“Red flags” were used to assess workplace violence threat; employer’s request for psychiatric assessment was justified


The Human Rights Tribunal of Ontario has ruled that the City of Toronto was justified in requiring an employee to obtain a psychiatric assessment because of “red flags” which included a comment, “Do you want me to die?”

The employee’s handling of a tense security-related incident involving anti-poverty activists was questioned.  When asked by a City security supervisor for more information about the incident, the employee said, “Do you want me to die?”   The supervisor testified that he found the comment, “Do you want me to die?” to be concerning and that he felt that he had an obligation to follow up for health and safety reasons. He testified that he was concerned as he did not know what was going on in the applicant’s mind.

Shortly afterwards, the City told the employee that it had made an appointment with a psychiatrist for him to obtain an assessment. The employee testified that he felt humiliated, but that he decided to go for the psychiatric assessment to prove that he was “mentally fit”, but that he also filed a complaint with the City’s Human Rights office due to the “coercive” act of sending him for a psychiatric assessment.  The employee’s supervisors did not receive the assessment report, but were simply told that the employee was fit to return to work without any restrictions from doing the tasks of the job.

The Tribunal decided that the referral to the psychiatrist was reasonable given that there were “red flags” present, as the City representatives were acting in good faith out of concern for health and safety and had determined that it would not be appropriate to impose discipline on the employee for his actions if they were related to a disability.  Also, there was no evidence that the City had broken confidentiality.

With respect to the “red flags”, the City’s Manager of Security and Life Safety had testified that there are “red flags”, which are relevant in assessing a workplace violence threat, which include “a lack of an immediate support system, a preceding event . . . and a change in character.” He said that the “red flags” that the City had identified were: “the applicant lived alone, was emotional, had stated ‘Do you want me to die?’ . . . and he had been uncharacteristically insubordinate.”

This decision suggests that where an employee’s behaviour raises “red flags” about his or her mental health such that the employee’s – or other employees’ – safety may be at issue, an employer may be justified in requiring the employee to submit to a psychiatric assessment.  In general, the employer is not entitled to receive the assessment report but is entitled to receive the assessor’s determination as to whether the employee is fit for work and able to work safely.

Mokri v. Toronto (City), 2014 HRTO 853 (CanLII)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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