Mental Disability, Relapse and Undue Hardship: The Accommodation Analysis in Haghir v University Appeal Board
An employer does not satisfy the duty to accommodate merely by creating an accommodation plan and giving the employee one opportunity to comply with it. Where the disability is episodic, recurrent or associated with impaired judgment, the employer may be required to consider whether a relapse or failure to follow the plan is itself connected to the disability.
That does not mean that every relapse must be tolerated. Nor does it mean that an employee may ignore treatment, monitoring or professional standards without consequence.
The ultimate question is whether the employer has exhausted the reasonable and practical accommodation measures available before concluding that further accommodation would cause undue hardship.
The Saskatchewan Court of Appeal examined these issues in Haghir v University Appeal Board. The decision is significant because the conduct at issue was serious, repeated and directly connected with the professional requirement that physicians act honestly and with integrity. Nevertheless, the Court held that the University’s internal appeal board had not properly determined whether the College of Medicine had accommodated the resident’s mental disability to the point of undue hardship.
Admission to the neurology residency program
Dr. Edris Haghir was a physician trained in Iran who applied for admission to the University of Saskatchewan’s neurology residency program.
Before entering the program, Haghir had a criminal record involving shoplifting. He did not initially disclose that record to the College of Medicine.
The College of Physicians and Surgeons required Haghir to undergo an independent psychiatric assessment. The psychiatrist, Dr. Mela, was specifically asked whether the shoplifting resulted from a recognized psychiatric condition and whether that condition could create risks involving:
judgment;
professional performance;
honesty and integrity;
patient or staff property; and
future recidivism.
Dr. Mela diagnosed an adjustment disorder with mixed disturbance of emotions and conduct. He did not regard kleptomania as Haghir’s primary disorder. Rather, he concluded that when Haghir experienced stress, he responded with anger, shame and anxiety and then failed to comply with expected standards of behaviour. Dr. Mela considered the condition treatable. He recommended a combination of:
1. psychiatric treatment;
2. medication;
3. psychotherapy;
4. psychoeducation;
5. accountability;
6. monitoring; and
6. professional education concerning honesty and medical ethics.
The psychiatrist assessed Haghir’s risk of further shoplifting as moderate to high, but considered that treatment, support and effective emotional management could reduce the risk to a low or controlled level.
The accommodation arrangements
Haghir was admitted to the residency program subject to several interrelated arrangements. He entered into an undertaking with the College of Physicians and Surgeons requiring him to:
1. remain under psychiatric care;
2. follow his psychiatrist’s treatment plan;
3. participate in the Physician Support Program; and
4. authorize communication concerning his treatment and progress.
He also entered into an agreement with the regional health authority requiring him to avoid further Criminal Code violations and comply with the conditions imposed by the regulatory and educational bodies.
Finally, Haghir and the College of Medicine signed a formal accommodation letter.
The accommodation included:
1. continued psychiatric treatment;
2. communication concerning treatment progress;
3. participation in the Physician Support Program;
4. the appointment of a physician mentor;
5. access to counselling;
6. reporting any deterioration or accommodation difficulty; and
7. regular reviews where required.
The letter concluded that, at that time, no further medical accommodations were required and Haghir could begin a normal residency routine. That final statement later became important. The University Appeal Board treated it as evidence that the College had completed its accommodation obligations.
The Court of Appeal rejected that interpretation. A statement that no further accommodation is presently required is not a permanent declaration that the statutory duty has ended.
The further attempted theft
In 2012, Haghir was found responsible for attempting to steal textbooks from the University bookstore.
No criminal charge was laid, but a University Senate hearing imposed a sanction. The College of Medicine then investigated whether Haghir should remain in the residency program. The investigation committee concluded that he had:
1. committed a further act of attempted theft;
2. failed to report the incident;
3. failed to follow his medication regime;
4. failed to be candid with his psychiatrist;
5. failed to comply fully with the Physician Support Program; and
6. breached the accommodation arrangements under which he had entered the program.
The committee recommended termination.
It concluded that, given the accommodations already provided and Haghir’s continuing non-compliance, extending the period of monitoring would be of no value. The College adopted the recommendation and dismissed Haghir from the residency program.
The internal appeal decisions
The University’s internal appeal bodies upheld the dismissal. They reasoned that Haghir had entered the program under a clearly defined accommodation plan and had failed to comply with it. They also relied on his failure to:
1. seek further accommodation;
2. register with disability services;
3. alert the College that the existing arrangements were inadequate; and
4. re-engage promptly with the Physician Support Program.
The University Appeal Board accepted that the College of Medicine had met its accommodation obligations.
Haghir sought judicial review. The reviewing judge found the Appeal Board’s decision reasonable, emphasizing the employee’s responsibility to identify the disability, request accommodation and participate in the accommodation process.
The Saskatchewan Court of Appeal allowed the appeal.
The College already knew about the mental disability
A central problem with the internal decisions was the suggestion that the College of Medicine did not know Haghir had a mental disability. The Court of Appeal found that the medical evidence and the accommodation documents made the existence of a mental-health issue clear.
The Saskatchewan legislation defined a mental disorder as a disorder of thought, perception, feeling or behaviour that impaired:
1.judgment;
2. the capacity to recognize reality;
3. the ability to associate with others; or
4. the ability to meet the ordinary demands of life.
Dr. Mela had identified a psychiatric disorder affecting Haghir’s behaviour and judgment. The College had also required continued psychiatric treatment, monitoring and participation in a physician support program.
The arrangement could not reasonably be characterized as dealing only with bad character or ethical concerns. Those concerns could coexist with a mental disability that contributed to the conduct.
This was therefore not a case in which an employee remained silent about a non-obvious condition and later alleged that the employer should have diagnosed it. The College knew of the condition and had already accepted that accommodation was required.
Accommodation is an ongoing duty
The Court emphasized that the duty to accommodate is ongoing. An employer does not discharge that duty permanently by providing one accommodation at one moment in time. The accommodation must be reassessed when:
1.the employee’s condition changes;
2. the original arrangement proves ineffective;
3. the anticipated symptoms recur;
4. the employee relapses;
5. new medical information becomes available; or
6. the employer proposes discipline or termination because of conduct potentially connected to the disability.
The College could properly consider Haghir’s failure to comply with the accommodation plan. The error was treating the breach as the end of the analysis. The proper question was whether, at the time of the further attempted theft, the College had accommodated Haghir to the point at which only unreasonable or impractical measures remained.
Relapse may be part of the disability
The Court compared Haghir’s situation to cases involving drug or alcohol dependency. It observed that it may be unrealistic to expect a person with certain disabilities never to experience a relapse. Accommodation may require some tolerance for recurrence. The analogy was particularly relevant because the original psychiatric assessment had already identified a risk of further theft during periods of stress.
The bookstore incident was not an entirely new and unforeseen problem. It was arguably the recurrence of the very behaviour the assessment and accommodation plan were designed to address.
The Appeal Board was therefore required to consider:
1. whether the attempted theft was a disability-related relapse;
2. whether relapse was reasonably foreseeable;
3. whether further treatment or monitoring could reduce the risk;
4. whether the accommodation plan should have been modified;
5. whether a temporary removal or restricted role was possible; and
6. whether continued accommodation would impose undue hardship.
The Court did not decide those questions. It held that they had to be addressed.
Relapse does not create immunity from discipline
The Court was careful not to establish that every relapse must be accommodated indefinitely. Context remains critical.
Relevant considerations include:
1. the seriousness of the conduct;
2.the risk posed to patients, coworkers or the public;
3.the employee’s insight;
4. the employee’s commitment to treatment;
5. whether the employee follows reasonable medical advice;
6. whether the employee communicates candidly;
7. whether the risk can be adequately controlled;
8. the likelihood of recurrence;
9. the effect on legitimate professional standards; and
10. the practical accommodation options available.
An employer is not required to retain an employee who unreasonably rejects treatment or refuses a reasonable opportunity to improve. But before relying on refusal, non-compliance or relapse, the decision maker must determine whether the conduct was itself affected by the disability. That is the difficult feature of some mental-disability and addiction cases. The very illness requiring accommodation may impair insight, judgment, motivation or treatment compliance.
The Court noted evidence suggesting that physicians with mental-health disorders may discontinue medication and that Haghir’s recidivism and treatment failures might have been influenced by his condition.
That evidence did not excuse the conduct automatically. It had to be examined rather than ignored.
The accommodation agreement was not an automatic last-chance agreement
The Appeal Board effectively treated the accommodation letter as a last-chance agreement.
Haghir had agreed to comply with treatment, monitoring and reporting requirements. When he failed to do so and engaged in further misconduct, the Appeal Board treated termination as justified by the breach.
The Court rejected that approach.
An employer cannot contract out of its human-rights obligations. The fact that an employee has signed an accommodation or last-chance agreement does not eliminate the continuing statutory duty to accommodate.
Such an agreement remains relevant evidence. It may demonstrate:
what accommodation was offered;
what the employee agreed to do;
whether the employee cooperated;
whether the employer provided support;
whether the plan was reasonable; and
whether further accommodation remained practical.
The agreement does not, however, create an automatic entitlement to terminate whenever one of its terms is breached.
The employer must still establish that it accommodated the disability to the point of undue hardship.
What is undue hardship?
The Court described undue hardship as the point at which reasonable means of accommodation have been exhausted and only unreasonable or impractical options remain. The word “undue” is important. The employer may be required to experience some cost, inconvenience, disruption or risk. Ordinary hardship is not sufficient.
Relevant factors may include:
financial cost;
interference with operations;
disruption of workplace or contractual arrangements;
the interchangeability of employees or facilities;
the size and resources of the organization;
employee morale;
professional standards; and
health and safety risks.
The assessment is contextual. No single factor is automatically decisive.
Where safety is relied upon, both the magnitude of the risk and the identity of those exposed to it are important.
The employer must prove undue hardship with evidence. It is not enough to invoke safety, integrity, reputation or professional standards in the abstract.
The burden of proof remained with the College
The College argued that continuing to accommodate Haghir threatened:
the integrity of the neurology program;
patient safety; and
the professional standards governing physicians.
These were plainly legitimate concerns.
The difficulty was evidentiary.
The Court noted that there was no evidence before the Appeal Board that Haghir’s accommodation had adversely affected the integrity of the program or the safety of patients.
The fact that professional integrity and patient safety could theoretically be affected did not establish that they had been affected or that no reasonable risk-management option remained.
The College bore the burden of proving undue hardship.
That required evidence addressing such matters as:
the actual risk created by Haghir’s condition;
whether the risk extended to patients or clinical practice;
whether he had stolen from patients, staff or the workplace;
whether increased monitoring could control the risk;
whether treatment modifications were available;
whether restricted duties were feasible;
whether supervision could be increased;
whether another period of assessment was practical;
whether alternative placements existed; and
why those measures would be ineffective or unreasonably burdensome.
The Court did not find that the College could never prove undue hardship. It found that the Appeal Board had not performed the required analysis on the evidence before it.
Undue hardship is not established by seriousness alone
Serious misconduct is highly relevant, but it does not automatically prove undue hardship.
The seriousness of the attempted theft and its implications for professional honesty could support termination. But the misconduct could not be considered in isolation from the evidence that a mental disorder contributed to stress-related shoplifting.
The legal analysis requires two connected inquiries:
Was the conduct caused or influenced by the disability?
If so, could the disability and resulting risk be accommodated without undue hardship?
The more serious the risk, the less accommodation may be reasonably available. But a decision maker must still identify the risk and explain why reasonable measures would not manage it.
The label “professional misconduct” does not replace the undue-hardship analysis.
The employee’s responsibilities remain important
Accommodation is a shared process.
The employee is not required to design the solution. The employer is generally in the better position to identify operational options.
The employee must nevertheless:
disclose relevant needs;
provide reasonably necessary medical information;
cooperate with assessment and treatment;
participate in monitoring;
communicate difficulties;
accept reasonable accommodation; and
take reasonable steps to carry out the plan.
Haghir’s conduct raised serious questions about whether he fulfilled these obligations.
He had allegedly:
stopped taking prescribed medication;
failed to tell his psychiatrist;
missed or arrived late for appointments;
failed to report the further attempted theft;
failed to alert the program director to deterioration; and
failed to re-engage promptly with support services.
Those matters could support a finding that the accommodation process had failed because of his unreasonable conduct.
The Court’s point was narrower: the reasonableness of that conduct had to be evaluated in the context of the disability.
The Appeal Board needed to decide whether Haghir’s actions:
were symptoms or consequences of the disorder;
were reasonably foreseeable;
prevented the College from implementing an otherwise reasonable plan;
represented an unreasonable refusal to cooperate; or
demonstrated that further accommodation was unlikely to succeed.
Only after that analysis could the Board determine whether the College’s duty had ended.
An employee need not originate the solution
The internal appeal decisions also faulted Haghir for failing to identify what further accommodation he wanted.
The Court’s review of the governing law confirms that an employee must bring relevant information to the employer’s attention and cooperate with reasonable proposals.
The employee does not ordinarily bear the burden of inventing the accommodation.
The employer is generally better positioned to determine:
what duties can be modified;
what monitoring can be introduced;
what temporary arrangements are possible;
what professional safeguards are required; and
what operational consequences would follow.
Haghir’s position was not necessarily that an entirely new arrangement had to be invented. He sought continuation or modification of the accommodation already in place.
The Appeal Board should have considered whether that was reasonable.
Registering with disability services was not decisive
The Appeal Board relied partly on Haghir’s failure to register with the University’s disability services office.
The Court found this reasoning problematic.
The written accommodation agreement did not require him to use that office. It directed him to psychiatric care, the Physician Support Program, mentoring and other identified supports.
The Appeal Board also appeared uncertain about what disability services could have added.
An employee’s failure to use a particular administrative route does not necessarily end the duty to accommodate where:
the employer already knows of the disability;
another accommodation process is in place; and
the unused service was not required by the agreement or shown to offer a meaningful solution.
The role of later medical improvement
After his removal from the program, Haghir received new medication and psychotherapy. His psychiatrist reported significant improvement and a substantially reduced risk of reoffending.
The Court did not hold that this later improvement required reinstatement.
Post-termination evidence may be relevant where it sheds light on whether the original decision was justified when made or where the decision maker has authority to consider an alternative remedy.
It cannot ordinarily be used simply to reverse a decision that was justified at the time because the employee later improved.
The University Appeal Board gave reasons for declining to rely upon the later treatment evidence. The Court did not interfere with that particular ruling.
The central defect remained the failure to analyze the accommodation and undue-hardship issues on the evidence that was properly before the Board.
The Court did not order reinstatement
The procedural result is important.
The Court of Appeal did not decide that:
Haghir had to be returned to the residency program;
the College discriminated against him;
the attempted theft had to be tolerated;
the College had not reached undue hardship; or
further accommodation was necessarily possible.
The Court held that the Appeal Board’s decision was unreasonable because it:
failed to apply the governing accommodation law;
overlooked material evidence;
focused too narrowly on breach of the accommodation agreement;
failed to consider whether relapse was part of the disability;
failed to evaluate the employee’s non-compliance in the context of the disability; and
failed to determine whether the College had proven undue hardship.
The matter was returned to the Appeal Board for a new determination.
Practical framework for assessing undue hardship
The decision suggests a disciplined approach where a disabled employee breaches an accommodation plan or repeats the conduct that led to the plan.
Determine whether the relapse, misconduct or non-compliance may have resulted from the disability.
The inquiry should address the employee’s functional limitations, not merely the diagnostic label.
Review the existing accommodation
Identify what was provided, whether it was implemented and whether it addressed the actual disability-related risk.
An accommodation plan that exists only on paper will carry little weight.
Determine why the plan failed
Consider whether the failure resulted from:
an inadequate plan;
a change in the medical condition;
lack of monitoring;
ineffective treatment;
employee non-cooperation;
unreasonable employee refusal;
foreseeable relapse; or
a risk that cannot reasonably be controlled.
Obtain current information
Before termination, obtain reasonably available medical and functional evidence addressing:
the nature of the relapse;
the risk of recurrence;
treatment options;
the employee’s capacity to comply;
the likelihood of improvement; and
possible safeguards.
Consider reasonable alternatives
Depending on the circumstances, alternatives may include:
additional treatment;
revised medication;
increased monitoring;
temporary leave;
restricted duties;
closer supervision;
a graduated return;
a different placement;
additional reporting requirements; or
a revised accommodation plan.
The law does not require adoption of every conceivable option. It requires genuine consideration of reasonable ones.
Assess the actual hardship
The employer should identify the concrete cost, disruption or risk created by each viable option.
General concerns about safety, professionalism, reputation or morale should be supported by evidence.
Examine the employee’s participation
Determine whether the employee cooperated with reasonable requests and proposals.
An unreasonable refusal may bring the accommodation duty to an end. Disability-related limitations affecting insight or compliance must still be considered.
Explain why the remaining options are unreasonable
A conclusion of undue hardship should show that reasonable and practical measures were considered and exhausted.
Termination should be the conclusion of the analysis, not the starting assumption.
Conclusion
Haghir v University Appeal Board does not stand for the proposition that serious misconduct must always be excused because it is connected to mental disability.
It establishes that serious misconduct, relapse and breach of an accommodation agreement do not eliminate the need for a proper undue-hardship analysis.
The employer must determine whether the conduct is connected with the disability, whether the existing accommodation can reasonably be modified and whether concrete evidence demonstrates that further accommodation would create excessive cost, disruption or risk.
The employee must cooperate with treatment, monitoring and reasonable accommodation. But the employee’s failure must also be assessed against the functional effects of the disability.
An accommodation agreement is not a permanent discharge of the employer’s obligations, and it cannot operate as an automatic last-chance agreement that overrides human rights legislation.
The central question remains:
Were all reasonable and practical accommodation measures exhausted, leaving only options that would impose undue hardship?
In Haghir, the University Appeal Board never properly answered that question. That failure required its decision to be set aside and the accommodation issue reconsidered.