Briffa v. Costco Wholesale Canada Ltd., 2012 HRTO 1970

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Briffa

Applicant

-and-

Costco Wholesale Canada Ltd.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: October 17, 2012

Citation: 2012 HRTO 1970

Indexed as: Briffa v. Costco Wholesale Canada Ltd.

APPEARANCES

Louise Briffa, Applicant

Andrew Camman, Counsel

Costco Wholesale Canada Inc., Respondent

Michael Horvat, Counsel

Introduction

1This is an Application filed 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 respect of employment because of disability and age.

2A hearing was held over the course of two days in London, Ontario, during which I heard from a number of witnesses, including the applicant and her husband, Andrew Briffa, and Leanne MacDonald, an employee of the respondent, responsible for human resource matters in the store in which the applicant works.

3For the reasons that follow, this Application is denied.

THE LAW

4The relevant sections of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10…

“disability” means,

a. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

THE FACTS

5The applicant first began working for the respondent company in 1990. She held a variety of positions, the most recent of which was as a “return to vendor” clerk (an “RTV clerk”). In this job, the applicant was required to take in merchandise returned by customers, put the items into shopping carts or onto a shelf, sort through the material, enter details about the merchandise into a document on the computer and then deal with the merchandise in one of a number of ways, such as destroying it for credit, salvage or returning it to the shelves.

6The documents submitted by the applicant, including portions of her WSIB file, indicate that the applicant suffered workplace injuries in January 2005 and in May 2006. Her injuries impacted on her wrists, arms, fingers, back and elbows. Her medical condition gradually worsened over time.

7The applicant applied for and received benefits from the Workplace Safety and Insurance Board (WSIB). As such, the parties do not disagree that applicant has and had a disability within the meaning of the Code during the material time.

8The applicant states that following the workplace injury she kept providing the respondent with medical updates and seeking accommodations in the workplace because it was difficult for her to do any lifting, carrying, repetitive activities, gripping or pinching.

9The applicant’s evidence was that she did not get much of a response to her requests for accommodation until she wrote a letter to the respondent in July 2006. At that time she was put in a position at the door as a member service assistant or associate for a brief period of time, a position that she found herself unable to perform physically. She was taken off work for about eight weeks by her doctor.

10The applicant gave evidence that she was able to return to the workplace in September, 2006 and began performing modified work within the RTV position for 4 hours a day. For the following year and a half, she continued to work with the modified duties in place. Specifically, she performed the portions of the job that did not entail lifting.

11As the applicant described it, half the job was lifting, the other half was paperwork and she did the latter half. The applicant testified that during her shift, the other and heavier half of the job was being done by a co-worker. This modified work arrangement continued for approximately eighteen months.

12During that time, the applicant’s condition did not improve to the point that rendered her able to resume what she described as the heavy part of her job.

13Leanne MacDonald, the Human Resources manager of the particular Costco location where the applicant worked, provided a slightly different estimate of the percentage of the RTV position that could be described as paperwork or light work. Her evidence was that in an eight hour shift only a couple of hours needed to be spent on document related work.

14In her view, as time wore on, the restrictions that the applicant presented with were increasing, rather than resolving or easing, to allow the applicant to return to performing all aspects of her job. A number of other restrictions were added at various points during the modified work arrangement which limited the amount of time the applicant could use a keyboard and use her arms and hands.

15The evidence provided by Ms. MacDonald was that the temporary measures put in place during the recovery period needed to be revisited once it became clear that the applicant’s medical conditions and restrictions had stabilized and were not likely to change significantly.

16It is at this point in the process that the party’s positions diverge and conflict. The applicant takes the view that the arrangement in place where she performed modified duties for four hours a day could and should have continued. She felt that she was poorly treated by her employer of almost two decades because of the events that followed.

17Specifically, she is upset by the fact that she was assessed for the position that is referred to as both “member service security” and “member service assistant” (MSA) in 2008 when she had been unable to do it in 2006. She questions why the RTV position was not also assessed by the employer and the WSIB ergonomist.

18I note, however, that there is an assessment of the RTV position by an ergonomist employed by the WSIB, pursuant to a site visit made in December 2006 and sent to the respondent on May 12, 2008 in materials submitted to the Tribunal by the applicant.

19The evidence of Ms. MacDonald, in contrast, is that the applicant could not continue to only perform part of the RTV position on a permanent basis. The modified work offered to the applicant, and done by her for a year and a half, necessitated the balance of the duties be done by a colleague, who did all of the heavy duties for both people, without the respite offered by the intervening periods of lighter work. This working arrangement, according to Ms. MacDonald, could not continue indefinitely or permanently.

20The RTV clerk position involved a set of duties that interspersed the “heavier” handling of material (involving reaching, lifting, pushing and pulling) varying in size and weight from clothing to televisions, with lighter keyboard use or faxing tasks.

21Ms. MacDonald’s evidence was that most of the other positions in this particular workplace were not within the applicant’s medical restrictions and the few that were within her restrictions were assessed for suitability if there were openings, specifically, the MSA position.

22The applicant and her physician both indicated to the respondent that she could not perform the MSA position. After an ergonomist working with WSIB had also reviewed the MSA position and deemed it unsuitable for the applicant, the respondent sent the applicant a letter, dated May 20, 2008, telling her that there were no suitable, permanent, available positions in the workplace and that she was being placed on an unpaid medical leave of absence. The parties also had a meeting during which this information was discussed.

23Although the applicant agrees that a number of the positions at the workplace were outside her restrictions, she does not understand why she could not have continued in the modified half time RTV position she occupied for 18 months. Her evidence was that she felt that she was discarded by the respondent employer after many years of faithful service because of her injury.

24After her leave of absence commenced on May 20, 2008, she received income from WSIB, initially for 8 hours per day and subsequently, once a decision had been made that she had failed to participate in a Labour Market Re-entry program, for 4 hours per day. As of the date of hearing, she continued to receive some income from WSIB.

25The applicant was further upset by the fact that two years after her leave commenced, on May 20, 2010, her insurance coverage through work ceased to cover her. She says she felt let down by the fact that “after giving 18 years of her life to Costco, they let her go just like that”.

26The applicant testified that as a result of being placed on an unpaid medical leave of absence, she felt degraded and believes the employer wanted her out of the department so they could give her job to another person. She says she wanted to work there for a little while longer until she retired and they took that away from her. She believes that she did not deserve that.

DECISION

Discrimination On The Basis Of Age

27Although the applicant alleged discrimination on the basis of two grounds in her Application; specifically age and disability, she has pled no facts and called no evidence with respect to discrimination on the basis of age. As such, she has not made out a prima facie case of discrimination on the basis of age that the respondent was called on to answer. Accordingly, her claim on that basis must fail.

Discrimination On The Basis Of Disability

Disability within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

28The parties do not dispute that the applicant is a person with a disability within the meaning of the Code and given that she was in receipt of benefits under the WSIA, I have no difficulty finding that she was a person with a disability as defined by the Code.

Prima Facie Case of Discrimination

29The applicant does not appear to allege that the respondent’s conduct over the 18 months that she worked half time in a modified position on a part time basis constitutes discriminatory conduct. While she has expressed dissatisfaction with the circumstances prior to that 18 month period that commenced in September, 2006, those allegations were not pursued by the applicant during the course of the hearing.

30At the crux of this dispute is the issue of whether the respondent’s decision to discontinue the modified position after eighteen months and its decision to place the applicant on an unpaid medical leave of absence amounts to discrimination under the Code.

31I find that the applicant has made out a prima facie case of discrimination. Her position is that there has been a breach of s.11 of the Code, in that there is an otherwise neutral requirement, qualification or factor that has an adverse effect on her because of her disability. I accept that is the case here. Both parties agree that the applicant cannot perform some of the regular duties of her job as RTV clerk as a result of restrictions relating to her disability.

32Specifically, the applicant and respondent both agree that the applicant’s medical restrictions during the eighteen months between September 2006 and May 2008, rendered her unable to perform the heavier aspects of the job of RTV clerk and she was restricted to performing the lighter tasks. In addition, she was unable to work more than 4 hours per day.

33The parties also agree that she was placed on an unpaid medical leave effective May 20, 2008 because the respondent took the position that she could not perform the essential duties of her own position, RTV clerk, and that it had no “permanent, available, suitable position” to offer her.

[Section 17](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

34The applicant having made out a prima facie case of discrimination, the onus, therefore, shifts to the respondent to establish a defence under the Code. In the present case, the respondent relies on section 17 of the Code.

35The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at paras. 22 and 42–45. To meet the procedural part of the duty to accommodate, the respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. That involves obtaining all relevant information about the applicant’s situation, at least where it is readily available. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.)

36In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. This decision was confirmed on judicial review: ADGA Group Consultants Inc. v. Lane, supra.

37Accommodation is a collaborative process: the person with a duty to accommodate has a duty to actively seek the information he or she needs, and must be prepared to consider and explore the possibilities. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.

38In the present case, I find that the respondent has met both its procedural and substantive duties.

39There is ample evidence that establishes on balance that enquiries were made about the applicant’s abilities and restrictions. Accommodations within the RTV position were canvassed and attempted. I note that there was a site visit made by an ergonomist employed by the WSIB during which he assessed the RTV position and provided his opinion as to the suitability of some aspects of the job given the applicant’s medical restrictions.

40Subsequently, when the respondent took the position that it had become clear that the applicant could not perform essential tasks that made up the RTV clerk position, the possibility of accommodating the applicant’s disability by placing her in other suitable jobs within the workplace was also considered and ergonomic assessments made of potentially suitable positions.

41As such the applicant has not established that the respondent employer failed to meet the procedural aspects of its duty to accommodate.

42The applicant’s argument is essentially that she was engaged in work that was within her restrictions that was meaningful and provided value to the employer. She points out that the modified position was one that lasted eighteen months and seemed to be working for both parties.

43She argues that the accommodation offered over the 18 month period was appropriate and ought to have been continued. Discontinuing that arrangement effective May 20, 2008, in her view, amounts to discrimination as she suggests that the respondent has not established that to continue the modified work arrangement would amount to undue hardship.

44The respondent argues that the modified position was made available to the applicant while the parties were of the view that she was in recovery. Once it became clear that her restrictions were permanent and that further recovery and improvement was unlikely, the situation had to be evaluated anew.

45At that time, it argues, it became clear that the applicant could not perform the essential tasks of the position she held; that of an RTV clerk, given that she could not perform at least half of the tasks that made up that job. The respondent argues that it made attempts to look for other positions within the workplace, the essential tasks of which the applicant could perform with or without accommodations and it was ultimately unsuccessful in those attempts. In that way, it argues that it has met its obligations under the Code.

46The parties also made submissions on the issue of whether the respondent employer was under an obligation to “bundle” tasks in order to create a job with tasks within the applicant medical capabilities. Specifically, the parties provided submissions addressing the applicability or distinguishing the principles outlined in the Tribunal's decision in Vanegas v. Liverton Hotels Inernational Inc., 2011 HRTO 715.

47The Tribunal held as follows in Vanegas, supra:

In reviewing Hydro-Quebec and the arbitral authority referred to me by the respondent, I agree with and adopt the finding of Arbitrator Kydd that the duty to accommodate may, in appropriate circumstances, require an employer to “bundle” or take various tasks from existing positions and in essence create a new position for a disabled employee, unless to do so would create undue hardship for the employer. I also agree with Arbitrator Kydd that ultimately an employee must be able to perform a useful and productive job in the context of the employer’s operation.

The respondent also submits that a distinction needs to be drawn between affording an employee modified duties on a temporary basis where an employee’s disability or injury has caused short-term restrictions or limitations, as opposed to the situation where the medical evidence indicates that an employee has permanent restrictions which prevent him or her from performing the essential duties of the pre-disability job. I agree. When providing accommodation to an employee with temporary or time-limited restrictions or limitations, the threshold for finding undue hardship is higher and an employer may be required, on a temporary basis, to provide modified duties which otherwise would not be sustainable on a permanent basis.

48The applicant argues that the fact that tasks were being performed by her for 18 months is proof that a set of tasks can be isolated and called a job. She argues that there is no evidence that the work she did during that time was unproductive and no real explanation as to why that solution could not be kept in place.

49The respondent argues, and I accept, that an 18 month process had been undertaken, during a period when the applicant’s medical condition was uncertain and while further recovery was still contemplated as possible. The respondent pointed out that it took the view that in a temporary situation involving short term restrictions or during a work hardening process, it took its obligation to provide modified duties during the recovery period seriously.

50However, once the assessment had been made by the applicant's physicians, and verified by the WSIB, that the applicant’s conditions had stabilized and additional recovery was unlikely, the respondent argues that it had to make an assessment as to how to accommodate the applicant on a permanent basis moving forward.

51It was at this stage, the respondent argues, that it became clear that the applicant could not continue to perform the set of tasks that she had been performing, which tasks represented only a portion of the essential duties of her position. The respondent argues that the tasks being performed were not continuous or consistent and that its obligation to the applicant did not extend to creating or bundling a set of tasks that did not result in a job that was useful to the respondent’s operations.

52In my view, the issue in this case is not solely whether the accommodation identified as appropriate by the applicant would cause the respondent undue hardship, but rather whether it would allow the applicant to perform the essential duties of her job, including, if necessary, with accommodation, to the point of undue hardship.

53The language used in section 17 is that of the “essential duties or requirements” associated with the exercise of the right to be free from discrimination in respect of employment for reason of disability.

54Clearly, the Legislature’s use of the language of “essential duties” rather than all duties has some meaning. It implies that accommodation may require an employer to accept that an employee may not be able to perform every single task that would normally be within his or her job description. Nor does it require the opposite.

55The critical question in this case is what the essential duties of the RTV position were. The inquiry can be restricted in this regard because given the applicant’s stated restrictions, and her position that the MSA position was unsuitable, she essentially conceded that there were no other available jobs within the workplace, other than the RTV position with the accommodation she has identified.

56I find, having reviewed the evidence, including the detailed job analysis, that the essential duties of the RTV clerk position did not involve merely entering information about the returns into the computer system, faxing documents and speaking with the customers (the duties referred to as “paperwork” or “light work”); they also included actually dealing with the returned merchandise. These aspects of the job, described as the” heavy” part of the job, and ones that Ms. MacDonald described as the majority of the tasks associated with the job (the other functions taking only a couple of hours in an eight hour shift) are clearly part of the essential duties and core functions of the job. The applicant could not perform the latter set of tasks.

57The substantive aspect of the duty to accommodate involves an analysis of the reasonableness of the accommodation offered. Accommodation in the workplace may mean adapting the work to the needs of the applicant so that she can perform the essential duties of the position. In a case where a person with a disability is incapable of performing the duties of the job as currently designed, accommodation may involve permitting disability related absences, providing an assistive device or re-organizing the way the work is done.

58The applicant sought and received time off work for disability related absences and during those times, received benefits and assistance through WSIB. It also appears from the evidence that the WSIB was involved in an ergonomic analysis of the RTV clerk position. The temporary modified work arrangement that the applicant’s physician recommended and that the WSIB and the respondent settled upon involved limiting the tasks performed by the applicant and the time she spent doing those tasks on a temporary basis.

59The respondent’s position is that was the only way in which the applicant could have stayed in her job and the applicant does not suggest or assert that there are any other things that could have been done by the employer to further to accommodate the needs of this applicant to place her in a position where she could perform all of essential duties involved in the RTV clerk position.

60In Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000, 2008 SCC 43, the Supreme Court of Canada noted that an employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. The duty to accommodate does not require an employer to assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place.

61Although the applicant was satisfied with the temporary modified work arrangement, the Code does not require an employer to provide the applicant with her desired resolution. In its decision in , the Supreme Court of Canada held as follows:

This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

62The fact that the respondent kept the modified work arrangement in place for an extended period of time to facilitate a return to work by the applicant, and perhaps for longer than may be considered usual, is not a reason to assume that the balance of the tasks associated with the job were not essential duties. It is also not a practice to be discouraged by placing a respondent at a disadvantage by drawing unsupported inferences from it. That is to say, that keeping such an arrangement in place for a longer time than another employer might have done does not lead automatically to the conclusion that it is a position that could stand on its own and is sustainable on a long term basis. I find that it is not a conclusion that is supportable in the circumstances of this case.

63The solution the applicant proposed on a permanent basis was one which would require that part of the essential duties of the RTV job would be assigned permanently to someone else. In essence, she sought to continue to do less than half the essential duties on a half time basis. In the circumstances of this case, I find that the duty to accommodate does not require that the respondent take this step.

64Accordingly, the Application is dismissed.