John Dunlop v. Alter Moneta Corporation, 2010 HRTO 651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Dunlop

Applicant

-and-

Alter Moneta Corporation

Respondent

DECISION

Adjudicator: Brian Sheehan

Date: March 25, 2010

Citation: 2010 HRTO 651

Indexed As: Dunlop v. Alter Moneta

APPEARANCES BY

John Dunlop, Applicant ) Self-represented

Alter Moneta Corporation, Respondent ) Ian Campbell, Counsel

1This is an Application filed on May 4, 2009, under section 53(5) of the Human Rights Code, R.S.O.1990 c. H.19 as amended (the “Code”). The applicant alleges that his employer, Alter Moneta Corporation, discriminated against him on the basis of disability by terminating his employment effective August 1, 2007.

Overview of the Evidence

2The respondent is an independent financial services company, with headquarters in Longueil, Quebec. Its Ontario regional office is located in Mississauga.

3The applicant was hired in January 2003 as a Business Development Manager responsible for developing and maintaining business relationships with new and established customers.

4The applicant worked out of his home and was responsible for a region that included the Greater Toronto Area.

5As of January 2007, the respondent started to become concerned about certain aspects of the applicant’s work performance. During meetings held in early April 2007, Christopher Evered, Vice-President Ontario - Western Canada, outlined areas to the applicant where his work performance needed improvement.

6On April 30, 2007, Mr. Evered wrote to the applicant regarding some of the identified work performance issues. Later that day the applicant submitted, via e-mail, a note from his family physician, Dr. Ibrahim Rahman, indicating that he would be off work until May 14, 2007.

7On May 1, 2007, Joan Gagnon, Manager of Administration and Human Resources for the respondent, had a telephone conversation with the applicant regarding the payments that he would be entitled to receive while off on medical leave. Ms. Gagnon suggested in that conversation that the respondent would need further medical information regarding the reason for the applicant’s absence.

8On May 15, 2007, the applicant forwarded to the respondent a further medical note from Dr. Rahman. This note simply indicated that the applicant would be off work until May 28, 2007.

9The respondent was of the view it was entitled to more detailed medical information regarding the applicant’s absence. On May 18, 2007, Ms. Gagnon sent a letter to Dr. Rahman outlining certain questions regarding the applicant’s state of health.

10On May 21, 2007, Dr. Rahman responded in writing to Ms. Gagnon’s letter indicating that the applicant was suffering from mild anxiety and depression in relation to some family and marital problems. The letter further indicated that the applicant was being referred to a gastroenterologist for stomach pain; and to a cardiologist with respect to chest discomfort. Dr. Rahman indicated that the prognosis for the applicant was good, and it was not expected that he would be disabled for a long time.

11On June 7, 2007, Dr. Rahman provided a short “Confirmation of Illness” note indicating that the applicant would not be able to return to work until July 3, 2007.

12On June 8, 2007, Ms. Gagnon again spoke to the applicant and indicated that from the respondent’s perspective the information supplied by the applicant’s family physician was not sufficient. It was further indicated that the respondent sought to have the applicant undergo an independent medical assessment. The applicant agreed to that request.

13On June 25, 2007, the applicant was seen by a Dr. Norman Grosser of Medisys Health Group, which specializes in providing employment oriented independent medical assessments. The evidence suggests that the assessment of the applicant lasted about 45 minutes to one hour. Dr. Grosser testified as part of the proceeding and he was challenged by the applicant regarding the thoroughness of his examination of the applicant’s mental state of well being.

14On June 27, 2007, Dr. Grosser forwarded his report to Ms. Gagnon. In that report Dr. Grosser suggested that it was his opinion that the applicant could return to work effective July 3, 2007. He recommended that the applicant meet with representatives of the respondent to discuss the applicant’s return to work. Dr. Grosser suggested the following three alternatives regarding the applicant’s return to work:

1. Return to work initially on a part-time basis, with or without traveling responsibilities;

2. Return to full-time work, eliminating traveling at present time;

3. Offer some immediate assistance in dealing with his work responsibilities on a temporary basis so that the workload is lessened.

15Based on Dr. Grosser’s report, it was the decision of Ms. Gagnon and Mr. Evered the applicant should return to work on a graduated basis. Their return to work plan involved the applicant initially returning to work two days a week; with an increase of an additional day each week for the subsequent three weeks.

16By way of a conference call with Ms. Gagnon and Mr. Evered on June 28, 2007, the applicant was advised of the proposal to gradually return him to full-time activities. There was a discussion also about the applicant attending a sales team meeting scheduled for July 8 and 9, 2007 in Niagara-on-the-Lake. It was the respondent’s evidence that the applicant was advised that he was not expected to check his voicemail or e-mails on the days he was not working. Further that his attendance at the Niagara-on-the-Lake sales meeting was optional. It was the applicant's evidence that attendance at the sales conference was presented as being mandatory.

17During that telephone conversation the applicant indicated that he was not ready to return to work and that he did not feel that he should return to work until he felt one hundred percent recovered. He further indicated that he was in the midst of a custody dispute with his ex-wife and that the timing wasn’t right for him to return to work.

18On July 24, 2007, the applicant met with Mr. Evered. Ms Gagnon participated in the meeting via telephone. The applicant was advised that the purpose of the meeting was to discuss his status and whether he was going to take any steps to return to work. The applicant reiterated his view that he was not ready to return to work and that he only wanted to return to work when he was able to give one hundred percent effort. The respondent requested that the applicant provide further medical documentation to justify his continuing absence.

19The applicant, in his evidence, made reference to the fact that at the July 24, 2007 meeting he was confronted with a message that was directed to his e-mail account regarding the possibility of starting up an insurance broker business. The applicant asserted that he had no knowledge of that e-mail message and denied the inference that he was seeking to start up his own business.

20On August 1, 2007, Ms. Gagnon forwarded a letter to the applicant indicating that his employment was terminated.

21The applicant subsequently submitted a note from Dr. Rahman indicating that he was off work until August 15, 2007. The applicant confirmed at the hearing that he did not see Dr. Rahman, or any other medical practitioner, from June 7 until August 15, 2007.

22The applicant did, however, at the hearing, submit a June 7, 2009 report of Dr. Gary Challis, a Registered Psychologist.

DECISION

23At the hearing the applicant raised a number of concerns regarding the graduated return to work proposal of the respondent. In particular he asserted that there was no concrete plan regarding his reintegration into the workforce. He further suggested no details were provided in writing regarding his specific duties during the return to work period or the resources he would be provided during that period. Additionally it was argued that the respondent's proposal for him to attend the sales conference in Niagara-on-the-Lake was specifically contrary to the recommendations of Dr. Grosser.

24Additionally the applicant took issue with the extent of the examination done by Dr. Grosser and whether, given its short duration, it could provide a true indication of his mental and emotional state.

25Whatever may be said about the potential merit of some of the concerns raised by the applicant, the proper time for those concerns to have been raised was when the return to work plan was initially proposed by the respondent. The parties at that time could have entered into discussions regarding those concerns. The applicant, however, did not advance those concerns because it was his steadfast position that he did not want to return to work. In particular during the June 28 conference call and the July 24 meeting, the applicant was adamant he was not ready to return to work. In particular, he suggested that the timing wasn’t right for him to attempt to return to work and he wanted to wait until he was able to give a one hundred percent effort.

26The principles associated with the duty to accommodate suggest there are certain obligations on the employee seeking accommodation. The nature of those obligations were set out by the Supreme Court of Canada in its authoritative decision Central Okanogan School District No.23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

This does not mean that, in addition to bringing to the attention the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of complainant causes the proposal to flounder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept a reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect the perfect solution. If the proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

27In this case, the respondent had put forward, in the circumstances, a reasonable proposal to return the applicant to return to work on a modified basis. The proposal involved a graduated return to work with the offer of assistance to the applicant during that period. Failing to take any steps to facilitate the implementation of that proposal or to respond in any meaningful way to it, the applicant breached his obligation to participate in the accommodation process.

28From a substantive point of view, the medical evidence available to the respondent suggested that he was capable of returning to work on a modified basis as proposed by the respondent. The assessment of Dr. Grosser was that he could return on a modified basis as of July 3, 2007. The last note provided from Dr. Rahman indicated that the applicant was expected to be absent until July 3, 2007. The applicant did not provide any differing medical evidence. In fact, the applicant did not seek medical attention whatsoever between the period of June 7 to August 15, 2007. There was, therefore, other than his subjective preference, no medical justification for the applicant to not have at least attempted a return to work on a modified basis as of July 2007.

29The June 7, 2009 report of Dr. Challis relied upon by the applicant did not advance his argument. Since Dr. Challis was not available to be cross-examined with respects to the contents of the report, the evidentiary value of the report was significantly reduced. More importantly, given that the report was based on interviews of the applicant in May 2009, the assessment provided has little, if any, relevancy to applicant’s mental state as of June-July 2007.

30Having made a reasonable return to work proposal, the respondent was not obligated to accept the applicant’s preferred resolution of allowing him more time off work. The applicant’s resolute rejection of considering his possible return to work suggested, in the circumstances, the respondent had fully discharged its duty to accommodate obligations.

31The facts of this case are similar to those found in Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5. There, an employee initially went off work due to the abdominal pain which was later diagnosed as a hernia. The Hospital, through a consultant it retained to assist in evaluating its short-term disability claims, determined that based on the medical information provided the employee was not totally disabled. Further information was sought from the employee. That information was not forthcoming. Subsequently, after being advised that he would have to go under an operation in the near future the employee was adamant he should remain on a leave of absence until his operation. The medical evidence, including the employee’s specialist, suggested he could work notwithstanding his pending surgery. In finding that the Hospital did not to violate the Code, the Tribunal noted that the applicant had failed to participate in the process to find an accommodation. In particular, the Tribunal noted as follows:

The duty to accommodate is part of a collaborative process, in which the Hospital’s actions and responsibilities must be understood in the context of the information before it and positions taken by the applicant. I find in all the above circumstances, the Hospital fulfilled its duty. It requested medical documentation to support the applicant’s desired accommodation, a leave from work. It advised the applicant that his medical documentation was insufficient and gave him a further opportunity to provide supporting documentation. The applicant was given an opportunity to identify restrictions necessary to enable a return to work and did not. The applicant did not propose alternative accommodation measures. The applicant did not demonstrate that his leave of absence was a necessary accommodation of the Code-related need, and did not seek to engage the Hospital in a further discussion about alternative accommodation measures.

32The Grzesiak v. DOT Benefits, 2008 HRTO 206 decision relied upon by the applicant is distinguishable on its facts. The employer in that case failed to investigate the details of the medical condition of the employee seeking accommodation. Additionally, that employer failed to consider, in any manner whatsoever, the possibility of returning the employee to work by modifying his duties. In this case the respondent, as has been determined, made reasonable overtures to the applicant regarding accommodating his return to work.

33In conclusion, I am of the view, that the termination of the applicant’s employment by the respondent did not violate the Code. Accordingly, the Application is dismissed.