CHRR Doc. 88-064
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Denis J. Barnard
Complainant
v.
The Board of Commissioners of Police, David Galbraith, Dean Cunningham, Judge R. Tremblay, Nick Kingerski, Robert Asselin, William Martin Jr., Lloyd Lindberg, the Town of Fort Frances and Michael Solomon, Chief of Police
Respondents
August 10, 1982 and August 27, 1985
December 11, 1987
Place:
Fort Frances, Ontario
Before:
Peter A. Cumming
Comm. Decision No.:
233A
Appearances by:
Kim Twohig, Counsel for Denis J. Barnard and the Ontario Human Rights Commission
Allen G. McKitrick, Counsel for the Board of Commissioners of Police of the Town of Fort Frances, the Corporation of the Town of Fort Frances, and Michael Solomon, Chief of Police
DISABILITY — discriminatory treatment in employment on the basis of diabetes — BONA FIDE OCCUPATIONAL QUALIFICATION — absence of diabetes for police officer
Summary: The Board of Inquiry finds that Denis J. Barnard was not discriminated against because of his diabetes during the period that he was required to be on restricted duties by the Board of Police Commissioners of the Town of Fort Frances.
Denis Barnard is a police officer. During the period July 1981 to June 1984, the Board finds that Denis Barnard was not in control of his diabetes. He suffered a number of hypoglycemic reactions, some of which required hospitalization. There was reason for the Chief of Police and the Board of Police Commissioners to consider Mr. Barnard's condition a potential risk to himself and the public and to restrict his duties.
In 1984, Mr. Barnard's diabetic condition was stabilized by corrections in his insulin intake and eventually he was returned to normal duties.
The Board of Inquiry finds that, in the circumstances, the actions of the Chief of Police and the Board of Police Commissioners were reasonable.
The complaint is dismissed.
Introduction
1The complainant in this matter, Denis J. Barnard, is employed as a police officer with the Fort Frances Police Force, and has been since 1970.
2Mr. Barnard was diagnosed as an insulin-dependent diabetic in 1972, and informed his employer at that time. The complainant is classified as a Type 1 diabetic, which means that his blood glucose concentration is abnormally elevated, and therefore, his blood sugar level must be controlled by injections of insulin. Insulin suppresses blood sugar. If insulin is given to a person in an excessive amount, its effect is to lower the blood sugar below what is normal. As sugar is provided in regulated amounts to the nervous system, including the brain, by the blood, the absence of sugar can lead to what is called hypoglycemia or an insulin shock reaction, and unconsciousness. Hypoglycemia is a condition where the sugar level of the blood stream is lower than that which is required by the body. Hypoglycemia is the result of using insulin and the timing thereof in relation to other factors, including physical activity and food intake which relate to energy expenditure. Hypoglycemia is usually indicated in the first instance by symptoms, due to the reactive response of the brain in increasing adrenalin secretion into the blood stream, such as weakness, blurring of vision, perspiration, a tingling of hands. If the mild hypoglycemic reaction is not quickly controlled by the ingestion of sugar, a severe hypoglycemic reaction will follow, with the central nervous system being suppressed or impaired, with disorientation, loss of co-ordination, dizziness, confusion, and the person may even become unconscious. Some diabetics may go right into a severe hypoglycemic reaction, and do not pass through the mild adrenergic stage.
3Although Chief Solomon knew about the complainant being a diabetic from 1972 onwards, the complainant himself admitted in his testimony that there was nothing to suggest the Chief discriminated against him before 1981, because he was a diabetic. The complainant also testified that he had never had a bad evaluation nor had he ever been disciplined.
4The diabetes resulted in problems in respect of Constable Barnard's employment, commencing as of December 22, 1980. From this date to 1984, Constable Barnard experienced repeated and frequent insulin reactions, some severe, which caused car and other property damage, risk to himself and to others. He alleged in his complaint of August 10, 1982 (Exhibit No.2) that the respondents discriminated against him in respect of his employment, alleging that they were in breach of subsections 4(1) and (2) and section 8 of the Code.
5On July 22, 1981, Constable Barnard was in a motor vehicle accident while on duty, due to hypoglycemia and this led to him being placed "on duty at home" as of August 9, 1981, at full pay and benefits.
6A further, second complaint dated August 27, 1985 (Exhibit No. 3) was made by Constable Barnard, to cover the period of time August 10, 1982 to July 11, 1985. As well, this second complaint (Exhibit No. 3) embraces the period covered by the first one (Exhibit No. 2). It is to be noted that the prohibited ground of "handicap" (or disability as I prefer to refer to it) was not present in Ontario human rights legislation until June 15, 1982.
7The respondent Board of Commissioners of Police (the "Board") held a hearing under section 27(e) of the Police Act, R.S.O., c. 381, commencing September 8, 1982, and which concluded November 9, 1982. On January 13, 1983, the Board gave Constable Barnard a "restricted duties" status, replacing the "on duty at home" status which had applied to Constable Barnard from August 9, 1981 to January, 1983. The "restricted duties" status precluded the carrying of a gun and driving a police car. With "restricted duties" Constable Barnard did clerical duties in civilian dress. The "restricted duties" were to continue for an indefinite period until it was established to the Board's satisfaction that Constable Barnard's diabetic condition was under control. The "restricted duties" were removed June 12, 1985, when Constable Barnard returned to full duties as a police officer.
8Constable Barnard's first complaint (Exhibit No. 2) in essence says that he should not have been given as of August 9, 1981, the "on-duty at home" status, or at least it should have been for a very short period of time, given the medical evaluations and reports being done in respect of his condition. In essence, his second complaint (Exhibit No. 3) repeats this complaint, and goes further to allege that his "restricted duties" status imposed as of January 15, 1983, was applied more severely than the respondent Board stipulated, that is, while he was not to be allowed to drive a police car or carry a weapon, he could do all other duties, but in fact he was allowed only to do clerical duties. Constable Barnard does not really dispute strenuously the merits of the "restricted duties" status period; rather, he complains about the degree of restrictions imposed in practice. However, he also alleges the "restricted duties" status was imposed for too long a period, in that he says he was capable of performing all duties from at least October 26, 1984, although he did not regain full duties status until June 12, 1985.
9Dr. John A. Moorhouse of Winnipeg testified on behalf of the complainant. He stressed that the problems in employment encountered by Constable Barnard are not necessary to the disease of diabetes itself, nor a necessary consequence of treatment. Rather, the problems resulted from "treatment error" which were quickly corrected by Dr. Moorhouse once Constable Barnard came under Dr. Moorhouse's care in June, 1984. Dr. Moorhouse adjusted Constable Barnard's insulin dosage drastically, cutting the daily dosage from 90–100 unites to 50 units daily in divided amounts. Given this adjustment, there have not been any further problems. All of the problems encountered by Constable Barnard would have been avoided if the medical treatment he received had been adequate to his diabetic problem. Unfortunately, it was not adequate until Dr. Moorhouse treated him.
10Dr. Moorhouse could say unequivocally that with the adjustment, Constable Barnard's "diabetes control now is categorized as excellent" and his "health is wholly normal." (See No. 14 in Exhibit No. 4). Dr. Moorhouse's report of May 10, 1985 to the Board was ultimately responsible for the reinstatement of Constable Barnard to normal duties June 12, 1985.
The Evidence
11The Fort Frances Laverendrye Hospital record for Mr. Barnard was entered (as Exhibit No. 88). Between April 29, 1975 and May 12, 1980 there were nine admissions while he was off-duty to hospital for hypoglycemia. The May 12, 1980, incident involved a car accident. There were other off-duty hospital admissions which may have related to hypoglycemic reactions. Although all of these incidents occurred "off-duty," that was simply fortuitous.
12Between December 22, 1980 and May 5, 1984, Constable Barnard had four situations while on duty, and a fifth situation while off duty, where he became unconscious due to hypoglycemia, insulin shock reactions.
13December 22, 1980, while on duty, Constable Barnard fainted due to an insulin reaction at the Red Dog Inn and was taken to hospital by ambulance. Even though this incident occurred while the complainant was on duty, the only immediate action taken by Chief Solomon was to restrict him, for safety reasons, in respect of driving on duty until he received a medical clearance. Indeed, Chief Solomon suggested that the complainant go to the Mayo Clinic after the December 22, 1980 incident, which the complainant did. Chief Solomon was sent letters by a physician from the Mayo Clinic February 3, 1981 and by a physician from the Fort Frances Clinic February 10, 1981, and on the strength of their representations, again allowed Constable Barnard to drive motor vehicles, and thus undertake his full, regular duties as a police officer.
14On July 22, 1981, while operating a police patrol car, Constable Barnard became unconscious due to hypoglycemia and his vehicle struck a telephone pole at an intersection where there is considerable pedestrian traffic. Fortunately, no one was hurt. On July 29, 1981, Constable Barnard was ordered by Chief Solomon to have "a complete physical and medical examination" at the Fort Frances Clinic.
15On June 14, 1982, the complainant (not on duty, of course, as he was assigned to "off-duty at home" over this period), became unconscious in a restaurant due to hypoglycemia.
16On August 5, 1983, while working on "restricted duties" at the police station, and again on May 5, 1984 at the police station, Constable Barnard became unconscious due to insulin shock reactions. In the latter situation, Constable Barnard was in charge of the radio communications between the police headquarters and constables outside the station on duty.
17It is clear from all the evidence that from July 22, 1981, when Constable Barnard was first restricted in his duties, until June, 1984, when he came under the care of Dr. Moorhouse, that Constable Barnard was not in control of his diabetic condition, and had unpredictable insulin reactions which would cause temporary unconsciousness.
18Constable Barnard suffered psychologically with his illness, with his inability to take control of the situation, with the inability of his physicians to control his diabetes, and with the restrictions placed upon him working as a police officer. He was fighting the problem as best he could, and he desperately wanted to pursue his regular duties as a police officer and regain his pride and self-respect in serving the Fort Frances community as a capable police officer.
19However, Constable Barnard's problem of not being able to control his diabetic condition also raised very serious problems for Chief Solomon and the Board. It was their responsibility to provide a competent police force to maintain law and order in Fort Frances, and not to endanger the public in doing so. The Board's actions in proceeding to the Police Act hearing in the fall of 1982 were very upsetting to the complainant, but the Board was only acting responsibly in dealing with a difficult and frustrating situation. At that point in time, Constable Barnard's car accident of May 22, 1980, the situation at the Red Dog Inn December 22, 1980, the police car accident of July 22, 1981, and the seizure at a restaurant June 14, 1982, were known. Ultimately, the Board concluded that the complainant would retain his status as a police officer with the Fort Frances police force, but he could not be armed or drive a motor vehicle. These were quite reasonable restrictions, given the risk posed to Constable Barnard and the public.
20The complainant saw several physicians, including the Mayo Clinic in Minnesota, about his diabetes. Whatever the reasons, these physicians were either not fully informed of the actual situation as to the diabetes not being in control, or knowing the situation were not able to bring the diabetes under control. The respondents knew the diabetes was not under control, were in fact correct in that position, and at all times were acting upon that belief. In my opinion, the facts of the instant situation showed a real and substantial risk by reason of the complainant being a police officer, and not in control of his diabetes. The facts of this case make it very different from other situations involving diabetics, such as seen in Mahon v. Canadian Pacific Ltd. (1986), 1985 CanLII 5214 (CHRT), 7 C.H.R.R. D/3278 (Fed. Trib., Cumming); rev'd (1987), 1987 CanLII 5394 (FCA), 8 C.H.R.R. D/4263 (F.C.A.); leave to appeal to Supreme Court of Canada refused, November, 1987.
21The two physicians at the Fort Frances Clinic who examined Constable Barnard following upon the July 22, 1981, accident, both were of the view that the complainant could make adjustment in his insulin dosage and thereby control his diabetes. Indeed, on August 19, 1981, he obtained a "back to work slip" from one of the physicians, stating that he could return to work immediately. In response, the complainant received a letter (Exhibit No. 27) from respondents' counsel dated August 28, 1981, enquiring about whether he might wish to resign "before any formal proceedings are commenced." At that point, both the physicians chosen by the employer, and in respect of whom the complainant had been ordered to be examined by, had said they could not see any reason why the complainant could not return to his regular duties. However, both physicians' reports really begged the fundamental questions as to whether control had now been achieved, and why the lack of control had been present up to that point of time (Exhibit No. 5).
22Having said the above, I want to add that the respondents were not shown to be correct in their assessment that the complainant's diabetes was out of control, simply as a matter of hindsight. In my view, they had good reason to be very skeptical of the doctors' opinions they were receiving over the period July 22, 1981 to 1985. First the doctors' opinions as expressed (until Dr. Moorhouse's opinion was given) were really quite guarded. For example, a physician wrote (Exhibit No. 24) to Chief Solomon August 5, 1981, just after the July 22, 1981, accident:
It is my opinion that Constable Denis Barnard has a reasonable understanding of his diabetic condition. He perhaps has not paid sufficient regard to the need for a regular diet. He probably has the necessary information to make adjustments in his insulin dosage and diet, to enable him to cope with the stresses of his work. It is essential that everyone in his work and in fact anyone who operates a motor vehicle, is capable of doing this so as to avoid further hypoglycemic events in the future.
23Given the history of the problem to that point, including the serious on-duty incidents of December 22, 1980 and July 22, 1981, it is not surprising that the respondents were not at all comforted by this report. Nothing in the report suggests that a problem has been identified (such as the quantity of insulin dosage, which is not even discussed in the detailed report) and that some remedial steps have been taken to overcome the known problem.
24It was clear that over this period of time Chief Solomon did not think Constable Barnard could function as a police officer due to his diabetes, which in the Chief's opinion, was not in control. He, and the Board standing behind him, were correct in this assessment. I have no doubt that the motivation for Chief Solomon's action was that he wanted the best police force possible, and did not want an officer who posed a risk to himself and the public. There was no intentional discrimination with a malicious motive.
25Complainant argues that there should have been reasonable accommodation, but "handicap" was not a prohibited ground until June 15, 1982. Moreover, the complainant was receiving his full pay and benefits during this period. Undoubtedly, there was frustration, anguish, and anxiety on the part of Constable Barnard, but Chief Solomon had similar feelings given his responsibility for the police force and obligation to protect the public. There was great uncertainty about this unfortunate problem for both protagonists.
26The initial hearing of the Board under the Police Act was scheduled for April 8, 1982, but a settlement was then tentatively achieved although it too became a matter of dispute and of no significance.
27On June 14, 1982, the complainant suffered another episode of hypoglycemia, and was taken to hospital from a restaurant. A further notice was given July 13, 1982 that the Police Act hearing would be reconvened September 8, 1982. Evidence was led at the hearing that the complainant had been admitted to the Fort Frances Hospital on thirteen occasions as a result of hypoglycemic reactions, over the seven year period 1975–1982. However, the medical evidence of the six doctors at the hearing was not really helpful one way or the other. They said there was no risk of a hypoglycemic reaction if the diabetes was well-controlled and that when they saw the complainant he appeared to have the diabetes in control. The problem is that events both prior to and subsequent to the hearing suggested that the diabetes was not in control until Dr. Moorhouse came on the scene. The Board gave its decision January 13, 1983, and in that decision noted:
All of the Doctors indicated that if Constable Barnard could manage his diabetic condition, there is no reason to believe he should not be fit for duty. . . . (p. 7)
The Counsel for the Chief has argued that it is the board's decision and not that of the medical practitioners to decide whether Constable Barnard is fit for duty. With respect to Counsel, the Board is of the opinion that it has no jurisdiction to discharge Constable Barnard unless it receives clear and unequivocal evidence from two qualified medical practitioners stating that the Constable is unfit. Although several medical practitioners were called by the counsel for the Chief in this case, none of them would state that in his opinion Constable Barnard was unfit. (p. 8)
28The Board did note some medical concern about Constable Barnard driving, and accordingly ordered:
. . . that Constable Barnard be returned from the status of "duty at home" to restricted duties, which do not involve carrying a weapon or driving a public service vehicle. This status will continue for an indefinite period. When Constable Barnard has demonstrated that he can control his diabetic condition and that he has been symptom-free from hypoglycemic attacks for a sufficient length of time, the Board can then consider his return to full duty.
29In my opinion, the reasoning and decision of the Board made good sense. I have also reviewed the five volumes (Exhibit No. 87) of the evidence given at the hearing under the Police Act. In my view, the hearing was conducted very fairly, the results were warranted by the evidence, and the order of the Board appropriate and fair in the circumstances.
30The complainant argues (Paragraphs No. 139 and No. 140 of written submissions) that it is only with hindsight that the complainant's diabetes was seen to be unstable; but that given the physicians' reports which were suggesting he had his diabetes under control, the complainant should have been allowed to assume full regular duties, including driving a vehicle and carrying a weapon. Complainant argues that the fact that physicians were seen in hindsight to be in error is irrelevant. This argument would be successful if it were established that the respondents intentionally discriminated with malicious motive. In my view, they did not.
31However, the allegation of the complainant in the instant situation is that there was intentional discrimination without any malicious motive, in that the respondents denied the complainant regular duties as a police officer because he was perceived to be a diabetic not in control, and they had a duty first, to rely simply upon the medical opinions, and second, to reasonably accommodate the complainant in any and all events.
32However, where there is no malicious motive, and the intention of the respondents in discriminating is benign, then if the complainant "is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap," the respondents have not breached the Code: Section 16. The test under section 16 is an objective one, and if in hindsight the complainant is shown to be incapable of performing the essential duties, then the respondents have not discriminated unlawfully. In the instant situation, in my view, the respondents have established that in the interest of the safety of both the public and Constable Barnard, he should not have carried a gun or driven a vehicle in the period from July 2,1981, to 1985. As such, in my view, he was incapable of performing the essential duties of a police officer with the Fort Frances Police Force during that period.
33There clearly is a duty of reasonable accommodation upon the respondents: Cameron v. Nel-Gor Castle Nursing Home, 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/18381 (Ont. Bd. Inq., Cumming). Section 16(1)(b) refers to "essential" duties, so that it implicitly requires an employer to reasonably accommodate an employee with a handicap by ignoring his inability to perform or fulfill non-essential duties. (This duty will be more explicit when the amendments to section 16 made by S.O. 1986, c.64, section 18(a)(10), are proclaimed in force.) However, the respondents are not obliged to hire, or to continue the employment of a person, in either the same position (police officer), or in an essentially different position from the one (police officer) sought, unless such accommodation can be done without undue hardship upon the respondents.
34As already stated, the respondents were under no duty to the complainant by reason of the Code until June 15, 1982. Given that the latest episode of hypoglycemia at that point was June 14, 1982, and notice of the Police Act hearing was given shortly thereafter, I do not think it was unreasonable in all circumstances for the respondent to have the complainant on leave, with full pay, pending the completion of the hearing.
35With the Board's decision of January 13, 1983, the complainant was restored to regular duties with the restriction of not being able to carry a weapon or drive a police vehicle. These were reasonable and responsible restrictions. In terms of the consequential limitations in functions that could be performed by the complainant, given these two restrictions, as I have already stated, I do not think Chief Solomon was unreasonable with the complainant. Chief Solomon was given the discretion by the Board to exercise his judgment as to the specific tasks or functions Constable Barnard would perform. One can argue that the complainant might have been given more leeway and been permitted to wear his uniform without a gun, allowed to work with a partner, do some public relations, be a court officer without a gun, or do some other general police duties beyond those that were in fact done. However, in my opinion the decisions that were made in this regard were made as matters of judgment by Chief Solomon in good faith, and meet a test of reasonableness on an objective basis, and should not be interfered with. The complainant was accommodated by the respondents in being kept on as a police officer at full pay and benefits, although his activities were restricted in terms of the norm.
36As mentioned, Chief Solomon was given the discretion to implement the regime of "restricted duties."
The complainant alleges that the duties he was given subsequent to the decision of January 13, 1983, as a "clerk typist" were unduly restrictive.
37The complainant argued that he could have been given more duties during his period of "restricted duties" than he was in fact given, but that he was unduly restricted. Chief Solomon did not allow him to be a court officer, because from the Chief's viewpoint that position was normally filled by a uniformed, armed officer, and did not let him be a breathalyzer technician or guard prisoners, because such situations involved prisoners or persons potentially to be taken into custody. Whether or not Chief Solomon was exercising the best possible judgment in not removing these constraints, I have no doubt he was acting in good faith and as a matter of judgment on his part, given the functions and needs of the police force as he understood and saw them. His judgment should not be displaced, unless it is apparent from the objective evidence that there was not a reasonable basis for his exercising his judgment in the manner he did.
38A number of incidents were referred to in the evidence. Section 29 of Regulation 791 under the Police Act provides that a police officer shall not engage in any other occupation. The complainant at one point became involved in a small restaurant operating under the name "Barney's," which was also the complainant's own nickname.
39The Deputy Chief of Police, J. Murray, learned of the restaurant and raised concerns with the complainant, given the Police Act regulation. Constable Barnard maintained he was just a passive investor in the property, and that the name of the restaurant was given in recognition of a third party who had no interest in the restaurant. This incident is of no importance to the issues in this hearing. The Chief and Deputy Chief of the Police Force became concerned about the matter because a member of the public had raised the matter and because of the Police Act requirement. No charges were laid.
40A second incident involved the Chief's criticism of the complainant for wearing in the police station an old police parka as civilian clothing with silver "police" buttons still on it. Chief Solomon was enforcing a generally applicable rule in respect of this trivial matter.
41A third incident involved the Chief's refusal to allow the complainant to postpone his holidays, while he was not working, being "on duty at home," to the next calendar year. Again, Chief Solomon was simply enforcing a generally applicable rule.
42Constable Barnard's driving license had been suspended following the July 21,1981 accident when his physician wrote to the Ontario Ministry of Transportation and Communications (MTC) saying he should not drive. The complainant's license was reinstated December 1, 1981, when the complainant had two other physicians write to MTC.
43Following upon the August 5, 1983, episode of hypoglycemia, Chief Solomon wrote to the MTC expressing his concern about the complainant having a driver's license. Whether or not it can be argued Chief Solomon was being somewhat of a busybody, he had an honest and understandable concern about whether the complainant should be driving at all, and was also skeptical as to how Constable Barnard had managed to have his license reinstated. The complainant was then required to provide the MTC with a medical report, which he was able to do and his license was not suspended.
44June 23, 1983, Constable Barnard, not having had a hypoglycemic episode for a year, presented the Board with reports from two physicians, indicating that he had "satisfactory control" of his diabetes and suggesting he "could certainly undertake full duties as a police officer." The Board advised by letter July 13, 1983, that it was not going to make a decision "at this time" in "view of the multiplicity of proceedings" then current.
45However, the complainant had an insulin reaction August 5, 1983, while working in the radio room of the police station, was rendered unconscious and taken to the hospital. He was permitted to return to his restricted duties regime upon providing a supporting letter from his physician. There was further incident of hypoglycemia, May 6, 1984, with the complainant again becoming unconscious and being taken to the hospital. He was permitted to return to work on the restricted duties basis with a back-to-work slip from his physician, but only upon the intercession of the Mayor with Chief Solomon. Fortunately, the complainant then saw Dr. Moorhouse June 6, 1984.
46Dr. Moorhouse wrote (Exhibit No. 55) to Chief Solomon July 20, 1984, in part as follows:
As of this date in the opinion of Dr. Johnstone and of myself, Constable Barnard is ready to return to work. There will not be a further problem. Hypoglycemia will not occur again.
In my opinion from this time there is not a need to restrict Constable Barnard's duties.
. . . I would not find it inappropriate if you feel it desirable to impose some precautionary limit on his independence during a demonstration period of, say, six months, or a year at the most, provided, that such a limit is inconspicuous, and not injurious to Constable Barnard's peace of mind, self respect, or the respect of others toward him.
47Constable Barnard obtained a back-to-work slip from a Fort Frances physician July 20, 1984, but he was not reinstated.
48Chief Solomon did not even discuss Dr. Moorhouse's letter with Constable Barnard. Dr. Moorhouse wrote (Exhibit No. 56) to Chief Solomon again November 8, 1984:
In my opinion there is no medical reason why he should not return to his normal duties. As his medical advisor in this matter, I would be grateful to know whether this will permitted or, if not, the duration and nature of a further probationary period which you envision.
49Again, Chief Solomon did not speak to Constable Barnard about Dr. Moorhouse's letter. Quite clearly, common sense and courtesy, and good management practices as well, would dictate that Chief Solomon should have discussed these medical reports with Constable Barnard.
50The complainant asserts that there was harassment because of his handicap contrary to section 4(2) of the Code. Harassment involves intentional mistreatment. See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd. Inq., Cumming).
51There are a number of criticisms that can be made of Chief Solomon, in the treatment of the complainant. Chief Solomon was generally uncommunicative toward Constable Barnard after the July 22, 1982 accident. He did not really discuss the complainant's position with him after this time, and was generally aloof, cold, and unsympathetic toward him. However, while this style of management left much to be desired, it did not amount to harassment. In the main, this simply evidenced the Chief's personality which from the evidence seemed to be the same toward all officers generally. Moreover, the Chief was quite uncertain as to how frank and straightforward the complainant was being in respect of the problem with his diabetes. Constable Barnard did not believe he had a problem in his diabetes not being under control. The impression from the evidence is that he understated the number and nature of his hypoglycemic situations to everyone concerned, including his physicians.
52It must be remembered that from 1972, to December 22, 1980, the Chief did not place any restrictions at all upon the complainant. There is no suggestion of Chief Solomon having any concern about Constable Barnard's diabetes over this period. It was only after the July 22, 1981, accident that the relationship between the Chief and Constable Barnard really deteriorated. From that point onward, Chief Solomon chose in effect to avoid Constable Barnard other than as required in the formal context of the police station and as required in the various hearings and court proceedings. This was because he had lost confidence in Constable Barnard being able to function as a police officer in respect of his regular duties, without being at risk to himself and the public.
53Upon Dr. Moorhouse remedying the complainant's problem by bringing the diabetes under control, the Board restored complainant to full duties. Given the history of the continuing problems in gaining control of the diabetes and the unsuccessful medical advice and assistance until Dr. Moorhouse was consulted, the Board was entitled to wait for a reasonable period of time before removing the restrictions, and the time that lapsed before removing the restrictions was reasonable in the circumstances. Indeed, Dr. Moorhouse himself agreed with the reasonableness of the probationary period in the circumstances (Exhibit No. 55).
For the reasons given, the complaint is dismissed.
54Two further matters remain to be dealt with. First, because Commission counsel's written argument was submitted much later than when it was undertaken to be provided, respondents argued that for that reason alone the complainant's complaint should be dismissed. In my view, put simply, it would be wrong and inappropriate on the basis of this reason, to determine issues in respect of the substantive human rights of a complainant.
55Second, respondents argue forcefully that they should be awarded costs under section 40(6) of the Code. In considering this issue, I have reviewed the case of Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008, (Ont. Bd. Inq., Hubbard).
56The awarding of costs is discretionary and its exercise depends upon all the circumstances in the particular situation. In Pham, the Board of Inquiry was of the opinion that false allegations had been made in bad faith. that is not true of the instant situation. As well, in Pham, given the finding of bad faith and, as well, the Board of Inquiry's view of "the irresponsible way in which the Commission through its officers and agents discharged its mandate" in respect of the matter before the tribunal, it was held that "in the particular circumstances undue hardship was caused" to the respondents in that case. That is not true of the instant situation.
57Respondents in the proceedings before me raised concerns about the motives and zealousness of the Human Rights Commission in proceeding with this Board of Inquiry; however, these concerns were unfounded. The complaint was not trivial, frivolous, vexatious or made in bad faith. Nor was this a case where "in the particular circumstances undue hardship was caused" to the respondents. I have no doubt that the Commission was discharging its mandate properly and conscientiously. My decision is given after several days of hearing with several witnesses, amounting to more than one thousand pages in transcript evidence. There are several hundreds of pages of exhibits. I have no doubt in the sincerity of both principals in the case — Constable Barnard and Chief Solomon. Each believes he has been maligned by the other. I have made it clear in my findings that there was no unlawful discrimination of the complainant by the respondents. Having said that, I might also add that the personalities of both Constable Barnard and Chief Solomon contributed to the lack of effective communication and understanding between them, which in turn caused an equally shared bitterness and hostility. Constable Barnard ignored the reality that his diabetes was out of control for a period of time. Chief Solomon responded to the situation with a lack of compassion and communication, and this compounded the problem. In this sense, their human frailties, which we undoubtedly all share, contributed to this protracted dispute.
As stated, for the reasons given, the complaint is dismissed.