeatedly accommodated the member for ten years, and while the undertaking was not an appropriate tool to address alcoholism, the Society could have regard to its providing the member with a “last chance” as long as it considered all reasonable alternatives to the termination. [334] The Society had exhausted its duty to accommodate. [335]

Accordingly, the Society discriminated against the member by its requesting and accepting an undertaking that the member resign in the event of his disability recurring, but not otherwise. The Tribunal awarded the member $5,000 for injury to the member’s dignity, feelings and self-respect, which the Tribunal is authorized to award under section 37(2)(d) of the Human Rights Code.

Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310 (October 27, 2011)

(CANLII link here.)