HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Sells
Applicant
-and-
Kawartha Pine Ridge District School Board
Respondent
-and-
Elementary Teachers’ Federation of Ontario
Intervenor
DECISION
Adjudicator: Brian Cook
Indexed as: Sells v. Kawartha Pine Ridge District School Board
APPEARANCES
Robert Sells, Applicant
Muneeza Sheikh, Counsel
Kawartha Pine Ridge District School Board, Respondent
Colin Youngman, Counsel
Elementary Teachers’ Federation of Ontario, Intervenor
Stephanie Hobbs, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant was a teacher, employed by the respondent School Board. In May 2010, the applicant began to experience vision problems and headaches. A bilateral cataract condition was diagnosed. The headaches were migraines, triggered by excessive reading or computer work.
3The applicant was unable to continue with his classroom duties because of these conditions and was off on a sick leave that extended to the end of the school year at the end of June 2010.
4The grade 8 class that the applicant had been teaching had a scheduled class trip to Ottawa during the final week of school. The applicant told the respondent that he wanted to go on the trip. The respondent decided that the applicant would not be permitted to go on the trip.
5There was also a grade 8 graduation ceremony. The applicant told the respondent that he wanted to attend the ceremony. The respondent ultimately agreed that the applicant could attend the ceremony but that he would not be permitted to be on the stage when the students received their diplomas. He would instead see the students on the floor when they came off the stage.
6The applicant alleges that the respondent discriminated against him when he was not allowed to go on the trip and when he was not allowed to be on the stage during the ceremony.
7After this Application was filed, the applicant filed a second Application that alleges that the respondent reprised against him contrary to the Code because he had filed this Application.
8I held a telephone conference call hearing with the parties at which it was determined that it was not appropriate to consolidate the two Applications. Instead, it was determined, on the consent of the parties, that the second Application would be heard after the first Application had been heard and determined. On the consent of the parties, the parties will be permitted to rely on evidence presented at the hearing about the first Application when the second Application is heard. I am seized of the second Application.
9This Application was heard on March 3 and 4, 2014. I heard evidence from the applicant, his daughter, a parent of one of his students, and Dr. Corless, the applicant’s family doctor. The respondent called Debbie Hill, a Human Resources Manager, Meg Hall, a Disability Manager, and Barb Beath, who was the Principal of the school at the relevant time.
10When the Application was filed, it named the respondent School Board and also named the Elementary Teachers’ Federation of Ontario (“the Federation”) as a respondent. The Federation was removed as a respondent in Interim Decision, 2012 HRTO 1238, dated June 25, 2012. The Federation subsequently requested that it be recognized as an intervenor. This request was granted. The Federation was represented by counsel at the hearing. The Federation did not wish to examine any of the witnesses or present any evidence and limited its role to brief submissions.
BACKGROUND
11The applicant was employed as a teacher by the respondent in 2009. He had previously worked as a consultant for the respondent. As a teacher, he designed and implemented a gifted student program for grades 4 to 8. There is no dispute that the applicant was a dedicated teacher. As noted by Ms. Beath, the applicant was recognized as a teacher who could have a profound positive influence on his students.
12During the 2010 – 2011 year, the applicant was teaching the grade 7 and 8 gifted class. There were 29 students in the class. Some of the students had behavioural issues.
13In 2010, the applicant began to experience vision problems. He consulted Dr. Corless, and in March 2010, he was assessed by an ophthalmologist who determined that the applicant had a bilateral cataract condition that required surgery.
14By late April, the applicant was also experiencing severe migraine headaches that seemed to be triggered particularly by eye strain when he tried to read or use the computer for any extensive time.
15Dr. Corless recommended that the applicant stay off work for ten days to see if this would help. This leave started on Friday May 20, 2010. However, the applicant continued to experience symptoms, and it became clear that he would not be able to resume his regular teaching duties for the remainder of the school year. Surgery was performed on one eye in late June and on the other eye in July. The surgery resolved the applicant’s vision and headache problems.
16The applicant’s class was scheduled to join another grade 8 class for a year end trip to Ottawa. The trip was to start on Wednesday June 23 and they would return on June 25. There were about 60 students going on the trip. Prior to the applicant’s medical leave, the applicant was to be one of four teachers who would go on the trip. The end of year grade 8 graduation ceremony was scheduled for June 28, 2010.
17Both of these events were important for the applicant's grade 8 students and the applicant wanted to participate in both of them.
18The applicant sent an email to Ms. Beath, his principal, on June 3, 2010. He said that he would like to go on the trip to Ottawa but he was concerned because it seemed clear that he would need to be off on a medical leave through to the end of June. He had some concerns that the disability management people at the School Board might question why he was unable to teach if he could go on the trip. He did not want to jeopardize his sick leave. He suggested that his daughter could accompany him and that “she would be my eyes” He indicated:
My concern is that I am incapacitated with the cataracts and am off legitimately. I wouldn’t want HR or [the superintendent] to get the wrong idea and have problems afterward. Could you please check on this and let me know where I stand on this issue. If I am not allowed I will be disappointed, but I will follow proper procedure.
19Ms. Beath contacted Ms. Hill, a human resources manager for the respondent. Ms. Beath indicated that “with his range of behavioural students, having him on the trip is very important” but noted that he was off work because of his medical condition.
20In the following days, the applicant had a number of conversations and emails with Ms. Hill, Ms. Hall, and Ms. Beath.
21According to Ms. Hall, the respondent’s disability manager, she spoke to the applicant on June 8 and he told her that he had missed some steps four times over the previous few days. She told him that this meant there could be “liability issues” and he said he understood this.
22The applicant testified that he did not think that he had told Ms. Hall that he had missed steps while going up or down stairs. Dr. Corless testified that the applicant was able to safely go up and down stairs. However, on cross examination, he agreed that a June 17, 2010 entry in his clinical notes indicates “falls occasionally with lack of depth perception.”
23In a June 9, 2010 email to Ms. Hall, the applicant indicated:
It is a very frustrating situation. One in which I feel powerless and helpless. I feel very badly for my grade 8 students, as I hate leaving them in such an unprofessional manner. It is very upsetting. They deserve better. Unfortunately, I see the Board’s position and I know my condition. There is no ‘win-win’ situation.
24At about this same time, Ms. Beath had to make decisions about the trip. On June 14, 2010, she sent the applicant an email in which she advised that she had arranged for the other teacher to go on the trip. She noted that the other teacher had positive relations with some of his students and that she was a “good choice” to go on the trip. The applicant responded “I agree”.
25In the same email, Ms. Beath discussed the ceremony:
As for the [graduation ceremony], of course you are invited. I will deliver your diplomas and awards and the students can shake your hand at the bottom of the stairs if that is where you happen to be seated.
26The applicant responded to this with: “Thanks!”.
27The applicant testified that on June 14 or 15 he called the Ontario Human Rights Commission to discuss his situation. He testified that the Commission explained the duty to accommodate to him and also suggested that he should contact his union.
28Up to that time, the only medical information that the respondent had about the situation were a few brief notes from Dr. Corless, indicating that the applicant needed to be off work. On June 17, 2010, he provided another note. It indicated that the applicant was not fit to teach but added:
Patient may go on grad trip and attend graduation.
29The applicant contacted his union representative to discuss the situation on June 17. He provided a copy of the above mentioned medical note to the union representative. The union representative told him that he did not think that this note would be sufficient and that he might require a detailed report that would explain why the applicant's limitations and restrictions prevented him from teaching but would not prevent him from working as a supervisor on the class trip. The union representative commented that this “would be a difficult note to craft”.
30On the morning of Friday June 18, Ms. Hill had a meeting with the Superintendent and the applicant's union representative about other matters. At the end of the meeting, they discussed the applicant’s situation. Ms. Hill sent an email to Ms. Hall and Ms. Beath. She advised that it had been agreed that “the answer is no to the class trip” but that it would be appropriate to allow the applicant to attend the ceremony if this could be done safely. She indicated that the applicant could be off the stage to avoid climbing stairs to get to the stage and greet the students from the floor. As noted, this was the same solution that Ms. Beath had earlier proposed to the applicant.
31Ms. Beath sent an email to the applicant later in the day on June 18 to advise that it had been decided that the applicant would not be going on the trip. The reason was that the Board did not want to put the applicant in a position that “may cause undue stress or injury”.
32On June 21, 2010, Dr. Corless provided a letter. It reads in part:
He has been unable to teach since May 21 because of his poor sight and the frequency of the migraine headaches he was getting. Since that time the migraines have been much less frequent and he has not needed to take the medication for the past ten days. If he were to go back teaching, I feel certain that the migraine headaches would return. Therefore he is unfit to teach. However, he is able to attend the graduation trip with his students as he is able to do normal activities associated with daily living. He is able to walk to the store, get in and out of a car or walk up and down stairs. He should be able to participate fully in the graduation ceremony for his students, unless he has to do a great deal of reading.
33In his testimony, Dr. Corless confirmed the information in this report.
34This report was reviewed by Ms. Hill and Ms. Hall. Ms. Hill took the position that since the applicant was off work on a medical leave, he could not go on the trip. In notes prepared contemporaneously by Ms. Hall, she wondered if the applicant could be teaching with accommodation if he was medically capable of going on the trip.
35Also on June 21, a parent of one of the applicant’s students contacted the applicant to express concern that the applicant was not going on the trip. The parent felt that there might be behavioural issues regarding her son if the applicant was not along. The applicant forwarded this to Ms. Beath who replied that decisions had been made about the trip which would be difficult to change.
36At the hearing, a parent testified on behalf of the applicant. She testified that the applicant had been a very important person in her daughter’s life. Her daughter had suffered from bullying and the applicant had been instrumental in stopping the bullying and in supporting her. The parent testified that her daughter did very well in the applicant’s class. She testified that her daughter had not been sure if she wanted to go on the class trip to Ottawa and then decided she definitely would not go when she learned that the applicant was not going.
37Throughout the time that that the applicant was off work, he was working at home trying to complete the report cards for his students. The applicant testified that he wanted to do this because of his strong professionalism and his commitment to his students. He also suggested that he was required to complete the report cards by Ms. Beath. Ms. Beath testified that the applicant was not required to do the report cards. She testified that the applicant told her that he wanted to do them because of his commitment to his students. She was aware that he was experiencing headaches because of the necessary reading and computer time. She asked him if she could assist. He indicated that he wanted to do the best he could. The applicant was able to complete the cards except for one comment section which Ms. Beath ultimately completed.
38Ms. Beath testified that when a teacher is off on a medical leave the usual expectation is that they will not complete the report cards and that the report cards will be completed either by the supply teacher or herself. She indicated however, that depending on the nature of the disability, as in this case, some teachers prefer to work on the report cards even while on medical leave because of their commitment and professionalism.
39One of the applicant's suggestions about the Ottawa trip had been that his daughter would also go on the trip. As noted earlier, he initially proposed that she could go to assist him and act “as my eyes”. The suggestion that his daughter attend was re-iterated a few times.
40The applicant’s daughter is completing Teachers’ College and she has worked for a few years for the School Board as a tutor and a volunteer. She has attended as an adult supervisor on several class trips, including trips with her father’s class when he was in attendance as the teacher.
41The applicant’s daughter testified that she was able and willing to attend the trip to Ottawa and could have worked as a chaperone as well as assisting her father to the extent he required any assistance.
42The applicant did attend the graduation ceremony. He testified that at the start of the ceremony he gave Ms. Beath a copy of Dr. Corless’ June 21, 2010 report which she had not previously seen. She looked at it, but did not change the decision that he would not be allowed on the stage.
43Ms. Beath testified that, several years later, it is difficult for her to recall the exact details of the ceremony. She testified that she could not recall the above noted conversation or seeing Dr. Corless’ report at the ceremony.
44In addition to the graduation certificate each grade 8 student received, there were special awards to recognize outstanding achievements. One of the applicant’s students received the math award. The applicant was unable to present the award to the student on the stage. He testified that he would have done this if he had been allowed to be on the stage and that he had prepared a short speech about the student. The parent of this student is the parent who testified at the hearing.
45The applicant returned to work as a teacher at the start of the 2011 – 2012 school year. By then he had undergone the cataract surgeries and had no further vision or headache problems.
APPLICABLE CODE PROVISIONS
46Section 5(1) of the Code provides as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
47Section 17 provides:
- (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.
48There is no dispute in this case that the applicant had a disability. As a result of that disability, he was temporarily unable to continue his duties as a classroom teacher. In general terms, when a person is temporarily unable to work, section 5(1) and section 17 require the employer to allow the person to be off work, to allow them to return to the position when medically able to do so, and to provide such accommodation as is necessary to allow the person to return to work, to the point of undue hardship.
49The mutual obligations of employee and employer in the accommodation process are usefully summarized in the Ontario Human Rights Commission Guidelines on Accommodation:
The person with a disability is required to:
advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is).
make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation.
answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed.
participate in discussions regarding possible accommodation solutions.
co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability.
meet agreed-upon performance and job standards once accommodation is provided.
work with the accommodation provider on an ongoing basis to manage the accommodation process.
discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.
The employer is required to:
accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise.
obtain expert opinion or advice where needed.
take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate.
keep a record of the accommodation request and action taken.
maintain confidentiality.
limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request.
grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language.
bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.
Analysis About the Trip to Ottawa
50In this case, the applicant agrees that he was temporarily medically unable to continue to do the essential duties of a classroom teacher. There is no dispute that the respondent allowed the applicant to be off work and was ready to provide any accommodation that would have allowed the applicant to return to work. The applicant proposes that the respondent had a duty to provide accommodation to allow him to go on the trip to Ottawa.
51The applicant’s view is that this duty to accommodate was triggered when the applicant provided a note from his doctor stating that the applicant was medically capable of going on the trip. He argues that the respondent was required to accept this opinion and that, if the respondent questioned the medical information, the respondent needed to seek clarification from the applicant’s doctor or perhaps from an Independent Medical Examiner. The applicant submits that in this case, the respondent did not do this and instead ignored the medical information.
52With respect, there are several problems with this analysis.
53First, it relies on an incorrect understanding about the use and purpose of medical information about restrictions and about the accommodation process.
54The accommodation process requires the workplace parties to co-operate in identifying the best way to accommodate the disabled person’s needs. Medical information is often an essential ingredient in this process. The purpose of the medical information is to identify the person’s restrictions and abilities.
55However, while this medical information is very critical, it does not necessarily in itself resolve the accommodation process. This is because the accommodation process requires more than identification of a person’s restrictions and abilities. It can involve a host of other considerations, including how best to adjust workloads and schedules, impact on others, health and safety considerations, and so on.
56It is the employer, in consultation with the employee that is in the best position to know the actual requirements of the essential duties associated with a job and what needs to be done to allow the employee to perform those duties. The person’s doctor is not generally in a position to know whether a person can perform the essential duties of a particular job, or the other considerations that the employer may have to take into account.
57The applicant is correct that an employer cannot simply disregard information about an employee’s restrictions and abilities. If an employer has doubts about the information provided, it is obliged to seek clarification. However, an employer is not required to simply accept a doctor’s opinion about how the accommodation can be best accomplished.
58In this case, for example, Dr. Corless was able to provide medical information about the applicant's restrictions and abilities, but was not in a position to know all the considerations about the trip.
59Related to this is that the question was not whether the applicant was capable of safely going on the school trip. The issue was whether he was capable of performing the essential duties of a teacher who is part of the teacher compliment of a school trip.
60It appears to me that it is highly likely that the applicant could safely have gone along on the trip to Ottawa, especially if his daughter had accompanied him. However, the applicant did not ask to be allowed to simply go along on the trip. He was asking to go in his capacity as a teacher. If he was on the trip in his capacity as a teacher, the respondent would be liable for anything that happened to the applicant or to any of the students in his care. In my view, the fact that the applicant had significant vision problems provides a good reason for why the respondent would have concerns about the applicant’s ability to perform the essential duties of a teacher on the trip.
61Dr. Corless did not in fact comment on the question of whether the applicant could perform the essential duties of a teacher on the trip. He only offered the opinion that the applicant could safely go on the trip.
62The other important aspect about the applicant’s wish to go on the school trip was that there was very little time available to come to a clear understanding of whether the applicant’s restrictions meant that he could on the trip. The parents and students needed to know what the arrangements were and the staffing needs of the school also needed to be organized. Dr. Corless did not provide any details about the applicant’s restrictions and abilities until June 21, just two days before the trip started. In the interim, Ms. Beath had made arrangements for another teacher to go on the trip.
63For this reason, I am satisfied that even if the applicant was correct that the respondent was required to accept Dr. Corless’ opinion about the applicant’s ability to go on the trip (and I have determined that the applicant is not correct on this point), the timing of the applicant's request and when he provided medical clarification provide a complete non-discriminatory explanation for why the applicant was not allowed to go on the trip in the capacity of a teacher.
64For all of these reasons, I am satisfied that the respondent did not discriminate against the applicant because of disability when the applicant was not permitted to go on the school trip to Ottawa.
The Graduation Ceremony
65The situation with respect to the graduation ceremony was quite a bit less complicated than the school trip.
66At the time, Ms. Hill and Ms. Hall were somewhat focussed on the question of whether the applicant could safely get on and off the stage.
67It seems that an accommodation could have been devised that would have allowed the applicant to be on the stage. Someone could, for example, have assisted him up the steps to the stage and stood by him while he was on the stage, if in fact such assistance was necessary.
68However, in my view the evidence shows that this was not the reason why the applicant was not allowed to be on the stage for the ceremony. The reason why this happened is that the applicant did not ask Ms. Beath to be allowed to be on the stage until the night of the ceremony. When the applicant first communicated with Ms. Beath about the ceremony, she sent him an email to say that he was of course invited to the ceremony. She proposed that he would be on the floor and would greet his students when they came off the stage. As noted earlier, the applicant's reply email to Ms. Beath was “Thanks!”. From this response, it seems to me that Ms. Beath reasonably supposed that the issue of the graduation ceremony was resolved, even if there were continuing issues about the trip. On the basis of that supposition, she made the arrangements for the ceremony, including who would be on the stage.
69On the applicant’s evidence, he did not communicate with Ms. Beath about this issue again until the evening of the ceremony. He said that when he arrived at the ceremony, he showed Ms. Beath the June 21 letter from Dr. Corless. According to the applicant, Ms. Beath refused to consider his request that he be allowed to be on the stage. Ms. Beath testified that she could not recall the details of any discussion with the applicant at the ceremony, and could not recall seeing the letter from Dr. Corless at that time.
70Even if the applicant is correct, up to that point, as far as Ms. Beath knew, to the extent that accommodation was necessary and appropriate, it was already in place, with the arrangement that the applicant would be present and able to greet his students from the floor. As far as she knew, the applicant was entirely satisfied with this arrangement. In my view, any refusal by Ms. Beath to rearrange the ceremony based on a last minute proposal by the applicant cannot be construed as a failure to accommodate the applicant contrary to the Code.
71For these reasons, I find that the respondent did not discriminate against the applicant contrary to the Code with respect to the graduation ceremony.
Other Issues
72The applicant suggested that it was in some way discriminatory for the respondent to require him to continue working on the report cards while he was off on a sick leave while at the same time not allowing him to go on the class trip or be on the stage at the ceremony. On this point, the evidence does not, in my view, indicate that the applicant was required to complete the report cards. I accept Ms. Beath’s evidence that a teacher who is off on a sick leave is not generally required to complete report cards. The applicant’s own evidence was that he wanted to do the report cards and he agreed that Ms. Beath offered assistance. In my view, the evidence shows that the applicant voluntarily worked on the report cards because of his commitment to his students. The evidence also shows that the applicant was not able to complete this task and that Ms. Beath provided the necessary support to ensure that the report cards were completed. The fact that the applicant worked on the report cards is not evidence that he was capable of the essential duties of a teacher and is not relevant to the issue of whether the applicant experienced discrimination with respect to the class trip or the ceremony.
The Subsequent Application
73The second Application will now be processed by the Tribunal. The Tribunal will schedule a case management telephone conference call hearing to hear submissions from the parties about how the second Application should be dealt with.
DECISION
74The Application is dismissed. The respondent did not discriminate against the applicant contrary to the Code in respect of the class trip and the graduation ceremony in June 2010.
Dated at Toronto, this 28th day of May, 2014.
“Signed by”
Brian Cook
Vice-chair