Sharon Saucier v. Smart Lazer Grafix, a Division of Smart Enterprises Corporation, Maureen Roberts and Phil Hall, 2009 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Saucier

Applicant

• and-

Smart Lazer Grafix, a Division of Smart Enterprises Corporation,

Maureen Roberts and Phil Hall

Respondents

case Resolution Conference DECISION

Adjudicator: Keith Brennenstuhl

Date: July 16, 2009

Citation: 2009 HRTO 1053

Indexed as: Saucier v. Smart Lazer Grafix

AppearanceS BY

Sharon Saucier, Applicant ) Cecil Norman and ) U-sheak Koroma, ) Representatives

Smart Lazer Grafix, a Division of ) Smart Enterprises Corporation, ) Gregory F. McGinnis, Maureen Roberts and Phil Hall, ) Counsel Respondents ) )

1This is an Application filed September 3, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on April 26, 2005 and abandoned upon the filing of this Application with the Tribunal. The applicant claims that her employer, the corporate respondent, did not meet its duty to accommodate her disability.

2The Case Resolution Conference (“hearing”) was held on May 21 and 22, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are over a year old by the time they reach the Tribunal.

3Evidence and submissions on remedy were reserved until my decision on the merits was issued.

DECISION

4The Application is dismissed.

BACKGROUND

5The applicant was employed as a binder with the corporate respondent (“Smart Lazer”) since March 2001. On December 2, 2002, she experienced work related injuries to her neck and left shoulder and was off work for six months during which time she received WSIB benefits.

6Based on a functional ability assessment of the applicant, the WSIB confirmed in June 2003 that the applicant had restrictions including no repetitive left shoulder and arm movements, no above shoulder work, no repetitive use of the left upper extremity and lifting limitations. Smart Lazer informed the WSIB that it would provide the applicant with modified bindery work to meet the applicant’s restrictions.

7In order to determine if the job offered to the applicant was suitable, a WSIB ergonomist visited the work location on July 7, 2003 and assessed the job. The ergonomist recommended accommodations to the bindery job to meet the applicant’s restrictions. Smart Lazer agreed to make the accommodations and the applicant returned to work the next day at reduced hours. The ergonomist recommended that the applicant return to work on a gradual basis starting at four hours per day.

8The applicant worked from July 8 to 11, 2003 for about four hours each day. She did not work on July 14, 2003 and worked for about three hours on July 15, 2003, complaining that she was in pain. From that date forward the applicant did not report for work.

9According to the applicant, she did not report for work on the instructions of her doctor. On July 17, 2003, the applicant provided her employer with a doctor’s note which stated that “[The applicant’s] condition doesn’t allow her to do any overhead work or repetitive lifting with her arms”.

ANALYSIS

10Employers are required to make every reasonable effort, short of undue hardship, to accommodate an employee who becomes disabled. The respondents do not dispute that the applicant was disabled within the meaning of the Code. The question, therefore, is whether Smart Lazer, has satisfied its obligation to accommodate the applicant.

11The applicant argues that the modified bindery position was not consistent with her medical restrictions. The applicant’s position in this regard is consistent with the finding of WSIAT in its decision of January 2006. However, in the context of the duty to accommodate under the Code, my task is to determine whether the employer failed to provide appropriate accommodation based upon the information available to it at the relevant time. I find that it did.

12At the relevant time, the employer had received the WSIB ergonomics report, which concluded that the modified bindery position was within the applicant’s restrictions.

13There was no evidence tendered to discredit the assessment made by the ergonomist at that time. The applicant claims that she was not present and did not participate in the ergonomist’s onsite assessment and argues that without her input the assessment was necessarily flawed. I do not accept this.

14The personal respondents, the president and vice-president of Smart Lazer, both testified that they were present during the onsite assessment, and testified that the applicant was also present. More importantly the ergonomist’s report makes it quite clear that the applicant was indeed present during the assessment. The ergonomist reports having interviewed the applicant and reports that the applicant explained all her job duties and her work methods. The ergonomist wrote: “[The applicant] stated that she “could do any of the tasks in the bindery shop as long as she did not have to lift any boxes”. I find that the applicant was present during the onsite assessment and that she was actively engaged by the ergonomist in the assessment.

15I note that the applicant never disputed the ergonomist’s findings at the time of her attempted return to work. The applicant counters that she never received a copy of the ergonomist’s report and therefore was not in a position to challenge the ergonomist’s findings. However, the evidence does not support this contention. It is clear that by letter dated July 8, 2003, the day following the assessment, WSIB did send the ergonomic assessment by way of enclosure to the applicant.

16The applicant argues that the employer’s duty to accommodate under the Code is not discharged by simply providing a modified job based on an ergonomic report generated under the aegis of the WSIB. In my view, though, it was not unreasonable for Smart Lazer to rely on the WSIB ergonomic assessment. After all, the WSIB is in the business of assessing disability in the workplace environment. Moreover, the applicant participated in the assessment and did not object to any of the findings at the time.

17I am not suggesting that the WSIB is the final arbiter of an employer’s duty to accommodate an employee with a disability under the Code; indeed, an employer must turn its own mind to address how an employee’s disability might be accommodated. However, it is my view, the ergonomic assessment was the best information Smart Lazer had with respect to modified employment for the applicant and it was consistent with the various medical notes provided to Smart Lazer by the applicant including the medical note that the applicant tendered on July 17, 2003 days after she stopped reporting to work. There was no evidence suggesting that there was better information to be had on the issue at that time.

18I recognize that WSIAT found, in its decision of January 2006, that the applicant was unable to perform the modified work available to her in July 2003. In my view, however, this is not to be taken as suggesting that Smart Lazer failed in its duty to accommodate the applicant at the relevant time. WSIAT’s decision reads in part “…because of the impact of her left arm and neck, it is more likely than not that she would have been unable to perform such modified work even if the accident employer had made further modifications.” In other words, the WSIAT adjudicator was of the view that Smart Lazer could not accommodate the applicant in the bindery job no matter what modifications were made.

19The applicant claims that Smart Lazer should have offered her alternative positions to better suit her needs. She identified two positions in particular: a cleaner or a security guard. It is not clear whether either of these positions would have met the applicant’s restrictions but, be that as it may, by the applicant’s own admission neither of these positions were available. Smart Lazer had one cleaning position but that was occupied by an employee with greater seniority than the applicant. With respect to the security guard position, the respondents made it clear and the applicant concurred that Smart Lazer never had a security guard position. Mr. Hall, the president, testified that Smart Lazer never had need for a security guard. There is no evidence of any other available positions that would have met the applicant’s needs. In my opinion, the accommodation process does not require an employer to provide make work or to create a job that is not productive or that, in the employer’s view, does not need to be done.

20In my view, the evidence does not support the claim by the applicant that her employer, the corporate respondent, did not meet its duty to accommodate her disability at the relevant time.

ORDER

21For all these reasons the Application is dismissed. It will not be necessary to hear from the parties on remedy.