Kelly v. UBC (No. 3), 2012 BCHRT 32 (CanLII),
From the case:
[547] The opinions of two specialists in the area of ADHD suggested that, with appropriate accommodation, Dr. Kelly might be successful in the Program. I do not consider it either conscientious or reasonable for the Program to have curtailed Dr. Kelly’s access to accommodations that may have been provided to other residents under the Policy, but were not provided to Dr. Kelly because he had ADHD, which is a life-long deficit.
[548] The Appeals Committee concluded that:
If the diagnosis of ADHD dictated accommodations that could have been implemented by the Department of Family Practice without placing the structure or the educational philosophy of the Program at risk, it would have been appropriate to proceed to remediation that included the accommodation and then to reevaluate.
[564] Dr. Kelly was not provided the opportunity to demonstrate his abilities, and be assessed against the Program’s professional and patient care standards, with the benefit of reasonable accommodation. I have found that Dr. Kernahan, the PG Deans and the Appeals Committee unreasonably rejected Dr. Gibbins’ recommendations for accommodation. As well, UBC’s reliance on the life-long nature of Dr. Kelly’s disorder as a reason to conclude that he would not be successful even if the Gibbins recommendations were implemented (e.g., see the last page of Dr. Kernahan’s August 23, 2007 letter) was unreasonable, particularly in light of Dr. Gibbins’ evidence that he would expect the effect of the disorder to be reduced if the accommodations were implemented.
[565] It may be that implementation of the accommodations would have sufficiently reduced the effect of the disorder in Dr. Kelly’s learning and work environment to allow him to successfully complete the Program. If he was not successful in his family practice training after having been provided these reasonable accommodations, then the Program would have been in a factually sustainable position to determine that it was unable to reasonably accommodate him within the Program without incurring undue hardship. As it now stands, it made that decision prematurely.
[566] Dr. Kelly was entitled to the reasonable accommodation of his disabilities within the learning and work environment. I appreciate that the physician educators and Committees involved with Dr. Kelly were dealing with a unique situation and reached conclusions they considered to be in the best interest of the Program. However, the decisions to preclude Dr. Kelly access to further remediation or probation, and to dismiss him from the Program, when assessed within the legal framework of UBC’s human rights obligations towards Dr. Kelly under the Code, were discriminatory.
[567] Dr. Kelly’s complaint under both s. 8 and s. 13 of the Code is justified.