Joyce Tanimowo-Reyes v. TD Insurance (Meloche Monnex), 2012 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joyce Tanimowo-Reyes Applicant

-and-

TD Insurance (Meloche Monnex) Respondent

DECISION

Adjudicator: Ian R. Mackenzie Date: July 24, 2012 Citation: 2012 HRTO 1427 Indexed as: Tanimowo-Reyes v. TD Insurance

APPEARANCES

Joyce Tanimowo-Reyes, Applicant Fola Adekusibe, Counsel

TD Insurance (Meloche Monnex), Respondent Allyon Fischer, Counsel

Introduction

1Joyce Tanimowo-Reyes filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment with respect to race, colour, place of origin, citizenship, ethnic origin, disability, family status, marital status and reprisal or threat of reprisal. The applicant self-identifies as a black Canadian citizen born abroad in Nigeria.

Summary of evidence

2The applicant was an accident benefits analyst with TD Insurance (Meloche Monnex) from March 30, 2009 until her resignation on September 3, 2010.

3Analysts are given a caseload of files when they start and receive about three to four new files a week. Analysts are tasked with reviewing accident claims and authorizing treatment plans. The work is desk work, involving the review of files on a computer screen and telephone calls. The applicant testified that she was given 60 files at the commencement of her employment. At the relevant times for this Application, the applicant had approximately 137 files. She testified that this was the highest load of any analyst. Her team leader as of May of 2010, Domenic Manzone, testified that there were two other analysts on his team with a similar workload.

4In the Fall of 2009, the applicant was advised that some of her pending files would be transferred to others. However, in November of 2009, her team leader advised that there were not sufficient staff levels to make the change but that it would be addressed when those levels increased. Her team leaders over the relevant period noted that the volume was high, but that overall the applicant was able to cope.

5The allegations of the applicant relate to the alleged failure of the respondent to accommodate a disability and discrimination on the basis of race, ethnic origin etc. I will first summarize the evidence relating to disability.

Disability and accommodation

6The applicant had eye surgery on September 19, 2009. On her behalf, the applicant's husband wrote an email to her team leader on September 20, 2009, advising of the eye surgery and that she would not be attending work until Friday of that week. The applicant's ophthalmologist provided a note, dated September 20, 2009, that stated: "Due to an eye procedure patient unable to work for 4 days".

7Her team leader, Heather Farmer, wrote to her the next day, thanking her for the information and hoping that everything went well. The team leader also advised her that after five days of sick leave, forms would need to be filled out for short term disability (STD).

8The applicant returned to work on the Friday and therefore was not required to apply for STD. She testified that her team leader refused to take the medical note, since she had not been away for five consecutive days.

9The applicant did not ask for any accommodation when she returned to work. She testified that her doctor was not aware of her work conditions. She also testified that she would not have known what accommodation was required. It was her position that the respondent should have sent someone from the health department to see what needed to be done.

10The applicant testified that she still had the same volume of work on her return and nobody asked her about accommodation. She testified that she feared that if she complained about her workload she might lose her job.

11The applicant testified that on occasion she dealt with eye-related pain and discomfort by leaving early in the afternoon. On one occasion (November 10, 2009) she advised her team leader (Ms. Farmer) by email that she needed to leave to seek medical intervention. Her absence was acknowledged by the supervisor. The applicant testified that other requests to leave early were granted by her team leaders.

12The applicant had three more eye surgeries. She went for a follow-up appointment with the ophthalmologist in April of 2010. He told her that her eyes were not healing. She told him what her duties were and she testified that he advised her that she had to "take time and relax". He provided her with a medical note (dated April 6, 2010) that stated:

...continues with her medical condition as she works with computer every day with a very heavy workload at this time. Her medical condition has exacerbated due to overuse of the computer high case load of 132 files.

I recommend the immediate provision of the following temporary restrictions necessary for her job accommodation in regards to her position:

1. Reduction of her case load
2. Increase the number of breaks from her computer (15 min every 3 hours)
3. Have an ergonomic assessment performed by a qualified professional for her work station.

13The doctor wrote that these recommendations were for a period of one month, until he could reassess her condition.

14The applicant testified that she stopped getting new files, but that she was left with her existing caseload. She testified that this was not satisfactory. She testified that she could not take breaks if she was to meet the performance expectations for her position. She was only able to close her eyes at her desk for a break because she had to get approval of a team leader to leave her desk. In addition, she testified that she had nowhere to go for a break because the elevators were slow. In examination in chief she was asked why she did not ask for breaks. She testified that it was her duty to give the letter to the employer and it was their duty to respond to the letter. She testified that given her race, she has to struggle to survive and if she complained, she did not know what her employer would do. She testified that she was told that she could take breaks.

15Mr. Manzone became the applicant's team leader in May of 2010. His role as a team leader is to oversee the day to day operations of the team of analysts, conduct monthly and quarterly file reviews and conduct monthly "focus" or coaching sessions with each analyst. During these monthly sessions, part of the discussion focused on how many files had been closed in the preceding month. He testified that the goal was to have a one-to-one ratio of files closed to new files opened.

16He testified that the approximate number of new files assigned to analysts was high in 2010, at approximately 3 to 4 per week. He stated that the average number of files each analyst had was over 100. He testified that there were three individuals, including the applicant, who had more than 130 files.

17Mr. Manzone met with the applicant soon after he became her team leader. She testified that he was concerned because she was not taking any new files. He was not aware of her disability and she explained the doctor's letter to him. The applicant testified that Mr. Manzone requested a follow-up note from her doctor. She testified that it was difficult to get the letter quickly.

18Mr. Manzone testified that it was the applicant who came to see him with her doctor's note. He testified that he did not express any concerns about the fact that she was not being assigned new files and he continued not assigning new files to her. He also told her to take breaks as needed.

19Mr. Manzone testified that not giving her new claims was a reduction in her workload. New claims generated a lot of initial work and correspondence. He testified that she closed between 11 and 13 files in the month that she did not receive new claims. In cross examination he was asked what would happen if she did not meet the performance standard of closing files. He testified that it would be discussed at the monthly coaching sessions and she would be encouraged to meet the performance goals. He testified that he would likely have discussed time management tips with her, if she was not meeting her targets. He testified that her targets of closing files were the same as before the accommodation.

20On June 2, 2010, Mr. Manzone requested an ergonomic assessment for the applicant. The facility technician for the respondent replied that according to their records, an ergonomic evaluation had been done on April 9, 2010. The applicant testified that a facility technician had adjusted the brightness on her computer, but that a full ergonomic assessment had not been done. An ergonomic assessment was then scheduled for June 7, 2010.

21The applicant testified that when he came to the assessment, the technician was upset with her, as he said that he had conducted an assessment already. The applicant testified that he was not an ergonomic specialist and that he simply adjusted her chair, to the same position as before.

22After the June 7 assessment, the applicant sent an email to her team leader stating that she had received the assessment and stated that the facility technician had "always been approachable and helpful when called upon". She testified that she put "nice words" in the email because he had been concerned that he might lose his job. The applicant testified that she told Mr. Manzone that the facility technician was not a professional assessor. Mr. Manzone testified that the applicant never raised any concerns with him about the assessor or the assessment.

23The applicant met with her doctor on or about June 8, 2010. She told him that her workload was the same and that she could not take breaks because of her workload. He told her that she had missed the usual recovery period and that she would have restrictions for an indefinite period. He provided her with a medical note that stated: "she continues with her medical condition and is currently on eye medications for an indefinite period of time".

24After receiving the doctor's note, Mr. Manzone discussed it with the human resources section. He was advised that human resources thought that the letter was vague because it did not refer to required accommodations and how long accommodation was needed.

25On June 14, 2010, the coordinator of disability management for the respondent sent an email entitled "Your partial STD". The email stated:

...To better understand you accommodation request, we have asked Manulife to evaluate your accommodation needs based on your medical condition. Would you please make sure to provide this questionnaire to your treating physician if it is not done yet.

26Manulife is the employee benefits insurer for the respondent. In the email, the disability coordinator noted that Manulife would also need information on the diagnosis, treatment and treatment plan, whether the limitations or restrictions were permanent, the prognosis of the accommodation and all medical reports. She also noted that all of the information should go to Manulife only.

27The applicant responded to the email, seeking clarification. She wrote that she was not applying for STD and it was not the recommendation of her doctor to do so. A human resources consultant with the respondent, Sarah Warren, replied as follows:

...workplace accommodation is managed through Partial Disability (which is a similar process to our STD). In order for us to continue to accommodate your requests we require that you complete the partial disability process. Partial Disability claims are adjudicated by Manulife and they will require the information below in order to properly review your request.

28Colleen Gilles is the senior manager of human resources, Ontario Region, for the respondent. She testified that each request for accommodation was looked at separately. The determination of whether to involve Manulife in the process is determined on a case by case basis, assessing the reasonability of the accommodation request, the complexity of the case, and the length of time required for the accommodation. She testified that in this case, since the June 8, 2010 letter referred to an indefinite period of accommodation, the matter would be referred to Manulife for their assistance in determining appropriate accommodation.

29The applicant wrote to Ms. Warren on June 14, 2010, asking for a meeting "prior to my following this next step". She stated that she had "a few questions to clarify" relating to her doctor's note of April 9, 2010. Ms. Warren replied that she should speak with her team leader "as he is able to support you regarding this process".

30Mr. Manzone testified that he advised the applicant of Manulife's role and that involving Manulife would have no impact on her pay or hours of work.

31The applicant testified that she was getting phone calls from Manulife wanting to talk to her about her disability. She refused to fill out the forms. She went to discuss the situation with Mr. Manzone. She testified that he did not explain Manulife's role to her. She testified that he told her either to resume taking on new files or comply with the request for information from Manulife. She testified that he told her to send him an email stating that she was ready to take on new files, or go on disability status. She testified that she felt she had no choice but to ask to receive new files.

32Mr. Manzone testified that after the discussion about Manulife, approximately a week later, the applicant told him that she could be placed on new files. He testified that she initiated the conversation. He denied that he told her she had to accept new claims or go on STD. He testified that he told her that she could continue to take breaks as needed. After consulting with human resources, Mr. Manzone asked her to confirm her willingness to take on new claims in writing. On June 18, 2010, the applicant sent an email to him stating, "as a followup and as per request to our conversation earlier this week regarding accommodation, I am willing to take on new claims at this time". She also thanked him for his assistance and understanding.

33Mr. Manzone testified that after she started accepting new claims in June 2010, the applicant did not approach him with any concerns about accommodation.

Allegations of discrimination with respect to race, colour, place of origin, citizenship, ethnic origin, family status, marital status and reprisal

34When the applicant was offered a position with the respondent, the offer was conditional on a credit check and a criminal records check. She was required to provide personal information for the conduct of these checks, including place and date of birth.

35The applicant testified that she was authorized to make payments on claim files only up to 25,000 dollars while her co-workers were authorized to make payments at a higher level. After she raised this matter with Mr. Manzone, he raised her level of authorization to 40,000 dollars. The applicant testified that this was still not as high as her co-workers and she attributed this to the fact that the co-workers were "not of my colour".

36Mr. Manzone testified that he would rarely give maximum authority for approval. In determining the level of authority he would consider how long an analyst had been at his or her level and what type of files he or she were handling. He testified that the majority of the analysts on the team were at the 40,000 dollars approval level, so he increased her authority to that amount.

37Shortly after commencing her employment, the applicant and other analysts attended a training session delivered by the special investigations unit of the respondent on April 29, 2009. The training session was presented by Ken Laliberte, a former police officer and (at the time) team leader in the unit. He currently holds the position of Technical Manager with the same unit.

38The purpose of the training session was to assist analysts in knowing when and how to involve the special investigations unit in claims. Mr. Laliberte commenced the session by asking everyone to swear to keep the contents of the session confidential. He testified that he did this to ensure that ongoing investigations were not compromised. Mr. Laliberte also talked about "red flags" that are applied to claims based on a range of criteria. Prior to talking about specific ongoing investigations, Mr. Laliberte testified that he read the following statement, a statement that he read out at all training sessions:

During the course of presenting the status of these ongoing projects we may refer to certain groups as organized crime. They may be referred to by their ethnicity, area of residence or occupation, but that in no way implies that everyone within that particular group is criminal. Statistics have shown that 1% of any group, no matter what that group is, contains a criminal element. It is that 1% that are being referred to.

39The applicant testified that Mr. Laliberte said that ethnic groups were targeted by the respondent. The applicant did not recall some of the statements made by Mr. Laliberte at the training session. She denied that he made any statement referring to 1% of any group containing criminal elements.

40The applicant had handwritten notes of the training session that she testified she took during the session. In her single-spaced notes she has written:

...full room with staff members, closed door of grand room, then addressed the staff at the meeting to raise our right hand and repeat after him, that we promise not to discuss or divulge any information from today's meeting outside of the room, as they still have some ongoing cases.

41After the notes on types of fraud, she has written: "the kind of ethnic group that has been caught/targeted includes: Tamil, Russian, Pakistanian, Nigerian, Vietnamese, etc." The applicant testified that Mr. Laliberte asked participants to keep a "watchful eye" for claims coming from these ethnic backgrounds. The applicant testified that she was shocked. The applicant's notes then go on to summarize when to use the special investigations unit. Mr. Laliberte testified that he did not list particular ethnic groups in the session, although he may have referred to some groups when discussing particular ongoing investigations. He denied that he said that any ethnic groups were "red-flagged". He testified that the reference to "red-flags" was to particular types of claims and patterns of claims.

42In August of 2010, the special investigations unit was conducting an investigation of possible fraudulent activity within the company. Mr. Laliberte testified that since he was away from the office, a special investigator in his unit started the investigation and interviewed three witnesses. Mr. Laliberte testified that the applicant's name had been mentioned by several of these witnesses as someone who might have information. Mr. Laliberte testified that she was not viewed as a suspect. He conducted the interview of the applicant as he was back in the office at that time.

43The applicant has raised allegations relating to the conduct of the investigation interview. The substance of the interview itself (relating to alleged fraudulent activity within the insurance industry) is not relevant to this Application and I have not summarized that information and evidence.

44The applicant was escorted from her desk by someone from human resources to attend the interview. The applicant testified that she was not given any information about the purpose of the interview nor was she given any warning. She stated that this was not normal procedure.

45Colleen Gilles, senior manager of human resources (Ontario operations), attended the investigation meeting. She is routinely asked to attend such meetings when employees are involved to ensure that the meeting goes smoothly. Ms. Gilles testified that it was normal practice of the respondent to hold special investigation interviews with employees without providing them with notice. Mr. Laliberte confirmed in his testimony that advance notice was never provided to employees.

46The applicant testified that at no time was she asked if she agreed to the recording of the interview. The applicant referred to the interview as an "interrogation". The applicant testified that she had nothing to hide but also stated that she felt that if she did not comply, she might lose her job.

47She also testified that she was very dissatisfied with the interview because she was never told why her name came up in the investigation.

48The applicant testified that she had spoken to a former colleague about an accident she and her husband were involved in and the efforts of a paralegal to get her to file a claim. She told her colleague that this paralegal had advised her that some paralegal firms had adjusters "under their belt" and paid them a percentage of the claims that they approved.

49The applicant testified that the investigator kept asking questions over and over and she found it upsetting.

50The applicant has alleged that the interview was recorded without her permission. Mr. Laliberte testified that the recording device was clearly visible and he advised her that the interview was being taped. Mr. Laliberte asked her some background questions, including her address and her date of birth. Mr. Laliberte testified that he routinely obtained this information from witnesses in case he needed to contact them later or to subpoena them for legal proceedings. He testified that he did not ask her place of birth. She told him about her background as a foreign-trained doctor and her place of origin. He testified that asking personal information such as address and date of birth was standard practice. He testified that if charges were to be laid and they needed to contact the person as a witness and she was no longer employed by the respondent, this information could be used.

51He testified that he asked her if she had any information about a possible fraudulent scheme. She told him that she and her husband had been involved in a car accident and that she had been approached about a kickback scheme involving adjusters. Mr. Laliberte asked her what her husband did for a living and his name. The applicant provided him with this information.

52Later that day, Mr. Laliberte recommended that the investigation file be closed. The investigation was subsequently closed.

53A certified transcript of a recorded interview with the applicant was tendered as evidence by the respondent. The applicant suggested that the transcript was not an accurate transcription in her submissions. However, the applicant did not cross examine the interviewer or the other respondent representative who was present on the accuracy of the transcript. The respondent offered to provide a copy of the recording to me. However, in the absence of any doubts cast on the transcript, I determined that I did not need a digital copy.

54The applicant testified that after the interview her co-workers wanted to know what it was about. She testified that they approached her differently after the investigation. In her Application, the applicant states that she was approached by co-workers after the interview, "which created a hostile and unwelcome working environment and intimidation" and she was forced to look for alternate employment.

55The applicant wrote a letter to the President of the respondent on the same day as the interview. This letter was copied to Ms. Gilles and Mr. Laliberte by email. She complained about the interview, alleging harassment, discrimination and violation of her rights. She stated in the letter that Mr. Laliberte "requested my authorization to be recorded". She wrote that she had no choice but to permit the recording because she was under duress and was afraid of retaliation by the respondent. She wrote that she was required to provide her personal information, even though there was no need to ask since the respondent already had the information. She also wrote that she believed the request for her birth date was discriminatory. She also complained that questions were asked about her husband's personal information, including name, place of work, and name of legal representative for his accident claim. She asked for a copy of the tape recording, a copy of the transcript, Mr. Laliberte's notes, detailed information as well as copies of the interviews of those who mentioned her name, and the procedures and policies for conducting investigations of employees.

56The vice-president, human resources asked to meet with the applicant to discuss her concerns. The applicant told her that she would not meet without knowing what the meeting was about and without advice.

57The applicant obtained a similar position with another insurance company and provided a letter of resignation, dated August 20, 2010. The effective date of her resignation was September 3, 2010. In her letter, she stated that she had been discriminated against and invoked her rights under a number of statutes, including the Code.

58Prior to her departure she requested a letter of recommendation from her team leader and other supervisors/managers. Mr. Manzone advised her that it was the respondent's practice to refer all such requests to Human Resources and it could provide a "confirmation of employment". Ms. Gilles testified that it was the normal practice of the respondent to provide a confirmation of employment only.

59The vice-president of Human Resources wrote to the applicant on September 1, 2010 with regards to her allegations of discrimination. She noted that it was the respondent's preference that they meet with her in person and the option was still available. She stated that after conducting an investigation, the respondent had concluded that the allegations of harassment and intimidation were unfounded and that the appropriate medical accommodation had been provided. The applicant testified that the vice-president should have met with her to get her side of the story.

60The applicant wrote to the Vice President of Human Resource Operations on September 2, 2010 complaining about the failure to provide a letter of recommendation. She wrote that she considered the failure to provide a letter to be retaliation and further discrimination. The vice-president replied that it was the organization's policy to provide only confirmation of employment, including information regarding dates of employment, positions held, scope of responsibilities, and performance ratings. She stated that the respondent was prepared to provide a confirmation of employment letter that included all this information, at her request.

61The applicant has alleged that the delays in providing final payment and issuing a Record of Employment were reprisals on the part of the respondent.

62The applicant's final pay stub, dated September 9, 2010, listed a payment of approximately $1,700 of special STD. The applicant stated in her Application that she did not believe this money was ever paid to her and that she was not on STD.

SUBMISSIONS

For the applicant

63The applicant submitted that it was clear that the applicant had a disability after her eye surgery in September of 2009. She also submitted that the respondent failed to accommodate this disability upon her return to work.

64The applicant submitted that once the employer is notified that an employee has disability-related needs, it has the duty to make meaningful inquiries about the accommodation of that disability: Wall v. Lippé Group, 2008 HRTO 50 at para. 81.The respondent is under an obligation to understand disability related needs of its employee and to conduct an individualized assessment to address those needs. The accommodation must be considered to be reasonable.

65The applicant submitted that there are procedural and substantive aspects of the duty to accommodate (Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453, at para. 6). A failure to give any thought to accommodation does not satisfy the respondent's obligation to accommodate.

66The applicant asked that I find that the respondent had failed in its duty to accommodate, for the following reasons:

1. The respondent was aware of the medical issues the applicant was having, from the date that it received the medical note of September 2009 and from its knowledge that the applicant was taking part-days off because of her eyes, yet it took no steps to assist the applicant;
2. In April of 2010, she provided a medical note setting out three accommodation measures and none of the requested accommodations were provided to the applicant; and
3. In the June of 2010 note from the ophthalmologist the respondent was put on notice that the applicant still required accommodation, yet the respondent took no steps to accommodate;
4. Instead of discussing accommodation, the respondent requested that the applicant go on short-term disability.

67The applicant submitted that her workload was not reduced, as requested. The best that was done was that she was not assigned new files for a short period of time. The applicant stated that her team leader testified that she was still expected to meet performance targets and there would be consequences if she did not meet these targets. As a result, the applicant testified that she could not take the breaks that were recommended. The applicant submitted that the respondent never provided a professional ergonomist's assessment of her work station as requested by her physician. The applicant requested that I take judicial notice of the fact that the person who conducted the assessment was not a professional ergonomist.

68The applicant disputed that filling out the forms for Manulife would not result in her being placed on short-term disability.

69The applicant submitted that her team leader told her that she should either fill out the forms for Manulife or agree to take on new files. The applicant stated that this was a reprisal under the Code. The applicant submitted that I should accept her version of events, since the email she sent on June 18, 2010 refers to a "request" that can only refer to his request that she state that she is willing to take on new files.

70The applicant also submitted that she was discriminated against, in that she was targeted for an "interrogation" because of her membership in an ethnic group: Nigerians. The applicant submitted that I should prefer her testimony about the reference to targeting certain groups in the training provided by Mr. Laliberte. The applicant submitted that Mr. Laliberte decided to interrogate the applicant because she was a suspect and not a witness. She also submitted that he asked her questions about her background that was already known by the respondent. In addition, the interrogation was recorded without her consent. The applicant submitted that she wrote to the president of TD Insurance immediately after the event to complain about discrimination.

71The applicant submitted that a discriminatory reason need only be one factor in a decision of a respondent to find a violation of the Code. In the circumstances, the applicant submitted that the respondent's consideration of her race and ethnic origin played a role in subjecting her to an interrogation and demonstrates a breach of the Code.

72In her Application, the applicant relied on the following events or actions to support her claim of reprisal:

1. After raising issues about her eye disability, she was forced to increase her workload;
2. After complaining of discrimination, requested documents were not provided to her and she had to retain a lawyer to proceed with her Application;
3. After the interview on August 12, 2010, co-workers approached her, creating a hostile and unwelcome working environment; and
4. The inclusion of a reported payment for STD in her final pay stub was a misrepresentation of her claim of discrimination and was therefore a reprisal.

73At the hearing, the applicant submitted that the refusal of the respondent to provide her a letter of reference is also evidence of reprisal against her, in contravention of the Code.

74The applicant requested damages for injury to dignity and for pain and suffering in the amount of $50,000. She also requested a letter of apology and a positive reference letter from the respondent.

For the respondent

75The respondent submitted that many of the allegations of the applicant are based on speculation and the applicant has failed to show a link between how she was treated and an enumerated ground of discrimination under the Code. She has failed to show how she was treated any differently than any other employee (Stangret v. Nagji, 2009 HRTO 1431 at para. 25).

76The respondent submitted that an employee has a duty to cooperate in efforts to accommodate and a failure to do so will result in a dismissal of the Application: Central Okanagon School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 44. The respondent stated that the rationale for this obligation on the employee is because the employee has all the necessary medical information or can easily obtain it. The respondent submitted that without the assistance of the employee, the employer cannot determine how to accommodate the employee. Accommodation is a collaborative process, the respondent submitted, relying on Ontario Human Rights Commission v. Jeffrey, 2007 CanLII 41275 (ON SCDC), [2007] O.J. No. 3767, at paras. 88 to 89 and Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5 at para. 51.

77The respondent submitted that for the period from September of 2009 until the end of March of 2010, the only medical note provided stated that she needed four days off work. Those days were provided, at no loss of pay. The respondent submitted that she did not ask for any accommodation at that time, apart from time off on occasion (which was granted). The respondent stated that the applicant has denied that she had any responsibility to raise her accommodation needs. The respondent submitted that this is an untenable position for an employer: how is an employer supposed to know what accommodation is needed if no need for accommodation is communicated to it?

78The respondent submitted that once a note was provided in April of 2010, appropriate accommodation was provided. The respondent submitted that all three of the accommodation recommendations set out in the letter were followed by it. The respondent stated that she was not assigned new files, which is a reduction in her workload. The respondent noted that she did not express any concerns about her work load to her team leader. The respondent stated that the applicant was encouraged to take as many breaks as she needed and it is not the responsibility of the employer to monitor this. The ergonomic assessment was done, the respondent submitted, and the applicant did not raise any concerns about the assessment at the time.

79The respondent submitted that it was made very clear to the applicant that filling out the Manulife forms was not an application for short-term disability. The respondent stated that her failure to fill out the forms or provide further medical information was a breach of her obligation to cooperate in the accommodation process.

80The respondent submitted that the applicant has not provided any evidence to support a finding of discrimination on the basis of race, colour, place of origin, citizenship or ethnic origin. The applicant was asked standard questions in order to obtain a credit and criminal records check. The respondent submitted that Mr. Laliberte made no comments in the training session that could be considered to be racial profiling.

81The respondent submitted that she was treated exactly the same as any other employee in the interview process. Mr. Laliberte and Ms. Gilles testified that everything that occurred was standard practice or procedure. The respondent submitted that there was a reasonable basis for interviewing the applicant and in her testimony she stated that she had mentioned her experience with a possible fraudulent scheme to work colleagues.

82The respondent submitted that the applicant was treated no differently than any other former employee when a positive reference letter was not provided to her. In addition, when a "more robust" letter was offered, the applicant did not get back to the respondent. The respondent submitted that there was no reprisal for exercising rights under the Code.

83The respondent submitted that the complaints raised by the applicant in her correspondence with it were taken seriously. The respondent submitted that the applicant refused to meet with the respondent to discuss her concerns and yet she is now complaining that there was an obligation to meet with her. The respondent submitted that it is not open to the applicant to decline to meet with the respondent and subsequently complain that it should have met with her.

84The respondent submitted that the reprisal allegation related to the requirement to accept new files was not raised in the Application. In addition, the respondent submitted that it was simply a bald allegation.

Reply submissions of applicant

85The applicant submitted that she could not see how Manulife could assist the respondent with its duty to accommodate – the duty to accommodate rests with the employer.

DECISION

86The applicant has raised allegations of discrimination related to disability, race, colour, place of origin, citizenship, ethnic origin, family status and marital status. She has also alleged that she suffered a reprisal. The applicant's allegations about race, colour, place of origin, citizenship, and ethnic origin, as set out in her Application, relate to three incidents: the request for personal information for background checks prior to her employment; a training session shortly after she commenced employment; and an investigation conducted shortly before her resignation.

87During the hearing, the applicant raised further allegations relating to these grounds: that her workload was higher than others because of these prohibited grounds and that her level of authority for approval of claims was lower because of these prohibited grounds. I find that these allegations are not supported by any evidence. The evidence of the team leader was that other employees had similar workloads and that the level of authority was assessed on an individual basis and that the applicant's level of authority was within the normal range for an employee of her experience as an adjuster with the respondent. The team leader addressed her concern when she raised it with him. The applicant provided no evidence to demonstrate that the level of authority was determined in whole or in part on the basis of a prohibited ground of discrimination.

88The applicant has raised allegations about the requests by the respondent for her date of birth. This is an allegation relating to age. The applicant did not specify discrimination on the basis of age in her Application. Accordingly, I have not considered this allegation.

Disability Allegations

89The applicant has alleged that the respondent failed to accommodate her eye disability. There are two relevant periods at play here: immediately after her eye surgery, up until her doctor's note of April 2010; and, the period after her doctor's note, which set out specific recommendations for accommodation.

90The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC) ("Meiorin") at paras. 62-68. In that decision, the Supreme Court of Canada stated that the procedural component requires an individualized investigation of accommodation measures and assessment of the employee's needs. The substantive component is a consideration of the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation.

91In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the Tribunal held (at paras. 35-36) that:

In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee's disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.

The test is whether the respondent knew or ought reasonably to have known that the applicant had a disability requiring accommodation...

92The applicant was provided with paid sick leave for four days. When the applicant returned to work after her surgery she did not request accommodation. She testified that her doctor was not aware of her working conditions at the time and she did not discuss work restrictions with him. She testified that she expected her employer to determine her accommodation needs. It was the applicant's obligation to inform the respondent of her disability-related needs. It is the applicant who bears the responsibility for triggering the duty to accommodate.

93The applicant did advise the respondent when she needed to leave early from work because her eyes were bothering her. The respondent accommodated the applicant by approving these early departures from work when requested.

94When the respondent was advised of work restrictions in April of 2010, it took measures to accommodate the applicant in accordance with the stated restrictions. She was not provided with new files and this resulted in a decrease in her workload. The applicant disputes that this was a decrease in workload because other files were not taken away from her. It is clear, however, that as she closed files her number of active files was declining. It does not appear that the respondent discussed with the applicant what an appropriate reduction in workload might be. However, she met frequently with her team leader and she did not raise any concerns about the level of the reduction in her workload and its appropriateness in relation to her disability. She testified that she was afraid to complain because she might lose her job. She provided no evidence to support this fear.

95When Mr. Manzone became her team leader in May of 2010, the reduction in the number of files assigned to the applicant was already in place. In the absence of any concerns raised by the applicant, I find that he was not required to revisit the accommodations already in place for the applicant.

96The applicant was allowed to take breaks. She stated that she was reluctant to take breaks because of her workload and her fear of losing her job. She suggested that it was up to her team leader to monitor her breaks. The applicant testified that she required permission to leave her desk. Mr. Manzone testified that she was permitted to take breaks and this was repeated in an email to the applicant. Mr. Manzone was not asked in cross-examination whether permission was required to leave her desk. The applicant did not explain why she might need to take breaks away from her desk, in any event. The inference from her testimony was that the breaks were required to rest her eyes. Even if she had been prevented from leaving her desk (and the evidence is not conclusive on this point), the applicant has not explained why breaks away from her desk were required to rest her eyes. The respondent was not preventing the applicant from taking breaks, as needed. Apart from her fear, there is no evidence that her employment would have been in jeopardy had she taken breaks.

97Mr. Manzone testified that if her work productivity was not meeting targets he would have discussed it with her, including providing tips on time management. However, there were no significant concerns about her productivity. It could be argued that it was only because she did not take breaks that she was able to meet her productivity targets. However, the duty to accommodate is about communication, not mind-reading. The respondent is not required to monitor whether or not the applicant is taking breaks, when the respondent has authorized the employee to take breaks as needed. It follows, therefore, that there is an obligation on the applicant to inform her team leader that she cannot meet her productivity targets if she is to take the necessary breaks.

98The accommodation of taking breaks as needed continued up until the date of her resignation. It is not the responsibility of an employer to monitor whether an employee is taking breaks "as needed". It is only the applicant that can determine when and whether a break is required.

99The medical note stated that an assessment by a professional ergonomist was required. There is some dispute about whether this occurred or not in a timely manner. It was not clear from the medical note what an ergonomic specialist was required for. The respondent did provide the services of someone whose responsibility it was to provide ergonomic services. The applicant asked me to take judicial notice that the facility technician was not a professional ergonomist. I have no basis to make such a conclusion. The doctor did not explain in his note what he meant by a "professional". The facility technician was not called as a witness by either party. The applicant raised the issue of an ergonomic assessment with her team leader. She expressed satisfaction with the service provided by the facility technician at the time and did not advise of any concerns until the filing of her application. If she had raised concerns about the assessment and the qualifications of the facility technician, the respondent would have been able to address that concern. The applicant provided no evidence of what a "professional ergonomist" could have or would have done to assist in her accommodation. There must be some medical or expert evidence upon which to base a conclusion that an assessment by a professional ergonomist was a necessary accommodation. Simply saying that an assessment is required is not sufficient in assessing whether the duty to accommodate has been met.

100The doctor's note in April stated that the restrictions should be in place for one month, at which point the doctor would reassess her situation. In June, the respondent requested further information on the applicant's medical conditions and restrictions. The applicant provided a medical note that said that her condition continued but did not provide any information on accommodation needs or the duration of any accommodation. In meeting its duty to accommodate, an employer is entitled to information about the employee's "disability-related needs", the "effects of the condition" and "how those needs and effects interact with the workplace duties and environment" (Simpson, at para. 35). As noted in Baber v. York Region District School Board, 2011 HRTO 213 at para. 95:

... the duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee's needs may be accommodated without undue hardship.

101The respondent uses a third party, Manulife, to obtain recommendations on disability accommodation. There was some initial confusion on whether or not the applicant was being asked to apply for short term disability. However, as I discuss below, the respondent cleared up any confusion through the discussion between the applicant and her team leader and through an email. By refusing to complete the forms for Manulife's involvement, the applicant was not cooperating with the accommodation process.

102The respondent maintained the existing restrictions of a reduced workload up until June 18, 2010, when the applicant requested that she be given new files. The applicant testified that she was told that she could either apply for short term disability leave or take on new files. The evidence is clear that the respondent was not asking the applicant to apply for any form of disability leave, it was simply asking for further information on her disability-related needs. It is more likely than not that the applicant asked to return to being assigned new files. The applicant refused to accept at the time that she was not being asked to apply for STD even though the email explanation provided to her was clear. Even at the hearing she refused to accept that this was the case, after seeing the emails again and hearing testimony from her team leader that was not shaken on cross-examination. Her statement that she had to go on STD or take on new files therefore has no foundation, since the alleged "threat" of going on STD was never suggested by the respondent. The testimony of Mr. Manzone that he did not make such a threat was credible and not shaken on cross-examination. Accordingly, I find that the applicant was appropriately accommodated and that there was no breach of the Code on the basis of disability.

Discrimination on the basis race, colour, place of origin, citizenship, ethnic origin, family status and marital status

103The applicant has complained that the gathering of personal information, including place of birth, in the process of her hiring is discriminatory. This information was required for criminal record and credit checks. The applicant made no submissions on how the collection of this information for those purposes was discriminatory. The offer of employment was conditional on undergoing (and being successful in) these checks. The applicant consented to provide this information. The applicant was hired in the position, so there was no effect on her employment status as a result of providing the information.

104The applicant alleges that Mr. Laliberte stated that the respondent engaged in racial targeting or profiling in fraud detection in a training session that the applicant attended. The applicant and Mr. Laliberte presented significantly different versions of the training session. In assessing the credibility of the evidence, the Tribunal has consistently applied the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (at 356-357): an examination of the harmony of the evidence "with the preponderance of the probabilities which a practical and informed person would readily recognize" as reasonable in the circumstances. In Cugliari v. Telefficiency Corporation, 2006 HRTO 7, the Tribunal also examined the internal consistency of the evidence and contradictions in the evidence (cited in Aujla v. BJS Sales Marketing, 2010 HRTO 966).

105I prefer the testimony of Mr. Laliberte. He testified that he had given the same presentation many times and recalled the session that the applicant attended. The applicant could not recollect a lot of what Mr. Laliberte said in the training session. I do not accept that the notes taken by the applicant were made at the time of the session. The applicant provided notes from other information sessions, and the notes from the training session are different in style. The notes from the training session are neater and with almost no spaces between notations. In addition, her earlier notes do not contain full sentences, whereas her notes on the training session are close to complete sentences. What is perhaps most telling, is that the notes are largely written in the past tense. The notes are more like notes that would have been prepared after a meeting. The applicant had the opportunity to call others who had attended the training session as witnesses, and she did not. I accept the testimony of Mr. Laliberte that he likely referred to certain ethnic groups in the context of discussing particular files or cases. However, I do not accept the applicant's evidence that he said that analysts should keep a "watchful eye" on members of particular groups.

106The applicant has made a number of allegations about the interview with Mr. Laliberte. Some of those allegations do not relate to a prohibited ground under the Code. Her allegations related to the recording of the interview and her right to counsel are allegations of general unfairness and the Tribunal has no jurisdiction over such allegations: Dabic v. Windsor Police Service, 2010 HRTO 1994 and Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, at para. 17.

107The evidence was that all employees who are interviewed by the special investigations unit were not provided notice of the interview and were recorded. Accordingly, the applicant has not demonstrated that she was treated differentially because of any prohibited ground under the Code.

108The applicant suggested that she was selected for an interview because of her race, colour, place of origin, citizenship or ethnic origin. However, she has admitted that she discussed an incident of possible fraudulent activity with a work colleague and there was evidence that other witnesses mentioned her name as someone who might have relevant information. The applicant testified that she relayed information to a work colleague about an attempt by a paralegal to either solicit her to perform fraudulent activity as an adjuster or, at least, to advise her of the fact that adjusters were accepting kickbacks to approve claims. On its face, this is relevant information to follow up on through an interview with the applicant. There is no evidence to support the allegation that she was called into the interview on the basis of a prohibited ground. Other employees were interviewed and the applicant has not alleged that these other employees were members of any group identified by its place of origin.

109The applicant has alleged that the fact that she was asked her date of birth was discriminatory. As noted above, the applicant did not allege discrimination on the basis of age, so I have not considered this allegation.

110Based on the transcript evidence, it is clear that the applicant volunteered information about her place of origin and I find that Mr. Laliberte did not ask questions about her place of origin.

111As well, the applicant first raised the subject of her husband's involvement in an accident in the interview. She cannot then allege that the questions asked about her husband as part of the investigation were discriminatory on the basis of family or marital status.

112The applicant alleges that her work environment became intolerable after her interview. Her testimony was that her co-workers asked her questions about the interview and that they treated her "differently" afterwards. The applicant has not provided any evidence that links the actions of her co-workers to discrimination on the basis of race, colour, place of origin, citizenship or ethnic origin. In addition, evidence that co-workers were curious about her experience is not evidence of a poisoned work environment. The applicant provided no particulars to support her allegations that she was regarded differently by her co-workers. As a result, her allegations of a poisoned work environment are dismissed.

113Accordingly, I find that there was no discrimination on the basis of race, colour, place of origin, citizenship, ethnic origin, family status or marital status.

Reprisal

114The applicant has alleged reprisal under the Code. Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

115In Noble v. York University, 2010 HRTO 878, the Tribunal stated that in an application alleging reprisal, the following elements must be established (at para. 33):

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

116The applicant did not refer to any rights under the Code or attempt to enforce such rights until her letter of complaint about her investigation interview and her letter of resignation. Accordingly, her treatment by the respondent prior to those letters cannot constitute a reprisal or threat of reprisal.

117The applicant alleges that the refusal of the respondent to provide a positive reference letter and the delays in providing some payments and her Record of Employment constituted reprisals under the Code. The respondent witnesses testified and I accept that they only provide confirmation of employment letters to former employees. I find that there is no evidence that would suggest an intention that the refusal to provide a letter of reference to the applicant was done in reprisal. The applicant was not able to elicit any evidence to show that any delays in payment or in receiving the ROE were an intention on the part of the respondent to retaliate for asserting her rights under the Code.

118Accordingly, the allegations of reprisal or threat of reprisal are dismissed.

ORDER

119In conclusion, the Application is dismissed.

Dated at Toronto, this 24th day of July, 2012.

"signed by"

__________________________________

Ian R. Mackenzie Member