HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tony Yandernoll
Applicant
-and-
Murray Brothers Lumber Company Limited
Respondent
DECISION
Adjudicator: Kathleen Martin
Indexed as: Yandernoll v. Murray Brothers Lumber
Appearances
Tony Yandernoll, Applicant ) Bruce Best, Counsel
Murray Brothers Lumber Company Limited, ) John Westdal, Counsel
Respondent )
INTRODUCTION
1This is an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990. c. H.19 as amended (the Code), alleging discrimination in employment on the ground of disability and reprisal. The Application arises out of circumstances surrounding the applicant’s leaving his employment with the respondent, a lumber manufacturing facility.
2The applicant alleges that he has a lung condition that is aggravated by green or fresh softwood. The applicant states that when he first identified having health issues related to his work in 2004, he was accommodated by being reassigned to work outside of the mill. The applicant alleges that the respondent violated the Code four years later, by telling him he was to report to a position in a different mill contrary to his doctor’s advice. The applicant alleges that the respondent failed to provide him with suitable alternative work and terminated his employment contrary to the Code.
3The respondent denies any violation of the Code. It argues that the applicant does not have a disability within the meaning of the Code. The respondent states that even if he does, it offered the applicant a position that was not inconsistent with the doctor’s note provided. The respondent further states that when the applicant expressed concern about the position, it offered him an alternative position which he declined. The respondent argues that it laid the applicant off at his request.
4This Application raises the following issues:
Does the applicant have a disability?
If he does, was the applicant discriminated against by the assignment to the boardway?
Did the respondent otherwise violate the Code by not making further inquiries at the time or offering the applicant alternative suitable work?
Was the applicant laid off for discriminatory reasons?
5Having regard to my findings and conclusions below, I do not find it necessary to address all of the above issues. While I find that the applicant has a disability, the applicant has not satisfied me that he was discriminated against by the assignment made nor was he reprised or otherwise discriminated against by being laid off. My reasons are set out below following a review of the evidence.
THE PROCEEDING
6The Application was initially filed against the organization respondent and an individual respondent, Tom Serran. At the outset of the hearing, I ruled orally that, on consent of the parties, Mr. Serran was removed as a respondent and the style of cause was amended accordingly.
7The hearing was held in Ottawa over two days. I heard from the applicant, his spouse and three witnesses for the respondent: Tom Serran, the employment health and safety coordinator; Terry Murray, president and part owner of the respondent; and Bill Bromley, a production manager. The parties made brief oral submissions at the hearing and filed additional submissions in writing.
THE EVIDENCE
8In general, the background and basic chronology of events was not in dispute and I accept the following summary as my findings unless indicated otherwise. Where the evidence of witnesses differed was in respect of the conversations that transpired between the applicant and Messrs. Serran and Murray regarding the proposed reassignment to the boardway. While I summarize the areas of contested evidence, I only make determinations where necessary to my Decision.
Background
9The applicant was employed with the respondent for approximately 27 years. The respondent’s manufacturing facility is located on a large acreage and consists of a number of lumber mills (where fresh or what is described as “green” logs are made into lumber) and other buildings such as warehouses, drying kilns and planers. During his employment, the applicant worked in a number of these work areas at various times. At the time he was laid off, the applicant was employed in Planer 2, a warehouse area where lumber (mostly dried) is trimmed and boards are piled and tallied. The applicant’s function was to pile and tally the lumber.
10The applicant had been in the position in Planer 2 since November 2004. Earlier in 2004, the applicant worked in the scrag mill as a trim saw operator cutting wood, a position he had held for approximately eight years. The wood in the mill was “green”, i.e. not kiln or air dried. The applicant began to experience breathing problems during the last few months working in the mill. He states that after working a couple of hours each day, he would get wheeziness and tightness in the chest and it would become difficult to breathe. He self-treated with Tylenol and allergy medication which helped a little bit with his symptoms. He also consulted his family doctor who recommended that he ask to move out of the mill.
11The applicant raised the issue with Terry Murray, president and one of the owners of the respondent. While neither the applicant nor Mr. Murray could recall details of what was discussed, their evidence was consistent that the applicant articulated a medical reason for the move. Mr. Murray agreed to move the applicant out of the mill and suggested that he did so because times were good and the applicant had not asked for any favours in the past. While there was some discussion about the need for a medical note, it does not appear that one was ever provided.
12Based on this evidence, while I accept the applicant was moved out of the mill for a medical reason, I do not find there was a shared understanding of the basis for or details of any accommodation that was required.
13In April 2004, the applicant was moved to a position on the grading line (where he piled mostly dry lumber into bins) and then in November 2004 to the position in Planer 2 that he held at the time of his lay-off. Neither position was located in a mill. Because the applicant’s symptoms resolved, he surmised that the condition had been caused by working with the green lumber, although he candidly acknowledged that he was uncertain as to the actual cause.
The Proposed Assignment in 2008 and Request for Accommodation
14In 2008, the respondent faced a downturn in its business which necessitated both lay off and reassignment of a number of employees. The respondent determined that there needed to be a reduction in the number of employees performing the work in Planer 2 and a reassignment of employees to a new shift in the mill. The applicant was one of the employees affected. He was told by Mr. Serran, Employment Health and Safety Coordinator, that he would be reassigned to the boardway in the band mill for a temporary period of one to two months. The applicant would be performing the same function as he did currently (i.e. piling and tallying lumber) although the position involved working with “green” lumber.
15The band mill is one of several mills on the respondent’s property. There was no dispute that there is no functional difference between the band mill and scrag mill other than the size of logs being processed; the band mill processes larger diameter logs while the scrag mill processes the tops of the trees. The boardway is a work area physically connected to the Band Mill by a large opening. The “boards” (hardwood and softwood) are cut out of green logs in the mill and then come on a conveyer belt through a large open area (estimated as 20 inches high by 20 feet long) into a room where the boards are piled and tallied. The applicant could not remember the last time he had worked in the band mill boardway but had not done so for approximately fourteen years. The applicant did not experience health problems at that time.
16On the evening he was told about his reassignment, the applicant telephoned Mr. Serran and reminded him that he had been moved out of the scrag mill because of health issues. Based on both their accounts, it is apparent that the applicant expressed the opinion that he did not want to work in the mill for health reasons. Mr. Serran said he had no recollection of the reason the applicant moved out of the mill and expressed skepticism and a need for a doctor’s note was identified.
17The applicant and Mr. Serran differed on whether or not the applicant disclosed the nature of the health issue. The applicant stated that he told Mr. Serran about his health problem (suggesting in cross examination that he had described the tightness in his chest) whereas Mr. Serran suggested that the applicant only referenced something about the “smell of the wood”. I accept the applicant’s evidence as it seems more probable and reasonable in the circumstances that the applicant would describe what he experienced as opposed to merely opining on the cause of his condition.
18On the following day, the applicant went to his doctor and obtained a note. The note dated November 19, 2008 provided as follows:
Tony was suffering health problems when working in the mill and boardway. Since changing to the planer, the problem has settled. He should not return to the previous work place.
The Response to the Request for Accommodation
19On November 20, 2008, the applicant provided Mr. Serran with a copy of the doctor’s note. I heard from both Mr. Serran and the applicant on the ensuing discussion. It is apparent from both their accounts that Mr. Serran continued to be skeptical about the applicant’s condition and the medical information, asking, among other things, why he went to the doctor in a different location from where he lived. Mr. Serran also suggested that the boardway was not the same as the mill, which the applicant disputed, suggesting that both locations would cause problems for him. Mr. Serran also expressed the view that he may have to move the applicant somewhere else, and the applicant replied by suggesting that he remain where he was in Planer 2. At this point, Mr. Serran told the applicant he should speak to Ted Murray, one of the owners of the mill. The applicant responded that he would talk to Terry Murray instead, since he had helped him previously referencing the assignment out of the scrag mill in 2004.
20Mr. Serran specifically testified that he offered the applicant a specific position in Planer 1, which he refused. This evidence was corroborated by Mr. Bromley, a production manager. Given my findings below, I do not find it necessary to determine whether or not a specific position was offered.
21Following the meeting, Mr. Serran advised various members of the respondent’s management of his conversation. In a memo dated November 20, 2010, Mr. Serran confirmed that an exchange worker would be required for the mill shift because of the doctor’s note (which was referenced as attached) and included a reference that he was intending to switch the applicant with another employee but the applicant would not go. The memo also noted that Mr. Serran thought the applicant was “allergic to work” which Mr. Serran explained he wrote in frustration because the applicant had refused to go the mill boardway which he thought was reasonable.
22Mr. Serran went to see Ted Murray, one of the owners of the respondent, showed him the doctor’s note, and advised of the job offer and purported refusal. He states that Ted Murray was angry since the company was facing difficult times and instructed him to tell the applicant to “report to the mill as requested or stay at home”. Mr. Serran prepared a memo to this effect and hand-delivered it to the applicant.
23Mr. Serran acknowledged that in the usual course when an employee requests accommodation the respondent provides a functional abilities form to the employee to take to their doctor. He states that this was not done in this case because the applicant did not want to talk about his condition and he was skeptical as the job was in the boardway and not the mill.
The Telephone Call with Terry Murray
24The applicant did not report to the mill on his next scheduled work day. Instead, he contacted Terry Murray, who had assisted previously with his transfer out of the scrag mill in 2004. Until this point, the applicant had had no contact with Mr. Murray about the proposed reassignment because he had been away on vacation.
25According to the applicant, he asked Mr. Murray if he knew what was going on and Mr. Murray replied that he did and he was unable to help him this time as the people in the office thought the applicant’s condition was a “put-on”. The applicant states that he told Mr. Murray about his condition (i.e. being short of breath) and Mr. Murray recommended that the applicant may want to see a specialist. The applicant asked about his status and whether he was being fired or laid off. While initially Mr. Murray suggested that it was neither and he would have to quit, by the time the conversation ended, Mr. Murray stated that he would be laid off.
26The applicant was cross-examined about the state of the medical evidence. He candidly acknowledged that a note from a specialist probably would have changed things but indicated that he did not feel that he should go any further in this regard.
27Mr. Murray gave a somewhat different account of the telephone call. According to Mr. Murray, the applicant stated that he could not return to the mill and Mr. Murray advised him that he had never produced the medical note four years earlier and hence he had nothing to stop “them” from moving the applicant to the boardway. Mr. Murray stated that he needed something to justify the applicant’s request and recommended a specialist that treated his son for an allergy. Mr. Murray stated that although asked, the applicant did not disclose details to him of his medical issue. He also stated that he understood the applicant had already quit his employment and at the applicant’s request agreed to lay-off him off.
28Given my findings below, I do not need to resolve all of the areas of dispute in the respective accounts of the applicant and Mr. Murray. I do find that there was continued skepticism expressed about the legitimacy of the request and the need for additional medical information was identified. To the extent there is a difference of whether or not the applicant disclosed his condition of being short of breath, I prefer the applicant’s evidence. It seems more reasonable and probable that the applicant disclosed his condition hence the suggestion that he may want to see a specialist (and one who treats allergies).
29The applicant was laid off. The applicant did not have any further contact with the respondent nor did they seek to contact him.
30The applicant provided evidence of his efforts to obtain employment elsewhere. The applicant stated that he did not apply for any positions with other lumber companies because of his health concerns but candidly acknowledged he was not interested in any positions in lumber companies (even those outside of a mill) because he wanted to go on a “different career path”.
ANALYSIS AND DECISION
31Section 5 of the Code provides that every person has a right to equal treatment with respect to employment, without discrimination because of, among other things, disability. The Code prohibits discrimination whether direct or adverse effect. Section 11 codifies adverse effect discrimination. Under section 11 the right to equal treatment is infringed where a requirement, qualification or factor that appears neutral results in unequal treatment on the basis of a prohibited ground of discrimination. While the Code addresses direct and adverse effect discrimination separately, the underlying issue is the same: whether or not the applicant faces some burden or disadvantage as a result of his identification with a prohibited ground.
32The onus is on the applicant to establish, on a balance of probabilities, that he has a disability and the respondent infringed his rights whether by direct or adverse effect discrimination. Where the applicant establishes a breach of section 5, the onus shifts to the respondent to establish that it has met its procedural and substantive obligations to accommodate the applicant to the point of undue hardship.
Did the applicant have a disability within the meaning of the Code?
33The respondent argued that the applicant has not established that he has a disability within the meaning of the Code. The respondent argues that in this case, the applicant experienced a sudden onset on wheeziness and shortness of breath which he treated with Tylenol and allergy medication. The respondent argues that there is no diagnosis, no indication of what restrictions the applicant faced, no follow up with a specialist and no tests or medication prescribed. As such, the respondent argues that the applicant’s health problems are more akin to an ailment than a disability triggering the duty to accommodate.
34The applicant argues otherwise, relying on the oral evidence heard as well as the medical documentation submitted. In addition to the note referenced above, the applicant relies on an additional medical note from his doctor dated November 13, 2009. This note reviews the applicant’s condition confirming that “He also would feel short of breath when he was cutting softwoods in the mill” and concludes with the following:
We do not have any specific allergy testing because [sic] I am not clear it would be particularly helpful, medically. His symptoms certainly seem related to his workplace environment and that I felt and still feel that, given his clinical improvement out of that particular workplace, would seem prudent to keep him out of that workplace.
35I am satisfied that the applicant had a disability within the meaning of the Code. While I accept that there is no specific diagnosis of the applicant’s underlying condition, I do not find that the absence of a diagnosis or a specific label being attached to the condition is determinative of the issue. The definition in section 10 of the Code encompasses “any degree of physical disability, infirmity ….caused by bodily injury, birth defect or illness” (emphasis added).
36In this case, I found the applicant credible and accept his evidence that he experienced breathing difficulties while working as a trim saw operator in the mill, evidence which was unchallenged by the respondent. I find that this fact of breathing difficulties which manifested while working in a particular environment and was ongoing for a period of months is sufficient to establish a disability within the meaning of the Code.
37However, based on the evidence given, I do not find that I can conclude that the applicant’s condition is a “lung condition aggravated by green or fresh softwood” as suggested by him. I note that this description was identified for the first time in final submissions. While the description is consistent with the view expressed by the applicant at one point in his evidence, the applicant candidly admitted that he did not know the precise cause of his symptoms.
38Further, while I have considered the doctor’s notes, I do not find that either note allows me to conclude that green wood is the cause of the applicant’s breathing difficulties. The doctor’s note of November 19, 2008 does not address cause. While the doctor’s note dated November 13, 2009 indicates that the doctor “suggest[ed]” in 2004 “that he should be transferred to another part of the mill that dealt with dry woods” this reference is inconsistent with the applicant’s evidence given in the hearing which was to the effect that the advice was limited to getting out of the mill. Considering all of the evidence including the applicant’s testimony that the doctor’s notes were based entirely on his self reports and that no assessments were ever done, I do not find I can reasonably conclude that green wood is the cause.
Did the requirement to report to the boardway discriminate against the applicant?
39The applicant argues that the requirement that he report to the boardway was discriminatory. While the applicant did not specifically frame his argument as either direct or adverse effect discrimination, I am satisfied that from either perspective, he has not established that he was discriminated against by the assignment.
40While there was some evidence given by the applicant that he believed that he was being targeted in this assignment I did not understand the applicant to be suggesting that it was because of his disability, and in any event, this contention was not pursued in final submissions. On the basis of my findings, I am unable to infer that the applicant’s disability was a factor in the respondent’s decision to assign him to the boardway in the first instance. At the time the decision was made to reassign the applicant he was one of many employees affected and there was no evidence that Mr. Serran, who was making the assignments, recalled that the applicant had been moved out of the mill for a medical reason.
41Applying section 11 to the circumstances, the issue is: did the requirement to report to the boardway result in the exclusion or restriction (or otherwise have an adverse impact) on the applicant?
42In addressing this issue, I am not satisfied that the evidence establishes that the requirement to report to the boardway had or would have an adverse impact on the applicant. Based on the evidence presented in the hearing, I have difficulty inferring that it is more probable than not that the applicant would experience the same symptoms if he were to work in a different job (piling and tallying lumber) and in a different area of a mill from that where he experienced his symptoms four years earlier. The applicant’s opinion is based on his experience performing a specific job in one of the mills and the fact that his symptoms resolved when he left that job. The applicant has no personal experience of having health issues in the boardway nor do the medical notes directly address the boardway job (the reference to the boardway in the medical note of November 19, 2008 is in error). The medical notes are based on the historical self-report of the applicant’s experience and not any independent testing or assessment. Based on this evidence, while it may be possible that the applicant would be affected by the assignment, I cannot conclude that it is more probable than not. As a result, I do not find that the applicant has met the burden of proving that he has been discriminated against on the basis of his disability by the assignment to the boardway.
Did the respondent otherwise violate the Code by not making further inquiries at the time?
43The applicant argued that the respondent’s conduct breached the Code because once he made a request for accommodation and presented medical evidence in support it was incumbent on the respondent to inquire further as to the nature of the restrictions in place and to offer the applicant suitable work. The applicant argued that the respondent should have asked the applicant to have his doctor complete the Functional Abilities Form and its failure to do so, in and of itself, constitutes a breach of the Code. In support of this argument the applicant relies on the Ontario Human Rights Commission policy “Human Rights At Work 2008” (Human Rights at Work 2008 – Third Edition (Ontario Human Rights Commission 2008) and O-I Canada Corp. v. United Steelworkers of America, Local 260G (N.A. Grievance) [2005] O.L.A.A. No. 170.
44Arguably, based on what the respondent knew at the time of the events, the respondent had an obligation to make further inquiries about the nature of the applicant’s condition. The applicant had given them a medical note which identified health problems arising out of the applicant’s previous job assignment. The respondent was skeptical about whether the note provided a sufficient basis for the applicant’s refusal to accept the boardway assignment. Although the skepticism was reasonable and this was conveyed to the applicant, no serious opportunity was given to the applicant to obtain clearer medical documentation.
45However, ultimately, in the circumstances of this case, having heard all the evidence, I do not find it necessary to address whether the company fell short of the procedural component of the duty to accommodate or otherwise violated the Code by failing to offer the applicant other work. At the end of the day, the applicant has not convinced me that he had a disability that prevented him from taking the assignment to the boardway. I cannot conclude, on the basis of all the evidence, including the medical note obtained after the events that the applicant was or would have been adversely affected by the assignment to the boardway. Neither the medical note of November 2008 (which erroneously refers to the applicant having had health problems while working in the boardway) nor the note of November 2009 provide a clear answer to the question of whether the applicant, because of a medical condition, was unable to work in the boardway.
46Further, and in any event, I am not convinced that providing the applicant with a further opportunity to provide more medical evidence at the time would have led to a different result. Based on his own evidence the applicant was aware the respondent did not accept that his condition prevented him from working on the boardway and did not find the medical documents he had provided were sufficient. Notwithstanding this understanding, the applicant did not appear receptive to seeking further medical information. As the applicant testified, he did not feel he should have to go any further in seeing a specialist. Finally, I have received an additional medical note in this proceeding and while there is some additional comment from the applicant’s physician, I do not find it establishes the applicant’s assignment to the boardway was discriminatory.
Was the applicant discriminated against by the lay off?
47The applicant initially claimed he experienced a reprisal when he was laid off after asking for accommodation of his disability. In his final submissions, counsel for the applicant did not make any specific submissions as to how the circumstances constituted a reprisal within the meaning of section 8 of the Code, although he did argue that the applicant was fired for refusing to report to the boardway job.
48In order to establish a claim of reprisal the applicant must demonstrate that he 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 under the Code. Unlike other protections in the Code, reprisal requires evidence of an intent on the part of the respondent. See Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Ont. Sup. Ct.).
49I do not find that the applicant has established that the respondent “intended” to reprise against him because he asked for accommodation. I find the respondent’s direction that the applicant report to the job in the boardway or stay home was based on its view that the boardway job was appropriate for him. The applicant has not convinced me otherwise. I therefore do not find that the resulting layoff was contrary to the Code.
Conclusion
50The applicant has not established that he was discriminated against on the basis of his disability by the assignment to the boardway. Having regard to my conclusion, I do not find it necessary to address the duty to accommodate beyond the comments made above. Further, given that I have concluded that there was no discrimination in the assignment, I do not find that there is any liability for the resulting lay-off.
51I understand the applicant’s perception of the events and the resulting circumstances. Given that the applicant had breathing difficulties while working in the mill, I accept that he was genuinely concerned about returning to a work area connected to another mill. However, based on the evidence, I am unable to come to the conclusion that his opinion, while genuinely held, supports a conclusion that the assignment to the boardway discriminated against him on the basis of his disability.
52The Application is dismissed.
“Signed By”
Kathleen Martin
Vice-chair