Marcel Backs v. Corporation of the City of Ottawa, 2011 HRTO 959

Marcel Backs

Applicant

-and-

Corporation of the City of Ottawa

Respondent

INTERIM decision

Adjudicator: David Muir

Date: May 18, 2011

Citation: 2011 HRTO 959

Indexed as: Backs v. Ottawa (City)

Marcel Backs, Applicant ) Sean T. McGee, Counsel

Corporation of the City of Ottawa, ) David Patacairk, Counsel

Respondent )

1This is an Application filed on January 26, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In the human rights complaint (complaint) filed in February 2008 and forming the subject matter of the Application the applicant alleged that he has been subject to discriminatory treatment on the basis of a disability. More specifically the applicant has alleged that the employer has failed to accommodate him to the point of undue hardship. Although other issues were raised in the evidence, at the end of the day the issue in this case boils down to whether or not the employer appropriately accommodated the applicant, it not being disputed that he was (and remains) a person with a disability. It is also not disputed that he was subject to differential treatment in that he was not returned to his pre-injury duties or otherwise found work that he could perform with or with out accommodations.

BACKGROUND

3The accommodation the applicant seeks is to be returned to his pre-accident position of a Fire Prevention Officer (FPO) in Fire Prevention Services (FPS) with a significant modification to the duties typically expected of an incumbent in the position. It is agreed that this position includes three major components: Investigations; Inspections; and, Public Education. The applicant concedes that at this point he cannot safely perform the Investigation duties as a result of his physical limitations. Alternatively the applicant states that he could be returned to the dispatcher position in the Communications Branch he had been placed in by the respondent prior to his workplace accident and injury with little or no accommodation.

4Other issues were raised in the evidence which are not canvassed much in this decision. In particular there was a good deal of evidence with respect to alleged performance and behavioural issues that the respondent employer had with the applicant over a period of time prior to the workplace injury which caused his injuries. Although this evidence was lead there was no argument made that the applicant could not be returned to his pre-accident or other position in the Fire Service based on performance issues. In the end it is not clear what purpose was served by the tendering of this evidence.

5Another issue canvassed in the evidence related to an allegation by the respondent that after it determined that it could not accommodate the applicant in his pre-injury position he did not cooperate in the accommodation process by his conduct and approach while in the respondent’s Priority Placement program. Although I have concluded that there is little evidence that the applicant was non-cooperative, even though there were some mis-steps along the way, it is also my conclusion that the applicant was only in this program as a consequence of the failure of the employer to appropriately deal with his request that he be returned to his pre-injury position or a position in Communications. For the reasons set out below I have concluded that the employer could have returned the applicant to his pre-injury work in either his pre-accident home position with accommodation or to the dispatcher position with little or no accommodation and as such his being in the Priority Placement program should not have been necessary.

6A hearing in this case was held over several days in accordance with the expectations expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications Pursuant to Sections 53(3) and 53(5) of the Code that these Applications be processed in a fair, just and expeditious manner. To that end the parties relied to a commendable degree on detailed will-say statements subject to cross-examination. I heard from the applicant, Peter Kennedy an official of the applicant’s trade union, Dr. Louis O’Connell the applicant’s family physician as well Barbara Yeo, Judith Timmins-Hallas, retired Chief Charles O’Brien and Deputy Chief Montone for the respondents.

7The parties agreed that it would be appropriate to bifurcate this proceeding, dealing with liability first and if necessary remedy. This decision deals only with the question of whether or not the employer has complied with its obligation to the applicant to provide him an accommodation to the point of undue hardship.

8Much of the factual background of this dispute is not controversial. The applicant was injured in a workplace motor vehicle accident in July 2003. At the time of this injury the applicant was employed as an FPO but had been assigned for an indefinite period to the Communications Branch where he worked as a dispatcher. There was a good deal of evidence lead with respect to the reasons for the assignment of the applicant to this position but in the end the reasons for it are immaterial to the resolution of this dispute.

9The applicant’s workplace injury from the motor vehicle accident resulted in the applicant being off work for a period of time. He filed a claim for WSIA benefits which was accepted. He returned to work and went off again on a couple of occasions in 2003 and 2004. During these periods of active employment the applicant was assigned to light duties in the Maintenance Division until a final re-occurrence of his injuries in February 2005 after which he has not returned to the workplace.

10In a report of the applicant’s family physician dated September 8, 2009, the applicant’s injuries were described in the following terms:

Mr. Backs suffered a work-related injury in the MVA of July 23, 2003 involving a severe cervical and left shoulder girdle strain that has since developed into a Chronic Pain Syndrome, perhaps more correctly termed a Chronic Regional Pain Syndrome, since the bulk of his symptomatology is referable to the cervical and left shoulder girdle region but can certainly be more diffuse. Pain levels very from tolerable at 4/10 to 10/10 during flareups which can come on with minimal provocation, event with household chores. This pain syndrome constitutes the majority of his current disabling condition.

11A position description of the applicant’s pre-injury FPO position taken from the Job Demands Analysis (JDA) prepared by the employer in late 2006 states as follows:

This job has 3 different components: inspection, public education and investigation. Each of these components is different than the other in terms of loads and physical demands, (refer to loads and table). Although, the job title is 'Inspector', persons doing this job are trained in all 3 aspects of the work and are required to provide services in any of the 3 areas & specific 'on-call' is required for Fire Investigation. Typically, officers are assigned to two of these 3 areas for day-time and overtime work with 'on-call' required for fire investigation every 6 weeks. All 3 areas work 4 days per week (7:30 am - 4:45 pm, with ½ hr lunch and 2-15 min. breaks for a total of 35 hrs/wk.). Mon-Thurs one wk. & Tues. - Fri. the 2nd wk. On call for inspection is only done on a week when working Tues-Fri and starts from 4:30 pm on the Wed, until 7:30 am on the following Wed. including 24/7 on weekend. In a given shift, may be required to do inspection, public ed. event and investigation.

Inspection: Typically spend the 1^stand last hour of day in office: checking messages, email, booking appointments, doing research & typing reports. Remainder of day is spent driving to inspections and carrying out inspections: Frequent walking & sitting (office/driving); Occasional climbing, standing; Minimal bending, lifting, pushing/pulling and carrying. Often deal with angry landlords/tenants (refer to cognitive demands – page 5)

Public Education: Up to ½ of workday in office (preparing/planning presentations, booking appointments, gathering supplies for presentations, email, etc.); May be out of office full day for certain seasonal events. Seasonal events require weekend and evening work (Christmas, spring; safety house in summer only.). If not in office, is in schools, playgrounds, etc. delivering education. Drives to venue, unloads vehicle, lifts/carries equipment into building, sets up projector/lap top, etc., delivers presentation, and answers questions. Frequent sitting (in office/vehicle), standing, walking, kneeling (to speak to young children; safety house); Minimal lifting, carrying, bending, pushing, pulling.

Investigation (Day shift): Responsible for investigating fires that occur during day shift as well as continuing any investigation that may have been commenced by 'on call' person the night before. Drives to scene, walks around outside of building, interviews witnesses, suppression crew, police, etc. (standing or seated in van), walks through scene taking photos, examining evidence. Scene examination initially involves un-layering debris using hands or shovel, then begins selective removal of debris to unlayer it to the seat of the fire. The pre-fire scene is re-constructed by returning burnt out furniture to where it was in the bldg. prior to the fire (can call for help with moving/lifting. stoves, fridges, furniture, etc.). May have to use pick to remove ice from stairs to enter building. May sweep or squeegee floor to look for burn patterns. Frequent standing, sitting, bending, stooping, kneeling, walking, squatting, lifting, carrying, pushing, pulling (can get help from suppression crews for larger loads or to shovel). May have to wear Self Contained Breathing Apparatus (SCBA)

Investigation (on call) - any inspector/investigator/public education officer performing the jobs described above must be on call once every 6 weeks between 4:45 pm and 7:30 am for fire investigation. Should he/she be called out during these hours, he/she will resume regular duties for day job at 7:30 am. Upon receipt of call, investigator drives to scene, meets with scene commander. He/she does not enter bldg. until suppression crews have completely extinguished the fire. He carries out interviews with key persons as per day investigator), examines the exterior and interior of he building, taking photos as necessary and examines debris. Commonly work 25-30 hours overtime on weekends on call.

12I heard very little evidence with respect to the dispatcher position. There is no JDA for it in the material. It is a sedentary position with limited physical demands other than a need to be able to sit or stand for long periods of time over up to 12 hour shifts. Based on the evidence of the applicant and his family physician so long as he was able to shift position by alternatively standing or sitting he would have no difficulty meeting the physical demands of the job. The respondent led no evidence of any barriers to the applicant safely performing the duties of this position.

13Although there are references in the complaint to a request or requests by the applicant for a return to work prior to early 2006, the material filed by the applicant indicates that the employer offered the applicant the possibility of a return to work performing only the Inspections functions of an FPO in February 2006. The applicant apparently declined the offer citing concerns with the effect of medications he was taking at the time on his ability to drive a motor vehicle. At about the same time a Functional Abilities Form prepared for the WSIB by Dr. O’Connell on February 23, 2006 recommended a very graduated return to work. Further discussions between the WSIB, the applicant and the employer ensued through the Spring and early Summer of 2006.

14By the summer of 2006 the applicant was clearly seeking to return to his pre-injury position as an FPO. The applicant’s family physician sent a note directly to the employer in October 2006 proposing a graduated return to work. A WSIB facilitated return to work mediation took place in November 2006. The mediation resulted in an agreement signed by the applicant and a representative of the respondent employer and trade union respectively.

15The mediated agreement provided for a four to six week work hardening program followed by a functional abilities evaluation (FAE) which was conducted in January 2007 at the Montfort Hospital. In anticipation of the FAE being done the employer reviewed and updated the JDA (part of which is set out above) of the FPO position and it was provided to the assessors for use in their work. Pursuant to the return to work mediation the results of the FAE, the Montfort Report, were to be provided to the parties and the signatories agreed that they would meet to discuss its conclusions. The agreement also contemplated the possibility of a work trial “to determine [the applicant’s] capability to perform the duties prior to having him return to duties.”

16The Montfort Report was provided to the respondent employer and the applicant but the agreed meeting to discuss its conclusions did not take place nor was there a work trial undertaken. It is not clear why this was the case. The Montfort Report concluded that the applicant could perform the duties of an FPO with some modifications. The report recommended “four more weeks of active conditioning, 3 times per week to improve the [applicant’s] strength, endurance and function, further improve posture and work technique…” Despite their general conclusions, in an addendum to the report the assessors provided a detailed explication of the modifications to the work which would be required for the applicant. These concerns related primarily to tasks associated with the Investigations function of the job.

17On or about March 2, 2007 the employer requested an ergonomic assessment of the FPO position by the WSIB following receipt of the Montfort Report. According to Ms. Timmins-Hallas, she was advised by the WSIB ergonomist on March 26, 2007 that the applicant would not be able to perform the Investigation functions of the job, but could perform the Public Education and Inspection duties.

18In mid to late May 2007 the employer advised the applicant that it could not accommodate him as an FPO and since they had nothing to offer him he was being placed in the WSIB LMR program. On June 1, 2007 Bruce Montone, Deputy Chief wrote to Mr. Backs confirming this in writing, stating that the employer had concluded that it could not accommodate him, without undue hardship, in his position in Fire Prevention or elsewhere within Fire Services based on his current medical restrictions. The letter does not reference what medical restrictions were being relied upon. The letter went on to state that the employer would continue in its attempts to find Mr. Backs an appropriate position having regard to his medical restrictions, competencies, experience and education. The practical result of this conclusion by the respondent was the applicant being placed in the respondent’s Priority Placement program.

19At the hearing, the employer indicated that the medical information relied upon for its June 1, 2007 decision was a listing of restrictions generated by the WSIB in early 2006 as follows:

a. No prolonged static position of the neck

b. No overhead activity

c. No prolonged repetitive or extremes of bending or twisting of the neck

d. No prolonged, repeated or heavy lifting

e. No prolonged repetitive and forceful use of the shoulder against resistance as in push/pull/twist/reach/grip

f. No prolonged unsupported use of the upper extremity

20As indicated above the applicant’s family physician, Dr. O’Connell provided a report dated September 8, 2009 and attended the hearing to give evidence. Dr. O’Connell has been treating the applicant for many years, dating back to before the MVA in 2003. In his comprehensive and thoughtful report Dr. O’Connell offered the following opinions about the prospects of the applicant returning to work as FPO:

It would appear from the foregoing, that Mr. Backs may have the greatest chance of successful re-entry and continuance at work if redeployed in the Communications Division/Dispatch of the Ottawa Fire Department. His functional limitations may be more readily accommodated and pain exacerbations reduced in this environment given the less physical demands of this position. Logically, returning to work as a Fire Prevention Officer, with investigation duties, would be least successful in my opinion and of greater probability for harm to self or others as described in the Montfort Job Demands Analysis. If Mr. Backs was employed as a Fire Prevention Officer, without investigation duties he would likely require an assistant to help him carry big displays for example. Carrying same alone, would exceed his limitations and potentially cause pain intensification and work absence. As mentioned in previous reports to WSIB, a graduated return to employment may also be beneficial considering Mr. Backs' considerable time out of the work force.

I must emphasize that the opinions I have expressed in the above paragraph are my own and provided from the expertise I have in the ongoing therapeutic interaction with Mr. Backs as his family physician. It also constitutes the summation of his clinical findings over many visits to my office since his work related injury, and my cumulative (and still acquiring) knowledge of Chronic Pain Syndrome and its natural history. I am not an Occupational Health specialist.

THE POSITIONS OF THE PARTIES

21The applicant stated that the respondent has completely failed to establish that it could not accommodate the applicant to the point of undue hardship. The applicant makes several main points. The applicant states that the onus rests with the respondent to show that they could not accommodate the applicant to the point of undue hardship. The applicant stated that the evidence of the respondent in support of their contention that the applicant could not be accommodated was impressionistic and fell below the standard required in these kinds of cases. The applicant also stated that the respondent did not consider the results of the most recent medical information available to it, that being the results of the FAE conducted in January 2007 rather they relied on a set of restrictions determined by the WSIB more than a year earlier.

22The respondent states that their duty to accommodate in this kind of case does not require it to alter the fundamental nature of the FPO position. The respondent also takes issue with the applicant’s position that undue hardship translates as impossibility. The respondent stated that the evidence establishes that the applicant is not physically able to perform the essential duties of any of the three aspects of the FPO position with or without accommodation. The respondent stated that the work is highly physical and safety sensitive. Even if as suggested by the applicant, he can perform two thirds of the job, i.e. not perform the Investigations function, this accommodation on its own would impose undue hardship on the department. The respondent stated that the FPS is barely able to meet its statutory obligations and that to require it to accommodate another employee would amount to undue hardship.

23The respondent stated that there is no reliable medical evidence before me to contradict the medical restrictions found by the WSIB. The respondent also stated that to put him back into his pre-injury position would require it to ignore the WSIB restrictions and that they are legislatively prohibited from doing so unless Mr. Back’s WSIB restrictions and award are modified by the WSIB; something Mr. Backs has never requested.

24The respondent also took issue with the reliability of Dr. O’Connell’s evidence as it is based largely on the findings in the Montfort Report. The respondent stated that the authors of the Montfort Report were not called to testify. The respondent states that the report is vague and was based solely on discussions with the applicant – the assessors did not come on site to assess the work. The respondent states that the only medical witness called, Dr. O’Connell agreed that he would defer on some issues to a person more familiar with the job than he. In contrast stated the respondent, Deputy Chief Montone and Mr. O’Brien have 50 years of fire prevention experience between them and their views on the applicant’s ability to do the work should be given considerable weight.

UNDUE HARDSHIP

25The Application is allowed. Although the ultimate burden to establish a violation of the Code rests with the applicant, in this case the evidentiary burden to show that the accommodations proposed by the applicant would have imposed undue hardship on the respondent rests with the respondent. For the reasons set out below I am not satisfied that returning the applicant to his pre-injury position of an FPO with accommodation, or to the dispatcher position with minimal or no accommodation required would have caused the respondent undue hardship.

26Section 5(1) of the Code prohibits discrimination in employment on the basis of disability. The respondent concedes that the applicant was and remains a person with a disability and that he experienced differential treatment linked to that disability in his not being returned to a position in Fire Prevention Services.

27In this case the respondent states that the applicant was incapable of fulfilling the essential duties of the position of a FPO. Section 17(1) of the Code specifies that if the individual with the disability is “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a disability,” then differential treatment is not an infringement of that person’s rights.

28However section 17(2) then imports the duty to accommodate into the analysis providing that a person with a disability will not be considered incapable of performing the essential duties of his or her job if the needs of that person can be accommodated “without undue hardship on the person responsible for accommodating those needs.” In determining whether there is undue hardship, the Code specifically identifies two considerations: cost (including outside sources of funding) and health and safety requirements.

29As regards the dispatcher position in the Communication Branch very little evidence was lead by the parties in this regard and none by the respondent although there were some questions put to the applicant’s witnesses in cross-examination about this position. Such evidence as there was indicates that there have been openings both part-time and full-time in that area but none were offered to the applicant. It is not clear why this was the case. Based on the medical evidence I am compelled to conclude that there is no physical limitations on the applicant’s ability to perform this work and in the circumstances no basis to conclude that it would impose an undue hardship on the respondent to accommodate the applicant in that position.

30Turning to the applicant’s primary position, in light of the applicant’s concession that he is currently unable to perform the Investigations part of the FPO position, the factual issues for determination are two-fold. First is he physically able to perform the Inspection and Public Education functions of the job and then whether it would amount to undue hardship on the respondent that he perform only those aspects of the job.

31The onus to establish that the applicant was incapable of performing the essential tasks of the FPO position rests with the employer. See for example, Cameron v. Nel-gor Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 CHRR D/2170 (Ont. Bd. of Inquiry). Similarly the onus to show that an accommodation would impose undue hardship on a respondent rests with the respondent: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees' Union 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 .

32Although there may be challenges for him should he be returned to his pre-accident position as an FPO, ultimately I accept the views of his family physician that the applicant is likely able to perform the Public Education and Inspections elements of the FPO position. Finally, I have concluded that the respondent has not met its onus of establishing that it would impose an undue hardship on the employer to accommodate the applicant in the FPO position by not requiring that he perform the Investigations component of his home position.

33A significant problem for the respondent is the plain fact that when Deputy Chief Montone made his assessment of the applicant’s ability to perform the work of an FPO in May 2007 he did not take into account the results of the Montfort Report which were that the applicant could perform the Public Education and Inspections aspects of the job. This assessment appears to have been endorsed by the WSIB ergonomist who examined the issue in March 2007. Deputy Chief Montone may have known of the results of the Montfort Report but it did not figure much in his thinking.

34In theory the decision making process employed by the City was intended to bring together those with knowledge of what the jobs entailed, in this case Deputy Chief Montone, with those who were in receipt of the relevant medical information, Employee Health and Wellness. This is the theory. In practice although the employer had updated medical information from the Montfort Report and the WSIB ergonomist, the decision that the applicant could not be accommodated was made by Deputy Chief Montone based on outdated medical restrictions determined a year or more earlier. It is also not clear what regard the respondent had to its own JDA which describes the physical demands of much of these aspects of the job as requiring “minimal” effort in lifting, bending, pushing/pulling and carrying.

35The loads required of the various aspects of the job as set out in the JDA are as follows:

Inspections: (Lifted and Carried Minimally)

Fire Code Binder 2-3 kg Brief Case 5-7 kg

Public Education: (Lifted and Carried Minimally)

Laptop 4.5 kg Projector 7 kg

Duffle Bag with equip.16 kg Brief Case 6kg

Activity Book Box 13 kg TV & Case 22 kg

Bin of Pamphlets 17 kg (carry from office to vehicle 100 m)

Smoke Alarm Displays: > 22 kg (two person lift)

Other Displays: heavy/awkward (4 person lift)

36In addition to these physical loads required of the job, the JDA notes that the FPO may be required to don the full firefighter bunker gear which weighs 43 kg for demonstration purposes at Public Education events.

37In terms of postural demands the JDA discusses at length the postural demands of the Investigation functions. As regards the other aspects of the job it is noted that “cumulative sitting is typically greater for Public Education and when conducting inspections the FPO is required to kneel, bend, crawl, and twist through crawl spaces, attics, climb stairwells, ladders and fire escapes.

38The Montfort Report noted the following Functional Abilities:

All lifts

All carries

Pushing/Pulling

Trunk Flexion in sitting and standing

Kneeling, crouching

Hand grip with right hand

Hand coordination

Standing Tolerance

Sitting Tolerance

Walking

Stair Climbing

Step ladder climbing

Balance Forward

And the following limitations:

Elevated work

Hand grip with left hand

Balance Backward

Repetitive Squatting

39Despite these latter functional limitations the Montfort Report concluded that the applicant met or exceeded all of the physical demands of the position. To illustrate the point the following table sets out some of the Job requirements and the applicant’s physical abilities as determined by the Montfort assessment:

Task

Job Requirement

Applicant’s Ability

All weights in lbs.

Percentage of day (rare)

Percentage of day (occasional)

Percentage of day (frequent)

Percentage of day (constant)

Job Match

Floor to waist lift

Rare 48.4

Occasional

yes

Waist to Crown Lift

Rare 13.2

yes

Horizontal lift

Rare 48.4

Occasional 33

yes

Push (static)

Rare

yes

Pull (static)

Rare

105

yes

Right Hand Carry

Occasional 35.2

yes

Left Hand Carry

Occasional 35.2

yes

Front Carry

Occasional 48.4

yes

Right Hand Grip

Frequent

118

yes

Left Hand Grip

Frequent

yes

40Despite the general conclusions reached, in the Addendum the Montfort Report’s authors noted a number of concerns regarding the applicant’s capacity in relation to their findings of a job match for the applicant in all aspects of the FPO position. The assessors noted two general concerns: that the applicant was not at present able to wear the full bunker gear, although they felt that this would become a possibility when the applicant’s upper body strength increased; and, that he should not be required to participate in four person lifts of big displays because of the weight and postural awkwardness involved in this activity, although again the assessors felt that this task might become a possibility in the future as the applicant’s upper body strength improved. The remaining concerns and possible difficulties related entirely to the Investigation functions of the job.

41As indicated earlier the respondent took issue with the Montfort Report and the evidence of Dr. O’Connell. The respondent stated that the evidence of Dr. O’Connell should not be relied upon because it is based on the Montfort Report, a hearsay document not subject to cross-examination by the respondents. I do not agree. Dr. O’Connell did rely upon the Montfort Report to a considerable degree, but he also testified that he did so because the report accorded with his observations and assessments of the applicant at the time. In effect Dr. O’Connell adopted the Montfort Report because it accorded with and confirmed his assessment of the applicant. He gave evidence at the hearing and the basis for his views was subject to cross-examination at the hearing. In this regard I also accept the position taken by the applicant that the evidence of Dr. O’Connell incorporating the findings of the Montfort Report can be accepted because the findings of Montfort Report is the kind of evidence that a physician obtains and acts upon within the scope of his or her expertise. See for example in R. v. Lavallée, 1990 CanLII 95 (SCC), [1990] S.C.J. No. 36 at paras. 82-84:

The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practical distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise (as in City of St. John), and evidence that an expert obtains from a party to litigation touching a matter directly in issue (as in Abbey).

In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decision within that expertise. A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general […].

Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point.

42As regards the Montfort Report itself the respondent stated that it is vague and general and is based largely on what the applicant told the assessors about the work he was expected to do as an FPO. I do not agree on this score either. The Montfort Report was the result of a process agreed to by the respondents which included their providing to the Montfort Hospital a JDA for the position. The Report makes reference to the JDA and appears to be a reasonable and objective attempt to assess the applicant’s ability to maintain the physical demands of the FPO position, including a detailed Addendum to the report wherein, despite the general conclusions that the applicant is physically able to perform all aspects of the job, the assessment team described in detail their concerns with the ability of the applicant to perform the Investigations functions.

43Although not offered as an explanation for essentially ignoring the Montfort Report, the respondent states that they were required to comply with the restrictions described by the WSIB. I do not understand how that can be the case where, pursuant to a WSIB return to work mediation, an agreement was made to have the applicant assessed. It was also contemplated by the parties’ agreement that they would meet to discuss the results of the FAE and that a work trial would be considered. It is disingenuous of the respondent to now take the position that they were precluded from considering the results of an assessment they agreed to in a WSIB facilitated settlement.

44When faced with the results of the Montfort Report, largely confirmed at least in its general conclusions by the WSIB ergonomist, the respondent failed to take it into account. I agree with the applicant that this was not the appropriate response if they disagreed with the Montfort Report’s conclusions. If they did disagree with the Montfort Report they ought to have said so and asked for further information, request a further assessment or perhaps meet with the applicant to discuss the results as they had agreed to do.

45As against the compelling medical evidence of the applicant, the respondent relies on the evidence of retired Chief O’Brien and Deputy Chief Montone. It was clear from the evidence of Mr. O’Brien that his view that the applicant could not perform the essential tasks of the FPO position was entirely based on the WSIB restrictions. He had never been apprised of the new findings contained in the Montfort Report or the other materials. Consequently his evidence as it relates to a comparison of the applicant’s physical abilities and the job duties at the time is fundamentally flawed for that reason. In cross-examination when faced with the findings of the Montfort Report Mr. O’Brien largely abandoned many of the concerns he would have had with the applicant’s physical ability to perform the work. For example he understood that the applicant would have been incapable of exerting any force with his shoulder to test whether fire doors were compliant with the Fire Code, an important element of the Inspection function. When asked to comment on the fact that these doors must be capable of being opened by a child or an infirm elderly person and that the Montfort Report indicated that the applicant was able to exert considerable force, Mr. O’Brien agreed that the applicant would have no difficulty with this task.

46Similar issues arise with Deputy Chief Montone’s evidence. As indicated above his views of the applicant’s abilities were based on a set of restrictions which were contradicted by later information. At the hearing the Deputy Chief’s evidence was largely in relation to those same restrictions so that his evidence was not very helpful because in many material respects the basis for his view that the applicant could not perform certain tasks was not supported by the more current medical evidence.

47The Deputy Chief set out his concerns in an email on May 12, 2007. He felt that the applicant would be unable to perform up to 2/3 of the job – on the basis that he could not perform the Investigations functions and could only perform ½ of each of the other two work tasks, Inspections and Public Education. Deputy Chief Montone cited as his main concerns the fact that the applicant could not perform elevated work, lacked hand grip strength, backward balance issues and limits on repetitive squatting. Despite his views the Montfort Report identified a job match in all of these areas.

48At the hearing further concerns were articulated. For example the Deputy Chief indicated that the applicant could not engage in prolonged heavy lifting so that he would be unable to carry the equipment necessary to conduct inspections such as a ladder and briefcase etc which can weigh 30 to 40 lbs. I note that this is contrary to the physical demands set out by the employer’s JDA which describes much lighter loads to be carried for minimal periods of time. In any case the Montfort Report concluded that the applicant could carry up to 45 lbs in his right hand for up to three hours a day. I also note that Mr. Backs testified that he never took a ladder with him on inspections as building owners would normally make one available. Mr. O’Brien concurred with this view testifying that the building owner would normally provide a ladder. I note that the JDA makes no mention of the need to carry a ladder. The Deputy Chief cited as another concern that the applicant’s need to move his neck to look up and down and from side to side to observe fire alarms and detectors on ceilings etc. would be contra-indicated to his restrictions. This is not the case. Although the need for head movement is evident in the job, the restrictions relied upon by the respondent indicate that the applicant should avoid prolonged static positions of the neck, not neck movement.

49Amongst the most significant concerns of the Deputy Chief was, as with Mr. O’Brien, that the applicant would be unable to exert the forces necessary to open a fire door. As indicated in the review of Mr. O’Brien’s evidence these doors are intended to require little force to open – a child is supposed to be able to push open such a door. Both respondent witnesses agreed that if a door would not open with the application of minimal forces it was a violation and it was not the FPO’s job to force it open, rather it was the owner’s responsibility to repair the door so it could be opened. In any event the Montfort Report concluded that the applicant could push up to 92 lbs on an occasional basis. As regards the concern that the applicant could not perform any overhead work, the Montfort Report found otherwise.

50Turning to a consideration of the applicant’s claim to return to his home position as an FPO I find that at a minimum the information available to the respondent employer compelled it to undertake what it had tentatively agreed to at the return to work mediation in November 2006, a work trial. This did not occur and that failure would in my view be sufficient to establish a violation of the procedural duty to accommodate the applicant (see Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 CHRR D/5250 (Ont. Bd. of Inquiry)):

… In some situations it will be very obvious that a person is not able to perform the essential requirements. However, where the handicap does not in itself, suggest that there is a reasonable certainty of his being unable to do the task, the logical route for the employer is to put the person to either the test of the job itself, or to the test of a simulated equivalent. (para. 14)

51In considering all of the evidence I am compelled to accept the medical evidence tendered by the applicant that he was physically able to perform the essential duties of the FPO position, at least the Public Education and Inspections functions of that job. I think this is a fair conclusion based on the available evidence of Dr. O’Connell and the findings of the Montfort Report, including what amounts to the conclusion of the Montfort Report that the applicant was likely not then able to perform the Investigations functions. In terms of the other aspects of the job the only question raised by Montfort and Dr. O’Connell was that the applicant should not participate in multi-person lifts of large displays.

52Assuming for the moment that it would not impose undue hardship on the respondent to accommodate the applicant by not requiring him to perform the Investigations functions of the job, the evidence is quite clear that he was physically able to perform the essential tasks of these job functions with very little need for accommodation. The only exceptions to that were as noted above that as of the time of the assessment, that is before further treatment and rehabilitation to increase upper body strength, the applicant would not be able to don the full bunker gear and should not perform multi-person lifts of heavy displays. I am not persuaded that these issues are anything more than trivial limitations on his ability to perform the Public Education and Inspections components of the FPO position. There is no indication that the requirement to participate in multi-person lifts or to wear the bunker gear is other than a very minor part of the Public Education function. In fact the evidence with respect to the need to wear the bunker gear for public education functions was that there was a mannequin upon which the gear can be displayed. I also note the Montfort Report indicates that the applicant would find overhead work a challenge, but this is described as a minimal requirement of the job in the JDA and on the basis of the respondent’s other evidence there is no basis to come to any other conclusion on this point. Such overhead work as there is related to the Inspections function and involves looking up to inspect fire safety equipment, climbing ladders to inspect equipment and above ceiling tiles etc., and operate fire escapes, all of which are tasks that the applicant can perform with minimal difficulty.

53The ultimate question becomes whether or not it would impose an undue hardship on the employer to accommodate the applicant in the position, performing only the Public Education and Inspections functions of the position. I find that it would not. I make this finding because the evidence of the employer is inadequate to meet the standard required of it. The evidence was at best impressionistic and is contradicted to some degree by other facts apparent in the material such as the offer by the respondent in February 2006 to have Mr. Backs return to work to perform only the Inspections functions.

54The employer’s position was that it now requires its FPO to perform all three components of the job, although this has clearly not always been the case. Mr. O’Brien testified that at various times there was a division of labour in the department with a cadre of FPO’s doing nothing but Investigations and others not at all, or rarely. Mr. O’Brien agreed that it would not impose undue hardship on FPS if the applicant was not required to do Investigations.

55In his examination-in-chief Deputy Chief Montone described in some detail the challenges facing FPS in managing its work load. There are 110,000 buildings to inspect and only 26 or 27 staff to perform them. The Service also conducts more than 500 Public Education events per year. The Deputy Chief noted that while most Fire Services have adopted a specialist approach – i.e. officers dedicated to performing primarily one of the three functions of the job, the city of Ottawa had decided to follow a different approach because of the relatively small size of its unit and employment issues such as the compressed work week it employs. The Deputy Chief stated that as a consequence on two days of the week, he only has half his staff available to him. Given these facts, he stated, that he might not be able to provide complete service on a given day. The Deputy Chief also cited health and safety concerns, first that of the applicant of course, but also of the other members of the staff who may be called upon to pick up tasks that the applicant was unable to perform.

56In cross examination the Deputy Chief agreed that there were a number of FPOs who rarely performed Investigations. When asked whether it would impose an undue hardship to move from the situation where a number of staff rarely performed this function to what was proposed by the applicant that he be one officer who would never do so, the Deputy Chief stated that it would but then said that such an accommodation could be done but it would not be the best thing for the organization and other staff.

57I am not satisfied based on the evidence presented by the respondent that it would impose an undue hardship on the employer to accommodate the applicant in the manner suggested. The evidence establishes that while this accommodation may impose administrative challenges in terms of managing its work force, there is no real evidence that this would be an insurmountable challenge and none whatsoever to support the suggestion that to accommodate the applicant in this way would result in the Service being unable to meet its statutory obligations. In this regard I note that the most significant pressures on the Service appeared to be in keeping up with the Inspections and Public Education events. These are activities that the applicant appears to be able to perform with minimal if any limitations. It is not at all clear to me how the applicant being assigned to perform these functions exclusively would constitute undue hardship for the Service.

58In submissions the respondent stated that with this accommodation the remaining staff will be required to pick up the Investigations work that the applicant could not perform and that this will impose further risks for their safety. There is no evidence that this is anything more than a theoretical proposition. As regards the related issue of employee morale which was considered as a factor by the Deputy Chief, it must be acknowledged that workplace accommodations can result in these kinds of problems for management. However while a challenge for management such issues are not normally considered a legitimate consideration in an undue hardship analysis. Even if it were appropriate to consider such issues, I do not understand how, in a workforce where it is already the case that some FPO’s rarely do Investigations and where specialization is a common practice in many Fire Services, accommodating the applicant could result in insurmountable morale issues.

59For all of these reasons I find that the respondent has failed in its obligations under the Code to accommodate the applicant to the point of undue hardship. At the outset of this matter the parties agreed that the hearing of this case should be bifurcated to deal with liability first and remedy only if a violation of the Code was found. Having done so there may remain significant issues with respect to remedy. As previously indicated the applicant has been in receipt of WSIA benefits for some years, this fact has implications for any remedial order that might be made. There is also the fact that more than four years have passed since the events at the heart of this dispute, and four years since the Montfort Assessment. Consequently, the applicant’s medical status may have changed in that time.

60The applicant is ably represented by his trade union who have assisted him in the progress of this matter. The obligation to accommodate the applicant may engage the collective agreement. The respondent is a sophisticated employer with a long standing bargaining relationship with the applicant’s trade union. It seems to me appropriate that the parties make an attempt to resolve the remedial issues in a way that is sensible for them in all the circumstances. If they are unable to do so I am seized of this matter in order to determine the appropriate remedies.

61The parties are directed to endeavour to resolve the remedial issues arising from my conclusions that the medical evidence supported the applicant’s ability to return to work to either the Communications or the FPO position with the modification that he not be required to perform the Investigations Functions. The parties are directed to communicate the status of their discussions at the latest 90 days from the date of this decision. If their disputes are unresolved at that point they may request further time to continue that process. If the Tribunal is satisfied that further time could lead to a successful resolution such further time as seems appropriate may be granted. Alternatively the Tribunal will schedule a further day to deal with any outstanding remedial issues.

62I am seized of this case.

Dated at Toronto, this 18^th day of May, 2011.

“signed by”

David Muir

Vice-chair