Duane Myers v. York District School Board and Steve Bewcyk, 2016 HRTO 559

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duane Myers

Applicant

-and-

York District School Board and Steve Bewcyk

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 28, 2016

Citation: 2016 HRTO 559

Indexed as: Myers v. York District School Board

APPEARANCES

Duane Myers, Applicant

Self-represented

York District School Board and Steve Bewyck, 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”). The applicant is a secondary school teacher employed by the York Region District School Board. The personal respondent was the principal of the school where the applicant.

2The hearing of this Application started on May 26, 2016. On that date, the parties participated in mediation/adjudication. I heard evidence from the applicant and submissions from the parties on a number of issues.

3In the Application, the applicant alleges that the respondents failed to accommodate his disability in accordance with restrictions identified by his family doctor and treating psychiatrist. Those restrictions related to courses that the applicant was able to teach.

4The respondents assert that the restrictions identified by the applicant’s doctors appeared to be based on the applicant's preference for which courses he wanted to teach, and that actual medically-based restrictions were not adequately identified. Despite this, the respondents assert that they tried to schedule course assignments so that the applicant was not assigned to the courses that he did not feel capable of teaching. For 2011 and 2012 this could be accomplished, but in 2013 and 2014 the scheduling challenges were such that the applicant was assigned some courses that he felt exceeded his restrictions. The applicant did not teach those courses.

5A central issue in this case concerns the nature of the applicant's restrictions and the underlying basis for those restrictions. There is no dispute that the applicant has a neck and shoulder condition that results in significant pain symptoms and physical limitations. There are long-standing medical restrictions related to these conditions, including limitations on lifting, limited blackboard use, and provision of an ergonomic chair.

6As well, the applicant has been prescribed a number of medications that limit his ability to concentrate at night. The applicant states that as a result, he cannot do preparation work in the evenings. Because of this, a restriction has been identified on the amount of preparation work that the applicant can do during the school year, and a restriction on teaching for the first period of the school day has been identified to allow the applicant’s medication levels to adjust. In addition, the applicant's doctors have stated that it is important for the applicant to avoid stress. It is this restriction that underlies most of the disputes that gave rise to the Application.

7The restriction that has caused particular difficulty for the respondents is the limitations on the courses that can be assigned to the applicant. This restriction has been stated in somewhat different ways by the applicant's doctors. The applicant’s treating psychiatrist is Dr. Brian Ticoll. In a Functional Abilities Report dated May 30, 2014, he expressed the restriction in the following terms:

Mr. Myers should teach only the courses listed in the DMP or those he feels capable of preparing for.

8The reference to “DMP” is not clear. The nature of the injury/illness was said to be “depression/anxiety”.

9Dr. Ticoll has provided notes that indicate that he agrees with the restriction.

10The respondents argue that the restriction is based on the applicant’s preference for what courses he wishes to teach and is not based on any identified medical restriction.

11The respondents had earlier requested that the applicant disclose relevant medical records to allow the respondents to better understand the basis for the identified restriction for the purpose of responding to the Application. In an earlier Interim Decision, I indicated that I would prefer to determine this request at a later stage, and after I had heard evidence about the circumstances of the case.

12After hearing the applicant’s evidence in chief, this issue was discussed with the parties. The applicant said that he consents to the disclosure of medical records provided they are relevant to the issues in the Application and provided they are used only for the purpose of this Application. The respondents agree that only relevant records need to be disclosed and also agree that any medical records disclosed would be used only for the purpose of this Application. The records may be retained by the respondents’ counsel but will not be retained by the school board.

13On the basis of the evidence I have reviewed and heard so far, I am satisfied that it is appropriate for the applicant to disclose the relevant records of Dr. Ticoll, who is the treating psychiatrist, and Dr. Pangilinan, his family doctor. The records to be disclosed are the clinical notes for the period from January 2011 to present. As noted, the applicant consents to this disclosure.

14If on review of the records the doctors believe that some of the records are not relevant to the issues in this Application, they may redact the non-relevant entries. Alternatively, they may forward the entire record to the Tribunal Registrar. I will then review them and determine what entries are not relevant.

15As noted below, the hearing will reconvene for a telephone conference call hearing on May 30, 2016. The applicant and his doctors are requested to make best efforts to ensure that the records are sent to the Tribunal Registrar before that date.

16The applicant is directed to provide a copy of this Interim Decision to Dr. Ticoll and Dr. Pangilinan.

17The applicant is responsible for any administrative costs associated with this disclosure.

Request that Dr. Ticoll and Dr. Pangilinan be available to provide testimony

18The respondents submit that the applicant’s doctors must be available to testify to clarify the basis for the restrictions that have been identified. This issue will be reviewed again at the telephone conference call hearing.

Reconvening of the hearing

19The parties are available for a telephone conference call hearing on May 30, 2016 at 3:30 in the afternoon. The Tribunal will confirm call in arrangements with the parties. The purpose of this hearing will be to review any progress on settlement options and to review issues arising out of the disclosure of medical records and any other case management issues including the availability of witnesses.

20The parties are also available on July 19 and 20, 2016 as dates for the hearing to continue. Provided the Tribunal is available, those dates will be confirmed by the Registrar. It is anticipated that July 19 will be devoted to cross-examination of the applicant. If the applicant’s witnesses are available, they may be heard from on July 20.