Hickey v. Everest Colleges Canada, 2009 HRTO 796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Hickey Applicant

-and-

Everest Colleges Canada, Robert Middleton and Jacqueline Nelles Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Judith Hinchman Date: June 9, 2009 Citation: 2009 HRTO 796 Indexed as: Hickey v. Everest Colleges Canada

APPEARANCES BY

Lisa Hickey, Applicant ) Jonathan Pitbaldo, Counsel Everest Colleges Canada, Robert Middleton ) Amelia Golden, Counsel and Jacqueline Nelles, Respondents )

INTRODUCTION

1This is an Application dated September 18, 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 in May 2008 and abandoned upon filing this Application with the Tribunal. This Case Resolution Conference ("CRC" or "hearing") was conducted 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.

2The applicant alleges the respondents discriminated against her on the basis of disability. The applicant alleges the respondents failed to accommodate her disability while she was a student in the dental chairside assistant program offered at the CDI college of business, technology and health care ("CDI") London campus. The London campus is also referred to as Everest College. The social area identified on the original complaint and in the application was vocational associations rather than services. However, the respondents did not take issue with this discrepancy and agreed they were not prejudiced by it.

Issues

3The respondents do not dispute that the applicant had a disability while enrolled in their program. They take the position they met their duty to accommodate the applicant's disability to the point of undue hardship. The issues therefore are:

1. Did the respondents satisfy their duty to accommodate the applicant's disability while she was a student at CDI?
2. If discrimination occurred, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

4The applicant sustained injuries in a motor vehicle accident in November 2004. As part of her application to the CDI the applicant completed a medical information form stating that she suffered from asthma, and had physical limitations or restrictions that require not more than 40 minutes sitting or one hour standing as well as not completing any tasks that are "too static/repetitive." She answered "no" to the question: Do you require accommodation for a disability?

5The applicant's specific program, Intra-Oral Dental Assistant Level I & II, Level I, commenced on May 14, 2007.

6Successful completion of Level I includes an 80 hour on-site work practicum in a dental office. The applicant completed the academic portion of Level I at the end of November 2007.

7On August 20, 2007, the applicant's physician, Dr. Komorowski, wrote to the applicant's insurer Manulife Financial providing updated medical information on her injury resulting from the MVA. This letter was forwarded to CDI :

Lisa's functional restrictions continue as previous: avoidance of static head postures, no continuous use of R arm in extended position, no lifting more than 10 lbs with R arm, no repetitive lifting with R arm. Due to her difficult and slow course of recovery and limited improvement after her injury in the MVA, I consider these restrictions permanent. Lisa has experienced some difficulties with her [dental] course due to sometimes having activities that surpass these restrictions, and she is likely to have more problems with neck and arm pain as she does more clinical work with patients. There has already been some discussion about her pursuing more of a lab position as a dental assistant as this would minimize the aggravation to her arm symptoms. I think this is a very good idea and she should receive the support she needs to achieve this successfully.

8In the fall of 2007, the applicant notified respondents that she felt that her disability would require an accommodation during her practicum. She specifically requested and inquired about the possibility of working four-hour shifts thus stretching out the 80 hour practicum over more than a two-week period.

9On a Student Alert Form dated November 15, 2007, personal respondent Ms. Nelles wrote that the applicant had told her that:

she will not be able to maintain a placement for more than 4 hrs a day over a long period of time despite our requirements of 8 hrs/day for 2 weeks. (...) We will try to accommodate Lisa's request however, I am concerned about her long term success in the program and long term effects of the placement situation concerning Lisa's physical health.

10On December 5, the applicant met with the personal respondent Mr. Middleton, President of Everest College. Mr. Middleton wrote in a Student Activity Form that the applicant asked whether she could complete her 80 hours over a longer period of time. He wrote:

the course outline states that student must complete 80 hours. Nowhere does it give a time frame to do this. I told Lisa that if she completed her 80 hours and the dentist filled out the evaluation form to CDI standards then she could graduate from Level I.

11The applicant obtained a practicum at Dove Dental Ingersoll ("Dove Dental") beginning December 10, 2007. A dental assistant at Dove Dental, confirmed by letter and testified that while Dove Dental was aware of the applicant's disability and need for the limitations outlined on the CDI Medical Information Form, it never was advised or asked to consider shorter shifts.

12The applicant explained that she did not approach Dove Dental about shorter shifts because she was under the impression that a four-hour shift was not possible. When her requests to both Ms. Nelles and Mr. Middleton produced no further dialogue she concluded the matter of four-hour shifts was closed.

13The difficulties began for the applicant when she began eight-hour practicum shifts beginning December 10. There is no evidence that the respondents ever investigated or attempted to work with the applicant on finding accommodation in her practicum. The respondents do not dispute that CDI did not contact the placement to discuss the idea of a shorter shift. The respondents also did not have any further discussions with the applicant regarding a possible four-hour arrangement.

14Ms. Nelles understood that Ministry requirements for the course were that the practicum must be completed within a two-week period necessitating eight-hour shifts. Mr. Middleton testified he also considered the CDI's hands were bound by Ministry requirements. The respondents did not produce these Ministry requirements and this position appears to contradict Mr. Middleton's understanding of the requirements expressed in his notes made at the December 5th meeting:

[t]he course outline states the student must complete 80 hours. No where does it give a time frame to do this.

15The applicant's schedule at Dove Dental extended over a two-week period. The applicant was to work four days in each of the weeks of December 10 and 17, one day on January 4 and one day on January 8. A holiday closing was part of this extension. However, even without the closing, clearly the dental office did not expect the applicant to complete the practicum within a two-week period. In fact, the applicant's practicum schedule given to her by Dove Dental extended over a two-week period. There is no evidence CDI objected to the schedule or raised Ministry requirements at that time.

16The applicant worked eight-hour shifts December 10, 11, 12, and 14. It is not disputed that twice she refused to sit chairside. The applicant's refusal to sit chairside and perform other tasks was influential in Dove Dental's decision to fail her. The applicant testified that she felt that she would have been able to sit chairside and complete these duties if she had been working four-hour shifts. She submitted a note from her massage therapist stating that on December 13 her shoulder was more than normally inflamed and that she should take it easy.

17The applicant did not attend at Dove Dental on December 17. She had aggravated her condition trying to shovel her car out after a heavy snowstorm the night before. She was seen at St. Mary's Medical Clinic and obtained a note indicating she was unable to work from December 17 to 21 due to strained muscles. The parties dispute whether or not the clinic was adequately apprised of this situation. The respondents' record confirms the applicant left a message with Tracy Green asking her to explain the situation to Mr. Middleton on the morning of December 18. Despite being aware that the applicant's condition had been aggravated by this injury, the respondents took no steps to inquire into whether additional accommodations were required to assist the applicant in completing the practicum requirement.

18Ms. Nelles completed a Student Activity Form on December 18 following a telephone conversation with Dove Dental about the applicant's placement.

Lisa has refused the opportunity to sit chairside claiming that she is physically not capable to sit chairside due to her injuries. Lisa has been absent for the last two days claiming that she is unable to continue working until Wednesday. She is hoping to work with her doctor's [sic] to improve her pain and mobility.

When Lisa returns on Wednesday her placement will offer her another opportunity to sit chairside.

[Dove Dental] asked what their role was as hosting dentists, I explained that it is their responsibility to pass or fail a student based on the students performance. We should support their decision. Based on Lisa's refusal to assist the dentist the office will re-evaluate her, if she is not compliant, they will send her back to us.

19Mr. Middleton recorded his understanding of that call in his response to the applicant's complaint to the Ministry of Training, Colleges and Universities student support branch ("Ministry student support branch").

Dove the practicum site called Everest [CDI] wanting to know what they could do with Lisa as she refused to perform her duties the first week she was in placement and had missed the first two days of the second week due to a snowstorm, shovelling injury. The third day she called in 2 hours after her shift was to begin to inform them she was not coming in and would not be back for the remainder of the week. Jacqueline Nelles informed Dove that they had the option of ending the practicum by completing the report card and faxing it to us or allowing her to return when she was able. They chose the first.

As a result of Lisa's behaviour in practicum and the harassment that she displayed to Ashley at the Dove Dental clinics they will no longer take our students for practicum. This is a serious issue as there are 7 Dove clinics in the London area.

20When the applicant did not come to the clinic on December 19, Dove Dental submitted a final evaluation failing her. The applicant was not told about this until December 20. As a result CDI filled out a Student Status Change Form on January 2, 2008 giving the applicant an "incompletion."

21On December 20, the applicant met with Ms. Nelles and then Mr. Middleton to discuss the situation. Mr. Middleton completed a Student Activity Form and described that meeting as follows:

Lisa informed the college that she re injured herself while shovelling the driveway.

Lisa stated that she faxed a letter from the doctor stating that she could not go on practicum for 1 week.

We explained that we would have to incomplete her based on the fact that she re injured herself and when the doctor could give another medical certificate stating that she was fit to go on practicum with all of the components that are required that she could go back on practicum.

She stated that her doctor told her to take one week off due to injuries.

22Even at that point the respondents did not consider whether they could accommodate the applicant's disability to permit her to complete her practicum. Mr. Middleton was asked why he did not discuss or consider options other than issuing an incomplete. He responded that he was not sure.

23After the holidays the applicant complained to the Ministry student support branch, which found no breach of the Private Career Colleges Act, 2005. She testified that she attempted to call Mr. Middleton to discuss the situation further.

24Mr. Middleton's evidence is that after he responded to the Ministry student support branch's investigation, he thought the matter was considered closed. Nonetheless, he submits that he did try to return the applicant's calls but that because she did not have an answering machine he was unable to reach her at first. He submits that when he did reach her, he told her that she would be "eligible to complete her practicum once [CDI] receives a note from her doctor that she is physically able to compete the tasks without the use of narcotic and a commitment from her that she will actively participate in the practicum."

25On May 2, 2008, Mr. Middleton wrote to the applicant inviting her to return and complete the Program on the condition that she provide a letter from her physician assuring CDI that she could physically complete the practicum tasks without the use of narcotics.

26Both the applicant and her physician mailed a letter dated May 7, 2008 to the respondents stating that the applicant had never been on narcotics and that she had been cleared in December to complete the practicum level I tasks. The respondents deny receiving this letter but acknowledged at the hearing that they do not dispute the content. Dr. Komorowski's letter states:

I am writing this short letter to give you information regarding medications prescribed for my patient Lisa Hickey. First, she was never prescribed any morphine patches so she was never on continuous release or long-acting narcotics of any kind. She had prescriptions for Percocet and hydromorphone short acting form. These were used at the end of the day after school or work in the dental office (where she had started her practicum) to relieve pain that had flared up as a result of the day's activities. They were also taken at bedtime to help her get better quality sleep with less awaking from pain. Lisa only took anti-inflammatories during the day while at school or at the dental office.

I also wanted to confirm that Lisa was provided with a letter clearing her medically to complete the practicum level I on Dec 7/08. I enclose a copy of that letter. There had initially been some confusion regarding this medical clearance as the school did not provide clear information regarding skills required to complete the level I; at first they only gave information about level 2, which exceeded her limitations. Once this was clarified, I was able to tell them that all the skills for level I were within her limitations.

27On May 8, 2008, the applicant filed a complaint with the Human Rights Commission alleging discrimination due to her disability.

REASONS

Did the respondents satisfy their duty to accommodate the applicant's disability while she was a student at CDI?

28Through her conversation with Ms. Nelles in November and the disclosure of her physician's assessment, the applicant alerted respondents to her concern regarding the full day shifts and the possibility she might require accommodations beyond those listed in her CDI Medical Information Form. In addition, on a Student Activity Form dated November 26, 2007, Ms. Nelles recorded that she was concerned about the applicant's mobility. I find that the respondents were aware of the applicant's disability and had a duty to accommodate it to the point of undue hardship.

29It is therefore not clear that why four-hour shifts were not considered or raised with Dove Dental as an option. Given the evidence, I am satisfied there was no requirement the applicant complete the practicum within two weeks. While Ms. Nelles told the applicant that she would look into the idea, she did not get back to the applicant to further discuss. And, despite the suggestion in Mr. Middleton's notes that some flexibility might be possible, he too did not pursue the matter any further.

30The respondents maintain that accommodation in the practicum was solely the responsibility of the applicant and that she should have known that. Respondents point to a document titled "The Dental Office and Chairside Assistant Diploma Program," (revised August 2005) which states in respect of the practicum : "You must arrange your own schedule with a dentist of your choice."

31On the other hand the Course Outline (revised December 2006) lists as two of the Instructor's Roles with respect to the practicum:

1. To select on-the-job training sites appropriate to the student and employer's needs;
2. To prepare students for on-the-job placements; to monitor students on a regular basis and to assess individual training needs in collaboration with host Dental Office and his/her designate.

32The undisputed evidence is that Ms. Nelles routinely helped her students find placements and in fact arranged the applicant's interview with Dove Dental. I am persuaded that the evidence supports that the more recent December 2006 Course Outline more accurately describes the instructor's role as it was practiced at CDI. Nonetheless, during the month of December no thought appears to have been given to contacting the applicant to jointly investigate a solution that could include finding a placement with shorter shifts or collaborating with Dove Dental on the applicant's individual needs.

33Although the applicant agrees that she was asked to discuss the specifics of her schedule with the practicum host herself, this request does not excuse the respondents from following the Course Outline or from their overall duty to explore accommodation.

34The duty to accommodate is a shared responsibility. Once alerted, the respondents had a duty to explore with the applicant options that may have been available to accommodate the applicant's disability during the required practicum up to the point of undue hardship. A failure to take the first step to fully explore all the options amounts to a failure to accommodate. See Lane v. ADGA Group Consultants Inc. 2007 HRTO 34; (judicial review ref'd, 2008 CanLII 39605, ON. S.C. D.C., leave to appeal ref'd.) For the reasons below, I find that the respondents failed to take adequate steps to investigate what accommodations might be available so that the applicant could attempt the practicum requirement.

35It does not appear to me that CDI seriously considered trying to work with the applicant on accommodation options so that she could complete certain practicum tasks. Despite her request for shorter shifts, these were not investigated. Once given an incomplete, the applicant was left with the impression that any further participation in the Program was solely her problem. And this seems to have been presented to the applicant with a sense of finality and haste with no attendant exploration of accommodations. It was well after the fact that Mr. Middleton wrote to the applicant in May 2008 that respondents were open to assisting her to complete the Program. There had been ample opportunity in late November, December, and January to investigate solutions.

36Respondents also argue that an issue for them leading to their concern that the applicant could not be accommodated in a practicum was that they understood that she required medication to participate in a practicum. They point to Mr. Middleton's May 2008 letter to show that they were always ready to re-admit the applicant upon assurances that she would not require medication to proceed. Their evidence is:

In late November, Ms Nelles became concerned that the applicant was planning to take morphine to manage her pain during her placement. With this concern in mind coupled with her concern regarding the applicant's mobility, Ms Nelles reports that she and Mr Middleton decided that the applicant should provide documentation from her doctor stating that she would be able to physically perform Level I and Level 2 practicum duties without medication.

37The respondents gave the applicant a packet of information for the physician to evaluate. The parties dispute the contents of the package - the applicant states that the packet contained only requirements for the Level II practicum and the respondents maintain that the package contained both the Level I and II requirements. The applicant provided her physician with the Level I practicum requirements and by letter dated December 7 she cleared her to perform the practicum as follows:

... Based on the list of objectives including 14 items, there are no procedures for level I that exceed her limitations that have been in place since before enrolling in your college. The problems that Lisa experience with increase pain was a result of static positions chair side with long procedures, but none of the listed competencies require prolonged static positions.

With this additional information I am able to give Lisa permission to go ahead with working on her 80 hour practicum for Level I. ... I agree that Level II is not appropriate for Lisa because the requirements listed exceed her limitations.

38Thereafter, respondents immediately reinstated the applicant and permitted her to go on the practicum. I conclude from this undisputed evidence that as of December 7 the respondents accepted that the applicant did not require medication to participate in her practicum.

39The respondents submit that the medication issue reasserted itself when the applicant reinjured herself shovelling snow. At this point they were required to obtain medical certification that the applicant was able to return to the practicum without medication. This understanding is documented on the December 20, 2007 Student Activity Form.

40This form states that the respondents told the applicant that she would receive an incomplete based on the reinjury and that when her doctor provided medical certification that she was fit, she could return to the practicum. The applicant testified her doctor's note addressed both the nature of her injury and her return to work date. The issue of medication is not raised on the Student Activity Form. I am not persuaded the respondents were concerned that the applicant needed a clearance stating that she would not take medications prior to continuing a practicum.

41I am not convinced that the applicant's possible medication use in December 2007 was a real concern to respondents or a factor in considering whether they could reasonably accommodate her in their program. They were sufficiently satisfied with the response received from the applicant's physician in December to permit the applicant to commence her practicum. There is no clear request for a further confirmation that she did not require medication following her reinjury to suggest the issue became more prominent at that time. Even if it was a genuine issue, I find it did not relieve the respondents of their duty to consider whether they could accommodate the applicant in some way short of issuing an incomplete, essentially removing her from the Program. I find on a balance of probabilities the respondents did not adequately investigate and consider accommodations that may have permitted the applicant to remain in the Program. For all these reasons, I find that the respondents discriminated against the applicant her on the basis of disability.

Remedy

42Section 45.2 (1) of the Code provides the Tribunal with the authority to direct a party who has violated the Code to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

43The applicant is entitled to an award of damages to compensate her for the injury to her dignity and feelings arising from the breach of her right to be free from discrimination due to her disability. At the Case Resolution Conference the respondents acknowledged that the applicant had experienced emotional distress as a result of failing the practicum. The applicant as well testified that she was extremely upset immediately after failing the practicum and was quite frustrated prior to that that the respondents were not assisting her. In all the circumstances, including the fact that respondents had adequate time yet failed to address accommodation options leaving the applicant to basically fend for herself, I find that an award of $3,000.00 inclusive of pre-judgement interest is appropriate in the circumstances.

44The applicant also asks for lost income in that she believes she could have begun a paid placement in May or June of 2008. Both parties submitted wage scales for dental assistants. The applicant however presented no evidence to support that completion of the CDI Program guaranteed future employment and I am not prepared to accept that it was CDI's responsibility to ensure or that they could guarantee placement after graduation. Therefore, I do not accept that damages for lost wages are appropriate in this case.

ORDER

45The respondents are jointly and severally ordered to pay to the applicant:

a) the sum of $3,000.00 for loss arising out of the infringement of the Code; and

b) pre-judgment interest (calculated from the date of the Complaint to the Commission) and post-judgment interest (calculated from 30 days from the date of this Decision) in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O. 1990 c. C.43, as amended, on the $3,000.00 amount.