Perron v. Revera Long Term Care Inc., 2014 HRTO 766

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandy Perron

Applicant

-and-

Revera Long Term Care Inc. o/a Sumac Lodge

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: May 29, 2014
Citation: 2014 HRTO 766
Indexed as: Perron v. Revera Long Term Care Inc.

APPEARANCES

Sandy Perron, Applicant Peter Mancini, Representative

Revera Long Term Care Inc. o/a Sumac Lodge, Respondent Erin Porter, 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”).

background

2The applicant began working for the respondent nursing home in 2009 as a Personal Support Worker (“PSW”). Her duties included getting residents up in the morning; assisting them with washing, dressing and personal care; taking them to the dining room and helping to feed them; putting linens and clothes out for next shift; taking the snack cart around twice a day; putting residents to bed as well as every two hours turning those who required it; and providing companionship.

3On April 4, 2012 the applicant ceased working because of a recurrent back problem. She had surgery in August 2012. In about the last week of November 2012, the applicant contacted the respondent’s administrator and executive director, Donna McLeod (“Ms. McLeod”) and asked if she could return to work.

4By the time she asked Ms. McLeod if she could return to work, she had provided the respondent with an Attending Physician Statement, signed by Dr. Vornberger on November 8, 2012. The Attending Physician Statement indicated “no lifting” either from floor to waist or waist to shoulder. It further stated the applicant could walk or stand up to 20 minutes and sit up to 30 minutes.

5In early February, 2013, a meeting was held with Ms. McLeod, Karen Otterbein (“Ms. Otterbein”), the Regional Director of Labour Relations for the respondent, and a union representative to discuss the Attending Physician’s Statement and to review the physical demands for positions including the PSW, laundry aide, dietary aide and housekeeper. It was determined that the applicant at that time could not do the essential duties of any of these jobs because of her restrictions as set out in the Attending Physician Statement.

6Ms. McLeod asked the applicant to provide additional medical documentation. Ultimately, Ms. McLeod received a note from the applicant’s surgeon, Dr. Bailey, dated March 20, 2013 that stated that the applicant was not able to return to her previous job, had permanent heavy/repetitive lifting restrictions due to her low back pain, and recommended that the applicant have a job which included only light and infrequent lifting.

7Another meeting was held on April 2, 2013 with the applicant, Ms. McLeod; Nicole Lewis, the Occupational Disability Claims Manager for the respondent (“Ms. Lewis”) and a union representative. The applicant stated that her doctor would not provide her with an updated Attending Physician Statement and suggested she could do some of the functions of the housekeeping, PSW, dietary aide and laundry aide positions. The parties agreed that a Functional Capacities Evaluation (“FCE”) would be arranged for the applicant, and it was held on June 14, 2013.

8The FCE summary showed that the applicant did not meet the lifting requirements of the PSW position, which was 77 pounds from floor to knuckle and from knuckle to shoulder. Her demonstrated abilities were 32 pounds on an occasional basis from floor to knuckle and 17 pounds on an occasional basis from knuckle to shoulder. She demonstrated she could meet the balance of the requirements.

9The FCE summary showed that the applicant also did not meet the lifting requirement of the laundry aide which was 28 pounds in both positions or of the housekeeping aide which was 8 kg (or approximately 17 pounds, 10 ounces) and 16 kg (or approximately 35 pounds, 4 ounces).

10A further meeting took place on August 21, 2013 between the union representative, Ms. McLeod and the applicant at which it was concluded that the applicant could not be accommodated. Because the applicant felt she still was improving, another FCE was scheduled for March 4, 2014, which the union advised the applicant could not attend. It is rescheduled for May 29, 2014.

11The applicant filed her Application on April 10, 2013, at which time the respondent had been provided with only the Attending Physician Statement and the March 10, 2013 letter from Dr. Bailey.

12The applicant alleged that the respondent discriminated against her by not allowing her to return to work and failing to accommodate her.

essential duties and duty to accommodate

13Section 5 of the Code prohibits discrimination in employment. With respect to an employee who develops a disability while on the job, this means that an employer would be required to retain and employ the employee, unless that person is incapable of doing the job. Section 17 of the Code provides:

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

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

14The finding of incapacity is subject to the duty to accommodate. The duty to accommodate has both procedural and substantive obligations. See British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at paras. 62-68. See also: Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (Hydro-Quebec).

15The substantive duty to accommodate requires an analysis of whether the employer has made the modifications or provided the accommodation necessary in order to allow an employee with Code-related needs to participate fully in the workplace unless it causes undue hardship. See: Arumugam v. Venture Industrial Supplies Inc., 2013 HRTO 1776 at para. 18 (Arumugam).

16The respondent does not have a duty to create a new position for the applicant; fundamentally change the working conditions; assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place. An employer also is not required to change the essential duties and requirements of a position so that an employee can meet them. See: Hydro-Quebec; Arumugam; and Vanegas v. Liverton Hotels International Inc. (c.o.b. Metropolitan Hotel, 2011 HRTO 715 (“Vanegas”).

17The respondent’s position is that the applicant could not do the essential duties of any of the three jobs, based on the FCE results and the Physical Demands Description of the job provided by the respondent. I am satisfied that the respondent met the procedural duty required of it by obtaining relevant information about the applicant’s disability and by considering and exploring options to accommodate the disability.

18The respondent’s witnesses testified that they considered whether or not the applicant could do any of these three available jobs with or without accommodation, and concluded that she could not, given the lifting requirements. Because the applicant indicated she could do some tasks and not others, all three respondent witnesses testified that bundling of tasks was considered, but there were not enough tasks to bundle into one job. As a result, it would require the respondent to have an extra PSW on a shift, which operationally was not required. The operational requirements were confirmed by Ms. McLeod. The applicant confirmed that what she had requested was to be put on as a third person to help with the load that two PSW’s normally would handle.

19I also accept the respondent’s evidence that no accommodations could be made to any of the three jobs because lifting beyond the applicant’s capabilities was an essential requirement of each of them. There was no evidence before me that there was any form of accommodation (e.g., a technological solution) that would allow the applicant to take on the lifting requirements. There was no way to alter those requirements without adding extra staff.

20The applicant adduced no evidence and made no submissions to contradict the respondent’s evidence that it could not accommodate the applicant without adding extra staff. She also provided no evidence or submissions to contradict the respondent’s evidence that even if the applicant was capable of doing the housekeeping or laundry aide jobs, there were no positions available to someone of her seniority.

21Therefore, I am satisfied that because there was no position that the applicant could have done within her restrictions, she was incapable of meeting the requirements attendant on the right. In light of that, I am unable to conclude that the applicant’s right to freedom from discrimination in employment was violated.

22Therefore, the Application is dismissed.