Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maureen Crowley

Applicant

-and-

Liquor Control Board of Ontario (LCBO), Susan Quinn, Natalie Lachapelle, Anita Fulford, Marian Chipchase and Dan Dean

Respondents

A N D B E T W E E N:

Maureen Crowley

Applicant

-and-

Ontario Public Service Employees Union

Respondent

DECISION

Adjudicator: Mark Hart

Date: July 29, 2011

Citation: 2011 HRTO 1429

Indexed as: Crowley v. Liquor Control Board of Ontario

APPEARANCES BY

Maureen Crowley, Applicant ) Mark Crowley, Representative

Liquor Control Board of ) S. Jodi Gallagher-Healy, Counsel Ontario (LCBO), Respondent )

Ontario Public Service Employees Union, ) Susan Quinn, Natalie Lachapelle, ) Danny Kastner, Counsel Anita Fulford, Marian Chipchase ) and Dan Dean, Respondents )

1These are two Applications filed June 30, 2009, under Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaints filed with the Ontario Human Rights Commission (the “Commission”) are dated April 8, 2008, although it appears that the complaints were received by the Commission on February 24, 2008.

2The applicant alleges that she experienced discrimination in respect of employment because of disability contrary to ss. 5 and 9 of the Code, as against her employer the Liquor Control Board of Ontario (“LCBO”) and her co-workers, the personal respondents, and discrimination in respect of her membership in a trade union because of disability contrary to ss. 6 and 9 of the Code as against the Ontario Public Service Employees Union (“OPSEU”).

3In particular, the applicant alleges:

a) As against the LCBO, that she has a disability that was not appropriately accommodated by a temporary transfer to the Wasaga Beach and Collingwood stores commencing in June 2006;

b) As against the LCBO, the personal respondents and OPSEU, that she was subjected to a poisoned work environment in the Collingwood store because of disability arising out of her transfer to that store;

c) As against the LCBO, the personal respondents and OPSEU, that she was subjected to a poisoned work environment in the Collingwood store because of disability arising out of a WSIB injury;

d) As against the LCBO, that she experienced discrimination because of disability when her temporary transfer to the Collingwood store was extended for two months in March 2007; and

e) As against OPSEU, that she experienced discrimination because of disability relating to OPSEU’s handling of her grievance.

Preliminary hearing

4A preliminary hearing in this matter was held on April 20 and 21, 2011. The purpose of this preliminary hearing was to address preliminary requests made by the respondents to dismiss the Applications. This preliminary hearing was scheduled pursuant to an Interim Decision in this matter dated December 2, 2010 (2010 HRTO 2407).

5In this Interim Decision, I stated as follows (at para. 29):

Having reviewed and considered the material filed with the Tribunal to date, in my view it is appropriate to hold a one day hearing to receive evidence and oral submissions regarding these preliminary issues, and particularly whether the applicant can establish that she had a disability for which she sought accommodation at the relevant time. At this one day hearing, the Tribunal would hear all of the applicant’s evidence regarding whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. The Tribunal also would hear any evidence from the LCBO and Redwood in response.

6I then proceeded to set out certain timelines for the parties to file various materials for the purpose of this preliminary hearing. In accordance with the timelines I established, the Union and the personal respondents filed a Request for Order dated December 22, 2010 seeking dismissal of the Applications against them for failure to disclose a prima facie case. The parties were advised by the Tribunal by letter dated January 12, 2011 that this Request also would be addressed at the preliminary hearing.

7The preliminary hearing was not intended to be a full hearing on the merits or substance of the Applications in their entirety. I set up this preliminary hearing because, as noted above in my Interim Decision 2010 HRTO 2407, having reviewed the materials filed by the parties, it appeared to me that much in this case turns on the fundamental questions of:

a) whether the applicant had a disability within the meaning of the Code at the time of her initial request for a transfer in March 2006;

b) whether and to what extent the applicant informed the employer of any disability she may have had at that time in support of her transfer request (or whether, as submitted by the applicant, the information she did provide to the employer was sufficient to trigger a duty to make further inquiries); and

c) whether her re-location to the Wasaga Beach and later Collingwood stores can be regarded as an accommodation for any disability she may have had.

It is these fundamental issues that the preliminary hearing focused on.

8The applicant also alleges that she experienced a poisoned work environment at the Collingwood store because of disability, which she alleges relates to her co-workers’ reaction to her placement in that store as an accommodation for her disability because it deprived them of an opportunity for a permanent position in the store. In a further Interim Decision in this matter dated April 15, 2011 (2011 HRTO 736), I expressed my view that this allegation turns upon whether the applicant’s placement in the Collingwood store in fact was an accommodation of any disability she may have had at the time, and I invited submissions from the parties at the preliminary hearing as to whether, if I find either that the applicant did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, there remained any basis to support the applicant’s allegation that any poisoned work environment she may have experienced at the Collingwood store is connected to any ground protected under the Code. At the preliminary hearing, it was conceded by the applicant that there would be no basis to proceed with this allegation if I were to make either of these findings.

9The applicant also alleges that the two-month extension of her temporary placement at the Collingwood store, which was communicated to her in March 2007, represents a denial of her right to receive appropriate accommodation of her disability. Once again, in my Interim Decision dated April 15, 2011, I expressed my view that this issue turns on whether the applicant’s placement in the Collingwood store can be regarded as an accommodation for any disability she may have had at the time, and I asked the parties to address this at the preliminary hearing. Once again, at the preliminary hearing, the applicant conceded that there would be no basis to proceed with this allegation if I found that her placement in the Collingwood store was not an accommodation of a disability.

10With regard to the WSIB injury, in final submissions the applicant stated that, if I were to find either that she did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, she did not want or intend to pursue her allegations relating to the WSIB injury as a separate and distinct issue.

11At the preliminary hearing, I heard evidence from the applicant and from three witnesses on behalf of the respondent LCBO, namely Ms. MacPhail, Ms. Corras and Mr. Redwood, followed by submissions from all parties.

12At the hearing, the applicant agreed to the removal of Mr. Redwood as a personal respondent, on the basis that the LCBO agreed that it was responsible for his actions. As such, the title of proceeding is amended accordingly.

Background

13The applicant commenced employment with the LCBO in 1995 as a casual Customer Service Representative and worked in various LCBO stores in the downtown Toronto area.

14In early October 2003, the applicant reported harassment from a customer that she indicated had been going on for about six months. She indicated that the customer, a homeless man, had been following her around the store, was constantly asking for her, had left her obscene letters, and made her feel uncomfortable and scared. The police were contacted and came to the store to obtain the applicant’s information. This led to the customer being placed on probation prohibiting him from visiting any LCBO store below Bloor Street or Danforth Avenue in Toronto.

15In June 2004, the applicant was transferred to the LCBO store in the St. Lawrence Market in Toronto as a result of her becoming a full-time permanent employee.

16In April 2005, there was a further incident with the customer, when the applicant was standing outside the St. Lawrence Market store and saw this individual coming across the street towards her. The applicant told this person to get away from her and that she was going to call the police. The individual said that he was no longer on probation. The applicant went inside the store and locked the door, and the individual went away. This incident was reported to LCBO management, and the police were called. This resulted in a court appearance in September 2005, at which the individual was further restricted from entering any LCBO store in Toronto.

17In March 2006, the applicant sent a letter to LCBO management requesting a transfer to the Collingwood area “on compassionate and medical grounds”. This letter references the fact that the applicant had been the victim of ongoing criminal harassment from a store customer, that this individual had breached probation orders, and that he had been able to find her despite her transfer to another store in Toronto. Her letter goes on to state:

Concerns for my safety are never far from my mind and I believe that it is only a matter of time before this individual again re-offends. As a result of the stress related to this ongoing situation I am experiencing health problems of mental and physical anguish, such as sleep deprivation, nervousness and the inability to concentrate and perform efficiently at work. Professional and EAP support have been solicited in order to assist my coping with this matter. Supporting medical documentation and supporting letters have been attached.

As a matter of accommodation and in order to put some additional distance between my living / work location and this individual, I would like to take advantage of a recent move by an immediate family member to the Collingwood area. Accordingly, I respectfully request that you consider this transfer request.

18This letter was accompanied by three supporting letters. The first was from the Victim Services Program, and noted that the applicant had been the victim of criminal harassment since 2003, and that the perpetrator had been convicted and was on probation. This letter states that the applicant “is experiencing ongoing stress and would like to relocate out of Toronto in hopes of gaining some peace of mind”. The letter expresses agreement that this would be in the applicant’s best interest, and states that any assistance that could be given to facilitate this would be greatly appreciated.

19The second letter was from the Victim / Witness Assistance Program. This letter states that the allegations against the perpetrator are very serious and that he may not hesitate to breach his probation again. The letter indicates that emotional support had been provided to the applicant, that she had personally taken steps to increase her sense of security, but that she is afraid for her safety. The letter states that the applicant is seeking a work location outside of the Greater Toronto area, which is unknown to the perpetrator and preferably in the Collingwood area, in an effort for the applicant to remain safe. The letter concludes by requesting that the applicant be granted a special priority transfer.

20The third letter is a handwritten note from the applicant’s family physician. This note, in its entirety, states as follows:

I am a family physician who has known [the applicant] since 1996.

I have reviewed with her issues of serious concern regarding the location of her employment in the organization.

After having reviewed the matter I strongly believe that consideration be given to relocating [the applicant] to another location.

21After this material had been received by LCBO management, the applicant was contacted on March 22, 2006, by a Human Resources Advisor, Bonnie MacPhail. Ms. MacPhail states that during this conversation, the applicant stated that although she had not seen the harassing customer since September 2005, she did not feel safe and was always looking over her shoulder. The applicant told Ms. MacPhail that this situation had caused physical and medical issues related to an inability to sleep and lack of concentration. The applicant told Ms. MacPhail that the basis of her request to be transferred to the Collingwood area was because her mother, who was in her 80’s, had recently relocated to the Collingwood area and that caring for her elderly mother was another reason for the transfer request. While there is some dispute in the evidence as to whether the applicant also told Ms. MacPhail that her mother had been diagnosed with cancer, in my view nothing turns on this. The applicant also expressed to Ms. MacPhail that she did not feel that a transfer within LCBO’s Central Region, which encompasses stores throughout the Greater Toronto area, would address her concerns because she felt that she would still be accessible to the harassing customer.

22During this conversation, the applicant did not offer to provide any further medical documentation to support her transfer request, nor was any such documentation requested by Ms. MacPhail.

23By letter dated May 9, 2006, the LCBO responded to the applicant’s transfer request. This letter reviewed the situation with the harassing customer, and expressed concern about the issues raised by the applicant in the context of the LCBO’s desire “to provide a healthy and safe workplace for its employees”. The letter presented various options to the applicant “to assist the concerns you have raised about your security in relation to [the harassing customer]”. These options were as follows:

a) To transfer the applicant to another store in the City of Toronto or anywhere in the Central Region;

b) To temporarily transfer the applicant to the Wasaga Beach store until September 2, 2006;

c) If the applicant decided to accept the temporary transfer to the Wasaga Beach store, then she would have the option of being temporarily transferred to the Collingwood store for a further six-month period, following which the LCBO would review its staffing requirements in Collingwood. If LCBO’s staffing requirements did not support the applicant continuing to be in Collingwood, then she would be able to pursue options (a) or (d); or

d) To transfer the applicant to another store location in a metropolitan area anywhere in Ontario.

24This letter did not indicate that the LCBO considered the applicant as having a disability or that these options were being offered as an accommodation of a disability. Rick Redwood, the Director for LCBO’s Northern Region, which included responsibility for the Wasaga Beach and Collingwood stores, was directly involved in the decision to offer these options to the applicant. In his evidence before me, Mr. Redwood testified that LCBO management did not consider this as a request for accommodation of a disability, as the material provided by the applicant did not support that she had a disability. Rather, his evidence is that management offered these options to the applicant as a compassionate transfer, based upon the personal safety and security issues she had raised.

25By letter dated May 15, 2006, the applicant accepted the transfer to the Wasaga Beach store and then to the Collingwood store.

26On May 23, 2006, the applicant was contacted by Loreen Corras, the District Manager responsible for these two stores, to discuss the transfer. During this conversation, Ms. Corras and the applicant discussed the applicant’s safety concerns and the timing of the transfer to Wasaga Beach. While the applicant could have commenced work at the Wasaga Beach store as of June 5, 2006, the applicant requested a two-week delay to June 19, 2006 because it was a major move and she wanted to be realistic. While the respondents made some submissions about this two- week delay in argument, in my view nothing turns on this. After her initial conversation with Ms. Corras, the applicant called back a short time later to ask why she was being transferred first to Wasaga Beach and not immediately to Collingwood. Ms. Corras states that she explained that Wasaga Beach was a very busy place in the summer and that the LCBO usually transferred someone to that store to help out.

27On May 25, 2006, Mr. Redwood sent a letter to the applicant confirming her acceptance of the offer to temporarily transfer to Wasaga Beach and then temporarily transfer to Collingwood for a further six months, after which the LCBO would review its staffing requirements for that store. The letter repeated that the applicant would still have the ability to pursue options (a) and (d) as set out in the May 9, 2006 letter, if staffing requirements did not support her continuing in Collingwood.

28During this period of time, the applicant did not object to the LCBO’s failure to indicate that the transfer was being done as an accommodation of a disability, nor did she take issue with the fact that these were temporary transfers. It was submitted before me on the applicant’s behalf that she was hopeful that the transfer to Collingwood would become permanent, and that she was not in a position to take on a battle with LCBO management at that time.

29During the summer 2006, Ms. Corras learned that the applicant was intending to purchase a home in the Collingwood area. Ms. Corras drove to the Wasaga Beach store and met with the applicant to re-emphasize the temporary nature of her transfer and to remind her that there were no assurances that she would remain in the Collingwood area after March 2007. Ms. Corras’ evidence is that the applicant acknowledged the temporary nature of her placement in the Collingwood area, but that she was optimistic that the transfer would be made permanent. This is acknowledged by the applicant. Once again, no objection was raised by the applicant at this time regarding the temporary nature of the transfer or that this was not proper accommodation of a disability.

30The applicant transferred into the Collingwood store as planned in early September 2006. At some point in the fall of 2006, it became known in that store that one of the permanent employees there would be retiring effective December 31, 2006, which it was anticipated might create an opening for a permanent position. The applicant states that at this point, she began getting the “cold shoulder” and negative comments from her co-workers, which she attributes to their concern that because she was a permanent employee placed in the Collingwood store, her presence would reduce her co-workers’ chances of obtaining a permanent position if one became available.

31During this period of time, the applicant’s co-workers became aware that she had been transferred to the Collingwood store because she had been stalked by an individual in Toronto. This led to concerns being expressed by these co-workers and the union about whether this situation presented a health and safety concern for them.

32On January 30, 2007, Ms. Corras met with the applicant to convey this concern to her and to ask whether she would be willing to meet with the union representatives of the store in confidence and to provide information about her situation, following which the union representatives would meet with staff at the store to reassure them that they were not at risk. The applicant was asked to sign a consent to the release of information regarding the reasons for her temporary transfer to the Wasaga Beach / Collingwood area, to which she agreed.

33On January 31, 2007, the applicant met with the union representatives, the Collingwood store manager and Ms. Corras to explain her situation. The applicant explained that she had been stalked by a person in Toronto and that she moved to the Collingwood area to have the support of her family. It is not disputed that at this meeting, the applicant did not say that she had a disability or that she needed to work in the Collingwood area as an accommodation for a disability.

34Ms. Corras states that after the group meeting, she met with the applicant alone, and the applicant asked what was going to happen with her temporary transfer. At that time, the applicant’s temporary placement in the Collingwood store was scheduled to be reviewed in March 2007. Ms. Corras states that she told the applicant that she did not know what was going to happen, and that it would be reviewed again in March. Ms. Corras states that the applicant then said that she was wondering what would happen because she liked working in the Collingwood store and would really like to stay there. The applicant also stated that she did not own a car, and had some night vision issues. Once again, it is not disputed that the applicant did not mention anything about having a psychological disability relating to the harassing customer in Toronto or about any accommodation of such a disability.

35In February 2007, the applicant’s co-workers filed a grievance alleging a violation of the health and safety provisions of the collective agreement. This grievance was denied by management. The applicant became aware of this grievance, which was very upsetting to her.

36On March 8, 2007, Mr. Redwood wrote to the applicant to offer her a two-month extension of her temporary assignment to the Collingwood store. It was expressly stated in this letter that, pursuant to the collective agreement, LCBO management reserved the right to transfer the applicant within the geographic area due to operational requirements and also that the granting of this extension did not guarantee the applicant a permanent full-time position in the Collingwood area. The applicant was advised that another option available to her was to elect to transfer to a location within Central Region.

37The applicant believes that, in granting her this two-month extension rather than giving her a permanent position in Collingwood, LCBO management was influenced by the grievance filed by her co-workers and what she regarded as an effort by her co-workers to “drive her out of the store”. This is denied by the respondents.

38Mr. Redwood’s evidence is that LCBO management and the union go through an annual process called a “permanent vacancy review”, whereby the number of hours worked by casual employees over the preceding year is reviewed in order to assess whether a full-time position should be created. The purpose of this review is to create a permanent position if casual employees are working more than a certain threshold number of hours per year. Mr. Redwood’s evidence is that this review was proceeding at that time, and ultimately resulted in a permanent full-time position at the Collingwood store being filled. While full-time permanent positions filled as a result of this review are usually offered to casual employees, Mr. Redwood states that he obtained the union’s consent to offer this position to the applicant, which he did by letter dated May 25, 2007. The applicant accepted this permanent full-time position at the Collingwood store, where she remains to this day.

39On March 19, 2007, the applicant submitted a grievance through her union. In this grievance, the applicant stated that her transfer was the result of a formal request to accommodate a medically-documented disability and she grieved the failure at that time to grant her a permanent transfer to the Collingwood store. She also raised in her grievance the reaction of the co-workers to her placement in the Collingwood store, which she described as them perceiving that she was receiving an undue benefit in that she might take a permanent position that others were expecting.

40This grievance went to a Step 2 meeting on April 17, 2007, with the District Manager, Ms. Corras. At this meeting, Ms. Corras asked the applicant what her disability was, to which the applicant responded “for my well-being, stress and safety”. It is not disputed by the applicant that this is what she said. Ms. Corras states that she advised the applicant that the LCBO had no information on file currently that supports an alleged medical disability. The applicant’s evidence is that Ms. Corras said that it would be nice to have additional medical documentation. No further medical documentation was provided by the applicant at this time, nor was any further medical documentation expressly requested by the employer.

41The grievance next went to Step 3 on April 23, 2007, which entailed a meeting with the Regional Director, Mr. Redwood. Although the grievance continued to be denied, it was following this meeting that Mr. Redwood advised the applicant on May 25, 2007, that she would be offered a permanent full-time position in the Collingwood area.

42This did not resolve the grievance, which proceeded to arbitration before the Grievance Settlement Board. As a result of the applicant’s refusal to participate in the grievance arbitration process, this grievance was ultimately dismissed. The details around the arbitration process and the impact of the grievance dismissal on this proceeding were addressed in my Interim Decision dated December 2, 2010.

43In the fall of 2007, the applicant experienced some discomfort in her right elbow for which she sought medical attention on November 28, 2007. In December 2007, the applicant provided further medical information to the LCBO accompanied by restrictions, and she continued on modified duties. In January 2008, the applicant states that she informed her supervisor that she wanted to file a WSIB claim for a lost time injury. On January 29, 2008, the applicant states that she was informed by a co-worker that staff at the Collingwood store were aware that she had a WSIB claim and had put in a grievance against her regarding this. No such grievance in fact was ever filed. The applicant stated in her evidence before me that she was also told by this co-worker that another staff member had called her “lazy” because she was working on modified duties. This allegation was not set out in the applicant’s human rights complaint, or in her detailed notes regarding events at the Collingwood store, which the applicant described as an oversight.

Did the applicant have a disability?

44The first issue before me is whether the applicant had a disability within the meaning of the Code at the material times when she applied for the transfer in March 2006 or when her temporary transfer was extended in March 2007. More to the point, the question for me to determine is whether the applicant has established by sufficient evidence tendered at the preliminary hearing that she had a disability at these times.

45In her evidence before me, the applicant testified that the nature of her disability at the material times was General Anxiety Disorder. I accept that General Anxiety Disorder can be a disability within the meaning of the Code. However, the issue for me is whether there is sufficient evidence before me to support that the applicant had this condition at the material times.

46The applicant first relies upon the material she submitted in support of her transfer request in March 2006 to establish that she had a disability at that time. In particular, she relies upon the fact that one of the bases that she stated for her request was on “medical grounds” and that she made a request for “accommodation”. She further relies upon her statements in her letter dated March 13, 2006 that “as a result of the stress related to this ongoing situation I am experiencing health problems of mental and physical anguish, such as sleep deprivation, nervousness and the inability to concentrate and perform efficiently at work” and that “professional and EAP support have been solicited in order to assist my coping with this matter”. She also relies upon the supporting letters from the Victim Services Program which refers to her experiencing “ongoing stress” and wanting to relocate out of Toronto in hopes of gaining some “peace of mind”, and from the Victim / Witness Assistance Program which states that she has been receiving “emotional support” and is “afraid for her safety”.

47In my view, the applicant’s letter and these two supporting letters clearly describe symptoms that she was experiencing at the time which could support a diagnosis of a disability, but do not actually provide a diagnosis of any specific disability or provide the basis upon which any such diagnosis was made. In my view, it is critical that the letter provided at this time from the applicant’s family physician does not state that the applicant had a disability at this time, but rather merely states that he had reviewed with her “issues of serious concern regarding the location of her employment” and that he strongly believes that consideration should be given to relocating the applicant to another location.

48For the purpose of the preliminary hearing, the applicant also submitted two further medical documents. The first is a letter from the applicant’s family physician dated February 24, 2008. This letter states that the doctor was “previously made aware of difficulties stemming from [the applicant’s] job . . . with these difficulties manifesting as real threats to her physical and perhaps moreso to her mental health” and states that “the harassment & stress resulted in significant psychological disability, manifesting as stress, anxiety, alterations in [the applicant’s] sleeping patterns”. There is no dispute that this letter was not provided to the LCBO at the material times.

49The applicant also submitted a letter dated February 23, 2008, from a psychologist whom the applicant had been seeing since April 2007. While this letter states that the applicant meets the diagnostic criteria for Generalized Anxiety Disorder and provides a basis for this conclusion, the psychologist quite clearly states that he is “not in a position to comment on the nature and extent of the psychological distress [the applicant] was experiencing before [he] started providing treatment to her”. Rather, the psychologist’s diagnosis is based upon the applicant’s reported experiences with co-workers and management at her work location in Collingwood. As a result, this medical document does not provide any support for the existence of a mental disability at the material times at issue in this proceeding, which pre-date when the psychologist started seeing the applicant.

50In the midst of final argument, the applicant’s representative submitted an e-mail exchange between himself and the psychologist during the period from April 14 to 17, 2011, which had not previously been disclosed to the respondents. Nonetheless, the respondents graciously agreed that this material could be submitted to and considered by me, subject to their submissions as to its admissibility, relevance and probative value. In this e-mail, the psychologist reviews the diagnostic criteria for Generalized Anxiety Disorder and opines on the basis of the material submitted by the applicant in March 2006 and other information from her that she met this criteria as of March 2006.

51I place no reliance or weight on this e-mail exchange for several reasons. First, in my Interim Decision dated December 2, 2010, I expressly directed the applicant to file by January 14, 2011, all documents upon which she intended to rely at the preliminary hearing in relation to the issues raised, including the issue of whether she had a disability within the meaning of the Code at the material times. While I appreciate that it can take some time to obtain letters from physicians, it is not appropriate to obtain such evidence on the very eve of the preliminary hearing and then not disclose it to the other parties prior to final submissions.

52Second, and in any event, I find that the psychologist’s analysis is speculative, relies upon re-interpretations of what is stated in the materials he reviewed, relies upon inaccurate information, and is argumentative. For example, in reference to the letter from the Victim Services Program, the psychologist relies upon the statements that the applicant was experiencing “ongoing stress” and wanted to relocate in the hope of gaining some “peace of mind”, to suggest that the applicant “was experiencing constant anxiety and that this anxiety was manifesting itself in anxious preoccupations (peace of mind)”. With respect, that is a reinterpretation of what was actually stated in the letter and in my view is not supported. With regard to the doctor’s letter included in the March 2006 material, the psychologist states that this letter “indicates that [the applicant] discussed concerns related to the stalking and that [the doctor] believed relocation was a proper course of action (i.e., a reasonable accommodation for her anxiety)”. Once again, the psychologist is reading into this letter things that were not stated by the doctor.

53Further, in support of the criterion that “the anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning”, the psychologist states that the applicant met this criteria because “she was disciplined at work due to absenteeism”. In fact, as agreed by all parties and supported by a letter from the applicant’s then manager dated November 9, 2005, the applicant was not “disciplined” for absenteeism, but rather her attendance was raised as an issue requiring improvement as part of her performance appraisal. I note that the psychologist’s statement that the applicant was “disciplined” for absenteeism is not even consistent with what he himself records the applicant as telling him, which is that a previous manager had “concerns over her attendance”.

54Still further, in a follow-up e-mail responding to further questions from the applicant’s representative, the psychologist states that “it can be argued that [the applicant’s [Generalized Anxiety Disorder] became clinically significant the first day she missed work due to the symptoms”, on the basis that “the reasoning is that absenteeism eventually became a problem” which “obviously started the first day she missed work as a result of symptoms / stressors”. While it is certainly possible that a pattern of absenteeism could be regarded as clinically significant impairment in occupational functioning, it is hard for me to follow the psychologist’s reasoning that this became “clinically significant” the very first day that the applicant missed work. This logical gap and the psychologist’s use of the phrase “it can be argued” suggests to me that rather than providing a medically supported diagnosis, which would be admissible opinion evidence for the purpose of determining whether the applicant had a disability within the meaning of the Code, the psychologist is advocating for his patient and making “arguments” on her behalf.

55Third, there is no evidence that the psychologist sought out or reviewed the clinical notes of the applicant’s family physician, who was seeing her at the material times, or even spoke to the family physician to obtain information to inform his opinion. In this regard, I note the psychologist’s very careful statement in his February 23, 2008 letter indicating that he is “not in a position to comment on the nature and extent of the psychological distress [the applicant] was experiencing before [he] started providing treatment to her” in April 2007. The psychologist has not indicated how he is able to do something more than three years later, in April 2011, that he clearly states he was unable to do in February 2008.

56In Dow v. Summit Logistics, 2006 BCHRT 158, the British Columbia Human Rights Tribunal (“BCHRT”) dealt with a request to dismiss part of an application that alleged discrimination because of mental disability. In that case, the applicant had filed an affidavit in which he stated that he suffered from acute anxiety that had increased over time and for which he had been prescribed anti-depressants. The applicant also had written to his employer and had referred to “pain” that he was experiencing. The applicant in that case did not provide any medical reports indicating that he had been diagnosed with any mental disability.

57In deciding to dismiss this aspect of the application, the BCHRT states (at paras. 17 to 19):

In order to prove that one has been discriminated against on the basis of mental disability, one must prove that one either has a mental disability or is perceived to have a mental disability.

In my view, Mr. Dow has failed to allege facts from which it could be found that he has a mental disability. A bare assertion of pain or anxiety is not, in my opinion, a sufficient basis upon which to allege that one has a mental disability, and thus provide the basis for establishing the first element of a complaint of discrimination on the basis of mental disability. Pain is a common experience, and may be a symptom of a condition, usually physical though possibly also mental, which may qualify as a disability. It is not itself a disability. . . . Anxiety is a commonly experienced emotion. It too may be a symptom of a condition which may qualify as a disability, such as anxiety disorder. Mr. Dow has not stated that he has been diagnosed with anxiety disorder. The fact that Mr. Dow may have been prescribed anti-depressants is not alone a sufficient basis upon which to find the existence of a mental disability, as such medications may be prescribed for many reasons . . .

In this regard, I consider it significant that when Mr. Dow was put on notice, through Summit’s application to dismiss, that this matter was in issue, he did not provide any medical evidence which might have substantiated his assertion that he has a mental disability.

58Re Skytrain and CUPE, Local 7000 (Olsen), (2009) 99 C.L.A.S. 4, 2009 CLB 11377, is an arbitration decision that considered whether the grievor had a mental disability protected under human rights legislation that required accommodation by the employer. In that case, the grievor had experienced an assault at work and submitted a handwritten note to her employer stating that she was “under stress due to assault at work” and was absent “due to anxiety attacks & stress”. While the arbitrator accepted that the grievor suffered understandable anxiety attacks and stress from an assault at work, the arbitrator adopted the above-referenced language from the Dow decision, and found that this note alone was not evidence of a mental disability.

59The arbitrator next considered a subsequent letter from the grievor’s doctor stating that the grievor had been off work for “depression” and had been prescribed medication, but that the depression persisted and she had a decrease in motivation. The applicant thereafter saw a psychiatrist, who wrote a short note saying that the grievor had missed work for a headache and for tiredness and low mood, and that this was consistent with her “present medical condition”. The arbitrator was unable to find that this note from the psychiatrist presented a diagnosed medical condition.

60The arbitrator had this to say when addressing the use of such terms as “stress”, “pain” and “depression” (at para. 57):

As with terms such as “stress” and “chronic pain”, some care in the use of the term “depression” is required when considering if there is a mental disability under human rights legislation. For example, the diagnosis should be consistent and have genuine medical / psychological weight as a diagnosis. Reliance upon the ubiquitous hand written, one-line handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness that is of sufficient weight to establish a mental disability under human rights legislation. This is no more or less than the standard that should also be applied to physical disabilities, except that a diagnosis of a major depressive disorder requires more explanation than one of a broken bone. However, this does not mean that a diagnosis based on DSM IV criteria is required in every case of mental illness before there can be a mental disability under human rights legislation. There may be cases where there is compelling evidence of a mental illness, including detailed expert opinion evidence, in the absence of DSM IV criteria. Finally, the bare assertion by a person that she or he is experiencing depression is not by itself sufficient to establish a mental disability . . .

61With regard to the use of the term “stress” specifically, the arbitrator states (at paras. 68-69):

The problem is that “stress” is not by itself a term of art that can be given great weight as a diagnosis. A previous award put the situation as follows, “ . . . ‘stress’ as a disability is difficult to measure or gauge. There is no doubt that stress can be disabling. On the other hand, most people live with some degree of stress and so it can be reasonably assumed that stress is not in the normal course, a disabling condition”. . . . This is consistent with a recent decision under human rights legislation that stress by itself is not a disability for the purposes of the Human Rights Code. . . .

For these reasons I have some difficulty in finding that “stress” by itself is cogent evidence of a medical disability. It is true that Dr. Troffe also referred to “psychological problems” and this was no doubt a reference to stress. However, that is all general language and it is very limited evidence of a diagnosis. I note another human rights case where the reference by a specialist in rheumatology to “a lot of psychological problems” was found not to be evidence of depression or of a mental disability . . . In order to come under the important protection of human rights legislation there needs to be a diagnosis with some specificity and substance. References to “stress” and “psychological problems” by themselves, in my view, do not meet that standard.

62I do not doubt that the applicant was experiencing stress as a result of being criminally harassed, as well as symptoms such as sleep deprivation, nervousness and inability to concentrate. This is stated in her own letter from March 2006 and is supported by the letter from the Victim Services Program. However, consistent with the above-referenced authorities, a bare assertion of “stress” and other symptoms by an applicant is not sufficient to establish a mental disability within the meaning and protection of the Code.

63Rather, consistent with the decision in Skytrain, supra, I agree that in order to meet the definition of mental disability within the meaning and protection of the Code, where the case does not involve an allegation of discrimination on the basis of perceived disability, there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance. That is lacking in this case. The family physician’s original note does not make reference to the applicant having any disability. His subsequent letter dated February 24, 2008, while setting out some of the symptoms being experienced by the applicant, states only that these are manifestations of “significant psychological disability” without providing any specific diagnosis or working diagnosis as to what this “psychological disability” is or how the described symptoms meet the criteria for such diagnosis or working diagnosis or are otherwise clinically significant. I find that the family physician’s general reference to “psychological disability”, without any specific diagnosis or working diagnosis or substantive explanation as to how the applicant’s symptoms meet the criteria for such diagnosis or working diagnosis or are otherwise clinically significant, is not sufficient to meet the standard for establishing a mental disability under the Code.

64Accordingly, I find that the applicant has not established with sufficient evidence that she had a “disability” within the meaning of the Code at the material times. In saying this, I want to be clear that I am not finding that the applicant did not suffer from Generalized Anxiety Disorder at the material times. She may have. Rather, I am saying that the evidence before me is insufficient to support such a finding. While I appreciate the general material about this disorder that was submitted to me by the applicant and the able submissions made by her representative, it is not my proper role to sift through such general material and make a diagnosis or working diagnosis or to try to discern clinically-significant symptoms. That is the proper role of the applicant’s medical community and is the kind of evidence required in a human rights hearing to establish a disability.

65I also understand and appreciate that efforts were made by the applicant’s representative to get a further report from the family physician, without success. These kinds of things can happen. However, a party in a Tribunal proceeding has the power to compel a witness, including a physician, to appear at a hearing to provide evidence, and the family physician could have been compelled to do so in order to elicit more specific and substantive medical evidence. But this was not done. I do not say this to be unduly critical of the applicant or her representative, who though not a lawyer proved to be quite a capable advocate. I merely state that without sufficient medical evidence before me, I do not have a sufficient basis to make a finding that the applicant had a disability at the material times.

Can the transfer request be regarded as a request for accommodation of a disability?

66On the basis of the concessions made by the applicant through her representative at the preliminary hearing, the finding that the applicant has not established by sufficient evidence that she had a disability at the material times is sufficient to dispose of the application as against the LCBO and the personal respondents.

67However, as the question of whether the transfer request can be regarded as a request for accommodation of a disability was fully argued before me, I also will deal with this aspect of the issues addressed at the preliminary hearing.

68I accept and agree with the submission by LCBO counsel that an employer must know or ought reasonably to have known that an employee has a disability before the duty to accommodate will arise, and that the employee seeking accommodation has the duty to bring the fact that they have a disability and the work-related needs arising from that disability to the attention of the employer: see Renaud v. Central Okanagan School District No. 23, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at para. 51.

69On the basis of the findings I already have made above, I find that when making the transfer request in March 2006, the applicant did not make known to the LCBO that she had a disability or provide a reasonable basis upon which the LCBO ought reasonably to have known that she had a disability. In particular, the applicant’s letter and the supporting letter from the Victim Services Program provided a list of symptoms rather than a statement that the applicant had a disability. Moreover, in her request letter from March 2006, the applicant expressly makes reference to “supporting medical documentation” being attached. However, the only supporting medical documentation attached was the note from the applicant’s family physician which did not state that the applicant had a disability or identify any work-related needs arising out of that disability. Rather, the family physician merely asked that consideration be given to re-locating the applicant. Such a letter has been referred to as a “polite request” in support of a request by an employee, rather than providing a sufficient medical basis to require accommodation under the Code: Re Toronto District School Board and CUPE Local 4400 (J.B.), 2010 CanLII 29128 (ON L.A.) at p. 9.

70The question arises whether, on the basis of the material submitted by the applicant in March 2006, there was an onus on the LCBO to inquire further in order to ascertain whether the applicant had a disability requiring accommodation. This was a major focus of the applicant’s submissions, namely that the LCBO at the very least should have requested further medical documentation from the applicant at the time it was considering her March 2006 request if it felt that the material provided was insufficient.

71There is no doubt that, in appropriate circumstances, there can be an onus on an employer to make further inquiries to obtain information as to whether an employee has a disability requiring accommodation: see Matheson v. School District No. 53 (Okanagan Similkameen), 2009 BCHRT 112 at para. 8; Wall v. Lippé Group, 2008 HRTO 50 at para. 80.

72The question is whether that onus to make inquiries arises in this case. In the circumstances, I find that it does not. The material provided by the applicant in March 2006 focused on the impact of her experience with the harassing customer and her concern for her personal safety. This was the primary basis upon which she was requesting that she be re-located out of the Toronto area to a place where it would be more difficult for this individual to find her. While the applicant framed her request as being on “compassionate and medical grounds”, not only did she not provide medical documentation indicating that she had a disability requiring accommodation but the medical note that she did provide made no mention of any disability or need for accommodation arising out of a disability.

73While the applicant’s letter and the supporting letter from Victim Support Services did describe some health-related symptoms that the applicant had been experiencing, these symptoms on their face are all understandable in light of the ordeal that the applicant had gone through. Having been stalked and harassed by this individual, it is understandable that the applicant would be experiencing stress, mental anguish, sleep disturbance and difficulty concentrating. When placed in this context, the reference to these symptoms in the March 2006 material does not, in my view, signal to the employer that the applicant has a disability requiring accommodation. Rather, they support her request on compassionate grounds by highlighting the kind of impact that an experience of being stalked and harassed would have on a person. Based upon Mr. Redwood’s evidence, which I accept, this is how the material submitted by the applicant was regarded, and this formed the basis of the LCBO’s decision to offer her the various transfer options set out in the May 9, 2006 letter on compassionate grounds.

74Further, given that a letter from the applicant’s family physician was included in the material submitted in support of the request and does not make any mention of the applicant having a disability, in my view it is unreasonable to require the LCBO, on the basis of the symptoms described by the applicant, to ask the applicant to inquire further from her own doctor as to whether she had a disability. If the applicant had a disability at that time for which she was requesting accommodation and was submitting a note from a doctor in support of that request, one would expect at the very least that the doctor’s note would say that the applicant has a disability.

75In any event, even if the LCBO was under an obligation to make further inquiries, there must be some evidence before me to indicate that, had such inquiries been made, medical documentation would have been provided to support that the applicant had a disability that required accommodation. As I have found above, such documentation was not provided in the hearing before me, from which I conclude that such documentation would not have been forthcoming even if inquiries had been made at the material time.

76Accordingly, I find that the material submitted by the applicant in support of her transfer request in March 2006 did not indicate that she had a disability that required accommodation, or give rise to a duty on the LCBO’s part to make further inquiries to solicit medical documentation as to whether the applicant had a disability requiring accommodation. As a result, I find that the applicant’s March 2006 transfer request did not give rise to a duty to accommodate a disability under the Code, and that the temporary transfer to Wasaga Beach and Collingwood was not a disability-related accommodation but rather was made on compassionate grounds.

77It is not disputed that, at the time of the March 2007 extension to the applicant’s temporary placement in Collingwood, no additional or further medical documentation was provided by the applicant regarding any disability or disability-related requirement for accommodation. As a result, there is no basis to support the applicant’s allegation that the LCBO was under a duty to accommodate a disability at that time, or that the temporary extension was a failure to provide proper accommodation under the Code.

Dismissal of application against the LCBO and personal respondents

78Having found that the applicant has not established by sufficient evidence that she had a disability within the meaning of the Code at the material times and that the transfer request she made in March 2006 did not engage the duty to accommodate a disability under the Code, I find that there is no support for the applicant’s allegations that she did not receive proper accommodation for a disability arising out of her March 2006 transfer request or the March 2007 extension.

79As noted above, the applicant conceded at the preliminary hearing that if I found either that the applicant did not have a disability or that her placement in the Collingwood store was not an accommodation for a disability, there was no basis to support her allegation that she experienced a poisoned work environment at the Collingwood store as a result of her co-workers’ reaction to her placement in that location. Given the findings that I have made, I further find that the necessary foundation for the applicant’s poisoned environment allegation does not exist and I therefore find that this allegation too is not supported.

80As also noted above, at the preliminary hearing, the applicant stated that she did not want or intend to proceed with her allegations relating to her WSIB injury if the other aspects of her application were dismissed. Accordingly, given that I have found that the applicant’s remaining allegations are unsupported, I find that she has withdrawn or abandoned the allegations relating to her WSIB injury and these allegations also are dismissed.

81As a result, the application against the LCBO and the personal respondents is dismissed in its entirety.

Application against OPSEU

82The applicant’s first allegation as against OPSEU is that it contributed to and participated in the poisoned environment that she experienced at the Collingwood store. I have found that the applicant’s allegation that she experienced a poisoned work environment at the Collingwood store because of a disability or because she was placed there as a disability-related accommodation is not supported by the evidence. As a result, I further find that there is no support for such an allegation as against OPSEU.

83The other allegations made by the applicant against OPSEU relate to the union’s representation of her in the grievance arbitration process. As stated by this Tribunal in Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 16:

I do not accept that, as a matter of law, a union can be found to have violated the Code merely because it has failed to properly or adequately represent one of its members. In Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996, 2009 HRTO 996, at paragraph 17 , 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.

84In my view, the applicant’s allegations against OPSEU relate to its representation of her in the grievance arbitration process, and not to any disability-related reason. Further, OPSEU did proceed with the applicant’s grievance to arbitration and it was the applicant’s decision not to participate further in the arbitration process which led to the grievance being dismissed.

85Accordingly, the application as against OPSEU is also dismissed.