Mental illness question on application costs B.C. Law Society $100,000

Society changed question and related procedures to balance interests of the public and applicants after tribunal’s finding of discrimination
|employmentlawtoday.com|Last Updated: 07/21/2011

The Law Society of British Columbia (LSBC) must pay more than $100,000 to a prospective lawyer for a question it posed on its admissions form and related policies that discriminated against those with mental illness, the B.C. Human Rights Tribunal has ruled.

In August 1998, Peter Gichuru applied to the LSBC so he could work with the province’s Ministry of the Attorney General. At the time, he suffered from occasional bouts of depression. He mostly kept it to himself, but on the LSBC’s application he was required to answer the following question: “Have you ever been treated for schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder or manic depressive illness?”

Gichuru claimed his relationship with his principal changed after the principal saw his answer to the question, but it didn’t affect his articling with the ministry. However, Gichuru said he had to answer the question again in 2002 for the Law Society Admission Program, which he had to complete to article with a law firm. Gichuru claimed his articling was delayed because he answered in the affirmative to that question, which led to tension and eventually the end of his employment on April 30, 2002.

Gichuru had some difficulty finding other firms to article with and his application with the LSBC dragged on. By the time he was called to the bar on Sept. 22, 2004, he testified he felt burnt out.

Gichuru filed a human rights complaint, claiming the LSBC discriminated against him with respect to membership in an occupational organization, based on mental disability. On Oct. 29, 2009, the tribunal found the LSBC discriminated against him, particularly because of the question it asked on the application regarding his mental illness treatment. It found the question and the process related to it was systematic discrimination and its handling of his applications for admission was individual discrimination.

After the 2009 decision, the LSBC began a process to change the question to better reflect medical fitness to practise law while protecting the interests of applicants as well. On Sept. 30, 2010, it replaced the old question with new wording:

“Based on your personal history, your current circumstances or any professional opinion or advice you have received, do you have any existing condition that is reasonably likely to impair your ability to function as a lawyer or articled student? If the answer is “yes” to the question above, please provide a general description of the impairment.”

The LSBC also revised its processes to ensure privacy and confidentiality for applicants and how to handle an affirmative answer to the question.

In a remedy decision released on July 15, the tribunal ordered the LSBC to pay Gichuru $42,993 for lost wages caused by the delay in his call to the bar and $29,506.91 for lost wages after his call and during the hearing. In addition, the LSBC had to pay $25,000 for injury to Gichuru’s dignity, feelings and self-respect and $2,155.87 in incidental trial costs.

The LSBC said it would not appeal but noted the importance of asking about an applicant’s medical fitness due to the “often rigorous” practice of law that “demands a high level of functioning.”

“At no time was it the Law Society’s intention to discriminate,” said LSBC president Gavin Hume in a news release. “While the B.C. Human Rights Tribunal found the question discriminatory, the tribunal made it clear the society had been acting in good faith in carrying out its mandate to protect the public by ensuring lawyers are competent and fit to practise. The society is confident the new application question and process continues to protect the public while at the same time treats applicants fairly.”

For more information see:

Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 (B.C. Human Rights Trib.).

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