John Haratsis v. Hellenic Home for the Aged Inc., 2010 HRTO 1719

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Haratsis

Complainant

-and-

Hellenic Home for the Aged Inc., Eglinton-Bayview Physiotherapy Centre, Kosta Kostouros and Toula Reppas

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: August 19, 2010

Citation: 2010 HRTO 1719

Indexed as: Haratsis v. Hellenic Home for the Aged

Appearances

John Haratsis, Complainant ) On his own behalf

Hellenic Home for the Aged Inc. ) John D. Campbell, and Kosta Kostouros, Respondents ) Counsel

Eglinton-Bayview Physiotherapy Centre ) Maria Kotsopolous, and Toula Reppas ) Counsel

ii

Introduction

1This is a Complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), alleging discrimination in employment on the ground of marital status. The Complaint was filed with the Ontario Human Rights Commission (the "Commission"), and referred to the Tribunal under the provisions of the Code, as they existed prior to substantial amendments which came into force on June 30, 2008. The Commission sought to be removed as a party to the Complaint and the Request was granted March 30, 2009.

2The complainant is a professional, licensed, physiotherapist. He worked for approximately five years on contract for Eglinton-Bayview Physiotherapy Centre (the "Centre"). The complainant was assigned through the Centre to work with patients at the Hellenic Home for the Aged Inc. (the "Hellenic Home") which operates three different sites: the Toronto long-term care facility, the apartment complex and the Scarborough long-term care site. The Centre, its director Toula Reppas, the Hellenic Home and its CEO Kosta Kostouros, are named as respondents in this Complaint.

3On July 16, 2006, the complainant married Chrysanthy Xinos who was, at that time, the Administrator and Director of Care of the Toronto site of the Hellenic Home ("Hellenic Home Toronto"). Ms. Xinos reported directly to Mr. Kostouros, who oversaw all of the Hellenic Home sites as the organization's CEO. The complainant worked part of his time at each of the Hellenic Home sites. The complainant alleges that his services as a physiotherapist with the Hellenic Home Toronto, and then subsequently with all Hellenic Homes, were terminated as a result of his marriage to Ms. Xinos.

4The respondents admit that as a result of the complainant's marriage to Ms. Xinos, Mr. Kostouros asked Ms. Reppas to provide a different physiotherapist for that particular site. Both Mr. Kostouros and Ms. Reppas agreed that a conflict of interest existed if the complainant continued to work in the same institution where his wife was the head clinician and administrator. As a result, Ms. Reppas agreed to the request from her client, Mr. Kostouros, to replace the complainant at the Toronto site.

5Ms. Reppas alleges that shortly after the initial decision was made, she decided not to assign the complainant to any of the Hellenic Home sites. She alleges that this decision was made not because of the complainant's marriage, but because of a number of disparaging comments he made about the Hellenic Home and its CEO.

6For the reasons that follow, I find that the respondents' actions did not infringe the complainant's rights under the Code. While the complainant's marital status was clearly engaged by the restriction on his work in the Hellenic Home Toronto, I find that, on the facts of this case, it is a reasonable and bona fide restriction to prevent the complainant from working in the facility over which his wife had supervisory responsibility from both a clinical and an administrative perspective. The initial decision to remove the complainant from just the one site was a balanced and measured response to the potential for conflict of interest. I further find that the second decision by the Centre to remove the complainant from all of the Hellenic Home sites was based solely on the complainant's conduct and not his marital status.

7Many of the facts in this case were not in dispute. As a result, it was not necessary to refer to the testimony of specific individuals unless their evidence related to admissions or facts which were relevant and disputed by the parties.

The Parties

8The complainant is a Registered Physiotherapist. He contracted with the Centre using his own company and signed a professional services agreement which covered a period of 10 years from June 11, 2002 to June 11, 2012. The contract, which could be terminated by either party, at any time, on 30 days written notice, confirms that the complainant was acting as an independent contractor. His was paid through his numbered company, which was paid by the Centre.

9During the hearing the complainant produced a second professional services agreement dated in 2003, the terms of which were substantially the same as the original contract.

10The Centre is a privately owned corporation which contracts with professional, licensed, physiotherapists to provide services at physiotherapy clinics and residential homes for the aged. The respondent, Toula Reppas, is a licensed physiotherapist and the Director of the Centre. The Hellenic Home is one of the Centre's clients.

11The Hellenic Home is a not-for-profit corporation that operates nursing homes and independent living seniors apartments. Kosta Kostouros became the CEO in July 2006, just before the events underlying the Complaint began to unfold. The Hellenic Home Toronto had, at the time, approximately 81 residents. Mr. Kostouros testified that the organization is partly funded by the provincial government, but heavily reliant on donations to meet the organization's operating expenses.

12The complainant provided physiotherapy services to the Toronto site of the Hellenic Home under his contract with the Centre. His professional services agreement with the Centre was non-exclusive and the complainant acknowledged that there was nothing in the agreement which required the Centre to assign him to any of the Hellenic Homes. On the other hand, Ms. Reppas acknowledged the complainant's skill as a physiotherapist and his ability to provide services in the Greek language, which was important to the residents of the Hellenic Home. According to Ms. Reppas, the complainant's duties were to assess the residents every three months, prepare documentation on the assessments, determine the appropriate treatment plan, deliver the treatment and involve the clinical staff in the work he was doing with each resident.

The Work Relationship Between the Complainant and Ms. Xinos

13Ms. Xinos was the Administrator and Director of Care for the Toronto site of the Hellenic Home. As the Director of Care she was the head clinician at the site. The Centre provided services to the Hellenic Home under the terms of a contract signed by Ms. Xinos and Ms. Reppas.

14With respect to the nature of his employment relationship with his wife, the complainant initially denied that Ms. Xinos had anything to do with his work. He denied that he reported to his wife in any sense, preferring to describe them as working together. He denied that as the Administrator and Director of Care she oversaw the provision of his services, emphasizing the fact that he was an independent contractor and that he worked for the Centre and not the Hellenic Home. The complainant testified that above all else, he was required to abide by the rules of conduct of the College of Physiotherapists of Ontario with respect to providing proper physiotherapy care to the residents.

15Under cross-examination and in responding to questions from the Tribunal, the complainant admitted that no one from the Centre was on site on a daily basis to supervise his work. He admitted that he would need to interact with his wife any time she required information about a resident that he was treating. The complainant also admitted that it would be a conflict of interest if his wife had to deal with deficiencies in his performance but added that in the event of such a conflict, she could get assistance from the person to whom she reported. Finally, when pressed, the complainant admitted that his wife had some oversight role in relation to his work.

16Ms. Reppas testified that she signed the contract to provide physiotherapy services to the Hellenic Home Toronto with Ms. Xinos and it was her understanding that Ms. Xinos had ultimate authority over how those services were delivered to her residents. Ms. Reppas also monitored the work of the physiotherapists. Although she was not on site, any unsafe practices would be reported to her by the client. She also testified that on an annual basis she would meet with the management of the Hellenic Homes to discuss how the physiotherapy services were being delivered, conduct audits of files, talk to nurses, residents and staff. A report would then be generated for the client identifying strengths and weaknesses in the service and ways in which service could be improved. Ms. Reppas testified that over the course of the contract, Ms. Xinos had not brought any specific concerns to her attention. She testified that if there had been an issue, she would have met with Ms. Xinos and then with the physiotherapist in question.

17Mr. Kostouros testified that Ms. Xinos reported to him and it was her job to make sure that the Centre was living up to the terms of the physiotherapy contract. When he worked in a similar capacity at the Scarborough site of the Hellenic Home, it was Mr. Kostouros' responsibility to ensure that the physiotherapists were on site and performing in accordance with their obligations. Mr. Kostouros testified that the complainant would have been required to work in collaboration with the entire clinical staff, including Ms. Xinos, in creating and executing a plan of care for each resident receiving treatment. In addition, Ms. Xinos would have been responsible for conducting an investigation into any concerns about the conduct of a physiotherapist including allegations of negligence by a resident or their family members. Ms. Kostouros testified that he found it hard to believe that there was no interaction between the complainant and Ms. Xinos in a facility with 81 residents.

18Ms. Xinos did not give evidence at the hearing. The complainant acknowledged that his wife was the person in charge of the facility, that she was responsible for the day-to-day operations and that she was both the Administrator and Director of Care. It is clear from the evidence that Ms. Xinos would have had ultimate responsibility for the complainant's work at the facility as both the head administrator and clinician.

The Decision to Replace the Complainant at the Hellenic Home Toronto

19There are two decisions the complainant claims violate his rights under the Code. The first is the decision to replace him at the Hellenic Home Toronto, the second is the decision to replace him at all Hellenic Homes. The first decision is the only decision which involves Mr. Kostouros and the Hellenic Homes.

20The Hellenic Home Toronto is governed by a volunteer Board of Directors who are elected every two years by the membership of the Home.

21Mr. Kostouros testified about the circumstances leading up to the request that the Centre replace the complainant at the Hellenic Home Toronto. At the time, he was newly appointed as the CEO and during one of the first board meetings he attended, he was asked by the Board about the marriage of the complainant and Ms. Xinos. Specifically he was asked what he was going to do about this "conflict of interest".

22Mr. Kostouros testified that he was also of the view that a conflict of interest existed. In his testimony he referred to a policy, in force at the time, which prohibits an employee in Ms. Xino's position from approving the purchase of goods and services, including in his view, physiotherapy services, where an immediate family member would benefit financially from the transaction. He also referred to a policy which prohibits the hiring of a family member in circumstances where the other family member "is a supervisor and is in direct, or indirect, line of authority to another member of his/her immediate family".

23Mr. Kostouros emphasized that he had no difficulty with the complainant continuing his work at the Scarborough facility.

24Mr. Kostouros was asked whether he considered an alternative reporting relationship which would allow the complainant to continue working at the Hellenic Home Toronto. Mr. Kostouros testified that in addition to Ms. Xinos, there was an employee who worked full-time at the Home and who acted as the Assistant Director of Care three days a week reporting directly to Ms. Xinos. He testified that he considered the possibility of a different reporting structure, however, he did not think it was feasible to have the Assistant Director of Care, who was only available in that role three days a week and who ultimately reported to Ms. Xinos, supervise the complainant's work. He felt that it would put the Assistant Director of Care in a "difficult predicament" to have to report on any concerns about the complainant to his wife or directly to Mr. Kostouros.

25Mr. Kostouros also testified that the work of the Hellenic Home Toronto was carried out in a highly regulated environment. Ms. Xinos was the head administrator and clinician. The Ministry had approved her functioning in these two roles simultaneously and she was ultimately responsible for the deliverables associated with each of these functions. I understood from Mr. Kostouros' testimony that he had less flexibility in defining roles in the organization because of the oversight of the Ministry and the serious consequences associated with an injury or death, if one were to take place at the Hellenic Home Toronto. Ultimately, it was his view that Ms. Xinos would be responsible to both the organization and the Ministry for any concerns associated with the delivery of physiotherapy services at the Home.

26Mr. Kostouros testified that when he contacted Ms. Reppas to discuss his concerns, she agreed that the complainant should be replaced at the Toronto facility.

27The parties agree on some of the events which followed this initial contact between Mr. Kostouros and Ms. Reppas. On September 19, 2006, Ms. Reppas contacted the complainant by telephone and later met with him to discuss the request from Mr. Kostouros and explain to him the reason for replacing him at the Hellenic Home Toronto. There were a series of discussions and documents exchanged between September 19, 2006 and approximately October 29, 2006. It was sometime between September 19, 2006 and September 29, 2006, that Ms. Reppas made the decision to remove the complainant from all the Hellenic Home sites and not just the Toronto site as had been requested.

The Second Decision to Replace the Complainant at all Hellenic Homes

28Between September 19, 2006 and September 29, 2006 when the complainant was notified by Ms. Reppas that he would not be assigned to any of the Hellenic Homes, the parties agreed there were a number of discussions between them. The parties also agreed that Mr. Kostouros and the Hellenic Homes had no involvement in the events leading up to Ms. Reppas' decision to replace the complainant at all the Hellenic Homes.

29Ms. Reppas testified that when she met with the complainant face to face to discuss the request from Mr. Kostouros, she advised him that she also believed that the marriage created a conflict of interest. She testified that she explained to the complainant that if a resident were to fall, for example, it would put his wife in a very difficult position. She also explained to the complainant that she would recruit someone else for that site and it was her impression that the complainant agreed to the plan and initially behaved in a very reasonable manner with respect to transition issues.

30Both Ms. Reppas and the complainant testified that initially the complainant accepted the decision to be replaced at the Hellenic Home Toronto. He requested and received a 60-day transition period to ensure that the new therapist was able to carry out the plans for care of the residents he had been treating. Soon after this decision was made however, the complainant determined that, in his view, the decision was unfair and he sought to have Ms. Reppas reconsider.

31Ms. Reppas testified that after the meeting on September 19, 2006, she spoke with the complainant a minimum of three and sometimes five times a day trying to resolve his concerns. She recalled three or four other face to face meetings over the 10-day period leading up to September 29, 2006. Ms. Reppas described the complaint as angry, upset and very difficult to reason with. The complainant recalled a number of discussions, not as many as Ms. Reppas; however, he agreed that they were directed at trying to resolve his concerns and he agreed that he was quite upset.

32Ms. Reppas testified that during that 10-day period she became increasingly concerned about things the complainant was saying about her client, the Hellenic Home and its CEO, Mr. Kostouros. Ms. Reppas testified that between September 19, 2006 and September 29, 2006, "there were several conversations where I told him that he needed to keep his mouth shut". Among other things, she testified that the complainant said that the Board was incompetent, Mr. Kostouros was stupid, the Board kept two sets of minutes, the financials were incorrect and the Board was falsifying information. It became clear to Ms. Reppas that the complainant was not going to accept her decision. She testified that the complainant was "steadfast", that there was no compromising with him, that he was very difficult to communicate with and that she felt she had done everything she could to try and resolve it.

33Ms. Reppas testified that the complainant told her that he had a few Board members who were providing him with information. Ms. Reppas testified that she tried to reason with the complainant and impress upon him how unacceptable his behaviour was. She testified that in 20 years, she never had a physiotherapist behave this way in relation to one of her clients.

34Ms. Reppas testified that the complainant's behaviour and his attitude toward her client caused her to determine that she could not place him at any of the Hellenic Homes. She gave the complainant notice of this by letter dated September 29, 2006. Ms. Reppas testified that it was a difficult decision for her and she felt she had "bent over backwards" to help the complainant.

35Ms. Reppas testified that despite his behaviour, she still wanted to work to find an alternative placement for the complainant. I will comment later on the evidence which relates to the various options offered to the complainant. Ms. Reppas testified that she found the discussion of other options very difficult because the complainant was "completely focussed" on his previous assignment with the Hellenic Home and resistant to any of her suggestions.

36The complainant admitted in his testimony that after September 19, 2006, he was very upset and he did express opinions about the management of the Home and the competency of the Board. The complainant admitted during his testimony that "I said a lot of things after I was terminated..." He admitted that after September 19, 2006 he may have made comments about different individuals, members of the Board and the CEO personally and about how they were managing the Home.

37I find based on the complainant's admissions and the testimony of Ms. Reppas, that the second decision to replace the complainant at all Hellenic Homes was based on his conduct after September 19, 2006 and not on his marital status. It is clear that both the Centre and the Homes were prepared to place the respondent at the remaining Hellenic Home. The Centre would benefit financially from continuing the complainant's work with the Hellenic Homes. The only reasonable conclusion that I can draw from the evidence is that the decision to replace the complainant at all Hellenic Homes was based entirely on his conduct.

38The events which lead to the second decision are linked with the first decision, which is clearly based on marital status. The complainant explained, for example, that he was angry about the first decision which is in part why he said the things he did about the Hellenic Home and Mr. Kostouros. However, this connection is insufficient, in my view, to bring the second decision within the scope of marital status discrimination. It is not related to his marriage, it is related to his conduct after having been advised of the first decision. By conduct, I am referring specifically to his negative comments about the Hellenic Home and Mr. Kostouros, and not his desire to have the decision reversed.

The Events Following September 29, 2006

39The letter of September 29, 2006, giving the complainant notice that he would not be placed at the Hellenic Homes, is the first in a series of letters which were exchanged between the parties.

40Before he received the letter of September 29, 2006 from Ms. Reppas, the complainant and Ms. Xinos wrote a joint letter dated October 1, 2006, directly to Mr. Kostouros, with a copy to the Centre. In that letter, they stated that it had recently come to their attention that the Hellenic Home had requested the services of another physiotherapist. The complainant and Ms. Xinos indicated that the decision had come as a surprise to them because the previous CEO of the Home had been aware of their relationship for well over a year and had assured them that it was not an issue. The letter goes on to state:

For the past several years we have upheld the highest professional standards and commitment to excellent patient care and we have consistently dedicated ourselves to the successful operation of the Hellenic Homes. The decision by Mr. Kostouros undermines our professional reputations and it is discriminatory and in violation of our human rights.

The letter concludes with a request for a meeting of all parties to attempt to resolve the issue.

41By letter dated October 3, 2006, Mr. Kostouros responded to both the complainant and Ms. Xinos. Mr. Kostouros would not agree to meet with the complainant since, in his view, the complainant was not an employee of the Hellenic Home. He did, however, indicate a willingness to meet with Ms. Xinos, who was still his employee at that time. According to Mr. Kostouros, Ms. Xinos did not ask to meet with him following his letter of October 3, 2006.

42By letter dated October 4, 2006, the Centre also responded to the complainant's letter of October 1, 2006. The letter begins "Please accept this letter as follow-up to the written notification of September 29th, 2006 that the Hellenic Homes for the Aged (Toronto and Scarborough sites and apartments) no longer require your physiotherapy services." The letter goes on to state that the Centre

worked diligently to find a solution whereby you would continue to provide the physiotherapy services at the Hellenic Homes. However, after receiving the letter from you and Chrysanthy on Monday, October 2, 2006, it is apparent that having you remain at the homes is no longer an option.

43The complainant urged the Tribunal to accept that the language of the letter should be interpreted as retaliation for his assertion that his human rights were being violated. I have considered this possibility. However, Ms. Reppas testified that although she was prepared to meet with Mr. Kostouros herself to try and resolve the complainant's issues, the letter of October 2, 2006 reflected her concern that it was inappropriate for the complainant and his wife to write directly to her client about this matter. Ms. Reppas testified that she was not referring to the complainant's allegation that his human rights had been violated but that his actions in writing directly to her client had convinced her that she had made the right decision.

44The complainant testified that he saw nothing wrong with enlisting his wife as the Administrator and Director of Care of the Hellenic Home Toronto to join him in a letter written directly to her employer and the client of the Centre. I understand that there was a long standing relationship between the complainant and the Hellenic Home. However, the respondents take the position, and I agree, that this is an example of the potential for conflict of interest which existed as a result of the complainant's marriage to the person in charge of the facility at which he worked. Ms. Xinos was now in the position of advocating in support of her husband against a decision of her employer.

45The October 4, 2006 letter written by Ms. Reppas also includes confirmation of a meeting between the complainant and Ms. Reppas on October 10, 2006 to discuss alternative opportunities for the complainant. The letter included four options which Ms. Reppas wished to have the complainant consider in advance of the meeting on October 10, 2006.

46All parties agree that a meeting took place on October 10, 2006 involving the complainant, Ms. Reppas and her partner Mr. Melles. The parties agree they discussed various alternative work arrangements for the complainant. The complainant alleges that the options were vague and he was not provided with any real financial information and in any event, his focus was to return to work at the Hellenic Home Toronto. Ms. Reppas confirmed in her testimony that the complainant remained firm that he wished to be returned to his original assignment. The complainant testified that he rejected the Centre's proposals, did not provide alternative suggestions, and did not respond to any other overtures from Ms. Reppas about alternative work assignments, including an offer in December 2006 to provide him with an assignment within minutes of his residence.

47The complainant took the position throughout the hearing that he did not have to consider any of the Centre's proposals, that in any event they were inferior to his placement at the Hellenic Home Toronto and nothing short of returning to him to his original work assignment would constitute an appropriate resolution.

48Following the October 10, 2006 meeting, the complainant sent a letter dated October 19, 2006 to Ms. Reppas, attaching a copy of a petition from various residents of the Hellenic Home Toronto and their family members asking the Board of the Hellenic Home to reconsider their decision to have him replaced. The complainant gave evidence that when he informed the residents that he would be transitioning them to another physiotherapist, they asked if they could do anything because they were happy with his work. The complainant drafted the petition in English and Greek, blank copies were given to the residents and the copies were returned to him with signatures. The complainant denied that he collected any signatures himself during the course of providing treatment to the residents.

49Again, the complainant saw nothing wrong with initiating the petition and advocating through patients to be returned to his work assignment at Hellenic Homes. The complainant gave evidence that he had been asked by Ms. Reppas on another occasion to collect signatures on a petition from his patients. The nature of the petition in that case was that the Ministry was proposing funding cuts to physiotherapy services. When asked why he thought this petition related to his personal services was appropriate in the circumstances, the complainant testified that he had done it because the patients had asked him if they could help and he did not involve any staff members including his wife.

50There was no further contact between the parties until December 2006, when Ms. Reppas sent an email to the complainant offering him an assignment close to home. The complainant testified that he did not respond to the overture and felt by that point he could no longer work with Ms. Reppas.

ANALYSIS AND DECISION

51The essence of the complainant's claim is that the respondents terminated his assignments as a physiotherapist at the Hellenic Homes because of his marriage to Ms. Xinos. The respondents defend their decision on the basis that the marriage created a conflict of interest and the complainant was provided with an opportunity to explore a number of alternative work assignments, which he rejected.

52In complaints of this kind under the Code, marital status includes both the status of being married and the particular identity of the spouse: B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, 2002 SCC 66. The concern in this case is not simply his status of being married, but the fact that the complainant is married to Ms. Xinos.

53Most of the relevant facts and issues are not in dispute. The respondents admit that the decision to replace the complainant at the Hellenic Home Toronto was based on marital status. The complainant admits that he expressed unflattering opinions to Ms. Reppas about the Hellenic Home Board and Mr. Kostouros. I have found that the second decision to replace the complainant at all Hellenic Homes was based on those comments and not on the complainant's marital status. The only remaining question is whether the initial decision to replace the complainant at the Toronto site is defensible under the Code.

54Section 5 of the Code prohibits discrimination "with respect to employment." The Tribunal has found that more than the traditional employer/employee relationship is captured by the expansive wording of that section. See Payne v. Otsuka Pharmaceutical Co. Ltd., 2002 CanLii 46516. The Centre has a direct contractual, employment relationship with the complainant.

55The Hellenic Home took the position that it was not a proper respondent because it was not the employer of the complainant. However, based on the more expansive wording of the Code and the fact that the Hellenic Home played the primary role in altering the conditions of the complainant's employment, the organization would not be immune to an allegation of discrimination simply because it was not the direct employer of the complainant.

56Section 24(1) of the Code provides an exception in circumstances where an employer grants or withholds employment or advancement in employment on the basis of a spousal relationship with the employer or an employee. Having determined that the Hellenic Home and the Centre are both captured under the expansive wording of section 5, it would not be appropriate, in my view, to deprive either of them of the benefit of exception in section 24(1) based on a narrow reading of the words "employer and employee" in these particular circumstances.

57However, if I am incorrect, both respondents have also relied on section 24(1) which states that

(...) the right under section 5 to equal treatment with respect to employment is not infringed where, (b) the discrimination is for reasons of age, sex, record of offences or marital status if the age, sex record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment.

58Section 24(2) states that

(...) no tribunal or court shall find that a qualification under clause (1)(b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The language of the Code mirrors the findings of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 ("Meiorin"), although the Supreme Court was also careful to indicate that the statutory language prevails in circumstances where the statute includes or excludes certain factors to be considered as part of this analysis (para. 63).

59In this case, the qualification is explicitly based on marital status. Both the Centre and the Hellenic Home made the decision to replace the complainant at the Hellenic Home Toronto because of his marriage to Ms. Xinos. Underlying that decision are the two policies, or "standards" to use the language of Meiorin, which preclude employees from supervising or purchasing services from family members. While the Centre did not adopt these standards in a formal sense prior to the request from the Hellenic Home, Ms. Reppas agreed to apply the standard developed by her client to the complainant's circumstances.

60In Meiorin, the Supreme Court proposed a three-step test and the underlying principles for determining whether a standard is a bona fide qualification. The Court states, at para. 54, that an employer may justify the impugned standard by establishing on the balance of probabilities:

a) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

b) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

c) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

61In most cases since the decision in Meiorin, the focus of the analysis has been on the third step, where the choices made by an employer are most closely scrutinized. The Code entrenches health, safety and costs as well as the nature of the workplace as the factors to be considered at this stage of the analysis. In Meiorin, the Supreme Court also cited, with approval, the observation of Cory J. at para. 546 in Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525, ("Chambly"), that in every case, such considerations "should be applied with common sense and flexibility in the context of the factual situation presented in each case".

62l will now apply the principles to the facts of this case.

Is the Standard Rationally Connected to the Performance of the Job?

63In Meiorin, the Court indicated that this first stage in the inquiry involves identifying the general purpose of the impugned standard and determining whether it is rationally connected to the performance of the job. The focus here is on ensuring that the standard has a legitimate underlying purpose and not on the validity of the standard itself (para. 59).

64The Centre and the Hellenic Home both demonstrated that the standard has a legitimate underlying purpose, which is to prevent actual and apparent conflicts of interest in the purchase of services and the supervision of employees. I accept that this purpose is particularly important in an employment context where services are being provided to members of the public who are particularly vulnerable.

65In Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279, ("Brossard") (which is also cited in Meiorin), the Supreme Court dealt with a case involving an anti-neptotism policy in the context of employment with the Town of Brossard. In that case, the town had adopted an absolute prohibition against immediate family members of employees and town councillors obtaining employment with the town to promote impartiality in hiring and sound management of the town. The standard was much broader than the one in issue here and for that reason the town was not successful in defending it. However, the Supreme Court found that in the particular context of public service employment, all employees share a collective responsibility to put the public interest ahead of their own personal interests. That sentiment is equally applicable to the context of a home for the aged where the responsibility to act above one's self-interest is expected by clients, their families and the public at large for the safety and well being of the residents.

Was the Standard Adopted in an Honest and Good Faith Belief that it was Necessary to the Fulfillment of that Legitimate Work-Related Purpose?

66Ms. Reppas and Mr. Kostouros both testified to their honest and good faith belief that the standard was necessary in order to avoid real and apparent conflicts of interest. The standard is restricted to circumstances where one family member is supervising another or where one is in a position to confer a financial benefit on the other but does not preclude employment by family members in other circumstances. There was no evidence that the standard was adopted for any other purpose. There was no evidence, for example, that the standard was adopted as a pretext for terminating the complainant. It would be difficult to establish that the standard was adopted in bad faith, as a pretext for terminating the complainant in these circumstances where the complainant was initially offered the opportunity to continue to work at other Hellenic Home sites. The Centre also attempted to accommodate the complainant by exploring other contractual assignments.

Is the Standard Reasonably Necessary to the Accomplishment of that Legitimate Work-Related Purpose?

67The question here is whether it was impossible to accommodate the complainant without imposing undue hardship upon both the Centre and the Hellenic Home.

68In Brossard, the Supreme Court found that a complete prohibition on employment was overly broad. However, the court endorsed the general concept that an employer should be able to establish rules of conduct for their employees which address real or potential conflicts of interest as well as the appearance of conflict of interest.

69The complainant is a physiotherapist providing physiotherapy services to the Hellenic Home on contract through the Centre. The Hellenic Home offered the complainant the opportunity to continue to work at the Scarborough facility. Apart from that, the Hellenic Home had only one option to explore: the possibility of a separate reporting structure which might allow the complainant to continue working in the facility with his wife. I accept the evidence of Mr. Kostouros that this arrangement was not possible taking into consideration the nature of the organization and the financial constraints it was working under. The organization is heavily dependent on private donations. There was insufficient funding for the two positions of Administrator and Director of Care and hence Ms. Xinos was occupying both at the time of the complaint. There was insufficient funding for an Assistant Director of Care, a position which was occupied by another employee on a part-time basis. In addition, the regulatory nature of the business gave Mr. Kostouros less flexibility in determining reporting structures than he might otherwise have had in another organization.

70The impossibility of a separate reporting structure gave rise to health and safety concerns for the respondents. Ms. Reppas and Mr. Kostouros both testified that they were concerned about the health and safety of the residents if the complainant continued to work in the Toronto facility. There was no evidence that the health and safety of any of the residents had, in fact, been compromised by the complainant's relationship with his wife. However, the question is not whether the residents had already been compromised, but whether the standard was reasonably necessary to protect the health and safety of the residents. It is reasonable to assume that over the course of time, accidents will occur, disputes over a course of treatment will erupt and any number of other issues will arise which could put the Ms. Xinos in a conflict of interest in relation to her husband. The complainant acknowledged that if an accident were to occur, it would be a conflict of interest for his wife to have to investigate any involvement on his part. Ms. Reppas testified that she tried to impress upon the complainant her concerns about this issue.

71When this third stage of the Meiorin analysis is applied to the Centre, it is complicated by two factors. The first is that the Centre is not in control of the complainant's assignments at the Hellenic Home. The second is the complainant's failure to cooperate in the Centre's efforts to accommodate him.

72The Centre is not able to create an accommodation within the workplace in circumstances where the Hellenic Home refuses to continue to work with one of their contract employees. The Centre's obligation, in this context, is to make efforts to find alternative work for the complainant up to the point of undue hardship.

73While the employer is ultimately responsible for accommodating an employee, the employee is required to collaborate in a positive, constructive manner. In Meiorin, the Court sets out a non-exhaustive list of questions that tribunals and courts might consider in determining whether a respondent has passed this third stage in the test. Among those questions is this: "Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?". The Court references Sopinka J. in Renaud v. Central Okanagan School District No. 23, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970 at pp. 992-96, that the task of determining how to accommodate individual differences may also place obligations on the employee.

74It is clear from the evidence of both Ms. Reppas and the complainant that the discussion of any options was rebuffed by the complainant whose single focus was on returning to his original placement at the Hellenic Home Toronto. In these circumstances, I cannot fully evaluate the options the Centre attempted to explore with the complainant against the standard set out in Meiorin. However, I do not accept that the Centre should be deprived of relying on the defence of bona fide qualification because the complainant would not collaborate in a discussion about the accommodation options. I accept the evidence of Ms. Reppas that she made her best efforts to engage the complainant in a discussion of options. The complainant admitted that Ms. Reppas continued those efforts beyond the period of the dispute into the fall of 2006. In December of that year she contacted him again about an opportunity close to his home and he simply ignored her further attempt to explore accommodation.

75Applying the test in Meiorin, with the "common sense and flexibility" urged by Cory J. in Chambly, in the context of the facts of this case, I find that the Hellenic Home and the Centre have established that it is a bona fide qualification to prohibit their employees from supervising or procuring services from family members and they fulfilled their obligations with respect to accommodating the complainant. It was apparent to me from the testimony of the complainant and Ms. Reppas that the complainant is passionate about his work. While I understand his frustration and his feeling that the decision was an affront to his personal dignity, the complainant's focus on achieving the singular outcome of reinstating his assignment to the Hellenic Home where his wife was the administrator caused him to forego other opportunities with both the Centre and the Hellenic Home.

76For all of these reasons, the Complaint is dismissed.