HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samuel Rodgers
Applicant
-and-
SCM Supply Chain Management Inc., Jon Marion, Tanya Dickson, and Ike Connolly
Respondents
DECISION
Adjudicator: Mary Anne McKellar
Indexed as: Rodgers v. SCM Supply Chain Management
AppearanceS BY
Samuel Rodgers, Applicant ) ) Self Represented
SCM Supply Chain Management Inc. ) Jon Marion, Tanya Dickinson, ) Ike Connolly, Respondents ) Andrew Ashenhurst, ) Counsel
INTRODUCTION AND PRELIMINARY MATTER
1This is an Application filed with the Tribunal under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) on June 29, 2009. The underlying complaint to the Ontario Human Rights Commission was filed on June 13, 2007.
2By Notice dated November 24, 2009, this Application was scheduled to be heard on March 4, 2010. The Notice also advised the parties of timelines by which they must file any additional statements of fact, and, in the case of the applicant, make any remedial requests, provide the names and a brief statement of the proposed evidence of any witnesses, and exchange documents.
3Counsel for the applicant advised the Tribunal on January 22, 2010 that he did not represent the applicant, and that he had so informed the applicant and counsel for the respondents in November 2009. By letter dated January 28, 2010, the applicant sought “an extension to be able to fully prepare for his hearing”. There is no suggestion that the applicant was seeking to have the matter adjourned.
4The Tribunal’s Registrar-Transition acknowledged receipt of the applicant’s correspondence by letter dated January 28, 2010, in which she confirmed the date of the hearing and directed that the materials identified in the previous Notice be provided to the responding parties and filed immediately. The applicant did not respond. He did not file any remedial requests or witness statements, and he did not make any documentary disclosure to the responding parties. The responding parties complied with all the applicable timelines and filing requirements.
5The applicant attended at the hearing on March 4, 2010 without counsel or any other agent representing him. He indicated that he was not prepared to proceed without counsel. The responding parties objected to any adjournment of
the matter. They had arranged for several witnesses to attend, and for a further witness to be available to testify via teleconference.
6I declined to adjourn the matter, and advised the applicant that he must therefore represent himself, and that if he chose not to participate in the hearing at all, that his Application would be dismissed.
7My reasons for denying the adjournment request were provided at the time and may be briefly summarized: the applicant did not seek to adjourn this matter immediately when the issue of his legal representation arose; he never sought to obtain the consent of the responding parties to an adjournment; he made only a vague assertion that he tried to get another lawyer “but he was not available today” without any explanation of why that might not have prompted an adjournment request made at some point prior to the commencement of the hearing ; and, primarily because granting his request would cause considerable inconvenience to the responding parties, who had attended with a number of witnesses and were prepared to proceed.
8In the above circumstances, the applicant chose to proceed and represent himself.
DECISION
9This Application is dismissed. My reasons for decision follow.
THE FACTS
10I commenced the hearing by asking the parties a series of questions designed to elicit certain undisputed background facts, and then to determine the specific areas germane to my inquiry where it appeared that there might be disputes. As a result of that exercise, I determined that it was only necessary to hear testimony from two witnesses: the applicant; and Tanya Dickson, a former employee of the organizational respondent who had two key conversations with the applicant. The parties consented to a process in which I questioned each of these witnesses first, and then the applicant and counsel for the responding party were provided with the opportunity to ask questions.
11The organizational respondent (“SCM”) undertakes receiving and distribution functions for retail clients. It operates a facility in Mississauga where approximately 800 persons are employed, the vast majority of them engaged in activities in receiving or in the warehouse.
12The applicant commenced his employment with SCM in 1995. He was an hourly-rated employment and also received benefits, including plans for both short-term (“STD”) and long-term (“LTD”) disability benefits. In 2005, the applicant required knee surgery. He was off work for a significant period of time for which he received both STD benefits and LTD benefits. Both the STD and the LTD plans in place for the SCM employees are administered by Manulife Insurance and the latter makes all determinations with respect to eligibility for benefits.
13The applicant returned to active employment as an “unloader” after his knee surgery in late March 2006. His return to work occurred after medical documentation, including a Functional Abilities Form (“FAF”) completed by his attending orthopedic surgeon, had been provided to SCM.
14The applicant possessed a particular license or certification related to material handling. It is known as an MHE, and is subject to renewal on a periodic basis upon completion of a refresher course. A refresher course was held at the workplace on a day when the applicant was not in attendance.
15On May 3, 2006, the applicant was advised that his MHE would be removed or was no longer valid because he had not attended the refresher course. There was no evidence that this event had any consequences for his employment status. The applicant was upset about this and also indicated he was under considerable stress at home. He went to speak to Ms. Dickson, who was a Human Resources Coordinator with SCM. After that conversation, he left the workplace and sometime thereafter filed an application for STD benefits. There is no dispute that the applicant was not suffering from any physical incapacity at this time, and that what he was seeking what is commonly known as a “stress leave”.
16The applicant did not receive STD benefits. In June of 2006 SCM received a copy of correspondence from Manulife addressed to the applicant indicating that further medical information in support of his application was required.
17By the end of March 2007, the applicant had retained counsel. It is not clear what the parameters of the initial retainer were, i.e. whether it was to assist the applicant in his dealings with Manulife or whether it was to assist him in returning to work. In any event, shortly after he had retained counsel, the applicant testified that he went to the workplace. He spoke to an individual named Robert Doran on March 29, 2007. The applicant testified that he was inquiring about returning to work. Mr. Doran’s e-mail of the same date to Ms. Dickson suggests that his inquiry related to whether he had any time banked. In any event, Ms. Dickson called the applicant the next day.
18When Ms. Dickson spoke to the applicant on March 30, 2007, she took notes of the conversation. It is clear from these notes, and the applicant agrees, that two of the things that were mentioned were the necessity of his obtaining a doctor’s note, and his assertion that he was ready to return to work.
19There is some dispute about the context in which the doctor’s note was mentioned. Ms. Dickson’s notes indicate that she told the applicant he would need to supply a doctor’s note to substantiate his absence to date. The applicant, on the other hand, was adamant in his understanding that he needed a doctor’s note to verify that he was ready to return to work. The applicant acknowledged in his testimony that he knew at the end of this meeting that he needed to provide some medical evidence that he was fit to return to work and that “his own word that he was ready to return” would not be sufficient. The applicant also agreed that he had told Ms. Dickson, and she had noted, that he had two doctors’ appointments coming up the following week. He further offered in testimony that he thought he was probably referring to psychiatrists’ appointments.
20The applicant obtained a note from his rheumatologist on May 7, 2007. It stated: “light duties until further notice (May 21, 2007)”. The applicant attended at the workplace on May 17, 2007. He did not advise anyone that he was coming, nor did he make an appointment. He asked to speak to Ms. Dickson, and she met with him briefly in the lobby of the building. She estimated that their conversation lasted 10-15 minutes. The applicant thought it was more likely 5-10 minutes. In the course of the meeting, the applicant handed Ms. Dickson a copy of the doctor’s note.
21When Ms. Dickson returned to her office, she set out her account of the meeting with the applicant in an e-mail. The e-mail was sent at 11:37 a.m. and indicates that the applicant had attended at the workplace at approximately 11:00 a.m., a fact that he did not dispute. One of the recipients of Ms. Dickson’s e-mail was counsel for SCM, and she explained that he had been copied because she was aware of the fact that the applicant had retained counsel who had been in touch with SCM’s in-house counsel.
22In any event, the e-mail sets out that Ms. Dickson explained to the applicant that there was a “procedure” for returning to work. In her testimony she explained that she was referring to the need for a completed FAF form, a process which the applicant would have been familiar with from the preceding year when he returned to work following his knee surgery. Ms. Dickson also testified that she believed she made specific reference to the FAF form and the fact that another SCM employee, Jon Marion, who would deal with that was “unavailable”.
23The applicant flatly denied that the FAF form was ever mentioned. He also took some exception to the fact that Mr. Marion was described as unavailable and claimed that he had been told he was on vacation for two weeks. What is undisputed is that Mr. Marion was not in the office on May 17, 2007, and I fail to see the relevance of any inquiry into why he was not there, or what precise language was used to convey that fact.
24Ms. Dickson’s e-mail indicates that the applicant said some things to her on May 17, 2007 that were not consistent with his returning to productive employment. She records that he said he wanted to come back and “sit around, pick his nose”. The applicant disputed that he had said “pick his nose”, but agreed that he might have said “sit around”. Ms. Dickson also noted that the applicant had said he could not come back to work at all because he was “sick in the head”. The applicant also denied making this statement.
25Ms. Dickson’s notes of her conversation with the applicant on May 17, 2007 also refer to the fact that he recommended that she call his doctor and that she indicated that his doctor would not disclose medical information to her over the phone. The applicant was asked about this notation by me, and he denied ever telling Ms. Dickson to call his doctor. When counsel for SCM asked him questions a few minutes later, however, he agreed that he “probably did tell her” to call his doctor. Ms. Dickson’s recollection was that the exchange about her contacting the doctor arose because the applicant indicated that was frustrated, he knew his doctor’s note was not enough to secure his return to work, and he did not want to deal with any more paperwork, so told her to call his doctor.
26Ms. Dickson testified that she had no doubt whatsoever after meeting with the applicant on May 17, 2007 that he was aware that the doctor’s note he had provided was not sufficient to return him to work and that he would have to provide further medical information. She was also left with considerable doubt as to whether he would take the necessary steps to provide the information. For his part, the applicant said that he left the meeting thinking the note he had provided was sufficient.
27Where there are differences in the accounts of what was discussed on May 17, 2007, I have no hesitation in finding Ms. Dickson’s account to be more reliable insofar as she described what she had communicated about the return to work protocol, including the necessity of providing a completed FAF. Her account was consistent with the contents of the e-mail she wrote almost immediately afterwards; it was consistent with company practice; and it offers the only reasonable explanation of why the applicant would have suggested she contact his physician directly.
28I do not need to make any finding about whether the applicant communicated that he was not seeking to be returned to productive employment, or if he communicated that he was not fit to return in any capacity. While I certainly make no finding that the applicant’s testimony on this point was more credible than Ms. Dickson’s, I am nevertheless prepared for the purposes of this decision, to give him the benefit of the doubt and assume what he said was accurate.
29There is one additional matter to note in respect of the May 17, 2007 meeting. The applicant testified that Ms. Dickson told him either she or Jon would call him back and that neither one did. Ms. Dickson’s e-mail account of the meeting also sets out that she told the applicant she or Jon would “call him back Wednesday”. The Wednesday following May 17, 2007 would have been May 23, 2007. Ms. Dickson was sure she did not speak to the applicant again, but was not sure whether Jon did or not. It appears that the pleadings may explain why neither of these two individuals may have followed up with the applicant.
30On June 9, 2007, the applicant filed his complaint with the Commission, which was amended at some point to include the following additional particular: “the complainant’s counsel contacted him on May 24, 2007, to advise that the respondent company expressed its desire to “pay out” the complainant.”
31The responding parties filed their response to the complaint on September 28, 2007. It contains the following pleadings in response to the applicant’s added particular in his complaint. I note that the applicant’s name has been spelled incorrectly throughout, and I have left the spelling as it appears in the original document:
Mr. Rogers alleges in his complaint that his lawyer (Mr. Fairbairn) told him on May 24, 2007 that SCM had offered to “pay him out”.
SCM’s counsel had a without prejudice discussion with Mr. Fairbairn on May 24, 2007. SCM takes the position that the without prejudice nature of the discussion precludes it from being relied upon as evidence by Mr. Rogers. Furthermore, SCM states that the contents of the conversation are privileged.
Nevertheless, for the purposes of replying to the [sic] Mr. Rogers’ accusation, and without prejudice to its position that the conversation cannot be relied upon by Mr. Rogers, SCM can state that the discussion is not described accurately by Mr. Rogers. SCM’s counsel provided Mr. Fairbairn with two options to consider. Mr. Fairbairn was told that SCM was mindful of its obligations under the Code and would offer reasonable accommodation to Mr. Rogers if he provided a completed Functional Abilities Form. Alternatively, if Mr. Rogers felt he was unable to return to work, he could alleged that his employment was frustrated and the Company would respond accordingly. Mr. Fairbairn stated that he would talk to Mr. Rogers and advise the Company of how Mr. Rogers wished to proceed.
SCM has not heard from either Mr. Fairbairn or Mr. Rogers since the conversation of May 24, 2007. It appears that instead of instructing his lawyer to respond to SCM, Mr. Rogers decided to file a complaint under the Code, which he did on June 13, 2007.
A blank FAF form was attached as an appendix to the Response.
32The applicant could not recall if he ever read the response to the complaint. He thought he might have “skimmed” it. Further, despite signing off on the amendment to his complaint adding the particular of the May 24, 2007 telephone conversation between counsel, he did not recall his counsel talking to him about that matter. The applicant agreed that he was not in a position to dispute what was written in the response, or to dispute the fact that, even if nothing else to that point had, it made crystal clear that SCM required him to provide a completed FAF to return to work.
33As indicated above, the applicant testified that he retained counsel shortly before his first conversation with Ms. Dickson about returning to work. We know that that conversation occurred on March 30, 2007. We also know that the applicant’s counsel was in touch with SCM or its counsel prior to May 17, 2010, because that is why Ms. Dickson copied her e-mail of that date to SCM counsel. We also know from the complaint and the response that the two counsel had a conversation on May 24, 2007. Although there is some disagreement about who said what in that conversation, it is clear that what they were discussing in general was the applicant’s future as an SCM employee.
ANALYSIS
34The only proper subject of this Application is whether the responding parties contravened the Code in connection with the applicant’s request commencing in March 2007 to return to work.
35While the applicant was clearly frustrated and upset about not obtaining STD disability benefits effective early May 2006, benefit entitlements are determined and the plan is administered by Manulife. There is no credible allegation that SCM or any of its employees were involved in that decision making. SCM was copied on correspondence Manulife sent to SCM employees who had applied for benefits.
36This case turns entirely on my determination of the relative reliability of the evidence relied on by the applicant as compared to that relied on by the responding parties, and in particular on my determination of the relative reliability of the applicant’s testimony as compared to that of Ms. Dickson.
37I have already indicated that, although there is some evidence to the contrary, I am prepared to assume that the applicant sincerely wished to return to work when he approached SCM and spoke to Mr. Doran on March 29, 2007. The applicant’s inquiry was promptly responded to by Ms. Dickson the following day. Following his conversation with her, the applicant clearly understood that “his word was not enough” and some medical evidence would be required to support his return to work. The applicant also communicated to Ms. Dickson that he had doctors’ appointments the following week. He may or may not have specifically advised Ms. Dickson that these were psychiatrists’ appointments. It is worth repeating at this point that the applicant was away from work due to stress.
38The applicant did not provide SCM with any documentation obtained from his psychiatrist. Indeed, he did not provide any medical information at all until more than six weeks had passed. He attended at the workplace on Thursday, May 17, 2007 with a doctor’s note dated May 7, 2007 from his rheumatologist, saying he should be put on “light duties” until “further notice (May 21, 2007)”, that is until the following Monday. There was no further amplification on what light duties might mean.
39I have already indicated above, that I find as a fact that the applicant was advised by Ms. Dickson on May 17, 2007 that this note was not sufficient and that he must go through the FAF process with which he was already familiar. SCM’s requirement that the applicant comply with its established return-to-work protocol including completing an FAF did not contravene the Code’s duty to accommodate. It is well established that persons seeking accommodation must cooperate in that effort by, among other things, providing concrete information respecting the nature of the accommodation they require.
40The applicant had, by May 17, 2007, already engaged counsel, who had been in touch with SCM and its counsel. A further conversation between counsel occurred the week following Ms. Dickson’s meeting with the applicant, and the day after she had indicated that she or Mr. Marion would call him back. While there is a procedural component to the duty to accommodate under the Code, I do not find it was breached by SCM or any of the responding party employees, when those employees did not follow up with the applicant directly respecting further steps in the return to work protocol on or after May 23, 2007. It is clear even on the pleadings that these very matters had been put in the hands of counsel for both the applicant and SCM, and that conversations about them were ongoing.
41For all of the above reasons, this Application is dismissed.
Dated at Toronto, this 25th day of March, 2010.
“Signed By”
Mary Anne McKellar
Vice-chair