Canada is in the midst of a mental health crisis.

Since 2012, the number of Canadians with symptoms of depression climbed by more than 60 per cent, and those with anxiety disorders more than doubled.

Any number of reasons could be cited. As we see it, the factors topping the list would be pressures related to Canada’s stagnant economy, skyrocketing household debt, the rising cost of living and the after-effects of the pandemic.

The survey also suggests that those hardest hit by mental health issues are working Canadians in their early and prime working years. The crisis’ continuation will have a deleterious impact on Canada’s economy, with some estimates reaching as high as $50 billion each year.

Employers face other issues, such as assessing the potential damages which could result from dismissing an employee suffering from poor mental health.

Illegal to discriminate

More specifically, federal and provincial human rights laws make it illegal to discriminate on the basis of a worker’s mental health status. Likewise, many workplace human rights complaints involve employee allegations that the employer’s decision to terminate resulted from a request for accommodation or the disclosure of their health status.

Prior to the accident and disclosure of his health status, the employee was performing poorly and receiving regular coaching. While the employer did not document its ongoing performance concerns and efforts to correct them, it decided to terminate him based solely upon the poor performance and did so shortly following the accident.

Following his dismissal, the ex-employee claimed he had been discriminated against on the basis of his mental health status and made a complaint to the tribunal. The tribunal determined that the dismissal amounted to a violation of the code and ordered the employer to pay $80,000 in lost wages and general damages. A hefty sum for an employee of only six months, all plagued by performance issues.

The tribunal particularly noted the employer’s failure to properly document the alleged performance concerns and found that the timing of the termination, shortly following the accident, pointed to the disclosure of a mental health issue playing a part in the employer’s decision. And in human rights law, discriminatory conduct need only be one small part of the employer’s decision-making process to be illegal, this based on the assumption that the employer will never admit its discriminatory motive.