Bonny Currie v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services, 2015 HRTO 478

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bonny Currie Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services Respondent

DECISION

Adjudicator: Yola Grant Date: April 15, 2015 Citation: 2015 HRTO 478 Indexed as: Currie v. Ontario (Children and Youth Services)

APPEARANCES

Bonny Currie, Applicant Barry Roy, Representative

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services, Respondent Susan Munn, Counsel

Introduction

1This is an Application filed on May 16, 2014, alleging contravention of settlement under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The written Minutes of Settlement was executed by the same parties on July 17, 2013, in connection with a previous Application before this Tribunal (File No. 2011-10007-I). That previous Application claimed discrimination in employment based on a disability.

2The hearing in this matter was conducted via teleconference on January 21, 2015. The applicant is a Youth Services Officer (“YSO”) at the Roy McMurtry Youth Center. The applicant testified on her own behalf and Bradley Hoover, Operations Administrator, testified on behalf of the respondent. The witnesses have 20 and 23 years of experience in corrections, respectively, and gave evidence regarding practices and expectations.

3The applicant’s primary responsibilities include direct supervision of young persons who live and study within the correctional facility. While teachers are present for instruction, they themselves may require YSOs to provide protection in the event that there is any violence from the youth in their charge.

Breach allegation (change in work location)

4The applicant alleged that she was removed from escort duties associated with school activities in Building D during the weeks of November 4 and 18, 2013, while school was in session, contrary to the minutes of settlement relating to the accommodation of her scent sensitivity. The settlement consisted of a few clauses that would govern the relationship between the parties during the continued employment of the applicant, including a clause to maintain a strict confidentiality of the settlement. The clauses of most interest in this breach of settlement application before the Tribunal addressed the work arrangements that accommodated the applicant's needs. In particular, the minutes of settlement reads in part as follows:

3. … During the period when the Applicant is scheduled on days, she would be assigned internal YSO Escort duties and will be placed in Building D during school hours. Internal YSO Escort duties will be assigned only when there are youths in attendance at Building D. …[italics added]

4. Best efforts will be put forward to implement the work arrangement as detailed in paragraph 3 within two weeks of the signing of the settlement.

5. The parties agree that the arrangement as detailed in paragraph 3 will continue provided it continues to be an effective accommodation, and operationally feasible. … The parties agree that the discussion of any future accommodation will be taken to the HPP Committee, and that the Applicant and her union representative will be entitled to fully participate in that process.

5On the same date as the Minutes of Settlement were executed by the parties, July 17, 2013, an “Individual Early & Safe Return to Work/Workplace Accommodation” form was completed. The Work Assignment Details are as follows:

To work 3 weeks of 0700-1500 hours and then 3 weeks of 2300-0700 hours reporting to YSM Sean Tomlinson. She’s assigned to unit #5A. When working days 0700-1500 hours she’s assigned as internal YSO escort duties and will be placed in building D during school hours. Internal YSO escort duties will be assigned only when the school is in session and when youth are in building D. To carry out all YSO duties within Unit #5A at all other times. [italics added]

6While the school was closed for the week of November 11, the applicant reported to Unit 5A, the “cottage”. There was no dispute regarding her reporting to the cottage while school was not in session. The parties agree and a plain reading of the minutes of settlement indicates that the cottage was a work location contemplated at the time of the settlement of the earlier human rights application. The applicant contends that the cottage was a regular post that did not address her scent-related sensitivity but she understood that she needed to work in that environment when school was not in session in building D.

7The applicant stated that she learned of the change in her duties indirectly on a close read of the log book when she noticed that a YSO colleague was directed to report to Building D after the resumption of school, while she was left to continue reporting at the “cottage”. Her posting to the cottage when school resumed during the week of November 18 was not discussed with her nor was it raised with the “HPP Committee” pursuant to the Minutes of Settlement as a change to her accommodation arrangements. She alleged that this caused her a great deal of emotional stress and resulted in her taking further sick leave on her last day at work.

8The respondent Ministry submitted that the applicant failed to perform the functions of the Youth Services Officer during her posting to Building D on November 6, 2013, and thus was re-assigned to perform duties in Unit 5A/the cottage for the remaining shifts until her retirement on November 18, 2013. The respondent stated that it was not feasible to undertake corrective action for the applicant's failure to perform her duties shortly before she was scheduled to retire, and, but for her impending retirement, the discipline process would have been engaged. In Building D, she worked alone as a YSO while in the cottage she worked with other YSOs and was not in sole charge of the residents. (“D building” and “building D” are used inter-changeably.)

9Alternatively, the respondent also maintained that the posting to Unit 5A/the cottage was appropriate accommodation for the remaining shifts and the applicant suffered no harm as a result of that posting.

Evidence of the witnesses

10The parties agree that the applicant was on duty in Building D when she left her post at the classroom door on November 6 without authorization or arranging for a relief YSO. While the applicant was away from her post, an acting supervisor (and member of the applicant’s union while in the role of Youth Services Manager) patrolled and discovered her absence. The acting supervisor, Ms. Vaughan, radioed the applicant and asked her about her whereabouts. Beyond that, the evidence diverges.

11The acting supervisor spoke to a “shadow”, another YSO who was present at the post but had no “standing” and was not responsible for taking any action in relation to the youth. According to the respondent’s witness, the “shadow” indicated to the acting supervisor that the applicant had left to make a phone call. The acting supervisor was not called as a witness. There is no indication from the documents submitted by the respondent that the acting supervisor remained in Building D at the applicant’s post to keep track of her return time and to assess how far away or how long the applicant have been from her post.

12On the other hand, the applicant testified that she left for a brief period to get a Kleenex to blow her nose and states that the shadow may have been mistaken when he reported that she had left to make a phone call. The applicant testified that she travelled to an office about 30 feet from her post through a set of doors. She candidly admitted that she was not in a position to maintain visual contact with youth in the classroom and that she understood that the “shadow” could not count as a substitute for her in any way. She also expressed surprise that she learnt through the disclosure process before this Tribunal that she was alleged to have been at a cottage, beyond the boundaries of Building D.

13According to the applicant, she had assessed the situation and determined that it was safe for her to go to the office as the youth in Building D are the best behaved among the boys in the facility (and thus called “platinum boys”), there were only two boys in the classroom with two teachers, each boy sat flanked by a teacher, and the four were watching a 30-minute video that had just started when she left for the office. All tools were locked away, and in any event, there is no “constant watch” on the boys.

14On November 6, the applicant testified that while she was away from her post by a classroom in Building D, she received a radio call from the acting supervisor and that she informed her of where she was. The acting supervisor told her to “write a report”, but later near the end of the shift, around 3 p.m., she changed that direction to “You don’t need to write a report but we won’t need you back here in D building”. The applicant understood at the time that the acting supervisor had spoken to the “first in command officer”, Mr. Hoover (initially misidentified as Cooper by the applicant). As a result of this direction, the applicant became upset and did not attend work on November 7 and 8, opting instead for sick leave.

15The week of November 11 was a school recess and the applicant reported to the cottage unit as expected to work. On November 11, the applicant emailed the acting supervisor to request clarification regarding her posting to D Building and received no response. She received no response from her or from any other member of management for the remaining seven days of her employment.

16During her final week of work, on November 18, the applicant discovered an entry in the log book that was made around November 6 by her direct manager, Mr. Tomlinson, that stated that the “8:30 a.m.” YSO (not the applicant) would accompany the boys to D building. This accompaniment was the same assignment that the applicant had been assured of by the minutes of settlement and the workplace accommodation plan in which Mr. Tomlinson was directly engaged. The Applicant became distraught on reading this entry and asked to be excused for sick leave around 11 a.m. Shortly after her request to go on sick leave, she was approached by another supervisor (Mr. Pereira) who asked to prepare an incident report regarding her departure from her post on November 6.

17The respondent’s evidence, given by Mr. Hoover, Operations Administrator, was that the applicant was reposted out of concern that she might leave the D building area again and that he considered her conduct to be a serious breach but did not want to put her through the discipline process just before her retirement.

18The respondent’s counsel conceded that the YSO job description would be of no help in clarifying that the applicant was required to maintain visual contact with her charges at all times, even when there was no suicide or “constant watch” directed.

19On cross-examination, the respondent’s witness also admitted that he did not himself make a report of a serious occurrence and he did not request a report from the applicant before making a decision to remove her from D building.

DECISION

20There is no dispute amongst the parties that for about four months after the Minutes of Settlement was signed, the respondent adhered to the agreement for the applicant to work in Building D, an area of the correctional facility where she would least likely be affected by scents. When there was no work in that area, she was assigned to the cottage. The respondent conceded that it made a change to the accommodation arrangements unilaterally as it needed to safeguard its operation.

21It was un-contradicted that a posting to Building D suited the applicant’s accommodation needs and that she would work in the regular environment in the “cottage” only when work was unavailable in Building D, i.e. the cottage was a “fallback" position when school was not in session. During her last weeks of employment, work was available in Building D (school was in session) but for reasons not then disclosed to her, she was not assigned to work there, contrary to a plain reading of the Minutes of Settlement. I reject the respondent’s claim that the “cottage” was an alternate work site that was contemplated in the Minutes of Settlement, given that even prior to signing the Minutes of Settlement, the “cottage” provided her with an opportunity to work but did not address her needs regarding sensitivity to scents.

22I agree with the applicant that although the posting to the cottage was contemplated as a work location while school was not in session, the respondent breached the Minutes of Settlement by removing her from Building D while school was in session without resort to the HPP Committee process referenced in the MOS that contemplated full participation by the applicant and her union representative.

23I am not persuaded that it was not “operationally feasible” for the respondent to continue the applicant’s accommodation in Building D while appropriate steps were taken in a disciplinary process, if indeed the respondent thought the allegations were sufficiently of concern to warrant discipline. Even without accepting the applicant’s evidence that it was common practice to leave one’s post briefly for washroom breaks because of delay between the time of request and the arrival of a replacement, I am not persuaded by the evidence that the alleged breach necessarily meant that continuing her accommodation was not “operationally feasible”. The applicant had 20 years of experience in corrections, five years of which were spent at this site. Her evidence that there were no issues of violence by youth under her sole supervision was not contradicted.

24Furthermore, the applicant viewed her posted area as “building D”, not a particular spot by the door to the classroom. She testified that she would be required to stay in close visual contact only if there was “constant watch” for suicidal behaviour. Her evidence was that no tools were in use and none were going to be unlocked that day as only a movie was planned. Her evidence on the factors that she considered relevant in her risk assessment before leaving the classroom area was not contradicted. Most importantly, her statement “my area is D building” was unchallenged.

25The respondent’s witness equivocated on whether the applicant’s conduct was properly described as an “abandonment of post”, a matter that is considered to be a “serious” offence that may have resulted in termination of employment. According to this witness, it is rare for an officer to step out for a washroom break without formal arrangements for relief personnel and that any such departure from protocol would result in an investigation. I note that there was no notice, verbal or written, to the applicant of the alleged dereliction of duties. The applicant was not provided with any formal or informal warning that her accommodation arrangements may be in jeopardy because of her departure from her post (and failure to maintain constant visual surveillance of youth in a classroom) on November 6, 2013. Her only indication that her post was in jeopardy was a perfunctory statement from the acting supervisor at the end of the shift that was accompanied with a statement that the applicant need not file an incident report. The applicant’s direct supervisors, Vaughan and Tomlinson, were not called to give evidence regarding the applicant’s absence and the decision to remove her from Building D without requiring her to file and occurrence report for November 6.

26In my view, the respondent’s managers acted in breach of the Minutes of Settlement when they decided to unilaterally change the applicant’s work duties without engaging in any discussion with the applicant or seeking alternatives that would meet both its operational needs as well as its duty to accommodate the applicant’s scent sensitivity to the point of undue hardship. No investigation of the incident was carried out to determine its seriousness (e.g. the acting manager had no firsthand account of how long the applicant remained away from her post, as the acting manager did not remain in place to await the return of the applicant and effectively test the applicant’s claim that she was only 30 feet away), the applicant was not warned of the potential impact on her accommodation, the committee contemplated in the MOS for making modifications to the accommodation plan was not approached and the usual disciplinary investigation process was not invoked.

27For the remaining three weeks of work (November 6-18) before her retirement, the applicant had a continuing need for and a right to work with accommodation as contemplated by the Minutes of Settlement. There was no attempt to explore other areas within the facility or other YSO duties that she may have performed safely as an accommodation in a scent-free environment while a disciplinary investigation, if any was deemed necessary, was undertaken. In effect, the applicant’s accommodation was interfered with because of a safety concern arising from her alleged misconduct but under the guise of sparing her the embarrassment of the discipline process, she was not afforded a fair opportunity to address the conduct issue and to address her ongoing need for accommodation.

28A plain reading of the MOS suggests that a change in work location must be effected through a committee process with notice to the applicant and her union. This was not done and thus the MOS was breached. The MOS did not contemplate discipline and its potential impact on work location for accommodation purpose. While management have a free standing ability to discipline (management rights), it does not follow that discipline necessarily results in a transfer of work location. An employee can be disciplined in while remaining in her post (warning, unpaid suspension etc.) that accords with the accommodation plan.

29In the instant application, the respondent decided to not pursue discipline and effectively waived its “management rights” to discipline for the incident of November 6, 2013. It cannot then rely on this right to arrive at a conclusion that the applicant’s posting was not operationally feasible to justify a transfer and disrupt the accommodation plan.

Damages

30The applicant requested punitive damages in her application but did not state a specific sum. I note that she missed three (3) days of work after the November 6th incident and she received sick pay for those absences. She also gave evidence of her emotional distress arising from the manner in which she was treated during the last weeks of employment, culminating in her early departure from work on the day of her retirement.

31The respondent argued that damages should not be awarded and a breach of the settlement, if any, should be treated as de minimis.

32The Tribunal has no explicit authority to make an award for punitive damages; rather, the Code provides that upon breach of the Minutes of Settlement, “the Tribunal may make any order that it considers appropriate to remedy the contravention” per s.45.9(8). I am not persuaded that the breach should be treated as de minimis. The respondent made a decision to ignore the plain meaning of the minutes of settlement and sought to spare itself the trouble of justifying its decision by framing it as an attempt to spare the applicant of a disciplinary process pre-retirement. Instead, the applicant experienced the embarrassment and emotional distress of her accommodation being unilaterally revoked just prior to her retirement. Breach of the Minutes of Settlement and contravention of s.45.9(3) of the Code necessitates a remedy in this instance.

33It is important that accommodation plans made pursuant to Minutes of Settlement not be trifled with under the guise of operational needs without engaging the terms of the Minutes of Settlement that govern amendments by both parties. Damages awarded even for a technical breach should not be so insignificant as to amount to a licence fee. (See, for example, ADGA Group Consultants Inc. v. Lane et. al. (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 at para. 152 (Div. Ct.))

34Bearing in mind the short duration of the breach, the applicant’s reliance on paid sick leave and the applicant’s reported emotional distress, the Tribunal awards the applicant $3,000.00 in compensation as a remedy for the contravention of the Minutes of Settlement.

ORDER

35The Tribunal makes the following Orders:

a. The respondent will pay to the applicant $3,000.00 in monetary compensation (inclusive of interest per s.128 of the Courts of Justice Act, R.S.O. 1990, c. C.43) for breach of the Minutes of Settlement. This payment will be delivered to the applicant within 30 days of the date of this Decision.

b. The respondent will pay to the applicant post judgement interest per s.129 of the Courts of Justice Act from the date that is 30 days after the date of this Decision.