HARJOT ATWAL
<Staff Writer>
In light of our most recent exam period being another reminder of the ways in which pressure at law school can increase anxiety and stress levels, I thought I would just take a moment and reflect on some “Mental Health” issues. Now, it must first be remembered there is a difference between “Mental Health” and “Mental Illness”. The latter term connotes a diagnosed condition, which if left untreated and unchecked, could lead to “Mental Illness”.
On the other hand, “Mental Health” overall has to do with anxiety and stress levels; thus, I doubt any of us can say we have been at our most “mentally healthy” during exam periods in law school. Instead, I suggest we should consider mental health to be a spectrum where moving too far in one direction will inevitably create difficulties for your ability to function properly and lead a productive life. Thus, you can have a diagnosed condition, but still be classified as “mentally healthy”.
Nonetheless, I don’t think that lawyers in general or even law students think of it as a spectrum in the same manner as I do, where you’re allowed to wrongly slip in one direction for a moment so as long you eventually “course-correct” after feeling the consequences. Instead, the following quote is of useful guidance:
“Suffering is part of the human condition. This may seem painfully trite to say, but in the legal community, we too often view having human vulnerabilities as a failing…My experience confirms for me that lawyers, despite protests to the contrary, are, in fact, human and that those who are able to accept their humanness live much more balanced lives. Whatever life throws at you, allowing yourself to feel and process the feelings that accompany those hardships helps you cope with and ultimately get past them. Resisting human frailties, on the other hand, leads to self-loathing and anxiety.” (http://lawtimesnews.com/201211269479/Commentary/Speaker-s-Corner-Why-do-lawyers-insist-upon-torturing-themselves)
However, we, as lawyers, remain very concerned with disclosure issues, such as where OLAP is characterizing the Law Society’s complaint as concerning whether a chill effect would be created amongst recovering lawyers if a different third-party provider would replace them in providing this service. Furthermore, on the issue of Osgoode’s Audio Recording Policy (the “Policy”), we lawyers continue to have difficulty deciding what the “duty to accommodate up to undue hardship” means in the context of stigmatized disabilities when dealing with our peers, professors, and other members of the legal profession. Both of these “case studies” can be informed through analysis from the Moore v BC (Education) framework approach to where human rights legislation interacts with Anti-Discrimination and Disability Law, which has provided greater certainty in the law; this is important given the fact that both OLAP and Osgoode are businesses on some level, but the BCE and Peoples decisions left corporate law highly amorphous and malleable in terms of rendering traditional notions of fiduciary duties, oppression, and the business judgment rule highly uncertain. Theoretically, what’s in the “best interests of the corporation” could involve considering the “stake of recovering and mentally ill or unwell lawyers.”
First, let’s talk about the “after you’re done law school, and you’re out there in the real world” issues. With respect to the Law Society’s decision to replace OLAP with Homewood Human Solutions, I agree with the decision at first glance from an Administrative Law perspective. I think the fact that Homewood Human Solutions would provide a more cost-efficient, and yet a potentially broader service are important considerations. I recognize OLAP’s concern that without a third-party provider, a potential chill could be created amongst recovering lawyers out of concerns of disclosure issues with the regulator. However, the Law Society has noted it intends to keep AON Hewitt as its current and continuing buffer between itself and Homewood. Furthermore, this eliminates OLAP’s purported need to increase funding, which initially caused the rift between itself and the Law Society in the first place. Moreover, OLAP refused to disclose any management information when asked questions about “rapidly escalating costs…and characterized the law society’s request as inappropriate.” This appears to me as poor conduct on OLAP’s part as I don’t think they’ve respected the duty to give reasons, and on some level could be hiding behind this characterization to cloak problems with their own management structure. From a business law perspective, OLAP’s conduct seems questionable and the Law Society’s conduct may require deference in observance of the Business Judgment rule.
Yet, the premise of OLAP’s argument is based on Anti-Discrimination and Disability Law, and is something like “only lawyers know the specific problems in the profession, and thus are the only ones suitable to help”. This is a problematic assertion at best, IMHO. Looking to Moore (and assuming other elements of the test are met), in the context of Disability Law, the holding turned on “[m]ore significantly, the Tribunal found that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed.” Thus, we see a reasonableness standard required of looking to alternative options, during times of financial crisis or limited budgetary resources, and the Law Society’s decision looks perfectly justifiable to choose the cheaper and potentially more widely available service. This is supported by notions that, in the “vicinity of insolvency”, business directors owe their primary duty to the “best interests of the corporation” rather than to any one individual stakeholder.
But, Administrative Law reminds us of the focus on relevant expertise. So, I took a look at Homewood’s track record. They’re very reputable and have “33 years of experience in providing assistance to professionals”, which could be a potentially more valuable asset to the legal profession instead of a specialized “for lawyers” type-organization like OLAP. Thus, while I think it’s certainly valuable to do things like appoint an Academic and Wellness Counsellor who has both a “JD/Masters in Counselling Psychology” and graduated from Osgoode, I think it is unrealistically costly to hope for such a specialized professional standard to be applied across the board with something like OLAP which is meant to be province-wide. Indeed, I think Osgoode was very lucky to get Melanie Banka Goela, and was initially skeptical of whether Osgoode could get a licensed counsellor with a JD and five years experience in counselling at a salary of $58-66K a year.
Further to discussion of Homewood’s expertise, here is some multimedia that Homewood has released on its website which I find particularly compelling; it references a Youtube video made by a student named Jennifer who was diagnosed with bi-polar disorder, OCD, and panic disorder while studying civil and environmental engineering at Western. Key comments from her video:
“My situation proves that with proper medical treatment AND with academic accommodation, students can successfully graduate University in even a rigorous program such as engineering…[Another] major thing I learned is that treatment wasn’t always in a pill, but in a combination of therapies…I think what I want students to know who are listening to this video is that early intervention makes all the difference…even though I have a diagnosed mental illness, I’m actually very mentally healthy.”
So, even someone with three concurrent disorders can pull it together in academic programs as challenging as law or engineering. Thus, we come back to the question of why the “stigma” around mental health issues is problematically exacerbated in the legal profession, and why we stereotypically view mental health issues as debilitating frailties that we need to hide from our peers, professors, and the regulator. One answer could be: it starts in law school.
So, let’s look at issues surrounding cases like: “I’m still in law school and have a disability; how am I protected?” Well, to that end, you look at the Policy and see that Audio Recordings can be made available to students on medical, compassionate, and equitable grounds. With specific regard to disabilities (according to the September 2012 Policy):
“With the express consent of the instructor, recordings of lectures may be approved where such recordings have been accepted by the Programs and Records Office to be the only reasonable accommodation for a student with a disability. Where this determination has been made, the consent of the instructor shall not be unreasonably withheld.” [emphasis in original]
While this specific section has been deleted from the January 2013 policy, it appears to nonetheless indicate something like “possession is still 9/10’s of the law”, right? Essentially, the notion that “consent of the instructor shall not be unreasonably withheld” is conflated with the Policy’s stated governing principle that “a lecture is the intellectual property of the instructor”. A reasonableness standard implies deference based on the assessment of alternative options. In this case, if a professor refuses to consent, a student will be paired with a Dean’s Scribe.
Now, I have no problems with the Dean’s Scribe program, and I think it’s great; students are lucky they can count on their fellow students to share notes, if they are not able to attend classes themselves or have some other learning disability. Indeed, I believe Gayle Dyke does a great job as Student Services Coordinator, in both collecting notes from Dean’s Scribes and distributing those notes to students with disabilities in a timely fashion. However, I take issue with some assumptions seemingly underlying the policy on lecture recordings, the insistence on consent of the instructor, the claim “technology issues” were the real reason many lectures went unrecorded this year (such as during OCIs), and the professional standard we are holding our instructors to in terms of using the technology.
I’ve listened to lecture recordings for a number of different classes. While the recording is the intellectual property of the lecturer and there are privacy concerns for the student who asks questions while recorded, what sinister advantage do you really think I’m going to try and derive from listening to your lecture? Do you think that I will try to retain a permanent recording, quote you “out of context”, and attempt to defame you or otherwise injure your reputation? Do you think I will try to sell it to make a profit? Or do you think I will just stop showing up to class, even if I’m healthy enough to do so, because I can hide behind the veil of “Mental Illness”?
I find such questions somewhat insulting; yet, as judges famously have drawn on hypothetical scenarios to infer challenges and consequences in the Charter context (like in R v Oakes), I can imagine the situation arising where some student motivated by profiteering desires decides to take advantage of the situation. However, I should mention that you can’t actually download the lectures permanently from “MyOsgoode” and “possess” them in this sense; instead, you have to login to listen and they disappear when the course ends.
Furthermore, it should be taken into consideration that studies show an overwhelming number of students believe recorded lectures, when used in environments where traditional face-to-face learning is practiced, are not used as a replacement or substitute. Students believed the notes taken during class could not be replaced with a recorded lecture, but rather the recorded lecture was used for areas of the lecture that needed reiteration. For example, “according to data from Temple University outside Philadelphia, virtual offerings actually increase student attendance”. (http://campustechnology.com/articles/2007/02/classroom-capture-lecture-recording-system-draws-devotees-at-temple.aspx)
Thus, from a common-sense approach, I question the governing principle’s reliance upon “the consent of the instructor” within the Policy; furthermore, I’ve taken at least two courses where instructors freely distributed recordings to everyone in the class, and attendance didn’t drop severely all the time (which it is bound to do during OCIs or near exams). Also worthy of note, these two instructors were better adept at using the actual equipment, their voices could be heard more loudly and clearly in the digital file, and it was less likely they would forget to record or have the whole thing end up not “coming through” and just sounding like static, white noise. Thus, thinking again from the business law perspective, do we put greater value on the employees and their wishes, or do we put value on the product created and its effect on the consumers/students?
Going back to the approach from Moore; in that case, it was specifically determined that the object of the legislation was not to provide “special education” and engage in a self-defeating comparator group analysis of differential treatment. Instead, it was to provide “general education”, as well as guarantee the equality of outcome to increase “their individual potential” and ability to contribute to society regardless of disability. As the SCC makes clear: “special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students [emphasis in original]”.
Thus, we see that they have adopted the “The Meiorin/Grismer approach [which] imposed a unified remedial theory with two aspects: the removal of arbitrary barriers to participation by a group, and the requirement to take positive steps to remedy the adverse impact of neutral practices.” Thus, I believe it is questionable whether the instructor’s consent is an arbitrary barrier; however, I confess not knowing a lot about Intellectual Property or Copyright Law. But, thinking about this from an Anti-Discrimination and Disability Law perspective, we see a “requirement to take positive steps”.
Surely, such a requirement means more than relying on other students for Dean’s Scribe Notes with varying quality, especially in cases where the professors do not actually exercise their power to opt-out and refuse consent for audio recordings. Instead, if they say they’re going to do it and reliance on this comment creates a reasonable expectation in the mind of the student, professors should be taking reasonable steps to make those recordings available and of good quality. The idea of hiding behind technological deficits and attributing blame to York’s “Instructional Technology Centre (ICT)” doesn’t appear to meet this standard to either “take positive steps” in instances of adverse effects discrimination, or “[w]here this determination has been made [that someone has a disability], the consent of the instructor shall not be unreasonably withheld”.
That’s just my two cents on the issue since the new locus classicus decision of Moore has been released, and I thought it would be interesting to apply the case in these 2 contexts. However, overall, I think Osgoode does a great job in giving the people who are trying to get well the opportunity to study remotely with 65-75% of total audio recordings or Dean’s Scribe notes. While certain professors record a much lower percentage of lectures due to increased human error, I’m not sure that other law schools meet this level of accommodation in terms of the overall percentage. Additionally, students with disabilities are given the option the record the lectures with their own equipment; however, this also does not create the same “equality of outcome” for people who are unable to attend class in the first place or do not know anyone who could record the lectures for them. This school really is a pioneer in terms of how it uses technology, but that doesn’t mean I’m going to be completely happy with a printing press because you can’t figure out how Windows 7 works.