HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jo-Ann Morin

Applicant

-and-

Toronto Police Services Board, Earl Witty, and Jeffery Howell

Respondents

case resolution conference decision

Adjudicator: Keith Brennenstuhl

Date: May 12, 2009

Citation: 2009 HRTO 618

Indexed as: Morin v. Toronto Police Services Board

APPEARANCES

Jo-Ann Morin, Applicant ) On her own behalf

Toronto Police Services Board, Earl Witty, ) Sharmila Clark,

and Jeffery Howell, Respondents ) Counsel

Dr. Jonathan Davids ) Carolyn R. Brandow,

) Counsel

PRELIMINARY MATTERS

[1] This is an Application filed August 5, 2008 under section 53(3) of the Human Rights Code, R.S.O 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on December 12, 2007 and abandoned upon the filing of this Application with the Tribunal. The applicant alleges the respondents discriminated against her in employment on the basis of disability and marital status. She states she was subjected to a poisoned work environment on the basis of disability or marital status and this resulted in her resignation from employment with the respondent Toronto Police Services Board (the “TPSB”).

[2] The Case Resolution Conference (the “CRC”) was conducted on March 30 and 31, 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.

[3] The hearing of this Application was bifurcated. The parties were advised that the issue of liability would be determined first and in the event an infringement of the Code was found, a further hearing date would be set to determine remedy.

[4] At the outset of the CRC I ordered that Dr. Jonathan Davids be removed as a respondent to the Application and the style of cause be amended. Dr. Davids was never the applicant’s employer and was not employed by the TPSB. At all times he was a self-employed medical practitioner engaged in private practice.

DECISION

[5] The Application is dismissed.

Background

[6] The applicant commenced employment with the TPSB in 1990 in the capacity of Communications Operator. Communications Operators staff the 9-1-1 Emergency Call Centre and the Communications Centre for the TPSB (the “Centre”). It is a 24 hours, 7 days a week, 365 days of the year undertaking.

[7] Centre personnel are divided into five groups known as Platoons. The applicant was a member of Platoon “D”. Each Platoon worked in cycles of five weeks and during each cycle a platoon would rotate from day shift, to afternoon shift and to night shift.

[8] In January 2004 the applicant was diagnosed with depression and prescribed an anti-depressant medication. Her evidence was that her depression did not prevent her from performing her duties as a Communications Operator and that she continued to work with little to no time missed from work.

[9] In July 2006 the applicant spoke to her second level supervisor, the respondent Mr. Howell, regarding the possibility of a transfer to a position requiring day shift work only, in particular a transfer to the Employee Family Assistance Program (the “EFAP”). The transfer was denied for operational reasons. In the ensuing months the applicant applied for other day shift positions within the TPSB without success.

[10] In November 2006, the applicant advised Mr. Howell that her spouse was being transferred to another shift and that this was causing her stress. The applicant’s spouse, a sergeant with the police force, was given a transfer and, as a result, they were working opposite shifts and had little time together. She characterised this transfer as a punishment.

[11] On February 15, 2007 the applicant met with her third level supervisor, the respondent Mr. Witty, informing him that she was under stress and finding it difficult to sleep. She requested straight day shifts to address her stress and sleep issues. Mr. Witty testified the applicant did not indicate family issues were the cause of her stress. It was concluded that the applicant would arrange an appointment with Medical Advisory Services (“MAS”) to see if she had a substantiated medical condition.

[12] On March 21, 2007 the applicant saw Dr. Davids. Dr. Davids testified that his role in MAS was to provide ongoing medical advisory services to the TPSB and to assess individuals for fitness for work. According to Dr. Davids, the applicant advised him that her depression was under control and that her problem was with job stress. Dr. Davids directed the applicant be assigned straight day shifts for a month during which time she was to provide him with further medical documentation supporting the accommodation and the results of a scheduled sleep study.

[13] On April 18, 2007 the applicant again met with Dr. Davids. He agreed to extend straight day shifts for another month, but advised that the sleep study and the medical documentation supplied to date did not justify a continuing need for this form of accommodation.

[14] On April 20, 2007 the applicant requested a transfer to her spouse’s unit, E Platoon. Mr. Witty denied the transfer for operational reasons but indicated to the applicant it could be effected in October after the busy summer period was over and a new class of operators came in.

[15] The applicant was scheduled to resume shift work at the beginning of June. She resigned from the TPSB effective June 12, 2007.

ANALYSIS

[16] There are three issues which I must consider:

(1) Does the evidence establish that the applicant is a person with a disability and, if so, did her disability require accommodation and was the only reasonable accommodation the assignment to straight day shifts?

(2) Does the evidence support the allegation that the applicant was discriminated against on the basis of marital status?

(3) Was the applicant subjected to a poisoned work environment on the basis of disability or marital status resulting in her resignation?

Disability and Reasonable Accommodation

[17] While I accept the applicant’s depression is a disability within the meaning of the Code, I am not satisfied there is evidence to support finding her depression or any other medical condition was affecting her ability to carry out the essential duties of a Communications Officer or that, if it did, the only reasonable accommodation available was the assignment to a straight day shift work schedule.

[18] Since being diagnosed in 2004 the applicant’s depression is under control and has not prevented her from carrying out the duties of a Communication Officer with little or no missed time. She confirmed this in her meeting with Dr. Davids on March 21, 2007. Her psychologist’s April 17, 2007 report also notes her condition as “stable” with no “external factors/stressors complicating this case. He advised she could return to work immediately. At the same time he reports the applicant “continues to complain of ongoing sleep disturbance” which “will likely require day shifts” and directs “please see sleep study”. Her family doctor, who did not testify, diagnosed the applicant with insomnia and concluded that her prognosis was good if her work hours were restricted to day shifts.

[19] Dr. Kenneth Buttoo performed the applicant’s sleep study. His report notes “the patient presents with a chief complaint of daytime fatigue” but concludes she has no underlying sleep disorder and the applicant’s sleep efficiency was 81.6%. In his opinion anxiety played a role in the applicant’s sleep problems and he prescribed medication to help the applicant sleep during the day. Dr. Buttoo did not make any recommendations with respect to accommodation of the applicant or her shift schedule.

[20] Reviewing this evidence I am satisfied there is no evidence of a sleep disorder related to the applicant’s depression or any other medical condition. In reaching this conclusion I have considered the reports and recommendations of the applicant’s family physician but cannot give them much weight. As Dr. Davids notes, the reports were based on the applicant’s self-reported symptoms and thus are less objective than the results of Dr. Buttoo’s sleep study. Further, I have no reason to reject Dr. Davids’ unchallenged medical opinion that insomnia is not a diagnosis but rather a description of a sleep pattern which may or may not have an underlying medical cause. Dr. Buttoo’s study did not disclose a sleep disorder. Both Dr. Davids and Dr. Buttoo agree insomnia is a normal response to shift work.

[21] At the same time I cannot ignore the fact the applicant had been actively looking for a straight days job within the TPSB, without success, for many months prior to her request for a day shift restriction. Moreover, even after making her request for accommodation she requested a transfer to her spouse’s Platoon where she acknowledged she would have been required to work afternoon and night shifts. I find her decision to seek this transfer difficult to reconcile with her request for accommodation.

[22] I am not satisfied, based on the evidence before me, that the applicant’s depression affected her ability to perform the essential duties of her position without accommodation and that there is any evidence she was experiencing another medical condition for which such accommodation was necessary. Having come to that conclusion it is not necessary for me to determine whether assignment to straight day shifts would be reasonable accommodation.

Marital Status

[23] The applicant asserts that TPSB was obliged to change her shift to be compatible with the shift to which it assigned her spouse and that the failure to do so breached the marital status protections of the Code. I cannot agree. While the jurisprudence in this area is evolving, I am not satisfied the respondents’ actions in this case constitute differential treatment of the applicant on the basis of her status as married or her marriage to a particular individual. While I accept her spouse’s transfer to another shift has had a negative effect on the applicant, there is nothing on the record before me to suggest the spouse’s transfer was unreasonable or undertaken for an improper reason or contrary to a Code-protected ground. The TPSB is not responsible for the applicant’s unhappiness as a result of her husband’s change in shifts. This allegation lacks any merit.

[24] Moreover I note Mr. Witty offered to speak to her spouse’s unit commander about his shifts and the applicant rejected this offer of assistance.

Poisoned Work Environment

[25] The applicant was clearly dissatisfied with the application of various TPSB workplace policies and certain workplace relationships; however, she failed to show how the application of those policies resulted in a poisoned work environment.

[26] For example, the applicant indicates that she was subjected to a poisoned work environment when she was directed to work over the lunch period when another employee called in sick. No evidence was presented to show how this amounted to differential treatment or a breach of the Code. On the contrary ample evidence was produced with respect to operational requirements and the intricate process involved in scheduling time off and lunch breaks in an emergency response unit operating 24 hours a day, seven days a week.

[27] The applicant also took issue with Mr. Witty’s request that she put in writing the benefits that her unit would receive should she be granted a lateral move to the EFAP, at the expense of her unit. Again, no evidence was presented to show a connection between this allegation and a breach of the Code or how it amounted to or contributed to a poisoned work environment.

[28] The applicant says she resigned based on the recommendation of her psychologist and with her spouse’s encouragement. In my view, the evidence shows that her resignation was a personal choice prompted by her dissatisfaction with the manner in which certain policies of the TPSB were being applied. I am not satisfied she was subjected to a poisoned work environment and that this caused her to resign her position with the TPSB.

ORDER

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

Dated at Toronto, this 12^th day of May, 2009.

“Signed by”

Keith Brennenstuhl

Vice-chair