James Saxon v. Amherstburg Police Services Board, 2009 HRTO 1628

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Saxon

Applicant

-and-

Amherstburg Police Services Board, Raymond Marentette

and Bartolomeo Dipasquale

Respondents

Case Resolution conference DECISION

Adjudicator: David Muir

Date: October 7, 2009

Citation: 2009 HRTO 1628

Indexed as: Saxon v. Amherstburg Police Services Board

Appearances

James Saxon, Applicant ) Linda Saxon, Representative

Amherstburg Police Services Board, )

Raymond Marentette and ) Edward J. Posliff, Counsel

Bartolomeo Dipasquale, Respondents )

1This is an Application filed September 11, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). A Case Resolution Conference ("hearing") was held on September 1, 2009, in accordance with the expectations expressed in the Code and the Tribunal's Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant and both individual respondents as well as Tim Berthiaume an employee of the respondent Board.

2The applicant alleges discrimination in employment on the basis of disability. The applicant, a platoon sergeant with the respondent employer, was disabled with tendonitis from mid-February 2004 to January 18, 2005. He alleges he requested accommodation in the form of modified or light duties from his employer on three separate occasions, but that the employer stated that there were no light duties available.

3The applicant's concerns, as initially expressed at the hearing, were that he would be unable to safely respond to calls for assistance from his platoon members while they were on patrol – this is a normal part of the platoon sergeant job. He said he communicated this to the employer. Otherwise he could perform all of his duties. The applicant later stated that he also could not safely operate a police car because he would not be able use the radio, which required the use of his right hand, and that he could not use a keyboard.

4He stated that the employer had offered appropriate accommodation in the form of light duties to other employees but inexplicably not to him. As a consequence, the applicant was required to access his sick bank to top up the sick benefits paid by the third party disability carrier for the period of his disability.

5The respondents state that an appropriate accommodation was offered to the applicant, which he declined. The respondents state that the offer made would have had the applicant continue to follow his shift supervising his platoon over the phone and radio but that he would not have to respond to calls. The respondents state that the accommodation that the applicant really wanted was for "light duties" which in this workplace meant, at the time, the opportunity to work straight days. The respondents state that at the time they could not provide that accommodation to the applicant as there were five or six officers of the 28 employed by the Service at the time that were being accommodated for Code-related reasons; they were in effect, ahead of the applicant in the accommodation queue. The best that could be done was the offer made as set out above.

6The applicant denies that this offer was made and states that he was simply told that there were no "light duties" available. Despite his formal position that he would have accepted what the employer claims it was offering as an accommodation, the focus of the hearing was on the ability of the employer to accommodate the applicant by allowing him to work days only.

7At the outset of the hearing I heard the submissions of the parties on the nature and scope of the dispute. Both parties raised issues that were well outside the scope of the human rights complaint underlying this Application. After hearing from the parties, I identified the following primary issues and the hearing proceeded on that basis:

a. There is no serious issue the applicant is a person with a disability at the material times. Rather the real issue as it related to the employer's duty to accommodate is what were the essential duties of his employment that the applicant was unable to perform as a result of his tendonitis?

b. In light of the impairments experienced by the applicant at the time, did the employer fail to accommodate him to the point of undue hardship? In particular were there modified duties that could have been offered to the applicant?

c. If the answer to (b) above is No, what remedies might flow from that violation? In particular, has the applicant suffered any losses as a consequence of being off work?

8For the reasons that follow I find that the employer offered the applicant an appropriate accommodation which he declined. I also find that there were no other accommodations that could have been provided to the applicant short of undue hardship, and in particular his being reassigned to day shift only was not something that the employer could have accommodated at the time.

9Despite these findings I would also note that the employer's response to the applicant's situation was less than perfect. The parties did not communicate at all effectively at the critical times and responsibility for that rests with both the applicant and the individual respondents. It is troubling that the employer admittedly did not tell the applicant why it could not provide him with a straight days schedule. The explanation offered, that the applicant knew this was impossible given the small size of the force, even if accurate, is inadequate.

10The lack of documentation of the parties' discussions of the applicant's issues and the employer's proposed accommodations is striking. The employer is primarily responsible for this. The lack of documentation has had two consequences. First, given the evidently fractious nature of the employment relationship, the potential for misunderstanding between the parties was significant. Second, given the passage of more than five years since the material and quite brief conversations between the applicant and his employer, the lack of documentation makes it extremely difficulty to know what the parties were communicating to each other at the time.

The Evidence

11The applicant has been employed by the Amherstberg Police Service since 1986. At the time of these events he was a patrol sergeant responsible for a platoon of three to five constables. He was their direct supervisor. His duties were in large part administrative. Much of the work could be performed from the desk without the need to go out in the field although it is not disputed that field work is often required in the normal course and would be considered an important part of the job.

12There is no dispute the applicant experienced acute tendonitis and for a period of time could not use his right hand. There is some dispute about when the employer was made aware of the formal diagnosis but the employer always accepted his claims of disability at face value and never challenged the applicant's assertion that he was unable to perform some of the duties of his employment. On the evidence presented at the hearing I find that the employer was aware in a general sense that the applicant was asserting in February 2004 that he could not perform some of his duties.

13It is agreed the applicant sought accommodation from the employer. He asked for "light duties" and the employer responded that there were no "light duties" available. Mr. Dipasquale confirmed this. The un-contradicted evidence of the respondents was that "light duties" was understood in this workplace to mean straight days and no response to calls; that is, the officer on light duties was not required to leave the station and attend in the field. The respondents admit they did not tell the applicant why "light duties" were not available.

14It is significant to note the employer understood at all material times the applicant's preferred accommodation was "light duties". At the material times, Mr. Marentette explained, five or six other officers were being accommodated with "light duties". Because of this, officers in day shift jobs, such as the community relations officer, had to take on field responsibilities in order to provide accommodation opportunities. The respondents' evidence was that that they could not accommodate the applicant on straight days because there was no meaningful work left to do during the day given the other officers that were being accommodated in that way. Mr. Dipasquale confirmed this evidence.

15Mr. Dipasquale testified that he proposed the applicant could continue to follow his shift, completing all of his normal duties including taking calls on the phone and offering supervisory advice to his platoon over the phone or radio, as accommodation. All of this would be done from his desk in the station and he would not be required to leave the station and go into the field. Mr. Dipasquale confirmed the applicant rejected the offer and appeared uncomfortable with it.

16The applicant testified that this accommodation proposal would have been acceptable but he denies this is what was offered to him.

17I prefer the version of the discussion offered by Mr. Dipasquale. The passage of time has undoubtedly affected the memories of all of the witnesses, but Mr. Dipasquale gave his evidence in a straightforward and coherent manner. His recollections were more or less precise and consistent with the everyday course of events.

18The applicant's evidence was less about what was said by whom and when, but rather was couched in terms of his positions on the points in dispute. For example his initial narration of the employer's response to his request for "light duties" was a blunt, "there are none". But when challenged on this statement, his testimony became more detailed and supports finding that there was a discussion of something very much like the offer Mr. Dipasquale claims to have made.

19The applicant was also less than forthcoming about things that did not help his case. For example, although a patrol sergeant with some management responsibilities, he claimed not to know how many police officers were with the service at the time of the events in question. I find this claim to be extremely unlikely. I also note his testimony on another contentious point was contradicted by an affidavit sworn by him in July 2008. When asked about this contradiction the applicant testified that his memory about events in 2004 was better now than a year ago and that he currently suffers from a medical condition that has affected his ability to recollect events and give evidence.

20After these initial brief discussions there was very little communication between the parties. In April 2005 the applicant filed a WSIA claim and spoke with Mr. Marentette about that. There was a brief conversation about the availability of "light duties" at that time. Mr. Marentette said that there were none at the time, other than what had already been offered.

21In September the employer requested a functional abilities evaluation ("FAE"). The applicant provided an updated FAE prepared for the WSIA application. It indicated that nothing had changed. Mr. Berthiaume testified that in light of the applicant's unchanged condition there was nothing more for the employer to do and the document was filed.

22The applicant attended at the workplace in October 2005 to prepare vacation schedules for his patrol for the following year. He had surgery to deal with his tendonitis in mid-November. The employer learned of the surgery on or about December 30, 2005.

23The next contact between the parties was a telephone message left for the applicant by Mr. Berthiaume in December 2005 offering a training opportunity. The applicant did not respond and suggested that it was inappropriate for the employer to have made such a request or offer.

24In early January 2006, Mr. Berthiaume and the applicant had a conversation about CPR refresher training in February. There was much argument about what was said in this conversation. To my mind it does not matter which version of the discussion I accept as there is not much difference between the two. The applicant claims amongst other things that Mr. Berthiaume asked him whether or not he was physically able to do CPR. Mr. Berthiaume agrees that he did so, but only after he was unable to get an answer to his general inquiry about whether or not the applicant was able or willing to attend the training. The applicant also claims that Mr. Berthiaume said that he could order him to get a doctor's note about his ability to take the training. Mr. Berthiaume agrees that he said something like that although he testified that he said that he could ask the applicant to get a doctor's note. In any event Mr. Berthiaume did not order or request the applicant to obtain a doctor's note. The conversation ended abruptly with Mr. Berthiaume not getting a direct answer to his question in either version of the conversation.

25As a result of this interaction, Mr. Berthiaume inquired of the benefits insurer whether there could be any consequence for what he perceived to be the applicant's failure to cooperate. This request seems to have resulted in a letter to the applicant from the insurer reminding him of his obligation to undertake modified duties if offered by the employer and if within his restrictions. The applicant testified that he contacted the insurer and explained that he was going to see his physician in a few days and it was expected that he could be returning to work soon. This information resolved the issue for the insurer. The applicant got clearance to return to work on January 18, 2006, and returned very shortly thereafter.

Decision

26I find that the employer fulfilled its responsibilities to accommodate the applicant. An offer of reasonable accommodation, albeit not the exact form of accommodation sought, was made to the applicant and was rejected by him. I find the respondents were not able to accommodate another officer on light duties at the time and that the accommodation offered was within the applicant's restrictions and that he could safely have performed those duties. The applicant seems to believe that because the employer had accommodated a number of other individuals by allowing them to work day shift and not take field calls, they had an obligation to provide the same accommodation to him. This is not so. The obligation on the employer is to provide reasonable, not the preferred, accommodation to the point of undue hardship.

27Although the applicant suggests the respondents failed to meet the undue hardship standard because it failed to consider other means of providing him light duties, such as requesting provincial grants, or calling on the OPP or neighbouring municipal police forces to take over his duties as a patrol sergeant, I find in the circumstances that such measures, even if practically available, were unnecessary to meet the obligation to provide reasonable accommodation of the applicant's disability.

28As regards the telephone communication between Mr. Berthiaume and Mr. Saxon in December 2005 and January 2006 about training, there is nothing inappropriate in an employer contacting an employee on a medical leave enquiring about training opportunities. It is not entirely clear what the applicant thought the import of this interaction was, but I find nothing in what transpired in this regard that could amount to a violation of the Code.

29For all of these reasons, the Application is dismissed.