Baber v. York Region Dist. School Board (No. 3)
2009-01419-I
2011-01-28
2011 HRTO 213
Ontario Human Rights Tribunal
CHRR Doc. 11-0713
Rozana Baber Applicant v. York Region District School Board Respondent
Before: Human Rights Tribunal of Ontario, Sheri D. Price
Appearances by:
Rozana Baber, on her own behalf
Roman Baber, Counsel for the Applicant
Brian O'Byrne, Counsel for the Respondent
DISABILITY — EDUCATION — teacher's employment terminated on the basis of anxiety disorder, cancer and depression — discriminatory employment condition imposed on disabled person — proof of disability — EMPLOYMENT EVALUATION AND TESTING — evaluation procedures to assess job performance — DISCRIMINATION — lack of medical reports, job performance and job qualifications as reasonable cause for discrimination — REASONABLE ACCOMMODATION — complainant's duty to accommodate — work duties — EVIDENCE — medical evidence
SEXUAL HARASSMENT — sexual advances by supervisor — reprisal for complaining about harassment — harassment away from the workplace — RETALIATION — threat to file human rights complaint — employment terminated after filing human rights complaint — BURDEN OF PROOF — onus on complainant
Summary: The Human Rights Tribunal of Ontario dismissed a complaint filed by Rozana Baber against the York District School Board. Ms. Baber alleged that she was discriminated against because of disability.
Hired in 2004, Ms. Baber was a secondary school teacher at Middlefield Collegiate Institute until the School Board terminated her employment in September 2009. Ms. Baber was diagnosed with anxiety disorder and depressive disorder in January 2007 and with chronic lymphocytic leukemia in June 2007. She alleged that her employer breached its duty to accommodate her by requiring her to undergo a Teacher Performance Appraisal ("TPA") and by failing to give her a teaching assignment as a teacher-librarian/ESL teacher during the 2008—2009 school year. She also alleged that her employer failed to accommodate her when it terminated her employment.
Teachers are required to have TPAs every five years. Ms. Baber was scheduled to have a TPA in November 2008 because there had been concerns raised by both students and teachers about her performance during the previous school year. Specifically, there was a high level of absenteeism and a low class average in the only class that Ms. Baber taught during the 2007—2008 year, which was English as a Second Language — History. In addition, Ms. Baber had worked in the Library in the 2007—2008 year and her performance had been poor. She did not have qualifications as a librarian and the Head Librarian was not willing to put her into the Library again.
In October 2008, Ms. Baber asked to have the TPA put off, and told the Principal that because she was ill, a TPA "would murder her". She also asked to change her teaching assignment to teacher-librarian (two-thirds time) and ESL teacher (one-third time), similar to the assignment she had had the year before. Ms. Baber was asked for medical documentation to substantiate her claim that the TPA should be put off because of illness, and that she was not able to perform the teaching duties that had been assigned to her.
Ms. Baber supplied a doctor's note that stated: "Due to increasing health issues please allow for this employee to be a teacher librarian". No particulars about the kinds of accommodation she needed were offered. Nor did Ms. Baber provide information about the medical basis for the accommodations she sought. Ms. Baber went off work on October 31, 2008. She was informed that she had three options: (1) apply for long-term disability; (2) permit the Disability Management Program to contact her doctor to clarify whether she was able to work as a teacher, and participate in the TPA process; or (3) undergo an independent medical evaluation. She did not choose any of these options.
In December 2008 and January 2009, she provided two notes from her psychiatrist and her doctor. Her doctor wrote that she had chronic lymphocytic leukemia and was not taking any medication. Her psychiatrist wrote that the change to three computer classes had proven too stressful for Ms. Baber, that she had been able to fulfill her curriculum of one-third ESL and two-thirds teacher-librarian during the previous school year, and that she was capable of resuming her teaching duties "but with some accommodation". The report did not identify Ms. Baber's restrictions or the accommodations she required.
The employer continued to ask her to select one of the three options or to provide more information through her own doctors. She was placed on medical leave without pay until August 1, 2009. In July she was informed that if she did not provide adequate information, her employment would be terminated. She did not respond and her employment was terminated in September 2009.
The Tribunal found that in order to trigger the duty to accommodate, Ms. Baber would have to show that the requirement to undergo a TPA or perform her regular teaching duties had an adverse effect on her because of her disabilities.
The Tribunal found that none of the medical notes addressed Ms. Baber's inability to undergo a TPA. There was no prima facie case of discrimination made out. Even if the duty to accommodate was triggered, the Tribunal found that the employer had fulfilled its duty to accommodate because Ms. Baber failed to co-operate in the accommodation process by refusing reasonable requests for information that would confirm her needs.
Similarly, the Tribunal found that Ms. Baber presented no medical evidence to support her claim that the accommodation she required was placement as a teacher-librarian/ESL teacher. The medical reports did not identify the physical or mental restrictions or the specific disability-related accommodations she required. The employer needed to know Ms. Baber's disability-related needs and restrictions in order to determine whether and how she could be accommodated. Again, the Tribunal found that Ms. Baber did not make out a prima facie case of discrimination because she did not show that the requirement that she fulfill her regular teaching assignment had an adverse effect on her because of disability.
Ms. Baber knew that her employer required additional medical documentation either explaining her ongoing absence from work, or facilitating her return to work, with or without accommodation. She consistently refused to provide the necessary medical information. The Tribunal found that the employer did not breach its duty to accommodate her when it terminated her employment.
The complaint was dismissed.
See also (No. 1) (2009), CHRR Doc. 09-0411, 209 HRTO 280.
CASES CITED
Baber v. York Region Dist. School Board (No. 2) (2010), CHRR Doc. 10-0641, 2010 HRTO 538: 132
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257, 1999 CanLII 652: 93
Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 16 C.H.R.R. D/425, 1992 CanLII 81: 95, 105
F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53: 87
Jagait v. IN TECH Risk Management Inc. (2009), CHRR Doc. 09-1041, 2009 HRTO 779: 82
Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177, [2002] O.J. No. 1504 (QL) (Sup.Ct.): 113, 161
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102, 1985 CanLII 18: 91
Simpson-Bowlyn v. Commissionaires Great Lakes (No. 2) (2009), CHRR Doc. 09-1850, 2009 HRTO 1362: 104
LEGISLATION CITED
Ontario
Education Act, R.S.O. 1990, c. E.2
s. 277.14: 11
Human Rights Code, R.S.O. 1990, c. H.19
s. 7(3): 5
s. 7(3)(a): 73, 81
s. 7(3)(b): 73, 84
s. 8: 2, 86, 111, 160
s. 11: 88
s. 11(1)(a): 93
s. 11(2): 93
s. 17: 88
s. 24: 88
s. 34: 2
s. 34(1): 74
s. 34(2): 74
INTRODUCTION
1The applicant was employed by the respondent as a secondary school teacher at Middlefield Collegiate Institute ("MCI") until the respondent school board (the "employer") terminated her employment in September 2009.
2The applicant filed an application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the respondent discriminated against her on the basis of disability in respect of employment and engaged in reprisals against her contrary to the Code. Among other things, the applicant alleges that the respondent breached its duty to accommodate her by requiring her to undergo a Teacher Performance Appraisal ("TPA") and by failing to give her a teaching assignment as a teacher-librarian/ESL teacher during the 2008—2009 school year. The applicant further alleges that the respondent breached its duty to accommodate her on the basis of disability when it terminated her employment in September 2009, and that the termination of her employment constituted a reprisal contrary to s. 8 of the Code.
3The respondent denies that it infringed the applicant's rights under the Code. The respondent contends that the applicant never provided sufficient information to allow the respondent to determine what, if any, workplace accommodations she required because of disability. It therefore denies that it breached its duty to accommodate the applicant when it refused to give her an assignment as a teacher-librarian/ESL teacher, or when it refused to cancel the TPA, which she was required to undergo in accordance with the provisions of the Education Act, R.S.O. 1990, c. E.2.
4The respondent further submits that it terminated the applicant's employment in September 2009 based on her ongoing refusal over the course of many months to respond to the respondent's reasonable requests for medical information either substantiating the applicant's absence from work and/or facilitating her return to work. It submits that terminating the applicant's employment on that basis did not infringe her rights under the Code.
5In her application, the applicant also alleged that she had been subjected to a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to her and reprised against for rejecting such solicitation or advance, contrary to s. 7(3) of the Code. For the reasons set out below, those allegations were dismissed at the hearing.
6The applicant testified on her own behalf and did not call any other witnesses. Annette Oliver, Principal of MCI as of August 2008 ("Principal Oliver"), and Dorothy Cammaert, Senior Manager with Human Resource Services for the respondent (the "Human Resources manager"), testified on behalf of the respondent.
BACKGROUND
7The applicant was hired by the respondent school board in January 2004. She began working as a secondary school teacher at MCI in September 2004.
8The applicant was diagnosed with anxiety disorder and depressive disorder in January 2007, and chronic lymphocytic leukemia in June 2007.
Teacher Performance Appraisals under the Education Act
9Pursuant to the terms of the Education Act, all teachers are required to undergo a TPA every five years.
10In addition to these mandatory TPAs, teachers may be subject to additional performance appraisals if the principal considers it advisable in light of circumstances relating to the teacher's performance: s. 5(2) of Ontario Regulation 99/02 under the Education Act.
11The purpose of performance appraisals is to ensure that pupils receive the benefit of an education system staffed by teachers who are performing their duties satisfactorily; to provide for fair, effective and consistent teacher evaluation in every school; and to promote professional growth: Education Act, s. 277.14.
12Principal Oliver testified that, practically speaking, a TPA involves a principal (or a vice-principal or superintendent as her designate) observing the teacher in the classroom.
Applicant Is Required to Have a TPA
13A superintendent of the respondent school board met with the applicant in May 2008 and informed her that she would be required to undergo a TPA during the 2008—2009 school year as a result of certain concerns about her teaching performance during the 2007—2008 school year. Specifically, there was a high level of absenteeism and a low class average (33 percent) in the applicant's only class during the 2007—2008 school year, English as a Second Language ("ESL") — Canadian History.
14The applicant confirmed these problems existed but attributed them to the fact that there were a number of students in her class who were "chronically" absent. She denied that the absenteeism or low class average in her ESL class was a reflection of her teaching.
Applicant's Teaching Assignment for 2008/09
15Annette Oliver took over as principal at MCI in August 2008. In that role, she was responsible for determining teaching assignments at the school, among other things. She testified that she made such assignments in accordance with teacher qualifications as well as the requirements in the Education Act, where applicable. Principal Oliver testified that pursuant to the Education Act, some subjects may only be taught by teachers who are specifically qualified in that area (e.g., French).
16According to the Certificate of Qualification issued to her by the College of Teachers, the applicant had senior qualifications in computer science and German (not offered at the school), as well as additional qualifications in English as a Second Language ("ESL") and Computers in the Classroom.
17Principal Oliver testified that, according to her Certificate of Qualification, the applicant was qualified to teach computers, as well as the wide array of courses which any qualified secondary school teacher is qualified to teach, such as English, history, geography, drama, etc.
18In August 2008, Principal Oliver assigned the applicant to teach two periods of a Grade 11 computer programming course and one Grade 9 information technology course (i.e., all computer courses) during the first term of the 2008—2009 school year and a computer engineering course, a web design course and a civics course during the second term. This represented a change from the 2008—2009 teaching assignment, which the applicant had initially been assigned by Principal Oliver's predecessor.
19By letter dated August 18, 2008, the applicant wrote to Principal Oliver thanking her for the teaching assignment change and acknowledging that it was much better than her previously anticipated assignment for 2008—2009. Nonetheless, the applicant asked that she be assigned to teach Grade 10 computer programming instead of Grade 11. The stated basis for the request was that the applicant was "seriously ill" and "physically incapable" of teaching the Grade 11 course because it would demand "several hours of extra work on a daily basis". The applicant also gratefully acknowledged that her lunch had been scheduled for the first period of the day during the first semester; and asked that that be continued in the second semester as it was "vitally important" for her.
20Principal Oliver granted the applicant's request and made the necessary changes to her teaching assignment.
2008—2009 School Year Begins
21The applicant commenced teaching in September 2008 in accordance with her new teaching assignment.
22On September 23, 2008, in follow-up to the meeting the superintendent had had with the applicant in May 2008, Principal Oliver wrote to the applicant confirming that she would be subject to a TPA during the 2008—2009 school year. No precise date for the TPA was established at that time.
23Principal Oliver assigned her Vice-Principal the task of conducting the applicant's TPA.
24The applicant testified that she learned on October 28, 2008, that the TPA would take place on November 5, 2008.
Applicant Asks that the TPA Be Deferred
25At the hearing of this matter, the applicant testified that she "knew" that she would fail a TPA and that the respondent was subjecting her to a TPA just so that it could "exterminate" her as a teacher. The applicant testified that TPAs were "very dangerous" for teachers because it was the only tool available for the respondent to discipline a teacher.
26On October 29, 2008, the applicant met with Principal Oliver, the Human Resources manager, and a union representative. During that meeting, the applicant asked that the respondent defer her TPA until 2012. Specifically, the applicant told the respondent that because she was ill, a TPA "would murder her". She also said that if the respondent proceeded with its plan to subject her to a TPA, its goal must be to "kill" her.
27During the October 29, 2008, meeting, the applicant also told the respondent that, in her view, she was entitled to have her TPA postponed pursuant to a respondent policy which provided that TPAs could be postponed in the event of illness or pregnancy.
28The applicant testified that she also told the Vice-Principal who was conducting her TPA that she was incapable of participating in the TPA process because of illness. She testified that he responded by demanding that she provide medical documentation substantiating her claim. The applicant testified that she refused to provide such documentation because the respondent already had ample medical documentation that she was ill.
Respondent Denies Applicant's Request
29In a letter to the applicant dated October 30, 2008, the respondent denied the applicant's request that her November 5, 2008, TPA be deferred. The respondent advised the applicant that the most recent medical documentation which the applicant had provided the respondent indicated that the applicant was capable of performing her full duties as a teacher. The respondent took the position that participating in teacher performance appraisals was part of those duties.
30The respondent went on to state that if the applicant was ill and did not believe that she could be held accountable through the TPA process for the work she was doing, there were options available for her to be off work while she regained her health. The respondent's October 30, 2008, letter outlined three options by which the applicant might substantiate her need to be absent from work for medical reasons, if she had such a need:
Apply for long-term disability ("LTD") benefits with supporting medical documentation from her treating specialist;
Consent to have a Registered Nurse with the respondent's Disability Management Program contact the applicant's doctor with a view to clarifying whether the applicant was able to work as a teacher, including participation in the TPA process; or
Undergo an independent medical evaluation ("IME") to determine whether the applicant was fit to work (including participation in the TPA process) with or without accommodations, or not fit to work.
Applicant Goes off Work
31The applicant testified that on Saturday, November 1, 2008, she suffered an acute anxiety attack and was taken to the emergency department of North York General Hospital. She was hospitalized and released the following day on November 2, 2008.
32The applicant testified that she did not feel that she was well enough to work the following day, Monday, November 3, 2008, and left a message to this effect on the school's voicemail on November 2, 2008.
Applicant Requests Change in Teaching Assignment
33The applicant testified that she called Principal Oliver some time during the week of November 3, 2008, to ask if she could return some tests to the school unmarked because she was "so bad" that she could not even mark them. Principal Oliver confirmed that she had a telephone conversation with the applicant on Monday, November 3, 2008.
34The applicant testified that during the above-noted telephone conversation, she asked Principal Oliver to change her teaching assignment to teacher-librarian (2/3) and an ESL teacher (1/3) as a workplace accommodation. The applicant testified that she wanted Principal Oliver to speak to the Superintendent about her request. She testified that Principal Oliver told her to contact the Superintendent directly but she never did so, because "she had no energy to talk to him".
35By contrast, Principal Oliver testified that during her November 3, 2008, conversation with the applicant, the applicant told her that she would be in to work the following day, November 4, 2008, and asked Principal Oliver to change her teaching assignment to place her "in the library" for three periods per day effective immediately. Principal Oliver denied that the applicant mentioned anything about teaching ESL during the call.
36I prefer Principal Oliver's evidence to that of the applicant with respect to the teaching assignment the applicant requested during the November 2008 telephone call. Principal Oliver's evidence is consistent with the medical notes dated November 11 and 17, 2008, which the applicant submitted shortly after the call and which notes request and/or recommend that the applicant be transferred to a "teacher-librarian" position, but make no reference to the applicant teaching ESL. Principal Oliver's evidence was also consistent with her written account of the telephone conversation contained in her November 3, 2008, email to the Human Resources manager and her November 4, 2008, letter to the applicant. Principal Oliver's evidence was also consistent with a November 20, 2008, letter from the applicant's trade union to the applicant, confirming the applicant's request for union assistance in securing her a "teacher-librarian" position.
37By contrast, the applicant's testimony about her request for a change in her teaching assignment was vague and lacking in detail. The applicant's evidence on this point was also inconsistent. She first testified that she did not directly ask Principal Oliver for a change in her teaching assignment. She then testified that she did — on the phone during the first week of November 2008. She subsequently testified that she had "begged" Principal Oliver to change her teaching assignment to teacher-librarian/ESL teacher on a two-thirds/one-third basis during a "private phone call" on or around August 24 or 25, 2008. However, this contradicted her opening submission that she had been asking for accommodation since November 2008 as well as her testimony that she wrote to Principal Oliver in August 2008 asking for a change in her assigned courses and her "request was met actually" and that she started the school year in courses arranged according to her request.
Respondent Denies Applicant's Request for Change in Teaching Assignment
38Principal Oliver testified that the applicant's request for three periods in the library was effectively a request that she be given a full teaching assignment as a teacher-librarian. Principal Oliver testified that she could not grant that request because the applicant did not have the minimum requirements under the Education Act to work as a teacher-librarian.
39Principal Oliver also testified that she was of the view that the applicant did not exhibit the skills, knowledge, attitude or work ethic required to support teachers and students working in the library. During the previous school year, the applicant had worked two periods per day in the school library (but not, Principal Oliver testified, as a teacher-librarian). Principal Oliver testified that when she became principal of MCI, she had received reports from the outgoing Head of Library that the applicant's conduct in that role had been "awful".
40In addition, Principal Oliver testified that when the applicant asked her to change her teaching assignment in November 2008, there was no opening in the school library. It was already fully staffed by the Head of Library (a fully qualified teacher-librarian with the required specialist qualifications) and another teacher.
41Principal Oliver testified that, for all of these reasons, during her November 3, 2008, telephone conversation with the applicant, she denied the applicant's request that she be placed in the library for three periods a day. Principal Oliver testified that she suggested to the applicant that she should work on obtaining her library qualifications if she wished to work in the library in the future.
42Following the November 3, 2008, telephone conversation, Principal Oliver wrote the applicant a November 4, 2008, letter in which she confirmed to the applicant that she could not place the applicant in the library and that, "subject to the receipt of medical information", the applicant was expected to participate in the TPA process. In her November 4, 2008, letter, Principal Oliver also suggested that the applicant seek medical assistance if she was too ill to perform her full teaching duties and referred her to the respondent's October 30, 2008, letter to the applicant and the three options outlined therein.
43The applicant did not return to work after the November 2008 telephone conversation between her and Principal Oliver. Her last day of work with the respondent was October 31, 2008.
Medical Evidence Regarding Request for Change in Teaching Assignment
44The applicant submitted two November 11, 2008, notes from her family doctor: one stating that the applicant was able to return to work November 12, 2008, and the other stating, "Due to increasing health issues please allow for this employee to be a teacher librarian". These notes were submitted by the applicant to her trade union, which then passed them on to the respondent.
45The applicant also submitted a November 17, 2008, note from her psychiatrist stating "I would concur with [the family doctor's] recommendation that if it is at all possible, Ms. Baber's health issues would be assisted by a transfer to a teacher-librarian position".
46Although the applicant sought to characterize her absence from work from November 2008 as a "suspension", there was no evidence to support the contention that she was disciplined by the employer. The Human Resources manager testified that the respondent was concerned about the state of the applicant's health and her ability to perform her duties as a teacher. The respondent took the position that the applicant's November 2008 medical notes were inadequate to support the applicant's return to work insofar as they did not confirm the applicant was capable of fulfilling the duties of a teacher, including participation in the TPA process. The respondent communicated this position to the applicant in an email dated November 12, 2008, and clarified it in a letter to the applicant dated November 17, 2008.
47In the November 12 and 17, 2008, correspondence, the respondent expressly told the applicant that in order to return to work she would have to choose one of the three options originally outlined in its October 30, 2008, letter referred to at § 30.
48The respondent's October 30, 2008, and November 17, 2008, letters to the applicant invited her to contact the Human Resources manager or the Registered Nurse Case Manager with the respondent's Disability Management Program if she had any questions or if she wished to discuss the options presented.
49The applicant did not contact the employer to indicate acceptance of one of the three options or otherwise. She testified that she was unwilling to apply for LTD because she wanted to work and was fit to do so. (However, she asserted that she was incapable of returning to work in her regular teaching assignment.) With respect to the other options, the applicant testified that she was unwilling to allow the respondent to contact her doctor because that would violate her right to privacy in respect of her medical information and allow the respondent to influence her doctors. She would not submit to an IME on the basis that it would be "fraudulent". She believed that since the doctor conducting the IME would be hired by the respondent, he or she would be considered to be the respondent's doctor. When asked what she did in response to the respondent's November 17, 2008, letter, the applicant testified, "Nothing. I did not do anything".
50The applicant discussed the employer's options with her trade union representatives in November 2008 and explained to them why she was not willing to agree to one of the employer's options.
51On November 20, 2008, the applicant's trade union wrote to the applicant to advise that, in the union's opinion, the medical evidence which had been provided by the applicant to that point in time was likely insufficient to entitle the applicant to the accommodation claimed. The union urged the applicant to obtain further medical evidence concerning her requested accommodation, if not by agreeing to one of the respondent's options, then by "requesting a medical report directly from [her] treating physician". The union pointed out to the applicant that this latter option, unlike the options proposed by the respondent, would "ensure. . . maximum control over the process and provision of medical information to the [respondent] and be least invasive to [the applicant's] privacy".
52In her responding November 20, 2008, fax to the union, the applicant stated that "no consent for the disclosure [would] be released".
53On November 21, 2008, the union wrote to the applicant again and reiterated that the respondent required additional medical evidence from the applicant explaining the medical rationale and/or the medical restrictions which required the applicant's accommodation in a teacher-librarian position. It again suggested the applicant consider obtaining the required medical information from her doctor directly and submitting it to the employer, thereby protecting her privacy to the greatest possible extent.
54In response, the applicant submitted a medical report from her psychiatrist dated December 8, 2008, which stated that the change to three computer classes had proven too stressful for the applicant; that she had been able to fulfill her curriculum of "1/3 ESL and 2/3 teacher-librarian" during the previous school year; and that the applicant was capable of resuming her teaching duties "but with some accommodation". However, the report did not identify the applicant's restrictions or the accommodations required.
55The Human Resources manager testified that, on December 12, 2008, she wrote to the applicant advising that her psychiatrist's December 8, 2008, report was deficient because it did not describe what accommodations the applicant required in order to resume her teaching duties. The Human Resources manager advised the applicant that the respondent required her to consent to having the respondent's Disability Management Case Manager follow up with her physician to clarify the nature of the necessary accommodations so that the respondent could move forward with the applicant's return to work.
56The applicant testified that she did not remember receiving the December 12, 2008, letter although it was addressed to the correct address. There was no dispute that the applicant did not respond to the December 12, 2008, request. She testified that this was not the first time that the Human Resources manager had asked for access to her treating physician and she had already communicated through her trade union that she would not give the respondent an opportunity to manipulate her doctors. She also testified that she responded to the December 12, 2008, request with the doctors' notes she submitted both before and after December 12, 2008.
57In early January 2009, the applicant submitted a December 19, 2008, doctor's letter stating that she had Chronic Lymphocytic Leukemia and was not taking any medication.
58The respondent responded in writing on January 10 and/or January 12, 2009, indicating that the medical information which had been provided by the applicant was still insufficient. The respondent confirmed that the applicant was not to return to work until she had chosen one of the three options proposed by the respondent and provided it with sufficient medical information.
59The applicant submitted a further doctor's note from her family doctor dated January 13, 2009. This note merely reiterated the information provided in the applicant's November 2008 notes in that it "recommended" that the applicant be allowed to teach 1/3 ESL and 2/3 teacher-librarian. It also stated, "For medical reasons, the applicant should start her day at 10 am". (In fact, the respondent had already granted the applicant's request to take the first period of the day as her lunch to allow for a late start to her day.)
January 27, 2009, Meeting
60On January 26, 2009, the respondent wrote to the applicant noting that its requirements for medical information had still not been met, despite many letters attempting to clarify what was required. The respondent suggested that it meet with the applicant in person to clarify its requirements and to facilitate the applicant's return to work.
61The Human Resources manager and another human resources staff person met with the applicant and her union representatives on January 27, 2009.
62At the January 27, 2009, meeting, the respondent went over the three options it had been consistently putting forward to the applicant since October 30, 2008, as possible ways to substantiate her need to be absent from work due to illness or to facilitate her return to work with or without accommodation. The respondent also invited the applicant to suggest any other options she might have for providing the respondent with the medical information it required. The applicant did not propose any. Rather, she continued to take the position that the medical documentation which she had already provided the respondent was more than adequate to return her to work with the accommodations she was seeking. The respondent maintained that the medical documentation received by the applicant was not sufficient in that it neither supported the applicant's return to her regular duties (including participation in the TPA process), nor did it specify what accommodations the applicant might require in order to return to work. It confirmed its position in this regard in a letter to the applicant following the meeting.
63In that letter, the respondent also advised the applicant that it was placing her on a medical leave of absence without pay until August 1, 2009, by which time the respondent expected the applicant to have selected one of the three options it had identified in order to provide the respondent with sufficient medical documentation regarding the applicant's status. The respondent advised the applicant that failure to select one of the options by August 1, 2009, would result in the termination of her employment.
64The applicant did not select any of the options by the deadline, nor did she submit any medical documentation to the respondent following the January 27, 2009, meeting.
65On February 11, 2009, the applicant's trade union wrote to the applicant again. In that letter, the union reiterated its view that the medical documentation provided by the applicant to date was likely insufficient to entitle the applicant to the workplace accommodation she sought. The union went on to say that the three options proposed by the respondent for satisfying its requirement for medical information were perhaps unacceptable. The union again urged the applicant to request a medical report supporting her accommodation request directly from her doctor. She could then submit the report to the respondent. The union even enclosed a letter for the applicant to give to her psychiatrist, which, had she done so, would have asked for a report addressing, among other things, whether the applicant had a mental disability; her prognosis for returning to work with or without accommodation; and identifying the applicant's medical restrictions.
66The applicant responded to the union with a February 12, 2009, fax, resubmitting the December 8, 2008, report from her psychiatrist. In her fax, the applicant also informed her union that her psychiatrist had since retired and that she would be seeing a new psychiatrist at the end of February 2009.
67In a February 24, 2009, letter, the trade union explained to the applicant that the December 8, 2008, report was already in the possession of the employer and in any event it was not helpful because it indicated that the applicant was capable of performing her teaching duties "with accommodation" but failed to specify the accommodations required. The union suggested that the applicant request a medical report from her new psychiatrist when she saw him/her later that month.
68The applicant testified that she received the union's February 24, 2009, letter but did not ask her new psychiatrist for a report supporting her accommodation request until after her employment had been terminated in October 2009. The applicant testified that she could not remember if she ever showed her new psychiatrist the February 12, 2009, letter which the union had prepared for her to give to her psychiatrist.
Termination of Employment
69On July 21, 2009, having not heard from her, the respondent wrote to the applicant urging her to choose an option by August 1, 2009, to provide the respondent with the medical information it required regarding her ability to work, with or without accommodation, failing which her employment would be terminated. The applicant did not respond.
70By letter dated August 5, 2009, the respondent notified the applicant that, in light of her decision not to respond to the respondent's request for medical information, the respondent was recommending that her employment be terminated at the August 25, 2009, meeting of respondent's Board of Trustees.
71The applicant informed the respondent that she would be out of the country at the time of the August meeting. Accordingly, the recommendation to terminate the applicant's employment was deferred to the September 2009 meeting to allow the applicant to attend. Ultimately, however, the applicant did not attend. At the September 2009 meeting, the respondent's Board of Trustees passed a resolution to dismiss the applicant for just cause effective immediately for the reasons given in the respondent's August 5, 2009, letter.
72After the termination of her employment, the applicant submitted an October 14, 2009, report from her new psychiatrist. That report was similar to the other medical notes the applicant had submitted to the respondent in that the applicant's psychiatrist stated her "belief" that the applicant could resume teaching with "some accommodations" which were "strongly recommended". The report also stated that the applicant had successfully worked as a teacher-librarian/ESL teacher in the past and the doctor "believe[d] the same duties [were] appropriate". However, the letter did not identify the applicant's specific medical restrictions or the nature of the recommended accommodations.
SCOPE OF THE APPLICATION
73In addition to her other allegations, in her application to the Tribunal, the applicant alleged that she had been discriminated against on the basis of sex. Specifically, the applicant alleged that she was subjected to a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to her contrary to s. 7(3)(a) of the Code; and subjected to reprisals for rejecting such solicitation or advance, contrary to s. 7(3)(b) of the Code.
74On the first day of hearing in this matter, I heard the respondent's motion that, pursuant to s. 34(1) and (2) of the Code, these allegations of discrimination on the basis of sex were not properly before the Tribunal because of delay in filing the application. At the same time, I also heard submissions from the parties regarding whether, assuming all of the facts alleged by the applicant to be true, the application made out a prima facie case of sexual solicitation or advance contrary to s. 7(3)(a) of the Code and/or reprisals for rejecting a sexual solicitation or advance contrary to s. 7(3)(b) of the Code.
75After hearing and considering the parties' submissions, I made an oral ruling at the hearing that I would not permit the applicant to pursue any allegations relating to events alleged to have occurred prior to the spring of 2008 (i.e., her allegations under s. 7(3)(a) and (b) of the Code) and indicated that the reasons for that ruling would follow. These are my reasons for that ruling.
76The applicant alleges that the former principal of the secondary school where she was employed as a teacher made a sexual solicitation or advance to her when, in March or April 2005, he invited her to have a Seder dinner with him and she refused. This is the entire factual basis for the allegation that s. 7(3)(a) was breached. The applicant does not allege that the former principal knew or ought to have known that his Seder invitation was unwelcome. Nor does she allege that there was anything explicitly sexual about the invitation. The applicant alleges that this was an "intimate" high holiday and that it could be implied that the former principal's invitation was a solicitation for a sexual act. Moreover, the applicant alleges that she interpreted the invitation as a sexual advance or a sexual solicitation. She alleges that, since the Code is remedial in nature and focused on protecting the rights of applicants such as herself, I should determine whether there was a sexual solicitation or advance on the basis of her subjective belief as to whether there was such an advance or solicitation, and not on the basis of whether there was such an advance or solicitation in an objective sense.
77Even assuming all of the applicant's allegations to be true, the applicant did not make out a prima facie case that her rights under s. 7(3)(a) of the Code were infringed. The fact that the principal of the school where the applicant worked invited her to a Seder dinner, in the absence of anything more, is not complete and sufficient to justify a finding that the principal made a sexual advance or solicitation of the applicant, even in the absence of any response to the allegations by the respondent.
78There was nothing inherently sexual in the principal extending a single invitation to the applicant to join him for a holiday dinner. Nor can I accept the applicant's submission that I ought only to consider her subjective belief about the nature of the invitation in determining whether the principal made a sexual solicitation or advance to the applicant. This is inconsistent with the wording of the Code, which requires the Tribunal to determine whether the applicant has in fact been subjected to a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to the applicant.
79My conclusion in this regard does not change even if I assume that the principal asked the applicant what part of the city she lived in and how she commuted to work, told her where he lived, and told the applicant that she could come to his office whenever she wished to talk to him. During her submissions, the applicant implied that the principal made such comments to her and suggested that they bolstered her claim that the 2005 Seder invitation was a sexual solicitation or advance. However, I find these comments by a principal to a teacher in his school to have been the sort of innocuous comments one might expect between colleagues in the workplace. They do not lend support to the applicant's claim that she was subjected to a sexual solicitation or advance. Nor are there any allegations about the context in which any of the principal's comments were made which would allow me to infer otherwise.
80Even if were to find that the Seder invitation was a sexual advance or solicitation (which I do not), there are no allegations that the principal knew or ought to have known that his invitation was unwelcome. This is an essential element of a finding that s. 7(3)(a) of the Code has been breached. In the absence of any allegation that the principal knew or ought reasonably to have known that his invitation was unwelcome, I could not find that the applicant's rights under s. 7(3)(a) of the Code were infringed.
81Thus, I found there was no prima facie case of sexual advance or solicitation under s. 7(3)(a) and dismissed this portion of the application at the hearing.
82The applicant submitted that I should not dismiss her allegations of sexual advance and reprisal on a preliminary basis. She submitted that the evidence of the former principal ought to be "tested" before I made a determination. In my view, however, this is not the legally correct approach. The applicant failed to make out a prima facie case of discrimination, assuming all of the facts alleged by her to be true. In my view, in those circumstances, it would not have been legally correct, nor fair, just and expeditious to require the respondent to answer the applicant's case: Jagait v. IN TECH Risk Management, 2009 HRTO 779 at § 19.
83The applicant also alleged that the former principal of MCI engaged in a number of reprisals against her for rejecting his sexual solicitation or advance (i.e., the Seder invitation in March or April 2005) contrary to s. 7(3)(b) of the Code. Among other things, the applicant alleged the former principal reprised against her as follows:
In and/or after February 2005, by refusing the applicant's request to have a mandatory TPA redone. (The applicant had received a "satisfactory" rating but wanted it redone because she believed she ought to have been rated as "good".)
By assigning or attempting to assign the applicant courses which she was allegedly not qualified to teach, such as math in May 2006 and economics in September 2006;
By exercising his discretion in September 2006 to require the applicant to undergo an "unwarranted" TPA in January 2007 and a further "unwarranted" TPA in May 2007;
By fabricating student complaints about the applicant in October 2006; and
By telling the applicant during a meeting in May 2008 that she should sign a consent form to give the respondent's Disability Management Program permission to contact her doctor. (The applicant refused. She conceded at the hearing that the principal did nothing further on this issue and retired shortly thereafter in June 2008.)
84In order for the applicant to establish that she was reprised against for rejecting a sexual solicitation or advance, she would have had to prove that she was subjected to a sexual solicitation or advance in the first place. Having determined that the applicant was not subjected to a sexual solicitation or advance by the former principal, the applicant's claim under s. 7(3)(b) of the Code must also fail and I dismissed her allegations in that regard at the hearing.
85The hearing proceeded on the merits of the applicant's claim that she had been discriminated against on the basis of disability and that she had been subjected to reprisals when the respondent required her to have a TPA in 2008—2009 and when it terminated her employment in September 2009.
ANALYSIS AND DECISION
86The applicant submits that the respondent breached its duty to accommodate her on the basis of disability by not assigning her teacher-librarian/ESL duties on a two-third/one-third basis during the 2008—2009 school year, and by requiring her to have a TPA in 2008—2009. The applicant also alleges that the requirement that she have a TPA during the 2008—2009 school year was a form of discipline and a reprisal by the respondent because she had refused to go off work on LTD. In addition, the applicant alleges that by terminating her employment in September 2009, the respondent engaged in a reprisal against her within the meaning of s. 8 of the Code, and breached its duty to accommodate her disability-related needs.
87The onus is on the applicant to establish, on a balance of probabilities, that the respondent infringed her rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test: F.H. v. McDougall, 2008 SCC 53.
Duty to Accommodate
88The duty to accommodate in respect of employment is not a free-standing obligation under the Code. It arises only pursuant to ss. 11, 17 or 24 of the Code where an employee is disadvantaged because of a prohibited ground of discrimination under the Code.
89Section 4.2 of the Ontario Human Rights Commission's Policy And Guidelines On Disability And The Duty To Accommodate succinctly explains how the duty to accommodate disability-related needs arises under the Code:
Section 11 of the Code, combined with section 9, prohibits discrimination that results from requirements, qualifications, or factors that may appear neutral but which have an adverse effect on persons with disabilities. This is often called "adverse effect", or "constructive" discrimination. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.
Section 17 also creates an obligation to accommodate, specifically under the ground of disability. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship.
90In other words, what the Code prohibits is discrimination — whether direct or adverse effect. The Code does not require accommodation in the absence of discrimination. Thus, an applicant who claims that her employer has breached its duty to accommodate her is really claiming that she has experienced direct or adverse effect discrimination because of disability, and that her employer cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship.
91As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Limited, 1985 CanLII 18, [1985] 2 S.C.R. 536 at § 28.
92In this case, if the duty to accommodate does arise, it must arise under s. 11 of the Code. It does not arise under s. 17 of the Code because the respondent does not assert that the applicant was incapable of performing the essential duties of her job and/or seek to avail itself of the defence in s. 17(1) of the Code.
93In order to trigger the duty to accommodate under s. 11 of the Code, the applicant would have to show that a neutral "requirement, qualification or factor" — such as the requirement that she undergo a TPA or perform her regular teaching assignment — had an adverse effect on [her] because of her disabilities. If the applicant thus made out a prima facie case of adverse effect discrimination, the onus would shift to the respondent to show that its requirement(s) were reasonable and bona fide, including, but not limited to, by showing that the applicant's disability-related needs could not be accommodated without undue hardship (s. 11(1)(a) and s. 11(2)). (See also British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652, [1999] 3 S.C.R. 3 at § 54 ("Meiorin").)
94Once 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.
95However, the duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee's needs may be accommodated without undue hardship. As the Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81, [1992] 2 S.C.R. 970 at 31 ("Renaud"):
. . . To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
. . . When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed.
TPA
96The applicant argues that the respondent breached its duty to accommodate her on the basis of disability by not exempting her from TPAs during the 2008—2009 school year.
No duty to Accommodate Because no Prima Facie Case of Discrimination
97As noted above, for the duty to accommodate to arise, the applicant must first establish that the requirement that she undergo a TPA had an adverse effect on her because of her disabilities.
98The applicant presented absolutely no medical evidence in support of her contention that she was incapable of having a TPA because of disability. The only evidence in this regard was the applicant's own assertion that she could not have a TPA because she was ill and that a TPA would "kill" her. The applicant testified that she found the prospect of having a TPA "very stressful" and that she was "afraid" to have a TPA because she thought it would lead to the termination of her employment. However, the applicant did not explain what it was about her disabilities which made her incapable of having a performance appraisal.
99The applicant's mere assertion that she was incapable of having a TPA because of disability is not evidence of that fact. Nor is there any other evidence that the applicant's disability prevented her from participating in the TPA process. I note that none of the medical notes submitted by the applicant addressed the applicant's ability to participate in the TPA process. The applicant has failed to establish in evidence that the respondent's requirement that she undergo a TPA during the 2008—2009 school year had an adverse effect on her because of disability and was therefore discriminatory.
100This alone is a sufficient basis upon which to dispose of the applicant's claim that the respondent breached its duty to accommodate the applicant by refusing to cancel or postpone her TPA. The issue of whether the respondent breached its duty to accommodate the applicant does not arise because the applicant failed to make out a prima facie case that the requirement that she have a TPA was discriminatory on the basis of a prohibited ground under the Code.
No Breach of Duty to Accommodate in any Event
101In any event, even if I were to assume, without finding, that the respondent had a duty to accommodate the applicant in respect of her claim that she was incapable of having a TPA because of disability, I would find that the respondent fulfilled its duty.
102According to the applicant's evidence, when she told the Vice-Principal who was responsible for conducting the TPA that she was incapable of participating in the TPA process because of disability, he asked her to provide medical documentation to substantiate that fact. The request for medical information was also implicit in Principal Oliver's November 4, 2008, letter to the applicant in which she told the applicant that she would be required to participate in the TPA process subject to the receipt of medical information.
103Through the Vice-Principal's explicit and Principal's Oliver's implicit request for medical documentation, I find that the employer took reasonable steps to ascertain whether the applicant had a disability-related need not to undergo a TPA, and thereby fulfilled the procedural aspect of any duty it would have had to accommodate the applicant. The substantive aspect of any duty to accommodate the applicant by exempting her from the TPA would not have been triggered because the applicant did not respond to the respondent's reasonable request for medical information.
104The applicant testified that she refused the Vice-Principal's request for medical documentation confirming that she was unable to participate in the TPA process because the respondent already had ample medical evidence that she was ill. It was not sufficient, however, for the applicant to have communicated to the respondent merely that she had a disability. Rather, the applicant had to inform the respondent of her disability-related needs and how those needs interacted with her workplace duties: Simpson-Bowlyn v. Commissionaires Great Lakes, 2009 HRTO 1362 at § 35. This she did not do.
105As the Supreme Court of Canada held in Renaud, supra, an employee seeking accommodation must do her part in the accommodation process as well. In this case, although specifically asked to do so, the applicant refused to provide the respondent with medical documentation confirming that she was incapable of participating in the TPA process and outlining the applicant's medical restrictions in that regard. Thus, even if I had found that the applicant had a disability-related need to be exempt from TPAs (which I have not), I would have found that it was the applicant's failure to respond to the employer's reasonable requests for medical documentation confirming her needs which caused the accommodation process to founder.
106The applicant failed to cooperate in the accommodation process when she refused to provide medical documentation to her employer confirming her needs. To the extent that the applicant might have had a need for accommodation which was not met, it was because of her refusal to respond to the employer's reasonable request for information. Pursuant to Renaud, the applicant's claim ought to be dismissed in such circumstances.
107The applicant's allegation that the respondent breached its duty to accommodate her on the basis of disability by requiring her to have a TPA is dismissed accordingly.
TPA as a Form of Discipline/Reprisal
108The applicant testified that she consistently resisted the attempts of a Nurse Manager with the respondent's Disability Management Program (as well as others) to get her to go off work on long-term disability leave. The applicant alleges that the requirement that she undergo a TPA during the 2008—2009 school year was a form of discipline and a reprisal because of her refusal to go off work on long-term disability leave.
109The respondent maintains that the TPA was required because of concerns about the applicant's teaching performance.
110There are a couple of problems with this aspect of the applicant's case. First, the Tribunal does not have jurisdiction to deal with claims of unjust discipline per se. The applicant may feel that the 2008—2009 TPA was a form of discipline and that it was unfair, but it is trite to say that the Tribunal does not have the jurisdiction to adjudicate general claims of unfairness.
111With respect to the applicant's claim that the 2008—2009 TPA was a reprisal for her refusal to go on a long-term disability leave, the Code does not prohibit "reprisals" in a general sense either. Section 8 of the Code, which prohibits reprisals, 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.
112Thus, to successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:
· claiming or enforcing a right under the Code;
· instituting or participating in proceedings under the Code; or
· refusing to infringe the right of another person.
113In addition, unlike other protections in the Code, in order to prove on a balance of probabilities that the respondent reprised against the applicant, the applicant must show that the respondents "intended" to reprise against her: Jones v. Amway of Canada, Ltd., [2002] O.J. No. 1504 (QL) (Sup.Ct.).
114The applicant in this case alleges that she was reprised against for refusing to go off work on LTD leave, not for doing one of the above. Nor is there any evidence that the 2008—2009 TPA was required based on the applicant doing any of the above.
115In her application, the applicant stated that she believed that she had been reprised against because she told the respondent in March 2008 that she was going to "address" the Ontario Human Rights Commission and because she wrote two letters of complaint in December 2008, one to the Ontario Human Rights Commission and one to the Minister of Education. However, that allegation was not borne out by the evidence. At the hearing, the applicant testified that she told the Human Resources manager in mid-September 2008 that, if the respondent proceeded with its plan to subject her to a TPA, she would write a letter of complaint to the Ministry of Education because she realized that a TPA would "murder" her. She did not testify as to the content of her intended letter or what the respondent knew or ought to have known in that regard. She testified that after she received the September 23, 2008, letter advising her that the respondent would be proceeding with her TPA as previously announced, she "decided not to fulfill [her] promise to write to the Minister of Education because the precise dates of the TPA were not announced". There was no evidence that she decided at a later time to write to the Minister of Education. There was no evidence at all about an intended or actual letter to the Ontario Human Rights Commission. Nor was the applicant able to produce a copy of any letter to the Minister of Education or to the Ontario Human Rights Commission. At any rate, even if the evidence had established that the applicant threatened to complain or did complain to the Ontario Human Rights Commission about the respondent's decision to require her to have a TPA, there were no facts alleged or evidence adduced which would allow me to conclude that the respondent required the applicant to have a TPA because of any such threat or complaint, or that it did so with the intention of reprising against the applicant.
116In any event, having considered all of the evidence, I prefer the respondent's version of events with respect to the reasons the applicant was required to have a TPA in 2008—2009.
117Principal Oliver testified that it was initially decided that the applicant would have a TPA in 2008—2009 based on concerns that had come forward during the 2007—2008 school year about the low class average and the high level of absenteeism in the applicant's only class, ESL-Canadian history. Specifically, Principal Oliver testified that the class average was only 33 percent and the class median grade was 29 percent. This was well below the provincial standard of a 75 percent median grade. Also, the applicant had given many of the students in her class "zero" grades which Principal Oliver testified was inconsistent with the respondent's practice and unacceptable pedagogically. Moreover, as of May 2008, only five out of 16 students enrolled in the applicant's class were going to pass the course. Principal Oliver testified that the low grades in the applicant's class were very unusual and highly unacceptable. She testified that the high level of absenteeism and low class average gave her "no confidence" in the applicant's ability to teach ESL to the respondent's "neediest students".
118For her part, the applicant acknowledged that a superintendent with the respondent school board met with her in May 2008 to tell her that she was to have a TPA based on the low class average and high level of absenteeism in her ESL class, as well as student complaints about her teaching. The applicant did not dispute that the grades in her class were low and absenteeism high. However, she did not feel that these problems reflected on her teaching performance. In her view, they reflected the fact that there were many students in her class who were chronically absent, not only from her class, but from other teachers' classes as well. These chronically absent students were responsible for the high rate of absenteeism and also brought down the class average, she said.
119The issue for the Tribunal, however, is not whether the problems with the ESL class were because of the applicant's teaching or some other factor. The issue is whether the respondent required the applicant to undergo a TPA because it genuinely had concerns about her teaching or whether it required the TPA because the applicant refused to go off on disability leave.
120The applicant alleges that the TPA was ordered because she refused to go off on LTD. However, other than her assertion that this was the case, there was no evidence connecting the respondent's decision to have the applicant undergo a TPA in 2008—2009 with her refusal to go on LTD.
121By contrast, the uncontradicted evidence is that there were major problems with the applicant's ESL class. I have no difficulty accepting Principal Oliver's evidence that those problems gave rise to concerns about the applicant's teaching performance, such that the respondent determined that a TPA was warranted. Principal Oliver's evidence in that regard was uncontradicted by any other evidence, rich in detail, thoroughly plausible and consistent with the documentary evidence, including the superintendent's May 2008 letter to the applicant and the grade report for the ESL class.
122Principal Oliver also attested to other concerns about the applicant's teaching performance which arose early in the 2008—2009 school year and which further solidified the need to have the applicant undergo a TPA, including but not limited to:
· Reports which Principal Oliver received upon her arrival as principal at MCI of "major problems" with the applicant's work performance in the library during the 2007—2008 school year;
· In September 2008, numerous written complaints from students that the applicant was refusing to answer questions;
· In September 2008, so many requests to transfer out of the applicant's class that had they been granted, the school would not have had a computer science program;
· In September 2008, a petition signed by 36 students asking that the applicant be replaced because of alleged incompetence;
· On September 17, 2008, Principal Oliver's personal and "disturbing" observation of one of the applicant's students in obvious physical distress because the applicant had refused him permission to go to the washroom. (The applicant confirmed that she refused the student such permission but attempted to justify this on the basis of her assertion that he did not really need to go.)
· On September 17, 2008, Principal Oliver's personal observation of many students in the applicant's class off-task, chatting, and surfing the web. When questioned by Principal Oliver, the applicant explained that she had not been able to get the computer program she wanted to use to work. This led Principal Oliver to conclude that the students were not being taught the curriculum even though they had been attending the class for approximately three weeks;
· On September 20, 2008, a complaint about the applicant submitted by a fellow teacher and the head of the computer science department expressing concern about the applicant's lack of professionalism in front of students; doubt about whether the applicant was adequately supervising her students; and informing the Principal that the applicant had admitted to not knowing the content of the courses she was teaching.
· In October 2008, a meeting with a student's non-English-speaking parents who were frightened because the applicant had phoned them at home and threatened them with legal proceedings after the student insulted her in class. Principal Oliver testified that the applicant threatened the parents with criminal proceedings. The applicant testified that she threatened to sue the parents as a way of preventing the student from returning to school. She testified that she "could not afford" to have the student show up at school because that would send a message to the other students that the administration did not respect her as a teacher.
123Based on all of the evidence, I find that the applicant was required to have a TPA in 2008—2009 based on the respondent's concerns about her teaching performance. In addition to the above-noted concerns about the applicant's ESL class, there is ample evidence that the respondent received complaints about the applicant from numerous students and at least one teacher. Principal Oliver's testimony in this regard was uncontradicted by any other evidence. (The applicant alleged that the complaints were fabricated by the respondent and that the respondent even bribed the one student to insult her in class in October 2008, as a way of justifying the "unwarranted" TPA, but there was no evidence in support of those allegations.) Principal Oliver's evidence was also confirmed by the documentary evidence, including numerous written and signed student complaints about the applicant, a copy of the above-noted petition, a copy of the department head's complaint about the applicant, and the formal written reprimand which the applicant received for threatening a student. In the face of the numerous complaints about the applicant and the concerns Principal Oliver had based on her own observations and interactions with the applicant, I am persuaded that the respondent decided that it was appropriate to proceed with its plan to assess the applicant's teaching performance through the TPA process.
124Moreover, other than the applicant's own belief and assertion, there is no evidence upon which to conclude that the respondent required the applicant to have a TPA in 2008—2009 because she refused to go on LTD or for any reason unrelated to concerns about the applicant's teaching performance.
125The applicant's allegation that the respondent required her to have a TPA because she would not go on LTD and thereby infringed her rights under the Code is dismissed.
Respondent's Policy on Postponing TPAs for Employees who Are Sick or Pregnant
126The applicant also contends that she ought to have had her 2008—2009 TPA postponed or cancelled pursuant to the terms of one of the respondent's own policies, which provides for the postponement of TPAs for teachers who are sick or pregnant. The respondent disputes the applicant's interpretation of the policy in question.
127Even if the applicant is correct that the respondent's own policy mandates that the applicant's TPA ought to have been cancelled or postponed, the Tribunal has jurisdiction to interpret and enforce the provisions of the Code, not the respondent's policies. The fact that the respondent has a policy providing that certain employees will be treated in a certain way does not mean that such treatment is required under the Code. The issue for the Tribunal is whether the respondent's refusal to cancel or postpone her TPA infringed her rights under the Code. As discussed above, the applicant has not established this.
Teacher/Librarian/ESL Teacher
128The applicant also alleges that the respondent breached its duty to accommodate her on the basis of disability by not changing her teaching assignment to that of a teacher-librarian/ESL teacher on a two-thirds/one-third basis.
129This allegation is also dismissed because the applicant has failed to establish that the requirement that she perform her regular teaching assignment had an adverse impact on her because of disability, and that she had a disability-related need to be accommodated as a teacher-librarian/ESL teacher.
No Medical Evidence that Applicant Required Accommodation as Teacher-Librarian/ESL Teacher because of Disability
130At the hearing of this matter, the applicant adduced no medical evidence either that she was incapable of performing her regular teaching assignment or that she required accommodation in a teacher-librarian/ESL position because of her disabilities.
131The applicant did produce several medical notes variously requesting and "recommending" that the applicant be placed in a teacher-librarian or a teacher-librarian/ESL position. The applicant also produced one note which stated that teaching three computer courses had proved "too stressful" for the applicant.
132However, in accordance with an earlier interim decision in this case, I give no weight to these medical notes, insofar as they relate to the applicant's need for accommodation on the basis of disability. Because the contents of the medical notes submitted by the applicant were very much in dispute and related to a central issue in the application, in the interest of natural justice, I ruled that I would give no weight to those portions of the medical reports regarding accommodation of the applicant unless the doctors who wrote the reports were made available for cross-examination: 2010 HRTO 538. I also ruled that the applicant's doctors would be permitted to testify by telephone if the applicant wished.
133The applicant was well aware of this ruling and its implications before the in-person hearing reconvened. Yet, she expressly declined to call her doctors as witnesses to testify on her behalf or to make them available for cross-examination at the hearing of this matter. Although the applicant summoned a number of other witnesses to the Tribunal in this proceeding, she told the Tribunal that she was unwilling to summon her doctors. She stated that she had spoken to her doctors about testifying but they were reluctant to testify and she did not want to put pressure on them.
134I note that even if I were to consider the applicant's medical reports, they fall short of establishing that the applicant required the accommodation claimed on the basis of her disabilities. Although the applicant's doctors recommend, request and otherwise suggest that the applicant would benefit from being assigned duties as a teacher-librarian, or as a teacher-librarian/ESL teacher, they do not go so far as to state that the applicant has a disability-related need for such accommodation.
135More importantly, the applicant's medical reports did not identify the applicant's physical or mental restrictions or the specific disability-related accommodations she required. It is not sufficient for a medical certificate to merely state that an employee would benefit from placement in a particular job. The medical practitioner's role in the accommodation process is not to identify the specific job in which an employee is to be accommodated but rather to identify the employee's disability-related needs and restrictions. It is then up to the employer, who has the ultimate responsibility for accommodation in the workplace, to take that basic information and to determine whether and how the applicant's disability-related needs might be accommodated up to the point of undue hardship.
136In light of the applicant's decision not to make her doctors available for cross-examination on their various medical reports, and in accordance with my earlier interim decision in this matter, to the extent the applicant's medical reports and notes relate to what, if any, workplace accommodations were required by the applicant, I give them no weight. This leaves only the applicant's evidence that she had a disability-related need to have her teaching assignment changed.
No Prima Facie Case of Discrimination on Basis of Disability
137As noted above, before inquiring into whether the respondent breached any duty to accommodate the applicant, the applicant must first make out a prima facie case of discrimination by establishing that the requirement that she perform her regular teaching assignment had an adverse impact on her because of her disabilities.
138At the hearing, the applicant was asked the basis for her position that she needed to have her 2008—2009 teaching assignment changed to that of teacher-librarian/ESL teacher. By way of response, the applicant testified that she had been in that assignment the previous year, in 2007—2008, and felt confident and relaxed while working in the library and that she always tried to do the job and to help the library technician. However, this is not sufficient to establish that the applicant was adversely affected by the requirement that she perform her regular teaching assignment. This only establishes that the applicant would have preferred another teaching assignment. It is trite to say that the Code requires employers to accommodate employee's disability-related needs, not their preferences.
139The applicant also argued that the respondent was obliged to place her in a teacher-librarian/ESL position in 2008—2009 because she had been given such assignment in 2007—2008 as a form of accommodation. Other than asserting this to have been the case, she called no evidence in support of her allegation. Indeed, during cross-examination, the applicant acknowledged that she only "assumed" that the respondent had "come up with the decision" to accommodate her in the library based on psychiatric reports the applicant had submitted. She admitted that she had never requested any such accommodation. Moreover, the applicant acknowledged that she had been placed in the library commencing September 2007 and that the first medical report upon which the respondent had purportedly based its decision to "accommodate" her there was not submitted until October 2007.
140For its part, the respondent disputed the allegation that the applicant was accommodated in the library in 2007—2008. Principal Oliver testified that the applicant was not placed in the library as an accommodation but rather to minimize the applicant's day-to-day contact with students in response to complaints about her teaching.
141The evidence is insufficient to establish that the applicant was accommodated in a teacher-librarian/ESL position in 2007—2008. At any rate, even if the applicant had established that fact, it would not relieve her, in my view, from proving that the requirement that she perform the duties assigned to her in 2008—2009 had an adverse effect on her because of disability.
142The applicant also testified at the hearing that, during the relevant time frame, she felt depressed, had little energy and was fatigued in the morning. With the possible exception of morning fatigue, which the respondent accommodated by granting the applicant's request that she take the first period of the day as her lunch, there was no evidence that the applicant communicated these things to the respondent during the time that she was asking to have her teaching assignment changed. In any event, there was no evidence about the relationship between the applicant's depression, morning fatigue or lack of energy and her regular teaching duties.
143The closest the applicant came to establishing that she had a disability-related need for a change in her teaching assignment was when she testified at the hearing that she could not concentrate during the "second" part of the day and this made it difficult for her to do the marking required as part of her regular teaching assignment. The applicant testified that there was "less marking" in the teacher-librarian role which made it a suitable accommodation for her, in her view. Other than difficulty marking, the applicant did not identify any other difficulties with her regular teaching assignment.
144Even taken at its highest, the applicant's evidence is not sufficient to establish that the requirement that the applicant perform her regular teaching assignment had an adverse impact on her because of disability. During her testimony, the applicant did not explain the extent or type of marking she was required to do as part of her regular teaching duties; what the "second" part of the day was; or why she had to do her marking then. In these circumstances, it is not clear to me that difficulty concentrating during the "second" part of the day meant that the applicant was adversely impacted by the requirement that she perform her regular teaching assignment such that she needed a different teaching assignment altogether.
145Expert medical evidence is not always or automatically required in cases under the Code to prove disability-related needs. For example, an employee in a full leg cast, would not need to call medical evidence to prove that s/he was unable to climb ladders. In a case such as this, however, it is far from obvious what needs the applicant might have had because of her mental and physical disabilities and how those needs affected her ability to perform her regular duties. To succeed in her claim, the applicant needed to prove that the requirement that she perform her regular teaching assignment had an adverse impact on her because of her disability. The applicant's own evidence as to her disability-related needs was more in the nature of mere assertions and was not sufficiently "clear, cogent and compelling" to discharge her burden of proof.
146The applicant clearly believed that her needs would be met if she were assigned duties as a teacher-librarian/ ESL teacher instead of continuing with her regular assignment teaching computer courses. However, the applicant has failed to establish that the requirement that she fulfill her regular teaching assignment had an adverse effect on her because of disability. She has thus failed to make out a prima facie case that the requirement that she teach the classes assigned to her in 2008—2009 was discriminatory on the basis of disability, such that the respondent's duty to accommodate would be triggered. This alone is sufficient to dismiss the applicant's claim that the respondent breached its duty to accommodate her by refusing to change her teaching assignment to teacher-librarian/ESL teacher on a two-thirds/one-third basis.
No Breach of Duty to Accommodate in any Event
147Even if I were to assume, without finding, that the respondent did have a duty to accommodate the applicant in respect of her request for a change in her teaching assignment, I would not find that the respondent breached its duty to the applicant. Rather, if the applicant had a disability-related need for a change in her teaching assignment, I would find that her need was not accommodated because of her failure to cooperate in the accommodation process and dismiss her claim on that basis.
148The applicant asked Principal Oliver to change her teaching assignment and submitted various medical notes recommending that the applicant be given a teacher-librarian or teacher-librarian/ESL teaching assignment. Those notes were not sufficient to support the applicant's accommodation request in that they failed to identify the applicant's disability-related needs or the physical and mental restrictions underlying the request for a change in the applicant's teaching assignment. The respondent was entitled to seek further information about the applicant's disability-related needs, at which point the applicant had a duty to co-operate in the accommodation process by providing her employer with medical documentation confirming those needs.
149This the applicant did not do. The applicant knew that her employer was seeking further medical information about her ability to perform her full teaching duties, including participation in the TPA process, and about the accommodations required to return the applicant to work. However, she chose not to provide such information. The applicant believed it was sufficient to provide the employer with notes from her doctors recommending that she be placed in a particular job. However, this was an error on her part. The respondent was not required to place the applicant in a job because her doctors wrote a number of notes recommending that it do so or because the applicant herself said she needed that job. The respondent was entitled to further information about the applicant's specific restrictions and disability-related needs. By refusing to provide such information, the applicant failed to co-operate in the accommodation process.
150I am somewhat troubled by the fact that the respondent told the applicant that she would not be permitted to return to work unless and until she agreed to one of the three options identified by the employer. In so doing, the respondent purported to limit the options by which the applicant might provide her employer with information about her disability-related needs. An employer has the right to require employees seeking accommodation to respond to reasonable requests for information about their disability-related needs. In general, however, it does not have the right to limit the means by which such information will be provided.
151In the circumstances of this case, however, I am not persuaded that this potential misstep by the respondent made any difference to the applicant's situation.
152For one thing, the applicant herself does not for a moment suggest that she would have conducted herself differently had the respondent not given her the three options in question, and thereby purported to limit the means by which she could respond to its requests for further information about her disability-related needs.
153The applicant testified as to her reasons for refusing the three options identified by the employer. However, there was nothing stopping the applicant from obtaining the required information directly from her doctors and submitting it to the employer. She obviously knew this avenue was open to her because she continued to obtain medical notes and submit them to the respondent even after she was told that she had only the respondent's three options. Even though the employer had not put this option forward, the applicant certainly could have pursued it on her own initiative.
154Moreover, in its letters to her of November 2008 and February 2009, the applicant's trade union made the applicant aware that she could obtain and submit her own medical information to the employer. The applicant's trade union also informed the applicant that she had a duty to cooperate in the accommodation process by responding to the employer's reasonable requests for information and that the documentation she had provided was insufficient to entitle her to the accommodation requested. In spite of this, the applicant maintained that the medical documentation she had provided was adequate and refused to respond to the respondent's need for further information.
155Finally, if the restrictive nature of the employer's options had been a problem for the applicant, she had the opportunity to correct it during the January 27, 2009, meeting. At that meeting, the employer told the applicant that it had identified its three options in an attempt to give the applicant the "widest possible selection" of options to provide the respondent with the necessary medical information. The respondent then invited the applicant to suggest other options by which she might respond to the respondent's need for further medical information either supporting her continuing absence from work or facilitating her return to work. When given this express opportunity, the applicant did not propose any other options. Instead, she maintained that she had provided the respondent with ample information to support her accommodation request and that the respondent was not entitled to any further information about her disability.
156For all of the above reasons, even if I had found that the respondent had a duty to accommodate the applicant in respect of her request for a change in her teaching assignment, I would have found that it was the applicant's failure to co-operate in the accommodation process by providing the employer with a reasonable amount of information about her disability-related needs which prevented such needs from being met.
157The applicant's allegation that the respondent breached its duty to accommodate her on the basis of disability by refusing to change her teaching assignment is dismissed accordingly.
Termination of Employment
158The applicant also alleges that the termination of her employment by the respondent in September 2009 was a further breach of the respondent's duty to accommodate her and a reprisal contrary to the provisions of the Code.
159The allegation that the termination of the applicant's employment in September 2009 infringed her rights under the Code was added to the application after it was filed. At the hearing, I granted the applicant's request to amend her application in this way.
Reprisal
160I deal first with the applicant's reprisal claim. The applicant alleges that the respondent terminated her employment in September 2009 because she had filed an application against the respondent in February 2009. She alleges that the respondent thereby reprised against her contrary to s. 8 of the Code. There is no doubt that filing an application with the Tribunal is within the scope of protected activities under s. 8 of the Code.
161As noted above, in order to prove on a balance of probabilities that the respondent reprised against the applicant for instituting proceedings under the Code by filing an application, the applicant must show that the respondents "intended" to reprise against her: Jones, supra.
162In this case, there was no direct evidence that the respondent intended to retaliate against the applicant for filing an application under the Code when it terminated her employment in September 2009. The applicant no doubt wishes the Tribunal to draw this inference because her employment was terminated after she filed her application under the Code. However, the mere fact that the applicant's termination post-dated the filing of her application is not a sufficient basis upon which to conclude that the respondent intentionally retaliated against the applicant in the circumstances of this case.
163The respondent contends that it terminated the applicant's employment not because she instituted proceedings against it before the Tribunal, but because she refused to satisfy or even respond to the respondent's need for medical information either supporting the applicant's ongoing absence or facilitating her return to work. The Human Resources manager testified that she met with the applicant on January 27, 2009, and reiterated the respondent's need for medical information about the applicant's ability to work. This was confirmed in a letter from the respondent to the applicant following the meeting. In that letter, the respondent also communicated that the applicant's employment would be terminated if she did not satisfy the respondent's requirement for medical information by August 1, 2009. The applicant's trade union was copied on that letter and wrote to the applicant about it on February 11, 2009. Thus, although the precise date on which the respondent wrote to the applicant following the January 27, 2009, meeting is not clear, it was certainly before February 11, 2009, and therefore before the applicant filed her application on February 19, 2009, and before the Tribunal sent the respondent Notice of the application on February 25, 2009.
164The fact that the respondent told the applicant that it intended to terminate her employment if she failed to provide it with sufficient medical information before she filed her application with the Tribunal goes a long way towards refuting the allegation that the respondent terminated the applicant's employment as a reprisal for filing an application under the Code.
165The applicant did not submit any additional medical information to the respondent after the January 27, 2009, meeting, despite the initial late January/early February warning and further written warning on July 21, 2009, that failure to do so would result in the termination of her employment.
166The Human Resources manager testified that August 1, 2009, was selected as the deadline for the applicant to respond to the employer's request for medical information because that was the longest possible time that the respondent was able to give the applicant. She testified that the applicant's employment status needed to be finalized by August 1, 2009, so that the principal at the applicant's school could make the necessary staffing decisions in advance of the 2009—2010 school year. This was confirmed by Principal Oliver, who testified that she needed to resolve the applicant's status before September 2009 so that she could ensure that there was a computer science teacher to go into the classroom when the school year began. She testified that computer science teachers were difficult to get.
167The Human Resources manager testified that by August 1, 2009, the applicant had been off work since October 31, 2008, yet had provided no medical documentation indicating that she was completely disabled from working. Nor had the applicant provided the information which would allow the respondent to return her to work with accommodation. The applicant stated at the hearing that she was unable to return to her regular duties as of November 2008 and that she needed accommodation in order to work. However, she failed to provide the respondent with information about her work restrictions or her specific disability-related needs. The Human Resources manager testified that in these circumstances the respondent was justified in terminating the applicant's employment.
168My task is not to determine whether the termination of the applicant's employment was justified in a general sense. The issue for the Tribunal is whether the respondent infringed the applicant's rights under the Code in the manner alleged when it terminated her employment.
169The Human Resources manager's and Principal Oliver's evidence about the respondent's motivation for terminating the applicant's employment when it did was internally consistent, consistent with the preponderance of the evidence (including the documentary evidence), and made sense. I accept it as credible and find that the respondent terminated the applicant's employment because of her failure to select one of the employer's options for providing the employer with medical information about the applicant's ability to work in advance of the August 1, 2009, deadline. I dismiss the allegation that the respondent terminated the applicant's employment as a reprisal.
Duty to Accommodate
170The applicant also argues that the respondent breached its duty to accommodate her when it terminated her employment. She argues that even if she did not "deserve" accommodation at work, the respondent knew enough about her medical condition to accommodate her without terminating her employment. In other words, the applicant argues that even if the respondent was not obliged to return the applicant to work by placing her in a teacher-librarian/ESL position, its duty to accommodate the applicant obliged it to tolerate her continued absence from work even while she refused to submit any medical documentation substantiating her absence from work or facilitating her return to work.
171I cannot agree. The duty to accommodate does not give employees permission to refuse to provide their employers with information about their ability to work with or without restrictions where there is a legitimate question about that, as was the case here. Nor does the duty to accommodate require an employer to tolerate an employee's ongoing unsubstantiated absence from work. (One possible exception to this is where disability prevents the employee from responding to his/her employer's request for medical documentation. There is no suggestion of that in this case.)
172The applicant in this case knew that her employer required additional medical documentation either substantiating her ongoing absence from work or facilitating her return to work with or without accommodation, failing which her employment would be terminated. She consistently refused to provide the necessary medical information. The respondent did not breach its duty to accommodate the applicant when it terminated her employment for her refusal or failure in that regard.
173The allegations that the respondent infringed the applicant's rights under the Code when it terminated her employment are dismissed accordingly.
CONCLUSION
174For all of the above reasons, the application is dismissed.
