A nonpractising lawyer is seeking a declaration from the B.C. Human Rights Tribunal that there is a significant level of racial discrimination in the legal profession.

In addition, Peter Mokua Gichuru wants the tribunal to take "judicial notice" of a significant stigma and discrimination associated with a diagnosis of mental illness in the legal profession.

In October 2009, the tribunal ruled that the Law Society of B.C. violated Section 14 of the Human Rights Code by discriminating against Gichuru on the basis of mental disability.

The complaint arose over the law society's practice of asking law students seeking employment as temporary articles if they've ever been treated for schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder, or manic depressive illness.

When Gichuru answered the question in 1998, he acknowledged that he was being treated for depression, which was deemed to be a major affective illness.

The law society then sought further information before granting him temporary articles. He was asked the same question in 2002 and 2003 when he applied to become an articled student.

Once again, Gichuru answered the questions affirmatively, even though he had not suffered from depression since 1998. He was then required to provide further information, which led him to file a complaint that the question discriminated against him on the basis of mental disability or perceived mental disability.

At a case-management hearing on September 3, Gichuru argued that he should be allowed to rely on numerous publications from Canadian law societies, international law societies, journals, and other media in the assessment of a remedy for the discrimination he experienced.

According to a September 23 procedural ruling by tribunal member Tonie Beharrell, Gichuru wants to present these articles to the tribunal.

In addition to highlighting discrimination on the basis of race and mental disability, Gichuru wants the tribunal to take judicial notice of a high prevalence of depression in the legal profession.

Beharrell ruled that publications from various law societies and legal journals are admissable.

"On the other hand, anecdotal articles in newspapers or websites, articles which merely describe other reports or studies that have been conducted, are not such sources," she added.

The law society argued that the number of publications should be restricted, and that those dealing with racial discrimination were irrelevant. This was because the tribunal did not find that the law society discriminated against Gichuru on the basis of his race.

Beharrell, however, ruled that "the publications relating to racial discrimination in the legal profession are arguably relevant to a matter in issue, and in particular in relation to the Law Society’s potential argument that Mr. Gichuru has failed to appropriately mitigate his losses."

"The Law Society indicated that it may argue, at the end of the day, that Mr. Gichuru failed to mitigate his loss, and that this failure is evidenced by a somewhat patchy employment record," she noted. "To the extent that Mr. Gichuru is arguing that his employment history or mitigation efforts can be explained, in part, by underlying racial discrimination in the legal profession, the publications on which he proposes to rely are arguably relevant."

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