Written with the assistance of Justin Vessair,
Student-at-Law, McMillan LLP
"It wounds a man less to confess that he has failed in any
pursuit through idleness, neglect, the love of pleasure, etc.,
etc., which are his own faults, than through incapacity and
unfitness, which are the faults of his nature."
Self-regulating professions in Canada demand exacting standards
of their members. The pressure to comply is significant as failure
to do so can lead to disciplinary action and losing one's
license to practice. What then does a professional do when they
begin to question their own capacity to meet these demands due to
the onset or progression of a physical or mental illness, or
substance use that has gotten out of control? In such an
environment, it is unsurprisingly rare to hear of individuals
self-reporting mental issues, addictions or other potential issues
that can give rise to incapacity. Further, professionals tend to be
proud of their membership in their profession, who, like Lord
Melbourne, are loathe to report their own failures and deficiencies
that threaten to tear them away from their chosen pursuit.
Admitting that mental illness or addiction has affected a
person's ability to perform as a professional is a source of
deep embarrassment; a stigma both personal and professional
surrounds admissions of incapacity.
Understanding incapacity in the professions, the misguided
stigma that surrounds it, and how different professions have chosen
to deal with the problem, is essential in developing an informed
means of protecting the profession, the public, and the individual
suffering from incapacitating issues. The focus will be on Ontario
professional regulators and case law, but the conclusions are
largely applicable to all professional regulators in Canada.
There are generally three paths by which a regulator can deal
with the failure to maintain the standards exigent on a
professional: (i) discipline; (ii) incompetence; and (iii)
incapacity. However, not all professions deem there to be a
difference procedurally between incapacity and incompetence, and,
albeit rarely, some deal with all three under the rubric of
discipline. In general, issues pertaining to professional
negligence are not in the jurisdiction of the regulator, although
there is often overlap between professional misconduct and
negligence issues – the latter being a matter to be
determined by civil legal remedies by the party affected by the
professional negligence. Similarly, there is often overlap between
discipline issues and issues of incompetence or incapacity.
Dismissing an employee is never an easy exercise for an employer and all too often employers dismiss employees without fully appreciating the obligations and liabilities associated with their decision.
In August of 2013 CCP wrote this article about Jan Wong, a long-time writer for the Globe and Mail, who was ordered to repay the money she received in a settlement with the Newspaper after she lost her job.
An employer's duty to accommodate is a difficult concept to master. A recent decision from Alberta, Horvath v. Rocky View School Div. No. 41, notes the significance of the employer's response in the accommodation process.
When a worker still has functional limitations following an employment injury, an evaluation process of the pre-injury position is performed by the Commission de la santé et de la sécurité au travail in concert with the employer.