Haghir v University Appeal Board, 2019 SKCA 13

Court of Appeal for Saskatchewan Docket: CACV3072 Citation: Haghir v University Appeal Board , 2019 SKCA 13 Date: 2019-01-30 Between: Edris Haghir Appellant (Applicant) And University Appeal Board, College of Medicine, University of Saskatchewan Respondents (Respondents) Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie J.A. In concurrence: The Honourable Madam Justice Jackson J.A. The Honourable Mr. Justice Whitmore J.A.

On Appeal From: QBG 178 of 2016, Saskatoon Appeal Heard: March 23, 2018 Counsel: Jay Watson for the Appellant Sean Sinclair and Candice Grant for the Respondents Ryan-Froslie J.A. I. Introduction [ 1 ] In 2009, Dr. Edris Haghir, who was trained as a physician in Iran, applied for admission to the Neurology Program at the University of Saskatchewan, College of Medicine [College of Medicine]. Dr. Haghir did not initially disclose to the College of Medicine that he had a criminal record for shoplifting. He was granted admission to the Neurology Program but only after signing a number of documents: (

a) a June 25, 2009, undertaking to the College of Physicians and Surgeons of Saskatchewan in which he agreed, among other things, to continue under the care and treatment of a psychiatrist and to seek assistance from the Physician Support Program of the Saskatchewan Medical Association [Physician Support Program]; (

b) a January 22, 2010, agreement with the Saskatoon Regional Health Authority [Regional Health Authority] wherein he agreed to not commit any further violations of the Criminal Code , remain in compliance with his undertaking to the College of Physicians and Surgeons and comply with any terms, conditions, accommodations or requirements of the College of Medicine; and (

c) a February 9, 2010, accommodation agreement with the College of Medicine wherein he agreed, among other things, to fully comply with the terms and conditions of his undertaking to the College of Physicians and Surgeons and his agreement with the Regional Health Authority. [ 2 ] In March 2012, Dr. Haghir was accused of attempting to steal textbooks from the University bookstore. No criminal charges were laid, but a University of Saskatchewan Senate Hearing [Senate Hearing] found Dr. Haghir responsible for the attempted theft and he was sanctioned. Dr.

Haghir did not appeal that decision. [ 3 ] Upon receiving notice of the Senate Hearing decision, the College of Medicine decided to review Dr. Haghir’s situation. An investigation was launched and Dr. Haghir’s membership in the Neurology Program was eventually terminated. Dr. Haghir exhausted all avenues of appeal available to him through the administrative process, which included appeals to the Appeal Adjudication Board [AAB] and the University of Saskatchewan Appeal Board [Appeal Board]. Those appeals ultimately confirmed Dr. Haghir’s dismissal. Dr.

Haghir then applied to the Court of Queen’s Bench for judicial review. That Court dismissed Dr. Haghir’s application. Dr. Haghir now appeals to this Court. [ 4 ] While Dr. Haghir’s notice of appeal contained grounds relating to procedural fairness, during oral submissions those grounds were abandoned. Dr. Haghir’s appeal is grounded on his assertion that the Appeal Board’s decision was not reasonable as it did not properly address the question of whether the College of Medicine had provided reasonable accommodation of Dr.

Haghir’s mental health disability, which he asserts is the underlying cause of his criminal behaviour. In particular, Dr. Haghir contends the Chambers judge erred in his application of the reasonableness standard of review to the Appeal Board’s determination of that issue. [ 5 ] In my view, Dr. Haghir’s position has merit and, accordingly, the appeal must be allowed. II. Background [ 6 ] The facts underpinning this appeal are not in dispute.

It is sufficient to highlight only those facts germane to the core issue of this appeal, which concerns the reasonableness of the Appeal Board’s rulings pertaining to accommodation.

[ 7 ] When Dr. Haghir applied for admission into the Neurology Program, he did not disclose his prior criminal record. He did so only after being charged with a further offence for theft. The administrators of the Neurology Program were concerned and reported the matter to the College of Physicians and Surgeons, who are responsible for licencing doctors to practice in the province. The College of Physicians and Surgeons required Dr. Haghir to undergo an independent psychiatric assessment. That assessment was done by Dr. Mela. [ 8 ] On August 11, 2009, Dr.

Mela provided a nine-page report to the College of Physicians and Surgeons in which he addressed the following questions pertaining to Dr. Haghir: 1. Is the behaviour [shoplifting] the result of a recognized psychiatric illness? 2. If yes, is the illness treatable? What is the nature of the treatment? 3. Is the individual amenable to treatment? 4. Does the individual demonstrate appropriate insight? 5. Are there any clinical reasons why the individual did not disclose his criminal record and current charge to the residency program or his referees? 6. What is the risk of recidivism? 7.

Is the risk of recidivism increased by the stressors and pressures of residency training? 8. Is there risk that the illness may become manifest through other negative or maladaptive behaviours? 9. Is there risk of the illness and/or medication adversely impacting cognition, judgment, interpersonal communication or professional performance? 10. Is there risk of this physician not practicing with honesty and integrity, such as not admitting a lack of clinical knowledge or not disclosing medical error? 11. Is there any risk of property theft to patients, staff, visitors or SHR [Regional Health Authority]? 12.

All things considered, do you support the individual continuing with residency training? 13. If yes, what terms and conditions do you recommend we put in place to mitigate risk and improve the likelihood of success? [ 9 ] Dr. Mela indicated that Dr. Haghir’s contacts with psychiatric services to that date had been related to his criminal behaviour of theft. Those services included psychiatric care, counselling from a psychologist, group therapy and the taking of medication. [ 10 ] In response to the question of whether Dr. Haghir’s criminal behaviour was the result of a recognized psychiatric illness, Dr.

Mela stated at page five of his report: The diagnosis that attempts to contextualize the behaviour is that of Adjustment disorder with mixed disturbance of emotions and conduct coded 309.4 in the Diagnostic and Statistical Manual (DSM IVTR). Psychiatric disorders, not illnesses are a conglomeration of symptoms identifiable in clusters with associated functional disturbance. Severity is rated by the level of functional disturbance and the personal distress experienced. [ 11 ] Dr. Mela found that kleptomania, recognized as a rare impulse control disorder, was not Dr. Haghir’s “primary disorder”.

He stated: As described above, [Dr. Haghir] said he experiences no urges or irresistible impulse to steal but in response to stress he experiences the mixed emotions of anger, shame and anxiety. He then fails to fulfill the societal behaviour norm expected of someone like him. [ 12 ] Dr. Mela found Dr. Haghir suffered from psychiatric disorders and, at page six of his report, described the appropriate treatment options. This was done in response to the question: “If yes, is the illness treatable?” [ 13 ] Dr. Mela adopted a multi-prong approach to Dr. Haghir’s treatment.

His recommendations included psychoeducation (understanding why Dr. Haghir acts as he does), psychopharmacology (medication), psychotherapy, accountability and that Dr. Haghir research and write an essay or a presentation on honesty and truthfulness especially in the climate of apology relating to medical errors and mistakes. [ 14 ] Dr. Mela found Dr. Haghir was amenable to treatment and would respond and benefit from it. He went on to assess Dr.

Haghir’s risk of shoplifting as moderate to high but found there were factors that decreased that risk to “low or at a totally controlled level”: His past history of a similar offence, poor coping with distressed emotions, offending after treatment on two or so occasions, traits of entitlement and passivity and non deterrence despite the high stake of his residency at the time of the third offence are the major risk elevating factors. Unresolved difficulties and conflicts like access to his daughter, failed marriages have the potential to keep the risk at that level.

I am quick to add that the current thinking surpasses just risk estimation and includes risk prevention and reduction. The treatment plan put above, his level of commitment, non denial, recently improved emotional management, absence of risk precipitating alcohol and drug history, reasonably formed character and the psychological and social support, all combine to reduce the risk to low or at a totally controlled level. [ 15 ] On June 25, 2009, Dr. Haghir signed an undertaking with the College of Physicians and Surgeons as a condition of obtaining

an educational licence to enable him to participate in the Neurology Program. The undertaking provided that for as long as Dr. Haghir remained licenced in Saskatchewan he would (

i) continue under the care and treatment of a Saskatchewan psychiatrist and follow the treatment plan of that psychiatrist, (ii) enroll and participate in the Physician Support Program and follow the recommendations of that program, and (iii) irrevocably authorize his psychiatrist and the Physician Support Program to provide reports to the College of Physicians and Surgeons upon request. [ 16 ] On January 22, 2010, Dr.

Haghir entered into a written agreement with the Regional Health Authority whereby he agreed not to commit any further violations of the Criminal Code and to remain in compliance with his undertaking to the College of Physicians and Surgeons and with any terms, conditions or accommodations required by the College of Medicine. [ 17 ] On February 9, 2010, Dr. Haghir and the program director of the Neurology Program signed a “letter of accommodation”, the relevant portions of which read as follows: Further to the meeting held February 3 with Dr. Anurag Saxena, Dr.

Edward Atkins, Debbie Spence and Tracey Wray, the following accommodation for Dr. Edris Haghir was outlined: 1. Dr. Haghir will fully comply with the terms and conditions regarding the appointment and privileges to the Resident Medical staff of the Saskatoon Regional Health Authority, as agreed to January 22, 2010. 2. Dr. Haghir will consent to provide communication to the Manager, Health and Wellness from his psychiatrist regarding ongoing progress and treatment requirements throughout his residency. Frequency of reports will be determined by his progress.

If there is a concern about deterioration in progress related to the accommodation Dr. Haghir will ensure the Program Director is aware and where recommended from Health and Wellness he will provide consent for release of medical information to the Program Head. 3. Dr. Haghir will avail himself of the supports with the Saskatchewan Physicians’ Support Committee. 4. A physician mentor will be appointed to assist with ongoing monitoring and support. The Program Director, Dr. Atkins, will assist in the appointment of the mentor. 5. Dr.

Haghir also has access to counselling support through the Employee Assistance Program. 6. Dr. Haghir is to bring to Dr. Atkins attention, any challenges he may be experiencing from others regarding his accommodation. 7. Regular reviews and requirements for meetings will be determined by either party as required. At this time there are no further medical accommodations required and Dr. Haghir is able to start into a normal Residency routine. [ 18 ] Dr. Haghir was then admitted into the Neurology Program. It is uncontroverted that he continued to see his psychiatrist, Dr.

Bowen, that he enrolled in the Physician Support Program and that he met with a mentor. No issues were raised by either Dr. Haghir or the College of Medicine until January 2013 when Dr. Haghir was suspended from the program as a result of the Senate Hearing decision that found he had attempted to steal textbooks from the University bookstore. [ 19 ] The Senate Hearing decision prompted an investigation by the College of Medicine. The investigation was done by the Postgraduate Medical Education Investigation Committee [PGME Committee]. That Committee recommended Dr.

Haghir’s participation in the Neurology Program be terminated. III. Decisions A. The PGME Committee’s Investigation and Recommendation [ 20 ] The allegation against Dr. Haghir investigated by the PGME Committee was one of “unprofessional conduct”. The conduct in issue was the attempted theft of textbooks for which Dr. Haghir had been censured by the Senate Hearing committee. [ 21 ] In concluding that dismissal should be recommended, the PGME Committee determined Dr. Haghir had breached the February 9, 2010, accommodation letter by (

i) not informing the Neurology Program director of the allegation of attempted theft, which amounted to a deterioration in his progress, and (ii) by not bringing to the director’s attention the challenges he was experiencing. Further, the PGME Committee found Dr. Haghir had not complied with his undertaking to the College of Physicians and Surgeons as he had not followed the treatment plan recommended by his psychiatrist, Dr. Bowen. Dr.

Haghir had not taken his medication as directed and he had not been honest with his psychiatrist when questioned about his use of the medication. [ 22 ] The PGME Committee further determined Dr. Haghir had not been honest with the Physician Support Program or the PGME Committee as he had asserted he was fully compliant with the treatment prescribed by his psychiatrist. [ 23 ] Finally, the PGME Committee found Dr.

Haghir had failed to comply with his agreement with the Regional Health Authority in that he had engaged in conduct contrary to the Criminal Code (attempted theft) and had not remained in full compliance with the terms, conditions, accommodation and requirements upon which his entry into the Neurology Program depended. [ 24 ] The PGME Committee concluded: It is noted that the behavior of theft occurs during periods of increased stress. The practice of medicine involves situations of significant stress and even more so when one is an independent practitioner.

Given that there is convincing evidence of ongoing non-compliance and non-utilization of treatment despite availability of treatment from many sources, it does not provide an encouraging prognosis. The

committee felt that given the extent of the support available and the accommodation and undertakings already in place, extending the period under which he [Dr. Haghir] was monitored, to determine if there was any improvement, would not be of value. (Emphasis added) [ 25 ] As a result if its investigation, the PGME Committee recommended Dr. Haghir be dismissed from the Neurology Program based on (

i) his non-compliance with the prescribed accommodation plan under which he was allowed to enter that program, (ii) recidivism (of theft) despite the educational and treatment provisions in place, and (iii) evidence that Dr. Haghir had engaged in conduct contrary to the Criminal Code (attempted theft). In arriving at its decision, the PGME Committee did not consider the law relating to accommodation of individuals with mental health disabilities. [ 26 ] The PGME Committee’s recommendations were adopted by the Dean and the residency committee and Dr. Haghir was terminated from the Neurology Program. [ 27 ] Dr.

Haghir appealed his dismissal to the AAB. While at one point the appeal process resulted in the matter being returned to the AAB for a new hearing, the only appeals germane to the matters now before this Court are the final decisions rendered by the appellate bodies upholding Dr. Haghir’s dismissal. B. The February 13, 2015, Appeal Adjudication Board Decision [ 28 ] The only aspect of the AAB’s decision relevant to this appeal is its determination that the College of Medicine had met its duty to accommodate Dr. Haghir’s mental health disability.

The AAB’s conclusions with respect to that matter are brief and can be found at page 7 of its decision: c. The decision to terminate Dr. Haghir constitutes a failure to accommodate his mental illness Although it is unclear what was disclosed at the time of the commencement of his residency , in reviewing the Program Accommodation letter, February 9, 2010 and the Undertaking to the College of Physicians and Surgeons of Saskatchewan, June 25, 2009, it is stated that he was to continue treatment with a Saskatchewan psychiatrist and participate in the Physician Support Program.

At the time there was no mention of a mental disability or request for further medical accommodation by Dr. Haghir nor did he register with the Disability Services for Students. The AAB felt that the College of Medicine had met its duty to accommodate his mental condition. (Emphasis added) [ 29 ] Dr. Haghir appealed the AAB’s decision to the Appeal Board. C. The July 31, 2015, University of Saskatchewan Appeal Board Decision [ 30 ] An oral hearing was held before the Appeal Board in which Dr. Haghir presented updated evidence from his psychiatrist, Dr. Bowen, and his psychologist, Dr. Arnold.

He also provided a copy of Dr. Mela’s report which predated his entry into the Neurology Program. [ 31 ] Dr. Bowen provided a report dated September 3, 2014, which was in stark contrast to his March 21, 2013, letter to the PGME Committee. [ 32 ] In his March 21, 2013, letter, Dr. Bowen had indicated Dr. Haghir had missed appointments with him. He stated: I do recall that there were several missed appointments and [Dr. Haghir] was frequently late for the earlier appointments.

I was never satisfied with his reasons and after confrontation, he has been regular and punctual for all subsequent recent appointments. [Dr. Haghir] has never described symptoms or shown signs that would meet diagnostic criteria for a defined psychiatric disorder. I do suspect from subtle symptoms that he does have a mood disorder … [ 33 ] Dr. Bowen went on to state: My assessment of the psychiatric difficulties is that he does have a form of mood dysregulation manifested by hyperthymia in the past and a mild sad affect, but the symptoms are subtle and would not be apparent to the casual observer.

As far as I am aware, they have not affected his medical work. A more dynamic view is that when he is destabilized by stressful circumstances, he retaliates against the system by shoplifting. This would be labeled as an impulse control disorder that emerges when he is under stress. … There are also other traits that caused concern for the practice of Medicine. He actually discontinued the prescribed lamotrigine and cilalopram as soon as he had been established on low therapeutic doses. As is my usual practice, we had discussed in detail the reasons for prescribing them.

He never disclosed discontinuing them to me, despite inquiries about his medication at every visit. (Emphasis added) [ 34 ] Dr. Bowen opined that Dr. Haghir had not made much progress and that the main reason for the lack of progress was the vagueness of Dr. Haghir’s verbal communications. Dr. Bowen recommended more intensive therapy with a psychotherapist. He also recommended more open communication between the parties involved in Dr. Haghir’s therapy, supervision, training and licencing.

[ 35 ] In his September 3, 2014, letter, Dr. Bowen indicated that following his termination from the Neurology Program, Dr. Haghir was put on new medication. In Dr. Bowen’s words: The result has been a remarkable improvement in what previously would have been very mild and subtle symptoms. Dr. Haghir’s affect has stabilized, he [has] become much more candid and insightful, and he informs me that there are no kleptomaniac urges even in stimulus situations like stores. He has also entered psychotherapy with a psychotherapist to address the anger issues more adequately.

Considering his current level of functioning and that recently the treatment plan has included a new component, and his response the expectation is that any risk of re-offending would be minimal. On a more positive note, Dr. Haghir has remarkably good control of his affect even considering the recent stressors. The recommendation would be that he continue treatment with a psychiatrist who is sensitive to such sub-syndromal mood changes and behaviours. (Emphasis added) [ 36 ] Dr. Haghir’s psychologist also provided two letters: one dated January 23, 2015, and the other dated July 17, 2015.

The psychologist indicated the “working diagnosis” for psychotherapy was of an atypical anxiety disorder with compulsive behaviour, which is roughly captured in the DSM-5 diagnosis of kleptomania. His treatment involved psychodynamic and behaviour therapies. Dr. Haghir had not missed any appointments with his psychologist. [ 37 ] The director of the Physician Support Program testified with respect to her involvement in Dr. Haghir’s case.

It was her observation that relapses or reoccurrences of certain mental disorders are the norm rather than the exception and are to be expected from time to time. [ 38 ] The Appeal Board found Dr. Haghir had commenced the Neurology Program with a clear understanding that the continuation of his residency was conditional upon compliance with the agreement he had entered into with the College of Medicine. The Appeal Board concluded the attempted theft incident reflected “a previously recognized professional behaviour problem”. It concluded that while it was “sensitive” to the evidence that Dr.

Haghir was pursuing treatment and now doing well, the current medical evidence should not be considered within the parameters of the present appeal (appeal book at A33). Rather, the Appeal Board suggested that the new evidence could be used by Dr. Haghir to reapply for admission to the Neurology Program. [ 39 ] The Appeal Board’s analysis of whether the College of Medicine had failed to accommodate Dr. Haghir’s mental health disabilities is fairly brief: The Appeal Board has carefully considered the matter of any failure by the College to accommodate Dr. Haghir. Again, the Board turns to the agreement Dr.

Haghir made with the College when he entered the Program. Specifically, pursuant to the Accommodation Letter, Dr. Haghir specifically agreed there were “no further medical accommodations required.” Likewise, the Physician Support Program concluded that its services were no longer required and moved Dr. Haghir’s file to inactive by the end of 2010. Dr. Haghir did nothing to disabuse the College of the notion that it was doing everything it should be doing to accommodate Dr. Haghir. Even after the bookstore incident (which occurred in 2012), Dr.

Haghir made no efforts to claim that he suffers from a disability or to seek accommodation of any kind from the College. The Board notes Ms. Senger’s testimony that Dr. Haghir did not re-engage with Physician Support Services until April of 2013. Nor did Dr. Haghir enlist the services of DSS [Disabled Student Services] until this year. The Board recognizes that Dr. Haghir said he was unaware that DSS even existed, but the Policies plainly address a resident’s responsibility to engage DSS if they wish to register a disability and develop an accommodation plan. Dr.

Haghir ought to have been aware of the provisions of the Policies. Further, while the testimony of Jane Corcoran was helpful in providing information as to the services offered by DSS, the Board is uncertain as to what accommodations, if any, Dr. Haghir might have even considered seeking from the College. [ 40 ] The Appeal Board dismissed Dr. Haghir’s appeal. Dr. Haghir then applied to the Court of Queen’s Bench for judicial review of that decision. D. The Chambers Judge’s Decision [ 41 ] The Chambers judge identified reasonableness as the applicable standard of review.

The only portion of the Chambers judge’s decision at issue is his conclusion that the Appeal Board’s determination that the College of Medicine had appropriately accommodated Dr. Haghir’s mental health disability was a reasonable one. [ 42 ] The Chambers judge concluded that Dr. Haghir had never identified a mental health disability that required accommodation and that the College of Medicine could not accommodate a disability it did not know existed. The Chambers judge determined based on Dr. Bowen’s March 21, 2013, letter that Dr. Haghir’s issues had at least as much to do with Dr.

Haghir’s conduct as with the College of Medicine’s “putative failure to accommodate”. He held that even where a duty to accommodate exists, it is incumbent on the student or employee to assist and actively participate in the accommodation. The Chambers judge concluded Dr. Haghir had failed to do that. Moreover, under the accommodation agreement, Dr.

Haghir had specifically agreed that “no further medical accommodations” were required. [ 43 ] The Chambers judge thus determined: [87] The University Appeal Board reviewed the decision of the tribunal below and the evidence that had been considered with care and precision. Its decision to uphold the tribunal below was an available and acceptable alternative. The decision of the University Appeal Board regarding accommodation was reasonable.

[44] Dr. Haghir now appeals the Chambers judge’s decision to this Court. IV. Issues [45] In Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 43, [2003] 1 SCR 226 [Dr. Q], theSupreme Court of Canada described the role of an appellate court in a secondary appeal on judicial review as determining whether thereviewing judge chose the correct standard of review and applied it properly. Those are questions of law that must be answered correctlyby a reviewing judge.

If the reviewing judge erred in choosing or applying the correct standard of review, then it falls to this Court toassess the Appeal Board’s decision using the correct standard. [46] Dr. Haghir does not take issue with the standard of review identified by the Chambers judge being that of reasonableness. Hecontends, however, that the Chambers judge erred (

i) by finding as a fact that his conduct was unrelated to, or otherwise not attributableto, his mental disability, (ii) by concluding that merely imposing an accommodation agreement fulfilled the College of Medicine’s dutyto accommodate, and (iii) by finding an “accommodation agreement” could require someone with a disability to no longer exhibitsymptoms of that disability. [47] The issues as framed, however, do not readily lend themselves to an analysis of the primary question before this Court,namely, whether the Chambers judge correctly applied the standard of reasonableness to the Appeal Board’s decision regardingaccommodation. Accordingly, I would reframe the issues as follows: (

a) Did the Chambers judge correctly apply the standard of reasonableness to the Appeal Board’s decision? (

b) If the Chambers judge erred in his application of the reasonableness standard, was the Appeal Board’s decision nonethelessreasonable? V. Positions of the Parties A. Dr. Haghir [48] Dr. Haghir contends the College of Medicine knew prior to his admission to the Neurology Program that he suffered frommental health issues that manifested in criminal behaviour, namely, shoplifting. It is his position that knowledge was the underlyingreason for the February 2010 “accommodation agreement”. Dr.

Haghir argues he reasonably facilitated his accommodation and that anyfailure to follow his prescribed treatment was directly related to his mental health disability. He submits his position is supported by theJuly 2, 2013, letter from Dr. Senger, the director of the Physician Support Program, and by the academic medical journal articles filedwith the Appeal Board. [49] Dr. Haghir submits the Chambers judge erred when he concluded Dr. Haghir had not claimed to be suffering from a mentalhealth disability and when he determined Dr. Haghir’s recidivism – further thefts – were not attributable to his disability. Dr.

Haghirposits that the College of Medicine had the primary responsibility to accommodate his disability and that the accommodation agreementwas not sufficient to meet that responsibility as it effectively required him to no longer exhibit “symptoms of his disability”. [50] Dr. Haghir also contends that providing the original accommodation, which allowed him to enter the Neurology Program, didnot fulfill the College of Medicine’s duty to accommodate. Dr. Haghir argues the College of Medicine made no effort to ensure theaccommodation was being complied with or to keep abreast of his progress.

When advised of the Senate Hearing decision, the College ofMedicine did not look for any alternative to termination. Rather, it treated the accommodation agreement as a “last-chance agreement”. Itis Dr. Haghir’s position that agreements entered into between employees and employers cannot derogate from an employer’s obligationto comply with human rights legislation: McGill University Health Centre (Montreal General Hospital) v Syndicat des employés del’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161 [McGill]. [51] Dr.

Haghir further submits the College of Medicine had an ongoing duty to accommodate him despite his recidivism and thatit did not do so to the point of undue hardship as required by the law: British Columbia (Public Service Employee Relations Committee) vBCGSEU, (SCC), [1999] 3 SCR 3 [BCGSEU]. [52] Finally, Dr. Haghir contends it was not reasonable for the Appeal Board to find further accommodation would be of no value.To demonstrate this, he points to post-termination events and, in particular, new medication, which has significantly improved hiscondition. B.

The College of Medicine [53] The College of Medicine acknowledges the applicability of The Saskatchewan Human Rights Code, SS 1979, c S-24.1[Human Rights Code] (repealed), to its programs generally and its duty to accommodate students, faculty and staff with disabilities, butthe College of Medicine states it cannot accommodate a disability of which it was never aware. The College of Medicine contends Dr.Haghir never advised it that he was suffering from a mental health disorder nor did he request accommodation beyond what was set outin the February 9, 2010, accommodation letter.

It is the College of Medicine’s position that Dr. Haghir has never been diagnosed with aspecific mental health disorder. It points to Dr. Mela’s report as ruling out kleptomania. [54] The College of Medicine further submits the agreement between it and Dr. Haghir was not based on any mental healthdisability but rather on “[c]oncerns regarding Dr. Haghir’s ethical character and trustworthiness…after it was learned that Dr. Haghir didnot fully disclose prior convictions and a pending charge for shoplifting at the time he was interviewed for a position in their Neurology

Residency Training Program”. The accommodation letter itself makes no reference to any disability suffered by Dr. Haghir. Moreover,the College of Medicine asserts the Chambers judge, at paragraph 12 of his decision, determined as a matter of fact that theaccommodation plan and related undertakings were not entered into as a result of any specific disability suffered by Dr.

Haghir but ratherbecause of “behavioural challenges, and his failure to disclose his prior criminal behaviour to the persons in charge of the program”.Accordingly, the alleged disability was not the sole reason, or indeed even a reason at all, for the accommodation agreement and relatedundertakings. As the Chambers judge concluded, the College of Medicine fairly and reasonably determined Dr. Haghir had failed tocomply with the conditions of his admission to the Neurology Program and it was entitled to do so on the evidence before it. [55] The College of Medicine further contends Dr.

Haghir did not comply with the accommodation plan which underpinned hisadmission into the residency program. There was recidivism despite education and treatment, and there was evidence he had engaged inconduct contrary to the Criminal Code. [56] The College of Medicine submits accommodation is a two-way street that requires active participation by the individualseeking accommodation. It argues it was incumbent on Dr.

Haghir to make his needs known: Central Okanagan School District No. 23 vRenaud, (SCC), [1992] 2 SCR 970 [Renaud]; Complex Services Inc. v Ontario Public Service Employees Union, Local278, (Ont LA) at paras 86–89. [57] On the other hand, the College of Medicine contends it did everything required of it within the bounds of its knowledge.While the accommodation plan provided that the College of Medicine could obtain information, it was not obligated to do so as therewas no reasonable cause for concern.

The College of Medicine had no reason to believe there was a problem until it received notice ofthe Senate Hearing decision. In the circumstances, the College of Medicine contends it had met its obligations. [58] The College of Medicine further submits that any obligation to accommodate Dr. Haghir to the point of undue hardship mustbe balanced with its continued interest in ensuring the integrity of its programs, the safety of its patients and its professional standards.The College of Medicine argues, given Dr.

Haghir’s misconduct, his continued refusal to accept responsibility for the attempted theft atthe University bookstore and his failure to adhere to the accommodation plan, the point of undue hardship had been reached. [59] The College of Medicine also contends that the primary concern is not the attempted theft but rather Dr. Haghir’s failure toadhere to the terms of his treatment plan. It posits there is nothing to suggest such failure is the result of a disability. [60] Finally, it is the College of Medicine’s position that the onus rested with Dr.

Haghir as the person seeking accommodation tofacilitate the accommodation process. This required him to actively seek out accommodation, to work with the College of Medicine tofind suitable accommodation and to advise the College of Medicine if that accommodation was inadequate. Dr. Haghir did none of thosethings. VI. Preliminary Matter A. Did the Appeal Board err by refusing to consider post-event evidence? [61] Dr. Haghir filed additional evidence with the Appeal Board that was not before the AAB or the PGME Committee. Thisincluded Dr. Mela’s letter, the September 3, 2014, letter from his psychiatrist, Dr.

Bowen, and two letters dated January 23, 2015, andJuly 17, 2015, from his psychologist, Dr. Arnold. The admissibility of Dr. Mela’s letter is not in issue. It relates directly to events givingrise to Dr. Haghir’s admission into the Neurology Program. Dr. Haghir argues the letters from Dr. Bowen and his psychologistdemonstrate “further accommodation was necessary and that it would have been valuable”. In support of his position, Dr. Haghir citesthis Court’s decision in Mosaic Potash Esterhazy Limited Partnership v Unifor Local 892, 2016 SKCA 68, [2016] 6 WWR 820 [MosaicPotash].

He argues that case stands for the proposition that post-termination evidence can be used to find that an employer failed toaccommodate an employee. [62] The College of Medicine contends Dr. Bowen’s September 3, 2014, letter and the letters from Dr. Arnold relate to events thatoccurred after Dr.

Haghir’s dismissal from the program and accordingly the Appeal Board did not err in refusing to consider them. [63] The Supreme Court of Canada in Cie minière Québec Cartier v Quebec (Grievances arbitrator), (SCC),[1995] 2 SCR 1095 [Cartier], considered the circumstances under which subsequent-event evidence should be admitted. In that case, acompany had dismissed one of its employees because of a serious alcohol problem that had resulted in the employee repeatedly missingwork.

On a number of occasions, the company had reduced the sanctions levied against the employee in exchange for promises that hewould seek treatment. The employee never did so and the company dismissed him. The Union filed a grievance pursuant to the collectiveagreement. Post-dismissal and before the grievance was heard, the employee underwent treatment for his alcohol addiction. Thearbitrator found that while the company was justified in dismissing the employee, in light of the employee’s subsequent successfultreatment he should be reinstated. The Superior Court quashed the arbitrator’s decision.

The Court of Appeal allowed the appeal andrestored the arbitrator’s decision. The Supreme Court of Canada allowed the appeal. It found the arbitrator had exceeded his jurisdictionby relying on subsequent-event evidence to set aside the dismissal. Justice L’Heureux-Dubé, writing for the Court, stated: [13] This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in rulingon a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, butonly where it is relevant to the issue before him.

In other words, such evidence will only be admissible if it helps to shed light onthe reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once anarbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he cannot thenannul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair andequitable.

In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as groundsfor annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employeecould vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator. Furthermore,

it would lead to the absurd conclusion that a decision by the Company to dismiss an alcoholic employee could be overturnedwhenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitationwould never have occurred absent the decision to dismiss the employee. (Emphasis added) [64] The issue came before the Supreme Court again in Toronto (City) Board of Education v O.S.S.T.F., District 15, (SCC), [1997] 1 SCR 487 [Toronto (City) Board of Education].

In that case, a teacher had been dismissed for unprofessionalconduct, poor judgment and attitudes that indicated he was no longer capable of fulfilling his duties as a teacher. The dismissal arose as aresult of letters written by the teacher to the Board of Education that contained disturbing accusations and what could be perceived asveiled threats to the life of the Director of Education and others. A series of psychiatric assessments indicated the teacher did not sufferfrom mental illness but rather exhibited very bad judgment. The teacher grieved the board’s decision.

Before the hearings werescheduled to begin, the teacher wrote a third letter to the board exhibiting an “all-consuming bitterness”. The question was whether thearbitrator erred in admitting the third letter. Justice Cory, writing for a majority of the Supreme Court, stated: [74] It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal ofMr. Bhadauria. However it has been decided that such evidence can properly be considered “if it helps to shed light on thereasonableness and appropriateness of the dismissal”: Cie minière Québec Cartier v.

Quebec (Grievances Arbitrator), (SCC), [1995] 2 S.C.R. 1095, at p. 1101. In this case, it would not only have been reasonable for the arbitrators to consider the thirdletter, it was a serious error for them not to do so. [65] This statement has been viewed as changing the test originally set out by L’Heureux-Dubé J. in Cartier so that subsequent-event evidence will be admissible “if it helps to shed light on the reasonableness and appropriateness of the dismissal” in effecteliminating the time restriction mentioned in Cartier.

See, for example, the Queen’s Bench decision of Mosaic Potash Esterhazy LimitedPartnership v Unifor Local 892, 2015 SKQB 391 at paras 87–88, [2016] 6 WWR 780, which discusses cases relating to this issue. [66] In my view, Toronto (City) Board of Education did not change the test set out in Cartier. I say this for three reasons. First,Cory J.’s comments in Toronto (City) Board of Education were extremely brief consisting of three sentences in which he cited Cartier asauthority for allowing the letter in.

If the Supreme Court had intended to alter the principles set out in Cartier, it would have done so in amore fulsome fashion. [67] Second, the Cartier test was reaffirmed by the Supreme Court of Canada in a subsequent decision: Cabiakman v IndustrialAlliance Life Insurance Co., 2004 SCC 55 at para 67, [2004] 3 SCR 195 [Cabiakman]. [68] In Cabiakman, a sales manager for the Industrial Alliance Life Insurance Co. was suspended without pay after being arrestedand charged for attempting to extort money from a securities broker.

The manager sued the insurance company for wrongful dismissal.Some two years later, the manager was acquitted of the criminal charge after trial and the insurance company reinstated him. Inaddressing the admissibility of the subsequent acquittal, LeBel and Fish JJ., writing for a unanimous court, found the acquittal was notrelevant as the reasonableness of the suspension had to be considered at the time when the decision was made.

Citing Cartier, theystated: [67] … Facts subsequent to the employer’s decision may be admissible in evidence, however, if they are relevant and if they can beused to determine whether the employer’s decision was justified at the time it was made. … [69] Third, the Supreme Court of Canada has never cited Toronto (City) Board of Education as authority for the principlegoverning the admission of subsequent-event evidence in the administrative context.

It has only cited Cartier. [70] The issue of the admissibility of subsequent-event evidence in an administrative context came before this Court in MosaicPotash where an employee had been dismissed for cause after failing his third substance test by testing positive for alcohol andcannabinoid. The employee, who had been diagnosed with a substance abuse disorder, worked in a “safety-sensitive” position. He hadattended treatment twice but had not been completely successful in overcoming his addiction. The employer’s fit for duty programidentified substance dependency as a disability under the Human Rights Code.

The employee grieved his dismissal claiming he wasterminated because of his disability. [71] Following termination, the employee continued his efforts at sobriety by attending counselling and passed three randomalcohol and drug tests. The arbitrator rejected the employer’s argument that, in accordance with Cartier, the post-termination evidencewas inadmissible. The arbitrator determined the evidence was relevant to the issue of whether the employee’s disability had beenproperly accommodated to the point of undue hardship.

She distinguished Cartier, finding it was limited to the question of whether therewas sufficient cause for dismissal and not to the question of the duty to accommodate. The arbitrator found the employer had notaccommodated the employee short of undue hardship and reinstated him. [72] The Court of Queen’s Bench upheld the arbitrator’s decision. It found the arbitrator was correct in distinguishing Cartier.

TheChambers judge also observed that the jurisdiction the arbitrator was afforded under The Saskatchewan Employment Act, SS 2013, c S-15.1, permitted her to consider a lesser penalty, which was a significant distinguishing factor from Cartier. The Chambers judge thusconcluded the arbitrator’s decision was justified, transparent and intelligible and the outcome of her decision fell within the range ofacceptable outcomes. [73] The appeal to this Court was dismissed. In rendering its oral decision, this Court did not address the admissibility ofsubsequent-event evidence.

Rather, the appeal was determined on the basis the Chambers judge had correctly identified and applied thereasonableness standard of review in that the arbitrator’s decision was justifiable, transparent and intelligible and fell within the range ofacceptable outcomes: [26] The Chambers judge found the arbitrator was correct when she observed the Cartier decision was not made in the context of anarbitrator measuring the extent to which an employee’s disability was being accommodated. The arbitrator’s use of the post-termination

evidence was in the context of analysing the appellant’s duty to accommodate. The Chambers judge ultimately concluded the arbitrator’s decision was justified, transparent and intelligible and the outcome of her decision fell within the range of acceptable outcomes. We agree with the conclusion of the Chambers judge.

This conclusion disposes of the appellant’s argument the arbitrator failed to apply the doctrine of stare decisis and follow Cartier , and also whether the issue engaged the standard of review of reasonableness. [ 74 ] While the Appeal Board’s powers in this case, which are set out in the Procedures for Student Appeals in Academic Matters, include a provision that it is not bound to observe “strict legal procedures or rules of evidence”, procedural fairness would still require the Appeal Board to consider all relevant evidence. [ 75 ] In my view, whether subsequent-event evidence is admissible in the administrative context must be determined on a case-by- case basis.

This is so because admission depends on a number of factors including but not limited to the issues at play, the nature of the evidence and the administrative tribunal’s authority, including its authority to accept evidence and craft alternative remedies. [ 76 ] While Dr. Haghir described the evidence in issue here as relating to accommodation, it really bears on treatment options pursued by him post-dismissal. While not relevant to the reasons for his dismissal, it could be relevant to the issue of alternative lesser remedies. Its admission, however, falls within the purview of the Appeal Board.

The Appeal Board gave reasons for its refusal to accept the evidence. Its decision was justifiable, transparent and intelligible, and fell within the range of possible acceptable outcomes, which are defensible in respect of the facts and the law. Accordingly, this Court should not interfere with that decision. VII. Analysis A. Did the Chambers judge correctly apply the standard of reasonableness to the Appeal Board’s decision? [ 77 ] Key to an analysis of the Chambers judge’s application of the reasonableness standard is the law relating to accommodation. 1.

The Law of Accommodation [ 78 ] The purpose of human rights legislation is to prevent and remedy discrimination: Council of Canadians with Disabilities v VIA Rail Canada Inc. , 2007 SCC 15 , [2007] 1 SCR 650 [ VIA Rail ]. [ 79 ] A duty to accommodate arises when an employer seeks to apply a standard that is prejudicial to an employee on the basis of specific characteristics that are protected by human rights legislation: McGill at para 11 . [ 80 ] Sections 13 and 16 of the Human Rights Code apply to Dr.

Haghir, who is not only a student at the College of Medicine, but a resident doctor, and, therefore, an employee. The portions of those sections relevant to this appeal read as follows: 13

(1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination on the basis of a prohibited ground other than age. ... 16

(1) No employer shall refuse to employ or continue to employ or otherwise discriminate against any person or class of persons with respect to employment, or any term of employment, on the basis of a prohibited ground. ...

(3.1) No employer shall use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against any person or class of persons seeking employment on the basis of a prohibited ground. Both sections forbid discrimination on the basis of a “prohibited ground” other than age. [ 81 ] Pursuant to s. 2(m.01) of the Human Rights Code , a “prohibited ground” is defined as including a “disability” and pursuant to s. 2(d.1)(ii)(

C) a “disability” is defined to include “a mental disorder”. [ 82 ]

Section 2(i.1) defines a “mental disorder” as: (i.1) ... a disorder of thought, perception, feelings or behaviour that impairs a person’s : (

i) judgment ; (ii) capacity to recognize reality; (iii) ability to associate with others; or (iv) ability to meet the ordinary demands of life; (Emphasis added) [ 83 ] There is a Code of Professional Conduct for doctors, which requires them to practice with honesty and integrity. Dr. Haghir had been convicted of shoplifting prior to his admission into the Neurology Program. When interviewed by the College of Medicine, Dr. Haghir did not disclose his past criminal conduct. His failure to do so raised concerns with respect to his ethical character and

trustworthiness. Dr. Haghir contends his shoplifting is a result of a mental disorder. In effect, he is alleging he is unable to meet thestandard of honesty and integrity required by his profession because of that disorder. It is for that reason he required accommodation. [84] Human rights legislation requires an employer to make “every possible accommodation short of undue hardship”: VIA Rail atpara 129; Central Alberta Dairy Pool v Alberta (Human Rights Commission), (SCC), [1990] 2 SCR 489 at 520;BCGSEU at para 55.

Thus, the duty to accommodate is an ongoing one to the point of undue hardship. [85] In VIA Rail, Abella J. described what amounts to undue hardship: [130] The jurisprudence of this Court reveals that undue hardship can be established where a standard or barrier is “reasonablynecessary” insofar as there is a “sufficient risk” that a legitimate objective like safety would be threatened enough to warrant themaintenance of the discriminatory standard (Ontario Human Rights Commission v.

Borough of Etobicoke, (SCC),[1982] 1 S.C.R. 202); where “such steps as may be reasonable to accommodate without undue interference in the operation of theemployer’s business and without undue expense to the employer” have been taken (Ontario Human Rights Commission v. Simpsons-Sears Ltd., (SCC), [1985] 2 S.C.R. 536, at p. 555); where no reasonable alternatives are available (Central OkanaganSchool District No. 23 v.

Renaud, (SCC), [1992] 2 S.C.R. 970); where only “reasonable limits” are imposed on theexercise of a right (Eldridge, at para. 79); and, more recently, where an employer or service provider shows “that it could not have doneanything else reasonable or practical to avoid the negative impact on the individual” (Meiorin, at para. 38).

The point of unduehardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable optionsfor accommodation remain. (Emphasis added) [86] As stated by Sopinka J. in Renaud at 984: … More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that somehardship is acceptable; it is only “undue” hardship that satisfies this test. The extent to which the discriminator must go toaccommodate is limited by the words “reasonable” and “short of undue hardship”.

These are not independent criteria but are alternateways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances ofthe case. Wilson J., in Central Alberta Dairy Pool, at p. 521, listed factors that could be relevant to an appraisal of what amount ofhardship was undue as: ... financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force andfacilities.

The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease withwhich the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and theidentity of those who bear it are relevant considerations.

She went on to explain at p. 521 that “[t]his list is not intended to be exhaustive and the results which will obtain from a balancing ofthese factors against the right of the employee to be free from discrimination will necessarily vary from case to case”. (Emphasis added) [87] An employer cannot contract out of the duty to accommodate: Insurance Corporation of British Columbia v Heerspink, (SCC), [1982] 2 SCR 145 at 158; McGill at para 21; Ontario Human Rights Commission v Etobicoke, (SCC),[1982] 1 SCR 202 at 213.

As this Court stated in Mosaic Potash, at paragraph 29, so-called last-chance agreements are of limited effectif they derogate from an employer’s duty to accommodate pursuant to human rights legislation. See also: Donald J.M. Brown & DavidM. Beatty, Canadian Labour Arbitration, loose-leaf (Rel 69, November 2018) 4th ed, vol 1 (Toronto: Thomson Reuters, 2017) at 2-143,s 2:3232. [88] Accommodation is a multi-party endeavour. Both the employer and the employee have a duty to assist in securing anappropriate accommodation and in carrying it out.

Though, as pointed out by Sopinka J. in Renaud at 994, “the employer is in the bestposition to determine how the complainant can be accommodated without undue interference in the operation of the employer’sbusiness”. [89] One aspect of an employee’s responsibility is informing the employer that he or she has a disability requiring accommodation.As stated by the Tribunal in Rogers Cable and Unifor, Local 875 (Hogan), Re (2015), 250 LAC (4th) 329 (WL) at para 67, even if this isnot done, the duty to accommodate may arise if the employer knows or should have known that the employee requires accommodation. [90] That an employee’s conduct is relevant to the analysis of whether an employer has provided adequate accommodation is clearfrom the case law.

In Renaud, Sopinka J., writing for the Supreme Court of Canada, discussed an employee’s duty with respect toaccommodation at pages 994–995 in these terms: This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has aduty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position todetermine how the complainant can be accommodated without undue interference in the operation of the employer’s business.

When anemployer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainanthas a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainantcauses the proposal to founder, the complainant will be dismissed. The other aspect of this duty is the obligation to acceptreasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfectsolution.

If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged. (Emphasis added) [91] With these legal principles in mind, I turn to assess whether the Chambers judge correctly applied the standard of

reasonableness to the Appeal Board’s decision. 2.

Application of the Standard of Reasonableness [92] In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], the Supreme Court of Canada described thereasonableness standard applicable to judicial review of an administrative decision as follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the rangeof acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make adecision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonablenessis concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But itis also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of thefacts and law. (Emphasis added) [93] In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR708, Abella J., writing for the Court, elaborated on the principles set out in Dunsmuir: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alonebasis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons anda separate one for the result (Donald J.

M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf),at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve thepurpose of showing whether the result falls within a range of possible outcomes.

This, it seems to me, is what the Court wassaying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to theprocess of articulating the reasons and to outcomes” (para. 47). (Emphasis added) [94] More recently, in Canada (Attorney General) v Igloo Vikski Inc., 2016 SCC 38 , 2016 2 SCR 80, [2016] 2 SCR 80,Brown J., writing for a majority of the Court, described a review based on the reasonableness standard in these terms: [18] Reasonableness review is concerned with the reasonableness of the substantive outcome of the decision, and with the process ofarticulating that outcome.

The reasoning must exhibit “justifi​cation, transparency and intelligibility within the decision-making process”:Dunsmuir v. New Bruns​wick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The substantive outcome and the reasons, consid​eredtogether, must serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and LabradorNurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14.

While the adequacy ofa tribunal’s reasons is not on its own a discrete basis for judicial review, the reasons should “adequately explain the bases of [the]decision”: Newfoundland Nurses, at para. 18, quoting from Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56,[2011] 2 F.C.R. 221, at para. 163 (per Evans J.A., dissenting), rev’d 2011 SCC 57, [2011] 3 S.C.R. 572. [95] A judge, in conducting a reasonableness review should not reassess the evidence, make findings of fact or draw inferencesfrom the evidence.

That is the role of the tribunal: Stewart v Elk Valley Coal Corp., 2017 SCC 30 at para 41, [2017] 1 SCR 591 [ElkValley]; Dr. Q at para 41. As Jackson J.A. of this Court stated in SGEU v Saskatchewan (Environment), 2018 SKCA 48 at para 110, 292LAC (4th) 337 [SGEU v Saskatchewan]: [110] Elk Valley SCC is squarely on point.

After determining that reasonableness was the standard of review to apply, and consideringboth Dunsmuir and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para16, [2011] 3 SCR 708, the majority made it clear that “the role of reviewing courts is to determine whether a tribunal’s decisionfalls within a range of acceptable outcomes, not to reassess the evidence” (Elk Valley SCC at para 41): an appellate court is notentitled to view the evidence differently and draw its own factual inferences. (Emphasis added) [96] In my respectful view, the Chambers judge erred in his application of the reasonableness standard to the Appeal Board’sdecision in three ways. [97] First, to determine whether the Appeal Board’s decision was reasonable, it was necessary for the Chambers judge to examinehow the Appeal Board had reached its conclusion.

It is clear from the Appeal Board’s decision that it did not consider the law withrespect to accommodation in arriving at its decision. The Chambers judge overlooked that omission and, in doing so, misapplied thestandard of reasonableness as described in Dunsmuir. [98] Second, the Chambers judge upheld the Appeal Board’s decision by applying the law of accommodation. In doing so, heerred in the application of the law and, contrary to the Supreme Court of Canada’s dictum in Elk Valley, reassessed the evidence makingkey findings of fact that were not made by the Appeal Board, the AAB or the PGME Committee.

For example, at paragraph 12, theChambers judge found Dr. Haghir’s “behavioural challenges, and his failure to disclose his prior criminal behaviour to the persons incharge of the program, resulted in Dr. Haghir’s admission to the respondent’s neurology program being subject to conditions.” Further,at paragraph 84 of his decision, the Chambers judge found Dr. Haghir’s ongoing issues had “at least as much to do” with Dr. Haghir’sconduct as with the College of Medicine’s putative failure to accommodate.

In other words, the Chambers judge did not view Dr.Haghir’s agreement with the College of Medicine as an accommodation relating to a mental disability but, rather, a conditionaladmittance into the Neurology Program due to “behavioural challenges”.

[99] Finally, the Chambers judge also erred by failing to recognize that material admissible evidence was overlooked, disregardedor misinterpreted by the Appeal Board. [100] Let me elaborate further. [101] The conduct of Dr. Haghir identified by the Appeal Board at pages 19–20 of its decision as justifying termination was: (

a) that “even after” the bookstore incident, Dr. Haghir made no effort to claim he suffered from a disability or to seekaccommodation of any kind from the College of Medicine; (

b) that Dr. Haghir did nothing to disabuse the College of Medicine of the notion it was doing everything it should toaccommodate him; (

c) that Dr. Haghir did not re-engage with Physician Support Services, despite his recidivism, until April 2013; and (

d) that Dr. Haghir did not enlist the services of Disabled Student Services [DSS] until 2015. [102] There was evidence that Dr. Haghir had claimed to be suffering from a mental disability before the bookstore incident. Thus, toarrive at the conclusion that “[e]ven after the bookstore incident (which occurred in 2012), Dr. Haghir made no efforts to claim that hesuffers from a disability or to seek accommodation of any kind from the College” (emphasis added), the Appeal Board had to haveoverlooked or disregarded Dr. Mela’s independent psychiatric assessment; Dr.

Bowen’s March 21, 2013, letter; the June 25, 2009,undertaking given to the College of Physicians and Surgeons; the January 22, 2010, agreement with the Regional Health Authority; andthe February 9, 2010, accommodation agreement between Dr. Haghir and the College of Medicine. That evidence speaks to a mentaldisorder that affects Dr. Haghir’s thoughts, perceptions, feelings or behaviours and impairs his judgment, which is the very definition ofwhat constitutes a mental disorder under the Human Rights Code.

Neither the Appeal Board nor the Chambers judge considered whatconstitutes a mental disorder under the Human Rights Code and, in my view, that failure tainted their decisions. [103] Further, neither the Appeal Board nor the Chambers judge considered whether the College of Medicine was aware, or ought tohave been aware, of Dr. Haghir’s disorder from sources other than Dr. Haghir such as the College of Physicians and Surgeons or fromDr. Mela’s report.

This is of some importance to the reasonableness of the Appeal Board’s decision. [104] In Wall v Lippé Group, 2008 HRTO 50 , an employee suffered from “acute situational reaction with depression andanxiety”. The employee did not advise her employer of that diagnosis, but the employer was aware of her symptoms and the traumaticworkplace events that had given rise to them.

The Tribunal held, at paragraph 80 of its decision, that if that was not sufficient to put theemployer on actual notice that the employee was suffering from a disability, “at the very least, it placed on them the onus to inquirefurther and precluded any defence based on ignorance” of the employee’s condition. Here there was evidence the College of Medicinewas or should have been aware of that Dr. Haghir suffered from a mental disability, including Dr. Mela’s and Dr. Bowen’s reports. [105] Moreover, both the Appeal Board and the Chambers judge overlooked or disregarded evidence relating to Dr. Haghir’srecidivism.

There is no question that Dr. Haghir did not advise the College of Medicine he had been accused of attempted theft from theUniversity bookstore. The College of Medicine became aware of that when it received a copy of the Senate Hearing decision. However,the fact Dr. Haghir had experienced recidivism does not necessarily mean the College of Medicine’s duty to accommodate him had beenmet. Recidivism was a risk identified by both Dr. Mela and Dr. Bowen. [106] In his August 11, 2009, report at page 7, Dr. Mela opined that Dr.

Haghir’s risk for shoplifting was moderate to high but,considering other factors, was reduced to a low risk. In his March 21, 2013, letter, Dr. Bowen wrote “it would be difficult to predict therisk of reoccurrence of theft”. [107] The Appeal Board’s conclusion that Dr. Haghir did nothing to disabuse the College of Medicine of the notion it was doingeverything it should to accommodate him is not controverted. However, it is Dr. Haghir’s position that his recidivism is part of hisdisability. What Dr.

Haghir was seeking from the College of Medicine was a continuation of the accommodation already in place, thoughhe was open to any reasonable changes to that accommodation that the College of Medicine might suggest. Thus, the question for theAppeal Board was whether the College of Medicine had fulfilled its duty to accommodate. This would require the Appeal Board toconsider whether Dr. Haghir’s relapse justified his termination, or whether the College of Medicine had a duty to accommodate himfurther. [108] Dr. Haghir’s situation is comparable to employees who suffer from drug or alcohol dependency.

It is unrealistic to expect suchindividuals will never suffer a relapse. Accommodation may require allowances for relapse. That is not to say relapse can never justifytermination. Context is important. An employee has a responsibility to pursue treatment and improve his or her condition. Failure toaccept or adopt medical advice or a lack of motivation to overcome a disability may justify termination.

As stated by the Human RightsTribunal in Uniroyal Goodrich Canada Inc. v U.S.W.A., Local 677, (ON LA), 79 LAC (4th) 129 (WL), “[n]oemployer should be expected to retain an employee who unreasonably refuses or rejects an opportunity to improve his/her condition”.The test is reasonableness. The duty to accommodate requires an employer to take reasonable measures short of undue hardship. It alsorequires the employee to take reasonable steps to carry out the accommodation. The Appeal Board did not consider whether the Collegeof Medicine had met its duty to accommodate, rather it focused on Dr. Haghir’s conduct.

The Chambers judge overlooked that in theface of evidence to the effect Dr. Haghir’s conduct was caused or influenced by his mental disorder. Both Dr. Mela’s report and Dr.Bowen’s March 21, 2013, letter addressed the risk of recidivism – that is that Dr. Haghir would commit further thefts. Dr. Haghir’sfailure to take his medication as prescribed was linked to his disorder by the evidence of Dr. Senger who testified that physicians withmental health disorders often go off their medication. Dr. Haghir also addressed that issue by filing academic articles from medicaljournals.

All of that evidence needed to be weighed and findings of fact made with respect to what, if any, impact Dr. Haghir’s mentaldisorder had on his failure to follow the accommodation plan. The Appeal Board overlooked that evidence and the Chambers judge erredin finding the Appeal Board’s decision was nonetheless reasonable. [109] Further, in my view, the Chambers judge erred by endorsing the Appeal Board’s approach to the February 9, 2010,

accommodation agreement. The Appeal Board treated that agreement as if it were a “last-chance agreement” – that is, that Dr. Haghir’s failure to comply with its provisions justified his termination. As this Court stated in Mosaic Potash , at para 29 , so-called last-chance agreements are of limited effect if they derogate from an employer’s duty to accommodate pursuant to human rights legislation. Regardless of what the College of Medicine and Dr. Haghir had agreed to, it was incumbent upon the Appeal Board to determine whether the College of Medicine had met its statutory duty to reasonably accommodate Dr.

Haghir’s mental disability short of undue hardship. The Appeal Board did not consider that issue. In my view, the Chambers judge failed in his application of the reasonableness standard by overlooking that failure. [ 110 ] The Chambers judge also overlooked the Appeal Board’s failure to analyze the effect of Dr. Haghir’s conduct on the College of Medicine’s duty to accommodate. The Appeal Board viewed Dr. Haghir’s conduct in isolation, separate and apart from the College of Medicine’s duty to accommodate.

While the Chambers judge, at paragraph 85 of his decision, made passing reference to the College of Medicine’s legal duty to accommodate Dr. Haghir, he did not consider whether that requirement impacted the reasonableness of the Appeal Board’s decision. [ 111 ] Finally, the Chambers judge endorsed the Appeal Board’s conclusion that Dr. Haghir’s failure to enlist DSS justified his termination. That conclusion disregards the terms of the accommodation agreement in which Dr. Haghir agreed to engage Physician Support Services and “avail himself” of its support.

The accommodation agreement did not require the involvement of DSS. Moreover, the Appeal Board stated that “while the testimony of Jane Corcoran was helpful in providing information as to the services offered by DSS, the Board is uncertain as to what accommodations, if any, Dr. Haghir might have even considered seeking from the College.” In other words, the Appeal Board found DSS would not have been of assistance. [ 112 ] For the reasons outlined herein, in my view, the Chambers judge erred in his application of the reasonableness standard by overlooking obvious errors in the Appeal Board’s decision. B.

Further arguments made by the College of Medicine in support of the Chambers judge’s decision [ 113 ] While not part of the Chambers judge’s decision, the College of Medicine raised a number of additional grounds for upholding that decision. [ 114 ] The College of Medicine contends the agreement between it and Dr. Haghir was not based on any mental health disability but rather on “[c]oncerns regarding Dr.

Haghir’s ethical character and trustworthiness”. [ 115 ] While the accommodation agreement makes no reference to a mental health disability, it is implicit from reading that document as a whole, which incorporated the undertaking given to the College of Physicians and Surgeons, that a mental health disorder underpinned the accommodation. It is also obvious from the circumstances that led to the making of the accommodation, the undertaking and the agreement with the Regional Health Authority. Why else would Dr. Haghir be required to undergo psychiatric treatment?

The accommodation agreement itself provided for communication between Dr. Haghir’s psychiatrist and the manager of Health and Wellness as to Dr. Haghir’s ongoing progress and treatment – something that would be totally unnecessary if there was no underlying mental health issue. The fact the College of Medicine was concerned about Dr. Haghir’s ethical character and trustworthiness (something confirmed by Dr. Mela’s report) is not incompatible with the existence of a mental health disorder that triggers Dr.

Haghir’s criminal activity, nor is it incompatible with the suggestion that the accommodation agreement was entered into to address a mental health disorder. [ 116 ] The College of Medicine argues Dr. Haghir’s situation is similar to that in the University of Saskatchewan v Saskatchewan Human Rights Commission , 2014 SKQB 248 , [2014] 10 WWR 753, in that it is difficult to see how additional accommodation of Dr. Haghir would be of assistance. [ 117 ] In my view, this argument misses the point. Dr.

Haghir’s position was not that the College of Medicine should have done something different but rather that it should have continued to accommodate him despite his recidivism because that recidivism was part and parcel of his disability. [ 118 ] The College of Medicine submits its obligation to accommodate Dr. Haghir must be balanced against the College of Medicine’s need to ensure the integrity of its programs, the safety of its patients and its professional standards. The College of Medicine posits that, given Dr.

Haghir’s misconduct, his continued refusal to accept responsibility for the attempted theft from the University bookstore and his failure to adhere to the accommodation plan, the point of undue hardship had been reached by the College of Medicine. [ 119 ] The onus of establishing undue hardship rests with the College of Medicine. There was no evidence before the Appeal Board that the College of Medicine’s accommodation of Dr. Haghir affected the integrity of its programs or the safety of its patients. As already stated, Dr.

Haghir’s failure to adhere to the accommodation plan is relevant to an assessment of whether the College of Medicine had fulfilled its duty. The basis upon which Dr. Haghir’s conduct with respect to the accommodation agreement must be assessed is reasonableness. Was it reasonable to expect Dr. Haghir might experience recidivism? Was it reasonable that Dr. Haghir might discontinue his medication? Was it reasonable that Dr. Haghir might miss appointments with his psychiatrist? Was it reasonable for Dr. Haghir to fail to advise the program director about the deterioration in his progress? The reasonableness of Dr.

Haghir’s conduct must be examined against the backdrop of his disability. Did the College of Medicine reasonably accommodate Dr. Haghir to the point of undue hardship? Was it relieved from that duty by Dr. Haghir’s conduct? These are questions the Appeal Board might reasonably have considered to arrive at its decision. They cannot, however, be said to support the Chambers judge’s decision. [ 120 ] Finally, the College of Medicine contends the accommodation agreement was not imposed on Dr. Haghir but rather was agreed to by him.

While that may be true, as pointed out earlier in these reasons, an employer cannot contract out of its statutory duty to accommodate. Whether Dr. Haghir agreed to the accommodation is not determinative of the question of whether the College of Medicine had met its duty to accommodate.

C. Was the Appeal Board’s decision reasonable? [ 121 ] As the Chambers judge erred in his application of the reasonableness standard, it falls to this Court to assess whether the Appeal Board’s decision was reasonable: Dr. Q at para 43 . To do so it is necessary to consider the law of accommodation as it relates to mental health disorders. [ 122 ] That Dr. Haghir had a mental health disorder is clear from the medical evidence and from the undertaking and the accommodation agreement. The College of Medicine offered Dr. Haghir an accommodation.

That accommodation had to have related to a mental health issue as it adopted by reference the undertaking to the College of Physicians and Surgeons, which included a requirement that Dr. Haghir would continue psychiatric treatment. Such treatment would only be necessary if there was a mental health issue. Moreover, the undertaking to the College of Physicians and Surgeons accorded with the recommendations of Dr. Mela. Dr. Mela had identified Dr. Haghir as suffering from mental health disorders, which triggered his shoplifting. Further, Dr. Haghir’s own psychiatrist, Dr. Bowen, was treating him for disorders.

This was not a situation where the Appeal Board had to determine whether an accommodation should be made. The College of Medicine had already made that determination and an accommodation was granted. The issue for the Appeal Board was whether the College of Medicine had fulfilled its duty to accommodate in light of Dr. Haghir’s conduct. [ 123 ] In my view, the Appeal Board did not address the key issue before it. It did not consider the law of accommodation in arriving at its decision and overlooked or disregarded material evidence. The Appeal Board focused on the February 9, 2010, accommodation agreement and Dr.

Haghir’s failure to comply with the terms of that agreement. While both those matters are factors to be considered in determining whether the College of Medicine had fulfilled its duty to accommodate, they are not the only factors to be addressed. In the circumstances, the Appeal Board’s reasons are not justifiable, transparent or intelligible and thus its decision is not reasonable. How the Appeal Board might have decided this matter if it had considered the law of accommodation or all the relevant evidence before it is unknown. Thus, the matter must be remitted back to the Appeal Board for determination.

Accordingly, the appeal must be allowed. VIII. Conclusion [ 124 ] The Chambers judge erred in his application of the reasonableness standard by failing to recognize the Appeal Board had not considered the law of accommodation in arriving at its decision and had overlooked or disregarded material evidence of Dr. Haghir’s mental health disorder.

He also erred by making findings of fact that were not within his purview to make and in his application of the law of accommodation. [ 125 ] In my view, the Appeal Board’s decision was not reasonable as it did not consider the law of accommodation and overlooked relevant evidence. Its reasons were thus not justifiable, transparent or intelligible and its decision was unreasonable. [ 126 ] The appeal is allowed, and the matter is remitted to the Appeal Board for rehearing. [ 127 ] Dr. Haghir shall have his costs of this appeal assessed in the usual way. “Ryan-Froslie J.A.” Ryan-Froslie J.A.

I concur. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” for Whitmore J.A.