HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Lee
Applicant
-and-
Kawartha Pine Ridge District School Board
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Lee v. Kawartha Pine Ridge District School Board
APPEARANCES
Robert Lee, Applicant
Self-represented
Kawartha Pine Ridge District School Board, Respondent
Brenda Bowlby, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability, family status and marital status and reprisal or threat of reprisal.
2The applicant worked for the respondent as a custodian at Adam Scott Secondary Vocational Institute ("ASCVI"). On June 22, 2006, he had a meeting with his supervisor and the head custodian, which the applicant states was traumatic for him and is the source of an ongoing mental disability. After a lengthy period on long-term disability, the applicant returned to work at Ridpath Elementary School in Lakefield ("Ridpath"). The applicant alleges that while he was working at Ridpath, he experienced discrimination because of disability due to an alleged failure to accommodate a back injury. He further alleges that he was assigned a large area to clean as a reprisal for having filed a previous human rights complaint or as harassment or discrimination because of disability.
3In January 2009, the applicant was transferred away from Ridpath to a temporary position at Lakefield District Secondary School ("LDSS"), which the applicant alleges is discrimination because of disability. In February 2009, the respondent intended to re-assign the applicant back to ASCVI, but after receiving some letters from the applicant's family doctor, provisionally assigned him to work on an as-needed basis at other schools. The applicant refused any assignments except for assignments at LDSS, and was not paid sick pay or allowed to use vacation or float days to cover his absences. The applicant also was denied payment for Family Day. This he alleges is also discrimination because of disability on the basis of his family doctor's recommendation that he only be assigned to work at LDSS.
4The applicant then applied for long-term disability ("LTD") benefits, but was not approved. The respondent held off requiring the applicant to return to ASCVI pending the LTD insurer's determination of this issue and consequent appeals and reviews, which lasted until late October 2009. Thereafter, the applicant filed a grievance through his union alleging discrimination because of disability due to a failure to place him in a vacant position at LDSS. This grievance wended its way through the grievance process, but ultimately was unresolved and withdrawn by the union. Thereafter, the applicant was required by the respondent to return to ASCVI or be considered to have abandoned his employment. When the applicant failed to return to ASCVI, his employment relationship with the respondent was terminated effective April 21, 2010. This, the applicant alleges, constitutes discrimination because of disability, again on the basis that assigning him to ASCVI went against his doctors' recommendations.
5The hearing in this matter was held on September 23, 24 and 25 and on November 14, 2013. As the applicant was self-represented, I took the lead in questioning his witnesses and was active in questioning the respondent's witnesses on the issues before me. For the applicant, I heard from: the applicant himself, the applicant's family doctor, the applicant's clinical counsellor, and the applicant's psychiatrist. For the respondent, I heard from: the Northern Supervisor for Custodial Services; the former Head Custodian at ASCVI; the former Eastern Supervisor for Custodial Services; two disability management consultants for the respondent; and the respondent's Senior Employee & Labour Relations Consultant ("SELRC"). The parties agreed to make their final submissions in writing, with the last of these submissions due on February 14, 2014.
6At the outset of the hearing, I sought clarification from the parties as to the issues raised before me on which the applicant was asking that I find that his rights under the Code had been violated.
7On the basis of my review of the amended Application filed in December 2011, I identified three issues that appeared to give rise to an allegation of a violation of the Code. The applicant identified an additional allegation and, after hearing submissions from the parties, I was satisfied that a fourth alleged Code violation arose from the amended Application. While a fifth alleged Code violation also was identified by the applicant, I ruled that this allegation had not been sufficiently particularized in the amended Application and therefore I would not consider this allegation. Nonetheless, the parties addressed this allegation in their written submissions, and so I will address it briefly below. In the end, no allegations of discrimination because of family status or marital status proceeded before me.
8The issues before me in the order in which they will be addressed in this Decision are:
a. did the respondent violate the duty to accommodate the applicant's back injury in the spring of 2008?
b. does the area size assigned to the applicant at Ridpath constitute reprisal or harassment because of disability?
c. did the applicant's re-assignment away from Ridpath in early January 2009 constitute discrimination against the applicant because of disability on the basis that the respondent no longer felt that medical accommodation for the applicant was necessary?
d. did the respondent discriminate against the applicant in February 2009 when it did not allow him to use sick days, float days or vacation days to cover days when he was assigned to schools outside of Lakefield? and
e. did the respondent violate the duty to accommodate by requiring the applicant to assume a caretaker position at ASCVI during the period from February 2009 to the termination of his employment effective April 23, 2010?
9Before turning to the evidence in relation to these issues, I will first address the evidence I heard about a meeting on June 22, 2006, which the applicant identifies as the root cause of his mental disability.
June 22, 2006 meeting
10As indicated in my Interim Decision in this matter dated September 20, 2012 (2012 HRTO 1792), the issues raised by the applicant in relation to the meeting on June 22, 2006 with the Northern Supervisor and the Head Custodian at ASCVI are not before me for determination because a complaint raising these issues was made to the Ontario Human Rights Commission and not transferred to the Tribunal through an application under the transitional provisions in the Code by the deadline of June 30, 2008. As a result, these issues are barred from determination as a result of s. 53(8) of the Code.
11Nonetheless, I heard evidence regarding this meeting on the basis that what occurred at this meeting has been identified by the applicant and his doctors as the precipitating cause of his mental health issues. Accordingly, I will briefly review the conflicting evidence regarding what occurred at this meeting.
12The origins of this meeting start with an issue over ducks in a courtyard at ASCVI. The applicant states that he and another custodian were asked by the night shift supervisor, who wants to cut the grass in the courtyard? They both declined. At that time, there were concerns about the potential spread of avian flu. The applicant contacted the local public health unit to ask whether cutting the grass in the courtyard with duck feces on the ground posed a health risk. He states that he was told that it did.
13The applicant was subsequently encountered by the Northern Supervisor, who is alleged to have stated that the applicant and another custodian refused a direct order to cut the courtyard grass. This was denied by the applicant and the other custodian, on the basis that they were not given a direct order to do so. The applicant states that the Northern Supervisor appeared to accept this at the time.
14This was followed by an announcement that custodians would no longer be able to trade shifts with the same person on a regular basis. This impacted the applicant particularly, as he had been regularly trading shifts with another custodian. The applicant believed that he was being targeted because he had called the public health unit.
15Another issue leading up to the June 22, 2006 meeting was the applicant's request that he be allowed to work through a week of vacation, and be paid for his work and the vacation week due to financial difficulties that he and his family were experiencing at the time. The applicant states that he was told by Payroll that this could be done with the Northern Supervisor's approval. The respondent states that this is not correct, and that it does not pay its employees for an extra week in the manner requested by the applicant. It is stated that what the applicant was told was that he could discuss the matter with the Northern Supervisor, not that the Northern Supervisor had the power to authorize such a payment.
16The applicant raised these issues with the Associate Director of Education, who arranged the June 22, 2006 meeting in order to try to clear the air. The applicant states that he was told that the meeting would just be for the purpose of assuring him that the Northern Supervisor had no issues with his work. The Associate Director proposed that the Head Custodian at ASCVI also attend the June 22, 2006 meeting as a witness, and the applicant agreed to this.
17The applicant's evidence is that the June 22, 2006 did start with confirmation by the Northern Supervisor that he had no issues with the applicant's work. However, the applicant states that the Northern Supervisor went on from there to address the outstanding issues. The applicant states that he was asked whether he had contacted the public health unit, to which he replied that he had. The applicant states that the Northern Supervisor then said in a "loud, threatening voice": "Keep doing what you're doing and you won't have a single friend left at Adam Scott". He states that the Northern Supervisor said that the applicant had cost the respondent a lot of money to clean up the courtyard.
18The applicant states that the Northern Supervisor then proceeded to address the issue of trading shifts, and confirmed that the applicant would no longer be permitted to do so. The applicant's evidence is that the Northern Supervisor was yelling when he said this. He states that the Northern Supervisor then made reference to the applicant's previous complaint to the Commission, and said that he thought "this" was all over as a result of the resolution of that complaint ("this" presumably in reference to prior conflict between the applicant and the Northern Supervisor).
19The applicant states that the Northern Supervisor then proceeded to address the applicant's request to be paid for working and for vacation, and confirmed that this could not be done. When the applicant raised the issue of his financial difficulties, the applicant states that the Northern Supervisor replied, "That's what banks are for". The applicant states that the Northern Supervisor then proceeded to chastise him for having contacted Payroll about this issue, and stated that the applicant had no right to do so just as he had no right to contact the public health unit. The applicant states that he was also told by the Northern Supervisor that he was not to be calling the Associate Director of Education with his problems, and said that the applicant was not a man because he wasn't man enough to raise these issues with the Northern Supervisor.
20The applicant's evidence is that this led to a further exchange about cutting the grass in the courtyard, with the Northern Supervisor yelling that the applicant had failed to follow instructions. The applicant states that when he replied that he had not been ordered to cut the courtyard grass, the Head Custodian interjected that the applicant had been given a direct order by the night supervisor and the applicant had refused. The applicant states that he asked to call down the other custodian as a witness that this was not the case, but this was denied. While in his original written account of this exchange the applicant states that the Head Custodian "insinuated" that he was a liar, in later written accounts of this meeting the applicant states that the Head Custodian actually called him a liar.
21The applicant states that he was "interrogated" for one hour. In his original account of the meeting, the applicant states that he knows more was said by the Northern Supervisor, but he cannot remember it all. In later accounts, the applicant states that he "blacked out" during part of the meeting. The applicant states that at one point in the meeting, the Northern Supervisor was very rude and belligerent and yelling that he wanted a yes or no answer, but the applicant cannot recall what that was about. The applicant states that he left the room with tears in his eyes, and apologized even though he knew he had not done anything wrong.
22In later versions of this meeting and in his testimony at the hearing, the applicant states that at some point during the meeting, the Northern Supervisor was waving his arms above the chairs while yelling at the applicant.
23The applicant saw his family doctor on June 24, 2006. The family doctor's notes record that the applicant reported that he had been bullied, belittled and job threatened at a meeting with his supervisor, and had been off work since June 23, 2006. These notes record that the applicant's stress level was high, that he was unable to sleep, and was experiencing anxiety, insomnia, upset and diarrhea as a result of the stress.
24I also heard evidence from the other two attendees at the June 22, 2006 meeting, who provided a very different version of what occurred. The Northern Supervisor's evidence is that he had been asked to meet with the applicant to "calm the waters". He states that the meeting was about 20 minutes in length. His evidence is that he first addressed the applicant's request to work and also be paid out his vacation time, and confirmed that this could not be done. He states that the applicant became upset at this point, and left the room to gather himself. This is denied by the applicant.
25The Northern Supervisor's evidence is that when the applicant returned, he addressed the applicant's call to the public health unit, and stated that he would have liked to have had an opportunity to discuss the applicant's issues with him before the public health unit was involved, and that there was a protocol to be followed. He states that he said that he would like to have a chance to rectify a problem before the applicant went to others to complain.
26The Northern Supervisor states that he spoke in a normal voice, and did not yell during the meeting. He denies making the comments attributed to him by the applicant, or waving his hands as alleged. He states that he shook hands with the applicant at the end of the meeting.
27I also heard from the Head Custodian. His evidence is that the meeting lasted about 15 or 20 minutes. He confirmed the Northern Supervisor's evidence that there was no yelling or raised voices at the meeting, and that the Northern Supervisor did not wave his arms around. He states that the Northern Supervisor reviewed the protocol that is to be followed if an employee has a complaint, which is to first bring the matter to the attention of the Northern Supervisor. He also confirms that the Northern Supervisor addressed the issue of the applicant's request to work and be paid out his vacation time and advised that this could not be done. The Head Custodian states that this was the only time he spoke at the meeting, to confirm that this issue had been raised by the union in collective bargaining and the union had been told this could not be done. The Head Custodian denied calling the applicant a liar, and confirmed that the Northern Supervisor did not make the statements attributed to him by the applicant. He confirms that they all shook hands at the end of the meeting, although his evidence is that the applicant was very upset and looked like he was on the point of crying.
28The respondent has asked me to prefer the evidence of the Northern Supervisor and the Head Custodian, and make an adverse finding of credibility as against the applicant in relation to his evidence about this meeting. In my view, it is not necessary for me to do so for the purpose of this Decision, particularly as allegations arising from what occurred at this meeting are not before me for determination.
29The respondent also takes the position that I should find that the applicant does not have a disability, on the basis that his version of what happened has been identified by his doctors as the precipitating event leading to his mental health issues and that no traumatic event occurred during this meeting that could have caused these issues. I decline to do so. The medical records indicate that the applicant was diagnosed by his doctor on June 24, 2006, as suffering from severe anxiety causing physical illness resulting in his inability to work. In the family doctor's initial report to the Workplace Safety and Insurance Board, the family doctor notes that the applicant "started to experience severe anxiety, fatigue, severe illness, chest and head pain, weeping, crying, tears" as a result of the June 22, 2006 meeting.
30Apart from a couple of days in early July 2006, the applicant was continuously off work from June 23, 2006, until October 2007, and qualified for long-term disability ("LTD") benefits on the basis that he was totally disabled from his own occupation. On April 20, 2007, the applicant was seen by a consulting psychiatrist and was diagnosed with "adjustment disorder with stressed and depressive symptoms, rule out major depressive disorder".
31While I appreciate that the diagnoses made by the applicant's family doctor and the consulting psychiatrist are based on what was reported to them by the applicant, it seems to me that I am being invited by the respondent to disregard these medical diagnoses and the fact that the applicant was absent from the workplace for an extended period of time and accepted for LTD benefits, and conclude that the applicant fabricated what occurred at the June 22, 2006 meeting and fabricated the symptoms he described to his doctors. I am not prepared to draw any such conclusion. This does not mean that I accept the applicant's version of what happened at the June 22, 2006 meeting. Rather, it means that I accept that the applicant experienced the symptoms he described to his family doctor and the consulting psychiatrist and attributed these symptoms to what he believes occurred at the June 22, 2006 meeting, and that the applicant's symptoms formed the basis for the diagnosis of a mental health disability. In order to determine the issues before me, it is my view that I do not need to go any further than this finding.
Allegation re failure to accommodate back injury
32In October 2007, the applicant returned to work from his disability leave. While his family doctor recommended that he be placed at Lakefield District Secondary School ("LDSS"), there were no openings for a custodian at that school and the applicant was placed at Ridpath Public Elementary School ("Ridpath") because a custodian there was prepared to take the applicant's position at ASCVI. The basis for this placement was the recommendation of the applicant's family doctor that the applicant be placed under a different area supervisor and a different school supervisor, and that the applicant would benefit from a work location closer to his home. While the applicant in his final written submissions appears to take issue with being placed at Ridpath rather than at LDSS, this was not identified as an issue before me. In addition, I note that the applicant's placement at Ridpath is consistent with the basis of his family doctor's recommendation, in that Ridpath at that time was not under the Northern Supervisor's authority and is located in the same community as LDSS.
33On March 23, 2008, while working at Ridpath, the applicant injured his back while moving a ramp. He returned to work shortly thereafter with limitations on lifting, bending and twisting. He was assigned modified work, performing light duties such as light dusting and desk cleaning. The applicant's restrictions remained in place until June 2008. The applicant was told not to perform work beyond his restrictions both by the respondent's WSIB disability management specialist and by his area supervisor. This is acknowledged by the applicant.
34The applicant nonetheless alleges that he was expected to perform work beyond his restrictions as a result of statements alleged to have been made by the area supervisor that he was to make sure that his area was done by the end of his shift. The applicant's evidence is that, in his mind, this meant that he was required to make sure that his entire area was clean even if he had to perform work beyond his restrictions. In his final written submissions, the applicant refers to this as an "indirect order" to work beyond his restrictions.
35I do not accept this evidence. The evidence of the WSIB disability management specialist and the area supervisor, as acknowledged by the applicant, is that they were clear that the applicant was only to perform work within his restrictions. This is documented in contemporaneous notes made by the WSIB disability management specialist at the time, in which she records having stressed with the applicant not to push himself, to stay within his limitations, to stop if he is feeling sore, and to leave jobs undone if required and leave a note for the supervisor.
36If the applicant was told by the area supervisor to make sure his area was done by the end of his shift, as the applicant alleges, I do not regard this as a direction to work beyond his restrictions. Rather, in my view and in the relevant context, this would be a direction to complete the work within his assigned area that was within his restrictions.
37An issue was raised by the applicant about a "shadow" that was assigned to assist him by doing the heavier work in his area. Issues were raised about this shadow initially being assigned to perform 8 hours of work and then having this reduced to 4 hours, and also about the shadow not working on the same shift as the applicant. The duty to accommodate under the Code does not require an employer to assign a second person to work alongside a person with a disability for a full shift in order to perform tasks that the disabled employee cannot perform. The duty to accommodate requires an employer to provide available and meaningful work to an employee with a disability that is within that employee's limitations and restrictions. That was done here. What arrangements are made by an employer to ensure that heavier tasks get done is up to the employer, as long as this does not require the disabled employee to work beyond his restrictions. Whether the "shadow" was assigned to work on another shift or given fewer hours than the applicant does not constitute a failure to accommodate the applicant's disability-related needs under the Code, so long as the work assigned to the applicant was within his restrictions. I find that it was.
38An issue also was raised about the applicant being asked to perform work in the area usually done by the Head Custodian at Ridpath. The respondent's evidence is that such work trades are often made when an employee is on modified duties, such that the disabled employee performs lighter work in a larger than usual area and other employees are thereby freed up to perform heavier tasks. Once again, in relation to this allegation, the evidence does not support that the applicant was being asked to perform work beyond his restrictions.
39Accordingly, I find that there is no basis in this allegation to support a finding of a violation of the Code.
Allegation re area size assigned to applicant
40As noted above, at the outset of the hearing, I engaged with the parties in order to identify the specific issues that the applicant was raising as alleged violations of the Code. One of the issues identified by the applicant at the hearing was an allegation that he had been assigned a larger area to clean at Ridpath either as a reprisal for having filed his prior complaints to the Commission or as harassment because of disability. After hearing and considering the parties' submissions, I ruled that this issue was not properly raised before me as it had not been articulated in the amended Application.
41Nonetheless, the parties addressed this issue in their written submissions, and so I will deal with it briefly. In the latter part of his time at Ridpath, and particularly following the arrival of a new Head Custodian and the addition of some school portables, as issue arose regarding the area size assigned to the applicant. The applicant believed that the area assigned to him was larger than the norm, could not reasonably be cleaned in the time allotted, and was inequitable compared to the area assigned to the Head Custodian. The respondent, and particularly the area supervisor, disagreed. The area supervisor's evidence is that she had a time study conducted in relation to the area assigned to the applicant, and that this area could be cleaned within an 8-hour shift.
42A work dispute over the size of an area assigned to an employee for cleaning is not an issue that engages the Code. On the basis of the applicant's allegations, this dispute is only capable of becoming a Code issue if there is evidence to support that the larger area was assigned to the applicant either as a reprisal for his prior human rights complaints or because of a disability. The evidence does not support either allegation.
43With regard to the reprisal issue, the applicant had filed human rights complaints in 2004 and 2006. Both complaints primarily raised allegations in relation to the Northern Supervisor. While the 2004 complaint does name the applicant's area supervisor at Ridpath as a personal respondent, the complaint is clear that her involvement was to act on directions alleged to have been given by the Northern Supervisor or Human Resources. The 2004 complaint was settled in 2005 at mediation. In my view, there is simply no support in the evidence to link the assignment of a larger area to the applicant as a reprisal. By the time this issue arose, the applicant had worked for his new area supervisor for almost a year and it had been some four years since his first human rights complaint and three years since the settlement. In my view, there is simply no basis in the evidence to support a connection between the applicant having filed his human rights complaints and the assignment of a larger area for him to clean.
44With regard to the applicant's allegation that this was harassment because of disability, the applicant had no physical restrictions at the relevant time, as these had been removed in June 2008. As a result, the only disability that potentially could be relevant at this time is the applicant's mental health disability. While I appreciate that dealing with depression can be an ongoing struggle, the applicant's depression had not prevented him from being able to work for about a year at the relevant time. There is simply no basis in the evidence to support that disability was a factor in the assignment of a larger area to the applicant while at Ridpath.
45Accordingly, this allegation is dismissed both on the basis that it was not raised in the amended Application and because it is not supported by the evidence.
Removal from Ridpath in January 2009
46The next issue is whether the applicant's re-assignment away from Ridpath in early January 2009 constitutes discrimination against the applicant because of disability on the basis that the respondent no longer felt that any medical accommodation for the applicant was necessary.
47In early January 2009, a decision was made by the respondent to remove the applicant from the Ridpath school and to re-assign him temporarily to LDSS. The evidence before me indicates that this decision was made for a number of reasons. First, the applicant began to raise objections about the amount of work he had to perform at the school. This is acknowledged by the applicant. Second, the applicant engaged in efforts to obtain a reduction in his work. Once again, this is acknowledged by the applicant. Third, the applicant failed to fully perform the work, which also is acknowledged by the applicant. As noted above, the applicant's view at the time was that the area assigned to him was too large and unfair, and could not reasonably be cleaned in the allotted time.
48More significantly, the Principal at Ridpath had asked that the applicant be removed from the school on the basis that he had been soliciting support from the teachers to sign a petition to obtain a reduction in his workload. This is denied by the applicant. His evidence is that he was approached by some teachers and parents about the lack of cleanliness in the school, and he informed them to raise this issue with the Principal.
49In addition, starting on December 15, 2008, the school began receiving letters from something called "The Ridpath Parents Coalition", raising issues about the lack of cleanliness in the school and indicating that they had been in contact with an inspector at the local health unit about these issues. On the basis of the information contained in this correspondence, the specific issues raised and certain idiosyncrasies of spelling and grammar, the respondent believed that this correspondence in fact was written by the applicant. This is vigourously denied by the applicant.
50The respondent has invited me to find that the applicant in fact was the author of this correspondence. In my view, it is not necessary to make such a determination to dispose of the issues before me. The evidence before me clearly supports that at the time the decision to remove the applicant from Ridpath was made, the applicant was raising issues about his work assignments, that teachers and parents were becoming involved and in turn were involving the Principal, and there were ongoing issues between the applicant and the Ridpath Head Custodian. These were the reasons that underlie the respondent's decision.
51In order to establish a violation of the Code, the evidence would need to support either that the applicant's disability was a factor in the decision to remove him from Ridpath, or that the removal from Ridpath and placement at LDSS had an adverse impact on him because of his disability, for example by placing him in a position that was contrary to his needs arising from his disability.
52With regard to the former basis for establishing a violation, the evidence does not support that the applicant's disability was a factor in this decision and the respondent has provided credible, non-discriminatory reasons for its decision. The issue for me is not whether all of the reasons cited by the respondent are true, such as the allegation that the applicant was asking teachers to sign a petition or that he wrote the letters from the parents coalition, but whether the respondent believed these allegations to be true at the time and are not putting these reasons forward as a pretext for discrimination. In my view, there is a reasonable basis in the evidence to support the respondent's belief in the reasons provided for removing the applicant from Ridpath, and the evidence does not support that this was a pretext for discrimination against the applicant because of disability.
53With regard to the second basis for establishing a Code violation, the evidence does not support that moving the applicant from Ridpath to LDSS was contrary to any medical accommodation he may have required at the time. The applicant's doctor originally had proposed LDSS as the recommended location for his return to work in October 2007. At the time, in early January 2009, LDSS was not under the authority of the Northern Supervisor, but was under the authority of the same area supervisor that the applicant had at Ridpath. In fact, in a letter dated January 10, 2009, the applicant's family doctor wrote a letter stating that the applicant "is advised to remain at one of the two schools in Lakefield for medical reasons". LDSS is one of the two schools in Lakefield. Accordingly, this re-assignment was not contrary to any restrictions the applicant may have had at that time as a result of his mental health disability.
54The applicant states that at a meeting on January 5, 2009, he was told by the SELRC that she was taking away his medical accommodation by removing him from Ridpath because such accommodation was no longer required. The SELRC denies making this statement. But regardless of whether or not any such statement was made, any accommodation the applicant required was not in fact taken away as a result of his re-assignment.
55Accordingly, this allegation is not supported by the evidence.
Denial of use of sick days, vacation and float days and Family Day
56The applicant's re-assignment to LDSS was temporary, as he was replacing a custodian who was on a medical leave. By early February 2009, this custodian had returned to work and the custodial staff at LDSS was over-complement. As a result, the respondent needed to determine where the applicant would be assigned.
57Also at this time, a decision was made by the respondent to re-align management responsibilities in the custodial area, with the Northern Supervisor assuming responsibility for the Lakefield schools, including LDSS and Ridpath. This decision was made due to the home location of the Northern Supervisor and the fact that he was already passing through Lakefield in order to get to the other schools for which he was responsible, and because his home location made him more available to attend to issues at the Lakefield schools than the Eastern Supervisor. I am satisfied on the evidence before me that this re-assignment was not made because of the applicant's work location in Lakefield or in an effort to defeat the accommodation being provided to the applicant.
58However, the fact that the Northern Supervisor would now be responsible for the Lakefield schools did have an impact on any accommodation required for the applicant's disability, as the applicant's re-assignment to schools in Lakefield had been made in order to remove him from the Northern Supervisor's authority.
59As a result, the respondent scheduled a meeting for February 4, 2009, to be attended by the applicant and management staff in order to discuss the applicant's work location in light of the fact that custodial staff at LDSS was now over-complement and due to the changes in managerial responsibility. Given that the Northern Supervisor would now be assuming responsibility for LDSS and the applicant was no longer required to fill in as a custodian as LDSS, the respondent's proposal was to return the applicant to his home position as a custodian at ASCVI. However, the purpose of the February 4, 2009 meeting was to discuss these changes with the applicant and to "hash out" any required accommodation.
60After the applicant was notified about the February 4, 2009 meeting, he became concerned about what was going to be discussed and proposed at this meeting. As a result, on February 3, 2009, the applicant spoke to a disability management consultant with the respondent in order to inquire about what was to be discussed at this meeting. The applicant's evidence is that he was told in this discussion that he was going to be assigned back to ASCVI. This was very upsetting to the applicant. The applicant expressed uncertainty as to whether or not he would attend the February 4, 2009 meeting, and ultimately did not attend. His evidence is that he made efforts to attend the meeting, but was unable to do so due to various symptoms that he associates with the stress of the situation.
61After the applicant did not attend the February 4, 2009 meeting, an e-mail was sent to him by the disability management specialist advising him that the purpose of the meeting was to discuss his return to work at ASCVI on Monday, February 9, 2009. The applicant was told that if he was unable to report for work for medical reasons, he was to advise the respondent and have his doctor complete a Functional Abilities Form ("FAF").
62The applicant provided a letter from his family doctor dated February 6, 2009. In this letter, the family doctor refers to the applicant as having developed "severe stress anxiety" as a result of what was described as a "traumatic experience" at ASCVI in 2006. The letter referred to the applicant having been transferred to LDSS in early January 2009, and stated that the applicant "was happy with the move and had no problems performing all duties". With regard to the applicant's assignment back to ASCVI, the family doctor states:
Due to past problems, physically and emotional [the applicant] will not be able to cope with this job placement change. [The applicant] has had no complaints or restrictions in his job functions at either of his two placements following the problem at Adam Scott School. It is my opinion that he should not return to a post that will most certainly prove to be a health risk.
63On February 10, 2009, the applicant's family doctor also completed the FAF. The FAF did not indicate any physical restrictions for the applicant. However, the family doctor stated on the form: "Physically and mentally unable to work at Adam Scott School or under Northern Area Supervisor. Can work with no limitations at other sites. Advised to work at LDSS." This restriction was described as applying "indefinitely".
64The family doctor also provided two letters, both dated February 11, 2009. One of these letters states that the applicant "has been absent from Feb 4th / 09 to the present date for medical reasons and will remain so until medical recommendations are in place, simply that his work area remain in Lakefield as I have requested." The second letter states, "As stated in previous documentation by myself and FAF form sent, [the applicant] is unable to be moved to other sites due to severe anxiety stress and mental anguish. It is my medical opinion that such an action would cause severe health issues."
65The respondent sent two letters to the applicant, one dated February 11, 2009, and the second dated February 12, 2009. With these letters was a further letter addressed to the applicant's family doctor setting out a list of questions arising from the documentation provided. The applicant was instructed to provide this letter to his family doctor for the doctor's response. In the interim, the respondent stated that it was prepared to provide the applicant with the benefit of the doubt and continue to "accommodate" him pending receipt of answers to these questions. The respondent advised that the applicant would be assigned on a day-to-day basis by the Eastern Supervisor to schools under her authority either to replace absent custodians or provide additional short-term extra help as required. This was expressed as a temporary solution until the applicant's family doctor replied to the respondent's questions. It was stated that the applicant would not be paid sick pay for any day on which he refused to work at an assignment made to him by the Eastern Supervisor, unless and until the respondent was able to determine that his refusal was because he was legitimately ill or that the refusal was otherwise legitimately due to disability.
66The applicant was assigned to work at a school within the Eastern Supervisor's authority on February 11 and again on February 13, 2009. He refused to accept these assignments based on his view that a work assignment to any location other than LDSS was against his medical restrictions. The applicant was denied pay for Family Day on Monday, February 16, 2009, on the basis that he had not worked the preceding Friday. The applicant also refused work assignments from February 17 to 20, 2009, to schools other than LDSS under the authority of the Eastern Supervisor, once again on the basis that this was against his medical restrictions.
67As of February 20, 2009, the applicant requested that he be provided with an LTD application form and his Record of Employment. These were provided by the respondent, which indicated in a letter dated February 20, 2009 that it understood that the applicant was taking the position that he was unable to work due to illness. As a result, the respondent stated that it would not be offering any further work to the applicant in the interim.
68The applicant takes the position that it constitutes discrimination because of disability for the respondent to have denied him sick pay for February 11 and 13, 2009, for him to have been denied pay for Family Day, and for him to have been denied the use of a "float day" to be paid for February 17, 2009, and the use of his remaining vacation days to be paid for February 18 and 19, 2009.
69The determination of this issue depends upon whether there is any valid medical reason for the applicant not to work at the assigned schools under the Eastern Supervisor. In my view, such a conclusion is not supported by the medical evidence. I note that the family doctor's recommendations contain an inherent contradiction. The family doctor clearly stated on the FAF that the applicant was unable to work under the Northern Supervisor. Yet, at the same time, the family doctor advised that the applicant be assigned to work at LDSS, which at that time was under the authority of the Northern Supervisor. The family doctor's testimony before me was that, at the time he completed the FAF, he was not aware that LDSS had been re-assigned to be under the Northern Supervisor's authority.
70Be that as it may, the recommendation that the applicant could only work at LDSS does not provide a valid medical reason for why the applicant could not work at other schools under the authority of the Eastern Supervisor. The applicant's evidence is that he was comfortable working at LDSS, because he had been working there for the previous month and knew some of the custodians he was working with at that location. His evidence is that his disability makes it difficult for him to cope with change and working with different people, such that temporary day-to-day assignments to different schools was a source of upset and stress for him. An issue also was raised as to the driving time required to get to some of the schools to which he was assigned.
71I can appreciate that change can be difficult, especially for someone who is experiencing depression. However, on the basis of the medical evidence before me, I am simply unable to find that this was a sufficient disability-related basis for the applicant to refuse these assignments. The applicant's family doctor was clear on the FAF that the applicant could not work under the authority of the Northern Supervisor. While the respondent was not satisfied that there was a sufficient medical basis for this restriction, it was nonetheless prepared to extend the benefit of the doubt to the applicant pending receipt of further information from the applicant's family doctor. In the meantime, the applicant was assigned to schools that were not under the Northern Supervisor's authority. While the applicant may have felt more comfortable continuing to work at LDSS, the evidence indicates that there was no continuing custodial position at this work location and the medical evidence does not satisfy me that the applicant's disability precluded him from attending to work at the assigned schools under the Eastern Supervisor's authority.
72Accordingly, I find that this allegation is not supported by the evidence.
Assignment to ASCVI
73The applicant's family doctor replied to the respondent's questions by letter dated February 17, 2009. In the respondent's letter it was noted that the family doctor's previous letters had indicated that the applicant has "severe anxiety stress" and "mental anguish". The respondent asked for clarification as to whether the applicant has a disability, that is, whether the applicant was actually suffering from a mental illness or whether his "severe anxiety stress" and "mental anguish" were only related to his workplace and/or supervisor(s). The family doctor replied that the applicant had reported severe anxiety stress and mental anguish stemming from a traumatic incident on June 22, 2006. The doctor stated that no prior incidents had been reported to him, and he was unaware of any "disability" in that connection. The doctor stated that he therefore believed that the applicant's severe anxiety stress and mental anguish was related only to the workplace.
74The respondent also asked for clarification as to what medical restrictions – cognitive or otherwise – precluded the applicant from working at ASCVI and why he could only work in Lakefield. In response, the family doctor referred to his previous letters and stated that the medical reasons that the applicant should stay in Lakefield were the severe stress and mental anguish and emotional suffering caused by moving away from that location. The doctor went on to state that he would advise that the applicant stay at that position.
75In its letter dated February 20, 2009, the respondent stated that, based on the information provided, there did not appear to be any justification for the applicant to work at schools outside of Lakefield. However, the letter went on to say that, rather than make a determination at that point as to what action should be taken, the respondent was prepared to allow the applicant to submit his LTD application and consider him to be on an unpaid leave of absence pending consideration by the LTD insurer.
76The applicant's LTD application was denied in late May 2009. On June 9, 2009, the respondent sent a letter to the applicant stating that, in light of the denial of his LTD application, there appeared to be no basis to support the applicant's continued absence from work. The applicant was advised that his permanent custodial position at ASCVI remained available to him and that there were other custodial positions available for which he could apply. The applicant was requested to submit any new medical documentation supporting his continued absence by June 19, 2009, or to contact the SELRC to discuss his return to work.
77The applicant wrote to advise of his intention to appeal the decision of the LTD insurer. As a result of the applicant's appeal, the respondent decided not to take any further action at that time and await the decision of the LTD insurer on the appeal.
78On August 26, 2009, the LTD insurer denied the applicant's appeal. As a result, the respondent wrote a further letter to the applicant dated September 1, 2009, stating that the applicant was expected to return to work in his position at ASCVI on or before September 8, 2009. The applicant was advised that if he did not return to work by September 8, 2009, the respondent would conclude that he had abandoned his employment and his employment would be terminated.
79The applicant did not return to work by September 8, 2009. On September 9, 2009, the respondent was advised that the LTD insurer was conducting a further review of the applicant's LTD application. Accordingly, by letter dated September 10, 2009, the respondent advised the applicant that it was prepared to await the outcome of this further review before determining the applicant's employment status.
80On October 23, 2009, the LTD insurer advised the respondent that it had decided to uphold the denial of the applicant's LTD claim. The respondent thereafter received a letter from the applicant's family doctor dated November 2, 2009, indicating that the applicant would be absent from work for medical reasons from November 1, 2009 until his condition improved, subject to a re-assessment by the family doctor in eight weeks. The letter indicated that the applicant would continue to be followed by his clinical counsellor and a psychologist (in fact, this latter individual is a psychiatrist).
81At this point, the applicant's file was transferred to a new disability management specialist. The new disability management specialist sought to communicate with the applicant about his medical restrictions and options for his return to work, which did not result in a successful return to work by the applicant.
82A grievance was filed on the applicant's behalf by his union on December 16, 2009, alleging a failure to accommodate the applicant's medical restrictions by placing him in a vacant position at LDSS. This grievance proceeded to mediation, which was ultimately unsuccessful.
83In the meantime, the respondent received a short handwritten note from the applicant's psychiatrist (who had been incorrectly identified as a psychologist by the applicant's family doctor in his November 2, 2009 letter) dated December 9, 2009, which states in its entirety: "I strongly recommend that [the applicant] be medically accommodated by employer at Lakefield District Secondary School". The respondent's records indicate that this note was received by the disability management specialist on January 19, 2010.
84In evidence before me is a further short handwritten note from the applicant's psychiatrist dated January 27, 2010, which states again in its entirety: "[The applicant] has been seen by me periodically. He was seen today. In my opinion, he seems to be willing & able to work at Lakefield DSS under the Northern Area Supervisor." The respondent has no record of having received this second note. The applicant's evidence is that he faxed this note to the respondent on the same day as he received it. He also provided evidence that he faxed this note to his union for the purpose of a grievance meeting with the respondent, and testified that be believed that the note would have been shared with the respondent by his union. In my view, nothing ultimately hinges on whether or not the respondent received this note.
85In addition, the respondent received two letters from the applicant's family doctor, both dated January 18, 2010. The first stated that the applicant had been totally disabled from February 13, 2009, due to the respondent taking his "medical accommodation" away, which resulted in major stress, anxiety and severe depression leaving the applicant unable to function within or outside his employment. The second letter stated that the applicant was deemed fit to return to employment in a full-time, permanent position at LDSS in accordance with a graduated return to work schedule.
86Following the unsuccessful efforts to resolve the applicant's grievance, the respondent sent a letter to the applicant dated April 14, 2010, stating that he was expected to return to his custodial position at ASCVI on or before April 21, 2010. Alternatively, the applicant was invited to apply for vacant custodial positions at other schools. Once again, it was stated that if the applicant did not return to work at ASCVI by April 21, 2010, or successfully post into another custodial position, it would be concluded that he had no intention of returning to work and that he had abandoned his employment.
87The applicant did not return to work or post into another position by April 21, 2010. Accordingly, by letter dated April 23, 2010, the respondent advised the applicant that it considered him to have abandoned his employment.
Duty to Accommodate
88It is well-established in the human rights jurisprudence in Ontario that there is both a substantive and a procedural component to the duty to accommodate, and that a violation of either component of the duty to accommodate will result in a finding of a violation of the Code: ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649 (Div.Ct.).
89As stated by the Divisional Court in ADGA (at para. 113): "The substantive duty to accommodate requires the employer to show that it could not have accommodated the employee's disability short of undue hardship. "Accommodation" refers to what is required in the circumstances to avoid discrimination. The factors causing "undue hardship" will depend on the particular circumstances of every case."
90As also stated by the Divisional Court in ADGA (at para. 107): "The procedural duty to accommodate involves obtaining all relevant information about the employee's disability, at least where it is readily available. It could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the "procedural" duty to accommodate."
91Some confusion has arisen in this area as a result of the decision of the Federal Court of Appeal in Canada (Human Rights Commission) v. Canada (Attorney General), 2014 FCA 131 ("Cruden"), which found that under the Canadian Human Rights Act an independent violation of that legislation cannot be found if the respondent has established undue hardship in relation to its substantive duty to accommodate. In this regard, I note that a decision of the Ontario Divisional Court is binding on this Tribunal, while a decision of the Federal Court of Appeal is not. I also note that the Cruden decision was addressing different legislation than the Ontario Code.
92In Cruden, the Federal Court of Appeal did comment upon the ADGA decision, stating as follows (at para. 23):
In ADGA, the tribunal had found that the employer had not established that it could not accommodate the employee without imposing undue hardship on the employer. Although there was a separate discussion of the procedural duty to accommodate, the Divisional Court did not examine the statutory basis for this procedural duty but rather it appears to have assumed its existence as it commenced its analysis of the procedural duty to accommodate with a description of this duty in paragraph 107. This case is not a persuasive authority for the statutory existence of this duty.
93In my view, that is not an accurate reflection of the Divisional Court's decision in ADGA. In the underlying Tribunal decision (Lane v. ADGA Group Consultants Inc., 2007 HRTO 34), the adjudicator had expressly addressed the issue of the existence of an independent procedural duty to accommodate, stating (at paras. 148 to 150):
This does, however, raise the question whether a failure to fulfill the procedural dimensions of the duty to accommodate leads automatically to the conclusion that ADGA therefore discriminated against Mr. Lane on the basis of disability as proscribed by section 5 of the Code... .
In Ontario, Human Rights Boards of Inquiry have split on this issue. Some have held that failure to meet the procedural obligations imposed by the duty to accommodate gives rise to an independent, free-standing violation of section 5 that cannot be overcome by establishing that a full assessment would have provided justification for the actions of the Respondent: see Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) and Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd. Inq.). This is also the position proposed by David Lepofsky in "The Duty to Accommodate: A Purposive Approach" (1992), 1 Canadian Labour Law Journal 1, at pp. 13-15. In contrast, the Boards of Inquiry in Marzano v. Nathar Ltd. (1992), 1992 CanLII 14229 (ON HRT), 18 C.H.R.R. D/248 (Ont. Bd. Inq.) and Jeppesen v. Ancaster (Town) (No. 2) (20010, 2001 CanLII 26209 (ON HRT), 39 C.H.R.R. D/177 (Ont. Bd. Inq.) held that the procedural aspects of the duty to accommodate did not give rise to stand-alone violations of the Code and that the Respondent had the right to try to establish the correctness of its decision not to accommodate by reference to ex post facto evidence.
While this dilemma is not resolved definitely in either Meiorin, supra or the subsequent judgment of the Supreme Court in Grismer, supra, nonetheless, Grismer in particular does assert (at paras. 42-44) the importance of individual assessment as part of the duty to accommodate at least in the context of rejecting the legitimacy of a blanket policy. I accept this approach and hold that the failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination. It denies the affected person the benefit of what the law requires: a recognition of the obligation not to discriminate and to act in such a way as to ensure that discrimination does not take place. That does not mean that an employer is necessarily precluded from adducing ex post facto justifications of a failure to accommodate based on what a proper assessment of the situation at the time would have revealed. However, when the failure to conduct an appropriate assessment has its own adverse consequences, there exists discrimination for which the Complainant has an independent right to a remedy.
94The Divisional Court expressly adopted and upheld the Tribunal's statement of this principle, stating (at para. 129): "In reference to both the procedural and substantive aspects of ADGA's duties, the Tribunal correctly stated and applied the law to the facts as it reasonably found them to be."
95In my view, some confusion has arisen as a result of the language used in describing these independent bases for a finding of a violation of the Code as the "substantive duty to accommodate" and the "procedural duty to accommodate". While this may serve as a useful shorthand, it clouds the basis upon which a violation of the Code is found. In order to establish a violation of the Code, one of the rights protected under Part I of the Code must be found to have been infringed. In the context of an allegation of discrimination in employment, this engages section 5 of the Code, which guarantees the "right to equal treatment with respect to employment without discrimination because of ... disability". In this context, the duty to accommodate appears in Part II of the Code as an interpretive provision. Section 17(1) states 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 further qualified by s. 17(2) of the Code, which states:
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.
It is correct to observe that a violation of the "duty to accommodate" is not a violation of the Code. Rather, from a substantive perspective, the correct way to frame the issue is that it is a violation of s. 5 of the Code to discriminate against an employee because of disability if that person's disability-related needs can be accommodated without causing undue hardship to the employer. Similarly, from a procedural perspective and as expressed by the adjudicator in ADGA and upheld by the Divisional Court, it is a violation of s. 5 of the Code to discriminate against an employee because of disability by failing to take appropriate steps to assess the employee's disability-related needs.
96In my view, the failure to take appropriate steps to assess an employee's disability-related needs inherently has a negative effect on that employee because of disability by failing to acknowledge that employee's right to be free from discrimination because of disability. This right to be free from discrimination inherently engages the employee's dignitary interest in having her or his disability-related needs appropriately considered and assessed, whether or not at the end of the day these needs could be accommodated in a substantive sense. One of the ways that disadvantaged and marginalized groups experience discrimination is by being ignored or disregarded, which results in members of these groups not being seen and being rendered invisible. In my view, in the context of a request for Code-related accommodation, ignoring or failing to consider an employee's stated needs is an emanation of this form of discrimination. To ignore, disregard or fail to adequately consider and assess a request for accommodation under the Code or, more particularly in the context of such a request made by a person with a disability, to ignore, disregard or fail to adequately consider or follow up on medical documentation provided in support of an accommodation request, inherently has a negative impact on the dignity interests of a person identified by a protected Code characteristic by causing that person to experience discrimination by being ignored, disregarded or rendered invisible.
97Procedural discrimination in the context of a request for accommodation will generally result in an award of compensation for injury to dignity, feelings and self-respect. However, procedural discrimination may also result in other remedies being awarded, depending upon the particular circumstances of the individual case. The fundamental principle underlying this Tribunal's remedial authority under the Code is, where a violation of the Code has been found, for the applicant to be put in the position he or she would have been in but for the discrimination. Where procedural discrimination has occurred, this Tribunal needs to consider, on a balance of probabilities, what position the applicant would more likely than not have been in had the procedural discrimination not occurred. In some cases, where the evidence does not support a finding of substantive discrimination, the evidence may support a finding that even if the accommodation request or medical documentation had been appropriately considered and assessed, the applicant's position more likely than not would not have changed and as a result there would be no basis to award further remedies. In other situations, however, even if substantive discrimination is not found, the evidence may support that appropriately considering and assessing the accommodation request may have resulted in further dialogue between the parties that more likely than not would have put the applicant in a different position. In such cases, additional remedies may be appropriate, including potentially compensation for lost income or even reinstatement.
98I now will proceed to address first whether the respondent discriminated against the applicant because of disability in a substantive sense, and will then turn to address whether the respondent discriminated against the applicant because of disability from a procedural perspective.
Substantive discrimination
99The applicant takes the position based upon the recommendations of his family doctor and psychiatrist that he can only work at LDSS and is precluded by his disability from working at ASCVI. Clearly, the applicant was considered to have abandoned his employment and his employment relationship with the respondent ended due to his failure to return to ASCVI. The key question for me to consider in the context of assessing whether the applicant experienced substantive discrimination is whether there is sufficient evidence before me to support that the applicant was unable to return to work at ASCVI because of disability.
100The critical dilemma in this context is why the applicant and his doctors say that he could return to work at LDSS even though this school was now under the authority of the Northern Supervisor, but could not return to work at ASCVI under the authority of the same supervisor. I sought answers to this dilemma from the applicant and his doctors in the course of their testimony at the hearing.
101The applicant's evidence is that he was able to work at LDSS because he knew the other custodians who were working there and they helped and encouraged him, and because he felt safe in that work environment. The applicant identified the need to feel safe as the biggest part of his illness. With regard to working at ASCVI, the applicant's evidence is that, because what he went through there was so traumatizing for him, he could not bear working there or even driving by the school. The applicant's evidence is that his aversion to ASCVI is not associated with the Northern Supervisor, the Head Custodian at ASCVI or anyone else at ASCVI, but is associated with the building. He states that he was terrified of going back to ASCVI, and was more afraid of going back to ASCVI than working under the Northern Supervisor. He states that he needed to feel safe at what he was doing. He points to the fact that in a letter dated October 23, 2008 to the Eastern Supervisor, he identified going back to ASCVI as his "biggest fear". He states that what happened at ASCVI is something he just cannot get over, and this plays a big role in him not feeling safe and secure at that work site.
102The applicant's family doctor testified that the applicant could not return to ASCVI because this was the original school where the trouble started. He states that if the applicant went back to same environment – the same school, the same building, the same people - he may or may not relive the same trauma he experienced originally. The family doctor testified that he thought that it would not be a good idea if the applicant went back to the original place where he was so traumatized, upset and anxious. As a result, the family doctor states that he was hoping and advising that the applicant not go back to the same school.
103The family doctor acknowledged that at the relevant time, he was not aware that the Northern Area supervisor had also been put in charge of the Lakefield schools. However, he testified that the Northern Supervisor was not the only person at issue, and that there had been other people involved who knew about the situation. He states that the applicant did not want to go to the place where there had been so much trouble. As a result, the family doctor felt it would be nice if the applicant stayed away from that area. He stated that for the sake of the sick man in his office, he thought that it would still be traumatic for the applicant to go back to the place where his problems had originated.
104The family doctor testified that a basis for the applicant not returning to ASCVI could also be the physical environment of the school, where the applicant could experience a sense of déjà vu and memories could come back to him that could make his condition worse. However, the family doctor was clear in stating that this was his opinion and he is not a psychiatrist or an expert in this area.
105However, the family doctor maintained his opinion that he would not send the applicant back to the same school where he had experienced trauma. He acknowledged that he would not have made this recommendation if the applicant had told him that the people who were the source of the trauma were gone, and that he knows the other people and they are good to him and he is happy and gets along with the other people, and that he had recovered from the trauma. But the family doctor states that the applicant definitely related that he did not want to go back to the place where he had experienced trauma, and the family doctor made his recommendation because he was told by the applicant that he could not work in or face the environment at ASCVI.
106When asked whether he would support even a trial period for the applicant to attempt to return to ASCVI, the family doctor testified that he would not. He testified that if someone had been so traumatized, he would not expose them to the same area given the risk that this might make the condition worse. He testified that if a person had been traumatized in a certain place, he would not send them back even after five or seven years, unless the person wanted to go back and confront the source of their trauma. He clarified that this was just his opinion, and he could be wrong about this. But he was clear in his evidence that if a person told him that they would be traumatized by going back to the place where they had originally experienced trauma, then he would not send them back. He testified that even if there was only a 10% chance that doing so might make the person's condition worse, he still would not do it.
107Tellingly, the family doctor testified that even if the applicant had told him that the Northern Supervisor was now in charge of LDSS as well as ASCVI, he still would have recommended what the applicant wanted and would have recommended that the applicant work wherever he wanted to work. This theme was pursued in cross-examination, when the family doctor was questioned about why he had recommended that the applicant work at LDSS. In response, the family doctor testified that if a patient wants to work somewhere, then that is the recommendation that he as the doctor will make in an effort to try to assist the patient. The family doctor testified that in his practice, it all comes down to what the patient wants, because in his work, his concern is for the patient. He testified that he knows nothing about the school or the respondent school board and only knows what he was told by the applicant. He testified that when the applicant said that he does not want to go back to ASCVI, he as the doctor does not ask him why not but accepts his word. He testified that it was up to the applicant whether he wanted to return to ASCVI, and his role as family doctor was to support the applicant.
108I am not satisfied with the family doctor's evidence on this point. While the respondent has submitted that the family doctor was acting as an advocate for the applicant, I instead view the family doctor's actions as trying as much as possible to support and assist his patient. However, I am not satisfied that the family doctor has been able to provide a legitimate medical basis that precluded the applicant from returning to ASCVI. Rather, I find that his opinion is grounded in speculation and conjecture, and was primarily based on parroting the applicant's wishes. I further give the family doctor's evidence little weight based upon his own acknowledgement that he is not a psychiatrist or an expert in this area.
109With regard to the evidence of the applicant's psychiatrist, I asked him whether, from a medical perspective, there was any reason the applicant could not go back to ASCVI. The psychiatrist testified that the applicant felt that he would be out of place, very uncomfortable, very unhappy, and would not really adjust well to returning to that environment. His evidence is that going back to ASCVI, where he had conflict with his supervisors, was what the applicant was unhappy about. In this regard, the psychiatrist acknowledged that he was basically hearing the applicant's subjective reports and needed to go with the report given by the patient.
110The psychiatrist testified that there was no other basis upon which he understood the applicant could not return to ASCVI and he was not told of any problem other than the applicant's extreme reluctance and refusal to go back due to the conflict with his supervisors. He states that at the relevant time, there was really nothing else that he was told that was causing problems for the applicant. In particular, the psychiatrist states that he does not recall the applicant sharing anything about having a physical reaction to being in proximity to ASCVI, apart from the issue with his supervisors there. He states that he usually would have made note of this in his records or report if the applicant had said this. No reference to any physical aversion to ASCVI appears in the psychiatrist's notes or report.
111The psychiatrist saw the applicant on November 9, 2009, and noted that the applicant previously felt he could stay at LDSS relatively happily, but now one of the supervisors he has had conflict with has been transferred there. The psychiatrist's notes record the applicant as saying at that time that he felt he would not be able to work peacefully at either LDSS or ASCVI. However, at the applicant's next appointment on December 9, 2009, the psychiatrist's notes record the applicant as saying that he was still hoping to be called back to work at LDSS. This is the day that the psychiatrist also wrote the short handwritten note stating that he "strongly recommend[s] that [the applicant] be medically accommodated by employer at Lakefield District secondary school".
112Given that one month earlier he had been told by the applicant that the same supervisor had been placed in charge of both LDSS and ASCVI and that the applicant felt that he would not be able to work peacefully at either school, I asked the psychiatrist what medical basis there was to make the recommendation on December 9, 2009 that the applicant be placed at LDSS. In response, the psychiatrist testified that he made this recommendation simply because the applicant had been okay and happier when he had been working at LDSS. While he initially became uncomfortable when he realized that he would have to deal with the same supervisor at that location, the psychiatrist states that by December 9, 2009, the applicant was coming to terms with this development, he was subjectively saying that he was feeling a little better, he was calmer and less distraught, his sleep had improved somewhat, and his memory was improving. The psychiatrist testified that objectively the applicant had improved and appeared more settled down, which indicated that he was coming to terms with this development and was adapting and accepting. The psychiatrist testified that, based on what he saw and documented at the December 9 appointment, it sounded like the applicant was coming to terms with working under the Northern Supervisor.
113That, however, does not explain why the applicant was capable of working for the Northern Supervisor at LDSS but not at ASCVI. In this regard, the psychiatrist could only say that, since LDSS was the better choice from the applicant's perspective, that is what the applicant wanted the psychiatrist to write and so he wrote the note for the applicant. The psychiatrist testified that subjectively, the applicant felt more comfortable and less distraught at being at LDSS and did not want to go back to ASCVI. He states that this was based on the applicant's own subjective view of things, and was almost like saying that going to LDSS was the lesser of two evils.
114With regard to the term "medical accommodation" that appears in the psychiatrist's handwritten note, the psychiatrist states that he was just using the term that the applicant wanted him to use so that his recommendation would be understandable to the school authorities.
115With regard to the January 27, 2010 handwritten note stating that the applicant could return to work at LDSS under the Northern Supervisor, the psychiatrist testified that he basically went with what the applicant's wishes were as to the next step to take in order to get him back to his job in some fashion. The psychiatrist states that he was really working with the applicant and listening to him to try to reach a reasonable resolution to his situation. The psychiatrist's evidence is that the wording of the note must have come directly from the applicant.
116On cross-examination, the psychiatrist acknowledged that it was a judgment call as to recommending that the applicant return to LDSS and not to ASCVI, and that he was going by what the applicant was saying would be best for him. The psychiatrist testified that it is impossible to answer a negative question as to where the applicant cannot work.
117In my view, the psychiatrist's evidence is no more illuminating or satisfactory than that of the family doctor. It appears from the evidence that the psychiatrist wrote what the applicant wanted him to write, without any real medical basis to support his recommendation. I was particularly struck by the evidence from the psychiatrist's own records that on November 9, 2009, the applicant felt that he would not be able to work peacefully at either LDSS or ASCVI under the Northern Supervisor, yet at the very next appointment one month later the psychiatrist is writing a note strongly recommending a placement at LDSS. While I appreciate that the applicant had reported that he was improving and coming to terms with the Northern Supervisor being in charge of both schools, this simply does not explain from a medical perspective why the psychiatrist recommended a return to LDSS rather than ASCVI. In my view, the evidence indicates that the only real reason the psychiatrist wrote the December 9, 2009 note and made the recommendation for the applicant to return to LDSS was because this was what the applicant asked and wanted him to do.
118I appreciate that the applicant says that he had a physical aversion to going back to ASCVI because that is the place where he says he experienced the trauma that lies at the root of his mental health issues. At the same time, however, I observe that the evidence does not support that any such physical aversion to ASCVI was reported either to the family doctor or the psychiatrist. They both understood that the reason for the applicant's unwillingness to return to ASCVI was based upon the presence of the supervisors with whom he had conflict. In contrast, the applicant's evidence before me is that, at least by October 2008 and certainly by January 2010, he had no issues with working under the Northern Supervisor, the Head Custodian at ASCVI or any other custodians working there, and the only remaining issue was this alleged physical aversion to returning to the place that was the source of his trauma.
119I can appreciate that there may be situations where a traumatic incident has occurred at a particular location that results in a mental disability and is so serious as to preclude an employee from returning to that work location. I think, for example, of the teachers and staff at a school where there has been a shooting and perhaps the murder of students, who may have been traumatized and experienced post-traumatic stress disorder as a result of the shooting and murder of school children and may not be able to cope with a return to that work location. So I certainly am not prepared to say that the duty to accommodate can never extend to requiring a change in work location.
120I also appreciate that something that may not be traumatizing for most people may nonetheless be experienced as traumatizing for a particular individual due to their unique situation and stresses.
121Having said that, however, I am not satisfied that the evidence before me is sufficient to establish that the applicant's disability precluded him from returning to work at ASCVI, both due to the inconsistency between the applicant's evidence and that of his doctors as to the alleged basis for this inability to work at ASCVI and due to the lack of any real medical basis to support such a requirement.
122Accordingly, I find that the applicant has not established that he experienced discrimination due to the requirement for him to return to work at ASCVI, or the ultimate termination of his employment relationship with the respondent on this basis.
Procedural discrimination
123As stated above, the key issue in this case was why the applicant's doctors were recommending a return specifically to LDSS and not to ASCVI, even though the re-alignment gave the Northern Supervisor responsibility for both schools.
124I note that the February 11, 2009 letter sent by the disability management specialist to the applicant's family doctor addressed this issue, by asking for clarification as to the medical restrictions – cognitive or otherwise – that precluded the applicant from working at ASCVI and as to the medical reasons the applicant could only work in Lakefield. The respondent was not satisfied by the response provided by the applicant's family doctor, but decided not to act on addressing the status of the applicant's employment pending the determination of his LTD application.
125However, in my view, further steps ought to have been taken by the respondent following receipt of the psychiatrist's note dated December 9, 2009 strongly recommending a return to work at LDSS. The note itself does not identify this doctor as a psychiatrist. The new disability management specialist to whom the applicant's file was transferred in early November 2009 testified that she does not recall whether she was aware that this doctor was a psychiatrist at the time the note was received, although her evidence is that she believes she became aware that he was a psychiatrist at some point prior to the termination of the applicant's employment relationship. In this regard, I note that the family doctor's letter dated November 2, 2009 expressly referred to the applicant as being treated by the psychiatrist by name, although incorrectly referring to this doctor as a psychologist. The psychiatrist's name and his incorrect identification as a psychologist were recorded in the respondent's electronic records on November 3, 2009, just two days before the applicant's file was transferred to the new disability management specialist.
126The evidence of the new disability management specialist is that typically a letter and request to complete an FAF would be sent out upon receipt of such a note, but there is no evidence before me to indicate that this was done. Further, even if this had been done, I note that the FAF in use at that time was oriented exclusively to obtain information about restrictions arising from physical disabilities and was not suited to restrictions arising from mental disabilities. I understand from the evidence that the FAF used by the respondent has since been changed to address this deficiency. In any event, even if a request to complete an FAF had been sent out, this would not have been sufficient to address the key issue confronting the respondent.
127I find that at least by November 3, 2009, the respondent was aware that the applicant was being treated by a mental health professional who had been identified by name. I further find that at least by January 19, 2010, the respondent had received the note from the psychiatrist strongly recommending that the applicant return to work at LDSS. I also find that at some point prior to the termination of the applicant's employment relationship with the respondent, the respondent became aware that the doctor who had written this note was a psychiatrist. In the absence of actual evidence before me to indicate that there was any follow-up on this note, I find that no steps were taken by the respondent to obtain clarification from someone who was known to it to be a mental health professional as to why the applicant could return to work at LDSS but could not return to work at ASCVI.
128It may be that this failure to take action is attributable to a number of factors, including the transfer of the applicant's file from the disability management specialist who had received the family doctor's November 2, 2009 letter to the new disability management specialist who received the psychiatrist's note, and the fact that once the grievance had been filed on the applicant's behalf, the applicant's situation was being dealt with by the SELRC and at a higher level. In other words, there may have been too many different cooks in the kitchen over this time period.
129Nonetheless, the issue before me is not whether there was an intent to procedurally discriminate against the applicant, but whether the respondent's overall lack of action had the effect of resulting in procedural discrimination against the applicant. I find that it did. In my view, at the very least, the involvement of a mental health professional in the applicant's treatment and the expression of a strong recommendation to return him to LDSS should have caused the respondent to inquire as to the medical basis for this recommendation, and specifically to ask for clarification as to the medical basis upon which the applicant could return to LDSS and not to ASCVI even though both schools were under the authority of the Northern Supervisor. Further, if the respondent was not satisfied with the psychiatrist's response, the respondent could have taken the additional step of requesting that the applicant participate in an independent psychiatric evaluation. Instead, nothing was done in response to the psychiatrist's note.
130Accordingly, I find that the respondent violated the applicant's right under s. 5 of the Code to equal treatment without discrimination because of disability by failing to adequately consider and follow up on the psychiatrist's December 9, 2009 recommendation at any time prior to the termination of the applicant's employment relationship effective April 21, 2010. Even though I have found that ultimately the psychiatrist's response to any request for clarification would not have been sufficient to justify the applicant's failure to return to ASCVI, I find that it is inherently discriminatory and a violation of the applicant's dignity because of disability for the respondent to have failed to give due consideration to the psychiatrist's note and recommendation. As stated above, this constitutes procedural discrimination as against the applicant on the basis of causing him to experience that his disability was being ignored or disregarded, and that he and his disability were thereby rendered invisible. One of the themes in the applicant's evidence was his frustration at having his doctor's recommendations ignored by the respondent and the feeling that the respondent did not understand the nature of his disability and how it affected him. This in my view is an illustration of one of the ways that persons with a disability experience discrimination.
131Given that I have found that the evidence does not ultimately support that the applicant's disability prevented him from returning the ASCVI, the only personal remedy that is appropriate in the circumstances is an award of compensation for injury to dignity, feelings and self-respect.
REMEDY
132In McKee v. Imperial Irrigation, 2010 HRTO 1598, I found that the respondent had violated the procedural component of the duty to accommodate and awarded compensation in the amount of $2,000 for this violation. In Yochim v. Complex Services Inc., 2012 HRTO 1396, the Tribunal awarded $3,000 for a violation of the procedural component of the duty to accommodate on the basis of the respondent's failure to provide a job description and to seek clarification from the applicant and her physician as to the compatibility of the job and her restrictions.
133In my view, an award of compensation for injury to dignity, feelings and self-respect in the amount of $3,000 is appropriate in the circumstances, and I so order. In this regard, I have considered the applicant's evidence about his frustration at having his doctor's recommendations ignored by the respondent and the feeling that the respondent did not understand the nature of his disability and how it affected him.
134In my view, this is not an appropriate case to award the further remedies sought by the applicant, and particularly his request for compensation for lost income. On the evidence before me, I find on a balance of probabilities that, had the respondent appropriately considered and followed up on the psychiatrist's note, it would not have been satisfied that his response would have provided a sufficient medical basis to support that the applicant could only work at LDSS and could not return to work at ASCVI. Given the extent of the dialogue between the parties on this issue preceding submission of the psychiatrist's note, it is my view that any further dialogue between the parties that may have resulted from follow-up on the psychiatrist's note would not have resulted in a change to the applicant's situation.
135The applicant did not seek any public interest remedies. While I have the authority under s. 45.2(2)(b) of the Code to make such an order even if none is requested, I find that no further order is necessary or appropriate in the circumstances.
ORDER
136For all of the foregoing reasons, I hereby make the following order:
a. The respondent shall pay to the applicant the sum of $3,000.00 as compensation for injury to dignity, feelings and self-respect; and
b. Post-judgment interest shall accrue on any amount of this award that is unpaid within 30 days of the date of this Decision at a rate of 3% per annum.
Dated at Toronto, this 13th day of August, 2014.
"Signed by"
Mark Hart
Vice-chair