A Tangled Web : The Mentally Disabled Employee

A mental disability does not mean that such a person cannot perform admirably in the workplace. Often that indeed is the case. The employer’s obligation becomes critical in situations which may require accommodation. A mentally disabled employee submitting their resignation is only one of such situations which may arise.

Three Potential Sources of Liability

That said, human rights vulnerability is not the only hole into which the employer may step. There may be three pitfalls actually. These are:

Human rights, as stated; and
Insurance law obligations imposed upon the employer to assist the employee in making an application for disability benefits as opposed to quitting employment; and
The law of negligence which may impose a duty on the employer to advise and assist the employee to make an application for disability benefits.

The potential liability in each instance may be gargantuan. One recent case in Alberta set the damage claim for accepting an employee’s resignation when the individual was in a manic state at over $1 million. These three subjects will be reviewed in detail. Human rights remedies are discussed on this post and others.

Claims made against the employer as the agent of the insurer are reviewed here. Liability of the employer in negligence for the failure to advise of need to make a disability claim is discussed also. The general principles of accommodation are also reviewed.

More accommodation review is found here, dealing with undue hardship and relapse.

Addiction issues are also discussed.

The statutory definitions and guidelines published by the human rights commissions are set out here.

Adverse Treatment due to a Mental Disability: Human Rights

Prima Facie Case

To succeed on such a human rights claim, the employee must show:

They are a member of a protected group, in this instance, a person suffering from a mental disability;
They have been adversely impacted by employer conduct; and
The human rights protected right was a factor in that employer conduct.

Unusual Aspects of a Mental Disability Case

The employee will then be required to prove a mental disability. However, there may not have been a diagnosis until following the adverse treatment, such as termination of employment. This may still be sufficient to prove the disability existed at a prior moment in time.
The evidence must also show that the mental disability contributed to the alleged misconduct.
The evidence must also show that the medical disability was a factor, not the sole cause, which led to the termination or other discipline.
Presuming that these issues are proven, an obligation will then arise upon the employer to accommodate the disability, to the point of undue hardship.
Failing accommodation, the human rights case will succeed.

A few words first about Accommodation.

Human resource managers and lawyers often speak of the need to accommodate a disability, or indeed any protected human right.

The obligation of accommodation is not limited to disability issues. It applies to all protected human rights. ³ Such a retrospective diagnosis, however, should be consistent with the earlier symptoms and functional limitations.

It may be possible to prove the mental disability without expert evidence, ⁴ although clearly medical evidence should be the default setting.

Medical treatment may not be a prerequisite for proving a medical disability. A person may have a protected mental disability even though they do not take the prescribed medication, or have ceased taking the medication due to side effects, or have not attended regular counselling, or has attempted to manage symptoms independently, or has limited access to psychiatric care, or has not accepted the recommended treatment, or has not yet received specialist care. ⁵

Mental disability cases often turn on more than whether an employee has received a psychiatric diagnosis.

The employee must establish that a protected mental disability existed at the relevant time. The evidence must also explain the functional effects of the condition and connect those effects to the performance concerns, misconduct or other circumstances which had led to the employer’s adverse action, such as termination or other discipline.

The theme to prove the case then is as follows:

medical condition → symptoms → functional limitations → workplace manifestations → adverse employment decision.

Cause and Effect

The disability need not be connected to every performance issue identified by the employer. The disability must be shown to have contributed to some of the behavioural concerns, and further, that those concerns formed part of the decision to terminate his employment.

A protected characteristic does not have to be the only cause of dismissal, the predominant cause, the final triggering event, or connected to every concern relied upon by the employer. It is sufficient that the disability was a factor in the adverse treatment.

This principle is important in mixed-cause cases. An employer may have some legitimate, non-disability-related concerns and still be in violation of human rights law if the disability-related conduct also forms part of the decision.

Intent Not a Factor

As is the case for all human rights issues, apart from reprisal, intent to discriminate is not required to be shown, as long as the consequences of the employer’s action results in adverse treatment.

Volpi v LifeMark Alberta Human Rights Tribunal June 2026

The Facts

The complainant suffered from a condition known as Bipolar II Disorder. This was clearly a mental disability and was hence a protected human right.

Over a period of time, Volpi experienced increasing mental health difficulties and repeatedly requested time away from work. He advised management that something was wrong and that he required time away to avoid a relapse.

After being denied the additional leave he sought in the summer of 2016, the employee abruptly submitted a brief two-line resignation. Medical evidence later established that he was then experiencing a hypomanic episode.

The employer accepted the resignation without making any meaningful inquiry into whether the resignation was connected to the employee’s mental disability. Even after learning that the employee had been hospitalized following the resignation, the employer did not investigate whether the resignation was the product of the employee’s mental illness.

Volpi later asked the employer to allow him to return to his prior position. The employer’s response was that he may submit an application in the normal course.

Employer’s Duty to Investigate

The Tribunal concluded that the employer had adversely treated the employee by failing to inquire into the connection between his disability and both his request for leave and his later resignation. The Tribunal emphasized that where objective indicators suggest that disability may be influencing an employee’s conduct, an employer must pause and make reasonable inquiries before taking adverse action.

The significance of Volpi extends beyond its specific facts. The decision recognizes that an employer may have a positive obligation to investigate whether a resignation is truly voluntary when there are objective indications that a mental disability may be influencing the employee’s decision-making.

Liability was found. Damages were later assessed at over $1 million.

Factual Context

Each case involving this issue will be factually dependent. For example, unusual behaviours such as a change in conduct, or a sudden emotional outburst, may signal a need for such an inquiry. ⁶

Employer’s Knowledge of the Disability

There were two situations which the Tribunal found gave rise to a duty to make further inquiries, the leave request and the resignation.

To be charged with this duty to inquire, the employer (1) must be aware of the existence of the disability or (2) should reasonably have been aware, given the factual context.

Request for Leave

For example, in Volpi, the Tribunal noted these facts to show that the employer should have been aware of the existence of the mental disability and that this was the reason for his first request for a medical leave:

1. showed signs of stress and burnout;

2. V had just returned to work after one week off and immediately asked for a second lengthier time off work, which V connected to his mental health;

3. V told his immediate boss, Singh, that he had made similar requests for time off in the past to the Clinic Director;

4. Singh had been made aware in the past by the Clinic Director of V’s past issues in dealing with stress;

5. V had raised to Singh the possibility of him providing a medical note to support his request for a stress leave.

In Volpi, all these factors were found cumulatively to support the duty to inquire. The last point, in particular, was seen as significantly important.

Resignation

In Volpi, these facts were considered to assess whether the company should have been aware that the resignation was due to a mental disability and hence raising the duty of the employer to make inquiries:

1. The complainant was still exhibiting signs of stress and burnout;

The complainant had asked for a significant amount of time off as a result;

The respondent had approved some time off, but at a significantly later date than had been requested by the complainant

The complainant was set to begin that time off the day following his resignation (i.e., September 30, 2016 was the complainant’s last day of work prior to his leave which was scheduled to start October 1, 2026);

Rather than go on his leave as planned, the complainant hastily submitted a two-line resignation letter with a spelling mistake;

If accepted by the respondent, the complainant’s resignation would mean the end of 16 years with the respondent, where the complainant had such a lucrative and successful career that Singh described one of his main duties as ensuring that the complainant did not leave;

Singh [V’s boss -ed] was “shocked” by the resignation letter;

Others within the respondent (at least Head – Director of the Clinic – ed) knew of the complainant’s mental health history;

After submitting his resignation, the complainant continued to see patients until the end of his shift, had patients booked following his leave, and did not take any of his personal belongings (other than the backpack he generally brought back and forth with him).

These facts demonstrated that the company reasonably should have known that V’s mental health contributed to his resignation and that it should have made further inquiries.

On the same day of V’s resignation, V also emailed the Director of the Clinic who again made no inquiries as to V’s mental health.

V resigned on September 30, 2016. He messaged the employer on October 8, 2016, referencing his “burn-out” and his complex reasons for resigning, still the company took no steps to inquire.

V was hospitalized in March of 2017, which was known to the company. He then asked to return to the employ of the company, and once again, no inquiries were made.

Common Law Test of Resignation Not Applicable

In the Volpi case, the both parties made submissions based on the common law test of a resignation as to whether this was given freely and without inducement. This, however, is not the correct test when considering a human rights violation based on mental disability. The test is simply whether the resignation offered by the employee and the following acceptance of it had an adverse impact and also whether the mental disability was a factor in such adverse impact.

Nature of the Inquiry

In Volpi, the immediate manager, Singh, having received the resignation letter, then asked V whether there was anything he could do to change his mind. This fell far short of the duty to inquire, as the Tribunal found. The company could have refused the resignation or could have asked for medical evidence or made other inquiries as to his mental health.

Other Cases Dealing with “Ought to Have Known”

Factual Context in Pratt

This issue was also addressed in Pratt v U of Alberta.

Carmen Pratt began the permanent position on March 1, 2012. Three weeks later, her brother died by suicide. The University subsequently developed concerns about her concentration, attitude, focus and performance.

The University conceded at the hearing that Pratt had been suffering from a mental disability when dismissed. Its defence, however, was that it did not know this at the time because she had not:

expressly identified herself as disabled;

supplied medical documentation; or

formally requested “disability accommodation.”

The Tribunal rejected that position.

The Tribunal accepted that the University knew or had been told that:

Pratt’s brother had died suddenly and unexpectedly;
she had said she was unwell and needed time with her family;
she had attended a doctor’s appointment;
she was tired and having difficulty concentrating;
an operational supervisor had referred her to the Employee and Family Assistance Program;
she had attended counselling and was returning to counselling;
she had been emotional during the performance-management period;
she could not absorb written information;
“nothing sinks in” when she read;

she could not perform tasks requiring creativity, imagination or sustained concentration;
she wanted to perform repetitive work and work involving less interaction with others.
The critical event was the June 26 meeting. Pratt described specific cognitive limitations, linked them to what was happening in her life and asked, in substance, for modified duties. Her supervisor understood the limitations well enough to report them accurately to senior management the following day.

The Tribunal characterized the employer’s interpretation—that Pratt was merely uninterested in her job—as unintelligible. She was plainly explaining that her mental capacities were impaired and identifying work she could and could not perform. That information triggered a duty to inquire, even though she did not use a diagnostic label. The termination decision “crystallized” the next day.

The Tribunal found that the University should have paused the termination process and requested medical information concerning:

whether Pratt had a medical condition;
her functional limitations;
the anticipated duration of those limitations; and
possible modifications to her duties.

Merely checking whether she already had a file with the University’s health and wellness department was insufficient. The procedural duty to accommodate required an actual inquiry directed to the limitations she had disclosed.

The Tribunal found discrimination, awarded $20,000 for injury to dignity, $34,795.40 in lost wages plus interest, and ordered reinstatement into an equivalent Grade 6, Step 1 position, subject to a new six-month probationary period.

The Tribunal noted that the duty to inquire is intensely fact-specific. Sometimes a gradual behavioural change will suffice; sometimes one dramatic emotional event will be enough. Conversely, poor performance, absenteeism or difficult behaviour will not automatically require an employer to suspect disability.

These cases show similar factual contexts giving rise to the finding that the employer ought to have known of the disability.

Case	Facts	Decision

Shaikh v. Colliers Project Leaders Inc. (No. 2), 2026 BCHRT	An assistant project manager was dismissed after roughly seven weeks following client complaints about disorganization, lack of focus, limited meeting participation, apparent disengagement, tardiness and excessive socializing. After the concerns were raised, he disclosed anxiety affecting workplace interactions. His physician identified mild cognitive limitations in attention and concentration, social interaction, multitasking and organization, and decision-making and problem-solving. The physician referred him for specialist assessment and advised that a medical update would follow. Colliers terminated him before receiving that assessment. A post-dismissal psychiatric report diagnosed generalized anxiety disorder, persistent depressive disorder, somatic symptom disorder and criteria associated with several personality disorders.	The Tribunal found that mental disability and the required nexus were proven through the combined effect of the employee’s credible testimony, the functional abilities form and the psychiatric report. A diagnosis made after dismissal could establish an earlier disability; treatment was not a prerequisite; and the psychiatrist did not have to testify because the clear report was admitted without objection and was not effectively challenged. The mild functional limitations were legally significant because they corresponded directly with the performance concerns. The disability need only contribute to some, not all, reasons for dismissal. Colliers began the accommodation inquiry but improperly terminated the employee before obtaining the readily available specialist update or considering accommodation.

Andrusiw v. Westcon Precast Inc. 2025 Alberta HRT	Westcon believed Andrusiw had attended work after consuming alcohol; senior family-management members expressly identified him as an alcoholic; his pay was stopped to force him into treatment; he sought counselling and later treatment from an addiction specialist; and he provided medical documentation through counsel on March 18, 2022. The employer nevertheless proceeded to termination. This was not a classic undisclosed-disability case. The disability was known and expressly relied upon. The obligation was triggered by actual knowledge of the addiction, the employer's own insistence on treatment, the employee's pursuit of treatment, and receipt of medical information.	The employer removed him from work and ended pay without assessing accommodation, ignored the medical material, denied means to pursue treatment, and treated a later possibility of re-hiring—subject to employer-dictated residential treatment—as accommodation. The Tribunal found discrimination based on alcohol use disorder and a failure to accommodate. The employer had to address legitimate safety risks while also investigating leave, rehabilitation, temporary replacement, or other accommodation. The award was limited to $7,500 general damages because of Andrusiw's serious history of abusive misconduct; no lost wages were awarded.

Estate of Donald Mitchell v. South Country Co-op Limited Alberta Human Rights Tribunal 2023	A probationary liquor-store clerk who had previously been a good employee arrived at work intoxicated. His confused, staggering and disorganized behaviour was completely out of character. The supervisor sent him home but ignored the employer’s own policy requiring an interview, investigation, possible testing, medical attention and referral for assistance. The employee repeatedly tried to contact the supervisor. At the termination meeting two days later, he disclosed mental-health problems, depression, anxiety, financial crisis and a counselling appointment. HR replied that he should have said something sooner and proceeded with termination. He later supplied a medical note confirming depression, anxiety and chronic alcohol dependence and asked for treatment without losing his job, but the employer refused to reconsider or accommodate.	The Tribunal found discrimination and expressly imposed a duty to inquire. Showing up drunk at work, combined with a previously good record and behaviour that was completely out of character, should have caused the employer to investigate whether addiction or another mental disability contributed to the misconduct before termination. The duty was independently triggered at the termination meeting when the employee disclosed mental disability and asked for accommodation; HR should have paused and reconsidered. It remained engaged when further medical information was supplied after termination. The employer could not rely on strict application of its alcohol policy while breaching the policy’s own investigative and accommodation procedures. Probationary status was irrelevant. The employee's alcohol dependence, depression and anxiety were factors in the termination, and no accommodation or undue-hardship defence was established. Because the complainant had died, the estate received no general damages; the Tribunal ordered the employer to refrain from similar discrimination.

Forbes v. Valard Construction LP (Edmonton), 2021 Alberta Human Rights Tribunal	A long-service Safety Advisor had disclosed multiple sclerosis. After the disease came out of remission, he reported worsening physical symptoms, fatigue, stress and confusion and said medication was affecting his ability to function. He had no prior discipline or performance concerns, but soon began receiving discipline for allegedly improper time claims and other conduct. After an out-of-character incident involving alcohol and a company vehicle, he said he was going to see his doctor and take medical leave. The employer received a medical note confirming disability and one month off work before it communicated the dismissal.	This was a screening review, not a final merits decision. The Chief overturned the Director’s dismissal and referred the complaint to a Tribunal. There was a reasonable basis to find that disability, medication, fatigue and cognitive effects may have contributed to the conduct. The employer’s focus on the absence of a formal accommodation request was too narrow. The proper question was whether it knew or ought to have known that disability might be a factor in the apparently out-of-character conduct and whether it took that possibility into account before discipline and termination.

Cryderman v. Time to Play ECS (and individual respondents) Alb HRT 2020	The employee had generalized anxiety disorder and had disclosed anxiety and panic concerns. The employer received medical certificates confirming that she was unable to work and knew she was to be reassessed on December 16. It had repeatedly told her that coverage was arranged and that it expected her to return in the new year. Nevertheless, it began drafting an abandonment letter on December 17, one day after the prior certificate expired, and terminated her on December 20. A further certificate confirming disability through December 31 was received that day.	The employer knew or ought to have known that mental disability was affecting the employee. The expiry of a medical certificate did not automatically end her protected status, particularly where reassessment was anticipated and the employer itself had communicated a later return date. Its rigid notice requirement and abandonment allegation were discriminatory; it failed to inquire and did not establish undue hardship. $20,000 was awarded for injury to dignity, but lost wages were refused because the evidence did not establish the period of disability or mitigation.

Kvaska v. Gateway Motors (Edmonton) Ltd. Alt HRT 2020	The employer knew of an alcohol-related driving offence; visible and repeated impairment was observed by staff; a manager warned Kvaska about drinking; he asked about medical leave and obtained disability forms; he attended work severely intoxicated; his spouse told the general manager he had a drinking problem, to which the manager replied that 'everybody knows'; and Kvaska directly disclosed addiction and requested rehabilitation before termination. The employer treated the incident solely as misconduct, did not inquire into the relationship between addiction and conduct, and did not investigate medical leave, rehabilitation, continued benefits, or other accommodation options.	Alcohol addiction was a factor in the termination. The employer had a duty to inquire before termination and failed to accommodate to undue hardship. Kvaska received $30,000 general damages, short-term disability benefits, and six months' lost wages. Even serious prima facie misconduct may require inquiry where known facts suggest addiction affected the employee's capacity to comply with the rule. The employer need not tolerate ongoing intoxication, but it must investigate treatment leave and other safe accommodation options.
Pratt v. University of Alberta June 2019 Alberta HRT Note: case went to the Court of Appeal but not on this issue, rather on the remedy of reinstatement.	Depression and traumatic grief following a sibling's suicide; probationary performance concerns. Pratt's brother died by suicide shortly after she began the position. The University knew of the death, observed her emotional distress, knew she had attended counselling and seen her doctor, and was told she could not sustain concentration, absorb information, focus on creative work, or perform all of her duties. On June 26 she explained that she could perform only certain tasks and requested modified duties.	The employee did not need to use the words 'mental disability.' The combination of a traumatic event, visible distress, counselling and medical involvement, and specific functional limitations affecting the same areas relied upon as performance deficiencies was sufficient to require formal inquiry. The University relied on probationary performance concerns, made only a routine internal check, did not obtain focused medical or functional information, did not assess fitness or duration, and did not explore modified duties or other accommodation. The termination decision was finalized the day after Pratt described her limitations. The Tribunal found that mental disability was a factor in the performance concerns and termination and that the University failed to inquire and accommodate. It ordered reinstatement, general damages and lost wages. A diagnostic label or formal accommodation request is not essential. When an employee describes cognitive or emotional limitations that overlap with performance concerns, the employer must pause, obtain appropriate functional information and consider accommodation before termination.

Lethbridge Industries Ltd. v. Alberta (Human Rights Commission), 2014 ABQB 496	The employer knew the employee was taking prescription medication and believed it related to mental-health problems. The employee had taken approximately one month off to have the medication evaluated, and the employer assumed the leave related to mental health. Disability-related absences were then used in applying an attendance standard and terminating employment.	The employer knew or at least suspected a mental-health disability. It could not treat disability-related absences as ordinary attendance failures without accommodation.

Stewart v. Ontario (Government Services) Ontario HRT 2013	The employee had not expressly told management that she was disabled or depressed, but she visibly cried at work, and managers asked whether she was aware of employee-assistance services.	Visible emotional distress, together with management’s own suggestion of counselling or employee-assistance services, was capable of supporting employer awareness. The claim could not be dismissed summarily.

Zaryski v. Loftgard	The employee had become moody, irritable and unable to get along with coworkers. The culminating incident involved agitation, yelling, screaming and dissolving into tears. She said she would take a sick day. Before the dismissal was completed, her husband told the employer she had gone to see her doctor.	The employer knew she was in a “delicate emotional state.” Once told that she had attended her physician, the employer had to inquire before proceeding with termination. Refusing to consider possible illness because the decision had already been made was discriminatory.

USWA, Local 5885 v. Sealy Canada Ltd. (Bender Grievance), [2006] AGAA 8; 147 L.A.C. (4th) 68	A warehouse employee engaged in a violent workplace outburst and assaulted his supervisor. The conduct was completely out of character. Neither the employee nor the employer knew at the time that he was suffering from bipolar disorder. The employer learned of the mental illness shortly after the termination, and the employee was successfully treated.	The arbitrator found that the employer failed in its duty to accommodate. Although it did not know of the mental illness when it dismissed the employee, it learned of it shortly afterward and failed to investigate the disability claim or offer access to disability benefits. The grievance succeeded and the employee was reinstated. The case supports a duty to reconsider apparently culpable, out-of-character conduct when credible disability information emerges before the employment dispute is finally resolved.

Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse BCHRT 2002	The employee was absent for several days and then sent a handwritten note stating that she would be taking medical leave. She did not identify the diagnosis and supplied no supporting medical documentation before the termination decision.	The medical-leave note alone was sufficient to require reasonable inquiry. An employee need not disclose the precise nature of a mental disability before an employer’s duty can arise.

Willems-Wilson v. Allbright Drycleaners Ltd. B.C. HRT 1997	Reactive depression / adjustment disorder with depression; recurring emotional episodes; hospitalization and termination. The employer knew of a marked change in behaviour, unusually extensive crying, weekly counselling, an incident in which she slept at the workplace, serious personal distress, and hospitalization that became indefinite. A co-worker understood that the hospitalization was for emotional problems. The cumulative behavioural signs, counselling history and indefinite hospitalization gave the employer enough information to recognize that a serious emotional or mental-health condition might be affecting the employee. Her failure to disclose her diagnosis or request accommodation was not fatal.	The employer went to the hospital and dismissed her immediately without asking why she had been admitted, how long she might be absent, whether her behaviour was medically related, or whether temporary leave could be accommodated. The Tribunal found a mental disability and held that the employer had an obligation, at the very least, to inquire. Dismissal without inquiry or an opportunity to request accommodation was discriminatory. The absence could have been accommodated without undue hardship. An employee's ability to function most of the time does not negate an episodic mental disability. Where unusual behaviour and hospitalization objectively suggest emotional illness, stigma-related non-disclosure does not relieve the employer of the duty to inquire before dismissal.

The following cases found that the employer was not, on the facts, required to inquire as to the individual’s mental status:

Cases Finding No Mental Disability and No Employer Duty to Inquire or Accommodate


Case	Facts Known to Employer	Information Not Provided	Reasoning	Practical Rule

Greidanus v. Inter Pipeline Limited March 2023 Alberta HRT	Inter Pipeline knew only that its preferred candidate had failed a THC pre-employment drug test required by a conditional offer for a partly safety-sensitive emergency-management role. Greidanus had mentioned involvement in a mental-health awareness campaign and that he was 'banged up' in the military, but he did not disclose Hashimoto's disease, chronic pain, or cannabis use as treatment before the offer was revoked.	Greidanus did not disclose his physical disability or therapeutic cannabis use to Inter Pipeline or the testing agency, despite knowing the test included cannabis and expecting a positive result. He did not list cannabis on the testing questionnaire and had no medical authorization or prescription at the time. The disability explanation was provided only after the revocation decision had been made and communicated.	The Tribunal found no nexus and no duty to inquire. A non-negative THC result, without additional disability-related information, did not reasonably alert the employer that the failed test was connected to a disability. The duty is not freestanding; it requires actual or constructive knowledge of both the disability and a possible connection to the workplace rule. Post-decision disclosure was too late, and no individualized assessment was required because prima facie discrimination was not established.	A failed pre-employment drug test does not, by itself, require an employer to investigate whether the applicant has a disability. A prospective employee with a non-obvious disability or therapeutic drug use must disclose enough information before the adverse decision to create a reasonable disability-related connection. The result may differ where medical cannabis use or disability is disclosed before the decision.

Vashisht v. CitiFinancial Canada, Inc. 2023 Alberta HRT	CitiFinancial had received a June 2014 medical note concerning panic disorder and anxiety, and a June 17, 2015 physician statement identifying generalized anxiety disorder, frequent panic attacks, poor sleep, and effects on cognition and decision-making. However, the employee's ongoing communications and accommodation requests focused primarily on childcare obligations, parental leave, part-time hours, working from home, and branch location.	The employee did not clearly and consistently explain that his mental disability was affecting attendance, performance, or the ability to perform the remote role. References to a prior 'long-term sickness' were vague. His testimony about mental-health disclosures lacked documentary corroboration and conflicted with contemporaneous requests framed around family responsibilities. He also did not meaningfully respond to the employer's proposed alternate schedule.	The Tribunal accepted the legal duty-to-inquire principle but found it was not triggered on the evidence viewed as a whole. The historical 2014 note was outside the limitation period and contextual only. The June 2015 medical statement could not be considered in isolation; the employer's contemporaneous information pointed mainly to childcare stress rather than a disability-related performance or attendance problem. CitiFinancial therefore was not aware and reasonably ought not to have been aware that mental disability was affecting performance or absenteeism.	A diagnosis or medical note does not automatically trigger a broad inquiry into every later performance or attendance problem. The employer's obligation depends on whether the information available at the decision point reasonably connects the disability to the workplace issue. The employee must communicate the functional connection with reasonable clarity and participate in the accommodation process.

Cliff v. Her Majesty the Queen in Right of Alberta (Human Services) November 2021 Alberta HRT	The employer knew Cliff had a mental disability and had accommodated substantial leave and gradual return-to-work restrictions for roughly two years. Throughout 2016 it received frequent medical notes, followed the stated hours and duty restrictions, and sought clarification when notes appeared inconsistent. The latest notes stated that she was medically fit for full duties and hours. When she resigned, the employer declined to accept the resignation immediately and urged her to consult her union and human resources and reconsider. Cliff did not tell the employer that disability was affecting her performance or that her suggestions for demotion or restructuring were medically required. Those proposals were framed as operational ideas or personal preferences. She obtained a later note stating that she should not supervise or train staff, but did not provide it to the employer before confirming her resignation.	The treating physician and psychiatrist did not testify. Their records did not prove diagnosis, severity, functional limitations, or causation. The union did not establish how any condition impaired the employee's ability to comply with confidentiality and non-retaliation directions.	The Tribunal found no objective adverse impact: the return-to-work meetings reflected miscommunication rather than bullying; work assignments and coaching were legitimate management activity; the draft learning plan was collaborative and non-disciplinary; and the resignation was voluntary. Alternatively, disability was not a factor. The employer was entitled to rely on current medical information indicating fitness for full work, and the employee's conduct was not so inconsistent with that information that a further duty to inquire arose. An unspecified health inquiry would have been intrusive and inappropriate.	Where an employer has obtained current medical information, respected the identified restrictions, and has no reasonably apparent evidence contradicting that information, it may rely on the employee's stated fitness. The duty to inquire is not freestanding; the employee remains responsible for communicating a non-obvious need and supplying updated medical support.

United Nurses of Alberta v. Alberta Health Services (Radcliffe Termination), 2021 Adjudicator Decision Alberta	The registered nurse had approximately 19 years of service. During an investigation into post-suspension misconduct, he became emotional and said that he thought he was trying to self-destruct. The employer was later advised that his physician referred to major depression. AHS stopped the investigation, placed him on paid administrative leave, involved abilities management, and permitted approximately nine months of medical leave, counselling and treatment before completing the investigation and terminating him.	The treating physician and psychiatrist did not testify. Their records were admitted only to show what information had been given to the employer, not to prove the diagnoses, severity, functional limitations or causation. The employer called a forensic psychiatrist who challenged the diagnosis and the alleged connection with the conduct. The union did not establish how any condition impaired the employee’s ability to comply with the confidentiality and non-retaliation directions.	A majority found that the union had not proven a protected mental disability and, alternatively, had not proven that disability contributed to the misconduct. Medical leave, emotional distress and a reference to depression did not themselves establish disability or nexus. The employer had also responded to the warning signs by pausing the investigation and allowing medical leave, so this was not a case of simply ignoring a possible disability.	The employee must prove a coherent chain from medical condition to symptoms, functional limitations and the particular workplace conduct. Evidence that an employee was distressed, received treatment or took medical leave is insufficient without admissible evidence showing how the condition affected the ability to comply with the specific workplace rule.

Rezaei v. University of Northern British Columbia (No. 2) 2011 BC HRT	The associate professor was regarded as disruptive, and his behaviour adversely affected the workplace.	Before termination, neither the employee nor the employer knew that the conduct was caused by a mental disability. The diagnosis and causal explanation emerged only after dismissal.	The duty to inquire into an undiagnosed disability depends on the information actually available to both sides. Disruptive or difficult conduct, without additional health-related indicators, does not necessarily alert an employer to a mental disability.	An employer is not required to diagnose every instance of misconduct, conflict, or poor behaviour. There must be surrounding facts reasonably suggesting that disability may be involved.

Burgess v. Stephen W. Huk Professional Corporation 2009 AHRC 8; upheld 2012 Alberta KB	The complainant was pregnant and was a practising Mormon at the time of termination.	The employer had no knowledge of the pregnancy or religion, and the employee had not provided even cursory information that would connect either protected characteristic to a need for accommodation.	An employer cannot be expected to accommodate facts of which it is unaware. The employee must provide at least some pertinent or cursory information concerning the protected need.	The duty to accommodate is cooperative. An employee cannot remain entirely silent about a non-obvious protected need and later fault the employer for failing to accommodate it.

Berridge v. City of Calgary Alb HRT 2007	The employee had previously been diagnosed with cancer, had received long-term disability benefits, and later had a number of genuine health-related absences. Management sent several attendance warnings.	The employee did not identify a current disability, explain that the absences reflected an ongoing disability, request accommodation, or provide pertinent information. Supervisors and co-workers did not observe behaviour suggesting a disabling medical condition.	No sufficient employer awareness of a need for accommodation. There must be evidence that the employer knew or reasonably ought to have known of the need for accommodation. An employee ordinarily must provide at least general information about the problem and the accommodation required.	A past serious illness or repeated bona fide absences does not automatically trigger a duty to inquire where the employer is not given information connecting the current workplace problem to a disability.

General principles emerging from the duty-to-inquire cases

The cases do not impose a general obligation upon employers to investigate every instance of misconduct, poor performance, absenteeism or emotional behaviour. The obligation arises when the information available to the employer, considered cumulatively and objectively, reasonably suggests that disability may be contributing to the workplace issue.

The following principles emerge from the decisions.

The employer need not know the precise diagnosis

An employer’s duty to inquire may arise even though the employee has not identified a particular diagnosis or used the words “mental disability” or “accommodation.”

In Sylvester v British Columbia Society of Male Survivors of Sexual Abuse, a handwritten note stating that the employee was taking medical leave was sufficient to require reasonable inquiries. The employee had not identified a diagnosis or supplied supporting medical information before the termination decision.

In Pratt v University of Alberta, the employee did not provide a diagnostic label. She did, however, describe an inability to concentrate, absorb information, sustain creative work or perform all her duties. Those functional disclosures, combined with visible distress, counselling, medical involvement and a traumatic event known to the employer, required a formal inquiry.

The employer’s task is not to diagnose the employee. It is to recognize when the available information requires clarification.

Constructive knowledge may arise from cumulative circumstances

The duty is not confined to cases of express disclosure. An employer may be treated as knowing of a possible disability where the surrounding facts would cause a reasonable employer to make further inquiries.

In Lethbridge Industries Ltd. v Alberta (Human Rights Commission), the employer knew that the employee was taking medication believed to be connected to mental-health issues and had taken an extended absence to have the medication assessed. The employer could not rely upon the resulting attendance deficiencies without addressing their possible connection to disability.

In Willems-Wilson v Allbright Drycleaners Ltd., repeated crying, counselling, an unusual incident at the workplace, a marked behavioural change and indefinite hospitalization collectively gave the employer sufficient notice of a possible mental disability.

In Volpi v Lifemark Health Corp., the employer’s knowledge included an earlier mental-health crisis, hospitalization, previous leave-based accommodation, repeated mental-health leave requests, references to burnout and an abrupt and highly unusual resignation.

The individual facts may appear inconclusive when viewed separately. The employer must consider the overall pattern rather than examining each warning sign in isolation.

Observable distress may be enough to require inquiry

An employee does not always have to describe the condition verbally.

In Zaryski v Loftgard, the employee had become moody and irritable and then experienced a dramatic workplace incident involving agitation, yelling, screaming and tears. When the employer learned that she had gone to see a doctor, it was required at least to inquire whether illness might affect the contemplated termination.

In Stewart v Ontario (Government Services), visible weeping and management’s own suggestion that the employee use counselling or employee-assistance services were capable of establishing that the employer knew or ought to have known of a possible mental disability.

Stewart was decided at a preliminary stage and did not make a final liability finding. It nevertheless supports the proposition that management cannot recognize conduct as sufficiently concerning to recommend counselling and then insist that it had no reason to suspect a mental-health issue.

Functional information may be more important than diagnostic language

The cases repeatedly focus upon what the employee can and cannot do rather than upon the name attached to the condition.

In Pratt, the important information concerned concentration, memory, learning, creativity and the ability to perform particular duties.

In Gaisiner v Method Integration Inc., the effects of ADHD were closely intertwined with the employee’s alleged deficiencies in technical skill and problem-solving. The employer was required to investigate which difficulties reflected genuine skill deficiencies and which were caused or affected by disability.

The employer should therefore seek information concerning:

the employee’s functional restrictions;
the duties affected;
the expected duration of the restrictions;
the employee’s fitness to continue working;
possible modified duties;
the need for medical leave; and
the anticipated return-to-work process.

A demand for the precise diagnosis may be unnecessary and, in many circumstances, inappropriate.

Performance deficiencies must be separated from disability-related limitations

An employer may have legitimate concerns about an employee’s performance and still discriminate by failing to determine whether disability contributed to those concerns.

In Gaisiner, ADHD played a role in most of the performance-related problems relied upon by the employer.

In Pratt, the employee’s difficulties with concentration, memory and sustained work overlapped directly with the probationary performance concerns used to justify termination.

The employer cannot simply place all shortcomings into a single category of incompetence. It must determine whether some concerns are disability-related and whether those limitations can be accommodated.

The fact that an employee is probationary does not eliminate this obligation.

Misconduct must not automatically be treated as wholly voluntary

The existence of misconduct does not necessarily answer whether disability contributed to it.

In Kvaska v Gateway Motors (Edmonton) Ltd., the employee attended work severely intoxicated. The employer also knew of repeated impairment, an alcohol-related driving offence, inquiries about medical leave and direct information that he had a drinking problem. Kvaska disclosed his addiction and requested rehabilitation before termination.

The employer was entitled to remove him immediately from active duties. It was not entitled to treat the incident solely as voluntary misconduct without investigating the relationship between the addiction and the conduct and considering treatment leave or another safe accommodation.

The principle is not that addiction excuses every breach of a workplace rule. It is that an employer must examine whether addiction impaired the employee’s ability to comply before deciding that the conduct was entirely culpable.

Safety concerns and the duty to accommodate must be considered separately

An employer may take immediate steps to protect employees, customers and the public. Those steps do not necessarily determine whether employment should be terminated.

In Kvaska, the employer could prevent an intoxicated employee from working while still considering rehabilitation and medical leave.

In Andrusiw v Westcon Precast Inc., the employer had legitimate and serious concerns involving intoxication, threats and abusive conduct. Those concerns justified removing Andrusiw from active work. They did not eliminate the obligation to consider treatment leave, temporary replacement, restrictions and a medically supported return-to-work process.

The employer should therefore separate two questions:

What immediate measures are required to control the safety risk?
What inquiry and accommodation process should follow once the immediate risk has been addressed?

The employer cannot impose its own medical judgment

Managers may assess workplace conduct and operational requirements, but they are not ordinarily qualified to decide whether an employee has a disability, whether conduct is medically related or what treatment is appropriate.

In Volpi, the supervisor treated the employee’s stress and burnout as no different from the stress experienced by everyone else. The Tribunal found that the surrounding circumstances objectively required inquiry.

In Andrusiw, the employer’s later suggestion that the employee could be considered for re-employment only after completing employer-selected residential treatment did not constitute proper accommodation. The proposed treatment conflicted with the approach recommended by the treating professional.

The employer may request appropriate medical information. It should not diagnose the employee or prescribe a particular treatment without a proper medical foundation.

A medical leave must not be converted prematurely into abandonment

In Cryderman v Time to Play ECS, the employer knew of the employee’s anxiety and panic concerns, had received medical certificates, knew that another assessment was scheduled and had repeatedly indicated that it expected her to return in the new year.

The employer nevertheless treated a short gap following the expiry of one certificate as abandonment. It made only brief unsuccessful telephone calls and began preparing a termination letter almost immediately.

The decision establishes that an employer must not transform an anticipated continuation of disability leave into abandonment merely because updated documentation is briefly delayed. The employer should:

make a clear inquiry;
allow a reasonable opportunity to respond;
request updated medical information;
consider its previous communications with the employee; and
assess whether the leave can continue without undue hardship.

New medical information may require reconsideration of a pending decision

The duty to inquire is not necessarily determined only by what the employer knew when it first considered discipline or termination.

In Forbes v Valard Construction LP, the employer knew of a longstanding disability that had worsened, cognitive and medication-related concerns, fatigue, confusion and sudden out-of-character conduct. Before the dismissal was communicated, it received a medical note confirming disability and one month of medical leave.

The screening dismissal of the complaint was overturned because there was a reasonable basis for finding that the employer should have considered whether disability contributed to the conduct. Forbes was not a final merits decision, but it supports an important procedural principle: disability information received before the employment decision is communicated or implemented may require the employer to pause and reconsider.

An employer cannot necessarily insulate its decision merely by saying that the termination letter had already been prepared.

A resignation may trigger inquiry

A resignation is not always conclusive where the surrounding circumstances suggest that mental disability may have affected the employee’s judgment or decision-making.

In Volpi, the resignation:

was abrupt and hastily prepared;
ended an employment relationship of approximately 16 years;
was delivered the day before approved mental-health leave;
shocked the supervisor;
was inconsistent with the employee’s continuing patient bookings;
was unaccompanied by normal arrangements for patients or personal belongings; and
followed repeated disclosures of deteriorating mental health and requests for leave.

These circumstances required Lifemark to ask whether the resignation was connected to Volpi’s mental health and whether leave or another accommodation should be considered.

The duty did not necessarily end when the resignation was initially accepted. Later information concerning hospitalization, regret and an attempt to return strengthened the possible connection and required meaningful reconsideration.

The employee need not design the accommodation

An employee must cooperate in the accommodation process and provide reasonably necessary information. The employee is not ordinarily required to identify and present a complete accommodation plan.

In Pratt, the employee explained her limitations and identified duties she believed she could perform. The University was better positioned to identify available work, request functional medical information and examine modified duties.

In Kvaska and Andrusiw, possible measures included treatment leave, continued benefits, temporary replacement, restrictions and a structured return-to-work process.

Once the need for inquiry has arisen, the employer must participate actively rather than waiting for the employee to produce a perfect solution.

Employer knowledge is not confined to the immediate supervisor

Volpi establishes an important organizational principle. Lifemark argued in substance that the new supervisor lacked detailed knowledge of Volpi’s diagnosis and earlier accommodation history.

The complaint, however, was against Lifemark, not the supervisor personally. The employer had received the relevant disclosures through a previous manager and had previously accommodated the condition.

An organization cannot fail to maintain or communicate necessary accommodation information and then rely upon the ignorance of a particular manager as a defence. Appropriate systems must exist to preserve and communicate information concerning accommodation needs while respecting employee confidentiality.

A brief or informal inquiry may be insufficient

The duty is not necessarily satisfied by asking a single general question.

In Volpi, the supervisor asked whether there was anything that could change the employee’s mind. That did not amount to an inquiry into whether the resignation was connected to mental disability.

In Cryderman, two unsuccessful telephone calls did not satisfy the duty where the employer knew that medical leave might be continuing.

In Pratt, a routine internal inquiry that did not seek functional medical information or assess modified work was inadequate.

The inquiry must be directed to the actual issue: whether disability may be involved and what accommodation may be required.

Undue hardship must be proven, not assumed

The duty to inquire is closely connected to the obligation to assess accommodation. An employer cannot establish undue hardship without examining the available options and producing evidence of the resulting cost, disruption or risk.

In Willems-Wilson, temporary coverage was available and the employer operated for several months before hiring a permanent replacement.

In Cryderman, the employee was unpaid, internal coverage had already been arranged and the only identified training expense was $110. The Tribunal held that the employer was not remotely close to proving undue hardship.

The word “undue” requires more than inconvenience, ordinary administrative difficulty or a preference for immediate certainty.

Consolidated principle

The cases collectively support the following proposition:

An employer’s duty to inquire arises where the information known to the employer, considered cumulatively and in context, would cause a reasonable employer to suspect that disability may be contributing to an employee’s conduct, performance, absence, request for leave or decision to resign. The employer need not know the precise diagnosis, and the employee need not make a formal accommodation request. The employer must pause the contemplated employment decision, seek appropriate functional information, investigate the possible connection to disability and consider reasonable accommodation before imposing discipline, accepting a resignation or terminating employment.

The cases also establish an important limit:

The duty to inquire does not require the employer to diagnose every employee or treat every instance of stress, misconduct, poor performance or absenteeism as disability-related. There must be objective circumstances reasonably suggesting a possible connection. Once those circumstances exist, however, the employer cannot avoid its obligations by relying upon the absence of diagnostic language, a formal request or a fully developed accommodation proposal.

Footnotes

BC (Superintendent of Motor Vehicles) v BC ( Council of Human Rights) “Grismer”.¹

It does arise frequently with respect to disability cases which often are the subject matter of the leading cases on this topic.

One case in Ontario set the damage claim for failure to accommodate an emotional disorder at 12.5 years lost salary plus reinstatement.

Accommodation is a very important issue in cases involving a mental disability. It is a continuing obligation to the point of undue hardship even where there may be a relapse, which is often the case with addiction issues.

Mental Disability Unique In Accommodation Obligation

The usual rule engaging a duty to inquire requires that the employee request accommodation. A mental disability is considered an exception to this rule. Where the employer knows or reasonably should know that there is a connection between the employee’s conduct and a disability, there will be found such a duty to inquire. This is a significant distinction as it raises the obligation of the employer to take affirmative action of accommodation based on the objective facts before it.

Employer to Be Aware of the Disability

It must be established that to impose an obligation to accommodate the disability, the employer has been made directly aware of the employee’s medical condition or, alternatively, the facts show that, objectively viewed, it should have been aware that there may be a mental health issue, given the nature of the conduct of the employee.

These cases will be explored. They are very much dependent on the particular facts of each individual case.

Defining a Mental Disability

Perception

Human rights law recognizes that the perception of a mental disability will qualify to allow for jurisdiction. This concept applies to all protected human rights. Perception is enough.

The Statute

Each jurisdiction will also define in its statute a “mental disability” but the definition is generally open ended. For example, the Alberta statute defines this to be:

(iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(v) condition of being mentally impaired, (vi) mental disorder, or (vii) dependency on drugs or alcohol;

Ontario is similar: It defines mental disability as follows:

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder…

Evidence to Prove the Case

The applicant must then present evidence to show that they suffer from such a mental disability. The issue will arise whether medical evidence is required for this purpose and also if the medical evidence must be concurrent with the timing of the relevant events. This is not the law. A mental disability may be proven by a medical diagnosis which was made following termination. ²Shaikh v Colliers
United Nurses of Alberta v Albert Health Services Radcliffe arbitration
Shaikh v Colliers
Pratt v U of Alberta