By: Flora Stevenson

Sometimes, a resignation isn’t as straightforward as it looks. A person may be in real distress — overwhelmed, confused, or unable to cope — and suddenly leave a job they’ve held for years. On paper it looks like a simple resignation. In reality, it may signal a mental health crisis.

A recent Alberta Human Rights Tribunal decision, Volpi v Lifemark Health Corp, says something important: an employer cannot always accept a resignation and move on. If they know, or should know, that mental illness is driving the decision, they may have a legal duty to inquire — to pause and ask questions first.

What Happened

Mr. Volpi was a physiotherapist who worked at a Calgary clinic for about 16 years. He had told his employer about his mental health struggles, and for years, when he needed time off, a former manager arranged it.

Then management changed. The new supervisor was never told about those past arrangements, because they had not been written down or passed along. He also made some workplace changes that were unrelated to Mr. Volpi’s disability, but that still added stress during an already difficult time.

As Mr. Volpi’s mental health worsened, he asked for time off. He told his supervisor that something was wrong, said he needed a break for his mental health, offered a doctor’s note, and reminded them that he had done this before. The supervisor did not refuse outright, but instead told him to wait about three months because of other staff vacations. So he kept working while his mental health kept sliding.

The day before that delayed leave was supposed to begin, Mr. Volpi resigned. His manager asked whether anything would change his mind, but nobody asked about his mental health before accepting the resignation.

Even after the resignation, there were more chances to make things right. While he was away for what should have been his leave, Mr. Volpi got an email asking him to confirm his resignation and warning that management was unhappy he hadn’t given notice and might use it against him. Worried, he confirmed — again mentioning his burnout.

He later tried to return, telling the clinic his mental health was not good, but was told to reapply online. Even after a month-long hospital stay, when he met with a manager and explained everything he had been through, the employer never paused to reconsider the resignation or look into accommodating him. The Tribunal found, based on medical evidence, that this whole chain of events contributed to the decline that led to his hospitalization.

The Tribunal found the employer discriminated against Mr. Volpi in two ways.

 Delaying his leave was part of that discrimination. The medical evidence showed that pushing back the time off worsened his condition and contributed to his resignation.

Accepting his resignation without asking any questions was also discrimination. The employer knew enough that it should have realized his sudden decision to quit might be connected to his illness. The supervisor’s question — “is there anything I can do to change your mind?” — was not enough to satisfy the duty to inquire, and there were later chances to ask that were also missed.

The Tribunal also rejected the employer’s argument that it did not know about Mr. Volpi’s needs because the new supervisor had not been told. An organization can’t rely on its own poor record-keeping and communication failures to avoid responsibility.

Mr. Volpi didn’t win on everything — his harassment and toxic workplace claims were dismissed — but the core findings stood.

What it cost

In a later remedy decision, the Tribunal ordered the employer to pay Mr. Volpi $40,000 for injury to dignity and nearly $1 million in lost wages, plus interest. It also ordered the employer to put proper accommodation policies in place and make sure supervisors knew about them. The Tribunal did not accept the employer’s attempt to downplay the harm by pointing out that Mr. Volpi kept his licence and later worked again. It found that the loss of his long-term job, along with the impact of the employer’s conduct on his mental health, were serious harms.

Why this matters for your work

 The principle behind this case shows up constantly in frontline work: a person in crisis often can’t advocate for themselves, and the people around them may need to notice and respond.

• A sudden exit can be a symptom, not a decision. When someone with a known mental health condition abruptly walks away from something important, check in gently rather than taking it at face value. A big part of this case turned on a question nobody asked.
• People rarely use the “right” words. Volpi did not say, “I’m requesting a disability accommodation.” He said he was burnt out, that something was wrong, and offered a doctor’s note — and the Tribunal found that was enough to put the employer on notice. Don’t wait for a diagnosis or formal language.
• Good record-keeping protects people. When information about someone’s needs lives only in one person’s head, it disappears when that person leaves. Systems that pass it along, with consent, help people avoid falling through the cracks. What looks reasonable on paper can still have serious consequences for the person affected.

The heart of this case is a human rights principle worth remembering: people with disabilities have the right to be seen, asked about, and accommodated, especially when they are least able to ask for it themselves.

*This post is general information, not legal advice.

*Photo Credit: AI-generated with ChatGPT using ACLRC content.  

 

By: Flora Stevenson      

Alberta is planning a major referendum on October 19, 2026, which will include a question about a process for considering whether Alberta should become independent from Canada. If Alberta separated, it could seriously affect Indigenous peoples because their Treaty rights are agreements with Canada. Separation could create uncertainty about who is responsible for protecting those rights, how those rights would be respected, and whether First Nations could continue to exercise them in the same way.

A recent court decision said that because separation could harm these rights, First Nations should have been consulted before the petition that triggered the referendum process was approved. This post explains what happened in the case and what it means for civil liberties in Alberta today.

What is a Referendum?

A referendum is a direct vote where the government asks voters to answer a specific question. Most referendum questions ask voters to choose “yes” or “no.” Alberta’s October 19, 2026 referendum will have 10 questions.

In Alberta, a referendum can also begin through a citizen-initiated petition. An eligible voter can apply for a petition on a proposed law, policy, or constitutional question. If the application meets legal requirements, the Chief Electoral Officer (Officer) may issue the petition, allowing the proponent to collect signatures. If enough valid signatures are gathered, the process can move forward — and for constitutional proposals, this requires a referendum.

The ACFN Case

Recently, the Alberta Court of King’s Bench considered the citizen-initiative process in a case about a proposed referendum on Alberta separation from Canada. The case is called Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 (CanLII) (ACFN).

The proposed referendum question was about whether Alberta should become independent from Canada. First Nations challenged the Officer’s decision to approve the petition. The Court did not decide whether Alberta can or cannot hold a referendum. Instead, it looked at whether the petition was properly initiated and whether First Nations should have been consulted before the petition process moved forward.

The Duty to Consult and the ACFN Case

The duty to consult is a legal obligation of the Crown (government) to engage with Indigenous peoples before making decisions that may adversely affect their Aboriginal or Treaty rights. It is rooted in the Constitution and exists to prevent harm to those rights and to support respectful Crown–Indigenous relationships.

In this case, the Court found that the duty to consult was triggered. In the case of a constitutional initiative, once the Officer issues a petition and the signature threshold is met, a referendum becomes mandatory and the government must take steps to implement the result, subject to constitutional limits. The Officer’s approval therefore triggered a binding legal process; it was not a minor administrative step.

Because a referendum on Alberta separation could seriously affect Treaty relationships, constitutional protections, land rights, and the role of Canada in upholding Numbered Treaties, the Officer had a duty to consult before letting the process move forward.

This does not mean that every referendum will trigger the duty to consult. It depends on the question being asked, the potential impact on Aboriginal or Treaty rights, and the specific government decision involved. A referendum on an issue with no connection to Indigenous rights may raise different legal questions. But when a proposed referendum could affect Treaty rights or the constitutional relationship between First Nations, Alberta, and Canada, consultation may be required before the process is initiated.

The decision is consistent with past duty to consult cases. Courts have said that the duty to consult can arise early, before a final decision is made, when government action may affect Aboriginal or treaty rights. Courts have also said the duty can apply to broad, high-level policy decisions, not only to project approvals or land-use decisions.

There is also an important limit. The Supreme Court of Canada has said that the duty to consult does not apply to the law-making process itself. This case was different because it was about an administrative decision by the Officer to approve a petition. It was not about the Legislature debating or passing a law.

The Court also noted separate issues with the Officer’s approval of the petition, unrelated to the duty to consult. These additional errors contributed to the decision being cancelled. For further analysis, see Nigel Bankes’ ABLawg commentary.

Civil Liberties Implications

This case matters for civil liberties because it shows how democratic processes must operate within constitutional limits. Referendums can be powerful tools for public participation, but they cannot override the rights protected in the Constitution, including Treaty rights. When an administrative decision by a  government—like approving the initiation of a petition—could affect those rights, the duty to consult acts as a safeguard against government overreach and ensures that constitutional protections are upheld throughout the process. It reinforces that public decision‑making must follow the rule of law, including the obligations owed to Indigenous peoples under the Constitution.

The case also highlights the importance of judicial independence. Courts play a crucial role in reviewing government actions and ensuring they follow the law. Politicians may express disagreement with a decision, but the rule of law requires that court rulings be respected while appeals move through the proper legal channels. For now, this decision shows how courts may apply the duty to consult to referendum processes when the proposed question could affect Indigenous rights.

For more information about the duty to consult, see ACLRC’s Duty to Consult with Indigenous Peoples in Canada, Where are We Today? (2025) report.

For a detailed legal analysis of the ACFN decision, you can also read Nigel Bankes’ ABLawg commentary.

For a deeper look at how the Court engaged with Indigenous law and analyzed Treaty rights — including the potential impacts of Alberta independence — see Megan Reti’s ReconciliACTION YEG blog post.

Photo Credit:  AI-generated with ChatGPT using ACLRC content.        

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By: Kyle Gardiner and Lesley Ukwu

Photo Credit: “AI-generated illustration created with OpenAI ChatGPT for ACLRC educational content”

The Supreme Court of Canada is being asked to revisit one of the most controversial provisions of the Canadian Charter of Rights and Freedoms: section 33, better known as the notwithstanding clause. The issue arises from the ongoing challenge to Quebec’s Bill 21 and the appeal brought by the English Montreal School Board. At its core, the Court must now clarify the future scope, limits, and operation of section 33 itself.

The Traditional Understanding of Section 33

Section 33 has long been understood as a constitutional compromise. While courts typically have the final say on whether rights are infringed under the Charter, section 33 acts as a safety valve allowing governments to pass laws that operate notwithstanding their infringement of certain Charter rights for renewable five year periods.

Under this view, courts stay in their lane. They verify whether the clause has been invoked properly, but they do not question why it was used or strike down legislation passed using it.

Bill 21 Changes the Conversation

Quebec’s Bill 21, which restricts public officials from wearing visible religious symbols, has pushed section 33 into new territory.

Lower courts have already acknowledged that the law infringes freedom of religion and expression. The Superior Court of Québec carved out an exemption for English language school boards, but the Québec Court of Appeal overturned that exemption and upheld the law based on the notwithstanding clause in Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254 (CanLII).

The case is no longer just about secularism. It has become a broader debate about constitutional boundaries, specifically the scope of section 33 and the role of the courts.

Supporters argue that section 33 is essential to democracy because it allows elected governments to override courts and keeps authority with voters. Critics argue that it undermines the Charter’s purpose of protecting minorities from majority rule. Although it was expected to be used sparingly, its use has increased in Quebec and beyond.

What’s Really at Stake

The Court is now being asked to address several unresolved questions. Can courts review the effects of a law even if they cannot strike it down? Are there limits on how section 33 can be used? Does section 33 override protections such as gender equality or minority language rights? Can unwritten constitutional principles fill gaps where the text is silent?

Many of these issues remain unsettled.

Real World Impact

These legal questions have real consequences, particularly for marginalized communities. The Canadian Civil Liberties Association has observed that since 2019, Muslim women, Sikhs, and other religious minorities in Quebec have faced barriers to employment and public service due to Bill 21. For many, the law signals exclusion and raises questions about the intersection of race, religion, and gender within Canada’s constitutional framework.

Frequent use of the notwithstanding clause also risks creating a cycle of costly litigation. Governments override rights, challenges follow, and public resources are diverted away from essential services.

Courts Are Already Divided

Lower courts are split. The Québec Court of Appeal treated section 33 as a near complete shield, limiting Charter review. By contrast, in Saskatchewan (Minister of Education) v UR Pride, 2025 SKCA 74 (CanLII), the court suggested that declarations and Charter analysis should still be available.

This division highlights the uncertainty and the importance of the Supreme Court’s decision.

Looking Ahead

The Court’s ruling will shape more than the future of Bill 21. It will define the balance between courts and legislatures, and between majority rule and minority rights.

It will help determine what section 33 means in modern Canada and how far governments can go in limiting rights in its name.

 

By: Amanpreet Singh, JD, Legal Researcher

Photo Credit: “AI-generated illustration created with OpenAI ChatGPT for ACLRC educational content”

Combatting Online Hate in Canada: Challenges and Changes in Hate Speech Legislation

Rising concerns over online hate, incitement to violence, and exploitation have sparked calls for online harms legislation aimed at regulating harmful content on digital platforms. A 2024 Abacus Data survey commissioned by the Canadian Press and Parliamentary Channel found that 87% of respondents believe online hate has a severe overall impact, with nearly half saying name-calling and insults have been normalized and the problem needs to be addressed. The Survey of Online Harms in Canada 2025, conducted by The Dais at Toronto Metropolitan University, found that marginalized Canadians, including recent immigrants, people with disabilities, and 2SLGBTQ+ individuals, experience hate speech 50% to 100% more often than those who don’t identify with these groups.

Online hate speech regulation in Canada is at a critical turning point, amid a contentious policy debate. The aim is not just to remove illegal content, but also to reduce exposure to hate and other harmful material in order to create a safer online space. Bill C-9, the Combating Hate Act, passed the House of Commons in March 2026, aiming to strengthen criminal penalties for hate-motivated crimes by proposing new offences.

Although regulation is urgently required, this moment is significant because it sits at the intersection of two fundamental democratic values that must be carefully balanced: 1) protecting individuals and communities from harm, and 2) safeguarding our Charter right to freedom of expression from disproportionate censorship. For readers, this issue goes beyond law or politics; it shapes online safety, the boundaries of public discourse, and how social media platforms are held accountable.

In Saskatchewan (Human Rights Commission) v Whatcott, the Supreme Court of Canada clarified that:

“… the legislative term “hatred” or “hatred or contempt” is to be interpreted as being restricted to extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”

For years, Canada has debated how to regulate harmful online content. While criminal laws exist targeting public speech that actively and intentionally promotes hatred or violence against identifiable groups, existing frameworks struggle to keep pace with the scale of harm on modern social media platforms.

The federal government attempted to address the issue of online hate with Bill C-36, introduced in June 2021, which aimed to hold social media platforms accountable and expand tools to combat hate speech by amending the Criminal Code and the Canadian Human Rights Act. Bill C-36 died due to the dissolution of Parliament for the 2021 federal election.

In early 2024, Bill C-63, the Online Harms Act based on the C-36 framework, was introduced. It also aimed to strengthen Canada’s approach to protecting people from online hate by holding social media platforms and individuals more accountable for harmful online content. It proposed major changes to the Criminal Code and Canadian Human Rights Act to better address hate speech and crimes, provide remedies for victims, and hold individuals accountable by targeting seven categories of harmful content.

Bill C-63 proposed creating a Digital Safety Commission of Canada to oversee platform compliance and enforce safety rules, along with a Digital Safety Ombudsperson to advocate for users affected by harmful online content. Critics argued the measures could disproportionately restrict free speech without effectively reducing hate, while experts warned of backlogs from an influx of complaints. Bill C-63 also died in early 2025 with the prorogation of Parliament, amid criticisms and lengthy debate; echoing calls from advocates, experts, and the public to address hate crimes and online harms separately.

Bill C-9 – Combating Hate Act

In December 2024, the government split the online harms legislation into two tracks: one focused on protecting children from online harms and exploitation, and the other aimed to amend the Canadian Human Rights Act and Criminal Code to deal with inciting violence, terrorism or engaging in hate speech.

Bill C-9 proposes the following amendments to the Criminal Code to create four new offences to better address hate-motivated crimes:

1. an intimidation offence that prohibits conduct that is intended to provoke a state of fear in another person to impede them from accessing religious or cultural institutions and other specified places;
2. an offence that prohibits the intentional obstruction of a person’s lawful access to such places;
3. a hate crime offence to more explicitly denounce hate-motivated crime;
4. an offence that prohibits wilfully promoting hatred against any identifiable group by displaying, in any public place, certain hate or terrorist symbols;

Bill C-9 would also codify a definition of “hatred”, clarifying the conduct covered by the new hate crime offence and existing propaganda offences, and promoting more consistent application of these offences in the criminal justice system.

Bill C-9 is seen as a necessary measure against rising antisemitism, Islamophobia, homophobia and transphobia, causing people to feel unsafe in their communities. Supporters argue that regulating social media platforms and strengthening enforcement is essential. Critics warn that overly restrictive measures could infringe on Canadians’ fundamental rights, particularly to the freedom of expression, and that including these issues as grounds for human rights complaints risks over-censorship and abuse of the complaint system.

On March 9, 2026, Members of Parliament voted to end debate on Bill C-9 and continue with its expedited consideration. The Canadian Civil Liberties Association has raised concerns about procedural issues arising from the government’s decision to fast-track Bill C-9, as the shortened time for debate, scrutiny, and amendment may compromise legislative quality, impact Canadians’ democratic rights and freedom of expression, and heighten the risk of poorly vetted criminal law provisions.

The government is revising Canada’s online harms laws and has reconvened the expert advisory group on online safety to guide the process. With the legal landscape still evolving, the best way to stay informed is to follow developments on Bill C-9 and related federal guidance.

Hate speech is regulated under the Criminal Code, with recent proposed amendments under Bill C-9 strengthening protections against hate-motivated acts, hate symbols, and obstruction of access to religious or cultural sites. With the growing use of online platforms, it is important to observe how laws evolve to address online hate and how that balance is reached while upholding freedom of expression. Countering hate aligns with Canada’s human rights obligations and vision of a multicultural society and associated responsibilities under the Canadian Bill of Rights (1960), the Charter (1982), and the Canadian Multiculturalism Act (1988). Hate remains a barrier to diversity, equity, and inclusion, making it a shared responsibility to confront hate and discrimination in our societies.

To read further on this topic, visit our reports page at: https://www.aclrc.com/reports/ and review our research report titled, Why do Canadians Need Legislation to Regulate Online Hate Speech, which discusses freedom of expression and hate speech in further detail, freedom of expression and hate crimes, policies of online platforms on hate speech, Bill C-63 in further detail, provides insight into how other countries are tackling the issue, and lists ACLRC’s recommendations on how to address the issues of online hate speech.

Limitations:

The ACLRC is a non-partisan organization that conducts research and provides education on human rights and civil liberties issues in Alberta. Hate speech is a major social issue that several organizations are working to address, and this post aims to update readers using our research report findings and recent and upcoming developments on this issue.

 

 

By Rowan Hickie

Source: Canva/Kindel Media

The intersection of mental health and the justice system in Canada has drawn increasing attention. Individuals experiencing mental health challenges often come into contact with state authorities, including law enforcement and healthcare providers. These encounters raise complex questions about balancing public safety with respect for autonomy, dignity, and access to care.

Legal and Human Rights Frameworks

Canada’s legal landscape around mental health is complex. The Constitution Act of 1867 does not explicitly assign health to either the federal or provincial government, resulting in overlapping jurisdictions and uneven implementation. Similarly, the Charter of Rights and Freedoms (the Charter) does not guarantee a specific right to health or healthcare. However, both federal and provincial laws affirm equality, prohibit discrimination, and recognize the importance of access to mental health services.

In Chaoulli v Quebec (Attorney General), the Supreme Court of Canada held that while the Charter does not create an explicit right to healthcare, any healthcare system established by a government must comply with Charter protections.

Internationally, the Convention on the Rights of Persons with Disabilities (CRPD) recognizes mental health as part of the right to the highest attainable standard of health. It emphasizes autonomy, dignity, and inclusion, and challenges coercive practices such as forced institutionalization or involuntary treatment. Although not directly enforceable, the CRPD guides Canada toward rights-based, equitable mental health policy.

Provincial Mental Health Legislation

 Each province governs mental health through its own legislation. Alberta’s Mental Health Act allows for involuntary hospital admission when a person poses serious risk or faces significant deterioration, with two professionals required to authorize admission. A 2020 amendment introduced new safeguards, including a requirement that hospitalization must have a clear therapeutic benefit.

British Columbia’s Mental Health Act employs a deemed consent model, where individuals detained involuntarily may be treated without their express consent. This model has faced constitutional scrutiny, especially when compared to provinces like Ontario’s Mental Health Act, which relies on substitute decision-makers and explicit consent frameworks for treatment authorization. Nova Scotia’s Involuntary Psychiatric Treatment Act stands out for its explicit reference to the CRPD and grounding its provisions in patient-centred, rights-based principles.

Police have wide powers under provincial laws to detain and transport individuals believed to pose a risk due to mental disorder, sometimes without a warrant. Section 25 of the Criminal Code also authorizes proportionate force when officers act lawfully. These provisions make police first responders in most crises, despite limited mental health training.

Policing and Crisis Response

Police involvement in mental health calls often blurs the line between care and enforcement.

The RCMP’s 2023 Police Intervention Report found that Mental Health legislation-related incidents were the second most common reason for police intervention, accounting for 11 percent of all cases. A CBC investigation revealed that between 2000 and 2018, over 460 Canadians died during police encounters, approximately 70 percent of whom were experiencing mental illness or substance use issues.

In 2020, Chantel Moore, a 26-year-old Indigenous woman, was fatally shot by police during a wellness. Critics argue police are ill-equipped to provide therapeutic care and that coercive interventions can escalate crises, particularly in marginalized communities.

Several provinces now pilot alternative models. Alberta’s Police and Crisis Team pairs officers with mental health professionals to jointly respond to calls involving mental illness, aiming to divert individuals from hospitals or the justice system. Calgary’s Community Mobile Crisis Response program takes this further by dispatching clinicians and peer-support workers rather than police to non-violent mental health and substance-use crises.

Other jurisdictions, including Vancouver and Toronto, have launched civilian-led crisis teams that respond to non-violent calls without police involvement. Together, these initiatives reflect a shift toward community-based, trauma-informed, and rights-focused crisis response.

Charter Rights and Mental Health Legislation

Mental health legislation engages several Charter rights. In JH v Alberta (Minister of Justice and Solicitor General), the Court of Appeal found that the Mental Health Act violated section 7 (life, liberty, and security of the person), section 9 (freedom from arbitrary detention), and section 10(b) (right to counsel), holding that the legislation was overly broad and procedurally unfair. This landmark decision prompted significant legislative reform in Alberta, including narrowed detention criteria and improved procedural protections.

The JH decision illustrates how mental health laws engage several Charter rights simultaneously. Section 7 is engaged when individuals are detained or treated without consent, depriving them of control over their bodies and decisions about care. British Columbia’s “deemed consent” model exemplifies this tension, as it removes meaningful choice and undermines personal autonomy. Section 9 applies to police apprehensions recognizing that deprivation of liberty in this context must not be arbitrary. The lack of judicial oversight and reliance on officers’ subjective judgment raise concerns about fairness and proportionality, especially when systemic bias or stigma influence decision-making.

Section 15, which guarantees equality rights, is also central. Mental health laws that single out people with mental disabilities for coercive treatment, risk perpetuating stereotypes that equate mental illness with incapacity. Upholding section 15 requires ensuring that legislation and practice respect autonomy, equality, and dignity for all.

Summary

Canada’s mental health framework sits at the intersection of law, healthcare, and human rights. While existing legislation aims to protect both individuals and the public, gaps in implementation, oversight, and equity persist. The JH case and the many tragedies involving police interactions demonstrate how easily the balance between care and control can be lost.

To truly protect the rights of people in crisis, governments must move beyond enforcement-driven responses and strengthen legal safeguards that uphold autonomy, equality, and access to compassionate care. Ensuring that provincial laws align with both the Charter and human rights principles is essential to building a system that protects those most in need of support.

 

 

 

By Myrna El Fakhry Tuttle

Source: Kamitana_studio

Reposted from LawNow with permission

In 2024, 1,414 people died in Alberta from drug poisoning, including 1,182 from opioid overdoses. In 2025, the Government of Alberta estimated that addiction related issues cost the province approximately $7 billion annually in health care, lost productivity and justice-system expenses.

In response, Alberta enacted the Compassionate Intervention Act (CIA), which allows involuntary addiction treatment under what the province calls “compassionate intervention.” Alberta is the first province in Canada to adopt such legislation specifically targeting substance use among adults.

Under the CIA, designated individuals – such as adult family members, guardians, healthcare professionals, or police or peace officers – may ask the court for a treatment order when a person’s substance use presents a danger to themselves or others.

What is Involuntary Drug Treatment?

Involuntary drug treatment refers to admitting individuals with substance use disorders or concurrent mental health conditions to treatment facilities without their consent. This requires a  court order or legislative authority.

Treatment often involves short-term hospitalization or psychiatric care, with interventions such as medication, therapy, or stabilization until the individual regains decision-making capacity. Discharge typically occurs when a physician determines the person no longer poses a significant risk to themselves and others.

While the CIA intends to support individuals struggling with addiction, it raises significant concerns when it comes to the Canadian Charter of Rights and Freedoms (Charter).

Involuntary Drug Treatment and the Charter

The Government of Alberta asserts that involuntary treatment under the CIA should only be a last resort. However, critics warn the legislation potentially violates several Charter rights.

Section 7

Section 7 states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 7’s right to liberty safeguards individual autonomy and free choice. Government action violates this section when it interferes with a person’s physical freedom or their ability to make fundamental personal decisions.

Critics describe involuntary detention as “the most significant deprivation of liberty without judicial process that is sanctioned by our society.” They argue the CIA allows arbitrary detention and coerced treatment based on vague or speculative predictions of harm, raising serious concerns about compliance with fundamental justice. Decisions from courts across Canada further describe this right.

In Fleming v Reid, the Ontario Court of Appeal held that the common law right to bodily integrity and personal autonomy is deeply entrenched in Canadian law “and deserving of the highest order of protection.”

In Rodriguez v British Columbia (Attorney General), the Supreme Court of Canada (SCC) held that the right to security of the person includes “a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress.”

In Starson v Swayze, the SCC further affirmed that individuals, including those with mental illness, have the right to refuse medical treatment if they have the capacity to understand the relevant information and appreciate the consequences of their decision, even if they do not acknowledge their illness. This ruling confirms the decisive factor is not whether treatment is in the person’s best interest, but whether the individual has the capacity to make an informed choice.

Section 9

Section 9 reads: “Everyone has the right not to be arbitrarily detained or imprisoned.”

Section 9’s protection against arbitrary detention may be at risk. The CIA grants broad discretion to police and other non-judicial actors to detain individuals deemed likely to cause substantial harm.

The Canadian Centre on Substance Use and Addiction stated:

InvTx [involuntary treatment] raises ethical concerns, as it may violate individual rights by detaining and treating people without consent. Critics argue that non-emergency SUD [substance use disorder] treatment without explicit consent breaches standards of human rights and medical ethics. While related issues are complex in the specific contexts of SSUDs [severe substance use disorders] as described, there are concerns about infringements on peoples’ autonomy and right to consent as well as privacy, beyond the limited evidence supporting its benefits for patients. The counter argument to this is that InvTx is a process in which autonomy is being returned to individuals through the provision of emergency care.

Section 12

Section 12 states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

This includes torture, excessive or abusive use of force by law enforcement officials. Elements of supposed “treatment” and “rehabilitation” may also constitute torture or cruel, inhuman or degrading treatment or punishment. Several decisions of the Supreme Court of Canada further describe what this right protects against.

In Canada (Minister of Employment & Immigration) v Chiarelli, the SCC noted that the broad dictionary definition of treatment is “a process or manner of behaving towards or dealing with a person or thing…”

In Quebec (Attorney General) v 9147-0732 Québec inc, the SCC stated that the purpose of section 12 is “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals.”

In R v Bissonnette, the SCC cited Quebec (Attorney General) v 9147-0732 Québec inc and elaborated as follows:

Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the interpretation of all Charter rights … Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect … This respect is owed to every individual, irrespective of their actions (at para 59).

In R v Hills, the SCC, quoting Quebec (Attorney General) v 9147-0732 Québec inc and R v Bissonnette, reaffirmed that “dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect, irrespective of their actions (at para 32).”

Section 15

Section 15(1) states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

This section guarantees that all individuals in Canada regardless of race, religion, national or ethnic origin, sex, age, or disability must be treated with equal respect, dignity, and consideration. Governments must ensure their laws and programs do not discriminate, either directly or systemically.

However, statistics show severe inequalities in opioid-related harms. In Alberta, the opioid poisoning death rate among First Nations people was 8.4 times higher than among non-Indigenous populations in 2022. Although First Nations people represent only 3.4% of Alberta’s population, they accounted for 20% of all unintentional opioid deaths between 2016 and 2022. These figures reflect systemic inequities and raise significant concerns about how government policies respond to the opioid crisis, especially regarding the CIA.

Legal experts argue the CIA may violate Section 15 of the Charter by imposing discriminatory and dignity-denying treatment on Indigenous and racialized communities already experiencing higher overdose rates. They argue this approach fails to treat all individuals with equal respect, dignity, and protection under the law. Rather than addressing root causes such as colonialism, intergenerational trauma, poverty, and lack of access to healthcare, the CIA risks reinforcing existing systemic injustices.

Involuntary Treatment as a Reasonable and Justified Limit on Charter Rights

The Government of Alberta may attempt to justify the CIA as a reasonable infringement of a person’s Charter rights under section 1. The Government may argue that any limitations on individual rights are reasonable and demonstrably justified in the interest of public health.

However, critics argue that the government has not fully considered less intrusive alternatives, such as harm reduction initiatives, safe-supply programs, and voluntary treatment options. They also contend the infringement on personal freedoms may not be proportional to the goals of the CIA.

Only if someone challenges the CIA will the courts interpret the legislation alongside a person’s Charter rights.

 

 

 

By Myrna El Fakhry Tuttle

Photo Credit: ACLRC

Reposted from LawNow with permission

Academic freedom is vital to the advancement of knowledge and the health of democratic societies. It allows scholars and students to explore, question, and share ideas without fear of punishment. It helps people think critically, discover new things, and have open discussions.

Law professor and former university president Harry Arthurs stated in 1995: “Academic freedom is a central value, arguably the central value, of university life.”

Defining Academic Freedom

According to the University of British Columbia (UBC) Senate policy, academic freedom includes “the freedom, within the law, to pursue what seems to [members of the University] as fruitful avenues of inquiry, to teach and to learn unhindered by external or non-academic constraints, [and] to engage in full and unrestricted consideration of any opinion.”

The Canadian Association of University Teachers (CAUT) defines academic freedom as the right to:

• Teach and discuss freely, without doctrinal constraints
• Conduct research and publish findings
• Create and perform artistic works
• Engage in service activities
• Express opinions about the institution, its administration, and the broader system
• Access, preserve, and provide access to documentary materials in all formats
• Participate in professional and representative academic bodies

The CAUT policy affirms that academic freedom protects individuals from institutional repercussion and does not require them to remain neutral. All academic staff have the right to carry out their duties without fear of retaliation or censorship from their employer, the government, or any other authority.

In 2022, the National Assembly of Quebec adopted Bill 32, An Act Respecting Academic Freedom in the University Sector. Section 3 of this Act defines academic freedom as the right to “engage freely and without doctrinal, ideological or moral constraint, such as institutional censorship.” This includes the freedom to teach, discuss, research, create and publish. It also includes the right to express opinions about society and institutions, and about any doctrine, dogma or opinion.

Academic freedom applies not only to regular faculty, but also to adjuncts, students, alumni, board members, honorary degree recipients, and invited guests.

Its scope extends to both intramural expression (within academia) and extramural expression (in public discourse), and includes civil rights such as freedom of expression, assembly, and participation in public debates. However, academic freedom is not unlimited. It must be exercised within the law and with respect for the rights of others.

Protection of Academic Freedom

In the United States, the First Amendment protects academic freedom. In Canada, neither the Canadian Charter of Rights and Freedoms (the Charter) nor human rights legislation protect academic freedom. Instead, it is a negotiated right, secured primarily through collective bargaining agreements between faculty associations and universities.

Jon Thompson, Professor Emeritus and former President of the Association of University of New Brunswick Teachers, stated:

In its most clearly characterized and defensible form, academic freedom is a right of university academic staff held by virtue of their institutional employment. In outline, its purpose is to ensure they can challenge received wisdom, put forward new ideas, participate freely in collegial governance, and exercise fully their rights as citizens without suffering any institutional penalties. As such, it differs from general freedom of expression for all citizens protected through the Canadian Charter of Rights and Freedoms and provincial human rights codes. In Canadian universities the right to academic freedom is protected through articles in collective bargaining agreements.

Additionally, Canadian universities are bound by hate speech and anti-discrimination laws, which limit expression more strictly than U.S. law under the First Amendment.

Historically, academic freedom in Canada existed as informal policy or tradition. Prior to the widespread unionization of faculty in the 1970s, the protection of academic freedom largely depended on the discretion and goodwill of university administrators. Today, faculty unions play an important role in safeguarding academic freedom, primarily through grievance and arbitration mechanisms. Because many faculty members at Canadian universities belong to unions, most of them are protected by contracts that set out their rights and working conditions.

Legal Recognition and Limitations

Canadian courts have given limited attention to the issue of academic freedom. In McKinney v University of Guelph, Justice Gérard La Forest of the Supreme Court of Canada acknowledged its importance but narrowed its scope, stating it protects only “against the censorship of ideas.”

The Supreme Court has previously ruled that neither the Charter nor Quebec’s Charter of Human Rights and Freedoms applies to universities. However, in UAlberta Pro-Life v Governors of the University of Alberta, the Alberta Court of Appeal found that when a university regulates student expression as part of its core public functions, it may fall under Charter scrutiny. Although this decision is currently binding only in Alberta, it reflects a shifting legal perspective on academic freedom and institutional responsibility.

Commentary on the State of Academic Freedom

In Canada, academic freedom is increasingly under pressure, reflecting broader global trends.

Around the world, academic freedom is facing significant threats. Governments are increasingly trying to control what educators and researchers can say or teach—often for political reasons. This is happening not only in authoritarian countries but also in some democracies. As a result, certain topics are being removed from school and university programs, some institutions are being targeted, and academics are being punished. These actions are making it harder for academics to freely share ideas and have open discussions.

By Myrna El Fakhry Tuttle

Photo Credit: Designed by Freepik

Reposted from LawNow with permission

Annexation is one state forcibly acquiring another state’s territory, usually through a treaty or use of force. It is illegal under international law.

Recently, there has been increased discussion in the media about annexation. Many are now asking what this term really means and how it comes into play in international relations.

What Does Annexation Mean?

Annexation is one state (country) forcibly acquiring another state’s territory.

No state, regardless of how powerful it may be, has the authority to annex another state. Annexation is illegal under international law and has no impact on the legal status of the acquired territory, which continues to be considered occupied.

The International Committee of the Red Cross states:

[Annexation] refers to a unilateral act of a State through which it proclaims its sovereignty over the territory of another State. It usually involves the threat or use of force, as the annexing State usually occupies the territory in question in order to assert its sovereignty over it. Annexation amounts to an act of aggression, forbidden by international law.

Annexation can occur through use of force (described more below) or through two states signing a treaty.

Annexation treaties, unlike other treaties involving territorial changes, often involve an element of coercion. It typically means the state ceding territory either is compelled to sign a peace treaty after a military defeat or is represented by a puppet government willing to accept the annexation. Article 52 of the Vienna Convention on the Law of Treaties (1969) explicitly states that “a treaty is void if it is procured through the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” Therefore, annexations based on treaties obtained through coercion or force are not legally valid.

International law prohibits annexation for several key reasons, including:

• use of force
• violation of a state’s sovereignty and of a peoples’ right to self-determination
• national security concerns, and
• violations of jus cogens norms—fundamental principles of international law that cannot be overridden.

Annexation by Use of Force

The Charter of the United Nations prohibits, among other things, annexation using force. Article 2(3) mandates that Member States “settle their international disputes by peaceful means” and article 2(4) says “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

In 2003, during the Iraq conflict, Kofi Annan, Secretary-General of the United Nations, stated:

No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4 …. Secretaries-General confront many challenges in the course of their tenures but the challenge that tests them and defines them inevitably involves the use of force.”

The International Court of Justice (ICJ) has characterized the “illegality of territorial acquisition resulting from the threat or use of force” as a “corollary” to the “principles of the use of force incorporated in the UN Charter.”

In 1970, newly independent states, concerned about the enduring effects of colonization through external interference (including military or economic pressure), adopted a resolution in the UN General Assembly. This resolution was titled the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (the Declaration on Principles of International Law for short). The Declaration notes that “all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”

The Declaration on Principles of International Law also asserts that “such a threat or use of force constitutes a violation of international law and the Charter of the United Nations.”

Consequently, the use of force in any form is seen as an internationally wrongful act that does not create any legal rights for the annexing state. Therefore, annexing another territory through use of force is illegal under international law. All states must not use force—or even the threat of force—in their relations with other states.

Meaning of Force

The UN Charter doesn’t define the term “force.” This leaves room for interpretation, especially regarding the use of economic and political coercion.

At different points in history, some countries—typically from the developing world or during the Cold War — argued that “force” should include other forms of pressure, such as political and economic coercion. These actions can undermine a state’s sovereignty.

The Declaration on Principles of International Law says states should “refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.”

In addition, the Organization of American States deemed the use of coercive economic measures as an illegal use of force. Article 20 of its Charter notes that “no State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.”

Other States Recognizing Annexation

In 1932, the United States adopted the Stimson Doctrine, which declared that territorial changes achieved through forceful annexation would not be acknowledged as legitimate. In other words, the United States refused to recognize such actions as lawful territorial claims.

The Declaration on Principles of International Law declares that “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

When a state declares annexation on its own, the international community usually doesn’t recognize the act. The annexing state often faces legal consequences like sanctions or global condemnation. A well-known example of annexation is when Russia took Crimea from Ukraine in 2014. The international community widely criticized this act. The UN called the annexation illegal and urged Russia to restore Ukraine’s sovereignty.

Even as international law continues to evolve, the global community has firmly established that acquiring territory through force or the threat of force – whether military, economic or political – is illegal. This prohibition is rooted in international appreciation for the principles of sovereignty, self-determination, and global stability.

By Myrna El Fakhry Tuttle

Photo Source: flickr/JamesInOregon

Reposted from LawNow with permission

The legal system in Canada treats young offenders differently than adults.

The Youth Criminal Justice Act (YCJA) regulates the youth justice system. Under the YCJA, young people are held accountable for their criminal acts, but not in the same way as adults. The YCJA provides special protections, unique procedures and numerous possible sentences for youth offenders.

However, young people can get an adult sentence in certain circumstances. In these cases, the Criminal Code sentences for adult offenders will be applied to young offenders.

The YCJA Provisions

Section 2(1) of the YCJA defines a “young person” as anyone who is “12 years old or more, but less than 18 years old.” Also, under this section, adult sentence means “any sentence that could be imposed on an adult who has been convicted of the same offence.”

Section 3(1)(b) of the YCJA states that “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize rehabilitation and reintegration,” among others.

The YCJA acknowledges that young people are vulnerable and have special needs and circumstances that must be considered when making decisions about them. For example, section 42(2) of the YCJA contains specific sentencing measures for young offenders that differ from the sentencing provisions for adults under the Criminal Code. However, under the YCJA, young offenders can be tried as adults for serious violent offences such as “murder, attempted murder, manslaughter or aggravated sexual assault.”

Adult Sentences for Youth

Before the YCJA was enacted, section 16 of the Young Offenders Act allowed the transfer of young persons who committed indictable offences to adult court. The YCJA eliminated this process.

However, at the time, section 72(2) of the YCJA, required young people to persuade the court that they should not be sentenced as adults.

According to the Department of Justice:

The YCJA established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. Offences that can lead to an adult sentence are indictable offences committed when the youth was at least 14 years old, for which an adult would be liable to imprisonment for more than two years. The YCJA […] also included a presumption that youth 14 or older found guilty of certain serious violent offences would receive an adult sentence. In these circumstances, the onus was on the young person to convince the court that a youth sentence would be appropriate.

This onus was challenged in 2008 by a youth convicted of manslaughter. In R v D.B, 17-year-old Bwas accused of killing R in a fistfight. B pleaded guilty to manslaughter – which was a presumptive offence under the YCJA and where an adult sentence was expected to be imposed. B sought a youth sentence, which the Crown opposed. B then challenged, under section 7 of the Charter of Rights and Freedoms, the constitutionality of the onus provisions when there is a presumptive offence. He claimed that the onus provisions placed the burden on the young person to convince the court that they should be given a youth sentence, rather than on the Crown to prove to the court that an adult sentence should be imposed.

The Supreme Court agreed with B and found that the sentencing provisions under section 72 of the YCJA were unconstitutional. The Court also overturned a provision that required young offenders who had been given adult sentences to show that their identities should continue to be protected by a publication ban.

The Supreme Court stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability (at para 41).

The Supreme Court decided:

Under the presumptive offences regime, an adult sentence is presumed to apply and the protection of a publication ban is presumed to be lost. The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s[ection] 7 of the Charter and are not saved by s[ection] 1. To the extent that they impose this reverse onus, they are unconstitutional (at para 95).

The publication ban is part of the sentence, removing it “makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe” (at para 87). The Supreme Court stated that the Crown must prove that an adult sentence is necessary. Therefore, the Crown should also have to prove that the lifting of a publication ban should be added to the sentence (at para 94).

Amending the YCJA

In 2012, Parliament responded to the Supreme Court decision by amending the YCJA, repealing the presumptive offences provisions. The Crown must now persuade the court that an adult sentence is justified.

After the amendment, section 72 of the YCJA read:

1. The youth justice court shall order that an adult sentence be imposed if it is satisfied that
   1. the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
   2. a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Section 73 (1) states:

When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Summary

It is generally accepted that young people lack the maturity of adults. The YCJA addresses this by providing young people with their own unique court process and punishments.

A court may decide, however, to sentence a youth in the same way as an adult, for certain violent offences. That said, if the Crown wants to ask the court for an adult sentence, it must give notice of that intention before a trial occurs. The judge will hear arguments on that matter after a trial and a guilty verdict.

By: Myrna El Fakhry Tuttle 

Photo Source:  flickr/Me 

Reposted from LawNow with permission

How can we balance an employer’s right to know about illness or disability and an employee’s right to privacy?

Editor’s Note: A version of this important article first appeared in LawNow in 2019. It has been reviewed for legal accuracy in 2024 by the author.

Requesting medical information from employees may raise privacy issues. Employees have the right to keep their medical information confidential and private. But employers also have the right to know about their employees’ illness or disability, and have the right to seek medical information in order to provide appropriate accommodation. So, how can we balance the two?

In Alberta, the Freedom of Information and Protection of Privacy Act (FOIP) section 17 provides that the disclosure of some personal information, including medical information, is presumed to be an unreasonable invasion of privacy. Without consent, such information would only be released in exceptional circumstances.

Section 3 of the Personal Information Protection Act (PIPA) covers the collection, use, and disclosure of personal information. PIPA balances an individual’s right to have his or her personal information protected, and an organization’s need to collect, use or disclose personal information for purposes that are reasonable. Under PIPA, while you may need to collect, use and disclose certain personal information, you must, according to privacy legislation, explain the reason for collecting the information and how it may be used or disclosed (see: A Guide for Businesses and Organizations on the Personal Information Protection Act).

The Health Information Act also governs the disclosure of health information in Part 5.

An employee’s personal medical information is generally acknowledged to be private and confidential. However, it is well established (and should be obvious) that an employer is entitled to access sufficient information for legitimate purposes. This includes assurance that the employee is able to continue or return to work, or to provide necessary appropriate accommodation to ensure that the employee can work without jeopardizing his or her safety, or that of other employees. An employer is entitled only to the least such information necessary for the purpose and an employee should generally not be required to disclose their medical files, or even diagnosis or treatment. However, exactly what is required will depend on the circumstances and purpose – and may very well include diagnosis, or treatment, or other information (Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 (ON LA) at para 84)..

Employers may seek medical information in a variety of circumstances, including to support:

• a request for short-term sick leave;
• extended sick leave, or partial medical leave;
• an application for benefits;
• a request to return to work; or
• a request for accommodation (see: Devins, Jewell & Sartison, Medical Information in the Accommodation Process, (December 2013)).

An employer has a legitimate interest in seeking information related to employee’s prognosis and ability to attend work on a regular basis. The employer is entitled to request that the employee provide medical information and then to consider what, if any, impact the information had on its duty to accommodate the employee in the workplace. There is nothing inherently discriminatory for an employer to request a doctor’s note from employees to substantiate a request for sick leave (Stewart v Brewers Distributor and another, 2009 BCHRT 376 at para 48).

The Human Rights Tribunal of Ontario stated that an employee who seeks workplace accommodation has a duty to cooperate in the accommodation process by providing his or her employer with a reasonable amount of information about their physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship (Bottiglia v Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII) at para 99, affirmed 2017 ONSC 1517 (CanLII)).

The duty to accommodate requires persons seeking accommodation to make available to their employer such details of their medical circumstances as are necessary to prove the disability and to design and achieve the accommodation. In some cases, this can include diagnosis or treatment information, but each case depends upon its own circumstances (Peace Country Health v United Nurses of Alberta, 2007 CanLII 80624 (AB GAA)).

The duty to accommodate extends to employees who use medical marijuana, supported by a medical certificate, in the workplace. Can employers remove employees who use medical marijuana from safety-sensitive positions? In Calgary (City) v Canadian Union of Public Employees, the arbitration board stated that if there was no evidence that the grievor’s use of marijuana for medical purposes had any impact on his or her ability to perform safety-sensitive duties in a safe manner, then the employer cannot transfer the grievor to a non-safety-sensitive position (Calgary (City) v Canadian Union of Public Employees (Cupe 37), 2015 CanLII 61756 (AB GAA)). However, an employer who terminated an employee working in the logging industry for smoking marijuana without having a medical authorization to lawfully possess and use marijuana for medical purposes and without informing his employer, did not discriminate against its employee (French v Selkin Logging, 2015 BCHRT 101 (CanLII)).

In the purely technical sense of the term, an employee has an “absolute” right to keep their confidential medical information private. But if the employee exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences. This is because an employee has no right to sick leave benefits or accommodation unless the employee provides sufficient reliable evidence to establish that they are entitled to benefits, or that they have a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided (Complex Services Inc. at para 86).

In certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. An employer is not entitled to request an Independent Medical Examination (IME) in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate (Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII) at paras 76-77).

However, employers need to have the employee’s authorization in order to collect and use personal information. Thus, an employer cannot contact an employee’s doctor without the consent of the employee. There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. Except where required or permitted by law, an employer cannot seek and a doctor cannot give out any patient medical information without the patient’s freely given informed specific authorization and consent (Hamilton Health Sciences v Ontario Nurses’ Association, 2007 CanLII 73923 (ONLA) at para 21).

In addition, there are some restrictions on the employers’ right to seek medical information. Employers are not allowed to use and disclose the medical information that they receive any way they want. The improper disclosure of the employee’s medical information can constitute a breach of PIPA. An employer discussing an employee’s medical information with other employees is inappropriate. Employees who have disclosed their medical information in order to be accommodated have the right to confidentiality. Medical information that they share with their employer should be kept private, unless they give their consent to the employer to disclose the information. Within the workplace, those who need access might include the employee, the employee’s supervisor and other staff handling accounting, payroll, deductions, benefits or related issues (see: An Employer’s Guide to Employment Rules).

Employees have the right to keep their medical information private. But in order to be accommodated in the workplace, they are required to provide relevant medical information. Employers have a duty to accommodate employees to the point of undue hardship, therefore they have a right to seek medical information when necessary.