HR | Atlantic - Positive Change at Work

Duty to Accommodate applies to Professions as well as Employers

Apr 24, 2012

Most often we think of the duty to accommodate in terms of the relationship between employee and employer. However, a BC Human Rights Tribunal  decision in Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310, reminds us that the duty to accommodate applies to professional regulatory bodies as well as to employers.  The challenge for these associations is how to meet that duty while also fulfilling their core mission of protecting the public.

In the Fossum decision,  the Tribunal frowned on a professional association when it required a member to give an undertaking to remain sober, indicating that a ‘last chance agreement’ would have been the appropriate course of action.   The Tribunal awarded Fossum a $5,000 damages award against the Society.

Fossum’s Story

Fossum was a Notary Public with a history of alcohol abuse.  Over the years, the Society of Notaries Public of British Columbia had received several complaints from lawyers regarding Fossum’s unexplained absences from his office, resulting in  Fossum  being suspended from practice three times between 1997 and 2006.

Following his second suspension, Fossum gave the Society an undertaking to attend Alcoholics Anonymous regularly.  He was reinstated on the condition that this undertaking continue.  Less than three months after making this undertaking, Fossum relapsed and was suspended for the third time.  The Society accommodated him by finding coverage for his practice while he attended a recovery program.  When Fossum returned, he was informed that the Society was considering taking disciplinary measures against him, despite receiving a report from his addictions counselor stating that his prognosis for recovery was excellent.   Fossum proposed that he be reinstated with strict conditions that he attend AA regularly, report monthly to the Society and provide random urinalysis tests.  Fossum also undertook to voluntarily resign if he failed to maintain sobriety and was fined $1,500.  The Society then posted information concerning Fossum’s alcohol addiction and treatment on its website.

Fossum suffered two subsequent relapses and the Society asked for his resignation.  Fossum unsuccessfully attempted to negotiate a different outcome with the Society, but he was ultimately terminated in December 2008.  Fossum filed a complaint with the BC Human Rights Tribunal in which he alleged that he was discriminated against on the grounds of physical and mental disability.

The Tribunal’s Decision

On the evidence presented at the hearing, the Tribunal accepted that a breach of a professional undertaking was considered by the Society to be the most serious offence it could address and was subject to the most severe form of discipline under the enabling legislation.  It is a tool to ensure the proper execution of professional notarial transactions, and not a means for controlling future mental/physical disabilities.  The breach of a professional undertaking carries with it a degree of personal blameworthiness that the Tribunal did not consider appropriate to connect to a relapse into alcoholism.


The Duty to Accommodate on a Professional Regulatory Body

The duty to accommodate is well understood in an employment context, but Fossum was not “employed” by the Society; his professional practice was regulated by the Society.  The human rights legislation in BC, as in other jurisdictions, applies to professional regulatory bodies.  As a result, the duty to accommodate applies to these organizations just as it applies to employers.

The Tribunal found that Fossum had established a prima facie case of discrimination due to the finding that the Society perceived him to suffer from alcoholism and he received adverse treatment due to that disability.  The burden then shifted to the Society to justify its termination of Fossum and establish that it had satisfied the duty to accommodate.

The Society’s standard was to ensure “that professional notarial services are provided to the public”.  The Tribunal accepted that this standard was adopted in good faith and found that the Society had reasonably accommodated Fossum following his second relapse.  The Society’s decision to revoke Fossum’s license was justified on the evidence that the Society had accommodated his disability for ten years.

While the Tribunal accepted that Fossum’s conduct was problematic and that the Society had accommodated him in the past, it took exception to how the Society handled  his 2006 suspension that resulted in a professional undertaking.  The wording of the undertaking placed Fossum under an obligation to resign if he breached its terms — this removed the opportunity (and obligation) for the Society to exercise its discretion in determining whether any such breach warranted a termination.  Probably what made matters worse, was that the Society published this undertaking on its website, referring to Fossum’s alcoholism as ‘self-induced alcohol abuse’ — which denoted a prejudicial attitude that did not accept that alcholism was a disease.

As a result, while the Tribunal found that the professional undertaking was, on most grounds, a last chance agreement, it was not an appropriate framework for a last chance agreement; a failed undertaking created blameworthy conduct, whereas a failed last chance agreement is merely indicative that the accommodation did not work.  Furthermore, the language and conduct of the Society surrounding the 2006 suspensions were discriminatory.  A relatively nominal award of $5000 was given to Fossum for these breaches.  Nevertheless, the Tribunal upheld the termination, finding that the Society had met its duty to accommodate.  The Tribunal panel stated:

 334  I have considered the role of the undertaking, which I found to have a discriminatory impact on Mr. Fossum, in the Termination. While I found that the use of an undertaking was not the appropriate tool to address the issues related to Mr. Fossum’s alcoholism that does not mean the Society could not have regard to the fact that it had in essence provided Mr. Fossum with a “last chance”, so long as it considered all reasonable alternatives to the Termination.

335     The Society’s duty to accommodate Mr. Fossum’s relapses did not go on forever. In my view, the Society had fulfilled its duty to accommodate Mr. Fossum’s alcoholism by September 2007. Mr. Fossum failed to maintain his part of the bargain, in that he failed to maintain recovery: Renaud. No expert evidence was led to allow me to conclude that, in the circumstances of this case, further accommodation by the Society was required. I find that the Society exhausted its duty to accommodate Mr. Fossum’s alcoholism. Therefore, Mr. Fossum’s Termination was justified and does not constitute discrimination. This portion of Mr. Fossum’s complaint is dismissed.


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