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Queen's University
 

Kelly v University of British Columbia [2012] BCHRTD no. 32

The complainant, Dr. Carl Kelly, has four documented disabilities: Attention deficit disorder, inattentive type (ADHD), Non-Verbal Learning Disability (NVLD), and intermittent anxiety/depression.  

He was a resident in the UBC Family Practice Residency Program and an employee of its affiliate, the Providence Health Care Society from 2005 to 2007, when he was terminated from the program and dismissed from employment on the basis of unsuitability.    

The complainant’s academic trajectory is as follows: he failed his first two rotations in Pediatrics (Nov 1, 2005 – Dec 18, 2005) and Family Medicine (December 19 – April 30, 2006). Accommodations (increased supervision and feedback) were put in place and his performance improved.  He passed his remediated rotation in Pediatrics (May-June 2006).  He neither passed nor failed his remediated rotation in Family Practice (July 1-24, 2006) but passed his rotations in Clinical Training Unit-Internal Medicine (July 31-August 27, 2006) and Emergency medicine (August 28th – September 24th2006).

In September fellow residents came forward with a concern about an inappropriate email Dr. Kelly had sent to the resident group. It was a satirical account of taking a patient’s sexual history. The concern was handled informally, Dr. Kelly apologized to his peers, who forgave him and who asked the program not to terminate his residency on account of the email. The program directors were concerned, based on their knowledge of Dr. Kelly’s performance difficulties, that he was psychotic and dangerous.  The Tribunal determined that while the email incident was never investigated or resolved formally, it was the factor that led the Program to dismiss the complainant, first by granting him an involuntary leave of absence, then by rejecting as unfeasible the recommendations for accommodation put forth in a subsequent psycho-neurological assessment (that it had ordered him to take) and a professional assessment of that assessment (that it had agreed to read upon the request of Dr. Kelly’s union).  The Program dismissed Dr. Kelly as unsuitable on account of the life-long nature of his disability (ADHD) and the unfeasibility of implementing the psychiatrist’s recommended accommodation. 

Issue

Did UBC (the Program) discriminated against Dr. Kelly on the basis of disability?

Decision

Yes

Reasons

  1. It made stereotypical assumptions about Dr. Kelly’s disability (he is probably psychotic and dangerous) based on one inappropriate email which was never investigated formally and for which he was never disciplined.
  2. They failed to take into consideration that his academic trajectory was positive and that with accommodation he was able to succeed
  3. They provided no proof that the accommodations would cause any legitimate undue hardship except inconvenience and morale problems amongst the residents who would have to shoulder extra responsibility due to re-bundling of tasks
  4. They had an exaggerated interpretation of many of the recommended accommodations (what they involved and how often they would have to be implemented) and failed to see that in his last two rotations he had succeeded without most of them.

Order

Cease and desist discrimination order

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000