Pazhaidam v. North York General Hospital, 2014 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyril Pazhaidam

Applicant

-and-

North York General Hospital and Service Employees International Union, Local 1

Respondents

DECISION

Adjudicator: Ian R. Mackenzie

Date: July 7, 2014

Citation: 2014 HRTO 984

Indexed as: Pazhaidam v. North York General Hospital

APPEARANCES

Cyril Pazhaidam, Applicant

Ron Franklin and Wade Poziomka, Counsel

North York General Hospital, Respondent

H.P. Rolph, Counsel

Service Employees International Union, Local 1, Respondent

Jesse Kugler, 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 in employment on the basis of disability. The applicant is employed at the North York General Hospital (“NYGH” or “hospital”). He is represented by Service Employees International Union, Local 1 (“SEIU” or “union”). The applicant has alleged that his employer failed to accommodate his physical disability. He also alleges that the respondent union discouraged him from seeking accommodation in his employment.

Procedural history

2The applicant retained counsel just prior to the first hearing of this Application. After the presentation of his evidence and at the continuation of the hearing, the applicant was self-represented. The applicant retained different counsel for final oral submissions. Both counsel are listed on the appearances page.

3I denied a request for an adjournment from the respondent SEIU (2011 HRTO 1485) as well as an adjournment request from the applicant (2011 HRTO 1663). I issued an Interim Decision addressing procedural issues, including a request to amend the Application (2012 HRTO 363). In that decision, I determined that the hearing would be bifurcated: the issue of remedy would be dealt with at a later date if liability on the part of either or both respondents was founded. I issued an Interim Decision on a further request to amend the Application (2012 HRTO 1562). I ordered the disclosure of the applicant’s occupational health file in Interim Decision 2013 HRTO 585.

Summary of Evidence

4The applicant commenced employment with the hospital in April of 1998 as a part-time cleaner. He had a workplace injury of his right shoulder in 2005 and of his left shoulder in 2008. He received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (“WSIA”) for both of these injuries.

Hiring process and accommodation within the NYGH

5Under the collective agreement between the NYGH and the SEIU there are four classifications: full-time clerical; part-time clerical; full-time service; and part-time service. The applicant was in the part-time service classification. Separate seniority lists exist for each of the four classifications.

6The collective agreement requires the posting of all permanent vacancies within the hospital. In addition, the NYGH posts vacancies for temporary assignments. Under the collective agreement, employees are selected for positions on the basis of their “ability, experience and qualifications”. Where these factors are relatively equal amongst the candidates for a position, seniority governs. A letter of understanding between the parties to the collective agreement sets out the administration of the posting procedure. The process sets priorities for consideration of candidates for hiring. For example, if a full-time clerical position is posted, first consideration will be given to full-time clerical applicants. If no successful applicants are identified, then consideration will be given to part-time clerical applicants. If there are no successful applicants in this classification, then consideration will be given to full-time and then part-time employees in the service classification. The order of priority is similar for full-time service positions.

7The NYGH employs recruiters in its human resources department. Each recruiter is responsible for the staffing of vacancies within a different portfolio within the hospital. Arlene Gladstone is the manager of the Occupational Health and Safety and Wellness (“occupational health and safety”) department of the hospital. The role of the occupational health and safety department was to assist those employees with work-related or non-work-related injuries in returning to work. Specialists would meet with the employee, review the employee’s health file, review functional abilities information, meet or discuss with the employee’s doctor and look at modified duties for positions within the hospital. The department also maintains an accommodation list or database for each bargaining unit. This list would be used by occupational health and safety specialists and recruiters to look at openings and identify matches. The occupational health and safety department does not share confidential medical information with the recruiters. It only provides the medical restrictions information.

8Elaine Watson was the manager of Human Resources in 2009. She testified that the human resources department works with the occupational health and safety department to identify appropriate positions for those employees requiring accommodation. All recruiters have access to a database that contains information about employees requiring accommodation and their medical restrictions. She also testified that the recruiters, managers and occupational health advisors have regular meetings to discuss the placement of employees requiring accommodation. Ms. Watson testified that the recruiters work with occupational health to determine if they have all the information needed to make an appropriate match. Occupational health and safety have information on the physical demands of the job as well as the detailed medical information on restrictions of each employee requiring accommodation. It is the responsibility of the recruiter to determine if the employee has the necessary skills to do the job.

9Enrico Cristoferi was a recruiter at the hospital in 2009. He testified that when staffing positions he would look at the list of employees requiring accommodation and then look at the position to determine whether it was full-time or part-time. If the position was full-time, he would look at those employees on the full-time list and if the position was part-time he would look at those on the part-time list. After examining the qualifications of the applicants, he would then check the listed medical restrictions. He testified that he would engage the occupational health and safety specialist in the discussion and would ask them to confirm that they were in agreement with his assessment on the ability of the employee to perform the duties of the position.

10The hospital also has a union-management accommodation committee. Pat O’Brien, the chief steward for the SEIU service unit, is a member of the committee and was on the committee in 2009. He testified that the committee membership included the chief steward of the clerical unit, himself, the manager of human resources and someone from the occupational health and safety department. He testified that until 2013, meetings of the committee had been sporadic. The union role on the committee was to make suggestions with regards to accommodation and to maintain communications on accommodation issues. The committee would discuss individual accommodation requirements.

Medical restrictions

11In 2005, the applicant injured his right shoulder at work. He worked at the hospital as a porter from January of 2006 until November of 2006. He then had a temporary full-time clerical position in the medical imaging department from November of 2006 until May of 2008. In May of 2008, he returned to his position as a porter. On his first day back in the position he injured his left shoulder while transporting a patient. The applicant has received benefits from the Workplace Safety and Insurance Board (“WSIB”) under the WSIA.

12The applicant testified that as a result of his workplace injuries he has a lot of limitations, especially in pushing and pulling and lifting above the shoulders. He testified that his limitations remained constant between May of 2008 and September of 2009.

13In a Functional Abilities Form (“FAF”) dated May 5, 2008, his physician reported that the applicant now had a “markedly impaired range of motion of both shoulders” and concluded that porter duties were not recommended at least until the diagnosis of the left shoulder was confirmed. In the FAF, the physician also indicated that there was a lateral tear and ligament tears in the right shoulder, confirmed by an MRI taken in January of 2008. The hospital asked the WSIB to review the new claim on the following basis:

… Mr. Pazhaidam resumed his portering job and he did not report any ongoing difficulties with his right arm or shoulder at that time or any time since. …. If Occupational Health [a department of the hospital] had been informed of the MRI results, efforts would have been made to obtain more functional information to determine if he could safely work as a porter or require more suitable alternate accommodation.

14The applicant was initially performing modified porter duties for four hours per day but stopped after approximately three weeks because he could not manage the tasks. In an FAF dated June 13, 2008, his physician stated that he required “a different type of job” that did not require portering, heavy lifting or pushing.

15In September of 2008, the hospital asked the applicant’s physician to provide medical authorization for a temporary position as a records officer. His physician gave him clearance for the work. In the FAF he prepared he stated that the applicant should avoid overhead reaching of both arms. He was also restricted to lifting up to only 5 kilograms from floor to waist and from waist to shoulder. He also had limited pushing and pulling with both arms.

16On February 18, 2009, another FAF was provided. It stated that he was not capable of any lifting from floor to waist or from waist to shoulder. It also stated that he was not able to work at or above shoulder level. In addition, he was restricted to limited pushing and pulling with both arms. On March 6, 2009, a further FAF was issued with the same restrictions.

17An FAF was prepared on March 3, 2009, that as he was beginning a course of physiotherapy, the applicant should not have any stress placed on his right and left arms and shoulders so as to permit an “optimal response” to treatment. The FAF also indicated that he was not capable of lifting from the floor to waist or from waist to shoulder. It also stated that he had limited pushing and pulling with both arms.

18In notes of a voicemail message from the applicant to the occupational health and safety department of the hospital on March 5, 2009, the applicant was reported (in clinical notes taken at the time) as stating his physician said he could do no pushing at all. In a meeting with the occupational health and safety department on March 11, 2009, the applicant is reported in the clinical notes as stating that his physician had told him that the duties in the records officer position had “set him back” in his recovery.

19A different physician prepared an FAF dated March 23, 2009. The physician stated that the bilateral shoulder injuries were deemed permanent unless surgically repaired. He also concluded that porter duties were “not at all recommended” at this time and that clerical work was more acceptable.

20In a letter written to the WSIB on March 27, 2009, Deborah LeBlanc, the rehabilitation specialist in the hospital’s occupational health and safety department, stated:

Mr. Pazhaidam has provided FAF’s from 4 different physicians over the past nine months with conflicting information. He reports he has seen a specialist who was recommended shoulder surgery. He does not have a follow-up appointment with the surgeon as he is waiting for a call from the surgeon to book it. The latest FAF indicates that there is no expected change in functional level without surgical repair.

Mr. Pazhaidam reports difficulties with basic activities of daily living such as brushing his teeth as well as the inability to push/pull 1 kg of force. Despite these difficulties, he is demonstrating no wasting of shoulder muscles.

The employer continues to explore permanent accommodation for Mr. Pazhaidam in a clerical position. He may benefit from a multi-disciplinary assessment to determine his level of function and to assist with return to work planning. This would also ensure that he has the ability to perform the essential job demands of any accommodated clerical position without placing him at risk for further injury.

21On May 25, 2009, the WSIB return to work specialist met with the applicant and the hospital to develop a return to work plan. The agreement was that the applicant would return to his porter position with modified duties on May 29, 2009. In her meeting summary, the rehabilitation specialist noted that further medical information was to be provided. The applicant testified that he did not think there was any discussion about obtaining updated medical information.

22The applicant continued in the porter position on modified duties, 20 hours per week.

Applicant’s position applications

23The applicant applied for a clerical position in June of 2009. The recruiter sent an email to Ms. LeBlanc asking if he was able to do the job, given his medical restrictions. Ms. LeBlanc replied that based on his current functional information she had some concerns about his ability to meet the lifting demands of the position. She noted however that he was successfully able to do a similar position in the past. She wrote that although they had functional information clearing him for a clerical position, she would be more comfortable if she asked him to take a letter to his doctor outlining the job duties to get specific medical clearance.

24On June 25, 2009, Ms. Leblanc had a telephone conversation with the applicant with regards to job postings. In her clinical notes taken at the time, she advised him that she would like to send a letter to his doctor to ensure that the tasks were not outside of his restrictions. She wrote that he was agreeable to this and requested that a fax be sent to his physician.

25She prepared a letter dated June 26, 2009, addressed to the applicant’s physician. In the letter she noted that the applicant was currently on a modified work program and that the functional abilities form dated March 6, 2009 indicated that he was unable to lift or push/pull with his arms and should avoid overhead work. She noted his current physical demands in the modified porter position. She then asked for medical authorization that he met the physical requirements of the position of records officer and bed control specialist (positions he had applied for). She described those requirements as: ability to frequently lift and carry up to 4 kg, ascend and descend stairs on a frequent basis, and perform frequent walking throughout the hospital. She also requested an updated FAF.

26On July 10, 2009, Ms. Leblanc followed up with the applicant and told him she had not yet received a response to her letter of June 26, 2009. She provided a copy of the letter for him to take to the doctor. She told Mr. Cristoferi in an email that she expected the applicant to follow up with the doctor that day.

27She followed up with the applicant on July 23, 2009. In an email written to Mr. Cristoferi on that date, she stated that the applicant had been unable to get an appointment with his physician to get medical clearance. On July 25, 2009, she spoke with the applicant by telephone. In a handwritten note of that date she reported that he told her that he had been unable to get an appointment with his doctor and that he committed to getting the information to occupational health and safety “asap”. The applicant testified that his physician was on holiday from June until September of 2009. The applicant also testified that it was his understanding that he would not be eligible for the positions of bed control specialist or records officer until he provided medical clearance.

28In August of 2009, the applicant applied for two clerical positions. The occupational health department asked for clearance from his doctor prior to being considered.

29The applicant then applied for a full-time cleaner position at the Seniors’ Health Centre on August 14, 2009. The job poster described the job and duties as follows:

Constant walking, standing, reaching, kneeling lifting weights up to 30 lbs and pushing carts on wheels.

Dusts, sweeps and damp mops floors.

Collects garbage.

Replenishes supplies.

Stripping, disinfecting and making discharge beds as required.

Moves furniture.

Waxes, strips floors/heavy cleaning, isolation, etc.

Disinfection of patient’s rooms.

General cleaning of clinical and non-clinical areas.

Sort, wash, dry and fold bed linens.

Sort, wash, dry, hang and deliver personal clothing.

30The job was classified as a full-time regular position. In his application, the applicant stated that the reason he was applying was because he would like a full-time position.

31He was interviewed by Millie Schlag, the supervisor of the Seniors’ Centre, on September 1 or 2, 2009. Ms. Schlag died prior to the hearing of this application. The applicant testified that she was not aware of his medical restrictions and that he did not advise her of his restrictions at the interview. He testified that after a tour of the facility and his interview, she told him that the job was his, if he was interested. He told her that he was interested but would call back to confirm. He testified that he wanted to check with his wife to ensure that she was okay with him working night shifts.

32The applicant testified that the aspect of the job that would require accommodation was throwing garbage bags into the compactor at the end of his shift. He testified that he did not tell Ms. Schlag of these restrictions because he thought it would hinder his ability to secure the position.

33He called Ms. Schlag the next day to tell her he wanted the position although due to his medical restrictions he would require modified duties. He told her that he had an injury to his shoulders and that throwing garbage into the compactor might be difficult for him. He testified that she told him that she was unaware of his medical restrictions and could not accommodate him in the position. He testified that she told him the job could not be modified. He also testified that she told him she would contact Human Resources.

34In the recruiter’s worksheet for the hiring process for the cleaner position, the applicant was listed as the employee with the most seniority. There is also a handwritten note on the worksheet beside his name stating: “don’t consider until he provides medicals”. In the file copy of the letter from the recruiter that advised him that he was not successful in the competition there is the following notation: “Elaine [Watson] said not to consider [because] not brought in medicals”.

35Ms. Watson testified that it was her decision not to consider the applicant for the position. Ms. Schlag was the supervisor and she reported to the director of the Seniors’ Centre. Ms. Watson testified that the manager has a role in the interview process to establish who has the appropriate experience and abilities. She testified that the ultimate decision on hiring rested with her, in accordance with the collective agreement. She also testified that accommodation is managed through the human resources department and this department has ultimate responsibility for accommodation. She testified that the hospital did not have the medical information to demonstrate that this was a job that the applicant could do. She also testified that the position at the Seniors’ Centre was more difficult to accommodate than a similar position in the General Hospital because it was a smaller work location. There was fewer cleaning staff, making it difficult to distribute work that could not be done. In addition, it was a night shift position and there is even fewer staff available on that shift, she testified.

36Ms. Gladstone testified that although the medical information on file with regards to restrictions was conflicting and incomplete, she could conclude that his restrictions would require a job of a sedentary nature or a modified job that was “light with minimal physical demands”. Ms. Gladstone testified that she had observed employees working in cleaner positions, in her previous role as a rehabilitation specialist. She was asked at the hearing how the duties performed by the applicant in the modified porter position would compare to the duties of a cleaner position. She testified that the duties of a cleaner were significantly heavier and had greater physical demands. She stated that the job of cleaner involved pushing and pulling and repetitive movements. She also testified that heavy cleaning involved in the position would require extending shoulders, lifting and carrying, as well as moving furniture. She testified that lifting of greater than 5 kilograms was a requirement of the position. In addition, she stated that the use of motorized equipment for cleaning floors requires the use of force to steer the machine.

37Ms. Gladstone testified that she had worked with Ms. Schlag on numerous occasions to modify duties for positions at the Seniors’ Centre and that Ms. Schlag accommodated employees when she could. She also testified that Ms. Schlag was able to provide modified duties in many cases during the day shifts but she was not aware of any modifications for night shift positions.

38The applicant testified that although he was told that he would not be granted an interview for the registration officer position or the bed control specialist before providing updated medical information, he was not told that medical information was required for the cleaner position.

39Ms. Gladstone testified that the occupational health and safety department was not made aware that the applicant had applied for the cleaner position. She conceded in cross-examination that the occupational health and safety department could have asked for medical restrictions information for the cleaner position.

40The applicant was not successful in obtaining either the bed control specialist position or the registration officer position. He testified that he did not meet the typing requirement for the registration officer position. He was not aware of why he was not selected for the bed control specialist position. He testified that he did not complain about the denial of those positions because the positions were not offered to him and then taken away. He testified that with regards to the cleaner position, he felt that this was a position that was offered to him and then taken away because of his shoulders disability.

Allegations against the union

41In his Application, the applicant did not provide any details of his allegations against the union. He provided particulars of his allegations in 2012, as set out in the decision in 2012 HRTO 363.

42The applicant testified that he called the union’s member resource centre on September 1, 2009 to ask about his rights to the cleaner job under the WSIA. The member resource centre has two levels of response. On the first call (“tier 1”), information is taken and some limited advice is given before the call is referred to a different representative (“tier 2”) for further examination. At the relevant times in this application, Roseanne Clarke was answering calls at the tier 1 level. Ms. Clarke had worked at the hospital for approximately 20 years and was the chief steward for the clerical unit of the union for the last five years of her career. She was a return to work specialist and would represent members returning to work after illnesses or injuries. In 2009, she was seconded to the union to set up a member resource centre. Kate Chrysler was the union representative handling calls at the tier 2 level.

43In notes prepared at the end of the call on September 1, 2009, Ms. Clarke noted that the applicant said he had spoken to his union steward, who told him she would get back to him. Ms. Clarke testified that he encouraged him to talk to his steward. She then referred his concern to the next level. Ms. Chrysler talked to him later that day. She advised him to go for the interview for the cleaner position. She also noted as follows, in her note prepared at the time of the call:

...advised that [I] will forward this to the [union’s] WSIB specialist and inquire that notwithstanding the employer is currently accommodating him in his position is there a duty for the employer to accommodate him in a position that he is applying for which would change his status from [part-time] to [full-time].

44She told him that she believed that the employer had a responsibility to accommodate him in his pre-injury position and status but that there was no obligation under the WSIA to accommodate where the employee wants to change classification as well as status. However, she said the union would investigate if there was a duty under the Code.

45The applicant testified that he had a conversation with Mr. O’Brien, when he saw him in the hallway near the staff entrance to the hospital, after his phone conversation with Ms. Schlag. His co-worker David Cha was with him and heard the conversation.

46Mr. O’Brien is employed at the hospital and has been the chief steward for the service unit of the union since 1984. As the chief steward he has a number of roles within the union, including participating in the hospital’s accommodation committee. He was aware of the applicant’s medical restrictions because of his role on the accommodation committee.

47The applicant testified that he told Mr. O’Brien about Ms. Schlag revoking her offer of the position of cleaner. He testified that Mr. O’Brien then asked him why he was applying for jobs that he could not do. He also testified that Mr. O’Brien said that the hospital was not going to modify the position for him. He testified that Mr. O’Brien told him he should be applying for clerical positions and that he should be applying for positions that suited him.

48David Cha testified that he and the applicant had been co-workers but were not friends. Mr. Cha worked as a porter for approximately 12 years and is now working in the housekeeping department. He testified that he was present for the conversation between Mr. O’Brien and the applicant. He testified that the applicant asked Mr. O’Brien why he did not get the job at the Seniors’ Centre. Mr. Cha said that Mr. O’Brien said, “why apply for a job that you can’t do?”. In cross-examination, he stated that these were the exact words of Mr. O’Brien. The conversation ended with the applicant asking Mr. O’Brien to help him with regards to the position. He could not recall any other details of the conversation. In cross-examination, he denied that he was a friend of the applicant. He also agreed that he was not aware of the applicant’s work restrictions.

49Mr. O’Brien recalled meeting the applicant and Mr. Cha. He stated that it was a chance meeting that lasted between five and ten minutes. He testified that the applicant told him that he had been offered the position of cleaner and then it had been withdrawn on the basis of his restrictions. He testified that he told the applicant that anyone was free to apply for the position and that there is a process for being accommodated, if accommodation was possible. He denied that he told the applicant not to apply for a position. He denied that he said anything to discourage the applicant from applying for positions. He testified that he was not asked to file a grievance. He testified that Mr. Cha was “venting” about the lengthy process to find a full-time position. He also testified that Mr. Cha and the applicant were very good friends and had worked in the same department until recently. He testified that the basis for his conclusion on their friendship was from observing their interactions in the workplace.

50In cross-examination by the hospital, Mr. O’Brien said that he was to some extent surprised that the applicant had applied for the cleaner position, given his medical restrictions. However, he said that he would never discourage someone from applying for a position.

51The applicant called the member resource centre again on September 9, 2009, to ask questions about a clerical position he had applied for, as well as the cleaner position. He wondered why no one had gotten back to him on applying for the full-time position. He was asked if he did apply for the position. He told Ms. Clarke that the offer had been withdrawn when he informed the manager about his restrictions. Ms. Clarke advised him to contact his union steward. She also referred his concern to the next level.

52Ms. Chrysler returned his call on the same day. Her notes taken at the time of the call indicate that she reviewed the job description with the applicant. She noted that he did not meet the job requirement of lifting of 30 pounds. She instructed the applicant to go to his steward and grieve the refusal of the cleaner and clerical positions.

53The applicant testified that he had three conversations with a union representative after his conversation with Ms. Schlag. He did not identify the representative, but it seems clear that he was referring to Ms. Clarke. He testified that he was told that the hospital had done nothing wrong and that they did not have to give him the position. He stated that she told him if you are physically not able to do all the duties of the job, the hospital is not required to give the job to you. He testified that the conversation broke down and that he called back a few days later. He testified that she reiterated the same thing as before.

54The applicant testified that in her phone conversation with him, Ms. Chrysler told him that the actions of Ms. Schlag were a clear violation of human rights and that he should raise this with his union representative. He testified that he called Ms. Clarke again to tell her that Ms. Chrysler had said there was a clear violation of his human rights. He testified that she told him that she did not see it that way.

55The applicant called his union on December 10, 2012, with a question about an unrelated collective agreement provision. In the notes of that conversation, Ms. Chrysler notes that he also raised a concern about changes to his schedule while on modified duties. Ms. Chrysler directed him to Mr. O’Brien and advised him that Mr. O’Brien had been trained to be a member representative at return to work and modified work meetings. She noted that the applicant was pleased with the call.

56Ms. Clarke testified that her telephone conversations with the applicant were not combative in any way.

Evidence after the events of September 2009

57The applicant’s physician provided an FAF on September 29, 2009, stating that the applicant was now able to perform modified duties as a porter, for up to 20 hours a week. It listed restrictions on lifting from floor to waist and waist to shoulder of 5 kilograms. It also listed restrictions on bending or twisting of bilateral shoulders and limited pushing/pulling with both arms.

58On December 4, 2009 (after the filing of this Application), the applicant was placed in a full-time temporary clerk receptionist position until March 26, 2010, which was extended until April 22, 2011. He remains employed with the hospital.

Submissions for the Applicant

59The applicant provided written submissions in advance of the hearing and also made oral submissions.

60The applicant submitted that there are three issues to be determined:

1. Did the hospital breach the procedural component of the duty to accommodate in relation to his request for accommodation on September 3, 2009;
2. Did the hospital breach the substantive component of the duty to accommodate the applicant in relation to his request for accommodation on September 3, 2009; and
3. Did the union discriminate against the applicant in holding him to an unwritten policy, wherein he was discouraged from applying to any positions requiring modified duties.

61The applicant submitted that once the hospital and Ms. Schlag became aware that the applicant suffered from a disability and required accommodation, the duty to accommodate was triggered. The applicant submitted that accommodation must be done in a manner that most respects the dignity, self-respect and self-worth of the person.

62The applicant submitted that the duty to accommodate requires employers to be flexible when developing accommodation measures and should consider varying work schedules, lightening duties or arranging for staff transfers. The applicant submitted that the duty to accommodate requires a global assessment and that the standard of proof in demonstrating undue hardship is very high.

63The applicant relied on the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate which sets out the following duties of an employer in the accommodation process:

• 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; [and]
• 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;

64The applicant submitted that there are two components to the duty to accommodate — the procedural component and the substantive component. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (upheld by the Divisional Court, 2008 CanLII 39605 (ON SCDC), [2008] O.J. no. 3076), the Tribunal concluded that the failure to meet the procedural dimensions of the duty to accommodate was a form of discrimination.

65The applicant stated that the procedural duty to accommodate includes obtaining relevant information about the employee’s disability and considering and exploring options that may be available to accommodate the disability up to the point of undue hardship: Goad v. 1681078 Ontario, 2010 HRTO 817 at paragraph 29.

66The applicant submitted that Ms. Schlag had an obligation to inquire as to his specific disability-related needs and if and how they could be accommodated in the cleaning position. The applicant submitted that it is clear that this assessment is required to take place at the time of the alleged discrimination, that is, at the time Ms. Schlag made the determination that the offer would be revoked. The applicant stated that the evidence showed that Ms. Schlag did not ask the applicant about his functional limitations or how long accommodation might be required. In addition, the applicant stated that she did not discuss the need for medical information but rather made an instantaneous decision to withdraw the offer of employment. The applicant submitted that insufficient time and effort spent on the procedural obligation followed by a rush to judgment is a failure to accommodate and is a form of discrimination: Chen v. Ingenierie Electro-Optique Exfo Inc., 2009 HRTO 1641 at paragraph 39. The applicant submitted that in her rush to judgment Ms. Schlag breached the procedural component of the duty to accommodate.

67The applicant submitted that he did not advise Ms. Schlag of his functional restrictions because he wanted her to focus on his qualifications for the position, he submitted that it was reasonable for him to expect that he would be considered for the position initially on the basis of qualifications, rather than restrictions due to his disability. The applicant referred me to Xu v. The Ottawa Hospital, 2011 HRTO 1208 (affirmed, 2013 ONSC 762), where the Tribunal found that it was reasonable to withhold information regarding a disability until later in the hiring process in order to ensure that managers focus solely on the candidate’s qualifications without making assumptions about the candidates ability to do the job because of a disability.

68The applicant submitted that the hospital’s position that the failure to provide updated medical information suspended the duty to accommodate was not valid. He submitted that she was not aware of the request for medical information, so any alleged failure on his part to obtain the medical information could not have been in her mind when she made her decision to revoke the employment offer. He also submitted that had she been aware of the outstanding request for updated medical information, the reasonable step would have been to send a list of the required duties of the cleaning position to the physician, as had been done for other positions he had applied for.

69The applicant submitted that the hospital’s position that the applicant would not be considered for any positions until he provided updated medical information was a failure to accommodate. The applicant noted that the hospital had medical information from April of 2009 and there was no reason to believe that his medical restrictions had changed. In addition, he submitted that the hospital knew that he could not obtain updated medical information because his doctor was on holiday.

70The applicant submitted that he had cooperated in the accommodation process: he had consistently provided medical information in a timely manner in the past, and within one week of the hospital’s request for updated information, he contacted his doctor. He submitted that this is not a failure to cooperate or refusal to fulfill his accommodation obligations.

71The applicant submitted that the hospital had no reason to suspect that his functional limitations had changed. The applicant submitted that under the following circumstances an employer’s request for medical information is appropriate:

1. When the employer does not yet have any medical information in order to assess the Applicants suitability for positions (Scarlett v. Hamilton Health Sciences Corp., 2010 HRTO 5);
2. The employee’s disability progresses and changes, requiring the employer to obtain newer, more specific evidence to fulfil the duty to accommodate (Halliday v. Michelin North American (Canada) Ltd., (2006) C.L.L.C. 230-032);
3. The Applicant informs the employer that his condition has changed, or the employer has reason to believe it has changed from the last FAF (Zaytoun v. Canadian Food Inspection Agency, 2010 PSLRB 35) and
4. The employee submits medical information which is not specific and the employer requires additional information to determine what the actual limitations are, as opposed to simply the doctor’s recommendation (Matthews v. Chrysler Canada, 2011 HRTO 2053).

72The applicant submitted that the hospital had no information to suggest that his medical condition had changed. He further submitted that an employer should not be permitted to make frivolous medical requests and use the length of time it requires to obtain numerous FAFs to stop the duty to accommodate and not consider an employee for any position. The applicant submitted that the hospital had sufficient medical information and further requests were inappropriate.

73The applicant submitted that the substantive component of the duty to accommodate may include modifying job duties, working hours, or even the physical makeup of the workplace itself (Bechard v. Ontario Lottery and Gaming Corporation, 2012 HRTO 1761 at paragraph 25). The applicant submitted that he could have performed the duties of the cleaning position with one modification: the worker who replaced him at the end of the shift would have had to put the garbage bags into the bin. The applicant stated that from a common sense perspective, this minor modification would not have resulted in undue hardship. The applicant submitted that in any event the hospital was not in a position to demonstrate that he could not have been accommodated in the cleaning position because it failed to meet the procedural component of the duty to accommodate.

74The applicant also submitted that the hospital had no obligation to give weight to the information on his functional limitations that he provided: Llano v. Fairweather, 2011 HRTO 556 at para. 36. The applicant submitted that he was in the best position to assess whether he could perform the duties of the cleaning services position at the time that the offer was made by Ms. Schlag.

75The applicant submitted that the Union has a duty to assist in attempts to accommodate disabled workers and should adopt policies that do not adversely or directly discriminate against employees seeking accommodation. The applicant submitted that where a discriminatory policy exists, the Union is only excused from the requirement to enable accommodation if it can be shown that enabling accommodation would have resulted in undue hardship: Central Okaganan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para 38.

76The applicant submitted that after the withdrawal of the offer of employment for the cleaning position, he approached the union for guidance and was told not to apply for jobs where he would require accommodation. The applicant submitted that his testimony and that of Mr. Cha should be preferred over the testimony of Mr. O’Brien. In addition, the applicant submitted that the comments of Ms. Clarke reinforced the position of the union that it was not interested in assisting in accommodation.

77The applicant submitted that the union’s policy was direct discrimination, presented obstacles in the accommodation process and also adversely impacts employees who suffer from a disability.

Submissions of the hospital

78The hospital submitted that the decision not to consider the applicant for the cleaner position was a decision made by Ms. Watson. This decision was made on the basis that the applicant failed to provide medical information that the employer required in order to accommodate his disability. It was also clear from the evidence of Ms. Watson that as a front line supervisor, Ms. Schlag did not have the right to make a final decision on whether or not to hire. Ultimately, the decision to hire is made by the manager to whom Ms. Schlag reported and Ms. Watson. The hospital referred to the posting provision in the collective agreement.

79The hospital submitted that it did have a well-developed collaborative accommodation process and this was confirmed by both witnesses for the hospital and witnesses for the union.

80The hospital submitted that it did make successful efforts to accommodate the applicant both in clerical positions and in modified duties of the substantive position of porter. The hospital submitted that in March of 2009 his physician advised that the only type of job suitable for the applicant was a clerical position. In addition, the hospital noted that the notes from the occupational health file indicated that in March 2009 the applicant was reporting that the clerical job may have had an impact on his shoulders. The hospital noted that at the May 2009 return to work meeting facilitated by the WSIB, the applicant was cleared to return to highly modified porter duties. The hospital submitted that it did not receive any further updated medical information until September 29, 2009, this update still referred to significant restrictions.

81The hospital submitted that one of the key factors that is reasonable for a hospital to consider in meeting its duty to accommodate is to ensure that the applicant is able to do the essential duties of the job. The hospital submitted that it was trying to accommodate the applicant and required updated medical information in order to do so. The hospital submitted that this was a reasonable concern given the significant restrictions the applicant had presented in February and March of 2009. The hospital submitted that it could not be faulted for wanting to know what the applicant’s limitations were. It also submitted that the applicant clearly knew that the hospital was seeking updated medical information and he either would have known or should have known that it was important for him to provide it.

82The hospital noted that it was surprising that the applicant applied for the cleaner position given his stated restrictions. It stated that, on its face, the job was clearly a physically demanding one. It also submitted that it was clear from the evidence that this was not a job that would typically be used to accommodate someone with serious physical restrictions. The hospital submitted that the applicant’s approach to the cleaner position was cavalier – he did not think it necessary to consult a physician about his ability to perform the duties of the position. The hospital submitted that the underlying condition of the applicant has been more or less the same throughout 2009, and in those circumstances he had a duty to discuss his limitations with his physician to determine if the work would be suitable.

83The hospital noted that the requested medical documentation was received by the hospital at the end of September 2009 and it does not indicate a significant change in restrictions for the applicant.

84The hospital submitted that the applicant has been seeking a full time position as an accommodation. The applicant was in a part-time position and the fact that he has a disability has nothing to do with him not being full time.

85The hospital referred me to Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Scarlett v. Hamilton Health Sciences, 2010 HRTO 5; Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453; and Akash v. Toronto Transit Commission, 2012 HRTO 677.

86In Scarlett, the Tribunal concluded that the hospital fulfilled its duty of accommodation when it requested medical documentation to support the applicant’s desired accommodation and that documentation was not forthcoming.

87The hospital submitted that the applicant should have filed a grievance as part of his duty to cooperate in the accommodation process. The hospital stated that if he had done so, the issues could have been addressed fully and quickly.

Submissions of the union

88The union limited its submissions to the allegations against it.

89The union submitted that it regularly advocates on behalf of its members who require accommodation and there was no challenge to that evidence by the applicant. It also submitted that it had assisted the applicant in accommodation on several occasions. The union submitted that the applicant was given clear advice from the union to file a grievance, when it was advised of the withdrawal of the cleaner position.

90The union noted that the applicant elected not to file a grievance, even though he was clearly aware of his right to do so and the process for doing so.

91The union submitted that there was no provision in the collective agreement that was contrary to the Code. The alleged work rule relied upon by the applicant was that members of the bargaining unit ought not to apply for jobs that require modification. The union submitted that there was no evidence of such a work rule or policy. The union submitted that, even if true, the alleged comments of Mr. O’Brien were not sufficient to establish a work rule. The union submitted that an “off the cuff” comment, without more evidence, could not constitute a work rule or policy – there has to be some evidence that the alleged policy is enforced or acted upon. It submitted that the evidence showed that there was no such policy or work rule.

92The union submitted that the testimony of the applicant and his co-worker on the conversation with Mr. O’Brien was not credible or reliable. The union noted that there were no direct allegations against the union in the original Application. The union submitted that the applicant’s recollection of what took place was not reliable. In addition, the union noted that the applicant accepted the intake notes of his conversations with union representatives (taken contemporaneously) as accurate reflections of his discussions with the union. The union submitted that the allegations against the union are inconsistent with the notes taken at the time.

93The union submitted that if there had been concerns with Mr. O’Brien, the applicant would have raised those concerns in his telephone conversations with union representatives. The union submitted that the evidence of Mr. O’Brien about the conversation in the hallway was more reliable and accurate.

94The union submitted that the evidence of Mr. Cha was not reliable. It submitted that Mr. Cha was evasive about his relationship with the applicant – the evidence was clear that the relationship was more than a casual workplace one. In addition, the union submitted that his evidence was vague and not clear on the particulars.

95The union submitted that the applicant had not proven his allegations and the application, as against the union, should be dismissed.

Reply submissions of the applicant

96The applicant submitted that the most recent medical information that the hospital had was from the return to work meeting of May 25, 2009. At that meeting, the participants agreed to modifications to the porter position. The applicant submitted that given that he had clearance for the porter position it was unreasonable for the employer to request medical information as it related to the records clerk position.

97The applicant submitted that his evidence on his discussion with Ms. Schlag was uncontradicted. He stated that he told her he required accommodation and her response was instant – Ms. Watson was not involved at all in the response.

98The applicant submitted that he had lost faith in his union and that it was appropriate to file an application under the Code.

Decision

99In this Application there are separate allegations against the union and the employer. I will address the allegations against each respondent separately. First, however, I will set out some findings that apply to the allegations against both respondents as well as some common principles.

Disability and the duty of accommodation

100The applicant has raised allegations against his employer and against his union relating to his efforts to find accommodated work in the hospital. It is not disputed that the applicant has a disability. He has shoulders-related restrictions and has been in receipt of workers’ compensation benefits. The Code provides that an employee receiving benefits under the WSIA is considered to have a disability within the meaning of the Code; see section 10(1).

101It is also not disputed that the applicant required accommodation for his disability. The issues in this Application are the extent of the accommodation required, whether the employer appropriately considered accommodation, and whether the union discouraged the applicant from obtaining an accommodated position.

102It is also not in dispute that the applicant was not able to perform all the duties of his regular position of porter in 2009. The hospital, in concert with the WSIB, made efforts to modify the porter position to accommodate his restrictions and a return to work plan was finalized in May of 2009. The applicant has not raised any issues with respect to these efforts at accommodation.

103The issue in this Application is not the accommodation of an employee in his or her existing position. The issue is accommodation in a new position that the applicant was eligible and qualified for. There is no dispute that, but for his physical restrictions, the applicant would have been the successful applicant for the cleaner position at the Seniors’ Centre. For this reason, I do not need to determine whether the hospital was required to appoint the applicant to a full-time position as part of its duty to accommodate.

Assessing credibility

104As against both respondents there are allegations that contain disputed facts that require an assessment of the credibility and reliability of that evidence. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 356-357:

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

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

105More recently, the court in R. v. Taylor, [2010] O.J. No. 3794, 2010 ONCJ 396 has made observations on credibility that are relevant to this Application (at para. 58):

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

106In R. v. Morrissey, 1995 CanLII 3498 (ON C.A.), the Court of Appeal made the following comments about testimonial evidence (para. 205):

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

107The above principles have guided me in my assessment of the credibility of the witnesses.

Allegations against the employer

108The applicant has alleged that the hospital breached its duty of accommodation when he was not considered for an appointment as a cleaner at the Seniors’ Centre. It is not contested that the applicant was qualified for the position (he had worked as a cleaner for the hospital previously) and that he was first on the seniority list. What is contested is the reason for not being considered and its characterization. Simply put, the applicant contends that Ms. Schlag offered him the position and revoked it because she refused to consider accommodating him in the position. The employer contends that Ms. Schlag did not have the authority to hire anyone and that he was not considered for the position because he had not provided current medical information on his restrictions.

109It is clear from the detailed testimony on the hiring processes at the hospital that Ms. Schlag would have played a critical role in the hiring process but was not ultimately responsible for any hiring decisions. As noted, Ms. Schlag died before the commencement of these proceedings and there are no notes or other record of the interview she conducted with the applicant or of the subsequent phone call. The applicant alleges that she told him that the job was his. In light of the fact that Ms. Schlag did not have the authority to hire and that there is no evidence that she spoke to the recruiter about her conversation with the applicant, I do not need to determine if the conversation took place in the way described by the applicant.

110The duty of accommodation has both procedural and substantive requirements: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC). As stated by the Divisional Court at paras. 107-108:

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…

In assessing whether the employer has met the duty, the employer’s efforts must be assessed at the time of the alleged discrimination. An employer may not use after-acquired evidence to support its view that an employee could not be accommodated. After-acquired information is only relevant to remedy…

111The duty of accommodation is a collaborative process. The applicant has an obligation to participate in the accommodation process by providing medical documentation about restrictions and the accommodation required (Sugiono v. Centres for Early Learning, 2013 HRTO 1976 at para. 36; Baber v. York Region District School Board, 2011 HRTO 213 at para. 149; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para. 35). As noted in Scarlett (at para. 51):

…The duty to accommodate is part of a collaborative process, in which the Hospital’s actions and responsibilities must be understood in the context of the information before it and positions taken by the applicant. I find that in all the above circumstances, the Hospital fulfilled its duty. It requested medical documentation to support the applicant’s desired accommodation, a leave from work. It advised the applicant that his medical documentation was insufficient and gave him a further opportunity to provide supporting documentation. The applicant was given an opportunity to identify restrictions necessary to enable a return to work and did not. The applicant did not propose any alternative accommodation measures. The applicant did not demonstrate that his leave of absence was a necessary accommodation of a Code-related need, and did not seek to engage the Hospital in a further discussion about alternative accommodation measures.

112The hospital had been asking the applicant on numerous occasions to provide updated medical information with regards to his restrictions since May of 2009. The applicant acknowledged that he knew he would not be considered for the positions of registration clerk and bed control specialist that he had applied for until he provided updated medical information. It is not credible that he accepted that medical information was required for these two positions but not for the more physically demanding job of cleaner.

113The hospital was, in accordance with its procedural duty of accommodation as set out in by the Divisional Court in ADGA Consultants, seeking “all relevant information about the employee’s disability, includ[ing] information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work”.

114In Alexander v. Zellers, 2009 HRTO 2167 at para. 34, the Tribunal noted that the employee also has a responsibility to make the process work, including providing the employer “with the necessary information to allow the employer to accurately understand what the restrictions are and how they can best be accommodated.”

115In Matthews v. Chrysler Canada, 2011 HRTO 2053, the Tribunal noted that in some cases, accommodation will be straightforward, while in other cases it can be more complex: “if the nature of the disability is not clear or if the restrictions associated with the disability are not self-evident, or if they change, there can be a need for ongoing adaptation” (at para. 49). Updated information is often required in order to properly (and safely) accommodate an employee. As stated in Matthews (at para. 46):

…Not only is it unfair to expect an employer to impute and deduce a worker’s needs based on remote and scant knowledge, it is dangerous. Basing accommodation on assumptions creates a risk that an employer will act in a high-handed and potentially discriminatory manner.

116An employer also has health and safety obligations under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1: s. 25(2)(h) requires the employer to “take every precaution reasonable in the circumstances for the protection of a worker”.

117The need to consider health and safety was addressed in a British Columbia Human Rights Tribunal decision, Johnston v. B.C. (Ministry of Human Resources), 2007 BCHRT 257 at paragraph 307, where the Tribunal stated:

I agree with the Ministry’s submission that, in light of the information in its possession at the time, it was incumbent on it to ensure that Ms. Johnson’s safety in the workplace was not in jeopardy. Ms. Johnston’s subsequent assertions in August 2000 that she was well enough to work are inconsistent with the contrary indications that she was experiencing severe allergic or asthmatic reaction in the workplace. The Ministry acted as a prudent and responsible employer would do. Had it not taken the action it did, and Ms. Johnston had experienced more severe reactions in the workplace, it may well have been seen as negligent. The Ministry had a legal obligation to ensure that Ms. Johnston did not come to harm in the workplace. It could not simply rely on her word, or even that of her physician. It needed objective, specialized medical evidence to determine the nature of Ms. Johnston’s condition, and to determine whether or how it could accommodate her in the workplace.

118The applicant contends that he was not hired for the position because Ms. Schlag said she could not or would not accommodate him. As I have already noted, Ms. Schlag did not have the authority to hire the applicant and there was no evidence of any discussions she might have had with the recruiter. The evidence is that the applicant was not considered for the cleaner position because he had not provided updated medical information that the employer considered necessary to determine his accommodation needs.

119The duties of the cleaner position that were set out in the job poster were not contested by the applicant. Both the job duties and the testimony of witnesses support the conclusion that a cleaner position is a physically demanding job. The applicant was of the view that he could do the duties of the cleaner position with only one adjustment – having someone else throw the garbage bags into the compactor at the end of his shift. However, his assessment of his restrictions is only one part of the information required in the accommodation process.

120In my view, an employer is justified in obtaining medical clearance for an employee who has a disability and has had work-related aggravations of his disabilities in the past. This is because there is an obligation on an employer to safely accommodate when the nature of the disability is not clear or if the restrictions associated with the disability are not self-evident (Matthews at para. 49). In this case, the hospital had conflicting and incomplete medical documentation. In addition, a less physically demanding clerical job had resulted in a report from the applicant that there was an aggravation of his disabilities. The applicant was informed on a number of occasions by email and over the telephone that updated medical information was required and that he would not be considered for further positions until that information was provided. The applicant acknowledged that he was aware of this condition.

121The applicant has argued that his doctor was away from June until September of 2009, and he was therefore not able to obtain a medical report. The employer had been requesting updated medical information since May 25, 2009, and had provided reminders by email and orally. He provided no explanation as to why he was not able to get a medical report prior to his doctor’s absence. He was aware that the employer sent a letter to his physician on June 26, 2009, requesting medical clearance. He was advised on July 10, 2009, that there had been no response from the doctor and he was given a copy of the letter and agreed that he would follow up in person with his doctor. It was not until July 23, 2009, that he informed the employer that he was not able to get an appointment with his physician and he only informed them after being asked. There was no evidence that he told the employer that his doctor would be away until September. In fact, as late as July 25, 2009, he told Ms. Leblanc that he was going to get the information to her “asap”. He either did not know that his doctor was away or he chose not to tell the employer. This would have been important information for the employer to know in order to manage the accommodation process. If he had told the employer that his doctor was away, the employer could have requested that he obtain medical clearance from another doctor. The applicant had been to four different physicians between 2008 and 2009 and provided no evidence as to why he could not have received a report from another physician. In addition, the employer was not advised that the applicant’s doctor was returning in September or that the applicant had an appointment scheduled in September. In short, the employer had requested medical information that it needed in order to accommodate the applicant, it was not forthcoming, and the applicant provided no timetable on when it might be forthcoming. Accommodation requires the cooperation of the employee, and in this case, the employee was not cooperating.

122I find that the hospital met its procedural duty of accommodation. In the absence of current medical information on his restrictions, it was not possible for the hospital to consider whether the duties of the cleaner position could be modified to accommodate the applicant.

123Since I have concluded that there was no breach of the procedural duty of accommodation and that the hospital was justified in refusing to consider the applicant for the position until it had updated medical information, I do not need to determine if there was a breach of the substantive duty of accommodation. However, from the evidence presented, it is unlikely that the position could have been modified. In making this determination, I have not considered the medical information obtained on September 29, 2009, since that information was not available to the employer at the time.

124The medical information on file imposed significant limitations on lifting as well as pushing and pulling for the applicant. He had also previously complained that his clerical duties had resulted in an aggravation of his shoulder disability. He was also medically restricted to working 20 hours per week. Given the information available to the employer at the time of his application for the cleaner position, it is not reasonable to believe that the applicant could be accommodated in a full-time cleaner position. Given his significant limitations on physical activity and the medical difficulties that arose from a clerical position, it is not clear what essential duties in the cleaner position he could perform. The position description is clear that pushing and pulling is required, as is lifting of more than 5 kilograms. If the applicant was unable to perform these duties in his regular porter position, it is not conceivable that he could have performed those duties in the cleaner position.

125For these reasons, the allegations against the hospital are dismissed.

Allegations against the union

126The applicant has alleged that the union discriminated against him by refusing to assist him in obtaining a modified position and in discouraging him from applying for positions that required accommodation. For the reasons that follow, I find the evidence of the applicant and of Mr. Cha about the interactions with the union to be not credible.

127The particulars of the allegations against the union were only provided by the applicant shortly before the hearing of the application. The allegations would be more credible if they had been made in the Application or shortly thereafter.

128There are two allegations at issue in this application: against Mr. O’Brien in the brief conversation in the hallway and against Ms. Clarke in a series of telephone conversations before and after the interview for the cleaner position.

129Mr. O’Brien denies making the alleged comment. On a balance of probabilities, I find that he did not make the alleged comment. Mr. O’Brien was experienced and knowledgeable about accommodation and also participated on the accommodation committee. He therefore knew about the duty of accommodation and is not likely to have been dismissive of accommodation needs.

130The applicant spoke to union representatives on a number of occasions after the conversation with Mr. O’Brien. He did not mention the conversation to anyone at the union and he continued to consult with the union on issues relating to his disability as well as on other matters under the collective agreement. If he had been told by Mr. O’Brien that the union was not interested in helping him, it would have been likely that he would have mentioned that in his conversations with the staff at the member resource centre.

131Mr. Cha had a very strong recollection of the exact words used by Mr. O’Brien in one sentence, but had no detailed recollection of the rest of the conversation. It was also clear that he had a good relationship with the applicant. While having a good relationship with someone is not generally a significant factor in weighing credibility, the fact that he denied such a relationship is relevant. On a balance of probabilities, I find that Mr. Cha did not provide accurate testimony of the conversation.

132The allegations relating to the phone calls to the member resource centre are also not credible. As I have noted, these allegations were not fully raised until the hearing of the application. The evidence of Ms. Clarke was supported by notes taken of the call immediately afterwards. The notes clearly show that he was told to take up the matter with his union steward and that he should file a grievance. In addition, he continued to contact the member resource centre after September of 2009 with questions about his rights under the collective agreement and never mentioned his concerns to the union representatives.

133I therefore find that the applicant has not demonstrated, on a balance of probabilities, that the union breached the Code. Accordingly, the allegations against the union are dismissed.

Order

134The Application is dismissed.