Gui Xian Xu v. The Ottawa Hospital, 2011 HRTO 1208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gui Xian Xu Applicant

-and-

The Ottawa Hospital Respondent

-and-

The Ontario Nurses Association Respondent

DECISION

Adjudicator: Dale Hewat Date: June 23, 2011 Citation: 2011 HRTO 1208 Indexed As: Xu v. The Ottawa Hospital

APPEARANCES

Gui Xu, Applicant ) Frances Amenyo Aheto-Tsegah, Counsel The Ottawa Hospital, Respondent ) Raquel Chisholm, Counsel Ontario Nurses Association ) Colin Johnston, Counsel

Introduction

1These are two Applications filed March 11, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, Gui Xu, a Registered Nurse (“RN”) claims that she was subject to discrimination and harassment and reprisal during her employment with the respondent, The Ottawa Hospital (the “Hospital”) on the basis of disability contrary to sections 5(2), 8, 9, 10 and 17 of the Code. The applicant also claims that the Ontario Nurses Association (“ONA”) violated the Code by failing to pursue her claims of discrimination on the ground of disability both in its dealings with the Hospital and in its refusal to file grievances on the applicant’s behalf.

2ONA brought a request seeking early dismissal of the Application on the basis that it did not establish a prima facie case of discrimination or alternatively that the Tribunal should dismiss the Application pursuant to its discretion under section 45.1 of the Code because the substance of the Application was dealt with in another proceeding before the Ontario Labour Relations Board.

3With respect to no prima facie case, ONA argued that the applicant’s assertion that ONA failed to adequately represent and uphold her rights to be free from discrimination and failed to represent her in her return to work in August 2007 does not constitute discrimination under the Code. At the first day of hearing on December 3, 2009 I made an oral ruling dismissing the Application against ONA. Because I determined that the applicant did not establish a prima facie case against ONA, I did not need to determine its request to dismiss the Application on the basis of section 45.1. The reasons for that ruling are summarized below.

4With respect to allegations of discrimination by the Hospital, the applicant claims the following:

1. She was subjected to differential treatment in 2006 and 2007 as a “modified” worker, in particular by her manager Denise Picard-Stencer. The applicant claimed that she was treated differentially with respect to a request to switch shifts or take time off in order for her to attend a Tai Chi Class for therapeutic reasons, a denial of evening shift premium and requiring the applicant to take a vacation day for a doctor’s appointment.

2. She was subject to discriminatory treatment by Denise Picard-Stencer in the investigation and decision-making regarding an incident between the applicant and a co-worker that occurred on June 12, 2007. In addition, the applicant alleged that the Hospital violated the Code by refusing to allow her to appeal the Hospital’s decision regarding the June 12, 2007 incident.

3. The Hospital failed to accommodate her between the fall of 2006 and June 2007 in a meaningful suitable position following the determination by the Workplace Safety and Insurance Board (“WSIB”), in 2006, that she had a permanent impairment.

4. The Hospital discriminated against the applicant and harassed her when it required her to return to work, without a detailed return to work plan on August 27, 2007 contrary to her medical leave of absence scheduled to end on August 31, 2007. In addition by requiring the applicant to return to work, the Hospital ignored the applicant’s request that she return to work once the incident of June 12, 2007 had been resolved.

5. The Hospital further discriminated against the applicant when her acting manager Lyse Huneault sent her a warning letter dated September 11, 2007. The letter was in response to the applicant’s decision to leave work on August 27, 2007 despite the applicant providing a medical certificate attesting to her suffering from depression and placing her on an indefinite leave of absence.

6. The Hospital failed to accommodate and reprised against the applicant when she returned to work from long term disability on July 26, 2009 by screening her out of three positions that the applicant claims that she was capable and qualified to perform. In addition, the applicant claims that the Hospital made no efforts to offer training to her so that she would be better positioned to fill vacancies and imposed barriers to prevent the applicant from being considered for job interviews such as enforcing a bilingualism requirement, two year’s recent experience and a nursing degree. The applicant also alleged that the Hospital attempted to place her in a position in the Dialysis Unit which she believed did not meet her permanent physical restrictions.

7. The Hospital failed to accommodate and continued to reprise against the applicant by not providing her with a full-time position in the Neurology Clinic where she had been assigned during her Gradual Return to Work Program beginning in July 2009 despite the fact that the Hospital staffs that Clinic with many retired and part-time nurses.

8. The Hospital discriminated against the applicant when it prematurely ended the Gradual Return to Work program on October 1, 2009 instead of October 12, 2009 when a determination was made that the applicant begin a Labour Market Re-entry Program (“LMR”) under the direction of the WSIB.

9. The Hospital continued to discriminate against the applicant when it did not explain its disability accommodation process and procedure to the applicant and failed to explain why it was terminating the Gradual Return to Work Program on October 1, 2009. Furthermore, the applicant alleged that the Hospital did not take steps to provide access to the Hospital’s internal posting website or respond to the applicant with respect to five RN positions that she applied to on December 15, 2009.

5The Hospital maintains that it did not discriminate, harass or threaten reprisal against the applicant on the basis of disability and that it has met its duty to accommodate her.

6With respect to the allegations of discrimination against ONA, the applicant stated that ONA and, in particular Daniel Renaud her ONA representative, failed in the joint duty to ensure that she was not subjected to discrimination and harassment in the workplace. In that regard, the applicant claimed that ONA and Renaud would not file a grievance or provide legal representation on her behalf with respect to the June 12, 2007 incident and permitted her to return to work on August 27, 2007 despite knowing that she was on medical leave until August 31, 2007.

Preliminary Rulings

Scope of the Application

7The applicant sought to rely on evidence pertaining to events that occurred in 2004 and 2005. On the first day of hearing, I ruled that the case would be limited to events occurring after August 23, 2006 on the basis that the original claim filed in November 2007 by the applicant raised allegations concerning discrimination occurring after that date. Because the application was filed under section 53(5) of the Code, it was also important to consider the application based on the allegations in the original complaint before the Ontario Human Right Commission as required by section 53(5) of the Code and the Tribunal’s Rules for Transition Cases and not to expand the case to allegations dating back to 2004 that were out of time. In addition to the allegations raised in the original complaint, on October 9, 2009, the applicant filed further allegations of continuing discrimination on the basis of disability, the failure to meet the duty of accommodation and reprisal. The Hospital agreed that it had a continuing obligation to the applicant under the Code, and accordingly, this hearing canvassed all the allegations raised by the applicant on October 9, 2009.

8In terms of the allegations brought with respect to the June 12, 2007 incident, I ruled that I would not be reviewing the validity of the Hospital’s internal investigation process or its decision. However, I stated I would consider whether the applicant was targeted by her co-worker because of her disability and whether during or after the investigation of the incident the applicant experienced adverse differential treatment because of her disability.

9The applicant requested to call three witnesses to testify about their experience as modified nurses in their Unit. The respondent submitted that the application was not a complaint of systemic discrimination and requested that I not allow these witnesses to testify. Based on my review of the allegations contained in the Application, I agreed that the hearing should be limited solely to the allegations relating only to the applicant and her individual experience and observations as a modified RN.

The Application against ONA

10The Application filed against ONA alleged that Union and in particular Daniel Renaud, acting in his capacity as the applicant’s Union representative, failed in the joint duty with the Hospital to ensure the applicant was not subject to discrimination and harassment in the workplace particularly given her prior workplace injuries. The applicant claimed that ONA conspired with the Hospital in not re-opening its investigation of the applicant’s complaint of harassment for the June 12, 2007 incident. Specifically, the applicant stated that Mr. Renaud ignored the fact that the Hospital violated its policy in resolving the June 12, 2007 incident and did not raise questions or concerns regarding discriminatory treatment. She also claimed that Mr. Renaud told her that the Hospital violated its policy in the way it handled her complaint against her co-worker but that he and ONA refused to file a grievance on her behalf.

11With respect to the applicant’s return to work on August 27, 2007, she claimed that Mr. Renaud and ONA failed to ensure that the applicant’s medical certificates were recognized and accommodated by the Hospital and they not only allowed but forced her back to work on August 27, 2007 in violation of her rights under the Code. The applicant claimed that Mr. Renaud asked her to provide any other medical certificates that she had in her possession in order to file a grievance. However, the applicant stated that, despite her discussions with Mr. Renaud, ONA would not file a grievance or retain legal counsel on her behalf regarding the August 2007 return to work or the September 11, 2007 letter that she received from her Acting Manager.

12ONA submitted, and I agreed, that the true nature of the applicant’s case against it was that the Union and Mr. Renaud failed to represent her, and that this case falls squarely within the principles articulated in the Tribunal’s decision in Arias v. Spanish Speaking Peoples, 2009 HRTO 1025.

13The failure to represent a union member is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the employer. In Traversy v. Mississauga Professional Firefighters Association Local 1212, 2009 HRTO 996, the Tribunal stated:

(….) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

14In the instant Application, ONA participated in each of the meetings with the applicant and the Hospital concerning both the complaint about the June 12, 2007 incident and her return to work on August 27, 2007 and had regular communication with the applicant. The decision regarding the applicant’s complaint against her co-worker was one solely within the authority of the Hospital to make and therefore, ONA could not be a partner with the Hospital in the decision. ONA submitted that Mr. Renaud inquired about the Hospital’s investigation and was satisfied with the steps that were taken, including the review of the co-worker’s interaction.

15In this case, the applicant has not asserted that ONA or Daniel Renaud failed to act or provided inadequate representation as a result of her disability. While the applicant may have felt that she had no choice but to return to work on August 27, 2007 ONA submitted that the return to work was fully canvassed at the meeting on August 22, 2007 with all the parties and that ONA spoke with the applicant following the meeting to encourage her to seek further medical documentation to support a stress leave. In addition, ONA stated that it was undisputed that the applicant continued to remain off work after August 27, 2007 and received full sick pay and benefits and that LTD benefits were only forthcoming after ONA filed a grievance and the applicant filed an appeal with the insurance carrier.

16The applicant has not met the threshold for establishing a prima facie case of discrimination in this case with respect to the ONA. Even assuming the applicant’s facts to be true, I do not find that ONA’s actions or its decision not to file a grievance with respect to the June 12, 2007 incident, the circumstances surrounding the applicant’s return to work on August 27, 2007 and the follow-up letter from Ms. Huneault on September 11, 2007 were based on discriminatory factors or any differential treatment of the applicant in violation of the Code.

Decision

17The Application is upheld in part. I have found that the Hospital did not discriminate against the applicant with respect to any of the allegations raised regarding how the Hospital dealt with the June 12, 2007 incident that occurred between the applicant and her co-worker. I have also concluded that the Hospital has shown that it met its duty under the Code to accommodate the applicant in 2006 and 2007 and that there was no evidence of harassment or differential treatment of the applicant because she was assigned modified duties. However, I have concluded that the Hospital has failed to establish that it accommodated the applicant to the point of undue hardship when a decision was made to place the in the LMR program commencing in October 2009. What follows are my reasons.

Credibility

18The applicant testified on her own behalf at the hearing. On behalf of the respondent Hospital, testimony was provided by the following Hospital administrators: Denise Picard-Stencer, Clinical Manager for the Neurosurgery Unit (“F7”) in 2006 – 2007; Heidi Martin, Human Resources Manager; Rochelle Fowler, Manager of Occupational Health Nursing of the Occupational Health Safety and Emergency Preparedness Department (“OHSEP”).

19In deciding this Application, it was necessary to assess the credibility of each witness in order to determine which story makes the most reasonable sense in all of the circumstances. Assessing credibility is not simply an exercise of listening to oral testimony of witnesses and observing their demeanour to decide who appears to be the most truthful. Instead, assessing credibility involves the consideration of a variety of factors.

20In Shah v. George Brown College, 2009 HRTO 920, the Tribunal summarized its approach to assessing credibility at paras. 13 and 14 as follows:

One of the most often cited cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

(…) opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

In addition to the factors and approach highlighted in Faryna, corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties, will be relevant considerations in assessing credibility. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party’s case.

21Furthermore, other factors the Tribunal has considered in assessing credibility include the internal consistency of a witness’s evidence, inconsistencies and contradictions in relation to other witness’s evidence and observations as to the manner in which the witness testified. See Cuglari v. Clubine, 2006 HRTO 7.

22Below is a summary of the facts and witnesses’ testimony followed by an analysis of their credibility considering the factors outlined in the Tribunal’s case law that I have cited.

The Facts

23The Ottawa Hospital is a public hospital that services the population of Ottawa and surrounding area with a complete range of health care services. The Hospital is one of Canada’s largest teaching hospitals and the second largest acute care hospital in Canada with approximately 1,153 beds plus a number of outpatient services at three different sites. The Hospital employs approximately 12,000 employees.

24The applicant was hired by the Hospital as a part-time RN on June 26, 2000 and became a full-time employee on July 21, 2001 primarily working as a staff nurse on F7. The applicant has approximately thirty years of nursing experience from working in hospitals in both China and Canada. Until the fall of 2006, the applicant was assigned a twelve hour shift rotation schedule covering both day and night shifts. The applicant is a member of the Ontario Nurses’ Association (“ONA” or the “Union”) which is the certified bargaining agent for approximately 3,600 Hospital employees.

25There is no dispute that the applicant has a “disability” within the meaning of the Code. The applicant suffers from upper and lower back workplace injuries initially sustained in 2004 and re-injured in 2005 and 2007. Commencing in the summer of 2004, the applicant had been placed on modified duties. On August 23, 2006 the WSIB advised the Hospital that the applicant had a permanent impairment to her lower back. Subsequently, on October 25, 2006 WSIB further notified the Hospital that the applicant’s permanent impairment also affected her upper back and confirmed that the applicant could work subject to the following precautions: avoid heavy and/or repetitive lifting, trunk movements and bending and avoid heavy pushing or pulling against resistance.

26Following the WSIB’s determination of the applicant’s permanent impairment, the OHSEP department staff began a new assessment to determine more individualized restrictions for the applicant. The applicant was reassessed by the OHSEP physiotherapist. The applicant also provided a medical certificate from her physician stating that the she could only work eight hour shifts for a period of three months. The hospital assigned the applicant with eight hour shifts, five days a week. Other restrictions that were put into place were: no lifting over 10lbs; no sustained forward flexion of the back; no patient transfers or repositioning; sitting, standing and walking as tolerated; no push or pull; light nursing duties per tolerance; paperwork; hour shifts as per GP; no patient assignments; no long dressings. Commencing in July, 2006 the applicant continued working in F7 in a temporary position that met her physical restrictions.

27On November 8, 2006 the applicant, her manager, representatives from OHSEP and ONA met to discuss the process to find her a permanent accommodation. The minutes from that meeting and the testimony of Ms. Fowler confirmed that the Hospital’s permanent accommodation process and the LMR Program were explained. The applicant was advised to send her resume to Shauney Donoghue, OHSEP’s Disability and Management Coordinator, and was encouraged to look at the job board and apply for positions even if she did not meet the bilingual requirement component.

28In February and March 2007 the applicant applied for three different RN vacancies in the Eye-care Centre, Pre-Admission Surgery and B5 Medicine. The applicant did not receive an interview request for any of these job postings. The applicant was also asked in March 2007 to consider applying for a position in the Special Care Nursery because the applicant had previous experience. The applicant advised Ms. Donoghue that because the position required reaching over her upper back, she was not interested in the position.

29On April 24, 2007, the Hospital scheduled a Functional Capacity Evaluation (“FCE”) for the applicant in compliance with the Hospital’s Policy at the time to gather additional objective information regarding an employee’s limitations and restrictions. The applicant agreed to and was evaluated by the company Action Plus Physiotherapy in July, 2007. She admitted that she agrees with the conclusions reached in the FCE.

30Following an incident between the applicant and a co-worker on June 12, 2007, the applicant was off work on a medical leave of absence. She returned to work, the circumstances of which are in dispute, on August 27, 2007 but left again that day due to medical issues. The applicant was then on a medical leave of absence for depression and in receipt of long term disability payments until July 26, 2009. She was then placed in a gradual return to work program in which she was temporarily assigned a day shift position in the Neurology Clinic which was scheduled to end on October 12, 2009. This position accommodated her physical restrictions as determined by the FCE completed by Action Plus Physiotherapy in 2007.

31During the period between July 26, 2009 and October 1, 2009 the applicant was considered for a number of positions as part of the search for permanent accommodation. However, for the reasons outlined below, she was not considered as a suitable candidate to be interviewed.

32On October 1, 2009 the applicant was advised by the Hospital that they were not able to find suitable permanent accommodation and that a decision had been made by WSIB that she would begin the LMR program. The Hospital maintains that they ended the applicant’s temporary position in the Neurology Clinic on October 1, 2009 rather than October 12, 2009 so that she could focus on the LMR program.

33In December 2009, the applicant applied for five nursing positions within the hospital but was not contacted regarding these applications. The applicant found part-time employment as a RN at a private clinic in January 2010.

The Hospital’s Accommodation Process

34Rochelle Fowler testified that in any given year at the Hospital there are between 400 to 600 employees requiring temporary accommodation and between 40 to 60 employees who require permanent accommodation to meet limitations and restrictions. On average the Hospital finds permanent accommodation for 25 employees each year. Ms. Fowler also stated that the profession of nursing has become very specialized and physically demanding. Due to the hospital’s staffing requirements for nurses and 24 hour patient care, there are not many eight hour shifts available for nurses.

35In terms of temporary accommodations, managers receive notification from OHSEP regarding an employee’s specific restrictions and meetings are held to determine a plan to accommodate an employee. The accommodations and the employee’s restrictions are reassessed regularly so that an employee will be reintegrated to regular duties in accordance with the accommodation plan and the employee’s restrictions.

36Permanent accommodations are determined over a longer period of time and involve participation in the process of the employee in question, the appropriate union, OHSEP, the manager and the director. Ms. Fowler testified that the search for permanent accommodation is a nine month process in which the Hospital looks at the employee’s own job, then at the Vice President level whereby the Directors are asked to search their own portfolio for a vacancy.

37For permanent accommodations of Nurses the Hospital searches for vacant Nursing positions to determine if there is a match for the employee’s qualifications for a particular position and to ensure that the position will satisfy the employee’s restrictions. Employees who are seeking permanent accommodation are given priority in filling vacancies at the Hospital.

38Other than positions in units that require specific additional specialized training, the Hospital does not provide additional training or upgrading as part of the accommodation process. Examples of such additional training were provided with respect to the Intensive Care Unit which requires all nurses, notwithstanding their prior experience, to participate in a 14 week training program and the Dialysis Unit which involves a 7 week training program. In all other circumstances, nurses assigned to a unit through the accommodation process receive orientation and are often provided with a gradual work-hardening process to accommodate and ease the transition back to work. The Hospital does not provide cross-training of nurses and there was no evidence to suggest that re-training or cross-training of nurses is standard practice in the Canadian health system.

39Ms. Fowler explained that the OHSEP Disability Management Coordinator reviews every job posting within the organization and if there is a vacant position that looks like it might be compatible for an employee seeking permanent accommodation, the department or unit manager is contacted and is required to place the posting on hold. While an employee seeking permanent accommodation is advised about this process, that employee may not always know when a manager is contacted by OHSEP and when a resume is forwarded to a manger for review. During this process, no other candidate may be considered by the manager until the employee’s resume is reviewed to determine if the employee meets the requirements and qualifications of the position. If the employee meets the requirements of the position, the manager requests an interview of the employee and works with OHSEP to determine if the vacant position is a match for the employee’s limitations and restrictions.

40Ms. Fowler also testified that the Hospital works closely with the WSIB, in the case of a workplace injury, and meets on a number of occasions with the employee, the appropriate union and manager to discuss concerns or issues with respect to finding permanent accommodation. Ms. Fowler further noted that within the Hospital there are not many eight hour positions available and that it is difficult to accommodate eight hour shifts which do not involve patient transfers.

Issues on F7 Regarding Modified Workers

41The applicant alleged that when Ms. Picard-Stencer became the Clinical Manager on F7 her goal was to clear-out the modified situation in the unit and that Ms. Picard-Stencer treated the applicant and other modified workers differently and in a discriminatory fashion. In addition to the June 12, 2007 incident, the applicant claimed that her co-workers behaved negatively towards her because of the fact that she was on modified duties and that the relationship between regular and modified nurses was very hostile. In her testimony, the applicant claimed that one of her co-workers who was not a nurse, Ms. Hussein, stated that she hated modified workers and that all injuries of modified workers are false. Ms. Picard-Stencer claimed that the applicant never raised Ms. Hussein’s comments with her. Ms. Fowler also stated that Ms. Hussein had been assigned modified duties on eight different occasions since 2002.

42There was no dispute that when Ms. Picard-Stencer became Clinical Manager of F7 10% of the nurses were on modified duties and many of whom were permanently accommodated. Ms. Picard-Stencer stated that this percentage was a high level within the hospital for that type of unit. She testified that a “clearing-out” of modified workers from F7 was neither a mandate nor a priority when she assumed the position as Clinical Manager. Ms. Picard-Stencer stated that as she observed her staff over time in her new position, she perceived that there was some resentment between regular and modified nurses in the unit. She explained that she sensed that the nurses who were on modified duties were frustrated because F7 was a busy unit and they wanted to contribute and she believed the modified nurses could sense resentment from their peers. She noted that she observed regular nurses and modified nurses sitting separately in the lunch-room. Ms. Picard-Stencer clarified that the resentment she noted was not between ONA and the CUPE bargaining unit, of which Ms. Hussein was a member.

43Ms. Picard-Stencer testified that because of her observations she decided at one of her monthly staff meetings in 2006 to review the Hospital’s process of accommodation and its obligations to accommodate employees who have work restrictions. She also met with each modified worker, including the applicant, in order to review individual restrictions and to review work assignments. From her perspective she stated that she wanted to ensure that nurses on modified duties were assigned meaningful work within the stated restrictions and were able to contribute to the unit and overall patient care. Ms. Picard-Stencer also testified that she did not consult with the Human Resources department about issues involving modified nurses because she believed that her approach was working positively and she observed more cooperation and a reduction in resentment between nurses on F7.

44In late 2006 and early 2007, Ms. Fowler was requested by Human Resources to present training sessions to all employees on F7 with respect to the duty to accommodate disabilities in order to re-affirm their understanding of the Hospital’s obligations as well as their role in supporting co-workers. Ms. Fowler testified that she made two presentations in F7 so that she would be able to meet with all employees assigned to different shifts. In cross-examination, Ms. Fowler stated that she was asked by the Human Resources department to provide training, for educational purposes, to F7 and other departments in the Hospital in which there were a number of employees on modified duties. She was not told by Human Resources or by Ms. Picard-Stencer that there was any issue in F7 with respect to modified workers.

Temporary Accommodation 2006 and 2007

45During the time-period that the Hospital was searching for permanent modified duties, the applicant was assigned temporary work as a nurse in the F7 unit. She was assigned eight hour day shifts five days per week and primarily focussed on Ward Clerk duties. Denise Picard-Stencer testified that the applicant had been assigned Ward Clerk duties by the previous manager and that she continued to assign the applicant with Ward Clerk and other meaningful work including projects to assist the unit which required the applicant to use her experience as a bed-side nurse and which would alleviate the workload for other unit nurses.

46Even though the applicant agreed that this temporary assignment met the physical requirements for modified duties including eight hour shifts she felt that she was not being provided meaningful work doing Ward Clerk duties for which she received no training. She also stated that she was not allowed to give medications or administer drugs intravenously to patients. The applicant agreed however, that the College of Nurses regulations states that only the nurse assigned to a patient is permitted to administer medication in order to monitor patients and reduce the chance for error in medication dosages.

47The applicant’s issues with Ms. Picard-Stencer related to how she believed she was treated as a modified employee. The applicant took issue with the fact that Ms. Picard-Stencer asked her once to move office supplies that the applicant claimed was outside her restrictions in terms of lifting and repetitive movement. While Ms. Picard-Stencer did not recall the particular incident, she stated that she would not have asked the applicant to do something outside her restrictions and that if the applicant had raised a concern she would have told her to take her time and move things one at a time as needed in order to meet her restrictions. The other circumstance that the applicant raised was an instance when she recalled Ms. Picard-Stencer asking her to help out with a patient transfer. The applicant recalled that she explained that she could not assist due to her restrictions but agreed that Ms. Picard-Stencer did not force her to help. The applicant did note, however, that she recalled Ms. Picard-Stencer walking away with an “angry face”.

Request for Time-off to attend Tai Chi Class

48The applicant stated that in November, 2006 she asked Ms. Picard-Stencer to switch her shift from a Saturday to a Thursday so that she could attend a Tai Chi class but that this request was denied because she was on modified duties. The applicant testified that she was attending Tai-Chi classes to help her back injury as recommended by Mr. Eric Girouard, a physiotherapist at the Hospital. According to the applicant she had never encountered a problem switching shifts prior to Ms. Picard–Stencer’s arrival. Ms. Picard-Stencer stated that she did not view this as a medical appointment and told the applicant, like any other nurse in the unit, that she could switch shifts on her own or use a vacation day if she wanted to attend the class. Ms. Picard-Stencer also told the applicant that since she was scheduled above-quota for the unit, she did not have any difficulties with the applicant re-arranging her schedule. On the day in question, the applicant attended the Tai Chi class and used four hours of vacation time for that purpose. After the class, she returned to the Hospital to complete her shift.

Claim for Evening Shift Premium

49During the period of temporary accommodation in 2006 and 2007, the applicant was assigned an eight hour day shift between 8:00 a.m. and 4:00 p.m. She claimed that prior to Ms. Picard-Stencer becoming her manager; she was paid an evening shift premium for hours worked beyond 3:00 p.m. According to the applicant she did not receive a shift premium after November 18, 2006 and claimed that the decision to stop the shift premium was made by Ms. Picard-Stencer because the applicant was assigned modified duties. The applicant agreed that she did not grieve the adjustment made by the Hospital to stop paying shift premiums.

50Ms. Picard-Stencer did not recall discussing shift premiums with the applicant. Heidi Martin, the Human Resources Manager, testified about the Evening Premium provision of the Collective Agreement between ONA and the Hospital. She also noted that it is not uncommon for the Hospital payroll department to make corrections if pay stubs have been calculated incorrectly and that any evening shift premium that was paid to the applicant for her 8:00 a.m. – 4:00 p.m. shift was paid in error. Article 14.10 of the Collective Agreement, in place in November 2006, provided that a shift premium is payable when an employee’s hours fall within the hours defined as either evening or night shift provided such hours exceed two hours if worked in conjunction with the day shift; 7:00 a.m. - 3:00 p.m. as defined in the local collective agreement. Ms. Martin clarified that even though the applicant’s shift of 8:00 a.m. – 4:00 p.m. overlapped the evening shift (3:00 p.m. - 12:00 a.m.) by one hour, the applicant was not entitled under the terms of Article 14.10 of the Collective Agreement to receive a shift premium because her hours of work did not exceed two hours in conjunction with her scheduled day shift. In order for the applicant to be entitled to a shift premium, she would have been required to work past 5:00 p.m., being two hours into the evening shift. Therefore, since her shift ended at 4:00 p.m. Ms Martin explained that the applicant did not qualify for the shift premium. Ms. Martin further stated that an employee does not lose her entitlement to collect a shift premium if she is on modified duties or schedule but emphasized that entitlement is directly linked to working two hours past 3:00 p.m. in accordance with Article 14.01.

Request for Sick Leave for Medical Appointment

51In early May 2007, the applicant asked Ms. Picard-Stencer if she could take a sick leave day on May 7, 2007 in order to attend an ultrasound and doctor’s appointment relating to an infection that was causing her discomfort. The applicant was told to use a vacation day or switch shifts and claimed that Ms. Picard-Stencer denied her the time off with pay because the applicant was assigned modified duties. According to Ms. Picard-Stencer and Ms. Martin the Hospital policy requires all employees to book medical appointments outside of work hours and acknowledged that the Hospital will endeavour to accommodate medical treatment. Ms. Picard-Stencer also stated that employees are permitted to switch shifts in order to attend a medical appointment. Ms. Martin testified that if a nurse falls ill during a shift, she will be permitted to leave due to illness and would receive sick pay for the time off.

June 12 2007 Incident and Investigation

52On June 7, 2007 the applicant was in the F7 staff lounge sitting with her foot resting on a table when she was approached by Ms. Hussein and told that it was against Ms. Hussein’s Somali culture to place a foot upon a table that is used for dining. According to the applicant she told Ms. Hussein that she would respect her culture if it is true but if not, she told Ms. Hussein not to bring her Somali culture to Canada. Following this exchange Ms. Hussein left a note on the notice board in the lunchroom which stated “it’s not nice to put your foot on the table when people are eating. Thanks for understanding”.

53On June 12, 2007, the applicant was again sitting in a similar manner in the F7 staff lounge with another nurse when she was approached by Ms. Hussein who told her that the way she was sitting was not respectful. Ms. Hussein then forcefully removed the table out from under the applicant, causing injury to the applicant’s back.

54The applicant reported the incident to an OHSEP officer on June 12, 2007 immediately after the incident. The applicant also applied to WSIB with respect to her injury and was deemed fit to return to work after three days.

55The applicant filed a formal complaint to Ms. Picard-Stencer on June 13, 2007. The applicant also advised Ms. Picard-Stencer by letter dated June 19, 2007 that she would not be returning to work, pursuant to her rights under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 until management takes action to resolve the physical harassment case that she filed against Ms. Hussein. The applicant claimed that she feared another verbal and physical attack from Ms. Hussein and that she was seeking an apology from her and a commitment not to repeat the behaviour. On June 20, the Hospital informed the applicant that it would be investigating the incident.

56On June 26, 2007, following its investigation, the Hospital met with the applicant and her ONA representative to review its findings which were summarized in a letter to the applicant. The Hospital advised that it determined that the situation was not one of assault or physical harassment because it was concluded that Ms. Hussein pulled the table rather than kicked it. It was also discovered that both incidents involved disrespectful communication between the applicant and Ms. Hussein. The Hospital reminded the applicant that she had made references to Somali culture by stating to Ms. Hussein “We are not in Somali’s culture. We are in Canada and I am not going to follow it.” In addition when asked about the statement the applicant responded by saying, “Is it Somali culture to kick a table out?” The Hospital advised the applicant that her behaviour was not acceptable and would not be tolerated. The applicant was also advised that she was required to participate in courses on cultural diversity and conflict resolution offered by its Learning and Development Department. The applicant was also reminded that she had access to the confidential Employee Assistance Program offered by an external provider.

57Not known by the applicant, Ms. Hussein also received a letter dated June 29, 2007 which resulted in Ms. Hussein being required to participate, by December 21, 2007, in the same culture diversity courses as the applicant because of the disrespectful communication between the two employees. In her letter, the Hospital advised Ms. Hussein that the physical harassment complaint centered on the table being kicked away. Because the Hospital determined that the table was pulled away, it could not conclude that it was a physical assault or harassment. Ms. Hussein was also warned about removing furniture in the staff lounge when others are using it doing so could lead to physical harm of a co-worker. The offer of access to the Employee Assistance Program was also made to Ms. Hussein.

58On June 27, 2007 the applicant replied by letter to Ms. Picard-Stencer which stated that she felt that the conclusions reached by the Hospital were rushed and unfair. The applicant claimed that the Hospital did not address the severe back pain that she suffered from the incident and did not adhere to or apply the definition of harassment as defined by the Hospital’s Code of Conduct. The applicant questioned how the Hospital could find that Ms. Hussein’s conduct was acceptable even if it determined that the table was not kicked away.

59A final response from the Hospital to the applicant was provided on July 3, 2007 in which the Hospital stated that it considered the matter closed. Ms. Picard-Stencer reviewed that the Hospital investigated the incident by interviewing both employees and all witnesses. While recognizing the applicant’s physical pain, the applicant was also advised that it determined that Ms. Hussein did not intend to cause bodily harm. The applicant was again reminded that the statements that she made to Ms. Hussein were disrespectful and contravened both the Hospital’s Code of Conduct and the Code and that the Hospital has a responsibility to ensure that the workplace is free from any type of racial harassment. The requirement to participate in the culture diversity and conflict resolution course was reiterated with a requirement that it be completed before December 21, 2007. Ms. Picard-Stencer testified that she learned that Ms. Hussein attended the courses but that the applicant did not attend.

60The applicant disagreed with the Hospital’s conclusions and did not return to work until August 27, 2007. During the period between June 13 and August 27, 2007 the applicant was under doctor’s care and provided the Hospital with various medical certificates extending her leave of absence. The Hospital was not aware before August 27, 2007 that the applicant was seeking medical assistance regarding anxiety and depression.

61On August 9, 2007 the Hospital received a Doctor’s note from Dr. Lo dated July 31, 2007 which stated that the applicant was on sick leave until August 31, 2007. An Attending Physician Statement Report was also provided by Dr. Lo on August 10, 2007 which noted that the applicant’s medical problems were related to a work conflict and recommended the importance that there be an administrative resolution to the work-related conflict. In terms of prognosis for safe return to work, Dr. Lo indicated that the applicant was not ready to return to regular duties and suggested that the return to work date be reassessed after three weeks. With respect to returning to modified duties, he marked this section of the report as not applicable.

62On August 20, 2007 the Hospital sent a letter to Dr. Lo advising that the incident between the applicant and her co-worker had been investigated and that a resolution had been proposed, which was not accepted by the applicant.

August 22, 2007 Return to Work Meeting

63By July 25, 2007 the Hospital was in receipt of the applicant’s FCE report prepared by Action Plus Physiotherapy, the results of which were agreed to by the applicant. Ms. Fowler testified that she contacted the applicant on August 8, 2007 to arrange a meeting to discuss the results of the FCE report and a return to work plan. Ms. Fowler’s notes from that phone call indicate that she advised the applicant that she wanted to set-up a meeting to discuss the FCE but that the applicant stated that she did not want to attend a meeting without Daniel Renaud, the ONA representative and that she wanted her June 13, 2007 complaint re-opened. The applicant also advised Ms. Fowler that her sick leave had been extended to August 31, 2007. Ms. Fowler asked the applicant to provide a medical certificate which was provided; Dr. Lo’s July 31, 2007 note faxed to the Hospital on August 8, 2007. As mentioned above, the Hospital also was in receipt of a second note from Dr. Lo on August 10, 2007.

64After making arrangements with ONA and the applicant a meeting was held on August 22, 2007. The applicant stated that at the meeting she asked to re-open the June 12, 2007 investigation but that her request was denied because she was not allowed to appeal the Hospital’s decision. Additionally, she claimed that, despite the sick leave end date of August 31, 2007, she not only was being forced to return to work on August 27, 2007 but that she would be assigned work that did not meet her restrictions in terms of lifting and night shifts. The applicant testified that she while she agreed that the minutes of the August 22, 2007 meeting state that the dates are available for modified work, she felt that she was required and had no choice but to attend work on August 27, 2007.

65According to Ms. Fowler, the decision to begin discussions about the applicant returning to work was based on the fact that the Hospital concluded that the June 12, 2007 incident had been finalized and that the last Attending Physician’s report dated August 10, 2007 remarked that the return to work date hinged on the resolution of that conflict. The Hospital also had confirmation from WSIB that the applicant was fit to return to work and had the results from the FCE to assist in determining the appropriate work assignment and modification for the applicant. Furthermore, while the applicant disagreed with the Hospital’s determination of the June 12, 2007 incident, she had not filed an appeal or filed a grievance both of which were within her right to do and which could not be denied by the Hospital.

66Ms. Fowler’s notes from the August 22, 2007 meeting reflect that the FCE was reviewed at length with the applicant and ONA and that it was concluded that starting August 27, 2007 the applicant could continue to be accommodated temporarily in F7 based on eight hour shifts, rotating between days and nights, with no lifts or transfers of patients. The minutes of that meeting also note that the applicant would be an extra nurse on F7 and would be helping with IV’s and other duties and would be separated from Ms. Hussein for the first few shifts back. It was also determined that the applicant would be partnered with another nurse to assist with lifts and transfers. The minutes also state that the applicant was advised that modified work was available as of August 27, 2007 for the day shift over a two week period after which she would rotate to night shifts. It should be noted that the medical restrictions at the time only limited the applicant to eight hour shifts but did not specify only day shifts. It was also noted that the applicant would discuss this arrangement with ONA and then would advise the OHSEP office about her return to work. Following this meeting there was no further communication from the applicant or ONA. The applicant attended work the morning of August 27, 2007.

August 27, 2007 Return to Work

67When the applicant arrived at work on August 27, 2007 she advised the acting manager Lynne Huneault that she was not feeling well and that she had been ordered to return to work and was not happy with the situation. Since the applicant had not been assigned a schedule, she was asked to work with another nurse who had been assigned the care of a single patient. Soon after the start of her shift, when Ms. Huneault was in another area of the Hospital, the applicant left the unit. Ms. Huneault was paged by the applicant who advised she had a doctor’s note that she would fax to OHSEP. The applicant did not inform Ms. Huneault what the note said. When Ms. Huneault arrived back at F7 she was told that the applicant had left work at 8:15 a.m. without permission from the acting manager or OHSEP. The doctor’s note, which was dated August 23, 2007, was faxed to OHSEP at approximately 8:06 a.m. on August 27, 2007 and it advised that the applicant should be off work for an indefinite period of time. Due to confidentiality, the medical reason for the applicant’s leave of absence was not shared by OHSEP with Ms. Huneault.

68On September 11, 2007 Ms. Huneault forwarded a letter to the applicant advising her that the manner in which she returned to work on August 27, 2007 was not acceptable. In addition, Ms. Huneault stated that withholding of important information regarding fitness to return to work was unacceptable, unprofessional and contrary to the applicant’s obligations under the collective agreement. The applicant was reminded of the expectation that staff is to be cooperative and respectful regarding all absences and return to work plans. She was also forewarned that any further concerns regarding lack of cooperation and compliance with policies will result in the Hospital considering administrative and or disciplinary options.

69In her testimony, the applicant explained that she had an appointment with a psychologist on August 23, 2007 following the August 22, 2007 meeting. She testified that she was very stressed and depressed and that she was worried about discriminatory treatment from the Hospital and her co-workers. Although the doctor had provided the note on August 23, 2007 the applicant testified that she did not provide it to the Hospital before August 27, 2007 because she was afraid that the Hospital would not accept it. She stated that ONA refused to file a grievance on her behalf with respect to the June 12, 2007 incident and she feared that she would be dismissed if she did not return to work on August 27, 2007.

2009 Return to Work

70As determined by the LTD provider, Sunlife, the applicant’s gradual return to work program listed restrictions that were provided by WSIB in 2006, the FCE in 2007 and a new restriction added by the applicant’s physician in 2009 which required the inclusion of eight hour days shifts only. Sunlife also agreed to maintain the applicant’s benefits up to and including September 30, 2009.

71A return to work meeting was held on July 22, 2009 with the applicant, members of Human Resources, ONA, Sunlife, and Shauney Donoghue. The applicant was informed that, at that time, no permanent accommodation had been found. It was decided that the applicant would be an “extra” Registered Nurse in the Neurology Clinic for reintegration. She was scheduled for eight hour day shifts on a graduated basis and it was agreed that she would be assigned a buddy to assist with tasks required that were outside her restrictions. This was a temporary accommodation while the Hospital continued to search for permanent accommodation. There is no dispute that this temporary position met all of the applicant’s restrictions.

72The return to work plan, which was signed and agreed to by all the parties, began on July 27, 2009 and was scheduled to end on October 12, 2007. One of the terms of the Gradual Return Plan noted, however, that Ms. Fowler advised that after the 12 weeks in the Neurology Clinic, the applicant would continue in the accommodation process again.

73During this period of temporary accommodation, there was no vacancy in the Neurology Clinic. The evidence demonstrated that the Neurology Clinic was busy requiring employees to often work overtime hours and that the Hospital regularly hired part-time and retired RN’s to cover work in the Clinic. Ms. Martin clarified that the overtime in the Neurology Clinic was not out of the ordinary and that retired and part-time workers were widely hired on a casual basis throughout the Hospital.

74A further meeting was held on August 11, 2009 with the applicant, ONA, Ms. Fowler, the Neurology Clinic manager and OHSEP. The purpose of the meeting was to review the accommodation process. The applicant was encouraged to apply through the Hospital’s internal application process to any vacancies that she believed she was qualified for and was told that employees seeking permanent accommodation are given a priority. During this meeting the applicant expressed concerns that managers were asked by OHSEP and Human Resources to review her resume but were not told about her limitations and restrictions. Ms. Fowler explained that OHSEP’s rationale for withholding that information until later in the hiring process is to ensure that the Hospital meets its obligations under the Code and to ensure that managers focus solely on a candidate’s qualifications without making assumptions about the candidate’s ability to do the job because of a disability.

75The applicant was advised by Ms. Fowler that OHSEP would be going through a three month organizational search for permanent accommodation again because the applicant had been on LTD and may not have been able to apply for jobs during that time.

76Other meetings were held with the applicant in late August and early September 2009 as follow-up to the accommodation process. The applicant was also in regular communication with Shauney Donoghue who was responsible for reviewing job postings and forwarding the applicant’s resume where it appeared that there may be a job match. Between July 22, 2009 and October 1, 2009 OHSEP screened five RN vacancies and sent the applicant’s resume to the appropriate managers for review. In four of the vacancies, it was determined that the applicant did not have the necessary experience or qualifications as noted below. With respect to the fifth vacancy, the Hospital determined that the applicant could do the essential duties of the job within her limitations and restrictions; however, the vacancy was withdrawn for operational reasons.

77On August 12, 2009 the applicant’s resume was forwarded for consideration with respect to a RN job vacancy in the Colposcopy/Gynecology-Oncology Unit. One of the basic requirements for this position was proficiency in speaking and comprehending both English and French (A-level). The posting noted that applicants who do not meet the bilingualism requirement are eligible to apply for the position and may be considered if there are no other applicants who meet all of the requirements. The manager of this unit declined to interview the applicant on the basis that she did not meet the required qualifications to fulfill the position. Specifically, while recognizing the applicant’s diverse nursing experience including Obstetrics, the manager noted that the applicant’s resume did not include any knowledge, skill or experience in gynecology, colposcopy or ambulatory care. The manager noted that the position was a bilingual position requiring these qualifications because the Unit houses the regional Cervical Cancer Screening Program and Diagnostic Assessment for gynelogical cancers. During her testimony, the applicant stated that she had experience in gynecology and cancer treatment that she gained from her work in China.

78On August 13, 2009 the applicant’s resume was forwarded for review with respect to a RN position in the Psychiatric Mental Health Unit. The email attaching the applicant’s resume noted that the applicant did not have any Psychiatric experience but requested the unit manager to review her resume to see if she would meet the requirements of the position or if screened out to complete the Request for Permanent Accommodation Follow-Up Form for the Hospital’s records. The applicant was not asked for an interview for this position. The Follow-Up Form that was submitted by the Hospital was blank; however the applicant was notified by email on September 22, 2009 that she did not meet the basic requirement of having psychiatric experience for this position. At the hearing, the applicant testified that she had transferable skills for psychiatry because of her experience on F7 in attending to patients with brain and related mental health issues.

79On August 19, 2009 a reviewing manager for the Family Health Team Unit provided a Follow-Up Form with respect to a vacancy in the Family Health and Diabetes program in that Unit. The applicant was not offered an interview because she did not have any stated experience with diabetes care, management and patient education, or chronic disease management. In addition the manager noted that the applicant did not have two years’ recent community health or family practice experience, no stated experience working in interdisciplinary team, no stated knowledge or experience with quality improvement processes or initiatives, does not hold a baccalaureate in Nursing and does not meet the French language proficiency requirement.

80The other positions for which the applicant was considered were in the Hospital’s Dialysis Unit. Ms. Fowler testified that Dialysis is one of the areas in the Hospital which requires an extensive 7 week training program and therefore the applicant would not need particular experience in order to be qualified for a position in that Unit.

81In late July 2009, Ms. Donoghue asked the hospital’s physiotherapist, Eric Girouard, to review the requirements for the RN position in the Dialysis Unit in relation to the applicant’s restrictions. Mr. Girouard provided his comments in a memo dated July 29, 2009. Based on the applicant’s 2007 FCE and the WSIB precautions, Mr. Girouard noted concerns with respect to patient transfers, pushing the dialysis portable machine and sustained forward position during patient set-up for the dialysis machine. He also stated that he didn’t believe employees at high risk of injury should do dialysis portables because of the required pushing and because of the unpredictability of the patient waiting treatment. Mr. Girouard did not state, however, that the position was totally unsuitable for the applicant.

82On August 4, 2009 the reviewing manager for Dialysis Unit filed a Follow-Up Form indicating that she was not willing to interview the applicant and proceed to a trial of work. The manager explained that she was unable to determine from the applicant’s resume whether she possessed the required qualifications but that when she spoke with the applicant about the position the applicant declined to tour the unit and focussed on her back injury and permanent restrictions. According to the manager, the applicant described her limitations and commented that she didn’t think she could do the job.

83Notwithstanding the August 4, 2009 Follow-up Form, Shauney Donoghue raised the possibility of the applicant being considered for the RN position in the Dialysis Unit in the meeting on August 11, 2009. While the applicant believed that the position did not meet some of her restrictions, the Hospital felt it was worth examining the position duties to determine if there could be a job match for the applicant. However, the posting was removed prior to the Hospital taking any steps.

84Another vacancy became available in the Dialysis Unit in early September 2009. On September 4, 2009, Ms. Donohue forwarded the Physical Demands Analysis (“PDA”) for the RN Position, Nephrology, to Action Plus Physiotherapy asking that a comparison be done between the applicant’s FCE and the PDA for the Dialysis position.

85A meeting was held with the Hospital, the applicant and ONA on September 10, 2009 to discuss the prospect of the Dialysis position. The applicant claimed that both Shauney Donoghue and Rochelle Fowler insisted that she take the position in the Dialysis Unit. The minutes from that meeting reflect that the Dialysis posting was under consideration for the applicant and that if the posting was suitable, the Hospital would seek input from the WSIB ergonomist to evaluate the duties of the position for suitability.

86On September 12, 2009 the applicant sent a letter, copied to the Hospital and ONA, to the WSIB claims adjudicator, Marc Huot, disputing that the Dialysis position met her restrictions because of the requirement for night shifts and shift rotation, overtime work and heavy lifting. She indicated that the Hospital insisted that she try the position notwithstanding her views and claimed that she felt that she has been unfairly treated by Hospital management in the disability accommodation process. The applicant stated that for the positions that she had applied, which she stated met her medical and physical restrictions, the Hospital created barriers by requiring unnecessary qualifications. The applicant requested confirmation in writing from WSIB if it is determined that she is fit to perform regular nursing duties in the Dialysis Unit. She also requested that WSIB perform, at minimum, a full-day assessment of her in order to provide a more accurate representation of her work performance in the Dialysis Unit.

87On September 14, 2009 the applicant was advised in an email from Shauney Donoghue that she had received a copy of the September 12, 2009 letter sent to Marc Huot. Ms. Donoghue also informed the applicant that the Dialysis posting had been cancelled by the manager. In addition she clarified to the applicant “in any case, as we stated at both meetings with you last week, we would not have proceeded to trial you in the job unless you were a physical match to it as determined by both Action Plus and the WSIB ergonomist”. The WSIB was also advised that the posting had been cancelled.

88The Hospital received a faxed copy of the September 10, 2009 report from Action Plus Physiotherapy on September 15, 2009. The report noted that the job match was performed based on the assumption that the applicant’s abilities have not changed since her FCE assessment in July 2007. The report concluded that the applicant would meet the critical job demands of the RN position in the Nephrology Department, with the exception of performing patient transfers as indicated in the original FCE report in 2007. On the basis of this report, on September 15, 2009 Ms. Donoghue advised that the applicant is a match to the Dialysis job except for rare transfers and requested Human Resources to hold any vacancies that occur before October 1, 2009.

89On September 22, 2009 the applicant sent an email to Ms. Donoghue and Ms. Fowler in which she remarked that she has been screened out of all the vacancies that do not require lifting. The applicant also noted that while she was not required to work in the Dialysis Unit due to the cancellation of the positing, she was of the view that the Hospital might continue to push her to work in that position if it became vacant again. She further stated that the report from Action Plus Physiotherapy was based on an evaluation performed in July 2007 which did not truly represent her current physical conditions, which in 2009 included that she work eight hours and days only, due to her medical situation. As a result the applicant requested that she have a new evaluation performed in order to have an accurate representation of her physical and functional capacities. The applicant reiterated that she had over thirty years of work experience as a nurse in various hospitals and therefore should be qualified for many positions at the Hospital. Lastly, she emphasized that she understood her responsibility to cooperate in the disability accommodation process to find a suitable permanent nursing position within her restrictions. The applicant claimed that because of the accommodation process she became stressed and contacted her doctor on September 23, 2009. She was placed on sick leave for one week due to return on October 1, 2009.

90The applicant contacted Human Resources on September 29, 2009 to inquire about the three postings that she had applied for in August 2009. She was advised by the receptionist that these positions had not been filled.

91On October 1, 2009 OHSEP held a meeting with the applicant, ONA, Human Resources, and representatives from WSIB including Trish Semenick, the Return to Work WSIB coordinator responsible for the LMR program. As background, the LMR program is provided by WSIB to assist workers in re-entering the labour market, either with the accident employer in a suitable job or to re-enter the labour market in a job that allows for greatest restoration of wages and is physically suitable for the worker. The time period for accessing the LMR process is a six years from the date of the initial work injury. The LMR process begins once an accident employer advises the WSIB that it cannot find suitable accommodation for a worker. However, the final decision to begin the LMR process is made by the WSIB.

92The first step in the LMR process is an evaluation by an external provider hired by the WSIB to review the worker’s work history, job duties and accomplishments, educational background, hobbies, interests and volunteer activities. Other evaluation tools that may be used include psycho-vocational evaluations, vocational/transferable skills or assessments and functional abilities evaluations. At the conclusion of the LMR assessment, the worker is advised of a Suitable Employment or Business (SEB) which describes a category of jobs that match skills and physical abilities, and which would provide the closest range to pre-accident earnings. Depending on the findings of the LMR assessment and the SEB, a decision will be made by the WSIB of whether or not a LMR plan is needed to assist the worker for re-entry into the labour market. If at any point during the LMR process a worker believes that suitable work is available with the accident employer, the worker is advised to contact the WSIB adjudicator and the LMR provider to discuss this possibility.

93At the meeting on October 1 2009 it was confirmed that there were no vacancies for the applicant and Ms. Fowler stated that the search process would continue until the end of October 2009. However, Ms. Semenick stated that the applicant had been referred to her for an LMR assessment and that next steps needed to be discussed because the deadline for referral for the applicant to participate in the LMR process was July 10, 2010, after which the applicant would not have the opportunity to access LMR. Not disputed by the applicant is the fact that it is WSIB who decides whether to provide an LMR plan.

94During the meeting the applicant informed the group about the information she received from Human Resources on September 29, 2009 confirming that the three positions were still vacant and questioned why she would not be considered as a suitable candidate for them. The applicant was advised that the receptionist she spoke with would not know the status or details of the postings. In terms of the requirement for recent experience for a position, the applicant was told that managers look for experience during the last two years. During testimony, it was confirmed that if a candidate did not possess two year’s prior experience because of absence, experience outside that time-frame would still be considered.

95The decision was made at the meeting that the applicant would be referred to the LMR program given that the employer had confirmed that there were no suitable vacancies available. Although the applicant’s Gradual Return to Work placement in the Neurology Clinic was scheduled to end on October 12, 2009 and she wished to remain there until the LMR program started, a decision was also made that the placement end immediately in accordance with the Hospital’s practice to end a temporary placement so that an employee can focus efforts on the LMR program. As a result of this decision, the applicant stopped working in the Neurology Clinic after the meeting concluded. The applicant testified that even though she was to start the LMR program she was advised by ONA to continue to search and apply for jobs within the Hospital and to keep WSIB informed.

96The applicant sent an email to Ms. Donoghue on December 8, 2009 requesting to be provided with details on how to access the Hospital’s internal website to search for employment opportunities. Ms. Donoghue responded to the applicant on December 15, 2009 and indicated while the focus of the LMR program is on re-education rather than job search; she would forward the applicant’s request to Ms. Fowler. There was no evidence from the Hospital that a response was sent to the applicant by Ms. Fowler or anyone else in Human Resources regarding information on gaining access to the Hospital’s internal website.

97The applicant applied for five different nursing positions that were vacant at the Hospital on December 15, 2009. These positions were in Surgical Day Care, Pre-Admission Unit, Eye-Care Centre, and two positions in the Infection Control Department. The applicant did not receive an interview for any of these positions nor did she receive any communication from the Hospital regarding her applications.

98On December 16, 2009 the applicant received confirmation from WSIB that the LMR assessment determined that she had the skills and abilities to perform the SEB of Nurse Supervisors and Registered Nurses. Based on the FCE, it was also determined that the applicant could perform the essential duties of nursing care with the restrictions of lifting and patient transfers.

99During cross-examination the applicant agreed that she did not have specific nursing experience in the following areas: psychiatry, eye-care, family health, surgical day-care, diabetes community care, SDU, or infection control. While not listed on her resume, she did comment that she had experience with gynecology and cervical cancer when she worked in a hospital in China and that she had worked as a community nurse with respect to diabetes care in 2005 and 2006 when she was accommodated as a visiting nurse due to her back injury. The applicant also admitted that she did not file grievances with respect to the requirements listed on the various job postings. She explained that after the interaction with ONA not filing grievances on her behalf regarding the June 12, 2007 incident, she didn’t believe that ONA would assist her with other grievances.

100The applicant claimed that given her thirty years of nursing and varied experience she had transferable skills that would make her a suitable candidate for the positions in question. In addition, the applicant believed that as part of the accommodation process, the Hospital should have provided additional training in order to provide her with the necessary and transferable experience.

101The applicant found employment on a part-time basis on January 19, 2010 as a RN at a private clinic working eight hour day shifts in pre and post surgical care. The applicant did not provide a PDA or a job description of her duties at that clinic but she testified that the duties and responsibilities of this position included patient admission and history, cardiac monitoring, administering medication, and post operation teaching. She claimed that the duties she performed at the clinic were similar to the duties required in both the Eye Care-Center and Surgical Day Care Unit positions that she applied for on December 15, 2009.

Analysis

Was the applicant subjected to discrimination and harassment because of her disability in 2006 and 2007?

102The applicant has the initial evidentiary burden of proving that a prima facie case of discrimination has occurred. Once the applicant has met this “threshold”, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory (see Ontario Human Rights Commission v. Simpsons Sears 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 and Chan v. Tai Pan Vacations, 2009 HRTO 273 Can LII at para. 38).

103The respondent argued that the applicant did not meet the evidentiary burden of showing a prima facie case of discrimination with respect to the alleged treatment by Ms. Picard-Stencer in 2006 and 2007 or with respect to the investigation and follow-up of the June 12, 2007 incident. Based on the allegations raised by the applicant I have found that she has met the initial evidentiary burden but I am satisfied based on my finding of the evidence that the Hospital has demonstrated that its actions or those of Ms. Picard-Stencer were not discriminatory.

104In terms of allegations of harassment the Tribunal’s jurisprudence has articulated the requirements for a finding of harassment, as follows:

• a course of vexatious behaviour;
• by an employer, employer’s agent or a fellow employee;
• that is known or ought reasonably to be known to be unwelcome; and
• is based on a protected ground under the Code

See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.).

105In addition to considering whether the harasser knew his or her behaviour was unwelcome, human rights tribunals also consider the perspective of the person alleging harassment when assessing whether a harasser ought reasonably to have known that the comments or conduct at issue was unwelcome. For example, it has been held that whether the harasser ought to have known that his behaviour was unwelcome depends on whether a reasonable person in the position of the person alleging harassment would find such conduct to be unwelcome and, if so, whether reasonable people in the respondent's position would know that to be the case; see Ghosh v. Domglas (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.).

106The evidence with respect to the circumstances of modified workers on F7 was that the Unit had approximately 10% of nurses on modified duties with some working under temporary accommodation and others assigned permanent accommodation. Although this percentage was a high level of modified workers for a Unit, there was no evidence to support the applicant’s claim that the general work environment on F7 and the relationship between nurses and modified nurses was very hostile.

107The evidence does not support the applicant’s assertion that when Ms. Picard-Stencer became the Clinic Manager of F7 it was her goal to “clear out” modified worker. I prefer Ms. Picard-Stencer’s evidence, which seems more probable, that as she became more acquainted with the Unit, she sensed some resentment between modified and regular nurses and that she took steps to meet with the nurses to remind them about the Hospital’s duties and their own obligations with respect to accommodation. She also met individually with each of the modified nurses, including the applicant, to discuss duties to ensure that all nurses were able to meaningfully contribute to the Unit.

108The applicant’s claim that her duties as a Ward Clerk were not meaningful and that she received no training was not substantiated. First, the applicant had been assigned Ward Clerk duties prior to Ms. Picard-Stencer’s arrival by her previous manager without complaint. In addition to the Ward Clerk duties, she had been assigned other administrative projects by Ms. Picard-Stencer that required use of her skills and expertise as an RN. Although the applicant may have been dissatisfied that she was not administering medications or IV’s in her testimony she confirmed her understanding and the rationale behind the College of Nurses’s requirement regarding administration of medication by nurses assigned to patients. Furthermore, there was no indication that from either the applicant or Ms. Picard-Stencer that when they met individually that the applicant raised any dissatisfaction with her modified work. I also believe Ms. Picard-Stencer that she would not have required the applicant to work outside her restrictions and the evidence established that when this was brought to her attention she did not expect the applicant to do so.

109While Ms. Picard-Stencer did not contact Human Resources because she did not view the situation involving modified nurses and regular nurses as critical, she testified that she was confident that her approach was working and stated that she observed a more positive interaction between regular and modified workers. The evidence provided by Ms. Fowler also showed that she was not aware of any issues involving modified nurses on F7 but that the Human Resources Department asked her to provide training sessions with all staff on F7 in the fall of 2007 for educational and training purposes about accommodation to F7 and other units in the Hospital which also had higher numbers of modified workers.

The Applicant’s Tai-Chi and Medical Appointment Request

110I do not find any connection between the applicant’s status as a modified nurse and Ms. Picard-Stencer’s decision to require the applicant to take vacation time or switch shifts in order to attend the Tai Chi class or to schedule a medical appointment on a day off work. The evidence of Ms. Picard-Stencer and Ms. Martin clarified that nurses regularly switch shifts to accommodate their particular schedules and that the Hospital Policy required staff to book medical appointments on a scheduled day off. While the Tai-Chi class was being attended by the applicant to help her back, Ms. Picard-Stencer did not know the applicant’s reason for attending Tai-Chi and did not consider it a medical appointment. She stated that she had no problem with the applicant attending the class during the Saturday shift because the applicant was above quota in terms of staffing the Unit. While the applicant claimed that her requests were denied because she was on modified duties, the evidence did not establish that the applicant was treated any differently than any other nurse in the Unit with respect to either of these requests.

Evening Shift Premium

111Having reviewed the language of Article 14.01 of the Collective Agreement between ONA and the Hospital, it is clear that the applicant was not entitled to an evening shift premium for the one hour worked after 3:00 p.m. because she did not meet the eligibility requirement of working two additional hours past the end of the regular day shift. Ms. Martin explained that the applicant had been paid in error and that it is not uncommon for such errors to be discovered by payroll. In addition, there is no basis to conclude that the applicant was either entitled to the evening shift premium under the Collective Agreement based on her eight hour shift of 8:00 a.m. to 4:00 p.m. or that she was denied an evening shift premium by Ms. Picard-Stencer because she was on modified duties.

The June 12, 2007 Incident

112The applicant argued that despite the Hospital’s attempt to minimize the resentment issues on F7, the hostility in the unit persisted and shaped the events that occurred between the applicant and Ms. Hussein. In closing argument the applicant also stated that she had reported concerns to OHSEP in the past.

113The evidence did not establish that the applicant had raised concerns about Ms. Hussein prior to June 12, 2007. The OHSEP meeting minutes referred to by the applicant date back to 2005 and in any event do not make any mention of concerns about the treatment of modified workers generally or any interaction with Ms. Hussein. In addition the applicant referred to a work–related injury log report from 2005 which is outside the scope of this hearing. In terms of the OHSEP work-related injury report on June 12, 2007, the notes state that the applicant explained that Ms. Hussein had pushed away a table that her foot was resting on and that Ms. Hussein was “attacking” her and that incidences of “attack” had occurred in the past with Ms. Hussein. The report also noted that the applicant was concerned about working with Ms. Hussein and that ONA would be notified regarding this issue.

114None of the notes, letters or emails with respect to the June 2007 incidents made reference to the applicant’s view that Ms. Hussein’s actions on June 7 and 12, 2007 were due to Ms. Hussein’s dislike of modified workers. Both Ms. Picard-Stencer and the applicant, in her cross-examination, confirmed this to be the case. However at the hearing the applicant said that Ms. Hussein often said she hated modified workers and that they are fake. Having considered Ms. Fowler’s statement that Ms. Hussein had been on modified duties on a number of occasions and had just come off modified duties in May 2007 I find that it is not credible that Ms. Hussein would make such remarks. In addition, considering Ms. Picard-Stencer’s testimony that the applicant had not raised Ms. Hussein’s alleged hatred of modified workers with her during the investigation process; I find that the Hospital considered that the focus of the applicant’s complaint related to an allegation of physical assault that began with a negative interaction on June 7, 2007 involving remarks about race.

115In terms of the Hospital’s investigation and follow-up of the June 12, 2007 incident, I have determined that the applicant was not treated differently because she was assigned modified duties. When the Hospital investigated the applicant’s complaint it discovered that the applicant made remarks to Ms. Hussein about Somali culture, which the Hospital found disrespectful and inappropriate. The Hospital also concluded that the way Ms. Hussein acted was unacceptable. Both employees were required to take courses with respect to conflict resolution and diversity training but neither was disciplined. While the letters received by the applicant and Ms. Hussein differed in tone, it is evident by the language in the June 26, 2007and July 3, 2007 letters to the applicant that the Hospital’s decision related, in part, to the fact that the applicant had made disrespectful statements that violated the Code which supports the inclusion of more stern language.

116The applicant argued that the Hospital refused to re-open the investigation of the June 12, 2007 incident and also refused to allow the applicant to appeal the Hospital’s decision and that these refusals demonstrated further discriminatory treatment of the applicant and a violation of the Hospital’s Code of Conduct and Anti-Harassment Policy. The Hospital’s evidence was that it had completed a full investigation and had reached a final decision. While the Hospital’s witnesses did not state that the applicant was explicitly told that she had a right to appeal the decision, Ms. Picard-Stencer stated that the applicant had the right to appeal which could not be denied by the Hospital. The applicant also had access to union representation throughout the entire process related to June 12, 2007 and would have been able to seek advice through them. Even if the Hospital erred in not advising that its decision could be appealed under the Code of Conduct, I still do not find a link between its actions and the fact that the applicant was on modified duties.

117I have also concluded that the applicant has not established that she was subject to harassment on the basis of disability. Given the findings with respect to each of the allegations involving Ms. Picard-Stencer, the applicant has failed to establish that there was a course of vexatious conduct by Ms. Picard-Stencer or that she made any unwelcome remarks to the applicant or acted in a manner that would reasonable be perceived to be unwelcome. The evidence showed that the applicant was treated no differently that other nurses in the unit and that any decisions were made by Ms. Picard-Stencer with respect to the allegations raised were done for non-discriminatory reasons.

The Duty to Accommodate 2006-2007

118The duty to accommodate triggers both procedural and substantive obligations upon an employer. As noted in the Tribunal’s decision in Barber v. York Region District School Board 2011 HRTO 214 at paragraph 94:

Once the duty to accommodate has been triggered, the respondent employer has both procedural and substantive obligations. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.

119In Hydro-Quebec v. Syndicat des employees de techniques et de bureau d’Hydro-Quebec, secion locale 200, 2008 SCC 43 at paragraphs 16 and 18 the Supreme Court summarized that the test for accommodation is not whether it is impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. The Court also noted that the test for undue hardship is not total unfitness for work in the foreseeable future but whether the characteristics of an illness are such that the proper operation of a business is hampered excessively or if an employee remains unable to work for the reasonable foreseeable future.

Return to Work August 2007

120Based on a review of all the evidence, I have concluded that the applicant was not forced to return to work on August 27, 2007 or that the Hospital failed to accommodate the applicant’s sick leave period that was scheduled to end on August 31, 2007. Furthermore, I find that the work that was offered accommodated the applicant.

121Even though the applicant disagreed with the Hospital’s decision regarding the June 12, 2007 incident, the Hospital viewed the investigation as closed. From its perspective, the Hospital had been advised by WSIB that the applicant was fit to return to work and it understood from the August 10, 2007 Attending Physician Report that the applicant could return to work once the workplace conflict was resolved. The Hospital was keen to review the results of the FCE report that it received on July 25, 2007 with the applicant and believed that it was time to begin discussing the applicant’s return to modified work. The applicant said she would only attend a meeting with ONA present and the Hospital made arrangements to meet on August 22, 2007 with ONA and OHSEP, Human resources, the F7 Unit manager and the applicant

122The notes from the August 22, 2007 meeting reflect that the applicant “could” be temporarily accommodated in F7 beginning August 27, 2007. The applicant was also assured that when she returned the Hospital would not schedule her and Ms. Hussein on the same shifts during the initial return to work. The applicant’s FCE was discussed at length with the applicant and she was informed of how she would be accommodated in accordance with the FCE and in accordance with the medical information that the Hospital had at the time. The applicant did not dispute that the meeting concluded with the understanding that she would discuss the arrangement with ONA who would advise whether it was acceptable and whether the applicant would return on August 27, 2007. Although the applicant testified that she felt that she had no choice to return on August 27, 2007 or that she would be fired if she would not return, this was not what the evidence of the Hospital or the notes from the August 22, 2007 meeting reflected. Since there was no response from ONA or the applicant following this meeting, the Hospital did not know what the applicant had decided to do until she arrived at work the morning of August 27, 2007. It is also significant that the Hospital did not have the applicant on the schedule for that day so when she arrived, the Manager decided to pair her with another nurse for the rotation.

123Nevertheless, even if I were to find that the August 10, 2007 Attending Physician Report did not supersede the July 31, 2007 note which placed the applicant on sick leave until August 31, 2007, I still would not find that the Hospital failed to accommodate the applicant. The applicant took part in the discussion on August 22, 2007 and had union representation with her and was told that work was available. The start date of August 27, 2007 was an offer to continue work and there was nothing to suggest that had ONA or the applicant informed the Hospital that she would only return to work on August 31, 2007 that the Hospital would not have obliged.

September 11, 2007 Letter from Ms. Huneault

124I do not find that the September 11, 2007 letter from Ms. Huneault to the applicant was discriminatory. Although the applicant’s evidence was that she went to see a psychiatrist on August 23, 2007, she did not advise Ms. Huneault that she had a medical certificate when she arrived at work on August 27, 2007 and she left the Unit before advising Ms. Huneault. Whether the applicant was assigned a patient was irrelevant. From the Hospital’s point of view, by withholding medical information concerning her fitness to return to work and by leaving work with out permission or advising her Manager, the applicant’s behaviour was not acceptable or professional in terms of her general duties and responsibilities as an RN. In addition, the applicant agreed that she told Ms. Huneault that she was forced to return to work and that she was not happy about being at work. The way in which the applicant spoke to Ms. Huneault that morning also was the basis for her concern about the applicant’s attitude. Despite the fact that the applicant felt that the medical certificate would not be accepted by the Hospital, she was still obliged to provide the information in a timely manner. Based on the outcome of the August 22, 2007 meeting, she knew that the Hospital was waiting for an answer with respect to her returning to work on August 27, 2007, yet she chose not to share the medical certificate until after she left work that morning. I am satisfied that the Hospital sent this letter to the applicant because Ms. Huneault wanted to remind and caution the applicant of the Hospital’s expectations and policies and was not done for discriminatory reasons.

Search for Permanent Accommodation 2006-2007

125Once the applicant was on permanent modified duties as declared by WSIB in 2006, the evidence revealed that the Hospital began looking for permanent accommodation for the applicant and that meetings were set up with OHSEP for this purpose. Based on the notes from the November 8, 2006 OHSEP meeting, it is clear that both the permanent accommodation and LMR process was explained to the applicant. Ms. Fowler explained that the search for permanent accommodation is generally a nine month process.

126During this accommodation process, the applicant applied for 3 different RN vacancies. In cross-examination the applicant testified that she did not have prior experience in eye-care or pre-admission surgery. She did not provide any information with respect to the application for B5 Medicine and why she believed she was qualified for that position other than to state that the Hospital could have easily accommodated her in these positions. The applicant never filed a grievance with respect to these postings and did not raise concerns about her not being selected for an interview in the meeting with OHSEP on April 24, 2007. As well, the applicant did not include this concern as part of the original human rights complaint filed in this matter. The applicant was in regular communication with Ms. Donoghue regarding searching for positions but did not provide evidence about her contacting Ms. Donohue about the 3 positions that she applied for in February and March 2007. When Ms. Donoghue contacted the applicant in March 2007 regarding a job in the Special Care Nursery, despite the applicant’s prior experience, she declined the suggestion that she apply because she felt that the position required a lot of reaching using her upper back.

127On the whole, I am satisfied that the Hospital followed the permanent accommodation process during this period of time. The first meeting regarding the applicant’s permanent accommodation took place in early November 2006 and arguably that process was meant to be completed by August 2007, which was circumvented by the applicant being on sick leave commencing June 13, 2007. After the applicant returned to work in 2009, the search for permanent accommodation was extended for an additional three months in recognition that the applicant had not been at work for two years and may not have had an opportunity to apply for positions during her leave.

2009 Return to Work

128Reviewing the evidence with respect to the return to work process commencing in August 2009, I find that the Hospital has demonstrated that it met both its procedural and substantive obligations in terms of accommodating the applicant until October 1, 2009. The Hospital’s reasoning of why it did not reveal the nature of a candidate’s disability to a manager in the initial review stage of a candidate was also appropriate in order to ensure that a candidate is considered based solely on qualifications and experience. It was not disputed that the temporary accommodation in the Neurology Clinic met all of the applicant’s restrictions including the addition limiting her to only day shifts. The evidence also demonstrated that both the applicant and Ms. Donoghue actively searched for positions.

129It was also agreed that there was not a vacancy in the Neurology Clinic at the time during which the applicant was assigned there. Although the Clinic regularly employed part-time nurses and scheduled overtime hours, the evidence was that this manner of staffing was common throughout the Hospital. Contrary to the applicant’s submission that she should have been assigned to a permanent position in that Clinic, there is no requirement that the Hospital should have created an additional position in the Neurology Clinic for the applicant as an accommodation. As noted by the Divisional Court’s decision in Energy and Paperworkers’ Union, Local 212 v. Domtar Fine Papers Inc., [2000] O.J. No 2018 at paragraph 4:

….the employer is not obliged to dismiss one employee in order to Offer the work to a disabled employee, nor was the employer obliged to create a job…

130In terms of the various vacancies considered by and for the applicant between July 22, 2009 and October 1, 2009, there is no basis on which to challenge that the requirements for each position were reasonably set and bona fide occupational requirements. Having reviewed the job descriptions, the explanations by the reviewing managers for not interviewing the applicant and the applicant’s testimony regarding her previous experience, I am satisfied that there were not barriers put into place by the Hospital to prevent consideration of the applicant for the vacancies reviewed in. As part of the permanent accommodation process the applicant was given priority with respect to consideration of vacancies, however, she was still subject to meeting the bona fide nursing requirements of each position which may have included two years recent experience, the bilingual language requirement or the requirement for a nursing degree. The evidence was that the applicant was screened out because she did not possess specific nursing skills and experience. I am not convinced that the applicant was screened out because she would not have had working experience in the two years that she remained on LTD. Rather, it was evident that in each of the positions noted the applicant did not demonstrate that she had specific experience in some of the key requirements of a position. The applicant claimed that her experience in F7 exposed her to patients with mental health issues. She also stated that she had some experience in gynecology based on work she performed in China. However, her resume did not note any specific experience in psychiatric medicine, gynecology, colposcopy, ambulatory care or diabetes health care or how any of these skills might be transferable. Ms. Martin also testified that in a case where an employee did not have two years’ recent experience and had been on LTD, the relevant manager would still consider and discuss the level of experience and consider an applicant. On the basis of her statement, had the applicant shown that she had previous experience beyond two years it is evident that such experience would have been taken into consideration.

131The applicant submitted that that the Hospital never offered the applicant with a necessary training program to help her meet the requirements of positions that fully met her restrictions. It was also suggested that cross-training of RNs to work in other nursing areas is a common practice in the Canadian health care system. Given the applicant’s thirty years of nursing experience, the applicant argued that had the Hospital provided an opportunity for relevant training the applicant would have been able to transition to a new RN position with relative ease.

132The Hospital’s evidence was that due to the specialization in nursing it does not provide additional nursing training as part of the accommodation process other than re-orientation, work-hardening unless specific training is required by a unit. Evidence was provided with respect to additional training in both the Dialysis and ICU units. As explained in Ms. Fowler’s testimony, one of the reasons the Dialysis Unit was considered as a possibility for the applicant is that it was one of the few areas in the Hospital that required an intensive training program and therefore, the applicant’s experience and qualifications were not as important. Assuming the position in the Dialysis unit remained available the Hospital was prepared to provide the 7 week training to the applicant and to consider what accommodations were necessary within that position to meet the applicant’s physical restrictions.

133In the circumstances of this case, it was not clear what type of training or the amount of training that applicant was suggesting. Other than the general assertion that she had transferrable skills due to her thirty years of nursing experience, I cannot conclude that the Hospital had a general duty to re-train the applicant for any position as part of the accommodation process. Where additional training is required such as in ICU or Dialysis, the Hospital is prepared to offer it. There was no evidence to suggest that either this Hospital or any hospitals across Canada offer re-training or cross-training of nurses as part of an accommodation process.

134With respect to the position and discussions pertaining to the RN position in the Dialysis Unit, it is clear that the Hospital took necessary steps to determine if there was a job match. I do not agree that the Hospital was forcing the applicant to work in the Dialysis Clinic. Certainly the Hospital gave serious consideration to this position for the applicant and sought input from both the Hospital’s physiotherapist and its external provider, Action Plus Physiotherapy. Though the applicant disputed that the position met her restrictions, it was within the rights of the Hospital to have the PDA and FCE analyzed to seek an opinion on whether the applicant could perform the position without restrictions or to determine the type and degree of accommodation needed so that the applicant could fulfill the essential duties of the position. Further as noted by Ms. Donoghue in her email of September 14, 2009, as part of the accommodation process, if the Hospital found that there was a job match it would have proceeded first to “trial” the applicant in the position before a final decision would be made.

The October 1 2009 Meeting and the Labour Market Re-Entry Program

135While the decision to start the LMR assessment is made by WSIB, I do not find that participating in the LMR process automatically discharges an employer’s duty to accommodate to the point of undue hardship. During the LMR process an employee continues to be employed by an accident employer and part of the LMR assessment is whether suitable work is available with the accident employer. In this case, the Hospital stated that its practice is to end a temporary accommodation when a referral to LMR is made so that an employee can focus on the LMR process. For practical reasons, an employee may need the time to focus on that process, however, an employer’s duty to accommodate under the Code still remains.

136Although a decision was made to refer the applicant to the LMR process, I am not convinced on the evidence before me that the Hospital discharged its duty to accommodate to the point of undue hardship when it advised the WSIB that there was not available work to accommodate the applicant. Although the Hospital searched for various positions after the applicant returned to work on July 27, 2009, the Gradual Return to Work Agreement specified that the applicant would be in a temporary accommodated position until October 12, 2009 and thereafter the Hospital would continue the applicant in the accommodation process. The notes from the initial discussions in the October 1, 2009 meeting, told the applicant that if no positions were found once the Neurology Clinic posting ended, she would continue in the accommodation process at least until the end of October 2009. While these two statements are inconsistent, it is evident that the message being given to the applicant by the Hospital was that they were committed to continue searching for permanent accommodation. Thus it is reasonable to conclude that the decision to begin the LMR process on October 1, 2009 came as a surprise to the applicant.

137In addition, given that the applicant had just returned from a 2 year leave of absence the actual time spent searching for a suitable position was fairly limited. In this case, job searching was confined to late July, August and early September. During the last week of September 2009 the applicant was on sick leave and returned on October 1 2009 only to discover that she would be placed in the LMR process and be asked to leave the Neurology Clinic that day. While it was clear that the deadline for accessing the LMR process was approaching, there remained a period of 7 months until that time period would have been exhausted. Other than the evidence with respect to the 5 postings considered for the applicant between July and September 2009, the Hospital did not provide any evidence to demonstrate how keeping the applicant on staff through temporary accommodation and continuing the search for permanent accommodation for a reasonable period of time would have resulted in undue hardship.

138Once the applicant was placed in the LMR program, the evidence establishes that the Hospital did little, if anything, to either communicate with the applicant or consider her for any positions that the applicant applied to in December 2009. Even though the applicant had been placed on the LMR program, she remained an employee of the Hospital who continued to be eligible for vacant positions and was told to keep looking for work at the Hospital. Simply because the applicant was participating in the LMR program did not relieve the Hospital of its duty to consider and accommodate the applicant in a position.

139The Hospital did not call any witnesses to explain why the applicant was not given access to the Hospital’s internal website so that she could more easily search for postings. Although Ms. Donoghue responded to the applicant, on December 15, 2009, that she would forward the request for internal access to Ms. Fowler, the evidence was that the applicant never received a response from Ms. Fowler or any other administrator from the Hospital.

140Unlike the explanations provided by the Hospital relating to positions considered for the applicant in July, August and September 2009, no detailed explanation was given as to why the applicant was not considered for the positions that she applied for on December 15, 2009. Similarly the Hospital did not explain why the applicant was not contacted and did not receive a response regarding these last applications. Although the applicant did testify in cross-examination that she did not have direct experience in eye-care, infection control, or surgical daycare, there was no evidence to suggest that she could not fulfill the duties and requirements of an RN position in the Pre-Admission Unit.

141As of October 1, 2009 the substantive element of the Hospital’s duty to accommodate was not evident. As stated in Alexander V. Zellers 2009 HRTO 2167 at paragraph 31:

The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. A recent decision of this Tribunal has explained that “the duty to accommodate involves the obligation to consider the possibility of appropriate alternative employment or redefined responsibilities”, Grzesiak v. DOT Benefits, 2008 HRTO 206, 2008 HRTO 206 at para 98. It is the employer 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, supra. To determine whether the substantive component has been met, it is necessary to consider the reasonableness of the accommodation that was offered, or the reasonableness of the respondent's reasons for not providing accommodation.

142In this case, while the Hospital provided temporary accommodation to the applicant in 2006 and 2007 during its search for permanent accommodation and continued the search during the gradual return to work process in 2009, its explanation that the WSIB made the decision to place the applicant in the LMR program does not relieve the duty to accommodate. The Hospital had committed to continue searching for permanent accommodation beyond October 12, 2009. Just because the Hospital could not find suitable work by October 1, 2009 and because the LMR program was to expire in 7 month’s time is not sufficient in this case to establish that the Hospital fulfilled its duty to accommodate the applicant to the point of undue hardship.

143Furthermore, the Hospital’s inaction once the LMR program began is troublesome. Given the lack of communication and assistance given to the applicant in her continued job search in December 2009, I have determined that the Hospital did not demonstrate that steps were undertaken to accommodate the applicant to the point of undue hardship. Without an explanation for why the Hospital ignored the applicant after Ms. Donoghue’s email on December 8, 2009, the reasonableness of the respondent’s reasons for not providing accommodation is undermined.

144As a result, I find that the Hospital has failed to establish that it accommodated the applicant’s disability to the point of undue hardship after October 1, 2009.

Reprisal

145Section 8 of the Code states:

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

146The intention of section 8 is to allow applicants to pursue their rights under the Code without fear of reprisal for doing so. The Tribunal has determined that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that an applicant’s rights under section 8 have been violated (Chan v. Tai Pan Vacations, 2009 HRTO 273, Jones v. Amway, 2001 Can LII 26217(ON H.R.T.) and Jones v. Amway, [2002] O.J. No. 1504).

147Based on all of the evidence in this case, I cannot conclude that the Hospital had a deliberate intention to retaliate against the applicant for filing a human rights complaint or that the decision to place the applicant in the LMR program was a form of retaliation. Even though I have determined that the Hospital did not discharge its burden to prove accommodation to the point of undue hardship in 2009, this finding does not support that the actions of the Hospital were retaliatory. The Hospital took many steps throughout the accommodation process and continued to search for permanent accommodation until October 1, 2009. The original human rights complaint was filed in November 2007. Since that time the applicant remained employed by the Hospital, was granted temporary accommodation in accordance with her WSIB restrictions and was granted a two year leave of absence and received LTD benefits and all other employee entitlements.

148I am also satisfied that a full discussion took place with the applicant, the WSIB representative, ONA and the Hospital in the October 1, 2009 meeting and that a conclusion was made that it was an appropriate time to place the applicant in the LMR program. While the decision to start the LMR process may have been premature in the context of proving accommodation to the point of undue hardship, there is no basis for me to conclude that the LMR decision was made with the deliberate intent to retaliate against the applicant for trying to enforce her rights under the Code or for filing a human rights complaint.

Remedy

149The parties were advised in a Case Assessment Direction on April 29, 2010, that pending the outcome of the decision I would be prepared to reconvene the hearing to deal with any evidence and submissions related to remedy. Should the parties be of the view that the remaining issues cannot be appropriately be dealt with on the basis of written submissions they should advise the Tribunal of their position along brief written submissions in support of it. The Tribunal will provide further direction with respect to this issue, if necessary.