HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Davis
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
City of Toronto
Respondent
-and-
Toronto Professional Firefighters’ Association
Intervener
DECISION
Adjudicator: Sherry Liang
Indexed as: Davis v. Toronto (City)
APPEARANCES
Robert Davis, Complainant ) Self-represented
Ontario Human Rights Commission ) Raj Dhir, Counsel
City of Toronto, Respondent ) Darragh Meagher, Counsel
Toronto Professional Firefighters’ Association ) Howard Goldblatt, Counsel
Intervener )
INTRODUCTION
1This is a complaint arising out of the refusal of the City of Toronto Fire Service (the “City” or the “Fire Service”) to hire Robert Davis as a firefighter. Mr. Davis and the Ontario Human Rights Commission (the “Commission”) allege that this refusal was contrary to the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”), in that Mr. Davis was treated unequally based on a perception that he had a disability. It is said that the Toronto Fire Service withdrew a conditional offer of employment to Mr. Davis when it learned of a prior knee injury. The Commission and the complainant take the position that this prior injury resulted in no functional limitations in Mr. Davis’ ability to perform the job of a firefighter, and the refusal to employ him was therefore based on discriminatory assumptions.
2In response the City takes the position that in his application, Mr. Davis knowingly failed to disclose the true state of his medical history, that he had a prior knee injury resulting in severe osteoarthritis. They say this resulted in a breach of trust that warranted the withdrawal of the conditional offer of employment. Further, the City states that the complainant’s medical condition raised a significant safety concern, which it was entitled to take into account in its decision not to hire him.
3On consent of the parties, the Toronto Professional Firefighters’ Association was added as an intervener to the Complaint. It did not take a position on the merits of the Complaint. The Association did not call evidence and made submissions at the conclusion of the hearing only on the remedies requested by the Commission and complainant.
4This complaint has taken many years to reach its conclusion, for various reasons. The events at the heart of the complaint occurred in 1999 and 2000. The complaint was filed with the Commission in December 2000. In January of 2004, the Commission referred the complaint to the Tribunal for a hearing. Efforts at mediation were unsuccessful and a hearing was convened before former Vice-chair Mary Ross Hendriks. After a decision on a preliminary motion concerning production of documents, 2005 HRTO 7, Vice-chair Hendriks heard evidence from the complainant and three other witnesses in support of the Commission’s case over the course of 9 days in October and November of 2006.
5For reasons described in the Tribunal’s Interim Decision of February 27, 2008, 2008 HRTO 15, Vice-chair Hendricks was unable to complete the hearing. The hearing began anew before me on June 3, 2008. The parties made efforts to narrow the scope of evidence required, through partial agreement on the facts; however, the complaint ultimately required approximately 21 days of hearing ending in September 2009.
EVIDENCE
6Despite its volume, much of the evidence was not in dispute. Where necessary to resolve a conflict in the evidence in order to arrive at my determinations, I indicate my reasons for doing so. I will begin with a chronology of the events, and then turn more specifically to the evidence on the misrepresentation issue, and then the medical evidence.
The Application Process
7The City’s Career Guide for Firefighting describes the application process for a firefighter position. The Guide has been revised over the years but the essential components of the process in 1999 were: a written application form; successful completion of a fitness test (described below); successful completion of a medical examination; an oral interview; other prerequisites such as first aid certification and a driver’s license.
8The Career Guide describes the medical examination as consisting of a review of health history, an electrocardiogram, blood work and urinalysis, a physical examination related to firefighter duties and a test of eyesight and colour vision. The Guide states that in undergoing a medical examination, candidates must “successfully meet the required standards of Probationary Fire Fighter”. A particular standard is specified for vision; no other physical or medical standards are prescribed.
9In January 1999, the complainant applied to become a firefighter with the City of Toronto. At the time he made his application, he was 33 years old. He had worked in various jobs since graduating from university in 1991, and at this time held part-time positions as a bartender and doorman and in sales distribution. In 1998, he returned to school part-time to attend the Fire Service Career Preparation Certificate program at Seneca College, which he was still attending when he applied to the City.
10The complainant has been involved in athletics throughout his life. He played lacrosse and football in high school, was on a national level junior lacrosse team and, in university, played for the University of Toronto Varsity Blues football team. He has engaged in extensive weight training for many years, taken up boxing and was a kickboxing instructor. He also worked as a personal trainer. It is fair to say that at the time of his application to the City, the complainant had a high level of physical fitness, was very physically active and took pride in his athletic and physical abilities.
11In the initial part of the application process to become a firefighter, the complainant wrote a written test. Following that he was invited to proceed to the next stage involving, among other things, an Occupation Specific Vision, Hearing and Fitness Assessment (the Gledhill Shaw test) from York University. The City was one of a number of municipalities using the Gledhill Shaw test as part of its hiring process. However, the test was not intended to be the sole means of screening. Applicants were advised by York University through a written statement on the test results that it did not cover all components of the medical screening protocol for firefighter applicants. They were further told that meeting the minimum standards may not be acceptable for some municipalities. The test results were valid for six months after completion.
12The Gledhill Shaw test includes tests for eyesight and hearing. There is also an assessment of an applicant’s body composition (body fat), cardio-vascular respiratory fitness, abdominal endurance (sit-ups) and trunk flexion. Seven job-related performance tests are administered, designed to simulate the physical demands of a fire fighter’s job requiring both muscular strength and endurance. Among the components are a ladder climb, a search in an enclosed area, a hose carry and climbing exercise, a rope pull, a hose advance and draft, a ladder lift and simulated victim drag. Some of these components require applicants to wear weights or to move or carry equipment.
13The complainant passed this assessment, and was deemed “currently physically acceptable for firefighting”. Upon receiving this assessment the complainant submitted a formal application for the position of probationary firefighter on March 23, 1999. Included in the evidence is the application form he completed and signed, which included the statement:
I understand that misrepresentation made on this application or other documentation and/or tests related to employment will be sufficient cause for cancellation of my application and, if employed, for dismissal from City of Toronto.
14The complainant was invited to attend oral interviews on May 19 and June 16, 1999. After the second interview, he was given a letter advising him of a conditional offer of employment. The letter stated that the offer was conditional upon successful completion of a medical examination conducted by the Toronto Fire Services’ consulting physician, and provision of a satisfactory driver’s license abstract and employment references. With respect to the medical examination, the complainant was also provided with a Medical Examination Information package.
15The package included a cover page providing instructions about the examination, and a Medical History Data Form (Data Form) that he was required to complete and bring to his examination. The cover page to the data form states, among other things, that candidates with a history of a significant medical condition or prior surgery must provide clear documentation with copies of surgical and/or consultation notes at the time of the examination, including x-ray, echocardiogram, ultrasound results, etc. Alternatively, this information may be faxed to the medical section office. Candidates are told that they must complete the Data Form completely, accurately and prior to arrival (emphasis in original). Candidates are also told that a comprehensive medical examination would be conducted including an electrocardiogram and chest x-ray.
16The Data Form is four pages long, at the end of which applicants are to sign immediately below this statement:
I hereby certify that the above answers are correct and I consent to a medical examination by the Toronto Fire Services Physician. False information may lead to the termination of employment with the Toronto Fire Services.
17The Data Form asks applicants to provide a medical history, and to mark N/A if not applicable. They are also asked about immunization, current medical complaints, drug and alcohol use, exercise habits and exposure to certain hazards. Among the categories in “Past History” are: hospitalizations, surgery, accidents or fractures (injury), joint or orthopaedic condition(s). Among the categories in “Medical History” is arthritis. In the section titled “Functional Enquiry”, applicants are asked to check off if they have, among other things, injured joints.
18Relevant to this complaint is that the complainant wrote N/A beside all categories in “Past History”, and did not check off any of the categories in “Medical History” or “Functional Inquiry”.
19The complainant brought the Data Form to his appointment with the Chief Medical Officer for the Toronto Fire Service, Dr. Noah Forman, on June 22, 1999.
20Dr. Forman has worked with Toronto Fire Service since 1986 as a medical consultant. In addition to his work for the Fire Service, he is also the head primary care physician for the Toronto Maple Leafs, works shifts as an emergency physician at a Toronto hospital, and has a family practice.
21As the Chief Medical Officer, Dr. Forman advises the Fire Service on medical issues affecting firefighters. He has clinic hours for firefighters who wish a medical consultation. He is involved in discussions about the return to work of firefighters injured on the job or otherwise, and in arranging for workplace accommodation where required. Dr. Forman is on call 24/7 with the Fire Service and attends at fire scenes on request, in which case he wears full bunker equipment. He usually remains at the perimeter of the scene, but may also need to enter the fire scene once it is safe.
22Dr. Forman developed the protocol for the medical assessment of firefighter candidates, including the medical Data Form, the medical tests and physical examination. In his evidence, he stated that candidates often have questions about whether they may be prevented from applying because of a medical condition, and these questions may be forwarded to him. Dr. Forman advises them that there is no medical condition that will bar them, and that each case will be individually assessed. He conveys the same message at public sessions held by the Fire Service, in which potential applicants are given information about the job and the application process.
23Typically, the medical assessment of firefighter candidates is done in groups. The firefighters are asked to attend at a medical centre. Each candidate undergoes a number of tests such as urinalysis, blood analysis and a chest x-ray before then meeting with Dr. Forman. On the date of the complainant’s medical examination, there were 20-30 candidates attending for their assessment. After completing the other tests, the complainant met with Dr. Forman. The doctor reviewed the Data Form with him, and then conducted a physical examination.
24The complainant testified that the doctor did not review the form with him before conducting his examination, but I accept Dr. Forman’s evidence that this was his standard practice and it is reasonable that this would have been part of the process. During the physical examination, the doctor noticed a bulge in the complainant’s left knee and asked him what happened to his knee, saying words to the effect, “whoa, what happened here?” The complainant stated “what happened, nothing happened, my knee looks like that I guess over progression of time, from an old football injury, from high school”.
25Dr. Forman wrote next to the box marked “Accidents or Fractures (Injury)”, where the complainant’s had written “N/A”, “[L] Knee injury”. He asked the complainant to perform some movements with his knees, and then asked him if he would be willing to have x-rays taken of the knee, to which the complainant agreed. The doctor did not ask about and the complainant did not divulge that in fact, he had osteoarthritis in his left knee. The complainant had the x-rays done in the medical centre that day, and went home.
26Dr. Forman received the results of the complainant’s x-rays, which revealed the presence of severe arthritis in the left knee. The radiologist’s report accompanying the x-rays confirmed degenerative changes to the knee. Based on his review of the x-rays with the radiologist as well as her report, Dr. Forman decided not to give the complainant medical clearance.
27Dr. Forman sends the results of his medical assessments to the City’s human resources department, and does not usually have any further contact with the applicants. Typically, he indicates simply that they have been medically cleared or not medically cleared. He does not notify the candidates directly of his assessment, and leaves it to the City’s human resources staff to communicate with the candidates.
28When the complainant had not received any word from the City by around July 20, he called the City’s human resources department. The person he spoke to indicated that there had been a question mark on his medical assessment. When the complainant wished to have more information, the individual suggested he contact Dr. Forman. The complainant spoke to Dr. Forman subsequently, who confirmed that he had not passed the medical assessment.
29The complainant wished to have an explanation and in this initial conversation, Dr. Forman explained the basis of his decision, which was that upon reviewing the x-rays and consulting with the radiologists, he concluded that the complainant had extensive arthritis in his left knee. This led him to the conclusion that the complainant could not sustain the physically demanding job of a firefighter, either at that time or over the lifetime of a career as a firefighter.
30The applicant asked for the opportunity to submit further medical reports. Dr. Forman stated that although he would be willing to talk to any specialist about the complainant’s future, it would not affect his decision.
Efforts to Reverse the Medical Assessment and Refusal to Hire
31The complainant decided to obtain further medical documentation in an effort to change Dr. Forman’s assessment. Over the next month, he obtained and sent Dr. Forman letters from four doctors. Three were from orthopaedic or arthritis specialists. One was more in the nature of a general reference letter. The three specialists described in varying detail the pathology of the complainant’s knee, which was arthritic. They also described his current level of functioning and concluded that his knee was stable. They mentioned the risk of future problems, with one doctor recommending that the complainant refrain from jogging and instead engage in activities such as swimming, cycling and walking.
32The complainant spoke again with Dr. Forman on August 20, 1999. During that conversation, Dr. Forman stated that he had reviewed the letters and was of the view that they did not provide sufficient medical support to change his assessment. The complainant stated that this was his job, and Dr. Forman would be hearing from him again. Dr. Forman stated he should have no further contact with him, and that he should deal with the Human Resources department.
33In that conversation, Dr. Forman also stated that the complainant had withheld evidence of a medical history of severe trauma on the Data Form, referring to the injury. The complainant indicated that his knee injury had occurred seventeen years previously, and he did not think it was relevant since he had absolutely no problems with it over 17 years of physical activity.
34Although the complainant submitted four letters to Dr. Forman, he had received an additional three that he did not forward, but which were in evidence before me. In one of them, an orthopaedic and sports medicine specialist, Dr. Charles Bull, who would later testify at this hearing for the City, explicitly stated his agreement with what he understood to be the assessment of Dr. Forman, writing “he will not be able to work as a firefighter for very long”.
35Another letter, dated August 10, 1999, was from Dr. John Cameron (who would also testify at the hearing) and in this letter Dr. Cameron states, among other things, that although he was sympathetic with the complainant’s goals of becoming a fire fighter, he “also realize[s] their concerns with regard to his left knee problems.” The letter also stated that “If I were not sure, I would exclude his knee from the insurance policy but I am not sure that the Fire Department can do that sort of thing.”
36Following the conversation with Dr. Forman, the complainant retained counsel, who wrote to the Human Resources Manager for the Fire Service on August 30, 1999. By this time, the complainant had requested that Dr. Cameron revise his letter of August 10, and the complainant’s counsel forwarded the revised letter along with three others previously submitted to Dr. Forman, to the Manager. Dr. Cameron’s revised letter omitted the reference to insurance, and the comment about realizing “their concerns.”
37The letter from counsel for the complainant sets out his position that there is no good reason to refuse to hire him, and that a refusal to hire him based on the potential for future disability would contravene the City’s obligations under the Code. Counsel requested that the complainant be placed in the next training program, to begin in November.
38There followed a series of correspondence between counsel for the complainant and counsel for the City.
39In the first letter in response to the complainant’s counsel, counsel for the City stated that “[q]uite apart from the medical issues raised in your letter, the Service is concerned about the manner in which the “Medical History Data Form” was filled out by [the complainant]. The letter noted that the complainant did not disclose any history of a knee problem, marking “N/A” beside “surgery, “joint or orthopaedic conditions” and “accidents or fractures (injuries)”. With respect to “surgery”, counsel also indicated that subsequent to the medical assessment, the City had learned from one of the specialist’s letters submitted, that the complainant had an arthroscopy on his knee in 1995. Counsel for the City stated that it would give the complainant an opportunity to explain the manner in which his application was completed, and in this regard, requested further information about the arthroscopy as well as the complainant’s explanation about why he completed the form in the manner he did.
40The letter also goes on to explain the basis for Dr. Forman’s assessment that the pre-existing condition of the complainant’s knee posed a “very real safety hazard in recruitment training as well as in regular firefighting duties.” The City concluded its letter by stating
Notwithstanding the above, assuming that Mr. Davis can satisfactorily answer the Service’s concerns regarding the completion of the application, in an effort to resolve this issue the Service is prepared to do the following.
41It goes on to suggest that the third party physician, who would be briefed on the complainant’s medical history as well as the requirements of a firefighter’s work and training, would be asked to give an opinion on whether his condition posed a health and safety risk. The opinion would be received on a non-binding basis.
42Over the next several months, further correspondence was exchanged in relation to the questions about the non-disclosures on the Data Form. The City was particularly interested in knowing the reasons for the arthroscopy in 1995. The complainant maintained that the procedure was performed because “his girlfriend thought his knee looked odd”. Dr. Forman was at this time being consulted by City counsel, and in his evidence, this was an unlikely reason for a surgical procedure. The City therefore asked the complainant’s counsel to provide more information about the reasons for the arthroscopy, through reference to medical records at the time of the procedure.
43In November 1999, Dr. Cameron sent counsel for the complainant his Operative Report from 1995, which described in detail the condition of the complainant’s knee. Further correspondence between the complainant, his counsel and Dr. Cameron from this time indicates that Dr. Cameron was asked to review his notes from the time of the procedure and confirm the reason for the procedure. In response, Dr. Cameron sent a letter dated December 13, 1999 stating that he had reviewed the records, and that on the patient questionnaire dated May 26, 1995, the complainant gave a response to the question: “What do you expect to achieve by having surgery”. His response was “to alleviate the symptoms of osteoarthritis in the left knee (stiffness/swelling/pain)”.
44On December 20, 1999, the complainant sent a lengthy letter to Dr. Cameron asking that he amend two documents. First, he asked that Dr. Cameron “rephrase or preferably omit” the paragraph from the Operative Report referring to the diagnosis of a “badly damaged knee in all three compartments”. He also asked that Dr. Cameron “rephrase or preferably omit” the information taken from the patient questionnaire. His letter states, in part,
Although these statements may be true, I fear that your professional opinion is so well respected, that you may influence the decision of the Toronto Fire Services to my demise. It is, after all these last two documents which I will submit as evidence to support the hiring of myself as Firefighter for the City of Toronto.
As it stands, the logistics of the Operative Report are excellent and suits my purpose quite nicely. However, I ask that you may rephrase or preferably omit the aforementioned paragraph such that we do not divulge more information than necessary to TFS.
In addition, due to the delicate nature of my unique situation, I ask that you may rephrase or preferably omit the last statement of the reply letter and possibly concentrate on the “odd appearance/shape” of the left knee as reason for admission on the 26th September 1995.
As discussed in our correspondence October 27th 1999 and once again in person at Outpatients November 19th 1999; the reason for the arthroscopy of September 1995 was for exploratory purposes only. It was agreed that due to the fact that I suffered from no pain nor limitations whatsoever, no surgery should/could be performed to alleviate any said symptoms of osteoarthritis…
45The City was not aware of Dr. Cameron’s letter of December 13, 1999 and the complainant’s letter of December 20, 1999 until well into the process of dealing with the human rights complaint. What it was sent at the time was a further letter from Dr. Cameron, dated January 7, 2000, in which he does not quote from the patient questionnaire, although he refers to it. In this letter, he states that:
the details of this admission are on the hospital chart along with the patient questionnaire documenting the reason for admission, as submitted by the patient. There is a notation with regard to the reason for admission, which was osteoarthritis of the left knee. The rationale for the arthroscopy was to further document the extent of the osteoarthritis, to determine a prognosis based on the present pathology, and to determine whether further operative intervention would be of benefit to the patient.
46The City was not satisfied with the responses received. In a letter dated February 10, 1999, it reviewed the questions to which it sought answers. Amongst other things, the letter states:
Dr. Cameron’s report does not set out why at that particular time (1995) there was an arthroscopy, given that the injury had occurred many years previously. Is Dr. Cameron not in a position to comment on that? If not, what about the physician who referred [the complainant] to Dr. Cameron? Surely there is some indication as to why at that particular time he was referred. Dr. Cameron also refers to a patient questionnaire. Will it assist in answering these questions?
47By this time, the parties had been corresponding for some five months about the issues. The City repeated that its concerns about the manner in which the complainant completed the application form were still present, and that it would require satisfactory answers to its questions before it was prepared to reconsider its position, regardless of what a third party medical may reveal. However, counsel for the City indicated that, given the complainant’s concerns about the passage of time and to avoid further delay, the City was prepared to go ahead with the third party medical, pending its receipt and approval of the further requested information.
48It took some months to arrange for the third party medical assessment, during which time further correspondence was exchanged pursuant to the City’s requests for information. In a letter dated April 5, 2000, the City stated that “there should also be an operative note”, containing Dr. Cameron’s findings from the arthroscopy, and asked for a copy of it. The complainant was at this point in possession of the Operative Report. For reasons not made clear or explored in the evidence, this Operative Report was not sent to the City in response to this Request.
49The City received the third party medical report in July 2000. In a letter dated August 28, 2000, the City advised that it would not change its original decision not to hire the complainant. The City stated, among other things:
In light of the 1995 diagnosis of end stage osteoarthritis, after an arthroscopy, and in light of all the other evidence, the Service fails to see how Mr. Davis could have completed the form as he did, unless his intention was to conceal his knee problem. The Service is not prepared to accept an applicant who knowingly misrepresents his medical condition.
The misrepresentation is itself reason to reject Mr. Davis as an applicant. In addition, the Service has also carefully reviewed the medical evidence. As noted in this office’s letter of October 26, 1999, it was the Service’s view that Mr. Davis’ knee posed a very real safety hazard in recruitment training as well as in regular fire fighting duties, and that that assessment was not contradicted by the medical reports you had supplied up to that time. The further medical report from Dr. Ogilvie-Harris has not altered the Service’s views in that regard. Among other things, Dr. Ogilvie-Harris’ report notes that “it must be stated that he will have problems in the future”, that “ultimately he may require a total knee replacement” and that it was “impossible to predict at this stage the progression of the arthritis.” The Fire Service has a duty both to fire fighters and the public, to ensure the highest standards of safety. Given that duty, and Mr. Davis’ knee condition, the Service would also not be prepared to hire him on this basis. In coming to this decision, the Service has considered all of the available evidence.
Evidence on Non-Disclosures of Medical History
50In 1982, when the complainant was seventeen years old, he injured his left knee while playing high school football. He received a tear to the Posterior Cruciate Ligament (PCL) and was in a cast for ten weeks. He recovered from his injury and went on, as indicated above, to play high level sports in university. However, over time, he developed osteoarthritis in his left knee. In 1995, he consulted with Dr. Cameron, an orthopaedic surgeon, on a referral from his family doctor. According to Dr. Cameron, the complainant came to see him because he had concerns about his left knee. In his affidavit, Dr. Cameron stated that the complainant reported some minor complaints relating to pain, stiffness and swelling, but was primarily concerned about the shape of his knee, which did not look normal.
51After ordering and reviewing x-rays of the complainant’s knee, Dr. Cameron advised him that he had osteoarthritis. The complainant wished to know the implications of this diagnosis. The doctor advised him that if he remained physically fit and kept his weight down, he could offset the symptoms of the osteoarthritis. In the complainant’s case, there was a lack of correlation between the pathology and functional disability, in that despite the clinical findings, the complainant led an active lifestyle.
52Dr. Cameron suggested that he perform an arthroscopy. In his opinion, an arthroscopy could provide more information about the status of the complainant’s knee, without causing significant harm, and could help in alleviating symptoms associated with the osteoarthritis. In his oral evidence, he stated that the most common reason for performing an arthroscopy on the knee is to deal with cartilage tears. Another reason is to gain information for the future management of the knee.
53The arthroscopy was performed at the Holland Orthopaedic and Arthritic Centre, part of the Sunnybrook Health Science Centre. A number of forms were required in connection with the procedure, which is an out-patient surgical procedure performed under general anaesthetic. The complainant testified at the hearing that he was taken aback at the prospect of undergoing a general anaesthetic, which he had not experienced before, but was re-assured that the procedure was relatively minor and minimally invasive. The forms indicate that the admitting diagnosis is “osteoarthritis left knee”. The complainant signed a “Consent to Surgery” form in which the proposed surgical procedure is described as “arthroscopic surgery left knee; intra articular surgery”.
54Dr. Cameron’s Operative Report documents what was done during the arthroscopy, and the doctor’s observations. The Report confirms the presence of osteoarthritis, stating that
essentially, this man at age 30 has quite a badly damaged knee in all three compartments, and actually his worse compartment is his lateral compartment, although he has marginal osteophytes along the medical femoral condyle.
55Dr. Cameron explained that the knee is divided into three compartments, lateral, medial, patella-femoral. The Operative Report describes the complainant’s knee as having “eburnated bone” in the one compartment which according to Dr. Cameron means that it is like “polished stone”, without any cartilage.
56The complainant had a post-operative visit with Dr. Cameron eight days later, in which the results of the arthroscopy were discussed. At the hearing, he testified that he was told that he had a badly damaged knee in all three compartments. He stated that “it’s on the x-rays and when he goes in with the scope it looks like the knee of an 80 year old man.” The complainant said he was told generally that the doctor “cleaned up” some of the debris in the left knee area, trimming off some torn meniscus (cartilage). He also testified that he was quite taken aback by the diagnosis, as he viewed arthritis as a disease that old, frail people have.
57As indicated above, although the result of the medical consultations and arthroscopy in 1995 was a diagnosis of osteoarthritis, the complainant was also told that he was doing the right things to fend off the symptoms, such as maintaining his weight and keeping fit.
58As indicated above, the complainant did not disclose on the Data Form that he had undergone the arthroscopy in 1995, that he had injured his knee in 1982, or that he had arthritis in his knee.
59The City discovered the history of the knee injury when Dr. Forman inquired about the shape of the complainant’s knee during the physical examination. It discovered the presence of arthritis when Dr. Forman reviewed x-rays of the complainant’s knee following his interview and physical examination. It found out about the arthroscopy when it was mentioned in one of the four medical reports the complainant submitted to Dr. Forman in August 1999.
60In Dr. Forman’s evidence, he felt that the complainant had misrepresented his medical history, in that he had not disclosed a significant medical condition as well as the fact that he had undergone arthroscopic surgery. He informed the City of his views, but felt it was up to others in the City to decide how to deal with this issue. Although Dr. Forman did not see it as his role to decide what action to take on the misrepresentation issue, he did assist counsel for the City in drafting the letters during the fall of 1999 and early 2000 in which further information was sought about the complainant’s medical history, to shed light on the complainant’s answers on the Data Form.
61In his evidence, the applicant was asked about his answers on the Data Form. He stated that he completed the form accurately and honestly when he wrote N/A in answer to the questions about hospitalizations, surgery, accidents or fractures (injury), joint or orthopaedic condition(s), and did not place a checkmark beside the box labelled “arthritis” under Medical History. He stated that he believed when he was completing the form, in 1999, that none of those applied to him. In his evidence in chief, he stated that “it never even entered my mind that I had an orthopaedic condition called osteoarthritis given my high degree of physical activity”.
62The complainant repeated in his cross-examination that at that time, he did not believe that he had osteoarthritis. Although Dr. Cameron had told him he had osteoarthritis in 1995, he equated osteoarthritis with a debilitating condition that applied to elderly people. He therefore felt that although Dr. Cameron told him he had this condition it did not really apply to him. The complainant stated, “in my mind, I didn’t have any disease or arthritis, that was my way of thinking” and “it was never even in my mind to think that I had arthritis”.
The Medical Opinions in 1999-2000
63Between July 1999 and August 2000, when the City made its final decision not to hire the complainant, seven different doctors had examined him. He was also examined, during the medical assessment, by Dr. Forman.
64There is no dispute amongst any of the doctors that the complainant had severe osteoarthritis in his left knee. It was described by the doctor most familiar with the knee, Dr. Cameron, as “end-stage” osteoarthritis of the lateral compartment with moderate osteoarthritis in the other two compartments. There was also general agreement amongst the external doctors that the osteoarthritis was having, at that time, little impact on the applicant’s functioning. While some doctors noted limited differences in range of motion between his two knees, and a deformed appearance and crepitus (a cracking or popping sound) in the left knee, there was agreement that the complainant’s knee was, at this time, functional and stable.
65Prominent in the medical evidence, both at the time and during the hearing, was the lack of concordance between the pathology of the complainant’s knee and his absence of symptoms. Several doctors expressed surprise at the level of activity the complainant was maintaining, given the osteoarthritis. One doctor stated “it is quite amazing that he has remained asymptomatic and has been able to do so much physically. This once again reinforces the lack of concordance between clinical symptoms and radiologic findings.” [At the hearing, Dr. Cameron described the situation as an “unusual case” involving “a very high functioning individual with very abnormal x-rays”.
66Amongst the doctors who expressed views about the future progression of the arthritis, there was unanimity that given the clinical findings, the complainant was at risk or would certainly have problems in the future. None could predict when he would develop symptoms, or how severe those problems might be.
67Of the various doctors examining the complainant during 1999 and 2000, the two with the most detailed understandings of the physical demands of being a fire fighter were Dr. Forman and the third party physician, Dr. Ogilvie-Harris. In being asked to provide his assessment, Dr. Ogilvie-Harris was sent material describing the duties and demands of the position, as well as the demands of firefighting training. He was specifically asked to assess the complainant and provide his opinion on two questions:
Whether the complainant was medically capable of performing the tasks of a fire fighter and
Whether the complainant’s knee posed a health and safety risk to him or others, should he undergo the training for, or become a fire fighter.
68The doctor reviewed the medical reports of four of the other specialists and x-rays of the complainant’s knee. He also conducted a physical examination and interview. In Dr. Ogilivie-Harris’ opinion, the complainant could meet the physical requirements of a firefighter, and be able to participate fully and without restriction in the training for a probationary firefighter and in a full-time job as a firefighter. In his opinion, the complainant would pose no risk to himself or to any other members of his team or the public. The doctor also stated:
However, it must be stated that he will have problems in the future. This type of arthritis does inevitably progress. However, the rate of progression is not predictable. That means to say that it could be many decades before he would require further treatment of the left knee or it may be a shorter time frame. Ultimately, when he does require treatment, it would probably be in the form of an arthroscopy and debridement initially. Ultimately, he may require a total knee replacement. It is therefore, impossible to predict at this stage the progression of the arthritis and how this will affect the longevity of his employment. It is entirely feasible that he could continue up to the normal age of retirement without significant restriction.
Medical Evidence at the Hearing
69At the hearing, Dr. Bull testified for the City, as an expert in orthopaedic and sports medicine. He also testified about his contacts with the complainant in 1999.
70In addition to the letter he sent to the complainant in 1999, of which the City was not aware at the time, Dr. Bull gave a written report to the City in 2006, which the City sought to rely on at the hearing. In it, he reviewed the reports of the various doctors, as well as the medical records that had been disclosed as part of the hearing process before the Tribunal. In the 2006 report he described the complainant’s knee as a “loose, weak arthritic knee that can give out.” He stated that the complainant “lacks mobility”, that his “quads are atrophic” and that “he really is not in top physical shape for a fireman’s job.” He concluded that the complainant would not be capable of fulfilling the physically arduous tasks of a firefighter.
71The Commission submitted in final argument that Dr. Bull’s evidence, including his written report of 2006, should be entirely disregarded as biased and unreliable.
72After considering all the evidence, and for the reasons given below, I have decided to give little weight to Dr. Bull’s written report of 2006 and the oral evidence based on that report. However, I will consider Dr. Bull’s opinion of 1999, along with the supporting documentation, as part of the array of medical evidence generated in 1999 about the complainant’s knee.
73One of the key elements of Dr. Bull’s 2006 report is that the complainant has a “loose, weak arthritic” knee that could give out suddenly. If accurate, this would support Dr. Forman’s assessment that the condition of the complainant’s knee posed a safety hazard in fulfilling the duties of a firefighter. However, the foundation for this assessment is lacking, and I am unable to accept it.
74The 2006 report is based on Dr. Bull’s clinical notes of his examination of the complainant from seven years earlier, as well as a review of the other medical documentation from that time. On review of those other records, the conclusion that the complainant had a “loose, weak arthritic” knee that can give out suddenly was not supported by either of those sources. Dr. Bull’s notations from 1999 record that there was no “giving out”, “locking” or “swelling” of the knee. The reports of the other doctors did not indicate that there was any current instability or weakness. Indeed, they consistently described the complainant’s knee as stable. The records also do not support his conclusions of lack of mobility or meaningful atrophy of the quadriceps muscles.
75There are other aspects of the 2006 report and Dr. Bull’s oral evidence that are clearly speculative as well as extending beyond the area of his expertise. Examples of these are his opinions on the complainant’s psychological state, his opinions on what some of the other doctors may have intended to say, but left unsaid, and his opinions on the complainant’s honesty. These, and other areas of Dr. Bull’s evidence, do not reflect the unbiased opinions of a neutral expert so much as an advocate, and his willingness to engage in such speculation leads me to treat his report and oral evidence with some scepticism.
76The other medical evidence offered at the hearing came from Dr. Cameron, in the form of an affidavit prepared in July 2008, supplemented by his oral evidence. Dr. Cameron has been an orthopaedic surgeon for more than thirty years. He specializes in knee and joint problems, including osteoarthritis. In his medical practice, he performs osteotomies (re-alignment), knee ligament repairs, arthroscopies and knee replacements.
77Dr. Cameron gave general information about the nature of osteoarthritis, which he described as a disease of wear and tear. In oral evidence, he described it as the “process by which articular cartilage is lost.” Cartilage is what makes a joint smooth and pain free. In an x-ray, the loss of cartilage is shown through narrowing of the space between joints. In end stage osteoarthritis, there is no more cartilage, resulting in bone on bone contact.
78Osteoarthritis is distinguishable from inflammatory arthritis in that osteoarthritis implies damage to the cartilage surfaces from a source or event. Dr. Cameron also described osteoarthritis, in his oral evidence, as being concerned with the “surgical side” or arthritis, as distinct from rheumatoid arthritis which deals with the “non-surgical side.” Osteoarthritis may be caused by a deformity at birth, or from trauma from an injury. These are considered to be “risk factors” that contribute to the development of osteoarthritis. Continuing with a high level of activity following the development of an abnormality in the knee is also a risk factor.
79Dr. Cameron stated that when the complainant consulted him in 1995, the x-rays showed evidence of tri-compartmental osteoarthritis. He stated that while x-rays provide evidence of osteoarthritis, they should not be used to draw too many conclusions about the seriousness or degree of the osteoarthritis. Dr. Cameron stated that a patient can have significant pathology with no disability. That is, an individual with abnormal x-rays may not necessarily encounter problems. In his opinion, the
best predictor of the onset of disability is often the patient’s track record. If the patient has experienced the pathology over a long period of time, but not had an increase in disability, it is more likely that the patient is able to cope. The longer they cope well, the more reason we have to suspect they can cope for a longer period of time.
80Dr. Cameron advised the complainant, in 1995, that if he remained physically fit and kept his weight down, he could offset the symptoms of osteoarthritis. The next time Dr. Cameron saw the complainant was in 1999. His physical examination of him at that indicated that he was continuing to function well.
81Dr. Cameron states in his affidavit that he considers arthroscopy to be a “minor surgical procedure”. He also stated that many of his patients do not consider arthroscopy to be a “surgery” because it is quite minor relative to other treatments for the knee.
82Dr. Cameron stated that the complainant “has no disability whatsoever for everyday activities” and experiences very little difficulty with his knee. He stated that the main explanation of why the complainant is capable of performing at such a high level, notwithstanding his osteoarthritis, is his level of fitness. Dr. Cameron agreed with the conclusions of Dr. Ogilvie-Harris that the complainant would be able to meet all of the requirements of the firefighter position, and pose no risk to himself or anyone else. He also agreed that he may experience problems in the future but the rate of progression for the onset of the problems is unpredictable.
83When asked to provide his opinion about Dr. Forman’s assessment in 1999, Dr. Cameron stated that the complainant’s was a “very difficult situation” to deal with. Given the circumstances at the time, which he described as a “very high functioning individual with very abnormal x-rays”, and a decision to be made about the complainant’s present and future functioning for the purpose of employability, he testified that Dr. Forman should have sought help from an orthopaedic specialist with expertise in sports injuries, in making his assessment. Dr. Cameron stated that it was an assessment that is “almost impossible for a family physician to do, it’s hard enough for someone like me who is doing this all the time”.
84Dr. Cameron also testified that the reason it is so difficult to predict the future onset of problems in patients with osteoarthritis is that it varies with each individual. In a situation such as the complainant’s, the level of fitness, motivation and perhaps even tolerance to discomfort play a huge role. That is why athletes tend to recover from and cope with injuries better.
85Dr. Forman gave evidence about the basis for his decision not to give the complainant medical clearance in June 1999, as well as his opinion on the medical evidence collected during 1999 and 2000 about the complainant’s left knee. Essentially, he was concerned that the severity of the complainant’s arthritis presented a safety hazard during training and in the performance of fire fighter duties. The information on which he based this assessment was his review of the complainant’s x-rays, his medical knowledge of degenerative arthritis, and his understanding of the physical demands of fire fighter training and job duties.
86Dr. Forman stated that, in his capacity as the Chief Medical Officer for the Toronto Fire Service, he has been consulted by fire fighters who have developed knee problems including arthritis. He stated that the complainant had the most severe case of osteoarthritis that he has seen in a firefighter, some of whom can no longer work as a fire fighter despite a less severe condition.
87Dr. Forman stated in his evidence that he felt the report of Dr. Ogilvie-Harris to be somewhat cursory, given the “significance of the opinion we were looking for.” Dr. Forman testified that when he reviewed the report, he did not feel the doctor had addressed the job demands, and explained why he had come to his conclusion that the complainant posed “no risk.” He felt that there was no analysis of the degree of arthritis and how that affected the assessment of risk, no detailed review of the x-rays, and no discussion of the arthroscopic surgery.
88Although he did not disagree with the assessment of any of the other doctors about the pathology of the complainant’s knee, he believed that they were limited in the opinions they could give about the complainant’s ability to safely perform the duties of a firefighter given their lack of specific knowledge about the demands of the job.
Other Evidence
89Some of the other areas covered by the evidence were the complainant’s activities since 1999 and the nature of the Gledhill test. In 2000, the complainant obtained a position with the Greater Toronto Airport Authority fire department, and has worked there since. The GTAA fire department responds to emergencies at Pearson Airport. There was evidence at the hearing from the complainant and from another witness, Cyril Hare, about the similarities and differences between the work performed by GTAA firefighters and City of Toronto firefighters, but it is unnecessary to recount it here.
90The complainant has remained physically active and as well, since joining the GTAA fire department, has participated in firefighter competitions involving a high degree of physical challenge, and become a part-time instructor in firefighting at Seneca College.
91The Tribunal also heard evidence from Dr. Brent Faught, who is an expert in physical activity and epidemiology, and who has helped to develop firefighter pre-employment screening. Dr. Faught testified that screening tests such as the Gledhill Shaw test are useful in narrowing the field of candidates in large firefighting hiring processes, but should be supplemented by a medical examination in order to confirm an applicant’s ability to perform the duties of a firefighter.
SUBMISSIONS OF THE PARTIES
92The Commission and the City provided extensive written submissions supplemented by oral final argument from all parties.
93The following sections of the Code are relevant to the submissions and to my determinations:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
10(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
94Having regard to the provisions of the Code, the Commission submitted that this is a case of discrimination on the basis of a perceived disability. In this case, there is no disagreement that complainant had end stage osteoarthritis at the time of the events. However, he was completely asymptomatic, without functional limitations. The City based its decision not to hire the complainant on the pathology, and not on the actual functional abilities. In this sense, the complainant did not have a disability, but he was perceived to have one. It is also apparent from the evidence that the City was concerned that the complainant may become incapacitated at some point in the future.
95The denial of employment based at least in part on the perceived disability establishes a prima facie case of discrimination under the Code. Having established a prima facie case of discrimination, the onus is on the City to establish the applicability of the section 17(2) defence, in accordance with the requirements set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (S.C.C.), [1999] 3 S.C.R. 868 (“Grismer”).
96The Commission accepts that in applying an exclusion based on the presence of end-stage osteoarthritis in a firefighting candidate, the City met the first two elements of the Meiorin three-part test, ie., that it adopted a job standard for a purpose rationally connected to the performance of the job, in an honest and good faith belief that the standard was necessary to the fulfillment of that purpose. However, in its submission, the City failed to show that the exclusion of the complainant was reasonably necessary to fulfill its goal of individuals who could perform the duties of a firefighter safely.
97The Commission submitted that the City has not established that the complainant was incapable of fulfilling the essential duties of the job. Despite having raised safety concerns, it has not established that the exclusion of the complainant was based on a reasonable measure of safety in relation to firefighter’s health and fitness. Ultimately, there is no concrete evidence to show that the complainant could not perform the job safely.
98The Commission submits that, with respect to liability, the law is clear that where a discriminatory factor plays any role in a decision, a violation of the Code is established. It acknowledges, however, that an independent non-discriminatory factor such as, in this case, the allegation of misrepresentation, can be taken into account at the remedial stage. The Commission submits that on the facts of this case, this is a position taken by the City, after the fact, to justify its discrimination. There is no evidence that the complainant knowingly misrepresented his history on the medical information form. Also, there is no evidence that misrepresentation was an issue at the time when Dr. Forman initially made the decision not to clear the complainant. It was not until the second conversation between Dr. Forman and the complainant, in August 1999, that the issue of holding back information was raised.
99The complainant submits that he was victimized and re-victimized throughout the year following his initial rejection as a firefighter candidate, and then in the process of having his complaint ultimately heard. He chose to challenge the City and was subjected to a barrage of injustices. He has endured attacks on his character and slanders. He has been subjected to a process no other complainant has endured, including four mediations over a ten-year process. The complainant states that he is an extraordinary individual who is not only comparable to a first class firefighter from the City but surpasses the average candidate for a promotion based on the totality of his experience. He is entitled to a position with the Toronto Fire Service, including full seniority placing him in a position to enter the promotion process because of that and because of the discrimination to which he has been subjected.
100The City submits that its concerns about the complainant’s non-disclosures were not a pretext for discrimination. An applicant is obliged to provide truthful information to an employer in the context of a hiring process. In this case, prior to his medical examination, the complainant was given time to complete the medical history form and to gather the medical documentation that was required. He understood that providing false information could lead to termination of the process.
101The applicant disclosed some aspects of his family history on the data form, but not his football injury, his diagnosis of osteoarthritis, or his arthroscopy. During the medical examination, the applicant disclosed that he had an old football injury but still did not disclose the diagnosis of osteoarthritis, nor did he disclose that he had undergone arthroscopic surgery. Essentially, he provided half-answers to Dr. Forman’s questions.
102In the City’s submissions, during the course of the parties’ communications over the next year, in response to the City’s attempts to obtain more information in order to assess whether the complainant had knowingly misrepresented his condition, the complainant continued to fall short of full and frank disclosure concerning his medical history and condition. It is apparent from the documentary evidence that the complainant’s aim is to provide the City with information that will help him obtain the job he sought, and that he was strategic in terms of what he chose to share with the City. Among other things, he took an active role in persuading Dr. Cameron to omit certain information from a letter sent to the City that would have undermined his position.
103Counsel for the City reviewed the communications between the complainant, the City and their respective counsel through the year following the initial rejection. It submits that throughout these communications, it is apparent that the City had continuing concerns about the misrepresentation issue and for that purpose sought more information from the complainant to establish why he had completed the medical history form in the manner he did. Initially, it wished to come to a final decision on this issue before taking further steps to address the issues around the complainant’s medical condition. However, as it was taking some time to obtain the information it agreed (without retracting this concern) to a third-party medical on a non-binding basis.
104With respect to whether the City’s decision was based on a discriminatory factor, counsel submitted this is not a case where the City applied a general rule without any attempt to make an individual assessment. In his submission, it is not necessary to apply the analysis in Meiorin. The complainant was not denied employment based on the application of a discriminatory standard, but rather, as a consequence of not passing a pre-employment medical examination. He was denied employment because Dr. Forman’s assessment of the particular condition of the complainant’s knee was that it was so severely arthritic he could not safely perform the duties of a firefighter.
105Counsel for the City states that the fact that the complainant passed the fitness test was not in itself sufficient to establish that the complainant could perform the duties of a firefighter. The medical assessment is a necessary complement to the fitness test in that it allows the City, through the opinion of a doctor who is familiar with the role of a firefighter and the conditions they will encounter, to assess whether a candidate can perform the duties safely.
106It is submitted that Dr. Forman made a correct assessment based on the information before him, that the complainant would pose a safety risk. Although other doctors, whose reports were placed into evidence, may disagree, they do not have the same knowledge of the demands of firefighting duties as Dr. Forman. Further, Dr. Cameron himself acknowledged that different physicians might come to different conclusions in relation to the complainant’s ability to perform in a firefighting role. Dr. Forman’s assessment was made without any discriminatory stereotype. In the face of medical evidence that is open to interpretation, a doctor could justifiably come to the non-discriminatory conclusion that the complainant was unable to perform the duties of a firefighter.
107Counsel suggested that it is not necessary for the Tribunal to determine whether Dr. Forman was right or wrong in his assessment, but only whether his decision was discriminatory. When Dr. Cameron testified that different doctors could come to a different conclusion, what he is saying is that the medical evidence could be interpreted in different ways, and that a doctor who disagrees with his assessment is not acting on the basis of discriminatory assumptions.
108The intervener made submissions on the issue of remedy only, and specifically, on the complainant’s request to be instated into the position of firefighter with full seniority for all purposes. The intervener (as well as the City) objects to such a remedy insofar as it would place the complainant in the position of being entitled to participate in the promotion process towards a captain position without ever actually having worked as a firefighter with the City. Other firefighters with the City may not enter the promotion process without a minimum length of service, including service in active fire suppression. Referring to the requirements of the collective agreement, counsel for the intervener submitted that there are strong health and safety reasons for requiring candidates for promotion to have served in fire suppression. Besides the health and safety concerns, such a remedy would significantly and adversely affect the rights of other firefighters.
109Some areas of the parties’ submissions are also addressed in my consideration of the issues below.
DECISION
110In this case I find on all the evidence that the City discriminated against the complainant when it denied him employment as a firefighter at least partly because of a disability or perceived disability. Further, the defence to discrimination in section 17(1) of the Code does not apply insofar as the City has not established that the complainant was incapable of performing the essential duties of the job.
111However, I also conclude that the complainant’s lack of full disclosure during the hiring process would have independently led the City to refuse him employment. Apart from the discriminatory conclusion that the complainant was unable to perform the essential duties of a firefighter, the City would have made a decision not to hire the complainant in any event. The evidence does not establish that the City used this reason as a pretext for a discriminatory refusal to hire. Its concerns about non-disclosure were genuine and had a reasonable basis in the events.
112As a result, although I award monetary compensation for infringement of the right to be considered for employment without discrimination, I do not award any damages for income loss nor order placement of the complainant into the position of firefighter.
Discrimination as a Factor in the Refusal to Hire
113Section 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. Section 10(3) states that the right to equal treatment without discrimination because of disability includes the right to be free of discrimination because a person “is believed to have…a disability.”
114Although both the Commission and the complainant view the case as one concerning a “perceived disability”, it is not critical to choose between discrimination based on a “disability” or “perceived disability”. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 (Mercier), the Supreme Court stated, in relation to the ground of “handicap” under the Charter of Rights and Freedoms, that:
a “handicap” may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a “handicap” for the purposes of the Charter.
115There is no dispute that one of the reasons given for the refusal to hire the complainant was the City’s view that the condition of osteoarthritis in the complainant’s left knee left him unable to safely perform the duties of a firefighter. Whether or not the complainant was, at the time, suffering any functional limitations as a result of this condition, the City believed that the nature of his medical condition meant he would not be able to safely sustain the demands of firefighter training and employment.
116In this respect, the complainant was refused an employment opportunity partly on the basis of a condition that was either a “disability” or a “perceived disability”; this amounts to a prima facie breach of section 5 of the Code.
117Section 17 of the Code provides a defence to section 5. Under this section, the City would be justified in refusing employment to the complainant if it is shown that he was incapable of performing the essential duties of the position, subject to the duty to accommodate his needs to the point of undue hardship. In Meiorin, above, which established a framework for deciding cases based on such a defence, the Supreme Court stated that an employer must prove that:
(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
118The Court of Appeal has confirmed that the Meiorin test applies to the defences under sections 11 and 17 of the Code, stating
(…) the Court contemplated that the test would apply generally to discrimination claims under human rights legislation unless precluded by the applicable statutory provision.
Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON C.A.), at para. 78 (Entrop)
119The Commission submits that based on the test for justification set out in Meiorin, and accepting that the City has met the first two elements of the test,
(…) the City must prove that their exclusion of Mr. Davis, an applicant with end stage osteoarthritis was reasonably necessary to fulfill the City’s goal of employing individuals who could perform the duties of a firefighter safely. The City must also show that individual accommodation short of undue hardship was incorporated into their “standard”.
120As indicated above, the City questions whether the three part analysis in Meiorin is appropriate to this case, in that no allegedly discriminatory “standard” was applied to the complainant. Rather, the complainant did not pass an individual pre-employment medical examination, because of the severely arthritic state of his knee. In essence, the City argues that there is no discrimination on the basis of a disability. The complainant was excluded not because he had osteoarthritis, but because the particular nature of his osteoarthritis prevented him from fulfilling the essential requirements of the job.
121I have considered the City’s argument and find that the questions it raises do not preclude the application of the Meiorin analysis. I agree that it is somewhat artificial to characterize the City’s decision in this case as based on the application of a “standard”. Nonetheless, as discussed in Entrop (at paras. 82-84), the Meiorin analysis is relevant where an employer relies on section 17 to assert that a particular employee is incapable of performing the essential duties of the job. Part of the obligation on an employer under section 17 is to ensure that the individual is assessed “according to her or his own personal abilities, instead of being judged against presumed group characteristics.” See Grismer, above.
122Apart from the procedural component of the section 17 defence, I agree with the Commission that in considering whether the complainant was incapable of fulfilling the essential requirements of the job, the City must also show that the decision to refuse to employ him was reasonably necessary to fulfill its valid goal of employing firefighters who could perform the duties safely. To be clear, I have no difficulty accepting that this is a valid goal. Because of the consequences for safety, the potential for medically-induced incapacity while on the job is a valid consideration for a fire service to take into account in hiring and retaining firefighters. See Espey v. London (City), 2008 HRTO 412. The risk of such incapacity is relevant to an assessment of whether an individual is capable of performing the essential duties of the job, within the meaning of section 17.
123It also seems to me that the likelihood of an individual becoming medically incapable of performing the duties of a job within a short time frame may also, even apart from safety concerns, be a legitimate consideration in a workplace whose new employees must undergo strenuous and lengthy training.
124The circumstances of this case are similar to those considered in Kearsley v. St. Catharines (City), 2002 CanLII 46502 (ON H.R.T.). In that case, the doctor responsible for the medical examinations of prospective firefighters in St. Catharines ruled out the complainant on the basis of atrial fibrillation (an irregular heart beat). The question considered by the Board of Inquiry was whether St. Catharines was justified in concluding that the complainant was incapable of performing the essential duties of a firefighter. The Board concluded, on the basis of medical information available to the City at the time, it was not. Although the Board expressed the view that a significant increase in risk should disqualify a candidate, it found the increased risk of the complainant having a stroke as a result of his heart irregularity to be “miniscule”.
125Similarly, in this case, I find the evidence confirms both that the complainant did not have any functional limitations at the time he sought employment as a firefighter with the City, and that the City was not justified in believing that his medical condition created a risk to health and safety to him and to others.
126By the time the City made its final decision in August 2000, it had obtained a report from a specialist, Dr. Ogilvie-Harris, that was based on the doctor’s physical examination of the complainant, as well as a review of other reports. The doctor also had access to documents describing the job requirements and training for firefighters. Dr. Ogilvie-Harris concluded that the complainant could meet the physical requirements of the job and be able to participate without restrictions in the duties and the training. He also concluded that he would pose no risk to himself, to other members of his team, or to the public. He did state that “he will have problems in the future” and that “this type of arthritis does inevitably progress” but that it was “impossible to predict” the progression of the arthritis.
127In its final letter, the City referred to the doctor’s conclusion that “he will have problems in the future” and that it was “impossible to predict” the progression of the arthritis in informing the complainant that this medical report did not alter its assessment that the complainant’s knee posed a safety hazard.
128The medical information before the City at this point can be roughly grouped into two categories:
Orthopaedic specialists whose opinion was that the complainant’s knee was stable and that he had no functional limitations standing in the way of performing the duties of a firefighter. These doctors had a specialized medical understanding of osteoarthritis, but a lesser understanding of the job of firefighting.
Dr. Forman, whose opinion was that the complainant’s knee condition posed a significant safety hazard. Dr. Forman had a less detailed and nuanced medical understanding of osteoarthritis than the specialists, but a greater understanding of the demands of firefighting.
129Dr. Forman described his safety concern with reference to the unpredictability and instability of the physical environment that firefighters face, combined with carrying heavy loads (equipment, hoses, people). He stated that
My concern here is that when you have conditions that are this unpredictable and lead to huge instability in balance, posture, when you have a severe underlying condition of a knee which is a weight loading part of body…there’s huge risk form a safety point of view.
These may be factors that individuals are not used to in the course of daily activity.
130Although the orthopaedic specialists, apart from Dr. Ogilvie-Harris, did not have access to a description of firefighter duties and training, they did address the stability of the knee, and found no issues with it. The conditions that Dr. Forman described were found in the materials given to Dr. Ogilvie-Harris and although he does not refer to the job demands analysis in detail, he does say that he reviewed it.
131There was no evidence that the osteoarthritis in the complainant’s knee could cause it to suddenly collapse or give out. While Dr. Bull testified to this effect, I have indicated my doubts about his opinion and I prefer the evidence of Dr. Cameron to the effect that this is not a typical result of osteoarthritis. None of the doctors who examined the complainant at the time of these events mentioned this as a possibility.
132In addition to this is the fact that the complainant had passed the Gledhill Shaw test, which, albeit in a controlled environment, did require candidates to undergo strenuous activities while carrying loads.
133On balance, I find that the information available to the City at the time it made its final decision does not support its position that the complainant’s knee condition posed a significant safety hazard. The City has thus not shown that the complainant was incapable of fulfilling the essential duties of the job.
134What of the City’s position that in a context where doctors may disagree about whether the complainant can perform the work of a firefighter safely, it is not discriminatory for the City to decide that he cannot? In my view, there are several answers to this. First, I find that the discrimination in this case has a procedural as well as a substantive component. I find it was discriminatory for Dr. Forman to have come to the conclusion in June 1999 that the complainant was incapable of safely performing the duties of a firefighter without investigating or even considering whether the conditions he observed in the examination room and on the complainant’s x-rays resulted in functional limitations, and without seeking more information in this regard. The apparent absence of any functional limitations should have caused the doctor to investigate further before denying medical clearance based on abnormal x-rays.
135This procedural failure was subsequently rectified by the City’s willingness to obtain an assessment from Dr. Ogilvie-Harris. After it received that assessment however, it was unreasonable for it to persist in the view that the complainant was incapable of performing the duties safely. As unusual as the complainant’s circumstances were (ie. the marked lack of concordance between the pathology of his knee and its functionality), by this point, the totality of the information before the City could not reasonably justify its conclusion that they posed a safety hazard. The best medical evidence established that the complainant’s knee was functional and stable and did not present a safety risk to the fire service. Further, it did not establish a certainty or even likelihood that he would develop symptoms preventing him from performing those duties within the near future.
136Section 17 provides a statutory defence to discrimination if the City can show that the complainant is incapable of performing the essential duties of a firefighter, subject to the duty to accommodate. If the evidence establishes, and I have so found, that the complainant was capable of performing the essential duties of the position, then relying on a disability or perceived disability in the refusal to hire the complainant is discriminatory.
REMEDY
137It remains for me to consider an appropriate remedy. Two types of remedial orders have been requested in this case. The first type is to compensate for injury to dignity, feelings and self-respect, what in the past were referred to in Tribunal decisions as “general damages.” The second type includes instatement to the position of firefighter, as well as compensation for economic loss, which is intended is to place the complainant in the position he would have been in had the discrimination not occurred: Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.); Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.). The Commission and the complainant also submit that the Tribunal should compensate the complainant for legal fees he incurred in 1999 and 2000.
138In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paragraphs 52-54, the Tribunal canvassed the recent history of awards for injury to dignity, feelings and self-respect, stating:
(…)The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
139I have found that the City’s conclusion that the complainant was unable to perform the duties of a firefighter, which was discriminatory, was a factor in the refusal to hire him.
140A complainant’s rights under the Code are violated when a discriminatory factor is one of the reasons for unequal treatment. It need not be the sole or primary reason. In this case, therefore, the complainant is entitled to damages for injury to dignity, feelings and self-respect attendant on the violation of his human rights. The Commission and the complainant have asked for an award of $40,000.
141Among the factors they rely on in support of such an award are the “re-victimization” of the complainant caused by the City’s untimely responses and follow up and the overall impact of the events on the complainant. The Commission refers to its position that the City’s efforts to obtain more information from the complainant during the fall of 1999 and into 2000 were a pretext, and calls it a “fishing expedition” to find any reason to deny the complainant a position.
142I have no doubt that the events caused the complainant emotional turmoil. In assessing the appropriate amount of compensation for the discrimination, however, I must take into account the following considerations. First, I find below that the City’s reliance on misrepresentation was not a pretext, and that the complainant would not have been hired even apart from the discrimination. To the extent that the effects described by the complainant can be linked as much to the fact that he was denied a job, as to the impact of the discrimination, this weighs in favour of a lesser amount of compensation than requested.
143Second, the complainant described the emotional rollercoaster of engaging in a lengthy process to enforce his rights and seek to obtain the position to which he believes himself entitled. Although I do not doubt the process has been difficult on him and his family, I cannot attribute all of this to the City’s act of discrimination. As described above, several factors have contributed to the protracted process and it would be unfair to place responsibility for all of that on the City.
144Third, part of the complainant’s feelings of injury to his dignity arise out of his sense of having been wrongfully accused of misrepresentation during the hiring process and at the hearing. He described feeling like a “little dog, jumping through all the hoops” at the time the City was seeking more information from him, and then experiencing the years of litigation in which his motives and conduct were scrutinized. Again, as I have found that the City’s concerns about misrepresentation were genuine, the damages awarded should not include compensation for this factor.
145Fourth, I have also had regard to the principle expressed in Arunachalam that injury to dignity, feelings and self-respect can generally be anticipated to have greater impacts depending on the nature of the discrimination. In this case, the City was faced with an extraordinary situation, a candidate for the physically-demanding job of firefighter with end-stage osteoarthritis in a critical joint, who had no apparent functional limitations. Dr. Cameron, the Commission’s expert, stated in August 1999 that he could “understand their concerns.” In his oral evidence at the hearing, he confirmed that this was “absolutely” a difficult case. Although I have found the City’s conclusions about the complainant’s ability to perform the job to be discriminatory, the nature of the discrimination is not at the most extreme end of the spectrum.
146Some recent decisions that have considered disability-related discrimination in the workplace have awarded $20,000 (Lopetegui v. 680247 Ontario, 2009 HRTO 1248, involving a termination of employment), $10,000 (Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 and Black v. Etobicoke Ironworks, 2010 HRTO 2082, both involving a failure to accommodate without termination of employment); and $5,000 (Quattroci v. Boz Electric Supply, 2009 HRTO 1082, in which the applicant’s disability was one factor in termination of employment, but there were also other factors that contributed to the decision to terminate employment).
147Of course, each case has its own set of facts but in the circumstances, I find after considering similar cases that $10,000 is an appropriate award of compensation for the injury to dignity arising out of the discrimination. I now turn to the other remedies requested.
Effect of Non-Disclosures on Remedy
148I find that neither placement in the position of firefighter nor compensation for income loss is appropriate in the circumstances of this case. As indicated above, the principle behind these types of remedial requests is to place the complainant in the position he would have been in had the discrimination not occurred. However, I find that the complainant would not have been offered the position, because of the City’s view that he had knowingly failed to disclose his medical history. I find the City’s position to be genuine, and not a pretext for discrimination.
149In DeSouza v. 1469328 Ontario., 2008 HRTO 23, the Tribunal canvassed the principles to be applied in assessing damages for a loss of job opportunity at paras. 82-83:
In cases of the loss of opportunity to be considered for employment the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event. (per Marceau J.A. in Canada (Attorney General) v. Morgan (Fed CA), 1991 CanLII 13184 (FCA), [1992] 2 F.C. 401; Chopra v Canada (Attorney General) 2007 FCA 268, [2007] F.C.J. No. 1134 (Fed CA) .
Another approach is to assess, on a balance of probabilities, whether the complainant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.
150In DeSouza, the Tribunal found on the evidence that the complainant would not have been hired by the respondent because of non-discriminatory factors, and in such circumstances, an award of damages fairly compensated the complainant for his loss of the right to have his application considered in a non-discriminatory manner. Other cases that have applied the same principle, in different circumstances, include Mirashrafi v. Circuit Centre, 2010 HRTO 512 and Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265. I adopt it here.
151I approach the issue of the non-disclosures with the following cautions. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, upheld in Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), an employee with bipolar disorder held back that information during the hiring process because of a well-founded fear that its disclosure would result in discriminatory treatment, and the Tribunal attributed no fault to such conduct. Further, where misrepresentation in a job application arises out of an employer’s questions about an applicant’s medical history, the Tribunal must consider whether there is a legitimate business interest in this line of questioning. If there is not, an employer’s reliance on an alleged misrepresentation may not be a genuine non-discriminatory reason for its actions, but a pretext for discrimination on the ground of disability or perceived disability.
152In this case, the evidence about the medical assessment is that it serves two purposes. First, it provides baseline information about the health of firefighters employed by the City. Second, it serves as part of the overall assessment process for firefighter candidates, during which the Chief Medical Officer for the Fire Service may either pass or fail a candidate.
153Candidates will not be hired unless they have passed the medical assessment. Dr. Forman described the Gledhill Shaw test and the medical assessment as two distinct and collaborative components of the assessment of candidates. The Gledhill Shaw test was described as setting a “minimum fitness requirement”. Dr. Forman described the medical assessment as an important adjunct to the fitness test in that it provides information about medical conditions and history that could have a significant impact on an individual’s ability to be an active firefighter, from a “physical point of view” and from a “safety point of view”. His evidence on this was supported by that of Brent Faught.
154There is no doubt that the work of a suppression firefighter is physically challenging. The Job Demands Analysis provided to Dr. Ogilvie-Harris described the demands of the job generally as requiring high levels of upper and lower body strength and anaerobic power. Firefighters must be capable of working in unstable environments, crawling, climbing, working in extremes of temperature and slippery conditions and carrying heavy loads. They always work as a team. The consequences of a physical or mental lapse on their safety, their colleagues or the public can be enormous.
155In this context, I am satisfied that the medical assessment serves a valid purpose in the application process for the job of a firefighter, insofar as it may reveal the presence of medical factors affecting the ability of a candidate to perform the work safely. I also find that firefighter candidates understand that this is the purpose of the medical assessment, which includes the gathering of information through the medical data form.
156The City took measures to advise candidates of the importance of completing the form accurately and completely. Among other things, candidates are required to attest to the accuracy of the information provided, in the face of a warning that provision of false information may lead to the termination of employment. Even prior to the medical information form, applicants complete an application for employment that also warns about the consequences of misrepresentation in the application process.
157I also find that the information that the complainant failed to disclose was significant, and would reasonably be viewed by all parties to the hiring process to be relevant to the medical assessment. In this respect, I do not see an analogy between the non-disclosures in this case and some of the examples given during the hearing, such as laser surgery or dental surgery.
158In submitting that the City’s reliance on misrepresentation is a pretext, the Commission emphasizes that this factor was not raised at the time the complainant was told he had not passed the medical clearance. Nor was it raised in the complainant’s first conversation with Dr. Forman. Dr. Forman did refer to it in their second conversation, and then it was explicitly raised by the City in its response to the first letter from the complainant’s counsel, on October 26, 1999. The Commission also submitted that the City’s continuing efforts to obtain more information about the complainant’s medical history, ostensibly to address its concerns about misrepresentation, amounted to an effort to “gather more ammunition” against the complainant.
159I do not view the failure to raise the issue of misrepresentation by Dr. Forman in his initial decision not to medically clear the applicant as evidence that this factor was not a genuine concern for the City. Dr. Forman’s role is to make a decision on medical clearance. He communicates his decision to pass or fail a candidate to the City’s Human Resources Department, which then makes and conveys the final decision. Although he expressed his concerns to the City’s solicitor about the non-disclosures on the data form, he did not instruct the solicitor what position to take. In view of Dr. Forman’s specific role in the overall decision-making on firefighter hiring, I do not attribute much significance to the failure by Dr. Forman to raise this issue with the complainant in their initial conversation or to convey the City’s ultimate decision on this issue to the complainant.
160Secondly, information about the complainant’s medical history came to light gradually. Initially, Dr. Forman discovered when he performed the physical examination of the complainant and asked him questions about his knee, that the complainant had experienced a knee injury in the past. The complainant described it as an “old football injury”. He did not volunteer the information that he had been diagnosed with end-stage osteoarthritis four years previously, or that he had undergone an arthroscopic procedure. Dr. Forman stated in his evidence that while it was clear the knee injury had not been disclosed on the form, based on the information before him he did not have a view on whether this was an “intentional” misrepresentation.
161When Dr. Forman reviewed the x-rays, it became apparent that the complainant had severe arthritis. Later, the City discovered through one of the specialist’s reports submitted by the complainant that he had undergone an arthroscopy. Combined with the earlier non-disclosure, the City questioned the complainant’s candour in the medical assessment process, and pressed the complainant to provide an explanation.
162I do not accept the Commission’s characterization of the City’s requests for further information as an attempt to “gather more ammunition”. The Commission made a comparison to a similar finding in Morgoch v. Ottawa (City) (No. 2) (1989), 1989 CanLII 9067 (ON HRT), 11 C.H.R.R. D/80 (Ont. Bd. Inq.) (Morgoch), but I find the circumstances of the two cases distinguishable. In the case before me, the City sought answers to its questions about why the complainant had failed to fully disclose his medical history. In addition to the fact of the previous injury and the presence of osteoarthritis, it was surprised to learn that the complainant had undergone an arthroscopy. In the evidence of Dr. Forman, it sought further information about the arthroscopy because the fact of surgical intervention suggested to him that may have been issues warranting the procedure. The initial answer to the City’s queries, that the arthroscopy was performed because of the complainant’s girlfriend’s opinion that “his knee looked odd when he wore shorts” did not seem like a plausible reason to undergo the procedure. The City therefore pressed for more information. I find its queries reasonable in all the circumstances.
163In the result, the City did not get any information that fully satisfied it that the complainant had not intentionally concealed his true medical history and condition. By the time it made its final decision, the information then available to the City gave it reason to believe that the complainant had been less than forthright in the provision of information during the application process. In these circumstances I do not find its position to have been taken in bad faith.
164The Commission and the complainant submit that at the time he completed the medical data form, he did not view the 1995 arthroscopy as surgery. The notation “N/A” beside “surgery”, it is suggested, was entirely reasonable since the complainant understood the term “surgery” to apply to bigger procedures such as knee replacements, reconstructive surgeries and osteotomies. The Commission refers to Dr. Cameron’s evidence that although it is a surgical procedure many of his patients do not consider arthroscopy to be “surgery” because it is quite a minor treatment relative to other treatments for the knee.
165The complainant also wrote “N/A” beside “accidents or fractures (injury)”, and “joint or orthopaedic condition(s)”. He also did not check off “arthritis” under the heading of “Medical History” or “injured joints” under the heading “Functional Enquiry”. The complainant’s explanation for these was in essence that he did not think these “applied” to him. Because of the level of his functioning and his overall state of physical fitness, “in his mind”, he did not have arthritis.
166The following factors give me cause to be sceptical about the explanations. First, at the time of the procedure, the hospital forms all refer to the procedure as “surgery”. Some of these were completed and signed by the complainant, such as the “Consent to Surgery” and the patient questionnaire. The “Consent to Surgery” describes the procedure as “arthroscopic surgery left knee; intra articular surgery”. The procedure was performed under a general anaesthetic, which gave the complainant some initial concern at the time and is consistent with the knowledge that he was undergoing a surgical procedure.
167Second, the complainant’s conduct, and even his evidence, were consistent with an effort to downplay the nature of his medical history. On the patient questionnaire, when asked what he expected to achieve by having surgery, he wrote “alleviate the symptoms of osteoarthritis in left knee (stiffness, swelling, pain)”. When Dr. Cameron referred to this in a letter intended to address the reasons for the arthroscopy in response to the City’s queries, the complainant asked him to remove that reference and “concentrate on the “odd appearance/shape” of the left knee as reason for admission.” The complainant also asked the doctor to remove from the Operative Report the reference to a “badly damaged knee in all three compartments”.
168The Commission submitted that this evidence should not have a bearing on my decision having regard to the context within which these letters were written, the fact that the City was not aware of this correspondence until after it had made its decision, and the fact that the communications were part of a privileged exchange between a doctor and patient. No privilege over these communications was asserted at the hearing and the documents were entered into exhibits on agreement, so I do not see any basis for the assertion of privilege. Further, although it is true that the City was not aware of this specific correspondence until after the litigation began, it is relevant to my assessment of the complainant’s evidence and his position that he did not knowingly misrepresent or fail to disclose his medical history.
169During his evidence, the complainant also sought to minimize the nature of his medical history. He stated that when he wrote “stiffness, swelling, pain”, he was not suggesting that he was experiencing symptoms from the osteoarthritis. Rather, he stated that he wrote that down because he had a question in his mind about whether his extensive fitness regime was causing him occasional stiffness, swelling and pain in his knee. This does not seem credible given the wording of the statement on the form.
170In other areas of his evidence, the complainant’s view of the events was at odds with the objective evidence, and reflected an inability to resist the tug of self-interest. In giving evidence about the arthroscopy, he clearly sought to minimize its significance. Among other things, he testified that after the arthroscopy was over, he got off the stretcher and walked out of the operating room. This is inconsistent with the records of the procedure, which documents a conventional recovery process in which the complainant was taken out of the operating room on a stretcher and gradually wakes up from the general anaesthesia in the recovery area. The complainant was given a chance during cross-examination to reflect on whether he might be wrong about this, given the possibility that anaesthesia may have affected his perception of the events, but he remained adamant about his recollection despite the medical records, which I take as an accurate record of the events and consistent with Dr. Cameron’s evidence.
171Finally, it is difficult to accept that the complainant genuinely thought, in 1999, that he did not have osteoarthritis. Clearly, the diagnosis of osteoarthritis in 1995 had come as a shock to him. He expressed his feelings that he thought it was a disease of “old, frail” people. He was determined, and this is certainly an admirable reaction, not to allow it to affect his life. However he was never told that it could be “cured”, only that he could offset its symptoms. I find it improbable that an individual like the complainant, well-educated, having a high degree of interest in his well-being and knowledgeable about his personal fitness and health, could truly believe that he no longer had osteoarthritis.
172At the time he underwent his medical assessment, it may have been reasonable for the complainant to take the position that his past injury and the osteoarthritis in his knee had no bearing on his ability to perform physically demanding tasks, including the duties of a firefighter. However, it was not reasonable for him to believe, contrary to the facts and the medical evidence, that he had no arthritis, no past history of a knee injury, no joint condition or injured joint, and I do not accept that he genuinely held those beliefs.
173If the complainant had simply failed to disclose the fact that he had undergone arthroscopic surgery, I might not have been inclined to assign any significance to this omission, given the possibility that he may not have viewed it as the type of procedure being referenced on the form. Taken as a whole, however, the evidence leads me to the conclusion that at the time he wrote “n/a” beside the categories listed above, he was aware that they were, in fact, applicable to him.
174Given the fact and nature of these non-disclosures, which were not minimal, it was reasonable for the City to raise a concern about the misrepresentation in its correspondence in the fall of 1999. It was also reasonable for it to seek further information from the complainant before it came to a final conclusion about whether he had knowingly misrepresented his medical history. At no time during the parties’ correspondence in late 1999 and into 2000 does the City withdraw this concern. I cannot conclude that its reliance on this factor in refusing employment to the complainant was a mere pretext for a discriminatory motive.
175The City referred to a number of arbitration and court decisions in which questions about material misrepresentation during a hiring process have been canvassed. It is unnecessary to review to them in detail, as they appear to arise out of grievances filed by employees who have been discharged after the misrepresentation came to light. They have limited relevance to the circumstances before me, insofar as the factor of misrepresentation is raised as a reason not to hire an individual. Such a decision is not normally the subject of grievance arbitration. Further, within the context of a human rights complaint, the standard against which I have assessed this factor is not whether it amounts to “just cause” for the refusal of employment, but whether it a pretext for discrimination. I conclude that the City’s refusal to hire the complainant based on its view that he had knowingly misrepresented his medical history was genuine, had a credible basis and reflected a legitimate business interest.
176The Commission has also requested that the City be directed to pay $8,000 to reimburse the complainant for legal expenses incurred in 1999 and 2000. The Tribunal consistently has held that it does not have jurisdiction to award costs under the current Code or its Rules. See Clennon v. Toronto East General Hospital, 2010 HRTO 506
177I make no award for legal expenses.
Future Compliance Remedies
178Section 45.2(1)(3) of the Code gives the Tribunal the power to make an order to promote future compliance. The Commission has requested that the Tribunal order the City to do the following:
Establish an appeals process for applicants who are denied a firefighting position;
Require any person within the hiring process to attend human rights training which includes a component on the accommodation of individuals with disabilities;
Make hiring decisions based on an individualized assessment of a candidate’s ability to do the job;
Prepare documentation that set outs the purpose of the medical examination and medical history data form, which states that medical information acquired during the examination or history data form will not be used to deny the candidate a job if they pass the Occupation Specific Fitness test
179I do not view the establishment of an appeals process as a necessary measure to promote future compliance with the Code. There is nothing inherently discriminatory about giving the Fire Service’s Chief Medical Officer the authority to make a decision on medical clearance. However, the circumstances of the case do demonstrate the necessity for the City to have available to this Officer a panel of specialists to help come to decision on complex medical facts. I will therefore direct the City to establish a panel of specialists in orthopaedic medicine, with which the Officer must consult before making a decision to exclude a candidate based on medical reasons within that specialty.
180Given the nature of this employer, an order directing it to require its staff to attend human rights training is unnecessary. However, it is not clear that Dr. Forman, who is not a salaried employee but a medical consultant, has had such training, and I will therefore direct it for him specifically.
181I do not see it necessary to make the third order requested, since I view the above directions to address the failures in the process of assessing the applicant.
182The fourth order requested is not warranted and I decline to order it. I have found that the medical assessment is a valid component of the hiring process for firefighters, for which a fitness test is not a substitute. Although I have found that the City made a discriminatory assessment of the complainant’s ability to perform the job, the circumstances of this case do not preclude the possibility that a candidate may properly be excluded for safety reasons despite having passed an occupation specific fitness test.
183In the result, I order the following
a. The City shall pay the complainant $10,000 as compensation for injury to dignity, feelings and self-respect;
b. The City shall pay pre-judgment and post-judgment interest on the monetary compensation, calculated from July 20, 1999;
c. Dr. Forman shall attend, at the City’s expense, a training program on disability and the duty to accommodate, and provide written confirmation to the Commission that the training has been so provided;
d. The City shall establish a panel of orthopaedic specialists who will be consulted by the Fire Service’s Chief Medical Officer before excluding any candidate based on medical reasons within this field of medicine.
Dated at Toronto, this 21st day of April, 2011.
“Signed by”
Sherry Liang
Vice-chair