Buttar v. Halton Regional Police Services Board, 2013 HRTO 1578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Navjit Buttar Applicant

-and-

Halton Regional Police Services Board Respondent

-and-

Halton Regional Police Association Intervenor

DECISION

Adjudicator: Mark Hart Date: September 19, 2013 Citation: 2013 HRTO 1578 Indexed as: Buttar v. Halton Regional Police Services Board

APPEARANCES

Navjit Buttar, Applicant Simon Heath, Counsel

Halton Regional Police Services Board, Respondent Michael Hines, Counsel

Halton Regional Police Association, Intervenor Caroline (Nini) Jones, Tina Lie and Denise Cooney, Counsel

Introduction

1This is an Application dated May 13, 2011, and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.

2In summary, the applicant alleges that he experienced discrimination because of disability when he was diagnosed with Obsessive Compulsive Disorder ("OCD") arising from his fear of contamination due to exposure to blood or bodily fluids, and when this was relied upon by the respondent to advise him of its intention to terminate his status as a probationary police constable. The respondent's position is that, due to the nature of the probationary constable position and the specific triggers and behaviours associated with the applicant's OCD, it simply was unable to accommodate him in a front-line probationary constable position.

3The hearing in this matter was held over the course of five days, on September 24 to 26, 2012, and January 22 and February 11, 2013. Following the conclusion of the hearing, a newly released decision of the Alberta Court of Appeal was brought to the Tribunal's attention by the intervenor, and further written submissions were sought from the parties. The final written submissions were received on April 2, 2013.

4In advance of the hearing, the parties had filed detailed witness statements. With the consent of the parties, each witness affirmed the truth of the contents of their witness statement, which were marked as exhibits and entered into evidence. The party calling the witness was afforded an opportunity to conduct any supplementary examination-in-chief, followed by cross-examination and re-examination in the normal course. I also imposed time expectations on the parties for the completion of supplementary examination and cross-examination, to which they generally adhered.

5I heard from the applicant, who testified on his own behalf. The respondent called nine witnesses, namely: its human resources manager; the chief of police at the relevant time (now retired); the disability management coordinator; the psychiatrist who conducted the Independent Medical Examination; the applicant's coach officer; a station duty clerk; internal legal counsel; the staff sergeant who was the platoon commander on the applicant's shift; and the superintendent responsible for 20 Division in Oakville.

6The hearing in this matter was bifurcated to deal first with liability, and then at a subsequent stage with the issue of remedy, in the event that a violation of the Code was found.

REVIEW OF EVIDENCE

Background

7On August 24, 2009, the applicant was hired by the respondent as a recruit-in-training. From September 9 to December 3, 2009, he attended the Ontario Police College.

8On December 16, 2009, the applicant was appointed as a fourth class constable under the Police Services Act, R.S.O. 1990, c. P.15, as amended ("PSA"). In this capacity, the applicant was subject to a probationary period that ran for a period of one year, or until December 16, 2010.

9When police officers first start their probationary period, they are assigned to a coach officer for a period of about three to four months of in-field training. The applicant initially was assigned to one coach officer, and then in January 2010 began to be trained by a second coach officer.

10In January and February 2010, there were three incidents where the applicant was exposed to blood or bodily fluids. These incidents caused the applicant to ask questions of his coach officer regarding the possibility of contamination or disease transmission arising out of exposure to bodily fluids. There is a dispute in the evidence as between the applicant and the coach officer regarding the applicant's conduct in these three incidents. The coach officer's evidence is that the applicant was apprehensive, did not engage in taking a lead role, stood far away from the person, or just stood back and watched. This is denied by the applicant. There also is evidence before me that the applicant asked his coach officer questions about potential contamination and disease transmission relating to these incidents, but this was described by the coach officer as not being unusual.

11The main triggering incident occurred on February 24, 2010. On this day, the applicant and his coach officer were assigned to execute an arrest warrant on a young offender. The arrest was effected, and the applicant put the young offender in handcuffs. Once they got to the booking room at the police station, the applicant removed the handcuffs. The applicant's evidence is that at this point, he noticed that the young offender had a cut or gash on his arm from the handcuffs that was bleeding. He states that he became concerned because the young offender's blood came into contact with some open "stab cuts" on the applicant's hand (the applicant testified that his own cuts had been sustained while boxing). From this point, the applicant became pre-occupied with the possibility that he had contracted some disease from the young offender, and particularly hepatitis C. The applicant's evidence is that, on the way to make the arrest, his coach officer had told him that this young offender had hepatitis C and had infected other people. This is denied by the coach officer, who states that the young offender was not previously known to him, and he has no information as to whether or not this young offender had hepatitis C.

12The applicant's evidence as to the injury sustained by the young offender is disputed by the coach officer and by the staff sergeant who was on duty at the time the young offender was brought in. Their evidence is that the young offender did not have a cut or gash, but rather a mark that was described as a "pimple". Both testified that the young offender was not actively bleeding. In the report prepared by the applicant in relation to this arrest, there is no reference to an injury having been sustained by the young offender or any mention of a cut or gash or that there was active bleeding.

13In describing the impact of this incident on him at the time, the applicant's evidence is that he was struggling with the situation, he was worried, and that it was "touch and go". On cross-examination, the applicant agreed that this incident caused a clear interference with his functioning and that he was not at the top of his ability, but he denied being incapacitated.

14The coach officer's evidence paints a far different picture. He states that the applicant seemed distracted after the young offender's handcuffs were removed. After removing the handcuffs, the applicant was required to conduct a search of the young offender, which the coach officer describes as "lackadaisical". He states that during the search, the young offender had free range of motion, and the applicant's positioning during the search was a safety concern. The applicant's head was down, and he partially had his back to the young offender. The search was slow and incomplete. The coach officer states that he had to remind the applicant of officer safety multiple times. He states that at one point, the young offender made a comment that he could have hit the applicant at will. The coach officer states that he demonstrated a proper search, and then the applicant re-attempted a search but safety concerns arose again. As a result, the search was ceased.

15The coach officer states that the applicant then began completing the booking sheet. The applicant was directed to read all the questions aloud to the accused, however the applicant stared down at the page and sat motionless for some time, not doing anything. The applicant once again was advised to read the questions aloud, but instead sat motionless again. He was again directed to read the questions and this time finally did so, but his speech was slow and non-confident. The coach officer states that the applicant continued to appear distracted and lethargic for the remainder of the contact with the young offender, to lodging him in a cell. During conversation regarding the completion of the report and finalizing the applicant's notebook entry, the coach officer states that the applicant appeared distracted and unable to concentrate on the tasks at hand.

16Overall, the coach officer states that the applicant seemed pre-occupied and agitated. He states that after the applicant removed the handcuffs and noticed the mark on the young offender's wrist, the applicant became very withdrawn, was not focusing, and "kind of had a blank stare". The coach officer states that the applicant's reaction got to the point where it was an officer safety issue. He states that if at any point the young offender had become aggressive or violent, the applicant was in no position to deflect physically or defend himself.

17After they had completed dealing with the young offender, the applicant spoke to the coach officer and told him about his concern for potential disease transmission. The applicant's evidence is that the coach officer was not responsive to his concerns and refused to allow him to speak with the staff sergeant. The applicant states that they got into a "yelling match". This is denied by the coach officer, who states that he tried to counsel the applicant and allay his concerns. The coach officer denies getting into a yelling match with the applicant, and denies refusing to allow him to speak with the staff sergeant. There does not appear to be a dispute that the applicant was sent home early before the end of his scheduled shift.

18The following day, prior to his scheduled night shift, the applicant attended a walk-in clinic to get his blood tested. He also obtained a doctor's note excusing him from the remainder of his current block of shifts. Notwithstanding the doctor's note, the applicant showed up at the start of his shift and once again spoke with his coach officer and again asked to speak with the staff sergeant. The coach officer went and briefed the staff sergeant on the issue from the previous shift, and then the staff sergeant spoke with the applicant. The staff sergeant discussed the applicant's concerns about disease transmission, and tried to allay them. In light of the doctor's note, the applicant was advised to take the remainder of the block off. The staff sergeant also encouraged the applicant to seek support through the employee assistance program ("EAP") and said that he would try to arrange further counseling for the applicant.

19During the period when the applicant was off work for the remainder of his block of shifts and for the intervening period before his next scheduled block of shifts, the applicant's concerns were raised with the respondent's human resources manager and steps were taken to arrange for the applicant to meet with the respondent's occupational health and safety coordinator and with the communicable diseases manager for Halton Region. This meeting occurred on March 3, 2010, which was the first day that the applicant returned to work following the February 24, 2010 incident. The evidence before me indicates that a significant amount of information was shared with the applicant regarding the very low risk of disease transmission, and the need for there to be deep penetrating blood to blood contact before the applicant would be at risk. The applicant also was provided with some materials about communicable diseases and preventative steps, and again was encouraged to contact EAP.

20When the applicant returned to work on March 3, 2010, he advised his coach officer that he was not mentally prepared to go out on the road. As a result, the applicant was relieved of patrol duties, and given work inside the police station for his next two shifts. The applicant states that at the end of these two shifts, he was told by his staff sergeant that he needed to "get back on the horse". As a result, the applicant resumed his training with his coach officer.

21In his evidence before me, the applicant described his mental state upon his return to work following the February 24, 2010 incident. He states that he was "literally a mess" and was "pretty much walking around like a zombie". He states that he was constantly wearing gloves, and he would put his protective blue gloves overtop of his uniform gloves so that he could see if he got any blood on his hands. This occurred even while the applicant was at the station or engaged in duties where there was no real risk of exposure to blood. He states that he always had his hands up in the air, and was very careful about what he touched. He was constantly going to the washroom to wash his hands, between 15 and 20 times per day. He states that every time he nicked his hand, he would run to the emergency kit and put on a bandaid. He started worrying about getting cracks in his hands, and would regularly apply skin lotion. While some of this conduct may seem like good hygiene or appropriate protective measures, the applicant acknowledged in cross-examination that he "took it to another level", was washing his hands and putting on skin lotion "too much", and that this was "not good". He described himself during this period as being upset and "doing crazy things". He acknowledged that his phobia at this time extended not just to blood, but also to saliva and sweat, and that he was "phobic about a lot of stuff".

22The applicant agreed on cross-examination that his behaviours during this time are accurately described as follows (from the Independent Medical Examination ("IME") report dated May 25, 2010):

Mr. Buttar stated that since February he has been getting worse and the fear of HIV has extended to fear of contamination of germs through saliva and opened wounds.

He is constantly obsessing about "what if scenarios", specifically related to the threat of getting an infection. He began to compulsively wash his hands up to ten to fifteen times a day; he uses creams and carries with him sanitizers and checks for cracks in his hands as well as requiring reassurance from others.

Mr. Buttar's behaviour has changed significantly and has affected his interactions with others. He stated he keeps his eyes and mouth away from people in fear that he would be contaminated through saliva. He also noted that when he shaves he cleans himself thoroughly and showers several times a day to ensure that he is healed and does not have any opened wounds.

As a result of efforts to ward off anxiety he began to be engaged in rituals and behavioural responses (compulsions) which occur in an excessive manner. He would wash ten to fifteen times, he would avoid contact with people, he would need rituals including praying for protection. He feels forced to use sanitizers, he had to clean the police cruiser before and after a shift, he had to shower two to three times a day, and he had to wash his uniform in a particular fashion.

23The only exception that the applicant took to this description of his behaviours is with regard to the reference to him "praying for protection", in response to which the applicant stated that he has always prayed.

24This period culminated with the applicant's conduct during an incident on April 15, 2010. The applicant and his coach officer were out on patrol and proactively followed a motor vehicle exiting a bar parking lot. The coach officer states that the applicant was very apprehensive and unsure of the grounds for arrest for impaired driving. When the driver was advised of the arrest, he was not compliant and became very belligerent. The coach officer states that the driver was not told to put his hands behind his back for handcuffing, and the applicant did not take control of the driver but just stood there with no hands on at all. Out of concern for officer safety, the coach officer states that he stepped in to take control. The coach officer states that there were issues when the applicant was reading the driver his rights, and the applicant could not provide explanations in answer to the driver's questions.

25Upon arrival at the station, the coach officer states that the applicant fumbled trying to put on blue protective gloves over his work gloves, and became very flustered. While in the booking room, the coach officer states that the applicant just stood in a daze, and gave no direction to the arrested party. The coach officer states that the applicant's search was very lax and unsafe, and he had to be given direction the entire time. The applicant's head was down, he had poor positioning, and he let the party move around. While removing the handcuffs, the applicant allowed the arrested party's first free hand to be brought in front of him out of the applicant's view, and had very poor positioning when removing the second cuff.

26During breath testing, the applicant again fumbled a lot trying to get both his work gloves on and the blue gloves overtop. The coach officer states that the applicant had a lot of concerns and questions regarding disease transmission, even though the arrested party had no signs or symptoms of any disease and the applicant had not come into contact with anything to cause a concern. During completion of the bail brief, the applicant continued to wear his blue gloves, stating that this was in case he had to go back to the arrested party. The applicant disappeared on multiple occasions when doing the paperwork. While serving documents on the arrested party, the coach officer again states that officer safety was compromised. On numerous occasions, the applicant placed his firearm side directly in front of the arrested party, had his head down, and was not aware of the arrested party. The coach officer states that he had to correct the applicant numerous times.

27Overall, the coach officer states that the applicant appeared to be in a daze during the entire occurrence, and there were major safety concerns throughout, with the applicant being at risk of injury to himself and potentially to others.

28In the meantime, the applicant met with the respondent's disability management coordinator on March 25, 2010, to discuss his continuation of EAP counselling. On April 1, 2010, the disability management coordinator asked the applicant to arrange for his doctor to complete an employee health information form to assist the respondent in understanding his medical limitations.

29On April 11, 2010, the applicant returned the employee health information form as completed by his family doctor. The doctor identified the applicant's medical condition as "acute or chronic anxiety" and stated that this was a temporary condition that was estimated to last for six months. In terms of cognitive or mental limitations or restrictions, the doctor stated that the applicant was to "avoid stressful situations" and that "physical encounters trigger mental situations". The doctor stated that further absences from work were "intermittently possible if [the applicant was] exposed to stressful situations".

30The respondent's evidence is that these restrictions would not allow the applicant to perform the essential duties of a probationary constable and no accommodation of these restrictions appeared possible.

31On April 13, 2010, the disability management coordinator met with the applicant to discuss his restrictions. She identified the significant difficulty faced by the respondent in accommodating these restrictions given the essential duties of the job. The applicant suggested that these restrictions might be met by attempting to prevent his exposure to "bodily fluids and gory scenes". The disability management coordinator suggested to the applicant that this would be very challenging, but agreed to get back to him after discussing the matter with the human resources manager.

32On April 15, 2010, the disability management coordinator became aware of the events of that day as described above. Her evidence is that she was advised that the applicant had experienced difficulties in the apprehension of a belligerent suspect and that once again these difficulties were associated with the applicant's concerns over his perceived risk of contracting a communicable disease from the suspect.

33On April 16, 2010, the disability management coordinator spoke at length with the applicant regarding the previous day's incident and more generally about his difficulties. At this meeting, the applicant asked to be removed from his patrol duties. In her notes of this discussion, the disability management coordinator records the applicant as advising her that he was feeling a great deal of anxiety, and that it was building up and taking a toll. He advised that he was taking his anxiety home, that he could not sleep, and that he had lost his appetite. He said that he felt anxious in the cruiser and around prisoners, and that he goes to a walk-in clinic after each shift or shift and a half depending upon what happened to be checked and assured that he is okay. He advised that on his last shift on April 15, 2010, he made an arrest with gloves on, but being in the cells made him spiral out of control. The disability management coordinator told the applicant once again that she would follow up with the human resources manager and get back to him.

34On April 19, 2010, the applicant sent an e-mail to the disability management coordinator, stating that he goes through a lot of anxiety before and after each block of shifts, and that both he and his doctor were concerned about the effect this was having on him both inside and outside the workplace. The applicant stated that he was expected to start on day shift the following morning, and asked if there were any updates on his "required tasks". The disability management coordinator responded that day, stating that she had discussed his medical documentation with the human resources manager. As the information regarding the applicant's restrictions was not very clear, she stated that there may need to be some further follow-up with the applicant's doctor. She also stated that she had asked whether there were any tasks within the station that the applicant could work on, as he could not be out on the road at that time.

35On April 20, 2010, the disability management coordinator advised the applicant that his request for alternative work would be satisfied by providing non-policing duties at the front desk of the police station in Oakville.

36On April 21, 2010, the applicant reported for his first shift on the front desk. Before lunch, a member of the public attended at the station to turn in some old ammunition. The applicant's evidence is that he asked the station duty clerk whether he should wear gloves when handling the ammunition, and she said that she would deal with it. He says that he was then sent home after he returned from lunch. The station duty clerk's evidence about this situation is quite different. She states that, when the ammunition was turned in, she left it to the applicant to do the general report. Before he did the report, the applicant informed her that he would not be able to do it as he did not want to touch the ammunition. Her evidence is that he also stated that he was not going to be able to do any other security clearances because he did not want to handle people's identification. At a meeting with the disability management coordinator and the human resources manager on July 21, 2010, the applicant is recorded as describing this incident as a situation where someone brought in ammunition and it was pricking him, and he wanted to be sure his doctor was okay with him doing that. He says he asked the station duty clerk whether he should be doing this and should he wear gloves, and that he was thinking "gloves, gloves, gloves".

37After the applicant left for his lunch break, the station duty clerk advised the staff sergeant regarding what the applicant had said. As a result, a decision was made to relieve the applicant of all duties until his condition was better understood. As of April 22, 2010, the applicant began receiving short-term disability benefits.

IME Report

38Arrangements were made by the respondent for the applicant to attend an independent medical examination ("IME") with a psychiatrist in order to obtain a better understanding of the applicant's condition. The assessment took place on May 11, 2010 and the report was issued on May 25, 2010.

39The report diagnosed the applicant with obsessive compulsive disorder ("OCD"), on the basis that the applicant endorsed obsessions and compulsions which were excessive, pathological and significantly interfered with various aspects of functioning. The report states that the applicant developed obsessive concerns about the possibility of contracting HIV or a blood borne illness and that he would transmit his germs to his fiancée. The report states that the applicant became obsessed about his fear of contamination and he tried, unsuccessfully, to suppress or neutralize his pathological doubts, and felt compelled to ward off these ideas about contamination by repetitive hand-washing and other compulsions or rituals. His symptoms were identified as having progressed over time, and occupied over eight hours a day and interfered with various aspects of his life. The report also noted that there was a context to the development of the applicant's symptoms, which included being on probation as a police officer, having an upcoming wedding, and financial concerns with his family which rendered him vulnerable and anxious.

40The report identified the treatment for OCD as requiring a combination of both cognitive behavioural therapy ("CBT") and pharmacotherapy. CBT needed to be done by an experienced therapist, including other behavioural interventions such as exposure and response prevention ("ERP"). Pharmacotherapy included the use of serotonin re-uptake inhibitors ("SSRIs"), and the psychiatrist made some specific recommendations. At the time of the IME, the applicant was not engaged in CBT or ERP and had been taking a specific antidepressant for about a week, which the psychiatrist recommended be replaced.

41With regard to the issue of whether the applicant was safe to continue working as a police officer and the prognosis for his future ability to perform in this function, the report states that the applicant is "not fit to return to work as a police constable and would require medical accommodations". The report states: "The prognosis for a return to work as a constable without restrictions or accommodations is poor due to the nature of the medical condition and the type of work. It is highly likely that further exposure will increase the likelihood of reoccurrences. This is due to OCD being a chronic / relapsing condition."

42The report identified the applicant's current restrictions as being that he would find it difficult to have contact with people or to complete front-line work, as this work would increase his exposure to contamination fears. Significantly, the report states: "Given the nature of his profession, even with adequate response to treatment, he will experience frequent relapses. . . . Due to the chronic relapsing nature of OCD his prognosis for a full return to work as a constable is poor."

43The IME psychiatrist testified at the hearing, and was the only medical professional called by either party to give evidence. He described OCD as being comprised of obsessions, which are repeated unwanted irrational thoughts that persist, and compulsions, which are the things a person does to neutralize these thoughts. In order to diagnose OCD, it must be determined that both of these elements are excessive, in terms of not being a normal way of thinking or behaving. These thoughts and behaviours also need to cause the person distress and interfere with their usual functioning in more than one domain, i.e. work, recreation, social or family.

44He explained that OCD is treated by a combination of the use of SSRIs and a particular form of CBT that includes ERP. A person feeds their OCD disorder if they continue to involve their compulsive behaviours, such as getting their blood tested or engaging in compulsive hand washing. ERP involves training the person to choose to wait instead of act compulsively, which trains the brain not to be anxious and has the effect of starving the disorder. Interventions such as yoga, meditation or prayer are broad interventions to address anxiety, but do not address the core issue of the compulsive behaviours underlying OCD. Treating OCD is about changing the person's behaviour and response to their obsessive thoughts. In order to treat OCD, a person needs at least 18 to 20 sessions of CBT and to take SSRIs for at least a year, whether they are showing symptoms or not.

45The IME psychiatrist testified that, in general, OCD cannot be cured. In most people, it is a chronic, remitting disorder – it comes and goes. He testified that less than 10% of people with OCD never have a relapse. Relapses more often than not are related to stress, from whatever source. He testified that if the applicant now claims to have been cured of his OCD, he would say that the applicant is actually in remission. The IME psychiatrist analogized OCD to a scratch in a vinyl record that never goes away.

46In response to my questions, the IME psychiatrist stated that it would have been prudent for the respondent to ask him to do a follow-up assessment in mid-October 2010 before relying upon his report to dismiss the applicant from his position as a probationary constable. However, he qualified this answer by stating that this would have enabled him to make his assessment on the basis of the applicant's response to treatment. When it was put to him what the applicant had been doing to address his OCD, which involves yoga, meditation, prayer and exposure to physical contact and blood through wrestling, but not the use of SSRIs or going for CBT and ERP, the IME psychiatrist testified that he would say that the applicant may be asymptomatic, but has not pursued proper treatment. Even if the applicant has no symptoms, the IME psychiatrist testified that the applicant still needed to go through treatment for his OCD. In the absence of the applicant having pursued proper treatment, the IME psychiatrist stated that he would not recommend that the applicant return to work as a police constable, although this could be re-assessed once the applicant had received proper treatment. He testified that a re-assessment of the applicant in six months following the beginning of treatment would be a reasonable period of time to assess the behavioural outcome. Even then, he testified that only time would tell whether exposure to triggers would cause the applicant to relapse.

47The IME psychiatrist testified that, even with proper treatment, the applicant would always be at risk and this risk would not disappear. As a result, he still stands by the conclusion that he stated in his report, namely that given the nature of the profession of being a police constable and even with adequate response to treatment, the applicant would still experience frequent relapses. He testified that if he was asked to make a choice between the applicant returning to work as a police constable and returning to work in a position with accommodated duties, the preferred course would be accommodated duties.

The June 9, 2010 Mental Health Consultation Report

48Following the IME, the applicant was referred by his family doctor to a psychiatrist with the William Osler Health Centre for consultation. This consultation report was not provided to the respondent at the time of the events in question. The applicant's evidence is that he requested this consultation for his own personal purposes, and not for the purpose of sharing it with his employer. It does not appear that this psychiatrist had a copy of the IME report for the purpose of the consultation.

49Nonetheless, the consulting psychiatrist confirmed the diagnosis of OCD, on the basis that the applicant admitted to having obsessional fears of contamination followed by compulsions and ritualistic acts, and that this had caused interference in the applicant's work environment. The consulting psychiatrist made treatment recommendations similar to the IME psychiatrist. He recommended pharmacological intervention through the use of an SSRI, preferably at a high dose. He stated that this course was preferable to the current medication that the applicant was taking, and recommended that the applicant be given a low dose of an SSRI to start while he was being weaned off his current medication. The consulting psychiatrist also recommended that the applicant pursue CBT, with a behavioural component of exposure and response prevention.

50Of note in this consultation report is that the applicant gave a history of being obsessed with contamination that preceded his active employment as a probationary constable. He attributed the onset of this obsession to having unprotected sex in July 2009, after which he became preoccupied about being contaminated with HIV. The applicant reported that he had been tested twice for HIV, and that both tests were negative. The applicant also related an experience in December 2009, when he attended a strip club with some friends and had contact with a stripper. The applicant reported that after this incident, he was again obsessed with fears of being contaminated with a contagious disease.

51These prior incidents and obsessions were not reported by the applicant to the IME psychiatrist. Having now had the opportunity to review the consultation report prior to testifying, the IME psychiatrist expressed concern that the applicant had not shared this information with him during the IME assessment. He further expressed concern that the applicant's obsessions appeared to have migrated from sexual situations into the workplace.

The family doctor's July 21, 2010 response

52In early July 2010, the applicant was still off work and began contacting the respondent's human resources department about his status. On July 12, 2010, he reported that he had made a great improvement regarding his mental health, which had been verified by his doctor. The applicant requested an opportunity to prove that he was capable of returning to work.

53As a result, on July 20, 2010, the respondent sent a letter to the applicant's family doctor to follow up on the applicant's medical status. The letter to the family doctor included a brief summary of the IME report, including the opinion of the IME psychiatrist that the applicant was not fit to return to work as a police officer and that the prognosis for his return to that position was poor due to the nature of the medical condition and the type of work. The letter shared the opinion of the IME psychiatrist that it was highly likely that further exposure to triggers would increase the likelihood of reoccurrence of OCD, due to OCD being a chronic/relapsing condition. The letter noted the assessment of the IME psychiatrist that the applicant would find it difficult to have contact with people or to complete front-line work, which would increase his exposure to contamination fears, and that "given the nature of his profession, even with adequate response to treatment, he will experience frequent relapses".

54The letter indicated the applicant's view that his medical situation was progressing quite well and that he was eager to get back to work, but expressed concern that the applicant was progressing because he had been removed from the situation that was causing the issue in the first place and that a return to the environment may cause a relapse in his condition. The letter went on to request the family doctor's response to a series of specific questions.

55The family doctor responded promptly on July 21, 2010. In response to the first question, which was "given that [the applicant] is employed in a safety sensitive position, in your medical opinion is he capable of returning to full duties as a patrol constable?", the family doctor responded "no". In response to a question about the applicant's restrictions and limitations, the family doctor stated that the applicant was doing well due to medications "and also because he is not exposed to front line duties". The family doctor stated that, after discussion with the applicant, the applicant could be accommodated in the communication department or police reporting centre, but not a front desk type situation where he could be exposed to, for example, a bruised or bloodied complainant.

56In response to a question about the likelihood of relapse if the applicant were returned to his full duties as a patrol constable, the family doctor stated that "relapse is highly possible if he [is] exposed to front line duties".

57In response to a question about whether he had any recommendations on how to mitigate the applicant's symptoms or help him manage his symptoms, the family doctor stated that the applicant would benefit from CBT along with medications, but that CBT was not covered by OHIP. The family doctor stated that it would be helpful if there was any way that the respondent had resources to assist the applicant in getting CBT.

The respondent's decision to recommend termination

58There is a process under the Police Services Act that needs to be followed in order to terminate the employment of a probationary constable. Under s. 44(1) of the PSA, a municipal police officer's probationary period begins on the day he or she is appointed and ends on the first anniversary of the day of appointment (if that is later than when the officer completes training at the Ontario Police College). The applicant was appointed as a police constable on December 16, 2009. As a result, his one-year probationary period was due to end on December 16, 2010.

59The decision to terminate the employment of a probationary constable needs to be made by the police services board, but must be made during his or her probationary period. However, before doing so, the board needs to give the police officer reasonable information with respect to the reasons for termination and an opportunity to reply, orally or in writing, as the board may determine: PSA, s. 44(3).

60In practice, the chief of police, in consultation with a probationary constable's supervising officers, needs to make a decision about whether to recommend termination to the board. This recommendation needs to be presented to the board, which then decides whether to proceed in accordance with the recommendation. If so, there then needs to be time available for the probationary constable to be notified of the reasons for termination and be given an opportunity to reply, before any final decision is made by the board.

61In the applicant's situation, in order for a decision whether to terminate the applicant's employment during his probation period was to be made by the board before December 16, 2010, the evidence before me indicates that the recommendation by the chief of police would need to be put before the board by the time of its October 2010 meeting, in order to allow time for the board to consider the recommendation and afford the applicant with notice and an opportunity to reply before the final decision was made.

62The applicant had worked as a probationary constable for about four months before he went off on medical leave. If a probationary constable is not meeting expectations, the practice of the respondent is to prepare a performance evaluation at about the six-month point of the probationary period and identify the areas in which improvement is required. In the applicant's case, based upon the observations of the applicant's coach officer and his superiors, there were concerns about whether the applicant was meeting expectations. As a result, in June 2010, a draft performance evaluation and performance improvement plan was prepared for the applicant. This was never shared with the applicant, as he remained off work. Further, while there may have been some performance issues that did not arise from the applicant's disability, it is acknowledged in an e-mail from the 20 Division superintendent dated July 6, 2010 that "the majority of the identified performance issues have a link to [the applicant's] 'germ' issue".

63Applicant counsel was critical of the 20 Division superintendent for referring to the applicant's medical condition and its manifestation in the workplace as a "germ" issue, as minimizing and diminishing the applicant's disability. He also was critical of the respondent's failure to respond to this language. I share these concerns. The respondent states that the applicant's medical diagnosis of OCD was not shared with the 20 Division superintendent and the other supervising officers in order to protect the applicant's confidentiality. I understand and respect that. At the same time, the 20 Division superintendent was aware that the applicant was absent on medical leave following issues arising from his fears of contamination due to exposure to bodily fluids, and a more appropriate way of referring to this issue would have been to reference the applicant's medical issues generally.

64In any event, the evidence indicates that during the summer of 2010, the respondent considered its options with regard to the applicant's employment status. Following the IME report, a legal opinion was obtained from external counsel. While the legal opinion itself is not before me, as it is protected by solicitor-client privilege, internal e-mails in evidence indicate that the subject discussed in the legal opinion was "the impact of disability on the section 44 probationary process".

65Discussions ensued over the summer amongst senior officers, internal legal counsel and human resources representatives regarding whether, on the basis of the available medical information, the applicant's disability could be accommodated in a police constable position. The ultimate conclusion reached through the course of these discussions was that his disability could not be accommodated. The respondent's internal legal counsel states that this conclusion was reached on the basis that the prognosis for the applicant was poor, and that even with proper treatment, his condition was relapsing and recurring, especially when exposed to stress or bodily fluids. As a result, it was concluded that the respondent would have no opportunity to assess the applicant's performance as a probationary constable, and a decision was made to recommend termination.

66The evidence of the respondent witnesses is mixed as to whether or not the respondent considered whether the duty to accommodate under the Code operated to permit the extension of the probationary period beyond the one year set out in s. 44 of the PSA. The respondent's internal legal counsel was quite clear in his evidence that this was considered. His evidence is that it was discussed internally in the summer of 2010 that, if the duty to accommodate dictated some modification to the probationary period, then the Code prevails over the PSA and it was open to the police services board, the police association and the officer to extend the period. For example, he testified that if the respondent were provided with medical evidence that an officer's disability could be treated and that there would be improvement to bring the officer to the point where with accommodation they could perform the essential duties of the position, then an extension of the probationary period would be considered and may be obligated by the Code. On the other hand, if the prognosis was that the officer's disability was going to get worse or if there was no reasonable possibility that it was going to improve such that there would be no opportunity to assess the officer's performance during the probationary period, then the probationary period would not be extended. The evidence of internal legal counsel was that the applicant fell into the latter category.

67On the other hand, the evidence of the human resources manager, who was involved in these discussions, was more equivocal. In examination-in-chief, the human resources manager testified that the probationary period under the PSA cannot be extended, so the chief of police would need to go to the board with his recommendation in October 2010. On cross-examination, she said that she never turned her mind to considering options whereby the applicant could complete his probationary period outside the 12-month period, because this cannot be done. She later repeated that she never considered options for extending the applicant's probationary period beyond December 16, 2010. Then, in response to my clarification questions, the human resources manager testified that the senior management group expressly considered whether the 12-month probationary period could be extended by the duty to accommodate under the Code. While she testified that it was unclear whether the respondent was able to do this, she stated that the senior management group did consider the possibility that they might be able to do this.

68The chief of police, who also was involved in these discussions, testified that he does not recall any discussion about extending the applicant's probationary period, and was unequivocal in his evidence that this was not a consideration. The 20 Division superintendent also testified as to his understanding that the 12-month probationary period could not be extended.

The September 9, 2010 meeting and letter and ensuing correspondence

69By the latter part of August 2010, the respondent had made the decision to proceed with a recommendation for the termination of the applicant's probationary position. A letter was prepared to provide to the applicant at a meeting scheduled for September 9, 2010.

70On August 26, 2010, the human resources manager contacted the applicant to advise him of the meeting. During this discussion, the applicant advised the human resources manager that his doctor anticipated that he would be able to return to patrol duties in the near future; in the meantime he could work, but just needed some alternate duties for a period of time. The human resources manager advised the 20 Division superintendent and internal legal counsel about this discussion in an e-mail that same day, and expressed her view that the applicant would not accept the respondent's position that he was medically unable to complete his probationary period and would likely not be able to perform the duties of a police officer in the future.

71The meeting on September 9, 2010 was attended by the applicant, the 20 Division superintendent and the respondent's internal legal counsel. At this meeting, the applicant was presented with a letter dated September 9, 2010 from the chief of police. With regard to the recommendation to terminate the applicant's probationary status, the letter states:

I am writing to advise you of the position of the Halton Regional Police Service regarding the impact of your current disability on your status as a Probationary Constable. The medical reports that we have received from your doctor and from an independent medical assessor indicate that you suffer from a chronic / relapsing medical condition that restricts you from interacting satisfactorily with members of the public and your fellow officers. The prognosis for a return to work as a Probationary Constable without restrictions or accommodations is poor due to the nature of the condition and the type of work required.

. . . Briefly put, the Service has come to the conclusion that you cannot perform the essential duties of a Probationary Constable. This is not meant as a criticism. It is a factual statement supported by observation and medical evidence. Moreover, there does not seem to be any form of reasonable accommodation that would allow you to complete your training and to perform the essential duties of your job.

For these reasons, the Service is of the view that it is appropriate to terminate your status as a Probationary Constable. Subject to consideration of any response you may have, a recommendation to this effect will be made in due course to the Halton Regional Police Services Board. Naturally, such a termination would not preclude the possibility that you might re-apply for another probationary position in the future should there be a material change in your medical condition.

72The letter expressly invited the applicant to put his position in writing, with supporting medical information, if he took issue with the respondent's understanding of the impact of his disability on his ability to perform the essential duties of a probationary constable engaged in regular patrol duties or with the conclusion that there was not a way of accommodating his disability that would allow performance of those functions.

73In addition, without acknowledging any legal obligation to do so, the letter put forward the option of attempting to accommodate the applicant in a civilian role. If the applicant was interested in pursuing that option, then the first step was identified as communicating with the applicant's doctor to determine the applicant's functional restrictions that would need to be accommodated.

74The letter asked the applicant to respond in writing by September 17, 2010.

75The evidence of the respondent's internal legal counsel is that after the applicant was given an opportunity to review the letter, it was emphasized to him that the respondent had medical evidence that he was suffering from a medical condition that was chronic and impaired his ability to perform, and that the prognosis was poor. It was stated that there did not seem to be any evidence that he would be able to complete his probationary period satisfactorily even with accommodation.

76The evidence of internal legal counsel is that the applicant did not say at the meeting that he was ready to get back on the road, nor did he take issue with the medical assessment as stated in the letter. He states that the applicant said that there was a lot going on in his life and that there had been a lot of stress lately, but he hoped he would be better soon. The applicant said at the meeting that he would have a letter back to the chief of police the next day, but was encouraged to take time to consider his options and consult with a lawyer or the police association before he responded. The evidence of internal legal counsel is supported by his contemporaneous notes of the meeting, and by the evidence of the 20 Division superintendent.

77The applicant acknowledged in his evidence that as of the time of the September 9, 2010 meeting, he was still not able to go back out on the road and perform front-line duties. He also acknowledged that he had no medical information at the time to contradict the respondent's view that he was unable to be accommodated to perform the duties of a front-line probationary police constable.

78The applicant's evidence is that he understood that he had been "fired" as a result of the September 9, 2010 meeting, and that he did not have a choice. He testified that he was completely demoralized when he got the September 9, 2010 letter. There is no dispute between the parties that the applicant was asked to turn in his badge and gun following the meeting.

79The applicant takes issue with the fact that no representative of the police association was present at the September 9 meeting. The respondent states that this is not required under the collective agreement. Whether or not that is the case is not an issue for me to determine. There is no dispute that a police association representative was available to speak with the applicant following the meeting, and did so.

80The applicant responded to the September 9 letter by letter dated September 13, 2010 and received by the respondent on September 15, 2010. In this letter, the applicant requested a civilian role with the police service. He states in this letter: " . . . due to unforeseen circumstances, I seek a change in my appointment with the service". He authorized the respondent to communicate with his doctor "in order to accommodate [him] in a civilian role". The applicant's letter does not take issue with the assessment as set out in the respondent's September 9, 2010 letter regarding the impact of his disability on his ability to perform the essential duties of a probationary constable position engaged in regular patrol duties, or with the conclusion that there was no way of accommodating his disability to enable him to perform those duties.

81The applicant testified that he knew he was not 100% at the time he received the September 9, 2010 letter, although he was "getting there". He testified that he did not dispute the statements made in the September 9 letter because that would have been premature, as he was not yet 100%. He testified that he was in "complete fear" of making more enemies at the police service, and so he decided just to go along with what was being offered.

82Following receipt of the applicant's response, the chief of police wrote a further letter to the applicant dated September 17, 2010 to confirm his understanding that the applicant's intent was to resign his appointment as a probationary constable effective immediately, and to enter into the process to be assessed for modified employment in a civilian position. If this was not the case, the applicant was asked to advise the chief of police immediately in writing. The applicant did not respond to this letter.

83The chief of police testified that a person cannot be a police officer and also hold a civilian position at the same time. He testified that a police officer could be temporarily accommodated by performing duties that are usually handled by a civilian employee (for example, when the applicant was accommodated in early March 2010 and on April 21, 2010), but in such situations the person would still retain her or his status as a police officer. If the applicant was not resigning his probationary constable appointment and merely wanted temporary accommodation by performing civilian duties, the chief of police states that he would have proceeded with his recommendation to the board to terminate the applicant's position. This was not done because the chief of police understood the applicant to have resigned his appointment, both on the basis of his September 13, 2010 letter and due to his failure to take issue with the chief of police's September 17, 2010 letter.

84The applicant takes the position in this proceeding that he never resigned his appointment as a probationary constable, because he never expressly said this to the respondent. I do not accept this. In my view, the applicant's September 13, 2010 letter is clear that he was seeking "a change in [his] appointment with the service". This can only be interpreted as a change in appointment from being a probationary constable to being a civilian employee. Further, the applicant's failure to respond to the chief of police's September 17, 2010 letter confirming the respondent's understanding on this point represents an acknowledgement that he was resigning his appointment as a probationary constable, particularly since the respondent relied upon the applicant's failure to respond both not to pursue the step of seeking termination of his probationary position and to pursue obtaining employment for the applicant in a civilian position.

85Further, at a meeting with the respondent's human resources manager on September 30, 2010 to discuss the potential for the applicant to move into a civilian position, it was expressly confirmed with him that the respondent was moving forward with a civilian job for the applicant and that he would not be returning to policing unless he re-applied and went through the process. This is supported by contemporaneous notes of this meeting, which also indicate that the applicant said that he understood this.

86Still further, on November 1, 2010, the human resources manager wrote to the applicant to advise him that approval had been received to appoint him as a civilian member of the police service on a continuing full-time basis effective November 1, 2010, with an initial temporary assignment to perform the job duties of a distribution services clerk. In the meantime, the respondent would continue to search for a suitable position to which the applicant would be assigned on a continuing full-time basis. The opening paragraph of this letter states:

In a letter dated September 13, 2010, you indicated your intention to resign from your appointment as a Probationary Constable, and to subsequently request an alternative civilian position within the Halton Regional Police Service that would address your continuing medical restrictions.

87This letter was signed by the applicant on November 1, 2010 to indicate that he had accepted the offer of employment according to the terms and conditions outlined, and was returned to the respondent on November 2, 2010.

Finding a civilian position

88After the applicant indicated his interest in obtaining a civilian position with the respondent, it initially was decided to pursue the possibility of having the applicant evaluated for the position of communications operator, who is responsible for managing incoming 911 calls and for dispatching police officers in emergency and non-emergency situations. The applicant participated in initial testing on October 8, 2010. However, shortly thereafter, the hiring of new communications operators and other civilian positions was put on hold due to budgetary constraints.

89On November 1, 2010, the applicant was offered a temporary full-time position as a distribution services clerk, to replace an employee on an extended leave. The applicant was advised that this temporary position was to last until a permanent full-time vacancy in a more suitable civilian position became available or until the incumbent returned from leave.

90The applicant's start date in this position was delayed at his request to permit his participation in religious observances. The applicant ultimately commenced work in this position on November 22, 2010.

91In his evidence before me, the applicant described the distribution services clerk position as being a "courier" position, that required him to deliver packages to his old platoon. He states that there was a lot of pointing and laughing when he went into his old platoon in this role, and that one officer said, "oh, this is what you're doing now". On cross-examination, the applicant testified that the officers also said, "get out of my way, I've got real police work to do". The applicant did not identify any specific officer who was the source of this conduct or these remarks. The applicant states that the human resources manager acknowledged that he had been receiving harassment.

92The evidence of the human resources manager is that the applicant met with her on November 22, 2010 to advise that he found the distribution services clerk position to be demeaning and depressing, and that he preferred to be at home with no pay and wait to be approved for long-term disability. She states that the applicant told her that he found the position to be embarrassing, and she recalls the applicant telling her that someone had said, "oh this is what you're doing now". She states that the applicant did not advise her of the other alleged conduct. She states that the applicant did not describe what he was experiencing as harassment, and she did not view the one comment he told her about as harassment. She denies telling the applicant that she acknowledged he was being harassed. She further states that the applicant did not ask her to intervene.

93On November 26, 2010, the applicant also spoke with the disability management coordinator. Her evidence is that the applicant said that he would not continue to work as a distribution services clerk, although he was not resigning from his employment. She states that the applicant identified his major concern as being his family's perception that this position was beneath him. She testified that she recalls the applicant saying that someone had said, "oh this is your job now" and that the applicant was not happy about that, but states that this did not seem to be a major issue for the applicant at the time. She further states that the applicant did not say to her that he was being harassed.

94The disability management coordinator has detailed notes of this meeting, which record the applicant as telling her that he had to work with his platoon on the previous Monday (which was November 22) and they made comments about him being the mailman, and that a "secretary" that day (on November 26) said, "oh is this your job now?" There is no record of the applicant telling either the human resources manager or the disability management coordinator that officers had been pointing and laughing at him, or that an officer told him to get out of the way because he had real police work to do.

95The applicant states that during his meeting with the disability management coordinator, she tried to convince him to resign from his position with the respondent police service and explore opportunities elsewhere. The disability management coordinator's evidence is that, when the applicant said that he would not continue to work as a distribution services clerk, she reminded him that it might be some months before a medically suitable civilian vacancy arose, and even then it might not satisfy his family's views on what was appropriate for him. She states that she suggested to the applicant that he might consider employment outside of the police service if he felt those family pressures were likely to continue to be a problem. She states that the applicant said in response that he was content to wait for a more attractive civilian vacancy to arise, since he was not subject to any immediate financial pressures. The evidence of the disability management coordinator is supported by her contemporaneous notes of this meeting.

96At the conclusion of the November 26 meeting, the disability management coordinator states that she advised the applicant that she would have to consult with the human resources manager regarding the implications of the position he was taking, i.e. declining available work that was within his medical restrictions. She states that the applicant confirmed that although he was not resigning from his civilian position, he would not attend work for his next scheduled shift. She states that at no time did the applicant state or suggest that he was medically incapable of performing the available work to which he had been assigned.

97An internal meeting was held at the respondent police service on November 30, 2010, at which it was determined that the applicant's failure to attend and perform available civilian work that was within his medical restrictions would be treated as insubordination. A telephone conference call was held with the applicant at 3:40 p.m. on November 30, during which the applicant was advised by the human resources manager that the police service expected him to work as a temporary distribution services clerk pending the identification of a permanent position. The applicant asked what would happen if he and his family discussed the matter and decided that he could not return to the job. The applicant was advised that failure to attend work in the distribution services position could lead to his dismissal.

98Later that same day, the respondent received a letter from the applicant's family doctor, stating that he "recommended rest from work indefinitely" and that the applicant would be re-assessed every two to four weeks. By letter to the applicant dated December 1, 2010, the human resources manager stated that the family doctor's letter was not sufficient to support the applicant's absence from work, and that failure to return to duty on December 5, 2010, would be taken as a resignation from employment.

99By letter dated December 1, 2010, the applicant's family doctor provided a further letter stating that the applicant was "unable to work due to his mental condition" as he was suffering from "acute adjustment reaction". The letter stated that the applicant would be re-assessed in two weeks. This letter was deemed by the respondent to be sufficient to support the applicant's absence from work.

100By letter dated December 15, 2010, with the applicant's consent, the respondent sought further information from the applicant's family doctor regarding the applicant's medical condition. The applicant's family doctor responded the next day to advise that the applicant would be off work until February 2011, but was otherwise unresponsive to the specific information sought by the respondent. After requesting and receiving a copy of the job description for the distribution services clerk position, the applicant's family doctor wrote a further letter dated December 22, 2010 stating that the applicant could not mentally focus on the duties of the distribution services clerk position at that time and that he would be re-assessed in January 2011. Once again, the family doctor's letter was otherwise unresponsive to the specific information sought by the respondent.

101Meanwhile, on December 17, 2010, the respondent received a letter from a local Member of Parliament on the applicant's behalf. This letter states that the applicant had advised the M.P. that day that he believed he would shortly be in a position to return to his role as a police constable and "that is his goal". The M.P. stated that he understood December 17, 2010 was the applicant's one-year anniversary of his appointment with the respondent police, and thus his probationary status was now at an end. The M.P. further advised that the applicant had met with his family doctor the previous day and was advised that he was "almost fully fit to continue his role as a Police Constable". The M.P. concluded by stating that once the applicant had been cleared by his family doctor, the applicant would have no difficulty attending a further IME for a second opinion that he is fully capable of resuming his responsibilities as a police constable.

102The chief of police responded by letter dated January 10, 2011, advising that the applicant had resigned his position as a probationary constable and had elected to accept a civilian position with the respondent police service. The relevant correspondence supporting this position was attached to the letter. The chief of police stated that when the applicant resigned his probationary constable position by letter dated September 13, 2010, the statutory probation period in s. 44 of the PSA ceased to apply to him, as he was now a civilian member of the police service. The chief of police stated that if it was the applicant's goal to resume a career as a police officer, the proper course would be for him to re-apply.

103The applicant remained absent from the distribution services clerk position through January and February 2011, with no further update provided. On March 7, 2011, the respondent sent a letter to the applicant seeking medical support for his continued absence. The applicant's family doctor responded on March 16, 2011 to advise that the applicant's acute anxiety disorder had resolved. No physical or mental restrictions were identified.

104As a result of receiving this medical information, the respondent resumed its review of civilian vacancies in order to identify an appropriate civilian position for the applicant. On May 10, 2011, the respondent discussed with the applicant a full-time continuing position as a data entry clerk. The respondent obtained the consent of the police association to offer this job to the applicant without posting the vacancy under the civilian collective agreement.

105In the course of the May 10, 2011 meeting, the applicant stated that he felt fully recovered from his prior medical issues. The human resources manager states that she reminded the applicant of the chronic relapsing OCD diagnosis that had been the outcome of the IME. She states that the applicant responded by saying that he did not believe that he had ever suffered from OCD, and that another psychiatrist he had seen said he was "fine". No report from this psychiatrist was provided to the respondent prior to the commencement of this Application.

106The data entry clerk position was offered to the applicant by letter dated May 10, 2011. The applicant returned a signed copy of this offer with the handwritten proviso, "subject to my rights under my human rights complaint to be instated to a police constable position and my right to seek more appropriate accommodation at a future date". The applicant commenced work in the data entry clerk position on May 30, 2011, and remains in that position to date.

107The Application is dated May 13, 2011, and was served on the respondent on June 16, 2011.

The applicant's evidence regarding his medical condition

108The applicant's evidence is that he "turned the corner" and started to feel better near the end of September 2010, shortly after he got married. He states that he developed a good strategy with his family and his doctor to "attack things head on" and through the use of interventions such as yoga, meditation and prayer. He states that he learned to cope with and manage his OCD, and he has discontinued his medications. He also states that he received considerable support from his fiancée, who is a pharmacist, and who helped alleviate his fears of contamination and disease transmission. He states that he resumed wrestling, during the course of which he was exposed to blood on a regular basis without ill effect.

109The applicant states that he communicated to the respondent that he was feeling better. This is not supported by the evidence before me in relation to the late September 2010 time period. In fact, on September 30, 2010, which is when the applicant states that he was starting to feel better, he attended a meeting with the human resources manager and the disability management coordinator to discuss potential civilian job opportunities. From the notes of this meeting, the human resources manager asked the applicant where he was at at that time, and applicant is recorded as saying that he did not think that it was a good idea for him to go back out on the road and that they needed to look at things that did not involve him being a first responder. Indeed, at that meeting, the applicant is recorded as saying that he did not even think that it would be a good idea for him to work on the front desk, as he would still be waiting for someone to come in bloody.

110There also is no medical evidence before me to support that the applicant was ready to resume the duties of a probationary police constable at that time. The first medical documentation that possibly could be regarded as supporting this is the employee health information form completed by the applicant's family doctor on March 16, 2011, in which the applicant's job title is referenced as "police constable" and it is indicated that he has no physical or mental limitations. However, this form only refers to the nature of the applicant's illness as being "acute adjustment disorder", and does not address his diagnosis with OCD.

111In evidence before me is a letter from the applicant's family doctor dated April 7, 2011. In this letter, the family doctor recounts some of the history of the applicant's medical condition. The family doctor states that on December 16, 2010, the applicant "showed an improving trend in his mental status" which was reinforced with relaxation techniques. On January 19, 2011, the family doctor states that the applicant "expressed improvement in his mood" and that "he was attending the gym daily and felt he is improving with his anxiety". On March 16, 2011, the family doctor reports that the applicant "expressed normal mood and felt he was 'cured' by practising yoga and meditation". The family doctor concluded his letter by stating: "OCD is a chronic and relapsing disorder but I feel at this present moment he is fit to go back to work. Alternatively, he could be reassessed by [the IME psychiatrist] to agree or refute this judgment". Notably, there is no clear statement in this letter that the applicant was fit to return to the position of probationary police constable. As previously stated, the family doctor did not testify before me, so I have no testimonial evidence to clarify the family doctor's statements or the basis for his evaluations either in the March 16, 2011 employee health information form or in the April 7, 2011 letter.

112In any event, the family doctor's April 7, 2011 letter was not provided to the respondent prior to the commencement of this Application. The applicant states that he was waiting for an assessment by a psychiatrist before providing this letter. An assessment by a psychiatrist took place on May 11, 2011. This is the same consulting psychiatrist who assessed the applicant on June 9, 2010. The consulting psychiatrist's May 11, 2011 report records the applicant as saying that he was "doing much better", that his mood was "quite stable", and that he "no longer has any obsessional thoughts and denies having any fears of contamination". The consulting psychiatrist concludes:

[The applicant] does appear to be doing much better. He denies having any obsessional fears which he had in the past. He has been able to function fairly well. Denies any neurovegetative symptoms of depression. I do strongly believe that he is psychiatrically stable enough to return back to the road and as he is currently not having any obsessional symptoms I do not believe that any of his obsessional thinkings that he had in the past would have any impairment in his daily living activities or also occupational activities.

113The consulting psychiatrist was not called to testify before me.

114The applicant testified that the consulting psychiatrist's report was provided to the respondent, but there is no documentary evidence to indicate when or how this was done. The respondent's evidence is that the consulting psychiatrist's report (and the family doctor's April 7, 2011 letter) were only received in the context of this ongoing proceeding.

115At the September 30, 2010 meeting with the applicant, there was discussion about the respondent arranging for a course of 15 to 20 sessions of CBT which the applicant would attend sometime prior to his return to work. In the latter part of November 2010, the respondent took steps to make arrangements for CBT sessions for the applicant, with the cost to be paid for by the respondent police service. The disability management coordinator's evidence is that this was communicated to the applicant. The applicant did not ever attend any CBT sessions.

Evidence of risks due to applicant's OCD

116The applicant's coach officer provided the most specific and concrete evidence regarding the health and safety risks posed by the applicant's OCD. With regard to the incident on February 24, 2010, when the applicant and his coach officer had apprehended a young offender and the applicant was triggered when the handcuffs were taken off, the coach officer testified that the applicant became very withdrawn, was not focusing and "kind of had a blank stare". The coach officer testified that, if at any point the young offender had become violent or aggressive, the applicant was in no position to deflect this physically or defend himself. Indeed, the coach officer testified that the young offender himself made a comment that he could have hit the applicant at any time. The coach officer also testified that the applicant's lack of focus led to him not performing a thorough search of the young offender, which also raises health and safety issues.

117The coach officer testified that any time a concern came up about possible disease transmission, the applicant became very focused and pre-occupied with thoughts of possibly coming into contact with an infectious disease. In this state, the applicant was unable to function in the duties he had to do and left himself open to getting injured. The coach officer referred specifically to the regular physical contact required when making an arrest, and that there was always a chance for the person to become violent. He also made specific reference to domestic violence situations, where a police officer often is in a residence for investigation and can be exposed to blood or bodily fluids, and the potential for the situation to escalate and become violent. He testified that if the applicant is pre-occupied with fears of contamination, then he would not be able to assist or intervene if the situation became violent, which could lead to health and safety risks for himself, other officers or members of the public.

118I also heard evidence about police officers being called upon as first responders to traffic accidents, where they can be exposed to a significant amount of blood or other bodily fluids and where the need for immediate intervention can be critical. Police officers also can be called upon to address situations where a person is threatening suicide or has attempted suicide, where there can be exposure to blood or other bodily fluids and where immediate intervention is required and is critical. If the applicant became withdrawn or unfocused due to his fears of contamination and failed to take timely steps to intervene, the result could be injuries to members of the public becoming more serious or even loss of life.

119I also heard evidence regarding situations where a member of the public is threatening an officer with a knife, where officers are taught to maintain a 21-foot "safe space". If the applicant hesitated or lacked focus in such a situation due to fear of contamination, this "safe space" could be violated by the person with resulting risk of injury or death to the applicant and potentially other police officers or members of the public.

120In this proceeding, the applicant does not take the position that he could have been accommodated in the position of a front-line probationary police constable while his OCD was active. Rather, his position is that, with the interventions he has taken and over the course of time, his OCD has been "cured" or has reached the point where he no longer has obsessional fears of contamination, and thus he no longer poses any health and safety risk as a consequence of OCD.

ANALYSIS AND DECISION

121As stated at the hearing, I will address the issues as framed in the Application. These are that the respondent discriminated against the applicant because of his disability:

a. By terminating his employment as a probationary constable because of his OCD;

b. By failing to accommodate the applicant to the point of undue hardship in an appropriate civilian role; and

c. By failing to reinstate the applicant to a constable position given he has medical evidence to support his return to full policing duties.

122I will address each issue in turn.

Notification re intention to recommend termination

123In my view, the first issue is not properly framed. The applicant's employment as a probationary constable was never terminated. As previously indicated, termination of a probationary constable under s. 44 of the PSA is a decision that can only be made by the police services board on notice to the probationary constable and with an opportunity to respond orally or in writing. That never happened.

124Rather, on September 9, 2010, the applicant was advised by the chief of police of his intention to recommend termination of the applicant's status as a probationary constable on the basis of his medical condition, was afforded an opportunity to provide contrary medical evidence, and was offered an opportunity to pursue a civilian position. This process did not proceed further because the applicant chose to pursue a civilian position and, as I already have found, resigned his status as a probationary constable.

125Nonetheless, it is clear on the evidence before me that the respondent made a decision in the period leading up to September 9, 2010 to inform the applicant that it intended to recommend termination of his status as a probationary constable, and made this decision on the basis that it could not accommodate his disability. There is no dispute before me that the applicant was diagnosed with OCD and that this constitutes a "disability" within the meaning of the Code. Further, given that the decision made by the respondent expressly was made on the basis of the applicant's disability, there is no question that this constitutes differential treatment because of disability.

126In my view, the real issue in this case falls to be resolved under s. 17 of the Code, which provides in sub-s. (1) that "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". This is qualified by sub-s. (2), which states that "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."

127Accordingly, the issue before me, in the specific circumstances of this case, is whether the applicant was incapable of performing or fulfilling the essential duties or requirements of a probationary constable. In making that determination, I need to consider whether I am satisfied that the applicant's needs arising from his disability could not be accommodated by the respondent without undue hardship, and specifically in this case considering health and safety requirements.

128The applicant does not take the position before me that, while his OCD was active and he was experiencing obsessional fears of contamination from exposure to blood and bodily fluids and evincing compulsive behaviours in response to these fears, he was capable of performing or fulfilling the essential duties or requirements of being a probationary constable. That is clear from the evidence before me, and particularly the evidence relating to the impact upon the applicant of the incident on February 24, 2010 involving the young offender and the incidents culminating in the April 15, 2010 incident after which the applicant himself asked to be relieved from front-line duties. Nor is the applicant taking the position before me that, while his OCD was active and he was experiencing symptoms, there was any way that the respondent could have accommodated him in order to enable him to perform or fulfill the essential duties or requirements of a probationary constable.

129Instead, the applicant argues that the respondent made its decision to inform him of its intention to recommend termination of his probationary constable status too hastily and on the basis of insufficient medical evidence, and ought to have waited a longer period of time in order to assess whether the applicant's condition and prognosis had improved, including consideration of whether to extend the 12-month probationary period or to allow the applicant to re-do his probationary period. By failing to do so, the applicant submits that the respondent violated both the procedural and substantive components of the duty to accommodate.

130There is no doubt that a breach of the procedural component of the duty to accommodate can provide a basis for an independent finding of a violation of the Code: see ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC); Ouji v. APLUS Institute, 2010 HRTO 1389; Machado v. Terrace Ford Lincoln Sales Inc., 2011 HRTO 544.

131The relevant principles relating to the procedural component of the duty to accommodate were discussed by the Divisional Court in ADGA Group Consultants Inc. v. Lane, supra, specifically at paras. 106 to 111. In short, it is stated that the procedural component of the duty to accommodate involves obtaining all relevant information about the employee's disability, including current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. A respondent is required to seriously consider how an employee can be accommodated, and a failure to give sufficient thought or consideration to the issue of accommodation or what steps could be taken to accommodate constitutes a failure to satisfy the procedural component of the duty to accommodate. Further, in assessing whether an employer has met this duty, its efforts must be assessed at the time of the alleged discrimination. An employer may not use after-acquired evidence to support its view that an employee could not be accommodated, as such evidence is only relevant to remedy.

132In terms of the relevant principles applicable to the substantive component of the duty to accommodate, these also were discussed by the Divisional Court in ADGA Group Consultants Inc. v. Lane, supra, specifically at paras. 112 to 118. The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee's disability without undue hardship. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations. To meet the test of undue hardship, the risk must be serious and cannot be established by relying on impressionistic or anecdotal evidence or after-the-fact justifications. An employer must show that it was impossible to accommodate the employee's disability without risking reasonable safety.

133It is in the context of these principles that I need to assess what the respondent did leading up to the decision it communicated to the applicant on September 9, 2010.

134Following the February 24, 2010 incident, and prior to any medical diagnosis of OCD, the respondent arranged for an information session for the applicant to ensure he was properly informed about the risks of exposure to disease and the precautionary steps he could take. The applicant also was given alternate duties for a short period of time, while retaining his probationary constable status. After resuming his front-line duties and continuing to experience difficulties, the respondent, at the applicant's request, relieved him of his front-line duties and assigned him to a civilian role at the front desk, while still maintaining his probationary constable status. When the applicant continued to experience difficulty even in that role, he was relieved of this duty while the respondent sought better clarification of his medical condition.

135This led to the applicant being sent for an IME in May 2010, which resulted in the diagnosis of OCD and recommendations for treatment. However, the IME report stated that the prognosis for return to work as a police constable without restrictions or accommodations was poor due to the nature of the medical condition and the type of work, and that "it is highly likely that further exposure will increase the likelihood of reoccurrences . . . due to OCD being a chronic / relapsing condition". It was stated that front-line work and contact with people would be difficult for the applicant as it would increase his exposure to contamination fears. It was stated that "given the nature of his profession, even with adequate response to treatment, he will experience frequent relapses" and that the prognosis for a full return to work as a police constable was poor due to the chronic / relapsing nature of OCD.

136The respondent did not immediately act upon the results of the IME. Rather, it sought legal advice from external counsel and engaged in internal discussions regarding the appropriate course of action. When the applicant contacted the disability management coordinator in July 2010 to say that he had made a great improvement over the preceding two months and that this could be verified by his family doctor, the respondent took steps to inquire as to the family doctor's opinion. The family doctor did not share the applicant's view as to the extent or implications of any improvement he had made. The family doctor attributed the applicant's improvement to medication and the fact that the applicant was not being exposed to front-line duties. He reported that relapse was "highly possible" if the applicant was exposed to front-line duties.

137It is only after receiving this feedback from the applicant's family doctor that the respondent made the final determination to inform the applicant of its intention to recommend termination of his probationary constable status.

138It is submitted by the applicant that, when he told the human resources manager on August 26, 2010 that his doctor anticipated that he would be able to return to patrol duties in the near future, this should have prompted further inquiries by the respondent. I do not agree. The respondent had heard this from the applicant before, and just over a month before this had made inquiries of his family doctor. The doctor did not say that the applicant would be able to return to patrol duties in the near future or even intimate that this might be a possibility. He said that the applicant was doing better specifically because he was not being exposed to front-line duties and that relapse was highly possible if he was exposed to front-line duties. The doctor did not say that this situation might change and that the respondent should check back with him again in one month. The applicant did not provide any medical documentation to substantiate what he told the human resources manager on August 26, 2010, even when he was specifically invited to do so in the September 9, 2010 letter.

139It is submitted that the applicant ought to have been sent to be re-assessed by the IME psychiatrist or some other qualified specialist. It is true that the IME psychiatrist testified that he would have been able to provide a more accurate prognosis if he had been able to re-assess the applicant, that he did not know that the IME report would be relied upon by the respondent to terminate the applicant's probationary constable status, and that it would have been prudent for the respondent to seek a re-assessment. At the same time, the IME psychiatrist did not deviate from the opinion expressed in his IME report that given the nature of the profession and even with adequate response to treatment, the applicant would still experience frequent relapses and that his prognosis for returning for a full return to work as a police constable was poor due to the chronic/ relapsing nature of OCD.

140The IME psychiatrist did not say in his IME report that the applicant should be re-assessed. Nor did the applicant's family doctor say that the applicant should be re-assessed. In this regard, I note that in his April 7, 2011 letter (which was not provided to the respondent), the family doctor expressly invited a re-assessment by the IME psychiatrist to agree with or refute the family doctor's opinion, at that time, that the applicant was fit to go back to work. So the family doctor was clearly capable of articulating the potential for a re-assessment, if it was felt one was warranted. But no such request was made by the applicant or his family doctor at any time prior to September 9, 2010, or in response to the invitation in the September 9, 2010 letter to provide any contrary medical information, or prior to the applicant's resignation as a probationary constable.

141Further, it is important in my view to note the evidence of the IME psychiatrist that re-assessment would be appropriate six months after the commencement of treatment. Treatment for OCD involves pharmacological intervention through the use of an SSRI and a course of CBT involving ERP. This is not just the opinion of the IME psychiatrist, but is also supported by the report of the consulting psychiatrist seen by the applicant in June 2010. The applicant did not use an SSRI, but instead continued to use the medication that had been prescribed by his family doctor, and then at some point discontinued the use even of that medication. The applicant also did not pursue CBT, even after this was offered to him at the respondent's cost in November 2010. As a result, on the IME psychiatrist's own evidence, the circumstances in which a re-assessment would be appropriate never materialized.

142It is submitted that, as CBT is expensive and not covered by OHIP, the respondent should have offered to pay for this treatment at an earlier time and prior to making the decision to inform the applicant of its intention to recommend termination of his probationary constable status. No authority was cited to support the proposition that, as part of the duty to accommodate, an employer is required to pay for treatment. I have been asked by the intervenor not to make any finding that would preclude the possibility that, in appropriate circumstances, an employer may be required to take active and positive steps to facilitate an employee receiving appropriate treatment for a disability. I will go one step further, and make clear that I am not called upon in this case to make a finding that an employer may never be required to pay for treatment. However, in the specific circumstances of this case and on the basis of the evidence before me, I have no evidence of any financial necessity on the part of the applicant that precluded him from obtaining CBT. The only "evidence" I have before me is the family doctor's statement that CBT is not covered by OHIP. There are many treatments that are not covered by OHIP. This in my view is a far from sufficient basis to support imposing upon an employer the obligation to pay for treatment as part of the duty to accommodate.

143It is submitted that the respondent ought not to have relied upon the family doctor's July 21, 2010 report because: he was not provided with a full copy of the IME report; the respondent's July 20, 2010 letter was framed in "negative" terms in order to extract a negative response; and the family doctor is not a specialist. It does appear from the evidence that the family doctor was not provided with a full copy of the IME report. It would have been preferable if he had been. Nonetheless, I do not agree that the respondent's July 20, 2010 letter was expressed in unduly negative terms. Rather, I find that it summarizes the IME psychiatrist's opinion and conclusions, supported by actual quotes from the report. There also is considerable room for the family doctor to have expressed any divergent views he may have had in response to the letter and the specific questions asked. He did not do so, but rather largely confirmed the opinion and conclusions of the IME psychiatrist. I also am aware that the family doctor is not a specialist. At the same time, unbeknownst to the respondent, the family doctor also was informed by the report of the consulting psychiatrist, who supported the diagnosis of OCD and made the same recommendations for treatment. In the end, I find that it was entirely reasonable for the respondent to rely upon the family doctor's July 21, 2010 response.

144It is submitted that, prior to the September 9, 2010 letter, the respondent had made up its mind to proceed with termination of the applicant's probationary constable status, and that the respondent had "blinkers" on and was not sincere in its invitation for contrary medical information. In support of this proposition, the applicant points to the preparation of the June 2010 performance evaluation and performance improvement plan (which was never provided to the applicant). I do not share the applicant's view. As I view the evidence, there were two tracks ongoing at the police service. First, at the human resources and senior management level, there were inquiries being made about the applicant's disability and whether it could be accommodated. Second, at the supervisory level, there were concerns about the applicant's job performance, and a felt need to bring these concerns to the applicant's attention and be clear about what he needed to do to improve. In this latter context, it was readily acknowledged at the time that many of the performance issues related to the applicant's disability (referred to as his "germ issue", which I already have commented upon above).

145However, I do not view the preparation of the performance evaluation and performance improvement plan as an indication of a mindset within the respondent police service to single-mindedly proceed with termination. The supervisory personnel who prepared these documents did not have the benefit of the IME report, which formed the basis of the ensuing discussions at the human resources and senior management level. Nor was the performance evaluation or performance improvement plan ever implemented. Indeed, even after these documents had been prepared, the respondent took steps in July 2010 in response to information from the applicant that he was feeling better, and made further inquiries of the applicant's doctor.

146Nor do I see any proper basis in the evidence to regard the invitation in the September 9, 2010 letter to provide any contrary medical information to have been insincere. At that time, the respondent had the IME report, which indicated that the applicant's prognosis was poor, even with proper treatment, given the nature of the position and his particular obsessions about contamination. In response to statements made by the applicant, they made inquiries of his family doctor, which supported and confirmed the opinion and conclusions of the IME psychiatrist. That was the medical information in the respondent's hands at the time it issued the September 9, 2010 letter. However, the letter also expressly invited the applicant to provide any contrary medical information for the respondent's consideration. I do not see how that can be regarded as insincere. In any event, no contrary medical information was forthcoming from the applicant.

147It is submitted that the respondent ought to have provided the applicant with an earlier warning or notice of its intention to recommend termination. I do not understand this submission. The September 9, 2010 letter was the prior warning or notice of the respondent's intentions, and an invitation to respond before these intentions were acted upon. As stated above, the process for termination of a probationary constable is for the chief of police to make a recommendation to the police services board and then, before making its decision, the board provides notice to the individual and an opportunity to respond. The September 9, 2010 letter represented a step before this process was engaged. It was notice of the chief of police's intention to make a recommendation, and an invitation for the applicant to respond or provide any contrary medical information before the formal process was even started. As a result, in my view, the September 9, 2010 letter represents the very warning or notice that the applicant now complains he never received.

148The applicant submits that the respondent breached the procedural component of the duty to accommodate by failing adequately to consider extending the applicant's 12-month probationary period or even allowing him to re-do his entire probationary period. This submission engages s. 44(1) of the PSA, which imposes a 12-month probationary period after which a police officer automatically attains regular status unless terminated prior to the expiry of the 12-month period, and the primacy provision in s. 47(2) of the Code.

149All parties are in agreement that, in appropriate circumstances, the primacy provision in s. 47(2) of the Code means that, where required in order for a police service to comply with the duty to accommodate a disability under the Code, the duty to accommodate under the Code prevails and the 12-month probationary period may be extended or even re-done. In this regard, it is my view for the reasons below that the parties are correct, notwithstanding the contrary finding of the Alberta Court of Queen's Bench in Lethbridge Regional Police Service v. Lethbridge Police Association (January 31, 2012) upheld on other grounds by the Alberta Court of Appeal (2013 ABCA 47).

150Having said that, it is important, in my view, to consider the precise language and meaning of s. 47(2) of the Code, which states:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

151In other words, the mere fact that the duty to accommodate under the Code may in some circumstances require an extension or re-doing of the 12-month probationary period under s. 44(1) of the PSA does not entirely eradicate the need for a police service to attend to the 12-month probationary period. It is only in circumstances where the strict imposition of the 12-month probationary period would "require or authorize" a violation of the duty to accommodate a disability under the Code that the duty to accommodate prevails.

152As a result, I do not agree with the applicant's submission that the respondent "got it backwards" by focusing on the 12-month probationary period under the PSA rather than first asking itself whether the applicant's disability could be accommodated. In my view, in order to engage s. 47(2) of the Code, a police service needs to ask itself whether the application of the 12-month probationary period in the specific circumstances of the individual case would "require or authorize" it to contravene the duty to accommodate under the Code, and only if the answer is yes would s. 47(2) of the Code operate to cause the duty to accommodate to prevail.

153As a consequence, in the specific circumstances of this case, within the 12-month probationary period, the respondent needed to consider the medical information in its possession and determine whether the imposition of the 12-month probationary period on the applicant would require or authorize it to contravene the duty to accommodate. Given the procedural steps required by s. 44 of the PSA, I do not agree with the applicant's submission that the respondent could simply have waited until early December 2010, when the applicant's probationary period was due to expire on December 16, 2010. It is clear from s. 44 of the PSA that the decision to terminate a probationary constable must be made by the police services board, and that prior notice and an opportunity to respond needs to be afforded to the probationary constable. I also accept the respondent's evidence that in practice, the chief of police must first come forward to the board with a recommendation. In the circumstances, it is my view that the respondent's evidence that the chief of police's recommendation would have needed to go before the board in October 2010 is reasonable, given the steps that would have needed to be taken in order for a decision to be made on or before December 16, 2010.

154Further, it must be remembered that the September 9, 2010 letter was not the chief of police's actual recommendation to the board. Rather, it was advance notice to the applicant of the chief of police's intention to make this recommendation to the board, which would have been made sometime in October 2010. The formal process to proceed with the recommendation for termination was forestalled by the applicant's resignation.

155So the question I need to ask myself is, at the time of issuance of the September 9, 2010 letter and based upon the medical information known to the respondent at that time, whether there was a basis for the respondent to conclude that the imposition of the 12-month probationary period on the applicant would require or authorize it to act in contravention of the duty to accommodate, such that there was a basis for it to conclude that the duty to accommodate under the Code prevailed over s. 44(1) of the PSA. In my view, there was not.

156At the time the September 9, 2010 letter was issued, all of the medical information in the respondent's possession indicated that OCD was a chronic/relapsing condition and that the applicant's prognosis was poor. There was no indication in this medical information that the applicant's condition would improve over time. Indeed, the opinion of the IME psychiatrist was that, given the nature of the job and the applicant's particular obsession, he would still experience frequent relapses even with proper treatment. The applicant's self-reports that he was "getting better" and would be able to resume his regular duties in the near future were not supported by any medical documentation. When specifically invited to provide any contrary medical information, he did not do so. Instead, he resigned in order to pursue a civilian position.

157In these circumstances, where the medical information in the respondent's possession indicated a static condition and where there was no indication at the time that this condition was going to or even might improve to the point where the applicant could perform or fulfill the essential duties or requirements of a probationary constable, the imposition of the 12-month probationary period did not require or authorize a violation of the duty to accommodate under the Code, such that s. 47(2) of the Code was not engaged.

158Applying the principles relating to the substantive component of the duty to accommodate, I find that the applicant was incapable of performing the essential duties and responsibilities of a probationary police constable, certainly while his OCD was active and he was displaying symptoms. Further, I find that there was no way of accommodating the applicant in order to enable him to perform these essential duties and responsibilities. At one point in the process, around the time that the applicant was assigned to the front desk in April 2010, the applicant suggested that he be kept away from blood or other bodily fluids or gory scenes. This in my view is obviously unworkable for a probationary police constable. Indeed, during the time period that the applicant actively worked as a probationary police constable, it does not appear that he was exposed to particularly bloody or gory scenes. Rather, he was engaged in the kind of typical duties that one would associate with being a probationary police constable, whereby in being called to a scene or in the apprehension of a suspect, a constable is often exposed to blood or bodily fluids. These were the kind of routine situations that triggered the applicant's symptoms.

159This is not a situation similar to that addressed in AGDA Group Consultants Inc. v. Lane, supra, where the accommodation requested was that supervisory staff monitor the employee's behaviour for signs that he was entering into a manic phase of his bipolar disorder. The complainant in that case worked in an office environment, where his behaviour could have been readily monitored. While his work involved dealing with sensitive defence systems, this was not a situation where a lack of focus in the context of manic behaviour would risk imminent harm to the employee, co-workers or members of the public.

160In contrast, in the applicant's situation, a lack of focus or reluctance to engage when he was triggered by exposure to blood or bodily fluids could create imminent harm to the applicant, other police officers or members of the public. For example, in relation to the February 24, 2010 incident, the applicant's lack of focus and pre-occupation with his fears caused him to put himself in a position where he could have been exposed to harm from the young offender, if he became violent or aggressive. A lack of focus in performing a proper search could result in imminent harm to the applicant or other police officers if a concealed weapon was not detected. A failure to intervene in a domestic dispute or in the context of the apprehension of a suspect where the applicant was exposed to blood or bodily fluids and became pre-occupied, could easily escalate into a situation where harm is caused to the applicant himself, other officers or members of the public. These are the kind of routine occurrences that occur during the work of a police officer, including a probationary police constable.

161Nor would the applicant's conduct be readily susceptible to supervisory oversight. During the early part of the probationary period, a probationary constable is paired with a coach officer. However, that only lasts for a period of about three to four months, or longer if the probationary constable requires further training. However, in order to successfully complete the probationary period, probationary constables need to reach the point where they are able to function on their own without a coach officer. This would mean that the applicant on his own would be called upon to function as a probationary constable and deal with the kind of routine, front-line policing duties that triggered his OCD. Even with the presence of a coach officer or partner, while the other person may be able to recognize that the applicant is being triggered by exposure to blood or bodily fluids (if they have time to attend to this in the context of an ongoing situation), this would be of little utility or assistance if the applicant's intervention is immediately required in order to address the situation. Where police work in pairs, they do so for a reason, namely so that each partner can provide back-up or protection for the other when necessary. If due to the triggering of his symptoms, the applicant is incapable of providing necessary back-up or protection, this could lead to escalation of the incident and potential harm.

162In my view, this is not speculative or impressionistic evidence or an after-the-fact justification of the safety risks that could arise from the applicant's OCD and the manifestation of symptoms in response to triggers. The applicant's coach officer was able to identify a number of specific situations, which appear to me to be a routine part of the duties of a police officer, where the applicant became unfocused and pre-occupied and, as a result, was incapable of functioning as a probationary constable. It is true that none of these situations actually resulted in harm to the applicant, another police officer or a member of the public. But one can readily see how they could have resulted in such harm. The difficulty is that, due to the nature of the applicant's OCD, triggering situations would and did regularly arise in the course of the performance of his duties, and it is hard to predict when any one of these situations could escalate and become violent. In such circumstances, it seems apparent to me that a lack of focus or pre-occupation with possible contamination could lead to harm and potentially to serious harm or even death. While the applicant was not actually exposed to a potential suicide or a serious traffic accident or a violent domestic dispute during his brief time working as a probationary constable, these are the kind of situations that the police officers who testified before me have confronted, and where the public relies upon police officers as first responders to intervene quickly to try to save lives or reduce harm. In such situations, if the applicant is triggered by his OCD and unable to do so, these types of situations also could lead to serious harm or even death.

163The applicant submits that the respondent placed too much reliance on the risk of relapse. I do not understand this submission. The risk of relapse is the entire issue that needs to be confronted. The applicant may have been asymptomatic or may have "felt better" (or in the language of the IME psychiatrist, may be in remission) after being relieved of front-line policing duties. He may not be triggered by exposure to blood in a controlled setting like a gym. But the risk of relapse is the very risk that needs to be assessed when considering whether the applicant's disability could be accommodated in the probationary constable position without posing a serious and unacceptable level of health and safety risk. The medical information available to the respondent at the relevant time is that, even with proper treatment, the applicant still would experience frequent relapses given the nature of his OCD triggers and the duties of a probationary constable. The applicant's own family doctor stated that the risk of relapse in such a situation was highly possible. No medical professional at the time, including the IME psychiatrist and the applicant's family doctor, was recommending that the applicant return to active, front-line duties or would be capable of doing so without a serious risk of relapse. When invited by the September 9, 2010 letter to provide any such medical information, the applicant did not do so.

164In my view, the significant risk of relapse is the central issue that supports that putting the applicant back into a probationary constable position would represent a serious and unacceptable health and safety risk, and thereby satisfies the undue hardship standard. I further am mindful of the evidence of the IME psychiatrist that risk of relapse is increased by exposure to stress and by a failure to obtain proper treatment for OCD. In terms of stress, a police officer is exposed to stress on a regular and ongoing basis, which would only heighten the risk of relapse for the applicant. The applicant also testified that, when his OCD was active and he was experiencing symptoms, he was dealing with outside sources of stress, including the illness of his father and his upcoming marriage. These are normal life events. And yet the stress they caused to the applicant on his own admission led to a serious manifestation of OCD symptoms and caused him to be a "mess", and demonstrably resulted in his inability to function as a probationary constable. The fact that even this level of stress in response to normal life events put the applicant in such a debilitating condition due to his OCD accentuates the risk of relapse, not only in response to the inherent stresses of the job of being a police officer but also in response to the kind of stressful life events that will occur in the usual course of a person's life. The risk of relapse is further accentuated by the fact that the applicant did not pursue proper treatment for his OCD.

165With regard to the procedural component of the duty to accommodate, I find that this also was satisfied by the respondent. By referring the applicant to the IME psychiatrist, the respondent sought out the kind of individualized and specialized assessment of the applicant's disability and his limitations and restrictions that is called for by the case law. The respondent did seriously consider how the applicant could be accommodated. Before the OCD diagnosis, he was given information about the risks of contamination and how to protect himself. When he was unable to function as a front-line probationary constable, he was given alternate duties. Medical information was sought from his doctor. Even after the IME, when the applicant reported that he was feeling better, further information was sought from the applicant's doctor.

166It is submitted that the evidence does not support that the respondent gave serious consideration to the possibility of extending or allowing the applicant to re-do his probationary period. As I have already canvassed above, I agree that the evidence of the respondent's witnesses on this issue is mixed. Nonetheless, the respondent's internal legal counsel testified that this possibility was considered and discussed. I am not prepared to find that he was lying about that. I appreciate that other non-lawyer respondent witnesses gave different evidence and believed that the 12-month probationary period could not be extended. But this may be accounted for on the basis that they may not have fully appreciated the kind of nuanced legal analysis that accompanies a full understanding of the interaction between s. 44 of the PSA and s. 47(2) of the Code.

167In any event, as I already have found above, based on the information available to the respondent at the time, it was not open to the respondent to disregard s. 44 of the PSA, as the situation that was before the respondent at the time did not require or authorize a violation of the duty to accommodate under the Code. As a result, I am not prepared to find a breach of the procedural component of the duty to accommodate on the basis of the mixed evidence as to whether the respondent considered an extension or re-doing of the probationary period when I have found that it was not entitled in law to do so.

168This is not a situation such as in Krieger v. Toronto Police Services Board, 2010 HRTO 1361, where the police service was found to have breached the procedural duty to accommodate by failing to consider an extension to the probationary period. In that case, the police association had made a with prejudice offer in which it agreed to such an extension. The evidence before the adjudicator in that case indicated that this offer was not seriously considered. Further, there is no discussion in the Krieger case regarding the interaction between s. 44 of the PSA and s. 47(2) of the Code, nor was there any finding, as I have made in this case, that the application of the 12-month probationary period in the specific circumstances of this case did not require or authorize a violation of the Code.

169The applicant also is critical of the respondent's failure to obtain more information about OCD. It is true that the respondent had never dealt with the accommodation of a police officer with OCD. But that is precisely why it reached out to the IME psychiatrist. This is not analogous to the situation in the AGDA case, where the respondents did not seek out the assistance of any medical professional before deciding to terminate the complainant's employment.

170In final argument, I was referred to a number of labour arbitration decisions where it was found to be a breach of human rights legislation where an employer had failed to extend a probationary period in a situation where a disability caused or contributed to the employee's failure to complete the period: see Telus v. Telecommunications Workers Union (Mueller Grievance), [2002] C.L.A.D. No. 361; Dekoning and Treasury Board (Employment and Immigration Canada), (1993) 1993 CanLII 16827 (PSSRB), 33 L.A.C.(4th) 203; Mississauga (City) v. Amalgamated Transit Union, Local 1572 (Tanner Grievance), [2005] O.L.A.A. No. 328. These cases are of little assistance to me, as none of them arose from a statutory probationary period as set out in the PSA. In addition, none of these cases addressed a situation like the instant case, where the medical evidence at the relevant time indicated the situation was static and there would always be a significant risk of relapse and exposure to serious health and safety risks.

Accommodation in a civilian position

171It is alleged in the Application that the respondent violated the Code by failing to accommodate the applicant to the point of undue hardship in an appropriate civilian role. While not addressed in final argument, I will briefly address this issue as it was raised in the Application.

172The existing case law indicates that the duty to accommodate does not require an employer to consider accommodation of a probationary employee in an alternate position: see Formosa v. Toronto Transit Commission, 2009 HRTO 54. Nonetheless, the respondent offered to attempt to accommodate the applicant in a civilian role, and this offer was accepted by the applicant.

173While the applicant went through initial testing for a communications operator position, the evidence before me indicates that the funding to staff such positions fell through. There is no evidence to the contrary.

174The respondent did attempt to accommodate the applicant in a temporary position as a distribution services clerk position, to cover an extended absence by the incumbent. The applicant found this job to be demeaning and expressed his intention not to continue in the position. When the respondent insisted that he do so, the applicant provided medical documentation to authorize his absence.

175The Application raises the issue that it was inappropriate to place the applicant in a position where he would be exposed to ridicule by his former platoon members. I do not find it to have been inappropriate for the respondent to have offered this position to the applicant, as the evidence does not support that there was any reasonable expectation that the applicant would be exposed to ridicule. Certainly no such issue was raised by the applicant prior to his commencement of duties in the position.

176Having accepted and started working in the position, the applicant quickly formed the view that it was not an appropriate position for him. His initial communication of his dissatisfaction to the human resources manager on November 22, 2010 (his first day in the job) focused on his view that the job was demeaning. The contemporaneous notes made by the human resources manager do not include any reference to inappropriate conduct by members of the applicant's former platoon. The human resources manager has a recollection that the applicant told her that someone had said, "oh so this is what you're doing now". The contemporaneous notes made by the disability management coordinator of her subsequent discussion with the applicant on November 26, 2010 indicate that the applicant attributed this comment to a "secretary" at his former platoon. I do not regard such a comment as being harassment within the meaning of the Code, and accept the evidence of the human resources manager and the disability management coordinator that this was not raised by the applicant as harassment and was not regarded by them as harassment.

177The only other piece of information conveyed by the applicant at the time was that some unidentified members of his former platoon also referred to him as the "mailman". I appreciate that it may have been difficult for the applicant, who previously had interacted with these individuals as a probationary constable, to now be interacting with them as a distribution services clerk, whose duties included the delivery of materials to the platoon. But without more, I do not find that simply referring to the applicant as a "mailman" constitutes harassment. Notably, in his evidence at the hearing, the applicant alleged for the first time that unidentified officers in his platoon were pointing at him and laughing or made comments about having to do "real police work". These details were not raised in the Application, and emerged for the first time at the hearing. There is no evidence that this was ever reported by the applicant to the human resources manager, the disability management coordinator, or anyone else. As a result, I do not find that requiring the applicant to continue in this role (which he ultimately did not do for medical reasons) violated the duty to accommodate under the Code.

178The respondent ultimately accommodated the applicant in a permanent civilian position as a data entry clerk, once he was medically able to return to work. No issue was raised before me in relation to any alleged violation of the duty to accommodate arising from this position.

179Accordingly, I find that the respondent did not violate the Code arising out of its efforts to accommodate the applicant in a civilian position.

Reinstatement to a probationary constable position

180Finally, the applicant alleges in the Application that the respondent violated the Code by failing to reinstate him to a constable position given he has medical evidence to support his return to full policing duties.

181As stated above, this matter has been bifurcated to first deal with the issue of liability under the Code and then at a later stage, and only if a violation of the Code is found, to address the issue of remedy. Reinstatement is a remedy sought by the applicant, as opposed to an independent basis for a finding of a violation of the Code.

182To the extent that the applicant is alleging that the respondent violated the Code by failing to reinstate him to a probationary constable position following his family doctor's letter in April 2011 and the consulting psychiatrist's report from May 2011, which are the first medical reports to express that the applicant was fit to return as a probationary constable and which were only provided to the respondent in the context of this proceeding, I find that there is no basis for such an allegation.

183As address above, the duty to accommodate must be considered on the basis of the medical documentation available to the parties at the relevant time. In this case, the relevant time is September 2010, leading up to the applicant's resignation as a probationary constable. Once the applicant resigned as a probationary constable, any obligation under the Code to accommodate him in that position ended.

184For all of the foregoing reasons, the Application is dismissed.