Kreiger v. Toronto Police Services Board, 2010 HRTO 1361

Human Rights Tribunal of Ontario

B E T W E E N:

Ariyeh Krieger Applicant

-and-

Toronto Police Services Board and Chief William Blair Respondents

-and-

Toronto Police Association Intervenor

DECISION

Adjudicator: Naomi Overend Date: June 16, 2010 Citation: 2010 HRTO 1361 Indexed as: Kreiger v. Toronto Police Services Board

APPEARANCES

Ariyeh Krieger, Applicant | Caroline (Nini) Jones, Counsel Toronto Police Services Board and Chief William Blair, Respondents | Heather Crisp, Counsel Toronto Police Association, Intervenor | Tim Zayack, Representative

OVERVIEW

1Five months into his probation as a police constable with the Toronto Police Service (“the Service”), Ari Krieger (“the applicant”) was involved in a struggle with a suspect who was carrying a handgun. As a result of the incident, he developed a Post-Traumatic Stress Disorder that interfered with his ability to perform the duties of a police officer.

2Five weeks after the initial incident, he encountered an intoxicated patron at a McDonald’s restaurant and over-reacted to what he perceived as a threatening situation. This second incident further compounded his mental disorder, and he engaged in behaviour that was recognized as out-of-character for him in the hours and days that followed. Three days after the incident at McDonald’s, his behaviour was so bizarre that he was suspended as “unfit for duty.”

3Although many of his supervisors suspected that the applicant might have been suffering from a mental disorder, his behaviour at the McDonald’s and in the immediate aftermath was investigated as simply a case of professional misconduct. Following the release of the findings of this investigation, the Service sought to terminate his probationary employment.

4After his suspension, the applicant sought professional help and was successfully treated for his disability. He attempted to have the Service consider the evidence of his medical experts, but this was treated by those involved in the termination of his employment with suspicion and derision. For its part, the Service did not conduct any independent evaluation of the applicant’s medical condition.

5The matter was placed before the Toronto Police Services Board (“the Board”), the body empowered with making the ultimate decision to terminate his probationary employment. The Board upheld the recommendation of the Chief of Police, terminating the applicant’s employment on May 7, 2008.

6The applicant filed his Application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability and reprisal in employment. For the reasons that follow, I find that the applicant was discriminated against on the basis of disability and order, among other remedies, his reinstatement to the Service.

EVIDENCE

7The hearing in this matter commenced on July 23, 2009. The evidence, which consisted of 15 witnesses and multiple volumes of documents, was heard over 15 days. To accommodate the schedule of counsel and the witnesses, the hearing became a protracted affair. Final argument was not heard until March 12, 2010.

8The applicant’s case-in-chief consisted of his testimony and the testimony of Tim Zayack, the representative of the Toronto Police Association (“the Association”) most involved in his case. The respondents called nine witnesses on the case on its merits (and one other on a production request). I directed that the applicant call his medical evidence, consisting of his treating psychologist and a psychiatrist who conducted a forensic psychiatric evaluation of him, in reply. He also called the evidence of one additional witness to address an allegation raised by the respondents in their case-in-chief.

9Despite the length of the hearing, many of the factual issues were not in dispute. Even when called to provide evidence on a factual matter in dispute, many of the respondents’ witnesses made concessions in cross-examination that greatly narrowed the factual divide between the parties. Moreover, many of the facts were set out in notes, memoranda and emails written contemporaneously with the events. Accordingly, most of the following findings of fact were made without the necessity to assess credibility.

Background

10The applicant was hired by the Service in December 2006. He went through the mandatory training, which involved two weeks at Toronto C.O. Bick College, three months at the Ontario Police College in Alymer and a further six weeks of training at C.O. Bick. He successfully concluded this training and was sworn in as a fourth class constable on May 10, 2007.

11The applicant did well in his training. The respondents called a witness concerning a minor incident in the latter part of his training at C.O. Bick, but in cross-examination the witness admitted that this incident did not reflect poorly on the applicant.

12After being sworn in, the applicant was assigned to “D” Platoon in 32 Division. The headquarters for 32 Division is off Yonge Street, south of Finch Avenue, in the part of the City of Toronto known as North York. He commenced work for 32 Division as a probationary fourth class constable on May 14, 2007. In the normal course, pursuant to the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “PSA”), he would have remained a probationary constable for a period of one year.

13D Platoon was supervised by three sergeants – Sgt. Farrugia, Sgt. Harker and Sgt. Irwin – and one staff sergeant. The applicant and the other constables in his platoon reported to the three sergeants. These three sergeants reported to the platoon’s staff sergeant, who reported to the Division’s inspector, who in turn reported to a superintendent (Supt. Gauthier). Supt. Gauthier was the unit commander for 32 Division.

14The applicant progressed well during his first five months as a probationary constable. Prior to being hired by the Service, he had held a managerial position in a car dealership, and so had some issues working in the highly hierarchical structure of the Service, where he was junior in rank, but these issues were addressed with the applicant early on and his performance appraisals covering this period indicated that he was progressing well and that there were no serious issues. This is consistent with the testimony of the applicant’s three commanding officers who were called by the respondent (Sgt. Farrugia, Sgt. Harker and Supt. Gauthier).

15As was the normal practice, the applicant was assigned a “coach officer” for his first two compressed work week cycles (i.e., 10 weeks, as each cycle is five weeks in length). Probationary officers who successfully complete these two cycles are allowed to go out on the road without their coach officer and, during the day shift, are allowed to go out on the road on their own. I have drawn the inference that there were no significant issues during the applicant’s early probationary period from the fact that the applicant was not required to continue on with a coach officer after the first two compressed work week cycles, as well as from the fact that the respondents did not call his coach officer as a witness.

The Yorkdale Incident

16The fact that the applicant successfully completed his first two compressed work week cycles with his coach officer also meant he was eligible for “paid duties.” Essentially, these are private assignments which police officers are entitled to work in their off hours. One such paid duty the applicant (and other fellow police officers) worked was a security detail in the evening hours of October 6, 2007, at the Yorkdale mall. He was partnered that night with a fellow officer, P.C. Jeremy Samson.

17Prior to closing, he and P.C. Sampson noticed a group of young men acting in what they regarded as a suspicious manner. They followed the men out of the mall and the applicant proceeded to search one of them, whom he believed had a gun. A struggle ensued when the applicant put his hands on what he thought was a gun in the suspect’s pocket.

18In the course of the struggle, the applicant lost his grip on the gun, and feared that the suspect would shoot him. At this point, he yelled at his partner to shoot the suspect. After losing his grip on the suspect’s weapon, the applicant took out his gun and pushed the suspect away, fearing that the suspect would try to grab hold of his firearm. At this point, P.C. Sampson fired a shot, which did not hit the suspect, but which the applicant felt go close by his head. The suspect ran away, but was later apprehended.

19The incident, which was described in a subsequent investigation report as a “life or death struggle,” was traumatic to the applicant because he was convinced that the suspect was going to shoot him, or that his partner’s shot would hit him. As will be discussed in greater detail below, this event triggered an acute stress reaction which was not immediately apparent to him.

20When the applicant and P.C. Sampson returned to the police station that evening, they met with Sgt. Stones, who was not one of the applicant’s usual supervising officers. Sgt. Stones discussed the Employee and Family Assistance Program (“EFAP”) with the applicant and P.C. Sampson, and discussed the possibility of post-traumatic stress. The applicant believed he was fine, and that that he was not suffering any psychological trauma from his involvement in the incident.

21Sgt. Stones filled out two “Injured on Duty” (“IOD”) forms. The one for P.C. Sampson described the injury as “[e]motional stress relating to firearm discharge incident.” The IOD form for the applicant described an injury to his right thumb (which was pulled back when the suspect was trying to remove the applicant’s hand from his gun). Sgt. Stones testified that he had meant to fill an IOD for emotional stress for the applicant as well, but inadvertently did not.

22The IOD form for P.C. Sampson highlighted the possibility of future psychological problems arising from this incident: “Given the nature of the incident, the officer might in the future suffer real and serious post-traumatic stress from the incident.” Sgt. Stones and Supt. Gauthier, who signed the report as the Unit Commander, both agreed on the stand that this comment applied to the applicant as well as to P.C. Sampson.

23In addition to the IOD process, the Service also has a Critical Incident Stress policy, the purpose of which is to minimize the psychological fallout from a critical incident. The policy in place at the relevant time defined a critical incident as:

…any incident involving a member that includes serious injury or death, mass casualties, the member’s life has been imperilled or threatened, or any situation which has the potential to significantly interfere now or at a later time with a member’s ability to function professionally or personally. [Emphasis added]

24The procedure for the Critical Incident Stress policy was not followed with respect to the applicant. Whether or not following the policy would have reduced the likelihood of the applicant developing a critical stress reaction is not within the purview of this Tribunal. What is significant, however, is that from an institutional standpoint, the Service was aware that an incident of the nature experienced by the applicant could interfere subsequently with an officer’s ability to function professionally and personally.

25Although the subsequent investigation into this incident concluded that the applicant and P.C. Sampson had behaved appropriately, the applicant continued to second-guess his actions at Yorkdale, and was sensitive to any comments that implied that his actions may have been inappropriate. Sgt. Farrugia testified that she had several conversations with the applicant about this incident in which he continued to worry about it, and she asked other constables to keep an eye on him because she was worried about him.

26The applicant testified that in the period following Yorkdale, he became more anxious, was sleeping poorly and became withdrawn. He did not seek help, in part because he did not recognize what was happening, and, in part, because P.C. Sampson seemed to be doing fine.

The McDonald’s Incident

27The applicant was working the early morning hours of November 14, 2007, with P.C. Guadagnano. He went into the McDonald’s located on Yonge Street, north of Sheppard Avenue, to get some food. Upon entering the facility, he noticed a man who appeared to be intoxicated. In his heightened state of stress, the applicant perceived the man to be a threat to the safety and well-being of the other patrons, and not only questioned him, but physically removed him from line and forced him into a nearby seat. When the patron resisted this, the applicant grabbed him, held him in a headlock and forced him out of the restaurant.

28P.C. Guadagnano, who had been outside the McDonald’s during this time, came to assist him. She offered the patron the choice of going to jail or going in a cab, which she had then hailed. The applicant attempted to force the patron – who was continuing to resist this treatment – into the cab, which left a mark on the patron’s neck. In addition, the action also caused the patron to hit his head on the doorframe of the cab. Another two constables arrived on the scene, as well as Sgt. Harker. Eventually, these constables drove the patron home.

29The applicant testified that he continues to recall the behaviour of the patron as very threatening, although he acknowledges that the evidence of what actually transpired paints a very different picture. He said he first became aware of the difference between his perception of the incident and what really transpired when he turned around, after having forced the patron in the cab, and saw that the crowd of other patrons and employees from the McDonald’s were angry about the manner in which he had treated the patron. He had expected them to be grateful.

30Sgt. Harker testified that his recollection of the applicant’s demeanour at the scene was that he was upset, wound up, tense and agitated. Because the applicant was acting so strangely, Sgt. Harker was worried about his mental state. Sgt. Harker ordered the applicant and P.C. Guadagnano to go back to the station to write up their notes. The other two constables who had arrived at the scene to assist the applicant and his partner, P.C. Stam and P.C. McAdam, were ordered to drive the patron home and then return to the station to write up their notes.

The Aftermath of the McDonald’s Incident

31The four constables were told to write up their notes in a conference room at the station. P.C. McAdam testified that she overheard P.C. Guadagnano say that she had told the applicant to “Calm the fuck down” at the scene, to which the applicant responded “if you put that in [your notes], I’m screwed.” P.C. McAdam felt that the applicant’s words might have the effect of putting pressure on P.C. Guadagnano to not record this in her notes, although of course she could not testify as to how P.C. Guadagnano actually felt. P.C. Guadagnano did not testify at this hearing, although she continues to be an officer in the Service. There is no evidence that what the applicant said, in fact, influenced what P.C. Guadagnano put in her notes.

32The applicant testified that he was agitated and confused about what had gone wrong. The three witnesses who observed the applicant’s behaviour at the station that night (P.C. McAdam, Sgt. Farrugia and Sgt. Harker) testified that the applicant was agitated, tense, restless and not himself.

33P.C. McAdam, who was in the conference room with the applicant, testified that the applicant had a hard time sitting still, and kept getting up and leaving the room to go into the hallway. Sgt. Harker, who visited the group in the conference room, likewise noticed that the applicant was pacing around, and that his behaviour was troubling and peculiar.

34Despite the collective observations of his co-worker and supervisors, no one spoke to the applicant about his mental state, or suggested that he get assistance.

35The applicant actually sought out Sgt. Harker to attempt to speak to him about the feelings he was having about the McDonald’s incident in the evenings that followed this incident. He viewed Sgt. Harker as a mentor and someone he felt comfortable talking with. The other person he viewed in this role was Sgt. Irwin, but Sgt. Irwin was on leave during this period and, therefore, not available.

36Unbeknownst to the applicant, Sgt. Harker had been asked to conduct a preliminary investigation into the McDonald’s incident, and did not feel comfortable speaking to the applicant. Instead of indicating that he could not speak to the applicant and referring him to someone else, Sgt. Harker told the applicant he “wasn’t going to speak to him” and to “move on.” This left the applicant, who was already in a precarious emotional state, with the feeling that Sgt. Harker was upset with him, although he did not know why.

37Sgt. Farrugia testified that she was aware that the applicant was trying to speak to Sgt. Harker because he approached her several times asking where Sgt. Harker was on the nights that followed the McDonald’s incident. She approached Sgt. Harker during the shift following the McDonald’s incident to ask about the applicant because she had noticed how strangely he had been acting. She learned, for the first time, what had happened at McDonald’s the night before. Her response to Sgt. Harker was: “Rick, you’ve got to keep an eye on this guy and make sure he’s sleeping, make sure he’s fit for duty, because I have a feeling he’s suffering from PTSD and he’s overreacting.” Sgt. Harker advised her that he was going to assign the applicant’s coach officer (P.C. Hatchard) to work with him, so she could keep an eye on him.

38On the third night following the incident at McDonald’s, the applicant reported for his shift, which commenced at 11:00 p.m. Sgt. Farrugia, who was Acting Staff Sergeant that night, assigned the platoon their duties. During this assignment process (known in police parlance as “parade”), the applicant noticed Sgt. Harker go into the conference room at the station. Unbeknownst to him, Sgt. Harker was in midst of interviewing the patron from McDonald’s about the November 14th incident. Following parade, the applicant approached (Acting Staff) Sgt. Farrugia and told her that he needed to speak to Sgt. Harker and asked what he was doing. She told him, as she had the previous nights, that Sgt. Harker did not want to speak to him.

39The applicant disregarded this warning and went down the hall to try, once again, to talk to Sgt. Harker. The door to the conference room was closed, and rather than knocking, he listened at the door to determine whether it would be appropriate to interrupt. This action was observed by the station operator (a civilian who performs clerk tasks at the front desk of the station), who assumed the applicant was listening in on the interview. This assumption proved to be incorrect as it was later determined that the applicant was not aware that there was an investigation into his actions, and had not seen the patron, who had arrived at the station and been put in the conference room prior to the applicant arriving at the station for his shift.

40In any event, the applicant did not interrupt the meeting. Shortly afterwards, Sgt. Harker came out of the interview with the patron. The applicant approached him and asked to speak to him, but Sgt. Harker again refused to speak to him, but rather ordered him to leave the station. He observed that the applicant was “agitated” and “visibly upset.”

41At this point, the applicant went out to join P.C. Hatchard to do their first assigned duty of the night, which involved setting up a R.I.D.E. spot check. The station operator told Sgt. Harker about observing the applicant at the conference room door. Sgt. Harker then drove to the R.I.D.E. spot check and told P.C. Hatchard that he wanted to see her and the applicant when they took down the spot check at 12:45 a.m. At the appointed time, the applicant drove the patrol car to where Sgt. Harker was parked in a driveway, as per his instructions. As there was insufficient room to pull in beside Sgt. Harker, the applicant parked in front of his car.

42By all accounts, Sgt. Harker was very angry at the applicant for listening in at the door and “dressed him down” for several minutes. Sgt. Harker testified that in his 35 years of policing he had never been so out of control in speaking with another officer, and had used profanity-laced language in dressing down the applicant. He told the applicant during this rant that he was investigating him. Not surprisingly, the applicant was upset when he returned to the car. He told his partner that he wanted to speak to Sgt. Harker. Despite being directed to move the car by P.C. Hatchard, the applicant did not drive away, thus trapping Sgt. Harker in his parking spot. Sgt. Harker approached the car and told him to move. The applicant did not immediately obey this order, so Sgt. Harker repeated the order, this time prompting the applicant to drive the patrol car back to the station.

43During the dressing down, Sgt. Harker had ordered the applicant to not speak to the station operator and to not remain at the station other than to return the R.I.D.E. equipment. In direct contravention of Sgt. Harker’s orders, the applicant approached the station operator at approximately 1:00 a.m., Saturday, November 17, 2007. He asked her to come down the hallway with him, but she refused and told him to speak to her at the front desk. He wanted to know whether she had told Sgt. Harker that he was listening at the door. During this conversation, Sgt. Farrugia approached the applicant and ordered him to go wait in his patrol car until his partner was ready to go out on the road again.

44Shortly thereafter, the applicant approached Sgt. Farrugia and said he wanted to speak to Sgt. Harker. She once again reiterated that Sgt. Harker did not want this to happen. They briefly discussed the fact that the applicant was under investigation, and he said, that he “might as well go home” if that were the case. Sgt. Farrugia asked him whether he was unwell, to which he replied: “No. Well, I’m not sick, but I’m not well in my head.” Sgt. Farrugia repeated her question about whether he was sick, to which the applicant responded no. She then ordered him out on the road.

45The applicant at this stage was in the midst of a full-blown breakdown. Rather than going to the patrol car to await the return of P.C. Hatchard, as per Sgt. Farrugia’s order, he went to a stairwell in the building. P.C. Hatchard went looking for him and found him in the stairwell apparently crying. She reported this to Sgt. Farrugia and Sgt. Harker, whom she found in the parking garage of the station.

46Both Sgts. Farrugia and Harker testified that they approached the stairwell uncertain of what they would find. Sgt. Harker testified that he was afraid that the applicant might “go postal” and approached the stairwell with his gun drawn, prepared to shoot the applicant if necessary. When they got there, the applicant was sitting on the top stair of the lower stairway, sobbing. Sgt. Farrugia testified that this was an alarming sight: “Well, I was concerned that he was not fit for duty, a man, a grown man in -- who’s a police officer, wearing a gun, sobbing like a child because a sergeant won’t talk to him.”

47They ordered the applicant to stand up, and follow them down the hallway to the gun room, where they relieved him of his weapon. By the time they got to the gun room, the applicant had gained some measure of control over his emotions and was taking a more aggressive stance. After unloading it, he threw his gun down on the table in the gun room, causing it to make a loud clatter. Sgt. Harker, who had been waiting outside the gun room heard the noise, and went rushing in thinking that perhaps the applicant had discharged his gun.

48After relieving the applicant of his gun and badge, Sgt. Farrugia had the applicant accompany her to the sergeant’s office. She did not feel comfortable being alone with the applicant given the state he was in, which she described in her testimony as agitated and hyper, and so initially had another constable and later a detective from the station sit with them. The applicant continued to ask to speak with Sgt. Harker and otherwise “rant and rave.” During the time in her office, Sgt. Farrugia asked the applicant whether he had slept, and he responded that he had not slept that day and had only slept a little the day before. She also asked him if he wanted to go the hospital, a suggestion that made the applicant indignant. He responded he was not suicidal.

49Sgt. Harker called and left a message for the “duty inspector” that evening as it was his view that the applicant should be suspended. The duty inspector was the person with the authority to suspend an officer. Sgt. Harker also called an Association representative to attend. Both the representative and the duty inspector, Insp. Martin, arrived at the station at approximately the same time, and were briefed by Sgt. Harker. While the Association rep was speaking to the applicant privately, Sgt. Farrugia talked to Insp. Martin, telling her that she thought the applicant might be suffering from post-traumatic stress disorder arising from the Yorkdale incident, which she linked to what she described as his “gross overreaction” at the McDonald’s three nights prior.

50Insp. Martin suspended the applicant that evening as “unfit for duty.” In an email from her to Supt. Gauthier (the applicant’s unit commander) and a memo from her to the Chief of Police, both written on November 17, 2007, Insp. Martin outlined her concerns about the applicant’s mental well-being. In both documents she stated that the applicant had been extremely irrational, was out-of-control and, although his behaviour had “de-escalated,” she was concerned about him losing control again. She also indicated that she had considered the possibility of an arrest under the Mental Health Act, R.S.O. 1990, c. M.7, as amended, but that she did not consider he met the criteria for such an arrest.

The Medical Evidence

51When the applicant met with the Association representative that night, he was given contact information for the Employee and Family Assistance Program. Although he had been made aware of the existence of the EFAP before, the events of the preceding days had made it clear to him that he needed help. He contacted Roger Dodson at the EFAP, whom he told about the Yorkdale and McDonald’s incidents. Dodson suggested that the applicant fill out an IOD form for stress. The EFAP also referred the applicant to a psychologist, Dr. Stephen Swallow.

52The applicant phoned Dr. Swallow’s office and made an appointment to see a colleague of Dr. Swallow. After the initial appointment with this individual, he became a patient of Dr. Swallow, who diagnosed the applicant with Acute Stress Disorder and commenced a course of cognitive behaviour therapy. The applicant saw Dr. Swallow for a three-month period, spanning from November 28, 2007 - February 28, 2008. Dr. Swallow felt that the applicant responded well to the therapy and had a great deal of insight into his behaviour.

53In addition, the applicant saw Dr. Rootenberg, a psychiatrist at the Centre for Addiction and Mental Health (“CAMH”), for the purpose of getting a forensic psychiatric evaluation. As will be discussed in greater detail below, the applicant was being investigated by the Professional Standards Branch. It was anticipated that he would be charged with professional misconduct as a result of the events in November, and Dr. Rootenberg’s evaluation was to be used in those proceedings as mitigating evidence. Dr. Rootenberg met with the applicant twice to determine a diagnosis and perform an assessment of future risk. He did not treat the applicant.

54Both Dr. Rootenberg and Dr. Swallow diagnosed the applicant as suffering from an Acute Stress Disorder arising from his experience at Yorkdale. When they testified, they both acknowledged that the Diagnostic and Statistical Manual of Mental Disorder Fourth Edition, Text Revision (“DSM-IV”) defines Acute Stress Disorder as resolving within four weeks of the incident, and that, in fact, the McDonald’s incident was more than five weeks after the Yorkdale incident.

55That being said, both experts acknowledged on the stand that given the timing, the more technically correct diagnosis was likely acute Post-Traumatic Stress Disorder (“PTSD”), which is marked by most of the same symptoms as Acute Stress Disorder but which occurs after the one-month mark (and resolves before the three-month mark). Both PTSD and Acute Stress Disorder occur in individuals, such as the applicant, who have been involved in traumatic life-threatening incidents.

56The applicant experienced several of the hallmark symptoms of PTSD (and Acute Stress Disorder) in that he was having difficulty sleeping in the period following the Yorkdale incident, was hypervigilant about perceived danger and had both irritability and outbursts of anger. It was both Dr. Swallow’s and Dr. Rootenberg’s opinion that the applicant’s assault of the patron at McDonald’s was the result of PTSD, and would likely not have taken place as it did had he not been involved in the Yorkdale incident.

57Moreover, when advised of the observations of the applicant’s colleagues and superiors in the hours and days following the McDonald’s incident (up to and including the night he was suspended), both Dr. Swallow and Dr. Rootenberg testified that the applicant’s actions were consistent with a highly stressed individual, and likely the result of the then undiagnosed and untreated PTSD.

58The respondents did not call any expert evidence to dispute the opinion of Dr. Swallow and Dr. Rootenberg. However, many of the applicant’s superiors offered the opinion that the applicant’s distress – in particular, in the days following the McDonald’s incident – arose from the applicant’s knowledge that he was in a lot of trouble. One such witness (Sgt. Stones, who dealt with the applicant in the immediate aftermath of the Yorkdale incident, but whose information otherwise was not the result of first-hand observation) speculated that the applicant could have fashioned his behaviour to make it look like he had PTSD after getting information about the condition from the internet. These lay opinions, unsupported as they are by any expert evidence, must be accorded no weight.

59It was Dr. Swallow’s and Dr. Rootenberg’s opinion that the applicant’s PTSD had largely resolved by late February/early March 2008 and he was, therefore, no longer a risk to the public. Dr. Swallow, in particular, felt that the applicant could benefit from further therapy to minimize the risk of relapse, but felt that, having been given the appropriate tools, the applicant was now in a position to recognize the warning signs in the event he was involved in a future traumatizing incident.

60Neither expert believed that the applicant had any underlying pathology that made him a risk to the public, such as a substance abuse problem or a history of violent behaviour. Indeed, Dr. Rootenberg testified that the applicant scored in the low risk category on the recognized checklists for violent and psychopathic behaviour. That is, his scores on these checklists suggest he has a lower risk of violent or aggressive behaviour than the average person.

The Service’s Reaction to the Applicant’s Conduct

Attempts to ascertain medical fitness

61In the immediate aftermath of the applicant’s suspension, responsibility for coordinating the Service’s response to his actions was assumed by Supt. Gauthier, the applicant’s unit commander. She received a call at home on Saturday, November 17, 2007, concerning the suspension. When she returned to work on Monday, November 19, 2007, Supt. Gauthier reviewed the November 17, 2007 email and memo from the Duty Inspector (discussed above) and a November 17, 2007 memo from Sgt. Farrugia. All three documents raised concerns about the applicant’s mental well-being.

62On November 21, 2007, pursuant to the recommendation of the EFAP, the applicant asked Supt. Gauthier to complete an Injured on Duty report for him concerning the Yorkdale incident. Supt. Gauthier wrote on the IOD, completed that day:

On October 6, 2007, the officer was investigating a male party who was in possession of a firearm. A struggle ensued during which the officer received physical injuries to his thumb (reported at the time) and his back (reported subsequently). The officer is now reporting ongoing stress stemming from this incident.

63The protocol for filling out such forms is that the IOD is filed with Medical Advisory Services (“MAS”) and the injured officer is given a “Treatment Memorandum,” which is a form to be filled out by their treating physician. This form, in turn, is handed in to MAS, which reviews it in order to make a determination of fitness for duty. In breach of this protocol, Supt. Gauthier did not give the applicant a Treatment Memorandum.

64In any event, by November 21, 2007, Supt. Gauthier was aware that that there was a possible link between the Yorkdale incident and the reported behaviour in the aftermath of the McDonald’s incident. That day, she wrote an email to MAS setting this out and concluding with the following request: “I am seeking your assistance with identifying any medical issues that may be relevant to the officer’s conduct/fitness for duty.”

65The response from MAS was that the applicant should be encouraged to seek out medical help. Dr. Davids from MAS further wrote:

If there are ongoing concerns regarding PC Krieger’s fitness for work or his access or use of firearms, then MAS can furnish PC Krieger with the relevant forms to have his treating practitioner(s) complete prior to him returning to work when his suspension is lifted. I can review the completed forms and can advise further on his fitness for work.

….he may be quite suitable to return to work without further need for soliciting medical information. Alternatively, if his condition is not self-limiting then further medical follow-up may be necessary. [Emphasis added]

66In other words, Dr. Davids indicated that the role of MAS in the evaluation of an officer whose conduct might have been the product of a mental illness was to review the forms filled out by their physician in the event that the officer was ready to return to work and the condition was on-going. Supt. Gauthier thanked Dr. Davids for his response email and then indicated to him that she would “get back in touch when/if P.C. Krieger’s suspension is revoked.” There was never any point when the Service wished to revoke the applicant’s suspension and Supt. Gauthier made no further inquiries of MAS.

Investigation by Professional Standards Branch

67Officers who are suspended are subject to a twice-a-day reporting requirement on weekdays. On November 19, 2007, the first day the applicant reported to the station, Supt. Gauthier served him with a “Notification to Subject Officer” (“Notification”). This Notification advised him that he was under investigation by the Professional Standards Branch for both his conduct at McDonald’s and his subsequent conduct, including two counts of disobeying a direct order and one count of listening in at the doorway when the formal statement was being taken from the patron at McDonald’s who he was alleged to have assaulted.

68The Notification indicated that the conduct was considered both criminal and non-criminal in nature. By January 24, 2008, the Professional Standards Branch had received an opinion from a Crown Attorney that it would not be in the public interest to pursue criminal charges (although the applicant’s conduct vis-à-vis the patron was characterized as assaults at the lower end of the scale) and from this point forward, the investigation was conducted with a view to determining what disciplinary charges would be brought under Part V of the PSA.

69Discipline of a police officer is not meted out by management and subject to a grievance, as it would be in a typical unionized environment. Rather, police officers are subject to charges, which are pursued at disciplinary proceedings. At the end of these proceedings, “dispositions” are imposed, up to and including dismissal from the police force.

70Under this system, the Association does not have a formal role defending the officer subject to discipline. Instead, the practice has arisen that the Association pays for a lawyer to represent the subject officer starting at the investigation stage. In this case, Joseph Markson, a criminal lawyer whom the Association had been retaining to represent police officers in such proceedings since 2004, was retained to represent the applicant shortly after he was given notice of the investigation.

71Mr. Markson was instrumental in getting the above-described report from the applicant’s treating psychologist (Dr. Swallow) and arranging for the applicant to be seen by Dr. Rootenberg for the forensic psychiatric evaluation. Mr. Markson also advised the applicant with respect to his interview by the Professional Standards Branch, and sat with the applicant during this interview, which took place on February 19, 2008.

72Mr. Markson testified before me that his practice with respect to representing police officers in disciplinary proceedings is to be open about the fact that medical information has been (and/or is being) obtained. At the time of the February 19, 2008 interview with the Professional Standards Branch, Mr. Markson was in receipt of Dr. Swallow’s report, but the applicant had not yet met with Dr. Rootenberg (although he had an appointment with him six days later).

73Mr. Markson testified he recalled discussing the fact that he had a psychologist’s report with the two investigators conducting the interview, but they agreed that it was not appropriate that they be given it in light of the fact that it would contain sensitive medical information – information that they did not have any expertise to assess. Mr. Markson testified that he was not surprised that they did not want to see the medical reports because, in his experience, the Professional Standards investigation deals with the “what happened” element of the alleged misconduct, not with the “why” it happened.

74The respondents allege that, in fact, the applicant and his counsel actively withheld this information from the Professional Standards Branch. To that end, they called Detective Boulet who testified that this information was never shared with him; indeed, the applicant deceptively skirted around the issue of any mental illness in his interview. I am unable to accept that the applicant or his counsel actively withheld this information for the following reasons.

75First, Det. Boulet acknowledged on the stand that it was not his role as investigator to assess medical evidence, which would explain why it was not supplied to him or his partner. He indicated that in his role at Professional Standards, he had never received medical reports and, if he had, he would have directed that such information go to MAS. In addition, given the content of Dr. Swallow’s report, there was simply nothing to be gained – tactically or otherwise – from the applicant and his counsel maintaining secrecy about the existence of such evidence.

76Mr. Markson testified that it is his practice to more formally share this information after the conclusion of the investigation with the prosecutor of professional disciplinary matters, who at the time was Inspector Boyd. Mr. Markson reviewed his file and ascertained that there were records of telephone conversations between him and Insp. Boyd during the period from March 27 to April 2, 2008, concerning “the pending receipt of Dr. Rootenberg’s report.” The respondents called no evidence refuting this and I accept that these conversations took place.

77Mr. Markson testified that he was awaiting Dr. Rootenberg’s report before sharing the medical evidence because, in his experience, the courts and disciplinary tribunals found the expert opinion of a forensic psychiatrist more persuasive than a treating psychologist. The purpose of speaking to Insp. Boyd would be to attempt to persuade him that there were sufficient mitigating factors to either not prosecute the applicant (the prosecutor determined whether charges were appropriate and what they would be) or to reduce the penalty sought.

78Unbeknownst to Mr. Markson, the issue of disciplinary charges had become moot, as the Service had decided in the meantime to recommend the termination of the applicant’s probationary employment to the Police Services Board – a process that, in fact, led to the termination of the applicant’s employment. Once terminated, the Service lost jurisdiction to prosecute the applicant for disciplinary matters.

Decision to terminate the applicant’s probationary employment

79After a constable with the Service passes his or her probationary period, his or her employment can only be terminated following a finding of misconduct by a Hearing Officer at the conclusion of hearing held under Part V of the PSA. During the one-year period of probation, however, s. 44(3) of the PSA gives the Board the authority to terminate an officer’s employment with the Service without a hearing.

80This option had been proposed as early as January 2008, when Supt. Gauthier spoke with the Service’s Labour Relations Management Unit (“Labour Relations”) about initiating the process. Supt. Gauthier met with the applicant and his Association representative on January 14, 2008, and told them that she would be recommending the termination of the applicant’s probationary employment given the findings of the Professional Standards investigation. It was pointed out to her that the applicant had not even been interviewed by Professional Standards and it would be premature to rely on any information gathered thus far. Supt. Gauthier testified that she responded that she would keep an open mind depending on what the applicant said. Indeed, she took no further action until the completion of the Professional Standards investigation.

81Following receipt of the report of the Professional Standards investigation on February 25, 2008, Insp. Wallace (the second-in-command at 32 Division) wrote a memo that day to Staff Supt. McGuire (Supt. Gauthier’s superior) recommending that the Service “dispense” with the services of the applicant. His reasoning in that memo, reproduced in part below, is a candid reflection of the Service’s concerns:

Contained with the brief are the details of the precipitating event that on November 14th, 2007 revealed a characteristic of this officer not in keeping with the Core Values of this Service. Further, it could possibly leave the Service open to civil liability.

Professional Standards has investigated the incident and another, that although a few days later, is related to the event on the 14th. The results of their investigation are attached. Needless to say that the investigation alleges serious misconduct and forms the basis for my recommendation.

There may be the position taken that Constable Krieger’s behaviour was affected by a shooting incident on Oct 06, 2007. However, it should also be noted that both Constable Krieger’s coach officer and one of his uniform supervisor’s [sic] made notation of his over-confidence and over-assertiveness prior to his involvement in that event.

In Summary

… His characteristics of over-confidence and over-assertiveness were brought to his attention more than once. In a one-on-one contact with a civilian in a public place Constable Krieger provoked a conflict and unnecessarily raised it to an assaultive level. This was not just a misuse of his powers as a police officer but a warning flag of greater judgemental issues. There is an expectation by the Public and the Service that Police officers can handle both the mundane and crises calmly and competently. … [Emphasis added]

82On March 13, 2008, Supt. Gauthier advised the applicant that the Service had decided to recommend the termination of his employment, and on March 17, 2008, with an Association representative present, the applicant was served with the letter advising him of this recommendation. This letter states that the findings of the Professional Standards investigation are the basis of this recommendation.

83Although reliant on the investigation, this procedure was distinct from the disciplinary proceedings that would normally follow from a finding of misconduct by Professional Standards. Rather than going to a disciplinary hearing before a Hearings Officer, the process for the termination of a probationary constable consists of two steps, neither of which involves a formal hearing.

84The first step (assuming the probationary constable disputed the recommendation, which the applicant did) is to go before the Probationary Constables’ Standing Committee (the “Committee”). The Committee is composed of three senior officers, who represented management, and three Association representatives. In the event that there is a majority vote at the Committee, the decision of the Committee to either accept or reject the recommendation to terminate stands; in the event of a tie, the matter proceeds on to the Board (the second step in the process) for a final determination.

85Once it became apparent that the Service was proceeding in this manner, the Association became much more active in the representation of the applicant. Tim Zayack, Director of Uniform Field Services with the Association, phoned Supt. Gauthier on March 14, 2008, to talk to her about the verbal notice she gave to the applicant the day before.

86Supt. Gauthier testified that Mr. Zayack told her that the applicant would be taking the position that his actions at McDonald’s were related to the Yorkdale shooting. Supt. Gauthier did not inquire about whether the applicant had any medical evidence supporting this theory, nor did she suggest that the Service would be interested in obtaining any medical evidence.

87The Committee meeting was scheduled for (and, in fact, took place on) April 4, 2008, three weeks after the applicant was given verbal notice that the Service was recommending his termination. Given the tight time frame, it was necessary for the Association to act with some haste.

88Mr. Zayack testified that following receipt of the Committee Brief from the Service in late March, his immediate priority was to obtain medical evidence. He had a conversation with Joseph Markson in late March, at which point he learned of Dr. Swallow’s January 16, 2008 report. He also learned that Mr. Markson was awaiting a report from Dr. Rootenberg. He had two conversations with Dr. Rootenberg to “impress upon him” the need to get the report right away. He received Dr. Rootenberg’s report the morning of April 3, 2008.

89The Association retained Nini Jones to represent the applicant with respect to the termination, as this process was outside the scope of Joseph Markson’s area of practice. Ms Jones wrote to Aileen Ashman, the Director at Labour Relations, on April 3, 2008, enclosing copies of Dr. Swallow’s and Dr. Rootenberg’s reports. This letter was copied to the members of the Committee, although Mr. Zayack testified that the management representatives on the Committee had not seen the medical reports prior to the meeting on April 4, 2008. He distributed copies of the report to the members, who spent the first part of the meeting reading them.

90Mr. Zayack, who was one of the Association’s three representatives on the Committee, testified that the management representatives on the Committee expressed the view that the reports were “self-serving,” had come at the “11th hour” and were not relevant to the issues at hand. Mr. Zayack further testified that they were not interested in the issues – in particular, the Service’s need to accommodate the applicant’s disability – raised by the reports. Mr. Zayack’s testimony in this regard was given in a clear and credible manner, and is consistent with the other evidence. Moreover, since none of the three management members of the Committee testified, there is no evidence contradicting Mr. Zayack’s testimony on this point.

91Mr. Zayack testified that he proposed that the Committee take further time to consider the reports, and offered to adjourn the Committee meeting to another day, but the management members of the Committee expressed the position that they did not require further time to consider the issue. He also proposed extending the applicant’s probation (which was scheduled to conclude in mid-May, 2008), but that option was also rejected. The three management members voted in favour of the recommendation to terminate, while the three members of the Association voted against it. The tie meant that the issue was forwarded to the Board for its final consideration.

92Following the Committee meeting, Mr. Zayack sought to raise the medical/human rights issues with the Service via a number of avenues, to little effect. He contacted Supt. Gauthier to see if the Service would be interested in obtaining an independent medical assessment of the applicant, but she told him that this was a decision that would have to be made by Labour Relations. Supt. Gauthier testified that by this point she was no longer involved in the decision-making about the applicant, and that carriage of the matter was handed over to Labour Relations.

93In light of Supt. Gauthier’s position, Mr. Zayack contacted Eugene Kosziwka, an Analyst at Labour Relations, to ask about an independent medical exam. He testified that he explained to Mr. Kosziwka that the applicant’s doctors said he had a disability. Mr. Kosziwka responded that, from a Labour Relations perspective, there was no need to get an independent medical exam, but if there was a human rights issue Mr. Zayack should contact the Diversity Management Unit (“Diversity Management”).

94Mr. Zayack wrote a letter, dated April 17, 2008, to Andre Goh at Diversity Management, enclosing the two doctors’ reports and highlighting the human rights issues. He also spoke with Sgt. Hendricks from Diversity Management that day, who suggested he speak with Mr. Goh. Mr. Zayack made attempts to set up a meeting with Mr. Goh, but did not hear back from Mr. Goh.

95On April 18, 2008, Sgt. Hendricks wrote an email to Mr. Zayack which stated that Diversity Management could not deal directly with the Association until such time as the applicant had filed an internal human rights complaint and authorized the Association to represent him. This email also discussed the options for filing such a complaint. However, as subsequently became apparent, Diversity Management had no internal complaint procedure applicable to the applicant’s situation (i.e., a complaint concerning the Service’s failure to accommodate his disability).

96On April 23, 2008, Mr. Zayack wrote a letter addressed to both Mr. Goh and Sgt. Hendricks asking whether Diversity Management had authority to deal with the applicant’s situation, and explaining why the policies enclosed in Sgt. Hendricks’ April 18,2008 correspondence appeared to be inapplicable. He closed that letter by asking them to refer him to the appropriate person within the Service if Diversity Management did not deal with such cases of employment discrimination.

97Sgt. Hendricks testified that he had a meeting on April 24, 2008, with Mr. Kosziwka and Wendy Ryzek, another Analyst at Human Resources, to let them know that the applicant had raised serious human rights issues. These individuals told Sgt. Hendricks that Labour Relations was dealing with all the issues regarding the applicant, despite the fact that Mr. Kosziwka had only a short time before directed Mr. Zayack to Diversity Management with respect to the human rights issues raised by Mr. Zayack. Sgt. Hendricks testified that, in fact, during this period Labour Relations took over carriage of all internal files on human rights.

98Neither Mr. Goh nor Sgt. Hendricks responded to Mr. Zayack’s April 23, 2008 letter asking them to refer him to the appropriate person, although by April 24, 2008, Sgt. Hendricks knew that Labour Relations was taking the position that it was dealing with all the issues, including the human rights issues, involving the applicant.

99The final avenue taken by Mr. Zayack was to speak to the Service’s staff psychologist, Dr. Vipari, about the applicant’s case. She responded that she had nothing to do with it; the matter was with Labour Relations. At this point, although this was not clearly communicated to Mr. Zayack, everyone seemed to be in agreement that the only unit in the Service responsible for the applicant’s matter was Labour Relations, and that Aileen Ashman, as Director of that unit, was the Chief’s “designate.”

100The applicant made parallel inquiries during this period. On April 21, 2008, he spoke with Supt. Gauthier about why the Service was not considering his medical evidence and why he was not being sent for an independent assessment. Supt. Gauthier relayed the applicant’s concerns to Ms Ashman via email. Ms Ashman’s full response is as follows: “His medical records are in MAS and will be dealt with as deemed necessary.”

101It would appear from notes in the applicant’s MAS file that on April 7, 2008, someone from Occupational Health and Safety forwarded a number of documents, including Dr. Rootenberg’s and Dr. Swallow’s reports, to MAS for review of the applicant’s fitness for duty. The notes indicate that a review was done that day and a determination was made that the applicant was likely fit for modified work. Moreover, the reviewer noted: “It also would seem that the [applicant] is not fully ready to resume full primary response duties (PRD) without further assessment.” No one contacted the applicant or his representatives about conducting this further assessment. No one from Labour Relations (or MAS) testified concerning Labour Relations’ response to the suggestion that the applicant undergo a further assessment.

102On May 2, 2008, applicant’s counsel sent a “with prejudice” offer to settle to Ms Ashman in her role as the Chief’s designate, proposing, among other things, that the applicant’s probationary period be extended for seven months (the applicant had worked as a probationary constable for five months at the time of the Yorkdale incident). She also proposed that the applicant undergo an assessment of his fitness for duty by Medical Advisory Services. Ms Ashman did not respond to this offer.

103The Board convened on May 5, 2008, to consider the recommendation for termination. It had before it written submissions from the Chief (prepared by Labour Relations) and the applicant. The Service’s written submissions, dated April 8, 2008, do not address the applicant’s position that he was suffering from a disability at the time of the incidents set out in the submissions or otherwise address the human rights issues raised by the applicant. Mr. Zayack testified that in its oral submissions to the Board at that meeting, the Service took the position that it was only relying on the applicant’s conduct at McDonald’s.

104At the end of the oral submissions on May 5, 2008, the Board wrote out four questions which it asked the parties to answer and then adjourned the meeting to May 7, 2008. The first of these questions relates to whether the applicant had a disability in light of the fact that his mental disorder was not a permanent condition. The remaining three questions were as follows:

2. Does [the] employer become obligated to provide accommodation short of undue hardship only when apprised of a disability by the employee or also when the employer ought reasonably to have known that an employee had/may have a disability?

3. Is an employer liable for a decision to suspend an employee for a [sic] conduct that subsequently may be found to have been caused by a disability under the Code, but which the employer had no reasonable way to know about at the time the decision was made?

4. Must the employer take the disability into account when considering termination based upon facts known at the time the process for termination was initiated, and disregard information that developed only later on?

105The parties filed supplementary written submissions attempting to respond to these questions. In its supplementary written submissions to the Board, the Service took the position that the applicant’s behaviour following the McDonald’s incident was also relevant, as was his failure to report (discussed below). In addition, the Service took the position that the applicant’s performance appraisals showed pre-incident conduct that “though less extreme, is not dissimilar to that demonstrated in the early morning hours of November 14, 2007 when PC Krieger assaulted a man in the absence of provocation or reasonable grounds.”

106Moreover, in its submissions to the Board, the Service took the position that the applicant “ambushed” the Service with late disclosure of his medical condition, and that this failure to disclose in a timely fashion constituted a “wilful disregard for Service procedures.”

107The Board provided brief oral reasons for approving the recommendation to terminate, which were recorded in its minutes of that meeting. These reasons state that the Board relied on the applicant’s conduct on October 6, 2007 (the Yorkdale incident), November 13-14 (the McDonald’s incident), November 16-17 (the night he was suspended), as well as that reflected in his performance appraisals and his post-suspension “behaviour.” It is not clear whether the Board accepted that the Service’s argument that the applicant purposefully withheld medical evidence.

108The Board noted: “We have also carefully considered the possible accommodation issues raised by the experts’ reports on Mr. Krieger’s post-traumatic stress disorder.” It does not, however, indicate what conclusions it reached after that careful consideration, other than the following: “Based on the totality of the evidence before us, we have concluded that Mr. Krieger is not suitable to serve as a police officer with the Toronto Police Service.”

The Reporting Issue

109During the period of his suspension, the applicant was required to report to 32 Division twice a day, at 9:00 a.m. and 4:00 p.m., on weekdays. The applicant complied with that requirement for five months, but in April found work that interfered with the strict compliance with that requirement.

110Mr. Zayack testified that he spoke with the applicant in advance of the Board meeting and told him that his chances of success before the Board were “remote;” in his experience the Board simply “rubber-stamped” the recommendation of the Chief. He also told the applicant that if the Board decided to terminate his services, it would be immediately, at which point the applicant would cease to be paid (i.e., there were no common-law notice of termination requirements).

111At the time, the applicant and his spouse had a mortgage on their house, the applicant’s spouse was in school and he was the sole support for the couple. Upon receiving the news, the applicant looked for work and found a position at a car dealership in Ajax. This was too far away from 32 Division for the applicant to report at the specified times. Initially, it was not believed to be an issue, as he was to commence work on April 16, 2008, and the Board meeting at which his termination was to be considered was scheduled for April 17, 2008. However, it became an issue when the Board meeting was re-scheduled to May 5, 2008.

112His counsel and Mr. Zayack attempted to negotiate a change to the applicant’s reporting requirements in the week leading up to the start of his job. They advised the Service representatives that since the applicant would be making more money in his new job than he had while under suspension, he would no longer be receiving any money from the Service given the provisions of the PSA in force at that time.

113Initially, they proposed that the applicant report in by telephone, but when that option was rejected also suggested that the applicant sign in at a police station in Durham or that he report to 32 Division at different times of the day. Aileen Ashman, Director of Labour Relations, responded to the letters and verbal inquiries directed to the Service, by indicating that if the applicant did not comply with the reporting requirements he would be deemed to have “abandoned” his employment. Ms Jones wrote in response that the applicant was not abandoning his employment and demanded an explanation for the Service’s insistence on the strict compliance with the reporting requirement.

114Ms Ashman’s letters in response do not contain the explanation demanded. However, at the meeting before the Board, in response to a question from the Chair about the rationale for the twice-a-day reporting requirement, the Deputy Chief explained it was twofold: (1) the Service was paying the officers under suspension; (2) it was a way of monitoring substance abuse issues. Since there has never been any suggestion of a substance abuse problem, and since the Service was no longer paying the applicant after April 16, 2008, neither rationale applied to the applicant’s situation.

115Starting April 16, 2008, the applicant reported to the station only once a day and at a time permitted by his new work schedule. On April 22, 2008, at the recommendation of both Labour Relations and Professional Standards, the applicant’s division filed an internal complaint to Professional Standards with respect to his non-reporting.

DECISION AND ANALYSIS

Discrimination on the Basis of Disability

116Section 5(1) of the Code prohibits discrimination in employment on the basis of disability, a ground which is defined in s. 10(1) of the Code to include mental as well as physical disorders. The onus lies with the applicant to prove on the balance of probabilities that not only did he have a disability, but that he experienced differential treatment linked to that disability.

117In response to such an allegation of discrimination, the respondents can argue that they based their decisions on considerations unrelated to the applicant’s disability. Alternatively, they can argue that the applicant was incapable of fulfilling the essential duties of the position of a police officer. Section 17(1) of the Code specifies that if the individual with the disability is “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability,” then differential treatment is not an infringement of that person’s rights.

118Section 17(2) incorporates the duty to accommodate into the analysis by specifying that a person with a disability shall not be found incapable of performing the essential duties if the needs of that person can be accommodated “without undue hardship on the person responsible for accommodating those needs.” In determining the question of undue hardship, the Code specifically identifies two considerations: cost (including outside sources of funding) and health and safety requirements.

119Section 47(1) of the PSA specifically applies the duty to accommodate as set out in the Code to members of municipal police forces who become incapable of performing the essential duties of their position by virtue of a physical or mental disability.

120It is important to keep this framework in mind when considering the issues identified by the parties in this case.

Concession / Prima Facie Case of Discrimination

121The respondents concede that the applicant suffered from a mental disorder, and therefore a disability, as a result of the events at the Yorkdale mall. They also concede that at the time of the events at the McDonald’s on November 14, 2007, the applicant was suffering from the mental disorder and that it impacted on his behaviour towards the patron. These concessions were made in the respondents’ opening statement and in a follow-up letter to the applicant’s counsel.

122After commencing the respondents’ case, counsel for the respondents attempted to resile from the concession that the applicant was suffering from a disability on the basis that some of the applicant’s fellow officers had other theories about what was causing the applicant’s behaviour. In light of the fact that none of these theories was informed by any actual medical knowledge, as well as the lateness of the request, I ruled that the respondents’ request to withdraw its concession would not be permitted.

123In any event, I accept the medical evidence of both Dr. Swallow and Dr. Rootenberg that the applicant’s actions at the McDonalds were the result of a then-undiagnosed PTSD resulting from his earlier altercation at the Yorkdale Mall.

124The Chief of Police conceded that it was this incident that led to the recommendation for the applicant’s termination, and that accordingly, the applicant had made out a prima facie case with respect to this respondent. No such concession was offered with respect to the Board, which reportedly made its decision on the “totality of the evidence.”

125Although its reasons are brief, the Board does make reference to the fact that it was relying on the behaviour of the applicant on the nights of November 13/14 (the night of the McDonald’s incident) and November 16/17 (the night of his suspension). The expert medical evidence is that the applicant was continuing to suffer from an undiagnosed PTSD in the wake of the McDonald’s incident, and that the behaviour described in the nights that followed – including the night he was suspended – is consistent with someone suffering from that particular mental disorder.

126The Board asserts in its reasons that it also relied on the conduct reflected in the applicant’s performance appraisals, as well as “post-suspension behaviour,” in coming to its conclusions. However, an applicant is not required to prove that his disability-related behaviour was the only basis for the Board’s decision, but merely a factor in its decision. The applicant has met that burden.

Duty to Accommodate

127The respondents argue that the applicant’s actions – the assault of an innocent civilian, the attempt to coerce a fellow officer to alter her notes, the disregard for orders from his superior officers – are so egregious that, even if a product of his disability, they cannot be tolerated in a police officer. To use the language of the Code, their argument appears to be that the applicant was incapable of fulfilling the essential duties of a police officer.

128A police officer must be able to accurately assess a situation and exercise good judgment in his or her dealings with the public, his or her superiors and with the administration of justice. Although I do not accept the respondents’ theory that the applicant was attempting to coerce his partner to alter her notes, it is clear that the applicant’s ability to assess a situation and his judgment were sufficiently impaired while he was in the midst of his full-blown PTSD that he was temporarily unable to fulfill the essential duties of his position.

129However, that is not the end of the inquiry. Many disabilities will temporarily prevent employees from fulfilling some or all of the essential duties of their positions. The question is whether the Service could have accommodated the applicant so that he was able to return to his full duties or a modified version thereof.

130The accommodation process has been described as having both a procedural and a substantive component. The Divisional Court in AGDA Group Consultants Inc. v. Lane, 2008 CanLII 39605, described these components as follows at paras. 106, 112, and 117:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.

…

The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee’s disability short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of the every case. For example, undue hardship could arise due to excessive cost or safety concerns.

…

Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences “might” or “could” result if the claimant is accommodated.

131The Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (“the Commission’s Policy”) describes in greater detail the procedural component of the duty to accommodate. The Commission’s Policy states that the accommodation process must be a cooperative venture between the employer, employee and, if applicable, the union. See also: Halifax (Regional Municipality) and Municipal Assn. of Police Personnel (Re) (2002), 2002 CanLII 79066 (NS LA), 105 L.A.C. (4th) 232 (B. Outhouse). An employee has an obligation to advise the employer of his or her needs, cooperate with any experts and “work with the accommodation provider on an ongoing basis.” The Commission’s Policy states that an employer is required to accept the accommodation in good faith (unless there are reasons not to), obtain expert advice and canvass various options.

132I agree generally with the above principles, although (1) there may be circumstances where an employee is not obliged to cooperate with an expert (e.g., there may be competing expert opinions); (2) it may not always be necessary for an employer to obtain expert advice (i.e., the appropriate accommodation may be discernable without the need of consulting an expert); and (3) the employer’s acceptance of an accommodation is contingent on it not resulting in undue hardship.

133The above process is premised on the applicant being able to recognize that he or she has needs arising from a disability. Sometimes, however, an applicant is not in a position to articulate or even recognize those needs because of the nature of the disability. I find the following statements contained in the Commission’s policy accurately articulate the additional requirements imposed on employers in such circumstances:

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.

…

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs. [Emphasis added]

Failure to Follow the Procedural Duty to Accommodate in the Pre-Suspension Period

134I accept that the applicant was not aware that he was suffering from PTSD in the period following the Yorkdale incident. Indeed, although he was in some distress in the wake of the McDonald’s incident, the applicant seemed unaware that he may be suffering from a mental disorder until the night he was suspended. The first evidence we have that he acknowledged something was wrong was when he was asked by Sgt. Farrugia whether he was unwell, and he responded “Well, I’m not sick, but I’m not well in my head.”

135It is not surprising that the applicant was unable to recognize the symptoms he was experiencing was, in fact, an illness in light of the fact that he did not have a history of PTSD and so would have no previous experience by which to gauge what he was feeling. Moreover, his perception was impaired by the disorder. Dr. Swallow explained that he not only perceived that the patron at McDonald’s was acting in a threatening manner at the time, but his memory of that incident would continue to be that there was a real threat. This remains the case to the present day, even though the applicant now understands that the perception was distorted.

136That is not to say that a person suffering from PTSD or Acute Stress Disorder would never be able to recognize that he or she is experiencing the symptoms of acute stress. Part of the aim of treatment is to equip the individual with the necessary tools to evaluate their thoughts and determine whether they are distorted.

137For its part, the Service had reason to believe that the applicant was – to use the words of the Commission’s policy – “clearly unwell.” In the immediate aftermath of the McDonald’s incident, the applicant was described as “being in [his] own little world.” Sgt. Harker, who observed the applicant on the scene, testified that he was worried about the applicant’s mental state. Back at the station, his behaviour was perceived by those who observed him as “erratic,” “tense,” “agitated” and out of character.

138Even before the events of the evening that led to his suspension, the applicant’s persistent attempts to speak to Sgt. Harker can be characterized as obsessive. Sgt. Farrugia, who spoke with the applicant about Sgt. Harker’s unavailability/unwillingness to speak with him on the night of November 14/15, 2007, was sufficiently alarmed that when she spoke to Sgt. Harker later that night she expressed her concern that there was something wrong with him. When she discovered what had happened to the applicant at the McDonald’s the night before, she voiced the opinion that the applicant could be suffering from PTSD as a result of what had transpired at Yorkdale.

139Sgt. Farrugia was not the only one aware that the Yorkdale incident could lead to PTSD. Sgt. Stones highlighted the possibility of PTSD in his discussion with the applicant and his partner, P.C. Samson, in the hours that followed the incident at Yorkdale. Indeed, the Service has a policy on critical incident stress, which, even if not followed in the applicant’s case, would have made those around the applicant alive to the possibility that that is what he may have been experiencing. Many of the respondents’ witnesses testified that they received refresher training on PTSD and critical stress in the regular training sessions held each compressed work week cycle (i.e., each five weeks). Given the nature of policing, it is not surprising that this particular mental health issue is highlighted.

140The fact that the applicant was told about PTSD and trained on the critical incident stress policy was raised by the respondents to fault the applicant for not recognizing and doing something about his disorder before it became debilitating. However, this argument cuts both ways: if a probationary officer with five months’ service is supposed to be on the lookout for a severe stress reaction in the wake of a life-and-death incident, then surely senior, experienced officers have an even greater obligation to recognize such a disorder when a junior officer on their watch appears to show symptoms of it.

141Even though Sgts. Harker and Farrugia were aware that the applicant might be suffering from a mental disorder, their treatment of the applicant was insensitive and unhelpful in the days that followed the McDonald’s incident. Every attempt by the applicant to speak to Sgt. Harker was rebuffed without any explanation for why he felt he could not speak to the applicant, or without any attempt to find out what the applicant needed to speak about. On the night of his suspension, Sgt. Harker testified he screamed at the applicant in a manner that he had never used with any other officer in his 35 years with the Service. Sgt. Harker’s behaviour towards the applicant contributed to the considerable stress under which the applicant was operating.

142The applicant was then ordered by Sgt. Harker to not remain in the station, an order repeated by Sgt. Farrugia, even after the applicant had told her that “he was not well in the head.” At no point did anyone think to suggest to the applicant that he seek help or at least take some time off work until after his behaviour had become so bizarre that Sgt. Harker felt the need to draw his gun before confronting the applicant.

Failure to Follow the Procedural Duty to Accommodate in the Post-Suspension Period

143In the period that followed his suspension, the applicant sought out treatment and on the recommendation of the EFAP, had his unit commander fill out the IOD for stress, which specifically linked his condition to his earlier experience at Yorkdale. At the same time, the applicant advised Supt. Gauthier that he had an appointment to see Dr. Swallow. Supt. Gauthier admitted on cross-examination that she recognized Dr. Swallow as someone who provided psychological services to members of the Service.

144For its part, the Service did nothing to facilitate the accommodation process. Supt. Gauthier did not give the applicant the Treatment Memorandum for Dr. Swallow to fill out so that MAS could assess the applicant’s fitness to return to work. Supt. Gauthier did make inquiries of MAS to find out what assistance, if any, it could provide in assessing the applicant’s conduct and fitness for duty. She was told that MAS only had a role to play in the event that the Service wished to lift the applicant’s suspension. Although some consideration was apparently given to lifting the applicant’s suspension, this option was rejected and the applicant was not asked for any medical updates. Indeed, the applicant and the Association seem to have been shut out of any discussion of his future with the Service and were never invited to participate in the accommodation process.

145This left the Professional Standards investigation, but given that this process focuses on determining whether professional discipline and/or criminal charges should be laid, it is not a process particularly well-suited to the procedural requirements of the duty to accommodate. Mr. Markson – seasoned in the arena of discipline investigations and prosecutions – testified that it is his belief that the focus of the Professional Standards investigation is on the “what” happened, not on the “why” it happened. This characterization was not seriously disputed by the respondents’ witnesses. It is hardly surprising in that kind of environment that a diagnosis of a mental disorder is regarded as irrelevant to the investigation, and only something discussed at the prosecution stage.

146Having said that, Mr. Markson maintains, and I accept, that some medical information was shared with the investigators. The Service criticizes the applicant for not being more forthcoming during this period – in particular, for not sharing Dr. Swallow’s report in January, rather than waiting for two and a half months to disclose it.

147I agree that it would have been advisable for Mr. Markson to get this information to the Service as soon as it was available. If he felt, for some reason (tactical or otherwise), that it was not his role to share it he should have at least turned Dr. Swallow’s report over to his client, who in turn could have discussed it with the Association.

148As discussed above, the procedural component of the duty to accommodate is a three-way process. In the absence of any accommodation process on the part of the Service, the Association (and the applicant) should have been more proactive about attempting to get the accommodation issues before the Service. Instead, while the Professional Standards investigation was underway, the Association and applicant were remarkably passive about the Service’s ongoing failure to consider the accommodation issues. Having said that, I am mindful that Mr. Markson directed the applicant to remain silent on the issue of the disability behind the behaviour.

149Even if the applicant and, more particularly, his counsel were wrong in not sharing the diagnosis with either the investigators or Supt. Gauthier at the earliest opportunity, by early April the Service – in particular, those who were responsible for determining the applicant’s future with the Service – had detailed medical information. What is telling is how the receipt of this information at this stage failed to spur the Service to engage in the accommodation process.

Failure to Follow the Procedural Duty to Accommodate in the Period Following the Decision to Recommend Termination

150The respondents argue that the medical information came too late in the process; that if the applicant had shared this information with the Service earlier, the outcome might have been different. Although it is understandable that the Probationary Constable Committee might have felt that they were getting the medical reports at the last minute, Mr. Zayack testified that he offered to postpone the meeting to a later date to allow the Committee members to review and reflect on the information. No one from the Service testified that Mr. Zayack’s offer was not made, or that it was somehow unworkable, and I accept that the Committee could have adjourned the meeting and subjected the medical information to the scrutiny it deserved.

151As was pointed out on behalf of the applicant, the Service has many resources at its disposal. When Dr. Rootenberg’s and Dr. Swallow’s reports were supplied to MAS on April 7, 2008 (only three days after the Committee meeting), MAS was able to conduct the review that same day. After reviewing these reports, MAS concluded that the applicant was likely fit for modified work and a further assessment was warranted. However, the evidence (or rather, the lack thereof) indicates that no one from the Service gave any consideration to the MAS conclusion and recommendation.

152Mr. Zayack described the extraordinary efforts to which he went to get someone from the Service to consider the medical evidence and engage in the accommodation process. Labour Relations, the unit charged with bringing the termination case to the Board on behalf of the Chief, directed Mr. Zayack to Diversity Management. He spent a week trying to ascertain what, if anything, Diversity Management could do to kick-start the accommodation process. When Diversity Management approached Labour Relations about the accommodation issues raised in this case, it was told (paradoxically) that Labour Relations was dealing with all issues involving the applicant. No one from the Service bothered to communicate that information back to Mr. Zayack.

153Despite the efforts made by the Association and the applicant, the evidence overwhelmingly demonstrates that Labour Relations refused to evaluate the medical evidence brought to its attention or otherwise engage in the accommodation process. Indeed, other than asking for MAS’s input (and then apparently doing nothing with the recommendation), the Service seems to have done nothing to consider whether its position on termination was warranted.

154Although the respondents argue that the information came too late, I find that there was sufficient time (with or without the extensions) to engage in the process after the medical evidence came to light. The failure to consider the applicant’s with-prejudice offer to extend his probationary period underscores the fact that the failure of Labour Relations to engage in the accommodation process stemmed, not from a lack of time, but from a lack of interest in changing the course they had chosen.

155From all outside appearances, Labour Relations was more interested in ensuring the applicant’s termination than in assessing whether termination was appropriate. Once the Board made it clear that it had some interest in the human rights component of the case (however awkwardly its questions to the parties were phrased), rather than re-thinking its position, Labour Relations simply expanded its case to include conduct seemingly unrelated to the applicant’s disability.

156In its supplementary written submissions to the Board, Labour Relations distorted the information found in the applicant’s performance appraisals to make it appear as though his pre-Yorkdale conduct revealed underlying character flaws which warned of his conduct at McDonald’s. Each of the applicant’s supervisors admitted on the stand that, in fact, the applicant was progressing well during his probationary period up until the development of his stress disorder. Moreover, the author of the fourth and final performance appraisal admitted that the appraisal was prepared in order to support the termination and was not an accurate reflection of the applicant’s actual performance during the period it purportedly covered.

157Viewed as a whole, the respondents had reason to believe that the conduct that led to the applicant’s suspension – and ultimately his termination – was caused by a disability. It made only cursory attempts at the outset to ascertain whether this was so and otherwise failed to meaningfully engage in the process to determine whether it could have accommodated the applicant. The process was, to some extent, hindered by the Professional Standards investigation, but once a decision was made to follow the alternative termination route, the Service continued to be indifferent to the accommodation process. Indeed, by April 2008, despite what might be described as total cooperation by both the applicant and the Association, the Service became more entrenched, actively resisting any attempt to force it to fulfill its obligations under the Code.

The Substantive Duty to Accommodate

158The uncontradicted medical evidence of Drs. Swallow and Rootenberg is that the applicant’s PTSD was amenable to treatment. The applicant willingly engaged in the treatment process, which they opined not only dealt with the immediate symptoms of stress that resulted in his suspension (and which Dr. Swallow observed at the outset of his relationship with the applicant), but lowered his risk of him developing a future post-stress disorder. Moreover, Dr. Rootenberg assessed the likelihood of the applicant engaging in further acts of violence as very low; in fact, given the applicant’s history, his risk of future violent behaviour was lower than the population as a whole.

159Dr. Swallow, his treating psychologist, was of the opinion that the applicant could have returned to modified duties in early 2008. This conclusion was echoed in the notes of the Service’s reviewing physician at MAS. The respondents did not call any evidence that no such modified duties existed, or that it would have resulted in undue hardship to them to accommodate the applicant in such a manner.

160The respondents did assert that the applicant’s behaviour at the McDonald’s was so egregious that it alone would have sufficed to justify his termination. To that end, they relied on Hall v. Chief of Police, Ottawa Police Service, 2008 CanLII 65766 (Ont. Div. Ct.), in which the police officer was deemed unsuitable even though the misconduct arose out of his disability (which, in this case, was addiction). In Hall, the Divisional Court upheld the decision of the Hearing Office and OCCPS to terminate the police officer as reasonable. In that case, both lower bodies had determined that the officer’s “repeated conduct over a lengthy period of time was of such an outrageous nature that he effectively destroyed his potential usefulness as a police officer.”

161In my view the facts in Hall are completely distinguishable from the facts before me. Not only was the applicant’s conduct in this instant case limited in time, but the evidence I heard does not indicate that it had the effect of destroying the applicant’s “potential usefulness as a police officer.” As pointed out by applicant’s counsel, the victim of the behaviour at McDonald’s did not file a complaint, and expressed the view that he did not want the applicant to lose his job over the incident when interviewed by the Service. I would note also that the Crown elected not to proceed with criminal charges, whereas the police officer in Hall was convicted of serious criminal charges.

162I am not sitting as a Hearing Officer in a police discipline case and am in no position to assess what might or might not have transpired had this matter proceeded via the discipline route and the applicant’s lawyer presented the medical evidence in mitigation.

163On the basis of the evidence I heard, I find that the applicant could have been accommodated.

Reprisal

164The applicant argued that the Service’s (Chief of Police’s) decision to not change his reporting requirements for the last three weeks of his suspension, and its decision to initiate an investigation when he failed to report twice a day when his new job started, amounted to reprisal for claiming his rights under the Code. The Code protection against reprisal is as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

165In determining whether the respondents reprised against the applicant for enforcing his rights, I am guided by the case law which states that, unlike other protections in the Code, the applicant must show that the respondents “intended” to reprise against him. See Jones v. Amway of Canada, Ltd., [2002] O.J. No. 1504 (Ont. Sup. Ct.). This determination is made somewhat more difficult because Aileen Ashman, the apparent decision-maker in this instance, did not testify.

166The respondent did call one witness who was initially involved in the request to vary the reporting requirement. Supt. Stubbings testified that the rationale for not varying the requirement was that the applicant was being paid by the Service while under suspension. The other rationale was to monitor substance abuse problems. Neither rationale was applicable to the applicant at the relevant time period (i.e., he was no longer being paid by the Service and he had no substance abuse issues).

167The applicant argues that I can infer the Service’s intention from the close proximity in time between the applicant’s claiming of his rights and the decision not to alter his reporting requirements, as well as from the absence of any rationale for the decision.

168The absence of a coherent explanation from the respondent is not necessarily an indication of intention. The evidence suggests that the Service has a multitude of rules governing the conduct and appearance of its officers, many of which appear – from the perspective of a layperson – to be arbitrary. The fact that the Service did not use its discretion to carve out an exception for the applicant does not, on its face, appear to be extraordinary.

169More significantly, however, the tenor of the communications between the applicant’s representatives and Ms Ashman suggests another reason for the Chief’s refusal. By this point, the evidence suggests that Labour Relations – and in particular, Ms Ashman – was locked in a highly adversarial relationship with the applicant and the Association. In her oral submissions, counsel for the applicant posits that, “[refusing to alter the reporting hours] was a strategic effort by the Service to put itself in a better legal position as against Constable Krieger.” This seems a better explanation for the Service’s intransigence than an act of retaliation for asserting a right under the Code. Accordingly, I find no reprisal against the applicant.

REMEDY

170The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right 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.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.

Reinstatement

171The applicant’s primary request on remedy is reinstatement. He has pursued his case at the Tribunal in the hope that he can return to the Service as a police officer, a job which he testified he loved. As pointed out by his counsel, the applicant “cannot reasonably anticipate … securing any equivalent employment” given the nature of his termination. Unless he is reinstated, his career as a police officer will effectively have come to an end.

172The respondents do not dispute that this Tribunal has the authority to award reinstatement, but state that reinstatement is not appropriate in the circumstances of this case. The question I must answer is whether the evidence supports the respondents’ position that the employment relationship between the applicant and them is not viable.

173The respondents’ arguments against reinstatement can be summarized as follows:

• The applicant’s actions are inconsistent with the core values of the police, in particular honesty and integrity.
• The applicant has shown very little empathy towards the patron at McDonald’s.
• The applicant’s conduct towards the patron was so egregious that he can no longer be a police officer.
• The applicant does not have a long, unblemished service record to mitigate his behaviour.
• The applicant did not show commitment to the Service when he took the job that interfered with his twice-a-day reporting.
• The applicant failed to recognize the genuine concerns about his attitude and conduct reflected in his performance appraisals.
• The applicant has not demonstrated a commitment to therapy, and there’s no evidence that he has recovered sufficiently that he will not experience another breakdown under similar stress.
• Although there may be a large number of employees in the Service, police officers are a brotherhood and so news travels within quickly the group such that the applicant’s “reputation will have proceeded him” regardless of where he is posted.

174I do not agree with the respondents’ position that the evidence showed the applicant was dishonest and showed a lack of integrity. Two of the examples the respondents point to occurred during the time period that the applicant was suffering from a mental disorder that was affecting his perception, judgment and behaviour. He was undoubtedly at the time highly anxious and not acting in a rational manner, but I do not agree that his words and actions conveyed that he was trying to cover up his actions at McDonald’s or that he was asking his partner to remove information from her notes that made him look bad.

175As explained by his treating psychologist, the applicant cannot alter his memory of what took place in the early morning hours of November 14, 2007. That is, his disorder altered his perception of what took place, and it was this distorted perception that formed the basis for his memory of the event. It would, in fact, be dishonest of him to assert that he now remembers events differently. With respect to his alleged lack of empathy for the patron he accosted at McDonald’s, the applicant has acknowledged that he over-reacted; he cannot, however, alter his memory that the patron’s behaviour was threatening because at the time of the event, he experienced the patron’s behaviour as threatening.

176I have rejected the argument concerning the egregiousness of the applicant’s conduct towards the patron in the discussion of whether dismissal was warranted. The same considerations apply with respect to reinstatement.

177It would be inappropriate to use the applicant’s relatively short service record as a factor weighing against reinstatement in a human rights case. The factors taken into account by an arbitrator in deciding remedies for a termination grievance may not be congruent with the considerations applicable to determining remedies under the Code.

178The respondents’ argument that the applicant did not acknowledge the genuine concerns about his pre-disability job performance, as reflected in his performance appraisals, is misplaced. The applicant’s supervisors all admitted under cross-examination that the applicant was progressing well. Undoubtedly, the applicant has some rough edges and could improve his performance, as would be the case for almost any employee beginning a career. In determining whether this applicant should be reinstated, it would be inappropriate for the Tribunal to hold him to a standard of perfection.

179The respondents suggest also that the applicant’s failure to obey a direct order of the Chief to report twice a day for his last three weeks of his suspension shows a lack of commitment to his career as a police officer; that he could and should have made alternative arrangements. This evaluation must be made having regard to the circumstances the applicant was facing, including the fact that the applicant was told that he would almost certainly lose before the Board, at which point his income would immediately cease. The applicant, who was the sole support for his family, testified that he was concerned that he would not be able to make the mortgage payments on his home. Moreover, the start date for his new job did not interfere with the initial date for the Board meeting, but only became a problem when the meeting was moved to May 5, 2008. While the applicant could have risked more, in the circumstances, I do not find the applicant’s unwillingness to do so to be inconsistent with a viable employment relationship.

180In their written submissions, the respondents argue: “The Applicant can only be successfully reinstated if he can be trusted not to react inappropriately under stress. The Applicant has not demonstrated the insight or commitment required to inspire this trust.” As noted above, the respondents chose not to call any medical evidence refuting the medical evidence of the applicant. The medical evidence called on behalf of the applicant suggested that he (a) did demonstrate insight and commitment in the therapeutic process; (b) was at a low risk of future violence; and (c) could use the tools gained from his first therapeutic intervention to prevent his behaviour from escalating out of control if he did suffer from relapse after being exposed to a similar situation. Both Dr. Swallow and Dr. Rootenberg were supportive of the applicant returning to work as a police officer.

181Both medical experts testified that if the applicant were to return to policing work he should be encouraged to undergo further psychological care. Returning to work in these circumstances will almost certainly be stressful, and it would be prudent for the applicant to ensure that he has professional help dealing with this stress. Moreover, at the time he discontinued therapy in late February 2008, there appeared to be further work the applicant could have done from a therapeutic perspective which the applicant chose not to pursue at that time.

182While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” Alberta Union of Public Employees v. Lethbridge Community College, 2004 SCC 28, at para. 56. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

183There are many indications that reinstatement will work in this case: The applicant has the support of the Association, and reports having the support of individual members of the Service. Moreover, the Service is a large and sophisticated employer.

184It appears to be common ground between the parties that, should the applicant be reinstated, there should be a gradual return to work, possibly involving modified duties. How precisely this will proceed is not clear. Before any steps can be taken, the applicant will need to undergo an updated medical assessment.

185Indeed, there are a number of details concerning the applicant’s return to work that the parties have suggested they should first attempt to address themselves involving, among other things, medical clearance, re-training, seniority, work assignment and mentoring. Given the Tribunal is an outsider to this complex employment relationship, it certainly makes sense for the parties and the intervenor to try to negotiate the terms of the applicant’s reinstatement rather than have the Tribunal impose conditions that may be inappropriate. In the event that the parties are unable to agree amongst themselves, the Tribunal will remain seized so that the terms of the applicant’s reinstatement can be made the subject of an order.

Monetary Compensation for Injury to Dignity, Feelings and Self-Respect

186Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, supra, the Divisional Court confirmed that there is no ceiling on the amount of compensation that can be awarded. In speaking about general damages, the Court noted at paragraph 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness of the offensive treatment.

187The applicant requested $50,000.00 as compensation for injury to his dignity and feelings arising from the discriminatory treatment, $25,000.00 for the respondents’ breach of their duty to accommodate his disability and an additional $15,000.00 for the reprisal. I would note, as a matter of principle, the discrimination in this case arose out the respondents’ failure to accommodate the applicant’s disability and it is, therefore, appropriate to make a global award rather than two separate awards as suggested by the applicant. Likewise, since I have not found reprisal in this case, I cannot award damages under that head.

188Although I cannot award compensation for the role the Service may have had in the fact that the applicant developed a mental disorder, it is appropriate to award damages for the extent to which the Service prolonged his suffering once this disorder came to light. Based on the testimony of the applicant and the two medical experts, I find that the failure of the Service to consider whether the applicant had a disability and to consider its obligations under the duty to accommodate greatly added to the applicant’s distress.

189Had it given proper consideration to this obligation, the Service likely would have returned the applicant to modified duties in January or February 2008. He may well have been returned to full duties following that. The applicant reported how difficult it was not being able to work during the period he was under suspension, and how stressful it was waiting to find out whether he would be charged or his employment terminated. Even once these decisions were made, the applicant was forced to endure the stress of a highly adversarial termination process, and return to a line of work that he had left in order to become a police officer. He has not been able to work in the job he loved and has wanted to return to for more than two years.

190While I have not found that the refusal to waive the reporting requirements was reprisal, as that term is defined in the Code, I find that this arbitrary refusal to exercise its discretion, when the Service knew that the likely outcome of the Board meeting was the applicant’s termination, added to the applicant’s distress. Moreover, had the respondents respected the Code, the applicant would likely not have been in the position of having to report to the station at all.

191Finally, the manner in which the Service handled the applicant’s breakdown and departure has greatly undermined his relationship with his fellow officers and supervisors in his Platoon and possibly even his Division. This public disclosure of a highly personal medical condition reportedly has been hard on the applicant. The applicant testified that having to report to the Station twice a day, knowing that everyone knew the circumstances of his departure, was embarrassing. The Service’s lack of sensitivity, combined with the gap in which he has not been working in the area, will make his return to policing work much more difficult than if the matter had been handled appropriately and in adherence to the requirements of the law.

192In light of the period of time over which the problematic conduct took place, the experience of victimization and the vulnerability of the applicant, I find that $35,000.00 is an appropriate amount in compensation for injury to his dignity, feelings and self-respect.

Accommodation Policy

193Although some of the respondents’ witnesses insisted that the Service has accommodated disabled employees, no one could point to a policy in place that an employee can rely on to ensure that the Service engages in the accommodation process. Not one witness for the Service was able to say with certainty where the applicant should have directed his medical reports and what process would have been followed if he had.

194When the disability leads to misconduct, as it did in this case, the Service has a protocol for initiating a Professional Standards investigation. Unfortunately, that seems to have suspended any process of addressing accommodation needs. The Service needs to develop a protocol that allows it to address both its obligations to the public and the needs of its police officers.

195Given the complexity of the issues and the need to balance possibly competing interests, it is appropriate to remit the development of a policy or policies that address its duty to accommodate its disabled police officers to the respondents and the intervenor. This policy or policies shall specify which departments within the Service have accountability and responsibility for the accommodation of disabilities in the workplace.

196I heard evidence that the Service is revamping many of its human rights practices in conjunction with the Ontario Human Rights Commission. It did not specifically indicate whether this issue was being addressed in that process, or the time frame involved in that consultation process. For that reason, I order the respondents to work in consultation with not only the intervenor, but also with the Commission or another external human rights expert to develop a policy or policies consistent with the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate within four months of the date of this Decision.

197Once developed, the respondents must train management staff and police officers on the policy (or policies) as well as on the duty to accommodate generally.

ORDER

198I make the following orders:

1. The respondents shall reinstate the applicant to his position as a police officer with the Toronto Police Service within 30 days of this Decision or on a date selected by the applicant, whichever is sooner. The applicant, respondent and intervenor shall resolve the details and terms of his reinstatement within 30 days of the date of his reinstatement, during which time the applicant shall be on a paid leave of absence;

2. The respondents shall jointly and severally pay to the applicant $35,000.00 as compensation for injury to his dignity, feelings and self-respect within 30 days of the date of this Decision;

3. The respondents shall jointly and severally pay to the applicant prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43, on the amount set out in (2) from May 7, 2008, within 30 days of the date of this Decision;

4. The respondents shall jointly and severally pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Order.

5. The respondents and the intervenor shall work with the Ontario Human Rights Commission or an external human rights expert to develop a policy or policies for the accommodation in the workplace of police officers who have disabilities. This policy or policies shall specifically address which departments within the Service have accountability and responsibility for the accommodation of disabilities in the workplace, and shall be completed within four months of the date of this Decision. Initial training of management and police officers on the policy or policies and the duty to accommodate persons with disabilities shall be undertaken within two months of the completion of the policy or policies.

199I shall remain seized with respect to the implementation of the reinstatement of the applicant set out in paragraph 1.