Gaetano Tiano v. City of Toronto, 2014 HRTO 1187

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gaetano Tiano Applicant

-and-

City of Toronto Respondent

-and-

Toronto Civic Employees’ Union, Local 416 (CUPE) Intervenor

DECISION

Adjudicator: Ken Bhattacharjee Date: August 8, 2014 Citation: 2014 HRTO 1187 Indexed as: Tiano v. City of Toronto

APPEARANCES

Gaetano Tiano, Applicant Self-represented

City of Toronto, Respondent Heather Crisp, Counsel

Toronto Civic Employees’ Union, Local 416 (CUPE), Intervenor Devon Paul, Counsel

Introduction

1The applicant, who was employed by the respondent to perform manual and technical duties for its Water Division, sustained a serious knee injury on a work site. The purpose of this Decision is to decide whether the respondent then discriminated against him because of his disability, and subjected him to an act of reprisal.

BACKGROUND

2On May 8, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his ancestry, place of origin, ethnic origin, and disability with respect to employment, and subjected him to reprisals for claiming his rights under the Code.

3On August 24, 2012, the respondent filed a Response, which denied the allegations of discrimination and reprisal.

4On January 8, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 32, which dismissed the Application in part. The Tribunal decided that the allegations related to disability were the only allegations that would proceed to a merits hearing. The outstanding allegations allege that the respondent failed to properly accommodate the applicant’s disability-related needs, and subjected him to an act of reprisal for claiming his Code right to be accommodated.

5The merits hearing took place over two days. I heard the testimony of six witnesses: the applicant, a support person who attended a meeting with the applicant, two of the applicant’s supervisors, a health consultant employed by the respondent, and the manager of the respondent’s Human Rights Office. I have not set out the applicant’s support person’s testimony below because it was not relevant.

6At the outset of the hearing, the parties’ documents, which were previously disclosed and comprised mainly of medical documents, forms, handwritten notes, and email exchanges about the applicant’s injury and modified duties, were admitted into evidence and marked as exhibits on consent.

7At the hearing, the applicant also disclosed for the first time approximately 20 pages of documents that appeared to show in detail how far he had walked during certain work days between 2009 and 2013. The respondent’s counsel objected because she stated that neither she nor her client had seen these documents before.

8I allowed the applicant to provide oral testimony about how far he walked on certain days, but I denied his request to admit these documents into evidence because he was unable to offer an explanation why he had failed to disclose them earlier, the respondent was prejudiced by the late disclosure, and admitting them would have extended and delayed the proceeding.

9During the hearing, both parties did not dispute much of the other party’s contextual facts; rather, they focused on disputing the other party’s account of the facts around the issues of whether the respondent properly accommodated the applicant’s disability-related needs. As such, where each party’s evidence was uncontradicted, I have assumed it to be true.

10The applicant began his oral testimony by reading a chronology document that he had prepared. I allowed him to adopt the narrative of his Application and Reply and the chronology document that he was reading as his oral testimony, but I also directed him to provide live oral testimony without reading from a document about the alleged incidents of discrimination and reprisal. The applicant’s written narratives contain several allegations with no link to the Code ground of disability or reprisal as defined in the Code. Where the applicant failed to present any live oral testimony or other evidence linking an allegation to the ground of disability or reprisal, I have not considered the allegation in the evidence and analysis below.

EVIDENCE

11The applicant was employed by the respondent’s Water Division to install, inspect, repair, and maintain water meters, and to perform “locates” (detecting and marking where underground water infrastructure is located). On a daily basis, he would review drawings, drive to different work sites, walk around the sites, and perform manual and technical tasks.

12On April 14, 2009, the applicant slipped at a work site, and injured his right knee. The applicant’s supervisor filled out a Report of Injury/Accident, which indicated that he would be able to offer modified work to the applicant. The applicant saw his family doctor and was able to return to work without restrictions. Over the following weeks, however, the applicant continued to experience pain in his knee, and it did not heal on its own. As a result, on June 8, 2009, he went off work, and on September 17, 2009, he had surgery on his knee.

13On October 22, 2009, the applicant and his supervisor had a discussion about providing the applicant with modified duties upon his return to work. The applicant’s supervisor took notes about what they discussed. The applicant told his supervisor that he would like to try regular locate duties on his own, that probable restrictions were no long walks, no kneeling, and no long drives, and that assignments should be small, single locations.

14On November 2, 2009, the applicant returned to work and submitted a Return to Work form, which was filled in by his family doctor, to his supervisor. The form indicated that the applicant was able to return to work on modified duties, and that his main restrictions were (1) occasional lifting only; (2) no prolonged sitting, standing and walking; (3) avoid uneven ground; and (4) avoid crouching/kneeling. The form also indicated that the applicant’s rehabilitation plan included “walking”. The form did not place any restrictions on lifting heavy loads.

15The applicant and his supervisor’s accounts of whether the supervisor then accommodated the applicant’s disability-related needs differ. The applicant testified that his supervisor refused to accommodate his disability-related needs. Specifically, he stated, his supervisor told him that there was no modified work available, and then assigned him 13 individual site inspections. He further stated that on December 11, 2009, his supervisor instructed him to go to two yards to pick up water meters weighing 50 and 150 pounds. As a result of not being assigned modified duties, he stated, his knee injury worsened.

16In cross-examination, the applicant denied that, after his return to work, his supervisor offered to provide him with a driver.

17The applicant’s supervisor, on the other hand, testified that he did, in fact, accommodate the applicant’s disability-related needs. He stated that he granted the applicant’s request for modified duties because it was reasonable. He also stated that his instructions to the applicant were to do what he could do, not to hurt himself, and to tell him if there was a problem.

18The supervisor also testified, and his notes indicate, that on November 12, 2009, he offered the applicant the option of going to work sites with another locator, but the applicant declined the offer. He stated that he made the offer because the other locator could drive the truck and relieve the applicant of walking duties if he needed a rest. He further stated, and his notes indicate, that on December 4, 2009, after the applicant indicated that his doctor was not happy with his recovery, he assigned him to go to work sites with another locator effective December 7, 2009.

19In cross-examination, the supervisor stated that he cannot recall how many individual site inspections he assigned to the applicant, but denied that he expected him to complete 13 in one day. He stated that he expected the applicant to complete as many as he was able to do. He also admitted that the applicant may have been assigned to receive water meters in his truck, but denied that he expected him to lift them in and out if he was unable to do so.

20On December 14, 2009, the applicant went off work again because of his knee injury. The applicant’s supervisor filled out another Report of Injury/Accident, which indicated that he would be able to offer modified work to the applicant. On December 18, 2009, he then delivered a written modified work offer to the applicant, which offered him the opportunity to do office work on a temporary basis.

21On January 10, 2010, the applicant saw an orthopaedic surgeon. The surgeon’s clinical notes state:

I have suggested to him that in my opinion, while he may not be ready to get back to work in a full time unrestricted capacity standing and walking throughout the day, he certainly should be able to work in a more sedentary office type job. [Emphasis added]

22The applicant remained off work, and on March 31, 2010, he had further surgery on his knee. On June 15, 2010, he submitted a new Return to Work form, which was filled in by his family doctor, to the respondent. The form indicated that he was able to return to work on modified duties, and that his main restrictions were (1) occasional lifting only; (2) no prolonged sitting, standing and walking; (3) avoid uneven ground; and (4) avoid crouching/kneeling. The form did not place any restrictions on lifting heavy loads. The form also stated:

Mr. Tiano wants to resume duties as locator but walking should be limited along with locations. [Emphasis added]

23On June 21, 2010, the applicant returned to work, and attended a meeting with his union representative and his supervisor. The supervisor took notes about what was discussed. The union representative told the supervisor that the applicant should not be assigned work on uneven ground, that his on-site assessment about his ability to perform certain work without injury should be respected, that he should start working slowly, and that if he became tired, he should be allowed to come back and do office work. The supervisor told the applicant and the union representative that the applicant would begin with easy locates, that he would not have to do much walking, that office work was still available, and that he could go out to the sites with another locator or a casual employee.

24The applicant and his supervisor’s accounts of whether the supervisor then actually accommodated the applicant’s disability-related needs differ. The applicant testified that following the meeting, he was assigned office work for the remainder of the day, but on his second day of work, his supervisor told him that he was to return to his regular job and would receive no accommodation. He also stated that on June 25, 2010, his supervisor instructed him to install water meters with a casual employee, and that when he objected that the assignment was outside his restrictions, his supervisor threatened to discipline him. He stated that his supervisor instructed him to install water meters again on July 9, 2010.

25In cross-examination, the applicant denied that his supervisor offered him office work. He maintained that after his first day back, his supervisor told him that he had to return to his locator job. He further stated that his supervisor denied his subsequent requests to do office work.

26In cross-examination, the applicant also initially denied that his supervisor assigned him a driver/helper. However, when pressed on this matter, he stated that his supervisor occasionally assigned summer students or unqualified employees to drive and assist him.

27The applicant’s supervisor, on the other hand, testified that he did, in fact, accommodate the applicant’s disability-related needs by following all the agreed upon points from the June 21, 2010 meeting. He stated that upon his return to work, the applicant told him that he preferred to do locate work rather than working in the office. He also stated that office work was always available, but that the applicant never asked for it. He further stated that, although he cannot recall what happened on specific days, he recalls that he cautioned the applicant to only do what he was able to, and not to hurt himself.

28In cross-examination, the supervisor admitted that he assigned the applicant to install water meters, and that installing such meters involves kneeling on the ground, but he denied that he expected the applicant to do the physical installation. Rather, he stated, he assigned another employee to work with the applicant with the expectation that the other employee would do the physical work.

29In November 2010, the respondent’s Water Division was reorganized, which resulted in a separation of the water meter and locate functions of the applicant’s job. As a result, the applicant and other employees were asked to choose which function they preferred and where they preferred to work. The applicant chose to work on locates out of a new yard with a new supervisor.

30On January 10, 2011, the applicant met with his new supervisor. At that time, the supervisor was not aware of the applicant’s disability-related restrictions because none of the documents about his injury had been transferred to his new location. The applicant told his supervisor what his restrictions were, and the supervisor also contacted a Water Division manager, who provided further information about the applicant’s restrictions.

31On March 1, 2011, the applicant went off work because he was experiencing pain in his knees. Upon his return to work on March 7, 2011, his new supervisor asked him to provide a medical certificate to justify his absence. The collective agreement between the respondent and the applicant’s union provides that an employee who is absent for more than three consecutive days shall provide a medical certificate to the respondent.

32On March 11, 2011, the applicant and his union representative met with his new supervisor and a Water Division manager. A number of issues were discussed. With respect to the issues around the applicant’s health and functionality in his job, a joint decision was made to refer him to the respondent’s Employee Health and Rehabilitation Services (“EHRS”) unit for an assessment. The EHRS unit has medical professionals who can assess an employee, and provide recommendations to management on accommodating the employee’s disability-related needs in the workplace.

33On March 29, 2011, the Water Division manager and the applicant’s new supervisor contacted the EHRS unit to refer the applicant. The referral process was delayed because an EHRS health consultant requested, but did not receive, the Division’s file on the applicant’s injury.

34On May 17, 2011, the Water Division manager sent a Request form to the EHRS unit, which indicated that the Division had been accommodating the applicant by reducing his workload, shortening his walking distances, and providing him with rest periods. The form also indicated that the specific concerns to be addressed were the applicant’s ability to perform his daily work assignment, and his ability to walk, stand, bend, drive, and sit. Again, the referral process was delayed because an EHRS health consultant requested, but did not receive, the Division’s file on the applicant’s injury.

35On June 24, 2011, an EHRS health consultant sent the applicant a letter, which indicated that an appointment with a physiotherapist and her was scheduled for June 30, 2011 to assess his current medical condition, and clarify his functional abilities and limitations in relation to his job. The letter also directed the applicant to bring any pertinent medical information that could assist in the assessment.

36On June 30, 2011, the applicant and his union representative attended the appointment. The Water Division had still not provided its file on the applicant’s injury to the EHRS unit. The applicant did not bring any medical documents with him either. The physiotherapist examined the applicant and filled out an assessment form. The form indicated that the examination and assessment was limited because the applicant was experiencing pain, and there was a lack of medical documentation. The form recommended that the applicant continue with his current restrictions, and that medical documentation be obtained as a follow up. At the end of the appointment, the health consultant gave the applicant a consent to release information form (“consent form”), and asked him to sign and return it so that the EHRS could obtain updated medical information from his doctor.

37In July 2011, the EHRS health consultant requested again that the Water Division provide its file on the applicant’s injury, and the Division then provided documents dated from 2003 to June 2010. The health consultant also asked the applicant again to sign and return the consent form. In response, the applicant asked the consultant to send him a list of the documents that she received from the Division, which she did, but he never returned the consent form.

38The applicant and his new supervisor’s accounts of whether the supervisor accommodated the applicant’s disability-related needs from January 2011 onwards differ. The applicant testified that on February 14, 2011, his regular vehicle went into the garage for service, and he was provided with a replacement vehicle for approximately one week, which had a driver’s door that would not open. As a result, he stated, he had to enter and exit the vehicle using the passenger door, and had to climb over a cabinet to get in and out of the driver’s seat, which was contrary to his medical restrictions. He also stated that on February 14 and 17, 2011, he told his supervisor about the situation, and requested either a safer vehicle or that he be able to go with a co-worker in another vehicle, but his request was denied.

39The applicant also testified that on February 11, 2011, he provided his new supervisor with a doctor’s note dated February 10, 2011. The note, which was admitted into evidence, indicated that the applicant had “limited mobility”, and stated: “He is unable to walk any distances and his walking should be limited to short distances.” The applicant stated that, despite providing this note, after he returned from being off work for pain-related reasons in early March 2011, his supervisor demanded that he provide a doctor’s note because he found his absence “suspicious”. The applicant also stated that when his union representative asked during the March 11, 2011 meeting whether he could take rests during the work day, his supervisor and the Water Division manager responded that if he stopped to rest, he would be suspended.

40The applicant also testified that his new supervisor refused to comply with his restrictions. Specifically, he stated, his supervisor regularly assigned him locate work, which required him to walk long distances. For example, he stated, on August 22, 2011 and March 5, 2012, he had to walk a total of 700 meters. He also stated that whenever he told his supervisor that he could not walk such long distances, his supervisor threatened to send him home without pay.

41The applicant further testified that when he attended the medical assessment at the EHRS unit on June 30, 2011, the health consultant informed him the unit had not received any medical documentation from the Water Division.

42In cross-examination, the applicant stated that he continued to be denied office work. He also initially denied that his new supervisor assigned him a driver/helper, but when pressed on this matter, he stated that his supervisor occasionally assigned summer students or unqualified employees to drive and assist him. He also admitted that he never returned the consent form to the EHRS unit, but stated that was because he had provided updated doctor’s notes to his supervisor dated February 10, 2011 and May 16, 2011, but the Water Division had not forwarded them to the EHRS unit.

43The applicant’s new supervisor, on the other hand, testified that he did, in fact, accommodate the applicant’s disability-related needs. He denied that the applicant ever told him he could not enter and exit a vehicle that he was using through the driver’s door. He stated that he would not have allowed such a vehicle to be sent out on the road because it was unsafe.

44In cross-examination, the new supervisor stated that he cannot recall using the word “suspicious” to describe the applicant’s absence from work in early March 2011, but he was justified in asking the applicant for a doctor’s note because the collective agreement provides that an employee who is absent for more than three days must provide such a note. The supervisor also denied that he told the applicant during the March 11, 2011 meeting that he would suspend him if he stopped to rest.

45The new supervisor also testified that the applicant was assigned one-off, residential locates, and, although there were rare times when he worked alone, he was almost always assigned to work with a seasonal worker or another locator, who would do the physical work. He also stated that if the applicant was having difficulty walking, he was expected to rest and allow his partner to do most of the walking. He further stated that the applicant was offered but declined office work because he was not interested in working inside.

46In cross-examination, when asked whether he received the February 10, 2011 and May 16, 2011 doctor’s notes from the applicant, the new supervisor stated that he could not recall, and that all the notes that he received would have been in the applicant’s file at the Water Division.

47The EHRS health consultant also testified that the EHRS unit was unable to continue with the assessment of the applicant because he failed to return a signed consent form. She stated that, without a signed consent form, the unit was unable to obtain updated medical information from his doctors.

48In April and September 2011, the applicant sent letters of complaint to the City Manager, which alleged that the Water Division had failed to provide him with proper modified duties, and had violated the Code and other employment-related legislation.

49The applicant testified that on October 12, 2011, he found an anonymous letter on his car, which stated: “Not even the letter you wrote can help you. Watch yourself.” He stated that his car was also smeared with feces. In cross-examination, he admitted that he did not report this incident to anyone in the Water Division, but stated that he reported it to the City Manager and the Mayor.

50In the fall and early winter, the manager of the respondent’s Human Rights Office processed and investigated the applicant’s complaints. She ultimately decided that his complaints lacked merit. She sent him an email dated February 15, 2012 with her findings:

There is no evidence of a breach of any employment legislation and/or City Policy or reprisal by City management against you as you allege. The evidence demonstrates that you were offered modified work which you refused and that you recently chose not to provide consent to the City’s Employee Health and Rehabilitation unit of Human Resources Division – as requested to address your accommodation. Under the City’s Employment Accommodation Policy, all parties are required to participate, in good faith in the employment accommodation process….

ANALYSIS

Applicable Law and Issues

51The Application relates to ss. 5, 8, 9, and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

(…)

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

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

(…)

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

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

52The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

53In this case, the two main issues to be decided are the following:

1. Did the respondent discriminate against the applicant by failing to accommodate his disability-related needs up to the point of undue hardship?

2. Did the respondent subject the applicant to an act of reprisal for claiming his Code right to have his disability-related needs accommodated?

Did the respondent discriminate against the applicant by failing to accommodate his disability-related needs up to the point of undue hardship?

54In order to establish a case of discrimination, the applicant must prove that (1) he had, or was perceived to have, a disability, (2) he received adverse treatment, and (3) his disability was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, and Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

55In the case at hand, there was no dispute that the applicant had a disability within the meaning of the Code. The main dispute was whether the applicant received adverse treatment, and, if so, whether his disability was a factor in the adverse treatment.

56With respect to the second and third parts of the discrimination test, s. 17 of the Code requires that an employer accommodate an employee’s disability-related needs, as they relate to performing the essential duties of the job, up to the point of undue hardship.

57It is well-established that the accommodation process is a shared responsibility. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 43. In order to trigger the duty to accommodate, the employee is not required to inform the employer of all the details of his disability, but he should inform the employer that he has disability-related needs, and endeavour to provide as much information as possible to facilitate the search for accommodation. See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para. 35.

58Once the duty to accommodate has been triggered, the employer must meet both its procedural and substantive obligations. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship. See Baber v. York Region District School Board, 2011 HRTO 213 at para. 94.

59However, this does not mean that there is a reverse onus. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that discrimination because of disability has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119.

60In my view, the applicant did not prove, on a balance of probabilities, that the respondent discriminated against him by failing to accommodate his disability-related needs up to the point of undue hardship because, on the whole, the respondent’s evidence was far more credible and reliable than the applicant’s.

61In assessing credibility and reliability, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

62I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

63I find that between November 2, 2009 and May 8, 2012, the respondent accommodated the applicant’s disability-related needs up to the point of undue hardship. I prefer the supervisors’ testimony over the applicant’s with respect to the factual disputes over whether they offered him modified duties, whether he refused certain modified duties, whether they assigned him modified duties, and whether they required him to perform work outside his medical restrictions. The applicant’s testimony was generally vague, and unsupported by any other evidence. By contrast, the supervisors’ testimony was fairly detailed, and supported by written notes and documents, which they identified, and which I accept were made at or near the time that the incidents at issue arose. I have admitted these notes and documents, not for the truth of their contents, but rather because they show that the supervisors’ testimony was not a recent invention, as suggested by the applicant. For the most part, I found the supervisors’ testimony to be more in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions than the applicant’s.

64I do not accept the applicant’s testimony that when he returned to work on November 2, 2009 following a disability-related leave, his supervisor told him that there was no modified work available, and soon after he returned to work on June 21, 2010 following a further leave, his supervisor told him that he would receive no accommodation. The supervisor documented the availability of modified work and the applicant’s requests for modified duties, including during a meeting with the applicant and his union representative, and I prefer his testimony that he granted the applicant’s requests.

65Given that the respondent is a large public sector employer with a formal process for accommodating employees with disabilities, and the applicant had a right to complain about a failure to accommodate through his union, I find it improbable that the supervisor would have documented these matters, and then outright refused to accommodate the applicant’s disability-related needs. Furthermore, there is no evidence that the applicant complained to his union about his supervisor’s alleged outright refusal. Given that he involved his union in the accommodation process at certain junctures, I believe that he would have complained to his union if his supervisor had outright refused to accommodate his needs upon his return from disability-related leaves.

66I also do not accept the applicant’s testimony that his supervisors denied his requests for office work. Rather, I prefer his supervisors’ testimony that office work was available, but he declined it when it was offered to him, and never asked for it because he wanted to work outside rather than indoors. Again, the applicant’s original supervisor documented his offer of office work to the applicant, and I find it improbable that he would have done so, and then outright refused the applicant’s request for office work. Furthermore, I find it revealing that during the applicant’s second disability-related leave, his original supervisor sent him a written offer to do office work, and his surgeon’s clinic notes indicate that he then also suggested to the applicant that he do office work, but when the applicant was about to return to work, his family doctor submitted a form, which made no mention of office work. Rather, the form stated that the applicant wanted to resume his duties as a locator.

67I also do not accept the applicant’s testimony that his supervisors only occasionally assigned someone else to assist him. Rather, I prefer his supervisors’ testimony that they almost always assigned someone else to assist him. The original supervisor provided detailed testimony, which was supported by his notes, about when he initially offered the applicant the opportunity to have someone assist him (which, according to his supervisor, the applicant declined), and when the applicant began working with someone else. Both supervisors also clearly explained why they assigned someone else to work with the applicant (to assist him with driving and physical work). By contrast, the applicant’s testimony, particularly in cross-examination, was evasive. Initially, he outright denied that his supervisors ever assigned someone to assist him. It was only when he was pressed on this matter that he stated that his supervisors occasionally assigned someone else to assist him. I did not find the applicant’s testimony on this matter to be credible.

68I also do not accept the applicant’s testimony that his supervisors required him to perform duties beyond his restrictions. Rather, I prefer his supervisors’ testimony that he was never expected to perform duties beyond his restrictions. I will start by setting out what the applicant’s known medical restrictions were, and then set out my findings with respect to the supervisors’ compliance with these restrictions.

69From November 2, 2009 onwards, the applicant’s main restrictions, according to the medical documentation that he submitted to the respondent, were (1) occasional lifting only; (2) no prolonged sitting, standing and walking; (3) avoid uneven ground; and (4) avoid crouching/kneeling. There were no documented restrictions on lifting heavy loads.

70There was a dispute between the parties as to whether the applicant provided a further medical note dated February 10, 2011 to his new supervisor. I do not need to decide this matter because even if the applicant did provide such a note, it did not clarify what his restrictions were. The note merely indicated that the applicant had “limited mobility”, and stated, quite confusingly: “He is unable to walk any distances and his walking should be limited to short distances.” The applicant testified that at the March 11, 2011 meeting, his supervisor and the Water Division manager told him that this note had no meaning and was open to interpretation. Even if it is true that they said this, I can see why they did, and why the applicant was referred to the EHRS unit for an assessment.

71I do not accept the applicant’s testimony that he was required to walk beyond his restrictions. The applicant’s restriction was no “prolonged” walking, and he requested that his assignments be small, single locations. Although he stated that he was assigned 13 individual site inspections on November 2, 2009, and had to walk a total of 700 meters on August 22, 2011 and March 5, 2012, he did not explain how these assignments constituted “prolonged” walking. He also stated that whenever he asked to rest or complained that he could not walk certain distances, he was threatened with discipline or being sent him home without pay, but he did not present any evidence that he had actually ever been disciplined or sent home without pay. Furthermore, in view of the fact that his supervisors had offered him office work and almost always assigned someone else to assist him, I am more inclined to accept their testimony that they assigned him one-off sites, and if he had difficulty walking, he was expected to rest and allow his partner to do most of the walking.

72I also do not accept the applicant’s testimony that he was required to perform physical tasks beyond his restrictions. The applicant’s restrictions were occasional lifting only and avoid crouching/kneeling. Although he stated that he was assigned to pick up heavy water meters on December 11, 2009, and to install meters with another employee on June 25 and July 9, 2010, he did not explain how the first task was beyond his restrictions (although there probably should have been, there were no documented restrictions on lifting heavy loads), or explain who (he, the other employee, or both of them) performed the physical aspects of the second task. Furthermore, in view of the fact that his supervisors had offered him office work and almost always assigned someone else to assist him, I am more inclined to accept his original supervisor’s testimony that he was not expected to do heavy lifting or kneel and install meters, and that another employee was expected to do these physical tasks.

73I also do not accept the applicant’s testimony that he was required to operate a motor vehicle beyond his restrictions. Although he stated that he was assigned a replacement vehicle with a driver’s door that would not open, and he had to climb over a cabinet to get in and out of the driver’s seat for approximately one week in February 2011, he did not explain how this was beyond his restrictions. In any case, even if it is true that the applicant was operating such a vehicle, in view of the safety and liability issues that such a practice would raise for the respondent, I am more inclined to accept his new supervisor’s testimony that the applicant never told him about these specific issues with the vehicle.

74Finally, I agree with the applicant that the Water Division’s management’s unexplained four-month delay in forwarding its file on his injury to the EHRS unit, and particularly its failure to forward the file before his June 30, 2011 medical assessment, was completely unacceptable – all the more so if it is true, as the applicant alleges, that recent medical documentation that he had submitted to his supervisor was missing from the file. However, I do not accept that this then justified his refusal to sign and return a consent form to the unit.

75I disagree with the applicant’s suggestion that if the Water Division had forwarded its file on his injury, including recent medical documentation, to the EHRS unit, that would have been sufficient. Rather, I prefer the health consultant’s testimony that, without a signed consent form, the EHRS unit was unable to continue with its assessment of the applicant because it had no means of obtaining updated medical information from his doctors. The main reason that the applicant was referred to the EHRS unit was to assess his current medical condition, and clarify his functional abilities and limitations in relation to his job. The file certainly would have had useful background information, but many of the medical documents were ageing, and even if it included newer documents, as mentioned above, the most recent doctor’s note on the applicant’s restrictions dated February 10, 2011 was confusing.

76By refusing to sign and return a consent form, the applicant effectively stymied the accommodation process.

77In light of all the above, the applicant’s allegation that the respondent failed to properly accommodate his disability-related needs is dismissed.

Did the respondent subject the applicant to an act of reprisal for claiming his Code right to have his disability-related needs accommodated?

78In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

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

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

79The applicant suggested that on October 12, 2011, as a reprisal for claiming his Code right to have his disability-related needs accommodated, the Water Division’s management smeared his car with feces, and placed an anonymous letter on it, which stated: “Not even the letter you wrote can help you. Watch yourself.”

80In my view, this allegation is without merit. The applicant did not disclose a copy of the alleged letter, present any corroborating evidence, such as photographs, that his car had been smeared with feces, or specify who he believed had committed this act. In short, he presented no reliable evidence that the Water Division’s management had committed such an act.

81Therefore, the applicant’s allegation that the respondent subjected him to an act of reprisal for claiming his Code right to have his disability-related needs accommodated is dismissed.

ORDER

82The Application is dismissed.