Allard v. City View Centre for Child and Family Services, 2013 HRTO 730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynn Allard Applicant

-and-

City View Centre for Child and Family Services Respondent

DECISION

Adjudicator: Douglas Sanderson Date: May 1, 2013 Citation: 2013 HRTO 730 Indexed as: Allard v. City View Centre for Child and Family Services

APPEARANCES

Lynn Allard, Applicant Dan Allard, Representative

City View Centre for Child and Family Services, Respondent Jock Climie, Counsel

1This is an Application 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.

2The hearing of this matter took place on December 6 and 7, 2012 in Ottawa. I received testimony from the applicant and Theresa Robillard, Shelley Bond and Julie Brunton testified for the respondent. The parties adduced eight exhibits into evidence, including a book of documents from the respondent.

3The facts of this case were largely not in dispute. The respondent is a not-for-profit organization that operates a nursery school and provides day care services in its own facilities and a Home Program in which day care service are provided in private homes under the respondent's supervision. The applicant was a Home Care Advisor, or HCA, and her duties included placing children in the Home Program and supervising home care providers to ensure they provided healthy and nurturing environments for young children. The applicant commenced employment with the respondent in 1993 and by all accounts performed admirably in her role, was well-liked by her coworkers and clearly enjoyed her work.

4The applicant's life was forever changed on September 14, 2009 when she suffered a near fatal heart attack at work. The applicant's recovery was complicated by significant depression. Ms. Robillard, the Manager of the Home Program, testified that she spoke occasionally with the applicant and visited her in the hospital. Ms. Robillard stated that she and the applicant’s colleagues also helped the applicant by giving her a turkey for Thanksgiving and donating money to her. The applicant received a long-term disability (“LTD”) benefits and there is no dispute that the LTD carrier, Empire Life, engaged a rehabilitation counsellor, Anne Beaudry, to assist the applicant in returning to work. Ms. Beaudry made contact with the respondent in early September 2010 and the respondent responded positively with respect to assisting the applicant.

5The parties met, along with Ms. Beaudry, on November 29, 2010 and drafted a 12-week graduated return to work plan, commencing on December 6, 2010. Ms. Beaudry recorded the return to work plan, a document the parties adduced into evidence. The document indicates that for the first two weeks of the return to work plan the applicant was to work 3.5 hours on each of Monday morning, Tuesday afternoon and Thursday morning for a total of 10.5 hours. According to the return to work plan, the applicant was to gradually increase the number of days in which she worked and her daily hours of work until she returned to full-time hours, which was anticipated in the last week of February 2011. However, the applicant was able to complete only the first seven half-days at work. December 20, 2010 was the last day she worked for the respondent.

6The return to work plan also indicated as follows:

• the applicant's hours of work would be changed to 8:30 a.m. to 4 p.m. to allow her to attend treatment or rehabilitation appointments after work (the normal hours of work were 9 a.m. to 4:30 p.m.);

• the applicant would advise her supervisor and Ms. Beaudry if she needed to leave work for medical reasons;

• the applicant would require a comprehensive orientation to her duties into changes at work since her absence; and,

• the applicant would require noise cancelling headphones to provide a quiet work environment because she worked in an open concept office.

The return to work plan further provided that the applicant's physician would monitor her progress and the plan were subject to adjustment if medically warranted.

7The return to work plan did not address the issue of where at the respondent's offices the applicant would work. This seemingly routine matter was an issue because the respondent had hired a temporary replacement for the applicant whose contract was to end in March 2011, about the time of the parties anticipated the applicant would return to full-time duties. This contract employee continued to work while the applicant engaged in her return to work program. The respondent had six workstations in the area assigned to HCAs and six full-time advisers, including the temporary replacement, in December 2010, and seven when the applicant returned to work. Consequently, there was no workstation available for the applicant when she returned to work.

8The applicant’s evidence was that the conclusion reached at the meeting on November 29, 2010 was that the respondent would provide her with a laptop computer, a place to sit and a telephone. Ms. Robillard testified that the issue of the applicant’s workspace was discussing during the meeting of November 29, 2010, since the applicant's former workstation was occupied. Ms. Robillard testified, however, that the issue of providing a laptop for the applicant did not arise until after she met with the applicant when she returned to work on December 6, 2010.

9There is no dispute that the applicant and Ms. Robillard discussed where the applicant would work as part of their discussion regarding applicant’s duties during her transition to full-time duties, when she returned to work on December 6, 2010. The applicant and Ms. Robillard discussed the options available, which included an office on the lower floor, using an office in the "warehouse", which was sometimes used by the nursery school, sharing Ms. Robillard's office and using the other HCA's workstations when they were out of the office. Ms. Robillard, Ms. Bond and Ms. Brunton all testified that a significant portion of the HCA's duties consist of meeting providers in the community and that one or more of them were almost always out of the office. The applicant agreed in cross-examination that the HCAs are often out of the office, but stated that there were occasions when they are all in the office and no workstation was available. The applicant's evidence was that Ms. Robillard rejected the options of the warehouse and the downstairs office. Ms. Robillard's evidence was that she felt the downstairs office was an unattractive option because the applicant would be separated from the group, but did not specifically forbid the applicant from working there. In any event, there is no dispute that the applicant was to make use of her colleagues’ workspaces (using the computers under her own profile), including Ms. Robillard's office, when they were out of the office and that the respondent did not immediately order a laptop computer for the applicant.

10Ms. Robillard prepared a document entitled "Transitional Goals for Lynn". Ms. Robillard's evidence was that the document described the applicant's expected work activities during the graduated return to work period. Ms. Robillard stated that the intention was to reintegrate the applicant slowly and to ensure that she was not overtaxed. According to Ms. Robillard, the document was a guideline and subject to changes as necessary. The applicant's evidence was that she initially agreed with the transitional goals, but soon found them to be too basic and left her without anything substantial to do. The applicant also indicated that she was concerned because the respondent did not adhere to the transitional goals. In that regard, the applicant indicated that the week two goals, reviewing certain processes and procedures, were not undertaken and she moved on to week three goals. The applicant testified that she found herself with little to do and offered her assistance to her colleagues and, as a result, was assigned to identify children for placement with two home child care providers. In cross examination, the applicant agreed that she accepted the task without complaint and began to look for children to place. She stated that she was not pleased that the assignment required speaking French (although she apparently speaks French well) and that the providers were in the south end of Ottawa because she was not comfortable driving.

11The applicant was not satisfied with her return to work in her first two weeks (which comprised of three 3.5 hour days each week). On December 17, 2010: (a day the applicant was not at work) the applicant sent an e-mail message to Ms. Robillard and Ms. Beaudry entitled "These last two weeks". In the message, the applicant indicated that the return to work had been easier than expected in terms of her relations with colleagues, but expressed that she was feeling quite “out in left field with what to do with my time". The applicant described the work activities in which she had engaged, noting that the week two goals had not been met. The applicant also noted that the necessary programs had not been loaded onto her computer profile and she did not have an assigned telephone or computer. The applicant concluded the message with a request to move onto more substantial objectives as her hours of work increased.

12Ms. Robillard responded by e-mail the same day, thanking the applicant for her update. Apparently, in response to the applicant’s reference to being "out in left field", Ms. Robillard indicated that she understood the applicant felt disoriented and confirmed that the applicant did appear disoriented. Ms. Robillard explained that the goal was to not "overstress" the applicant in their first weeks and to reintegrate her gradually. Ms. Robillard confirmed that the respondent would have the necessary computer programs loaded for the applicant and that the applicant would assume management regarding two home day care providers. Ms. Robillard noted that it was not possible at that time to provide the applicant with her own desk, but they were still "looking at options".

13The applicant replied to Ms. Robillard's message later on December 17, 2010. She thanked Ms. Robillard for her response and indicated that she was hoping to get some of the home providers with whom she previously worked as a start. She clarified that she received the two providers to work with when she offered her assistance. She concluded by advising that she was "having a hard time with nothing productive to do". The applicant's next day at work was Monday, December 20, 2010. Ms. Robillard stated that she and Louise Allard, the applicant’s direct supervisor, discussed the applicant's message of December 17, 2010 and decided that a meeting with the applicant to clarify the situation was in order. The applicant met with Ms. Robillard and Ms. Allard from approximately 10 a.m. to 12 p.m. There is little dispute about what occurred during the meeting. Ms. Robillard also prepared a record of the meeting later on December 20, 2010 and the applicant agreed that this record largely accurately reflected the discussion and events during the meeting.

14Ms. Robillard explained that she and Ms. Allard interpreted the applicant's e-mail messages to be expressing discontent. The applicant indicated that she was not given substantive work to do and did not appreciate being described as "disoriented". Ms. Allard suggested the term "displaced" which the applicant agreed was a better description. The applicant indicated that the transitional goals were too basic for her. Ms. Robillard advised her that the transitional document was a guideline only, not "written in stone" and the applicant should not take things too literally and be more flexible. The applicant was not pleased at the prospect of being shadowed as was set out later in the return to work plan, given her lengthy experience. Ms. Robillard explained that there were changes to the "use of space" agreements with providers, which is a complicated document and the respondent wanted to "walk her through" some scenarios with providers to ensure her comfort with the document.

15The parties discussed the applicant's computer needs and agreed on a plan to ensure she had all the necessary software. The issue of a work space for the applicant clearly remained a sore point for the applicant, which she described as the hardest part of her return to work. Ms. Robillard assured her that the current situation was only temporary. The parties discussed the available options. Once the applicant would have a properly configured laptop, she could work in Ms. Robillard's office or in the kitchen. The downstairs office was again discussed, and Ms. Robillard expressed the view that using the office was possible, but not ideal because the applicant would be separated from the team. The applicant’s evidence was that she understood that she could not use this office. The applicant's evidence was that using the warehouse office was not an option because the nursery school was using it. Ms. Robillard testified that this was a misunderstanding and that the applicant could have shared the office. However, Ms. Robillard's notes indicate that the warehouse office was not an option because it would be needed for another program. Accordingly, I find that it is more likely that the warehouse was discussed and rejected as an option. Ms. Robillard noted that she requested that a laptop be set up for the applicant and believed that Shelly Bond, the respondent’s Executive Director, made a request to the respondent’s information technology (IT) provider. In that regard, Ms. Robillard noted that the IT provider was external to the respondent and was not particularly reliable.

16There is no dispute that the applicant was emotional during the meeting, crying a number of times, but was able to regain her composure. Returning to work was an emotional experience for the applicant, and there was also no dispute that she cried two or three times at work after her return. Ms. Robillard's evidence was that the applicant had been very forthcoming about her experiences regarding her heart attack with her colleagues and that some of them were uncomfortable with this information. Ms. Robillard's evidence was that she and Ms. Allard asked the applicant to come to them if she needed to vent.

17The discussion also addressed whether the applicant was in fact ready to return to work. The applicant agreed in cross-examination that she made a statement to the effect that she was not certain that she was ready to be at work but did know the job. She also admitted in cross-examination that she had looked for another job before returning to work with the respondent because she was worried about the stress involved in the job. Ms. Robillard’s evidence was that the applicant had previously divulged to her that she did not feel ready to return to work, but her financial circumstances left her no choice. Ms. Robillard stated that the applicant’s colleagues reported that she had said similar things to them. In cross examination, the applicant acknowledged that her financial circumstances were a prime motivator in her return to work, as she needed an income, but also loved her position. Both the applicant and Ms. Robillard testified that Ms. Allard asked the applicant to take time to consider whether she felt ready to be at work, and asked her to advise the respondent by the end of January if she did not feel ready to continue in order that the respondent could make arrangements to cover her work.

18The applicant's evidence was that Ms. Robillard and Ms. Allard expressed the view, apparently shared by Shelly Bond, that the applicant did not appear emotionally ready to return to work, but the respondent would hold her job until September 11, 2011. Ms. Robillard's evidence was that she told the applicant that she believed the applicant could go back on LTD for almost a year. Ms. Robillard explained that her statement was based on her understanding that LTD benefits ran for two years and the applicant had suffered her heart attack in September 2009. Although ultimately not material, I find Ms. Robillard's account more likely. That Ms. Robillard would provide her understanding of the applicant's entitlement to continued LTD benefits is consistent with the discussion of whether the applicant would continue with the return to work plan. There is also no indication that the respondent was considering the possible end of the applicant's employment, even after she discontinued the returned work plan, as she ultimately did.

19Ms. Robillard testified that the meeting went well and that the applicant seemed to have a better understanding regarding her return to work, particularly the issue of her work space. Ms. Robillard's evidence was that everyone had been sincere during the meeting and the applicant seemed pleased with the outcome. The applicant acknowledged in cross-examination that the respondent addressed all of the issues she raised in her e-mail message of December 17, 2010. The applicant acknowledged that she told Ms. Robillard and Ms. Allard that she was fine, but she stated that she actually was not fine. In her view, Ms. Robillard and Ms. Allard were trying to convince her that she was not ready to return to work.

20The applicant's evidence was that she went home upset after the meeting and contacted Ms. Beaudry. The applicant stated that she sent Ms. Beaudry her e-mail message to Ms. Robillard of December 17, 2010, along with Ms. Robillard’s response. They also discussed the meeting of December 20, 2010. The applicant stated that they decided it would be best for the applicant not to go to work until she had an opportunity to meet with her doctor. On December 22, 2010, Ms. Beaudry sent an e-mail message to Ms. Bond in which she advised that the applicant's specialist had recommended putting her graduated return to work program on hold at that time and that she would be reassessed in early January 2011. The applicant never returned to work with the respondent.

21Ms. Robillard testified that she continued to assist the applicant on a personal level. Ms. Robillard stated that the applicant revealed, during a conversation about Christmas, that her husband and son did not have proper winter coats. Ms. Robillard therefore offered the applicant two extra winter coats that she had, which the applicant accepted. Ms. Robillard stated that she also gave the applicant some money, she believed about $100.00, to assist the applicant with finances over Christmas.

22The applicant testified that she fell into a deep depression after the return to work plan was put on hold. She continued to receive treatment, including cognitive therapy. The applicant's evidence was that her recovery was not assisted by an e-mail message she received from a co-worker, Julie Brunton in response to a message she sent to Ms. Brunton on January 18, 2011. The applicant wrote to Ms. Brunton because she felt it necessary to explain some circumstances involving her mail, a situation into which Ms. Brunton apparently became embroiled, contrary to the applicant's intentions. The applicant indicated that the respondent "encouraged" her to take more time off, with apparent irony, and that she was being treated for anxiety and depression. The applicant also suggested that the respondent likely directed Ms. Brunton not to speak to the applicant. Ms. Brunton replied that she was not allowed to speak to the applicant about work and would be fired if she did. Ms. Brunton suggested that they should "wait until the wind dies down". The applicant testified that she was not receiving communications from the respondent at the time and this statement made her feel more isolated.

23Ms. Brunton testified about the message, which she acknowledged writing. She explained that the respondent had not in fact stated that communication with applicant would result in dismissal. Rather, Ms. Brunton stated that she has a social anxiety about people calling her on the telephone and sending her e-mail messages. Ms. Brunton indicated that she "does not let people in it" and does not form many friendships. In that regard, Ms. Brunton confirmed that she considered the applicant to be a work colleague, not a friend. Ms. Brunton found that she was receiving a higher than normal amount of messages on e-mail and Facebook from the applicant and that this was causing her anxiety. According to Ms. Brunton, she did not wish to be rude to the applicant, but also did not want to explain her anxiety to her. Consequently, she concocted a lie that she could get fired for communicating with the applicant in order to get the applicant to stop sending her messages.

24Ms. Brunton also testified that the applicant sometimes used her workstation when she was visiting providers and she observed that she also used other workstations when other HCAs were absent. Ms. Brunton stated that on one occasion she advised the applicant to stay at her workstation after Ms. Brunton returned to the office, which Ms. Brunton stated was not unusual. Her evidence was that at least one HCA was out of the office 85-95% of the time.

25Ms. Bond testified that the respondent did not direct staff not to communicate with the applicant. Rather, the staff was advised not to speak about work with the applicant in order to avoid stress for her and to allow her to recuperate.

26By letter dated May 10, 2011, Empire Life wrote to the applicant to confirm that her disability claim was closed effective August 12, 2011, following receipt of an "advance pay and close payment" on May 9, 2011. The letter was copied to the respondent and Ms. Bond sent an e-mail message, dated May 19, 2011, inquiring whether the applicant would avail herself of a 12 week returned work program after the close of her LTD claim or would return to work full-time on August 15, 2011. The applicant responded by e-mail dated May 25, 2011 and indicated that she would return to work full-time on August 15, 2011, since the gradual return to work plan had not gone well.

27By letter dated June 1, 2011, Empire Life again wrote to the applicant, apparently responding to her inquiry regarding the ramifications of returning to work with the respondent. The letter notes that the applicant had decided not to return to work there and that the applicant, the rehabilitation consultants and her physician were of the view that returning to work with the respondent would be detrimental to her rehabilitation. The letter also noted that the rehabilitation efforts undertaken with the applicant were designed to help her find work elsewhere. The letter further advised the applicant that Empire Life would consider returning to work with the respondent to be contrary to her responsibility to seek appropriate medical care and treatment and to participate in any rehabilitation plan. Accordingly, Empire Life advised the applicant that if she returned to work with the respondent, then any recurring claim would be closely examined and may not be eligible for further benefits.

28The applicant testified that this letter scared her because she understood that she would not qualify for LTD benefits if she returned to work with the respondent and had another heart attack. The applicant stated that she could not take the chance of not being covered and therefore resigned her employment by letter dated July 12, 2011. The applicant also tendered a letter from her cardiologist, Dr. Le May, dated July 20, 2011. Dr. Le May stated that he would not recommend her to work in occupations requiring heavy lifting or high stress levels. Dr. Le May specifically stated that her job at the daycare would not be an ideal position for her and recommended a desk job with no heavy lifting and no high stress levels.

Analysis and Decision

29The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against by not accommodating her disability. Clear, convincing and cogent evidence is required. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46.

30The relevant sections of the Code are as follows:

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

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

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

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

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

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

31The parties focussed on the duty to accommodate. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a stand-alone obligation under the Code. In fact, it arises only under sections 11, 17 or 24 of the Code where a person is disadvantaged by a requirement or qualification because of a prohibited ground of discrimination. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. Accordingly, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

32In this case, the applicant survived a serious heart attack and has suffered significant depression since the attack. The applicant's conditions – there was no suggestion that she did not suffer from disabilities – prevented her from immediately returning to work on a full-time basis. Accordingly, she required a gradual return to work program to build stamina to the point where she could resume full-time work, as accommodation. In my view, the respondent accepted its obligation to accommodate the applicant in this manner and developed the graduated return to work program with the applicant and her rehabilitation counsellor. Working with the applicant in this way was consistent with the respondent's procedural accommodation obligations.

33The accommodations the applicant required were set out in the graduated return to work program. The centerpiece of the program was the schedule that set out the gradually increasing hours and days the applicant would work each week. The document also addressed the applicant's other needs, including daily start and finish times, orientation to her duties and changes to her duties/respondent's operations, and the use of noise cancelling headphones.

34There is no evidence, or suggestion for that matter, that the respondent did not comply with the graduated return to work program. Rather, the applicant's issue, in her evidence, was with the transitional goals the respondent prepared for her. These transitional goals set out the actual work and activities she would perform during the return to work program. In her evidence, the applicant's issues about her return to work were that the work assigned to her in the transitional goals document was too basic and did not provide her with enough to do, even in the limited hours she worked in the first weeks of the return to work program; that the respondent did not adhere to the tasks as scheduled; and, in particular, that she did not have an assigned workstation. The thrust of the applicant's evidence was that, as a result of these issues, she felt unwanted at work and was unable to continue. However, the applicant completely changed directions in argument. In argument, the applicant submitted that the respondent overtaxed her by assigning her the task of placing children with two home care providers. The applicant submitted that giving her this work so early in her return to work, before she was properly acclimated, caused her significant stress and anxiety about failing. The applicant also submitted, consistent with her evidence, that she expected to have her own workspace when she returned to work and that the requirement that she share with colleagues robbed her of a sense of belonging.

35There was no evidence that the applicant's disability related restrictions required that she do any particular kind of work or that she have an assigned workstation. In my view, there is nothing in the activities described in the transitional goals document that was inconsistent with the applicant's restrictions and I accept the respondent’s evidence that the intention was to ensure the applicant's tasks were initially quite light. I appreciate the applicant expected and would have preferred to have her own workspace. However, there is no evidence that having an assigned workspace and a computer was required to meet her restrictions. On the other hand, the evidence was that the applicant did not need a computer to complete her duties for the first several weeks of her return to work program. The applicant’s submission in argument that requiring her to identify children to be placed with two home care providers was inappropriate was completely unsupported by the evidence. The applicant's evidence was that she received this task when she offered to help her colleagues at a time when she felt underemployed. The applicant agreed that she did not complain about the assignment and that she was capable of conducting the necessary search. The applicant was concerned about the location of the providers, which would require driving if she needed to visit them. However, there is no indication that any such visit was required at the time. Given that accommodating the applicant did not require her to perform or not perform any specific tasks, I find that strict adherence to the transitional work goals was not necessary. In these circumstances, I find that the work assigned to the applicant and the arrangements regarding a workspace were consistent with respondent's substantive duty to accommodate the applicant's needs.

36The applicant raised concerns about her reintegration in her e-mail message to Ms. Robillard on December 17, 2010. Raising such concerns is in my view consistent with the applicant's obligation to participate in and facilitate the accommodation process. The evidence was that the respondent took the applicant's concerns seriously, addressing them first in an e-mail message from Ms. Robillard the same day and in a meeting the following workday. The applicant acknowledged that the respondent addressed all of her concerns. In particular, Ms. Robillard and Ms. Allard clarified that the workspace issue was temporary and that the transitional goals were a guideline that could be varied.

37There is no dispute that the parties discussed the applicant's readiness to be at work. In my view, there was nothing inappropriate in the respondent raising the issue. The evidence was that the applicant showed signs of having difficulties, e.g., by crying on a number of occasions and the applicant had expressed that she was not ready to return, but had no choice but to return to work in light of her financial circumstances. The applicant acknowledged that she was not sure she was ready to be at work during the meeting on December 17, 2010. The applicant felt that the respondent was trying to push her aside, but I find Ms. Robillard and Ms. Allard were genuinely concerned for the applicant's well-being. Ms. Robillard and Ms. Allard left the decision to the applicant, and it is apparent that Ms. Robillard expected the applicant to continue in her return to work. There was nothing inappropriate about Ms. Allard asking the applicant to advise the respondent if she planned to take more time away from work.

38The applicant consulted with her rehabilitation counsellor and her physician and concluded that she would discontinue the return to work program with the respondent. The applicant formed the view that the respondent did not want her to return to work because it did not meet some of her expectations. In light of the various steps the respondent, and Ms. Robillard in particular, took to assist and accommodate the applicant, the evidence does not support the conclusion that the applicant was unwanted. The applicant's expectations regarding her workload (i.e., that it would be more substantial) and that she would have a designated workspace were preferences not required to address her need for graduated return to work. The applicant found it necessary to cease her return to work, which is unfortunate, but this was not caused by a failure to accommodate by the respondent.

39After the applicant discontinued the return to work program, the applicant received an e-mail message from Julie Brunton to the effect that she would be dismissed if she communicated with the applicant about work. Ms. Brunton’s evidence and that of Ms. Bond clarified that the respondent did not prohibit communication with the applicant. Rather, the respondent asked its employees not to discuss work with the applicant to avoid stress for her. Ms. Brunton acknowledged candidly, if rather unapologetically, that she concocted the story to get the applicant to stop communicating with her. The applicant took this as another sign that she was not wanted by the respondent. Ms. Brunton’s behaviour was callous and self-centred and it is understandable that the applicant was put off by it. However, there is no evidence connecting the statement to the applicant's disability and it does not amount to discrimination.

40The evidence was that the respondent understood that the applicant would eventually return to work and continued to hold the position for her, which is also an accommodation. The applicant indicated her intention to return to work with the respondent in August 2011 in her letter to Ms. Bond of May 25, 2011. In fact, the evidence, in particular the letter from Empire Life of June 1, 2011, was that the applicant, her doctor and Empire Life all considered returning to work with respondent to be inappropriate for her. Returning to work with respondent would have endangered any future claim for LTD benefits and her doctor confirmed that her health was no longer suited for work with the respondent. This outcome is very unfortunate because the applicant had a long and successful career in early childhood education and care and was clearly well-liked and respected by her colleagues. The evidence, however, does not support the conclusion that the applicant's inability to continue in her chosen field of endeavour is attributable the respondent's actions.

41The Application is dismissed.