Human Rights Tribunal of Ontario
Between:
Duane Myers Applicant
-and-
York District School Board and Steve Bewcyk Respondents
Interim Decision
Adjudicator: Brian Cook Date: August 19, 2016 Citation: 2016 HRTO 1107 Indexed as: Myers v. York District School Board
Appearances
Duane Myers, Applicant Self-represented
York Region District School Board and Steve Bewcyk, Respondents Patty Murray, Counsel
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant is a high school teacher. The personal respondent is a school principal. The Application alleges that the respondents did not appropriately accommodate some aspects of the applicant's disability. During the period in dispute, the applicant submitted medical notes that the respondents felt indicated that the applicant should teach only those courses that he felt capable of teaching. The respondents assert that this reflected the applicant's personal preference and was not based on the applicant's disability. The respondents assert that if the applicant wishes to rely on those medical notes in the Application at this Tribunal, he must produce his doctors so that they can be questioned about the notes. The applicant has stated that he is not prepared to produce his doctors for questioning. In these circumstances, the respondents submit that there is no reasonable prospect that the Application can succeed because, if the doctors are not available for cross examination, the notes provided by the doctors can be given no weight. The respondents submit that if the doctors notes have no weight, the applicant will be unable to prove that he had a disability that required accommodation or that the accommodations he was provided with were not adequate, and that the Application should be dismissed on that basis.
3I earlier determined that I was not prepared to consider that submission as a preliminary matter and that I wanted to hear the applicant's evidence. I heard the applicant's evidence in chief on April 26, 2016. He was not cross-examined at that time. Counsel for the respondents submitted that it was necessary to clarify and determine the medical evidence issue before the applicant could be cross-examined.
4I issued a Case Assessment Direction following the applicant's evidence, directing the applicant to clarify if he was prepared to produce his doctors for questioning, either in person or by telephone. I indicated that if the applicant was not prepared to produce his doctors, it might be necessary to determine if the Application should be dismissed as having no reasonable prospect of success. The applicant advised that he was not prepared to produce his doctors because he is concerned that doing so would adversely affect his relationship with his doctors as a patient.
5The hearing that had been scheduled for a continuation of the hearing on July 19, 2016 was converted to a hearing to hear submissions from the parties on the question of whether, in the absence of testimony from the applicant's doctors, the Application should be dismissed as having no reasonable prospect of success.
6On July 19, 2016, I heard submissions from the parties. The hearing adjourned so that I could make a ruling on the issue of whether the Application should be dismissed as having no reasonable prospect of success because the applicant was not prepared to produce his doctors for questioning.
7In considering and ruling on this issue, it is necessary for me to set out the history of the events giving rise to the Application in some detail. The Tribunal's approach to the consideration of whether an Application should be dismissed as having no reasonable prospect of success is to accept that the applicant's allegations about what happened to be true. The question then is whether, assuming the applicant's evidence about what happened to be true, has the applicant explained how he will be able to establish a link between those events and the Code.
8For the reasons that follow, I have concluded that the Application should not be dismissed as having no reasonable prospect of success at this time.
9The findings in this Interim Decision and the history set out in regard to those findings are for the purpose of determining whether the Application should be dismissed as having no reasonable prospect of success. They are not intended to be final adjudicative determinations on any of the facts in the case. In the hearing that will now proceed, either party can identify errors in the history that I have set out here and ask that the error be corrected in a final Decision.
Background
10The applicant suffered a motor vehicle accident in 2008 that resulted in injuries to his cervical spine. As a result of these injuries, the applicant required a number of accommodations to allow him to work as a teacher. These included moving to a school closer to his home to reduce driving time and limited use of blackboards.
11As a result of the applicant's physical injuries, he has been prescribed a variety of medications. These create other issues that also require accommodation, including that he not teach the first class of the day and that there be limited preparation time during the school year.
12The applicant has also been diagnosed as having depression and anxiety. His doctors have stated that because of these conditions, the applicant needs to avoid stress. The controversy in this case arises primarily from the issue of what this means and what accommodations it may require.
13In particular, there is a dispute about the type of courses that the applicant can be assigned to teach. The applicant would prefer to teach computer courses but has instead been assigned math courses. The applicant accepts that this is a personal choice issue and that he is qualified to teach math.
14There is no dispute that the respondent's curriculum is designed to respond to the diverse needs of the student population. Essentially, courses are designed differently depending on the academic aspirations of the student in respect of the subject matter. Essentially, the courses are designed differently for those students who wish to pursue the course material in future as compared to students who are taking a course primarily to satisfy compulsory credit requirements. In grades 9 and 10, there are four course types and for grades 11 and 12, there are five course types. The two courses identified in the Disability Management Meeting report were a grade 11 math course for university-bound students, and a grade 10 math course for academic students.
15The will-say statement of the personal respondent explains the different course designs. For grades 9 and 10, the different designs are as follows:
Applied "P" courses focus on the essential concepts of the discipline.
Academic "D" courses focus on the essential concepts of the discipline & explores related concepts.
Locally Developed "L" courses provide additional support to upgrade a student's knowledge and skills in order to meet the compulsory credit requirements.
Open "O" courses provide one set of expectations for the discipline, appropriate for students in a given grade and are designed to prepare students for further study in certain subjects and to enrich their education.
16For grades 11 and 12, the courses are designed differently to recognize that some students will want to pursue the subject at a university level, others at a college level and others are not likely to pursue the subject matter academically after high school. As the will-say statement explains, course offerings help prepare students for their initial postsecondary destination, and are organized into College, University/College, University, Workplace and Open.
17The applicant agrees with the respondent's information about the categorization of course.
18The applicant states that the makeup of classrooms varies depending on whether the course is designed for students who are pursuing the particular course because they intend to pursue the subject academically as opposed to students who are not planning to pursue the subject academically. He says that the former are easier and less stressful. He says that there is less student to student and student to teacher conflict, and less need for day to day alterations in the preparation of the course materials. He can therefore rely on the planning and preparation he does over the summer and does not need to do planning and preparation in the evening when he is unable to do such work because of the need to take medication.
19The applicant concedes that he has limited personal experience teaching the courses that are less academic. However, he says that the witnesses he will call will support his understanding. He says that these distinctions are well known among teachers and administrators. The applicant has provided will say statements that are in accordance with the applicant's explanation of the anticipated evidence of the witnesses.
20The respondents assert that the distinctions the applicant says go to his disability-related needs are entirely a personal choice. The will-say statement of the personal respondent states:
All teachers are expected to be able to teach all courses to which they are assigned. Even if a teacher has no math qualifications, that teacher is expected to be able to teach math. In the Applicant's case, not only was the Board entitled to expect he could teach Grade 10 Applied math, he had math qualifications. The Grade 10 Applied math course was not (as he seems to suggest) a challenging assignment and he was fully qualified and able to teach it. He didn't want to teach Grade 10 Applied Math.
21Following a period of absence from work, the applicant returned to work at the start of the 2011 school year. In advance of this, a Disability Management Meeting was held. It was attended by the applicant, the personal respondent, a union representative, and Janice Crombeen, a disability case manager employed by the School Board.
22The results of the Disability Management Meeting were recorded in a report that was signed by the parties and dated April 1, 2011. It includes the identification of accommodation measure for the applicant's physical restrictions. In regard to other accommodations, the report reads in part as follows:
Medical Documentation Supports:
Return to work on August 25, 2011 with the following permanent work accommodations and recommendations:
Prep or lunch for first period of the day in order to regulate effects of medication
Limit exposure to stressful situations – self monitor levels of stress, keeping supervisor informed
Teach courses that is well prepared for, the same for both semesters, discussed and agreed upon before the school year
23The report indicates that the schedule for September 2011 had not yet been established, but that "consideration will be given to the doctor's recommendations of work accommodation in scheduling and course assignment". These recommendations were identified as follows:
First period will not be a teaching period, possibly will be lunch
APA's will be of a supervisory nature and scheduled in advance
A maximum of 2 preps (MCR3U, MPM2D) for the entire year was requested
24MCR3U is a grade 11 university-entry math class. MPM2D is a grade 10 Academic level course.
25The respondents have been clear that the course assignments in 2011 did not reflect an acknowledgement by the respondents that the applicant needed these course assignments. They characterize the applicant's request that he be assigned these or comparable courses as an expression of the applicant's preference.
26The courses that were identified in the 2011 Disability Management Meeting report were assigned to the applicant for the school year starting in September 2011.
27The applicant's evidence is that this course assignment was acceptable to him for the 2011-2012 school year. He says he also agreed to the course assignments that were made for the 2012-13 and the 2013-14 school years. However, a problem arose in the spring of 2014 about the course assignment for the school year starting in September 2014.
28Essentially, the applicant was assigned courses designed for less academic math students. He asked that the assignment be reconsidered because of his disability-related needs.
29The respondents advised that the applicant was required to provide up to date medical information and medical support for a request for a different course assignment. The applicant was provided with a Functional Abilities Report (FAR) which he took to Dr. Ticoll, his treating psychiatrist. The FAR has a section under the heading "cognitive abilities" It has 14 areas of cognitive function abilities and the doctor indicates whether the patient has no, slight, moderate or severe limitation. Dr. Ticoll indicated the applicant had slight limitation in all areas except for "cope with conflict" which was moderate.
30Under the heading "nature of the injury/illness" Dr. Ticoll indicated "depression/anxiety". Dr. Ticoll indicated that the applicant was capable of working regular full-time hours and that the applicant required permanent workplace accommodations which he indicated were "according to previous DMP", referring to the 2011 Disability Management Meeting report. Under the heading "additional comments", Dr. Ticoll added:
Mr. Myers should teach only the courses listed in the DMP or those he feels capable of preparing for.
31Dr. Pangilnan, the applicant's family doctor, provided a report dated September 26, 2014. It reads in part:
It is my medical opinion that my patient, Mr. Duane Myers is able to return to full time work in September 2014. With his return to work, please facilitate the following permanent accommodations:
Mr. Myers should continue to monitor the effect of his medications and if this interferes with his duties and responsibilities, to let his employer know immediately so modifications can be made. Such accommodations would include allowing Mr. Myers a preparation or lunch period for the first period of the day while evening medications wear off and his morning medications take effect.
Mr. Myers needs to limit his exposure to stressful situations that will exacerbate his condition in monitoring his level of stress. Mr. Myers should notify his employer of changes in his working conditions that will help reduce his stress.
Mr. Myers needs to be allowed to minimize his class preparation through teaching courses/materials that he is well prepared for. These courses should be the same each semester and for the school year, and not exceed two preparations per semester. This accommodation is in conjunction with accommodations 1 and 2, discussed and agreed to well before the school year begins.
In conjunction with 1, 2, and 3 above, if it is not possible to assign the courses that Mr. Myers feels capable of teaching, Mr. Myers can teach a reduced timetable of the courses he is able to teach.
32A Disability Management Meeting was held on September 30, 2014. The respondents maintained that an accommodation that the applicant be assigned only courses that he felt capable of teaching was not appropriate. The respondents advised that the arrangements at the time of the 2011 Disability Management Meeting about course assignment were done to recognize the applicant's preference but not accepted as a medically necessary accommodation.
33The September 30, 2014 Disability Management Meeting report concluded that the applicant would teach the courses that he agreed to teach, and would not teach the course he did not agree to. However, it was stipulated that the time that the applicant would otherwise have spent teaching the course that was in dispute would be considered to be sick time. As a result, the applicant was to work .67 and receive .33 sick time.
34The report also stipulated:
It is important that Duane adhere to only being at the school for the specified times so he does not hinder his recovery, arriving by 10:45 am and leaving by 3:30 pm at the latest, being allowed to leave at 3pm if required. However, it was agreed that if Duane want to arrive at work for the start of period 2 to pre and provide extra student support, that is acceptable.
35The applicant did not sign the Disability Management Meeting report. He indicated that he accepted the arrangements about working .67 under protest. The applicant testified that the stipulations about his work hours was quite problematic. He said that he was not allowed in the school before 10:45 and required to leave no later than 3:30. This meant that he was not able to attend some department and staff meetings. It also made it more difficult to provide support to his students.
36The Disability Management Meeting report was in effect until February 5, 2015. At that time it was to be reviewed.
37On December 1, 2014, in advance of the review, Ms. Crombeen, the Disability Claims Manager, wrote a letter to Dr. Ticoll. This letter reviewed information that Dr. Ticoll had provided in the Functional Abilities Reports he had completed. Ms. Crombeen explained the respondents' position that the 2011 Disability Management Meeting report had not represented a commitment to assign only the courses mentioned in that report. The letter went on to indicate the respondents' view that "the decision on suitable assignments lies with the employer and is not within the expertise of the employee's doctor."
38Dr. Ticoll did not respond directly to this letter but instead provided a note dated February 15, 2015, stating that he agreed with a Functional Abilities Report that Dr. Pangilinan prepared on February 5, 2015. That Report in turn referred back to Dr. Pangilinan's letter of September 26, 2014.
39The personal respondent retired in January 2015 and was not involved in the course selection that was assigned for the semester starting February 2015. The applicant testified that he was satisfied with the course assignment for that semester and has also had no issues with subsequent course assignments, including the assignment he has received for the semester starting in September 2016.
The dispute in this case
40The applicant's position in this case can be summarized as follows:
The applicant had a long-standing disability that included both the physical results of a cervical neck injury, medication-related needs, and depression and anxiety.
The respondents knew that his disability was aggravated by exposure to stress.
It is common knowledge among teachers that the demands on a teacher vary depending on the type of course is assigned. The applicant says that the witnesses he intends to call will speak to this. The respondents knew that the applicant believed that teaching courses designed for less academically inclined students would be stressful for him.
The respondents were able to accommodate him with respect to course selection for three years and then refused to do so for the semester starting September 2014. He has subsequently been accommodated without difficulty.
The respondents could also have accommodated him with respect to course selection for the September 2014 but refused to do so and that this was discriminatory.
41The respondents' position can be summarized as follows:
There is no dispute that the applicant has disabilities that require accommodation. The respondents fully accommodated the restrictions that have been medically supported.
While for a time the respondents were able to assign the applicant courses that he agreed were appropriate, this assignment was an accommodation of the applicant's preferences and was never recognized as an accommodation of a medically supported disability.
The applicant's preferences could not be easily accommodated in September 2014. To do so would either have placed unfair burdens on other teachers, or would have violated the restriction of not teaching during the first period of the day.
In the accommodation process, it is the employer that is responsible for determining how best to accommodate medical restrictions. The role of the doctors is to identify the medical restrictions that exist because of the disability.
In this case, the applicant's doctors expressed the opinion that the applicant should only teach the courses he wanted to teach or felt able to teach. These opinions were not supported by the identification of medical restrictions apart from a general expression about the need to minimize stress.
The applicant's argument that the respondents failed to accommodate his disability by assigning him courses that he felt unable to teach cannot succeed because the applicant's doctors have identified a proposed solution but have not identified the medical restrictions that would justify that proposed solution. In the absence of testimony from the doctors that might provide clarification of the restrictions or the basis for the proposed solutions, the applicant's case should be dismissed as having no reasonable prospect of success.
Analysis
42In most cases involving alleged discrimination because of disability, medical evidence is important. In this case, the respondent's position is that there is no reasonable prospect for success if the applicant does not call medical evidence in support of his allegation that he was not appropriately accommodated by the respondent for the relevant time period in issue.
43In my experience, medical evidence is most commonly necessary to determine any of the following:
Does the applicant have a disability?
Does the applicant have medical restrictions as a result of the disability?
Do those restrictions result in a need for workplace accommodation?
What accommodations are appropriate and necessary?
If discrimination is established, has the applicant suffered harm as a result?
44The potential need to hear evidence from the applicant's health care providers only arises if the applicant is seeking to rely on a medical report as evidence of discrimination or harm as a result of discrimination by the respondent, and if that evidence is disputed by the respondent. If there is no dispute, there may be no need to hear from the health care providers.
45In this case, it is not disputed that the applicant has a disability. The respondent agrees that the disability includes the results of the cervical injury, medication-related issues, and a diagnosis of depression and anxiety.
46There is an issue about what restrictions the applicant has as a result of the depression and anxiety component of the overall disability. The respondent has agreed that the applicant has some restrictions related to cognitive limitations. These are mostly described as "slight" limitations, except for "coping with conflict" which results in a "moderate" limitation. It is also agreed that the applicant needs to "limit stress" and that this requires him to "self-monitor his levels of stress, keeping the Principal informed of any concerns."
47It is agreed by the respondents that these limitations result in a need in regard to preparation time, including assignment at the end of the spring semester to allow the applicant to prepare over the summer, and a limitation on the number of courses that he has to prepare for.
48The dispute in this case concerns whether these restrictions impact on the applicant's ability to teach the less academic courses.
49In particular, the respondents take exception to the suggestion that the applicant should be able to decide what courses he should teach.
50The reasons why the respondents take exception to this suggestion are easy to appreciate. First, the suggestion flies in the face of well-established principles regarding accommodation of disability in the workplace. Those principles include that the accommodation process is collaborative and that ultimately it is the employer who assigns work. The suggestion that the applicant should choose what courses he wants to teach, if followed, allows the applicant to make unilateral accommodation decisions and removes or restricts the employer's right to assign work duties.
51Since the suggestion that the applicant should choose what courses he should teach is obviously contentious, it would not be fair to allow the applicant to rely on the medical opinions that he submitted in support of that suggestion without allowing the respondents to test the medical evidence and opinions giving rise to the suggestion. Since the applicant is not prepared to produce his doctors for that purpose, it follows that the applicant cannot rely on the reports as evidence that he should be allowed to choose what courses he wants to teach as a necessary accommodation. The respondent asserts that without that evidence, the Application has no reasonable prospect of success.
52However, I am not satisfied that this means that the Application has no reasonable prospect of success.
53First, as noted, it is not disputed in this case that the applicant has some limitations that result from his disability, including the depression and anxiety component of the disability, that require some accommodation. The issue really is about the extent of the accommodation and whether it includes a limitation in regard to the applicant's ability to teach the less academic courses.
54Second, while medical evidence is generally very important in determining whether there are limitations that require accommodation and the nature of the accommodations, medical evidence is not the only evidence that can or should be considered. Other evidence about the applicant, including the applicant's own testimony, and evidence about the nature of the workplace can also be important parts of the overall evidence to be considered.
55When it comes to the assessment of what accommodations are necessary as a result of disability-related restrictions or limitations, medical evidence is important but it may not be determinative. This is because, for the most part, a person's health care providers have little knowledge about the workplace and cannot really say how the limitations should be accommodated. The purpose of the medical evidence is to establish what the restrictions and limitations are. The workplace parties then work together to find solutions. In some workplaces, the solutions can follow directly on the medical restrictions and limitations. For example, if the employee works on an assembly line, physical restrictions such as bending, twisting, lifting, standing, etc. can be matched with the job requirements and a determination made about whether and how to change the job functions so they are consistent with the limitations. This process is obviously more complicated when the restrictions and limitations are of a psychological rather than a physical nature.
56In this case, the applicant says that he will call evidence to support his contention that the less academic courses are more difficult to teach and that they expose the teacher to more conflict. He also says that he will call evidence to show that the respondents knew or ought to have known that the limitations that he did have and that were not in dispute would result in a worsening of his disability if he was required to teach the classes in question. It is not clear at this stage that the applicant will be able to establish these things, but that is a matter to be determined after hearing the evidence. At this stage, I am not prepared to conclude that there is no reasonable prospect that the applicant will be able to produce the evidentiary basis for his allegations that he believes he will be able to.
57The accommodation process is understood to have a substantive and a procedural component. In the present case, the applicant's allegations include allegations of a failure by the respondents to properly engage in regard to the procedural parts of the accommodation process. Again, this is an allegation that the applicant will have to substantiate. However, his decision to not call his doctors to testify is not fatal to his ability to make the argument.
58Counsel for the respondent drew my attention to the Tribunal's decision in Baber v York Region District School Board, 2011 HRTO 213. In that case, an Application was dismissed when the applicant refused to produce her doctors to testify. In that case, the applicant's doctors had said in notes that the applicant should be assigned to teaching duties as a librarian. The respondent took the position that the applicant had not provided any medical evidence to explain what limitations or restrictions existed that would require that teaching assignment. Counsel argued that Baber is on all fours with the instant case and means that the instant Application should be dismissed.
59In Baber, the issue of the medical evidence was first considered in an earlier Interim Decision, Baber v. York District School Board, 2010 HRTO 538. At paragraphs 19 – 22, the Vice-chair stated:
A central issue in this case is whether the respondent breached its duty under the Code to accommodate the applicant on the basis of disability by not assigning her to duties as a teacher-librarian and ESL teacher. In support of the claim that she required accommodation in such a position, the applicant relies on the medical reports noted above.
The contents of the doctors' reports are very much in dispute and relate to a central issue in the Application. Natural justice requires that the respondent be given the opportunity to test the reliability and veracity of the applicant's evidence by cross-examination. To permit the applicant to rely on the medical reports in question without making her doctors available for cross-examination would be unfair to the respondent because it would restrict and prejudice the respondent's ability to test the case against it.
Accordingly, I ruled during the conference call that I would give no weight to those portions of the medical reports regarding accommodation of the applicant unless the doctors who wrote the reports were made available for cross-examination.
On the other hand, I was not prepared to exclude the medical reports from evidence altogether. When an applicant comes before the Tribunal alleging that the respondent breached its duty to accommodate her under the Code, she must establish that she asked the respondent for accommodation or otherwise triggered the procedural and substantive aspects of the duty to accommodate. If nothing else, the medical reports, which were submitted to the respondent at various points by or on behalf of the applicant, are relevant evidence on this issue. Accordingly, they are properly admitted into evidence for that purpose, even though I will give no weight to those portions of the reports regarding what, if any, accommodation was required by the applicant, unless she makes the doctors who wrote the reports available for cross-examination.
60The applicant in Baber did not agree to make her doctors available for cross-examination and the hearing proceeded. In the Decision, the Vice-chair noted that since the applicant had not produced her doctors for cross-examination, the portions of the notes regarding what accommodation was required by the applicant were given no weight. The Vice-chair then analysed the other evidence to determine if the applicant had shown that the respondent had discriminated against her and found that the applicant had not done so, and the Application was dismissed.
61In that case, the evidence showed that the applicant had refused to provide medical information when she was asked to do so. As a result, the respondent had no medical information either about the applicant's limitations and restrictions and so there was no evidence about why the applicant might require accommodation.
62The Vice-chair found that the applicant had failed to cooperate in the accommodation process when she refused to provide medical documentation to her employer confirming her needs.
63In the case before me, the applicant did not refuse to provide medical information. When he was asked to have his doctor fill in the employer's Functional Ability Report form, he did so and the doctor filled in the report. There was accordingly medical evidence that did provide a medical basis for the fact that the applicant had employment-related needs that needed some accommodation.
64Even if it true, as the respondents assert, that there was no medical basis for the suggestion that the applicant could teach only those courses he wanted to teach, it does not necessarily follow that the applicant did not require accommodation in regard to course assignment and that there was no medical evidence to support that requirement.
Conclusions
65I conclude that it is not appropriate to dismiss this Application as having no reasonable prospect of success at this time.
66On the question of whether the respondents discriminated against the applicant by failing to accommodate his disability-related needs, the medical evidence is an important part of the overall evidence but not the only evidence. The allegations include allegations of the substantive and the procedural duty to accommodate. The applicant asserts that there is other non-medical evidence that he will produce that will substantiate his allegations.
67In support of the applicant's allegations that the respondents failed to accommodate his disability, the applicant will not be able to rely on the statements by his doctors to the effect that he could only be assigned courses that he felt capable of preparing for. This is because this is a contentious point and the doctors are not available to be questioned about the statements.
68Whether or not the applicant can successfully show that he experienced the discrimination he alleges without being able to rely on those statements is a question that can be answered only after the evidence has been heard.
69The Registrar will schedule continuation dates for this hearing. Three days are required at this time. On the first day, the applicant will be cross-examined. The applicant should have his witnesses available for the second day. The respondents' witnesses should be available for the latter part of the second day and the third day.
Dated at Toronto, this 19th day of August, 2016.
"Signed By"
Brian Cook Vice-chair