Gourley v. Hamilton Health Sciences, 2010 HRTO 2168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alison Gourley Applicant

-and-

Hamilton Health Sciences Respondent

CASE RESOLUTION conference decision

Adjudicator: Ena Chadha Date: October 28, 2010 Citation: 2010 HRTO 2168 Indexed as: Gourley v. Hamilton Health Sciences

APPEARANCES

Alison Gourely, ) John Legge, Counsel Applicant ) Self-represented

Hamilton Health Sciences, ) Frank Angeletti, Counsel Respondent )

INTRODUCTION

1This Application was filed August 1, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on August 13, 2007 and abandoned upon filing this Application with the Tribunal.

2The applicant has physical and mental health conditions as a result of breast cancer and related surgeries. The applicant alleges that, because of her physical and psychological restrictions, she is unable to return to her pre-disability job. The applicant alleges that her employer, Hamilton Health Sciences (“HHS”), unfairly denied her health benefits and has failed to properly accommodate her disabilities because it has been unwilling or unable to provide her with alternate work.

3The respondent denies the allegations of discrimination. The respondent submits that it has accommodated the applicant’s disability-related absences, provided her with health benefits even when she was not entitled, and has made numerous attempts to locate a position suitable to the applicant’s qualifications and accommodation needs.

4At the outset of the hearing, the Tribunal granted the respondent’s request that the Tribunal remove the two personal respondents, Melina Senchushak and Lynn Tessaro, named in the original complaint and Application. The respondent undertook to accept liability if the Tribunal found these personal respondents to have contravened the Code. The Tribunal also bifurcated the hearing between the merits of the Application and, if substantiated, the remedial issues.

5In addition to her own testimony, the applicant called the evidence of three witnesses: Mark Sargent, her friend; Ruth Gourley, her mother; and Dr. Karen Galbraith, a psychologist. Four witnesses gave evidence on behalf of the respondent: Ms Senchushak and Ms Tessaro, human resources consultants with the respondent; Jackson Chan, the applicant’s supervisor; and Chris Serran, a disability case manager. In accordance with the expectation, as set out in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner, the Tribunal accepted Dr. Galbraith’s evidence-in-chief, Jackson Chan’s evidence-in-chief, and all of Chris Serran’s evidence in writing. Final submissions were also received in writing only.

LEGAL ISSUES & PRINCIPLES

6There is little dispute about the basic chronology and legal issues in this case. The issues determined in this Decision are:

i. Did the applicant have a “disability” within the meaning of the Code?

ii. If so, did the respondent accommodate the applicant’s disability up to the point of undue hardship?

The overarching legal principles applicable to this Application are set out below.

7“Disability” is defined in section 10 of the Code to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by ... illness”, as well as “a mental disorder.” The Supreme Court of Canada has explained that disability should be understood as a multi-dimensional concept, including biomedical, social and functional components: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665. For the purposes an employment accommodation analysis, the focus, generally, should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment.

8Section 17 of the Code requires a respondent employer to take steps short of undue hardship to accommodate an applicant’s disability as it relates to performing essential employment duties. The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68. The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin.

CONCLUSION

9I find that the cancer and the physical and mental health conditions secondary to the cancer that the applicant experienced constitute a disability under the Code. I accept that these conditions gave rise to functional limitations in the workplace. For the reasons that follow below, I find that the respondent fulfilled its procedural accommodation obligations and made significant efforts to investigate alternate and modified work for the applicant. I conclude the respondent took appropriate steps, albeit unsuccessfully, to accommodate the applicant and, consequently, there has been no violation of the Code.

SUMMARY OF EVIDENCE AND FINDINGS

10I have summarized the chronology of the events below. Where the parties diverged in perspective, I indicate so and set out my reasons for my factual conclusions.

Background

11This case arises out of the applicant’s employment as a radiation therapist with the Juravinski Cancer Centre (“JCC”), a specialized cancer care facility. In 2003, the applicant had been employed as a radiation therapist at JCC for approximately ten years. At that time JCC was managed by Cancer Care Ontario (“CCO”), a provincial agency overseeing regional cancer care centres. The applicant was employed in the Radiation Treatment Planning Department where she operated radiation therapy machines to administer radiation to treat cancer patients. This involved frequent lifting and mounting of radiation treatment blocks, plates and shields, as well as positioning and transferring patients. The applicant’s duties required her to be able to regularly stand, lift, carry, and reach, as well as to directly work and communicate with oncology staff and patients.

12In October 2003, the applicant was diagnosed with metastatic breast cancer and shortly thereafter underwent a mastectomy, which involved partial removal of the applicant’s right pectoral muscle. Following the surgery, the applicant underwent chemotherapy, as well as tamoxifen treatment, a drug therapy. It is noteworthy that the applicant’s cancer diagnosis occurred at JCC and, therefore, in addition to being a JCC employee, the applicant was also a JCC patient for a period of time.

13As a result of the surgery, the applicant was absent from work from October 28, 2003 to December 14, 2003. The applicant returned to work on modified duties on December 15, 2003 with physical restrictions of no heavy lifting or overhead reaching. The applicant was accommodated by being assigned to the JCC calculation station, a computer-related position which involved working with approximately six other oncology staff to ensure accuracy of patients’ treatment plans by reviewing radiation dosages and unit calculations. I accept the applicant’s evidence that it was emotionally very difficult to return to work at JCC because of her own experience as a cancer patient. The evidence establishes that the applicant developed psychological symptoms secondary to the cancer, including depression, fear, and over-identification with cancer patients.

14Effective January 1, 2004, as part of a province-wide cancer program integration initiative, JCC was transferred from CCO to HHS and thereby became part of the respondent’s family of hospitals. As a result of this transfer, the respondent assumed the employment of all JCC employees, including the applicant. The respondent consists of four facilities employing over 9,000 personnel. While a majority of HHS employees (approximately 80%) are members of four large bargaining units, JCC radiation therapists are non-unionized personnel.

15Prior to her absence, the applicant was working a reduced position (0.8). The documentary evidence establishes that the applicant asked to resume full time status (1.0) on December 15, 2003. The applicant’s request to become full time was approved on January 15, 2004, after the integration transfer.

Alleged Denial of Benefits

16As a result of the side effects of chemotherapy, the applicant went off on sick leave on January 26, 2004. Because her sick bank was depleted, the respondent provided the applicant with 7½ weeks of short term disability (“STD”) benefits. During this time, the respondent realized that the applicant was not eligible under its health benefits plan, but rather should have been receiving benefits through CCO’s insurer. Pursuant to paragraph 3.02 of the Cancer Program Integration Agreement, a contract between CCO and HHS setting out the terms of the transfer, a disabled employee who, within six months of return to work, experiences a recurrence of a prior disability remained under CCO’s disability insurance coverage. In March 2004 the respondent informed the applicant that she would no longer receive STD benefits through HHS and was required to apply for long-term disability (“LTD”) benefits under CCO’s policy with Great West Life Assurance Company (“GWL”).

17This is the first aspect of the applicant’s allegations of discriminatory treatment. The applicant appears to suggest the delay in processing her request to revert to full time status until after the transfer of JCC to HHS disadvantaged her by restricting her to CCO insurance coverage. The applicant also believes that she was discriminated against by the respondent because of her disability when it refused to provide coverage under HHS’s benefits plan. The applicant testified that she felt discriminated against because, if she had transferred over to HHS as a regular employee, she would have been entitled to the respondent’s benefits coverage, which was more generous than CCO’s coverage.

18I find no evidence to support the applicant’s allegations with respect to unfair administration of full time status and/or disability benefits. The applicant failed to demonstrate how she was negatively treated by the respondent because of her disability in relation to the alleged delay in securing full time status. The applicant transferred from CCO to HHS, along with all other JCC employees. No evidence was offered to suggest the fact that the applicant’s transfer as a 0.8 status employee (as opposed to a 1.0 status) adversely impacted her eligibility for or receipt of health benefits. In addition, I do not consider either JCC’s and/or HHS’s delay in handling the applicant’s request to return to full time status to be unreasonable or inordinate given that this request was processed over the holiday season and during the midst of the integration transfer. The applicant led no evidence to suggest that other transfer requests were processed more expeditiously.

19The applicant’s main concern appears to be that she did not qualify for HHS’s health benefits because she had a pre-existing condition. While I understand that CCO’s policy provided less coverage than HHS’s policy, this, on its own, is not discriminatory. Further, HHS’s determination that the applicant was ineligible under its policy does not constitute discrimination because of disability. The respondent made this determination in accordance with paragraph 3.02 of the Cancer Program Integration Agreement, which designated the applicant’s disability coverage to be the responsibility of CCO. In these circumstances, I do not find that the respondent perpetrated any unfair differential treatment in relation to the applicant’s disability. The respondent was simply complying with the terms of the Cancer Program Integration Agreement as mandated through the integration transfer. Lastly, the applicant acknowledges that, notwithstanding the fact that she did not qualify under HHS plan, the respondent provided her with STD benefits on compassionate grounds for 7½ weeks and never sought repayment.

Alleged Failure to Accommodate In 2004

20The applicant began receiving LTD benefits from GWL in March 2004 under its policy with CCO. GWL initiated return to work discussions for the applicant with the respondent’s human resources department around September 2004. As part of the return to work process, the applicant’s physician completed a Functional Abilities Form (“FAF”). This FAF indicated that the applicant had significant shoulder, arm, and hand restrictions, noted that the applicant would be undergoing another surgery in December, and recommended that she work only two hours a day and a shortened week.

21On September 22, 2004, the applicant met with her supervisor and the respondent’s representative responsible for facilitating return to work and accommodation, known as a “disability case manager”. Although this disability case manager was actually employed by Telus Sourcing Solutions (a company retained by the respondent to provide payroll, human resources, and occupational health and safety services), for ease of reference, I will refer to this role as the respondent’s disability case manager.

22At the September 22, 2004 meeting, the respondent’s disability case manager offered to return the applicant to her previously accommodated position at the JCC calculation station, however, the applicant refused this position. The applicant advised that her doctor recommended that she not return to work at JCC due to the psychological stress associated with working in a cancer care environment as a cancer patient herself. The applicant also noted that this was not a permanent restriction. The disability case manager pointed out that this psychological limitation was not specified in the doctor’s FAF and suggested that she would check with GWL for confirmation of this restriction.

23The applicant alleges that, at the meeting, the disability case manager stated to her that, although the respondent could accommodate the applicant’s physical restrictions, the respondent could not accommodate her psychological needs. The applicant alleges that, as a result of this negative comment, she was left with the impression the respondent was not prepared to provide her with an accommodated job.

24The documentary evidence indicates that the discussions during the September 22, 2004 meeting pertained to the difficulty in finding non-cancer related work for the applicant given her specialized training as a radiation therapist. This evidence further reveals that the discussion regarding the applicant’s psychological condition was in the context of the absence of any psychological restriction in the FAF as completed by her doctor. The documentary evidence, as well as the applicant’s own testimony, establishes that the disability case manager asked that the psychological restriction be confirmed by GWL or the applicant’s doctor. As such, the evidence suggests that the difficulty spoken about was the omission of a psychological restriction from the FAF, not that the psychological condition could not be accommodated.

25I do not accept that any such alleged comments or lines of inquiries were offensive or constitute a refusal to accommodate the applicant. The respondent was simply seeking clarification and confirmation regarding a previously unidentified restriction. I do not agree with the applicant that the implication of this discussion was that the respondent was reluctant to accommodate her psychological needs. This conclusion is reinforced by the applicant’s human rights complaint which expressly acknowledges that, during the September 22, 2004 meeting, the disability case manager stated “she would look for suitable vacancies outside the RT [radiation therapy] department.”

26The documentary evidence indicates that, in October 2004, GWL verbally informed the respondent’s disability case manager that the applicant “was not to return to the oncology environment at this time” and that, once she was able to return, the applicant would obtain an updated FAF from her doctor. The disability case manager, in turn, informed GWL that the respondent had determined that modified work consistent with the applicant’s restrictions (light duties, shortened week and no interaction with cancer care) was not available at that time. Soon thereafter, in early December 2004, the applicant underwent reconstructive surgery and her LTD benefits continued throughout this time.

Alleged Failure to Accommodate In 2005

27The applicant’s allegations regarding 2005 were inconsistent. While her human rights complaint specified no allegations with respect to 2005, the applicant appeared to allege in her testimony that the respondent failed to undertake sufficient efforts to locate her alterate work in 2005.

28I find the evidence does not support the applicant’s allegations with respect to 2005. There was no clear evidence that either the applicant or GWL informed the respondent that the applicant was able to resume employment in 2005. The documentary and oral evidence established that the applicant continued on LTD in 2005. The applicant underwent another reconstructive surgery in March 2005, with a third possible surgery pending in November 2005. Following the March surgery, the applicant experienced lymphedema (painful swelling and fluid retention) in her right arm, which severely limited use of her dominant arm.

29The documentary evidence indicates that, in the spring of 2005, GWL’s representative advised the respondent’s disability case manager that GWL was arranging for the applicant to attend counselling regarding her concerns about working in cancer care, which GWL considered to be a temporary restriction. The documentary evidence further indicates that the disability case manager asked GWL to provide a complete functional abilities analysis of the applicant’s restrictions so that the respondent could search for appropriate work.

30On August 29, 2005, GWL provided the respondent with an updated functional abilities evaluation conducted by an occupational therapy service. It is apparent that the focus of the functional abilities evaluation was the applicant’s physical capabilities. While the functional abilities evaluation report indicated restrictions of occasional light work on a part-time basis, there was no mention of the applicant’s psychological restriction. The report noted that the applicant was participating in counselling with a psychologist “addressing issues surrounding: life changes, depression and stress management.”

31In its cover letter to the report, GWL advised the disability case manager that the applicant would soon be entering a work rehabilitation program and it was anticipated that the applicant may be able to return to a modified job in December 2005. However, the applicant’s work rehabilitation program continued until the first week of February 2006. No documentary or oral evidence was presented that establishes that the respondent was, in fact, notified that the applicant was ready and able to return to any kind of work in 2005.

Alleged Failure to Accommodate In 2006 & 2007

32The applicant’s evidence and allegations with respect to 2006-2007 were similarly inconsistent. The applicant alleges in her complaint that the respondent failed to accommodate her disability when it did not supply her with modified work outside of JCC in 2006 and 2007. However, based on the evidence and the chronology of events, it appears that, at best, there was only approximately a three month window of opportunity for the applicant to return to work during that time, specifically February 6, 2006 until May 2006.

33I arrive at this conclusion based on the applicant’s unambiguous testimony that she became very sick in 2006 as a result of serious complications related to the drug therapy and, ultimately, was unable to work until December 2007. The applicant emphasized that by May 2006 her condition had severely deteriorated with constant bleeding and, as a consequence, she underwent two further surgeries in September 2006 and September 2007. The applicant acknowledged both in-chief and under cross-examination that, due to these health concerns, she was unfit to work until December 2007. In addition, the applicant’s mother, a retired nurse and the applicant’s primary caregiver during this time, testified that, in her view, the applicant was only able to return to work approximately 1½ years later.

34While I have found that the applicant’s own testimony attests she was unable to work from May 2006 to December 2007, I will, below, review the cumulative evidence in relation to the allegations of failure to accommodate during that period of time. With respect to the three months the applicant was available to work in 2006, I find the respondent undertook reasonable efforts to investigate accommodation for the applicant.

35Anticipating the applicant’s return to work upon the completion of her rehabilitation program in February 2006, a meeting was convened on January 16, 2006 between the applicant, a GWL representative, and Chris Serran, the respondent’s new disability case manager with carriage of the applicant’s case. At this meeting, the applicant informed Mr. Serran that she had obtained her Clinical Research Associate Certification (“CCRA”) and expressed her interest in pursuing this type of work. The applicant’s complaint confirms that Mr. Serran had already commenced looking for suitable work for the applicant at this time. There were discussions regarding the applicant’s physical restrictions (limited right arm motion because the lymphedema had been aggravated by the rehabilitation program). Subsequently, on February 24, 2006, Mr. Serran spoke to the GWL representative who confirmed that the applicant’s current restrictions included limited lifting and restricted right arm movement. The GWL representative also informed Mr. Serran that it was the applicant’s position that she could not work in the oncology area because she took on the role of the patient.

36The evidence indicates that Mr. Serran followed HHS’s Return to Work Program in attempting to secure alternate work for the applicant. As part of HHS’s Return to Work Program, all job postings are emailed to the disability case manager, who reviews the postings in consideration of the disabled employee’s qualifications, skills and functional restrictions. If a position is determined to be a potential match, the disability case manager is empowered to ask the hiring manager to put the position “on hold” to ensure that the job is not offered to another candidate. Once the job is put on hold, further inquiries are undertaken to assess functional requirements, including, if necessary, an ergonomic review. If the job satisfies the employee’s needs, then a meeting is arranged between the manager and the employee and, if the match is compatible, the position is offered to the employee.

37The evidence establishes that, in 2006 and 2007, Mr. Serran reviewed and put on hold numerous job postings in order to find a position that fit the applicant’s physical and psychological restrictions. The applicant acknowledges that, from January to April 2006, she was consulted by Mr. Serran regarding three potential job opportunities (two research administrative jobs and one job in purchasing). In March 2006, an ergonomic analysis was carried out for one of the research jobs and thereafter the applicant met with the manager and was introduced to staff and the workplace. While the applicant implies she was refused this job because of concerns regarding her lymphedema, the documentary evidence confirms that both research positions were cancelled (one in February and one in April) due to lack of funding. Although Mr. Serran spoke to the applicant about one purchasing job, the documentary evidence establishes that, in April and May 2006, Mr. Serran put two purchasing positions on hold for the applicant as he investigated compatibility. It was ultimately determined the applicant did not have the appropriate supply chain management credentials for the positions.

38The applicant takes issue with one job posting which Mr. Serran reviewed with her in June 2006. The applicant’s human rights complaint states that she was required to remind Mr. Serran of her psychological restriction because he identified a Research Co-ordinator position in Radiation Oncology as a prospective placement for her. I do not consider Mr. Serran’s discussion of the oncology research position with the applicant to be misguided or objectionable given the information that the applicant’s psychological restriction was temporary and the applicant’s expressed interest in securing a research job. Based on the evidence, it appears that, despite the existence of other potential suitable positions, Mr. Serran did not canvass oncology related work with the applicant after she expressed her concerns on this occasion.

39The evidence indicates that, in 2006 and 2007, Mr. Serran considered over forty job postings, such as research administrative assistant, patient equipment analyst, purchasing analyst, library technician, business clerk, etc., as potential positions for the applicant. However, in many instances it was determined, based on further inquiries, that the applicant did not have appropriate qualifications, technical skills, and/or experience. Also, numerous postings, especially those related to research, were rescinded due to lack of funding. As well, a number of the jobs were deemed inappropriate for the applicant because the positions required interaction with JCC and cancer care. The documentary evidence confirms that while canvassing positions for the applicant, Mr. Serran made a point of emphasizing with hiring managers that the duty to accommodate required HHS to offer the job to the applicant, as an employee requiring accommodation, even if there was a “more ideal candidate”.

40It is further noteworthy that although the applicant and her counsel twice wrote to the respondent asking that the applicant be paid a salary until accommodated, the applicant never provided the respondent with updated medical confirmation of her ability to return to work in 2007. The documentary evidence indicates that in December 2006 the respondent twice requested the applicant to provide an updated medical certificate, however none was provided until 2008.

41I understand that another dimension of the applicant’s allegations, although not specified in her human rights complaint, is her apprehension that the respondent denied her alternate employment because she had commenced a medical negligence claim in 2006 against the two physicians who diagnosed her breast cancer and HHS. No-where in the documentary evidence is there any suggestion that individuals and offices involved in facilitating the applicant’s accommodation, namely those in human resources and at Telus Sourcing Solutions, were in any way aware of the applicant’s medical negligence action. The respondent’s witnesses confirmed that they had no knowledge of the lawsuit prior to the progress of this human rights litigation. I accept this evidence and find that the applicant’s negligence claim was not a factor in how the respondent handled the applicant’s accommodation. I understand from the evidence of both parties that the applicant consented to a dismissal of the negligence action without costs in January 2008.

42It was apparent from the applicant’s emotional demeanour when relaying the details of her 2006-2007 symptoms that she experienced tremendous physical and psychological suffering as a result of the health complications and surgeries. This situation was exacerbated by the inopportune fact that the applicant’s LTD benefits expired in March 2006 and the onset of the medical negligence lawsuit. While I understand that these were extremely difficult circumstances involving personal and financial hardship, I cannot find that the respondent failed to comply with its duty to accommodate. The evidence establishes that there were on-going efforts on the part of the respondent to search for alternate work for the applicant in 2006 and 2007. After considering all the steps that were taken, I find that the respondent met its duty to accommodate.

Alleged Failure to Accommodate In 2008

43I pause here to note that I am reluctant to consider the post-complaint allegations with respect to 2008 because it appears that the events referenced by the parties in their evidence arose out of a mediation meeting and/or mediation discussions facilitated by the Ontario Human Rights Commission. At the hearing, I expressed by concern that the parties were delving into details and events that arose out of mediation, nevertheless both parties appeared content to discuss the matter of a job in bone density testing.

44As I understand the evidence, the parties participated in a mediation meeting where they discussed possible accommodations. I believe the applicant was asked to provide an updated FAF and identify jobs she felt she could perform. Subsequently, the applicant inquired with Mr. Serran as to whether or not there was any work available in the area of bone density testing. Mr. Serran ascertained that bone density testing was one aspect of a radiology technician’s job, which a radiation therapist (the applicant) would not be qualified to do. I accept the respondent’s position in this regard.

ANALYSIS & DECISION

Disability

45I find that the cancer and the physical and mental health conditions secondary to the cancer that the applicant experienced constitute a disability under the Code. I also find that the applicant experienced physical and psychological limitations which precluded her ability to perform her job.

46The respondent argued that the applicant failed to establish that she experienced a psychological restriction during certain periods of time that she claimed to need accommodation. The respondent suggests that there was nothing in Dr. Galbraith’s evidence to indicate that the applicant had a psychological restriction past July 2006 (when the counseling ceased) which would have precluded the applicant from working at JCC. In support of its position, the respondent highlights that the applicant secured work at Princess Margaret Hospital, a large cancer care facility, from January to April 2008. As such, the respondent submits that the applicant’s refusal to work at JCC after July 2006 was a matter of personal choice and not disability related.

47Given my findings with respect to the applicant’s inability to work from May 2006 to December 2007 and my determination that the respondent undertook appropriate job search efforts, I do not feel it is necessary to determine whether the medical evidence conclusively established that it was contra-indicated for the applicant to work in cancer care generally or strictly related to working at JCC. The applicant appeared to adopt both positions at various points in this proceeding. It appears that the applicant’s condition may have been evolving and, as such, I have reached my decision on the understanding that at times the applicant had a psychological restriction with respect to both cancer care in general and the JCC.

Duty to Accommodate

48The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 explained, at para 19, that “[w]hat constitutes reasonable measures with respect to the duty to accommodate is a question of fact and will vary with the circumstances of the case.”

49The onus is on the respondent to establish that it could not accommodate the applicant without undue hardship. I find that the respondent has met that onus. Notwithstanding my conclusion that the applicant was unable to work from May 2006 to December 2007, on the evidence before me, I find that the respondent acted reasonably for the entire period of 2004 to 2007 and discharged its duty to accommodate the applicant’s disability to the point of undue hardship.

50The evidence establishes that the respondent met the procedural component of the duty to accommodate in that the respondent was aware of and actively pursued its duty to consider alternate work. The respondent diligently undertook its responsibility to investigate accommodation and proposed job options to address the applicant’s functional limitations. Moreover, the return to work process undertaken by the respondent reveals that, in fulfilling its duty to accommodate, the respondent was committed to ensuring that accommodation-matched employees received priority consideration over other prospective candidates bidding for a job. Clearly, not all employers could take this position as part of their accommodation analysis.

51The substantive component of the duty to accommodate requires me to assess the sufficiency of the respondent’s accommodation efforts and, if accommodation was not achieved, whether there were reasonable and valid reasons why those efforts failed to yield appropriate accommodation. I conclude that the respondent offered a satisfactory answer as to why it was unable to accommodate the applicant short of undue hardship. The fact that consideration of over forty wide ranging job postings in 2006-2007 did not lead to a suitable alternate position speaks to the difficulties in accommodating the applicant’s physical and psychological restrictions. I note that my conclusion that the substantive branch of the duty to accommodate was satisfied in this case is not rooted simply in the quantity of job postings that were reviewed, but the fact that the respondent considered and assessed a wide range of available positions. I accept the respondent’s explanation that the search was complicated by the fact that the applicant did not have technical skills, training, experience, and/or education which were easily transferable to alternate positions in the health care setting. As a result, in these circumstances, I find that the respondent did not violate the substantive aspect of the duty to accommodate under the Code.

52Further, it appears that the applicant’s limited participation in the job search and failure to provide medical updates may also have hampered the respondent’s accommodation efforts. The applicant failed to adduce any evidence as to positions/postings she asserts she could have filled that were not offered by the respondent. The applicant testified that, prior to 2008, she did not suggest any particular position that she could perform and the applicant acknowledges that during this period she searched the HHS’s job postings website only half a dozen times. The applicant admitted that she was asked in December 2006 to furnish updated medical information, however this did not occur until 2008. It is well established that accommodation is a collaborative process and that the applicant was required to actively participate in the process. On the basis of the applicant’s own evidence, it is clear that her efforts to facilitate the accommodation search were minimal.

53It was apparent from her testimony that the applicant firmly believes that she has been discriminated against because the respondent has not found a job for her. The applicant’s frustration is understandable, especially since all the evidence indicates that she sincerely wished to return to remunerative work. However, in my view, the applicant’s position that the respondent was required to provide her with alternate employment evinces a misunderstanding of the duty to accommodate. While the duty to accommodate mandates that the applicant receive fulsome consideration of her individual situation and a meaningful search for accommodation, it does not dictate that the respondent must install the applicant into a new job.

Alleged Discriminatory Severance Offer

54The applicant also alleges that she was subjected to discrimination because the respondent issued a letter with an offer of severance to her on March 23, 2007. The letter reiterates that the respondent had yet to receive an updated medical certificate as twice requested in December 2006. The letter states that, given the lack of success in finding suitable alternate employment based on the previously identified medical restrictions, the respondent proposed an arrangement to pay the applicant severance compensation.

55I do not think the respondent can be faulted for offering to sever the applicant’s employment two years after the applicant was last actively employed, particularly when requests for updated medical certificates had been unanswered. The duty to accommodate does not guarantee an indefinite leave of absence. See, for example, Asante v. Plastcoat, 2009 HRTO 299, citing McGill University Health Centre v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 and Hydro-Québec v. Syndicat des employés de techniques professionnelles et de bureau d’Hydro-Québec), 2008 SCC 43.

56In my view, the respondent’s offer to terminate the employment relationship was neither discriminatory, nor contrary to its accommodation obligations. Although it is unclear what exactly transpired after the applicant received the severance offer, I note that the respondent did not treat its duty to accommodate as exhausted and has continued to search for alternate employment for the applicant.

Conclusion

57Although I am sympathetic to the distress that the applicant states she experienced because the respondent has been unable to find her a suitable position, my examination of the evidence does not support a finding of a Code contravention. Based on the totality of the evidence, I find that the respondent discharged its duty to accommodate the applicant to the point of undue hardship both during the periods of time that the applicant was able to work and during the time periods in which she alleges there was a failure to accommodate.

Post-Hearing Allegations

58I note that in her post-hearing correspondence with the Tribunal, the applicant alleges that counsel for the respondent acted improperly and violated the Tribunal’s witness exclusion order. The applicant alleges that respondent counsel was observed speaking with his witnesses as a group in a coffee shop in the hearing centre prior to the start of the second hearing day and that it was apparent that counsel and a witness were reviewing a document brief from the hearing. Respondent counsel submits that he was entitled to meet with his witnesses in preparation of their testimony. A witness exclusion order requires witnesses to remain outside of the hearing room during the evidence of other witnesses in order to ensure the integrity of each individual’s recollections and testimony. A witness exclusion order requires witnesses to not discuss evidence amongst themselves. In their interactions and communications with witnesses, counsel must uphold the Law Society of Upper Canada’s Rules of Professional Conduct. Based on my understanding of Rule 4.04, while counsel have to be cautious and avoid speaking to a witness about the testimony of other witnesses, there is no issue with counsel speaking to a witness prior to that witness's testimony about their proposed evidence. I am satisfied that counsel for the respondent did not contravene the Tribunal’s witness exclusion order.

59In conclusion, there is no basis in any of the events as described in the factual chronology to support a finding of discrimination or failure to accommodate. I conclude that the respondent satisfied its procedural duty to accommodate and has provided reasonable explanations for why it was unsuccessful in the substance of its accommodation attempts. Given the fact that the applicant was only able to work for three months in 2006 and given the evidence regarding the respondent’s on-going efforts to locate alternate work, I find that the respondent adequately discharged its duty to accommodate.

60The Application is dismissed.

Dated at Toronto this 28th day of October, 2010.

”signed by”___________

Ena Chadha Vice-chair