Year of decision: 2010
In a decision on June 16, 2010, the Human Rights Tribunal of Ontario found that the Toronto Police Services Board discriminated against a new recruit, Ariyeh Krieger, by not accommodating his mental disability to the point of undue hardship.
Constable Krieger, who worked for the Toronto Police Service (TPS) for five months, was involved in a traumatic incident - a struggle with a suspect who was carrying a handgun. Shortly after this, he began experiencing symptoms of post-traumatic stress disorder (PTSD). His disability led to a second incident, in which he over-reacted to a patron at a restaurant, whom he incorrectly perceived to be a threat.
During and after the restaurant incident, Constable Krieger acted in a way that led his supervisors to believe he could be experiencing post-traumatic stress disorder. However, his supervisors did not appropriately accommodate him by offering assistance or suggesting that he seek help or take time off. Instead, he was suspended as “unfit for duty” and investigated for misconduct. Eventually, medical documentation of his disability came to light during the labour relations process. However, this did not spur the TPS to accommodate him by re-considering whether the conduct leading to his suspension was related to a disability. Instead, Constable Krieger was fired.
The Tribunal decision affirms both the procedural and substantive duty of an employer to accommodate a person’s mental health disability, even when that person is not capable of expressing that they need help or accommodation. The Tribunal found that Constable Krieger was unable to recognize the symptoms of PTSD, and appeared unaware that he was experiencing a mental health disability until the night that he was suspended, even though he was clearly unwell.
The decision also affirms that where a mental health disability is known or suspected, employers should find out if improper conduct is related to the disability, and should offer accommodation before imposing discipline or sanctions.
The decision refers to the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate, which states that some mental illnesses may render employees incapable of identifying their needs. This Policy also states that perception of a disability will trigger the protection of the Ontario Human Rights Code. Mental health disabilities should be addressed and accommodated in the workplace like any other disability.
As a result of this decision, the Tribunal ordered the TPS to reinstate Mr. Krieger into his former position. The Toronto Police Services Board will also develop an accommodation policy for police officers who have disabilities, which is consistent with the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.