Boyce v. Toronto Community Housing Corporation, 2012 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randolph Boyce Applicant

-and-

Toronto Community Housing Corporation Respondent

Decision

Adjudicator: Judith Allen Date: April 27, 2012 Citation: 2012 HRTO 853 Indexed as: Boyce v. Toronto Community Housing Corporation

APPEARANCES AND WRITTEN SUBMISSIONS

Randolph Boyce, Applicant ) Self-represented Toronto Community Housing Corporation, Respondent ) Orna Raubfogel, Counsel

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”), in which the applicant alleges discrimination in employment on the basis of disability.

Decision

2For the reasons that follow I dismiss the Application.

3This application has a lengthy factual and litigation history, which is summarized below.

4The applicant suffered a right knee injury in the course of his employment on March 11, 2005, when a chair he was sitting in collapsed. The applicant filed a claim for benefits with the Workers Safety and Insurance Board (hereinafter “WSIB”) immediately thereafter.

5The applicant filed this Application, alleging discrimination on the basis of disability, in particular a failure to accommodate his disability from June 24, 2005, to July 23, 2008 (a period of three years and one month). The application was filed on August 19, 2008. The WSIB issued nine (9) Decision letters. Ultimately, the WSIB extended benefits to the applicant for the period March 11, 2005, up to and including November 15, 2005, on the basis that although the modified work offered by the employer was within the applicant’s medical restrictions by June 24, 2005, the applicant’s ability to get to the work location where the modified duties were offered, was not within his medical restrictions until November 15, 2005. I note that the evidence adduced before the WSIB was not the same as that adduced before this Tribunal.

6The respondent did not file an appeal with respect to the decision to extend benefits to November 15, 2005.

7Although there was some confusion, by the time this matter came before me, the applicant had filed an appeal with the WSIB, seeking benefits beyond November 15, 2005, as well as certain other remedies involving appropriate calculations, etc. The parties are agreed that those issues are not before this Tribunal. At the time this matter was heard in September and October of 2011, the appeal had not yet been dealt with.

8There have been a series of Decisions from this Tribunal. The first, 2008 HRTO 448, ordered the applicant to advise the Tribunal and the respondent whether he had filed an appeal with respect to the May 1, 2008 WSIB decision. The second, 2009 HRTO 131, dealt with the respondent’s requests for a deferral of this proceeding and production (both of which were dismissed); OPSEU’s request to intervene (which was granted but never acted upon); and the applicant’s request to amend his Application (which was granted without objection). The third, fourth, fifth and sixth Decisions were quashed, by Order of the Supreme Court of Ontario (Divisional Court) on June 28, 2011, without reasons, on consent of both parties. The Divisional Court ordered a re-hearing of the application before a different panel of the HRTO. The seventh, 2011 HRTO 1677, was an Interim Decision, which granted the respondent’s request to file a supplemental Response; granted the respondent’s request to rely upon WSIB documents without the applicant’s consent; and deferred the amendment of the style of cause to remove the personal respondents until the hearing on the merits.

The Issue

9The issue before the Tribunal at this point is twofold: i) whether or not the respondent failed to accommodate the applicant to the point of undue hardship subsequent to his workplace injury contrary to ss. 5, 11 and 17 of the Code; and ii) whether the decision to terminate his employment violated the Code. (I note that the application was filed after the termination but the applicant did file a supplementary application.) There is no dispute that the applicant has a disability that has rendered it impossible for him to perform the essential duties of his pre-injury job. The Tribunal held a three-day oral hearing at which evidence on these issues was heard.

The Evidence

10The applicant was employed by the respondent and its predecessor for over 20 years. At the time of his injury on March 11, 2005, he was employed as a Community Patrol Officer (“CPO”) and worked in the South-West end of the City of Toronto. The applicant’s duties included conducting patrols within his geographic assignment (by vehicle and on foot); restraining and/or immobilizing suspects (as needed); responding to tenant concerns respecting safety or security (in person and by phone); responding to dispatches and emergency calls (e.g., for fights); liaise with dispatch at the Toronto Police Services; and write occurrence reports.

11Initially, the injury to the applicant’s right knee was viewed as a temporary disability. The applicant provided a medical note stating that he was unable to work due to his right knee for at least six to eight weeks on or around March 14, 2005.

12The applicant’s physician provided the first Functional Abilities Form (“FAF”) on April 28, 2005. At that time the physician identified the applicant’s restrictions as follows: walking short distances with a cane; unable to stand for more than 15 minutes; unable to do any lifting; unable to do any stair or ladder climbing. He had no sitting restrictions and was deemed capable of performing modified work. The applicant’s physician expected to see gradual improvement over six to eight weeks.

13The next FAF was dated July 6, 2005, and outlined the identical restrictions as the one from April 28. Once again, Dr. Peck indicated that the applicant was capable of modified duties. The only additional comment was that there was a possibility of a return to work in September of 2005.

14The respondent was provided with a medical note from Dr. Fung on November 11, 2005, which stated that the applicant was “able to return for light duties at graduated hours starting at 4 hrs/day, 3 days/week; minimal lifting; light/moderate standing/ walking; work as tolerated; rest as necessary.” The respondent also received an undated medical note from Dr. Peck on or around November 15, 2005, stating that the applicant could “return to work, 4h/day, 3 days/week, light duties; work station close to home”, beginning November 13, 2005.

15There were a number of other medical documents adduced at the hearing that were disclosed to the respondent by the WSIB during the reconsiderations before that Board and relied upon at this hearing pursuant to HRTO order. While the respondent did not have the information at the relevant time, none of it contradicts the above. In short, at no time has the medical documentation supported the applicant’s contention that he was unable to walk short distances, nor that he was unable to drive or take public transportation. That is from April 28, 2005, through to and including April of 2008, the above restrictions did not change.

16There was evidence that the applicant tried to convince Dr. Peck that he could not drive, but Dr. Peck did not adopt that view in any of his medical opinions.

17The applicant was provided the following offers of accommodation:

a) March 18, 2005 – offer of a temporary opportunity to attend a Community Patrol Officer and Special Constable training course, involving desk work;

b) April 4, 2005 – offer of Dispatcher in the Community Safety Unit, involving many of the same tasks of a Community Patrol Officer, except that it is limited to desk work (offered initially as a temporary solution until it was offered as a permanent solution in 2008);

c) June 15, 2005 – offer of temporary desk work as an Assistant Parking Enforcement Administrator, which remained open until 2007.

18The first offer, (a), was in the same location as the applicant worked. The latter two offers, (b) and (c), required the applicant to work from 365 Bloor Street East. None of the positions required any walking, standing, ladder climbing, lifting, bending or twisting of the knee, nor repetitive movement of the knee. All were considered sedentary, desk jobs, that would allow for breaks, stretches, etc.

19The latter two positions (b) and (c) were offered at the same pay rate as the applicant’s pre-injury job. They were also part of the same bargaining unit. The applicant would have continued to work with many former colleagues. The applicant had the necessary skills, training and experience to perform both jobs.

20The applicant did not feel well enough to attend the training in March of 2005 and there does not seem to be any dispute that he was not physically able to attend the training at that time.

21The applicant’s initial position was that the latter two offers were within his medical restrictions as of June 24, 2005; however, his ability to get to the work locations was restricted by his disability. The medical evidence adduced here certainly demonstrates that the job offers were within the applicant’s medical restrictions from at least April 28, 2005. The only issue before the WSIB was whether the applicant could get to the work location, despite his disability.

22Much of the evidence before the WSIB was somewhat speculative, as the applicant’s reasons for not attempting a return to work shifted over time.

23Initially, he assumed that he would have to park at a residential building owned by the respondent on Bleecker Street and walk approximately 500 yards to the 365 Bloor Street building. He assumed there were no elevators and so he would have to climb stairs. He assumed he would not be able to rest along the way. These tasks were beyond the applicant’s restrictions, in his mind, based upon the assumptions he made. They were not contrary to the medical restrictions outlined in his April 28,2005 FAF, or any of the other medical documents provided to the employer and outlined above.

24One of the results of this very lengthy litigation in two separate fora, is that it has afforded the parties a number of “rehearsals” of their evidence. In the hearing before me, the respondent had the benefit of testimonial and pictorial evidence of the walk from Bleecker Street to 365 Bloor Street, the resting benches, the elevators, the availability of parking at Bloor Street, etc. Much of this evidence was not before any of the WSIB claims adjudicators, in some cases, because it had not been anticipated due to the applicant’s shifting reasons for not attempting a return to work.

25The applicant never did attempt a return to work. Between November of 2005 and November of 2007, he collected Long Term Disability Benefits from Manulife on the basis that he was totally disabled from working at his “own occupation”, i.e., Community Patrol Officer. Once those benefits ceased because his entitlement definition under the LTD plan changed to “any occupation”, he continued to seek accommodation from the respondent. Manulife had determined that he was able to do modified work by November of 2007. This accords with the medical documentation the applicant provided to the respondent in November of 2007, as noted above. As noted above, two of the offers of accommodation, (b) and (c), remained open throughout the period he claimed LTD benefits. The offer of (b) continued beyond November 2007.

26The respondent summarized the various reasons the applicant proffered for not attempting a return to work. Most of them were based on assumptions that the applicant took no steps to verify and which turned out to be false. For example, the applicant’s assumptions about the lack of an elevator, the lack of parking and the inability to walk 500 yards were all contradicted by the evidence and by the medical restrictions as established by his health care professionals before this Tribunal.

27Many of his assertions were contradictory to the positions he was suggesting. For example, the applicant said he could not drive long distances but admitted that he drove long distances to see his health care professionals. At one point, after he had moved to Scarborough in the North-East of Toronto, he insisted that he could return to the Community Patrol Officer in the South-West of the City, which was twice as far as Bloor Street. There is no medical evidence before this Tribunal that indicates that the applicant could ever return to his pre-injury position. Moreover, there is no medical evidence before this Tribunal that the applicant was ever restricted from driving or walking short distances.

28Another example of a contradiction is that the applicant felt the Dispatcher job was too challenging for him (even though he had performed the position previously without complaint). At the same time, he argued that it would be a humiliating demotion, akin to wearing a “dunce cap”. There was no evidence, other than the applicant’s bald assertion, that the Dispatcher position was so viewed within or outside of the organization. To the contrary, the job contained a sub-set of many of the applicant’s pre-injury duties and was being offered at the same pay rate. Indeed, this allegation was never made to the WSIB.

29The applicant ruled out taking alternate transportation to Bloor Street, such as Wheel-Trans, because he would not be able to stop for an ice cream on the way home.

30In the end, despite repeated offers and re-offers, the last of which was made on August 14, 2008, the respondent terminated the applicant’s employment on August 26, 2008, after he declined to respond to the “final offer” of the Dispatcher position as a permanent accommodation, or, in the alternative, provide medical information for why it was unsuitable. I note that the August 14, 2008 “final offer” was in fact the “third” final offer, as two previous ones had been sent in March and April of 2008. While Mr. Boyce did reply to the April “final offer”, he did not provide any new medical information indicating why the offer of the Dispatcher position was not suitable, nor any new medical information as to why he could not attempt a return to work.

31As noted above, between March of 2005 and April of 2008, a period over three years, the applicant did not attempt a single return to work. The applicant was unable to provide his employer with medical information indicating medical restrictions preventing him from getting to Bloor Street or from performing the Dispatcher position. The only suggestion that the applicant made was for the respondent to create duties for him to do at his home. The preference of working from home was because the applicant felt he could not get to the work location, an opinion that was not shared by his health care professionals.

Analysis

32It is not necessary to address in this case whether the Code duty to accommodate includes a duty to accommodate restrictions on travel to work. Here, there is no medical evidence that supports the applicant’s assertion that he could not get to work and so it is not necessary to address this legal issue. I will proceed on the assumption that such a duty exists.

33It is now trite law that the duty to accommodate is a co-participant exercise, involving the cooperation of the employee seeking accommodation, his/her union, if any, and the employer, in consultation with the relevant medical professionals. (See, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Reimer v. York Regional Police, [1998] OHRBID 17; and Yeats v. Commissionaires Great Lakes, 2010 HRTO 906.) The employee is entitled to “reasonable accommodation”, not “perfect” accommodation.

34The employee’s participation requires cooperation, timely provision of medical restrictions and careful consideration of offers made. Many accommodations begin with a work-hardening or graduated return to work, where it is not certain what the degree and extent of the restrictions are. Absent medical advice to the contrary, it is implicit in the duty to cooperate that the employee will at least attempt a modified return to work before ruling it out as an inappropriate accommodation, particularly in the case, like this one, where the offer is within the applicant’s skills, experience, bargaining unit, pay level and the medical restrictions provided by health care providers. (See, Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5; Jeffrey v. Dofasco Inc. (2007), CLLC 230-040 (Ont. Div. Ct.)

35The applicant’s case would have been much stronger if he had attempted a return to work. Unfortunately, the applicant stayed out of the workforce for approximately three and a half years and failed to provide evidence of medical restrictions that would prevent him from performing the Dispatcher position for over three years. By his own admission and from the medical evidence adduced, his condition had not deteriorated over that three-year period. I find that in offering the applicant the dispatcher position, which was a position that he could do within his restrictions, the respondent met its duty to accommodate the applicant to the point of undue hardship.

36I have considered the case law relied upon by the applicant. I agree with the respondent that all of the cases can be distinguished on their facts and do not deal with the issue raised in this application. Entrop v. Imperial Oil, 2000 CanLII 16800 (Ont. C.A.), deals with drug testing and transfer without consultation from a safety-sensitive position in the absence of medical information. In this case there was plenty of medical information and numerous invitations to consult. ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Ont. Div. Ct.), dealt with a failure to attempt accommodation, whereas in this case the respondent attempted to accommodate the applicant for a three-and-a-half year period. Metsala v. Falconbridge Ltd., 2001 CanLII 26213 (HRTO), dealt with an employer that ignored medical notes. In this case, it was the applicant that was disputing his medical documentation, not the respondent. The applicant relies upon the decisions of the court of Appeal in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) which was varied by the Supreme Court of Canada, 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, and on British Columbia (Public Service Employees Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), for the principle that he was denied an individual assessment. The respondent repeatedly invited the applicant to provide information as to why its offers of accommodation were unsuitable and the applicant was unable to do so.

37At what point an employer is entitled to determine that the employee is simply not cooperating with the accommodation process and treat the employee as having abandoned their employment will differ depending upon the facts and the context. In the Jeffrey case, supra, it was four years. In other cases it is less.

38I turn now to the second issue: whether the applicant’s termination violated the Code. Although the applicant had filed this Application shortly before his termination, there is no evidence, and I do not find, that the termination was a reprisal for the Application contrary to s. 8 of the Code. As established in Noble v. York University, 2010 HRTO 878, there must be an intention to reprise against an individual for asserting Code rights in order for reprisal to be found. There is no evidence of any such reprisal in this case.

39I also find that it was not discrimination because of disability contrary to the Code for the employer to dismiss Mr. Boyce based on his continued failure to report to work and attempt a modified position that fell within his restrictions.

40In this case, the respondent offered modified employment consistent with the applicant’s medical restrictions for a period of three-and-a-half years, including three “final offers”. The applicant was unable during the three-and-a-half years to provide medical evidence that would establish that he was not capable of doing the modified work nor incapable of getting to the location where the work was offered. Given the clear failure of the applicant to cooperate in the accommodation process or to return to a position that he was clearly capable of doing, I find that it was not contrary to s. 5 of the Code for the respondent to terminate the applicant’s employment as a result of his failure to attempt the offered accommodation. Termination of an applicant who refuses to attend work when provided with an accommodation that is, on its face, consistent with his restrictions or to provide further medical information, is an action by the employer in response to the employee’s failure to attend work, not discrimination.

Conclusion

41In the result, I do not find that there has been a breach of the Code. I therefore dismiss the Application.

42Since the issue of entitlement to benefits is proceeding to WSIAT, this Tribunal wishes to make it clear that the only issue before this Tribunal in this case is whether the employer breached its duty to accommodate the applicant at any point between his injury and his termination. On the evidence before this Tribunal, I have found that there has been no such breach. I have no jurisdiction to determine the applicant’s entitlement to benefits during that period as is made clear in the recent decision of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. Moreover, it is very clear that the evidence and arguments advanced before the WSIB adjudicators has been different than the evidence and arguments adduced before this Tribunal.

43Finally, at the commencement of the hearing before me, I amended the style of cause to delete the personal respondents, on consent. The intervenor, OPSEU, did not participate in this hearing.