Groh v. Waterloo (Regional Municipality), 2017 HRTO 1460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Groh

Applicant

-and-

The Regional Municipality of Waterloo and

Canadian Union of Public Employees, Local 1656

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: November 6, 2017

Citation: 2017 HRTO 1460

Indexed as: Groh v. Waterloo (Regional Municipality)

APPEARANCES

Kelly Groh, Applicant

Brian Kelly, Counsel

The Regional Municipality of Waterloo, Respondent

Carl Peterson, Counsel

Canadian Union of Public Employees, Local 1656, Respondent

Paul O’Ryan, Counsel

Introduction

1The applicant in this 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”).

2Because of several untimely allegations, the Tribunal issued Interim Decision (“ID”) 2014 HRTO 1774, in which several allegations were dismissed. After the Tribunal issued the ID, the remaining allegations were the subject of a multi-day, multi-appearance hearing.

background

3The applicant is a unionized worker who works for The Regional Municipality of Waterloo (“Waterloo”) and whose union is the respondent, Canadian Union of Public Employees, Local 1656 (“Union”).

4The allegations that were the subject of this hearing are those that are alleged to have occurred between October 16, 2011 and October 16, 2012, and also include the manner in which the respondent Waterloo is alleged to have requested medical information from the applicant in August and September 2011 and May 2012.

5The Application was wide-ranging and the delineation of the issues during the hearing was fluid. As a result there were many disputes during the hearing about the scope of the allegations. Ultimately applicant’s counsel summed up the applicant’s allegations of discrimination in his closing argument as the following:

a. the manner in which Waterloo requested that the applicant provide medical documentation between August 2011 and September 2012;

b. the manner in which Waterloo and the union treated the applicant in the return-to-work meeting, specifically in how they dealt with an outstanding grievance, a memorandum of understanding and a letter of expectation; and

c. the treatment of the applicant during the events that occurred when the applicant returned to work in September 2012, including delivering a letter of expectation to him and the events that followed his receiving it, which the applicant alleges led to him being hospitalized.

6The applicant has had mental health difficulties and taken time off work at various times. He was diagnosed with Asperger’s syndrome in April 2011. A brief chronology of the applicant’s employment and leaves of absence (“leave”) in the relevant time, and immediately prior, is as follows:

a. June 30, 2011 to September, 2012 – applicant on leave, but applicant advises Waterloo of his condition and required accommodation on June 30, 2011; and

b. September 17 to 24, 2012 – applicant returns to work; and

c. September 25, 2012 – applicant goes off work.

7The applicant alleges the frequency and number of requests Waterloo made for medical documentation from him when he was off work was discriminatory.

8He also alleges Waterloo and the union discriminated against him in September 2012 when he attended a return-to-work meeting accompanied by two union representatives, Harry Slupeiks and Andrew Hunter. Waterloo’s Return to Work Coordinator, Anne Steadman and a former Waterloo labour relations adviser, Zilda Amaral, were also in attendance.

9I turn first to the applicant’s allegation that the manner in which Waterloo requested medical documentation was discriminatory.

Request by Waterloo for Medical Documentation

Evidence

10The applicant was off work on a series of medically supported leaves between June 30, 2011 and September 2012. Between August 4 and September 6, 2011, the applicant, at Waterloo’s request, provided it with four separate medical notes, each supporting the applicant’s need to be off work for a short period of time. The applicant admitted he never asked a doctor for a longer period of time off, and testified he, his doctor, or the hospital decided how long he would be off each time. However, on cross-examination, he denied he ever had any input into how long he would be off work, and maintained his position even when shown an August 9, 2011 doctor’s note that stated the doctor supported the applicant’s request to take a week off.

11The applicant’s first two medical notes supported his absence until August 19, 2011. Ms. Steadman e-mailed him on August 15, 2011, and advised that by August 19, 2011, Waterloo needed a Request for Medical Information form completed by his treating specialist if he was not going to return to work as scheduled. Ms. Steadman testified it was standard protocol to request further medical information when an employee was not going to return to work on the expected date.

12In response to Ms. Steadman’s August 15, 2011 request, the applicant provided a hospital note that stated:

Pt [patient] seen in ER on Aug. 17^th/11. To be off work until sees Dr. Bhatty (~Sept 8^th) who will provide further instructions/directions re: return to work.

13On September 6, 2011, Ms. Steadman wrote to the applicant again and, among other things, reiterated that the applicant had not provided the requested medical form. She advised that Waterloo approved an indefinite leave for the applicant in light of the series of medical notes and leaves until then. She told the applicant to advise when he was able to return to work, at which time he should provide a completed medical form.

14Ms. Steadman next wrote to the applicant on November 14, 2011, and asked him to return a completed medical form by no later than November 17, 2011. She told him if he had given the insurance company a medical report recently, that information was sufficient. The applicant testified he took that to mean that if he had given a medical report to the insurance company recently, he did not have to provide it to Ms. Steadman because Waterloo and the insurance company shared information. He testified on re-examination for the first time that he thought he signed a release to permit them to share information. Ms. Steadman denied they shared information, and testified it was up to the applicant to give Waterloo medical information.

15The applicant was in hospital when he received Ms. Steadman’s November 14, 2011 letter and could not understand why she requested medical information because he thought he was authorized to be off work until he advised Waterloo he was ready to return. He testified it worried him and set him back to receive requests for medical information on such short timelines. In response to Ms. Steadman’s letter, he had Dr. Farooqi complete a medical form on November 14, 2011 that answered two pre-populated questions – one was what the nature of the applicant’s condition was and the second was whether he agreed with the insurance company’s return to work plan.

16Dr. Farooqi authored a separate note “to whom it may concern” on November 21, 2011 that stated:

Continuous contact by the employer and insurance carrier to [the applicant] is negatively impacting on his [the applicant’s] recovery. I request that any correspondence in regards to return to work be through his family physician Dr. Bhatty, myself Dr. Farooqi and or through his legal representation.

17The applicant could not confirm this letter was sent to Waterloo but testified he typically sent the respondents documents he received. He testified he thought Waterloo had it because of his belief that Waterloo and the insurance company shared information. He did not testify with respect to who sent it to the insurance company. Ms. Steadman testified she did not receive it. She recalled getting a letter from the applicant’s lawyer sometime in 2012 that advised that the applicant found the deadlines for providing medical information too tight, but prior to that the applicant never contacted her to advise of any difficulty.

18The applicant could not think of any requests made by Waterloo for medical information between November 2011 and April 2012, but testified it was troubling to get a letter from Ms. Steadman, dated April 10, 2012, asking him to provide medical information by April 30, 2012. Waterloo also confirmed in this letter that it still had work for the applicant.

19The applicant testified each time he received a request from Waterloo for medical information he thought Waterloo was trying to fire him because at a prior return-to-work meeting, Ms. Steadman told him he could be fired if he did not provide medical information. He would not admit Waterloo never threatened to fire him. When it was put to him on cross-examination that Waterloo’s April 27 and May 18, 2012 letters both state Waterloo still has work for him, he continued to maintain Waterloo was trying to fire him, which he believed because in its letters Waterloo bolded the date by which he had to provide medical information.

20In response to Ms. Steadman’s April 10, 2012 letter, the applicant sent Waterloo a medical form completed by Dr. Farooqi on April 25, 2012. Dr. Farooqi advised the applicant was not ready to return to work, but also wrote that he was under Dr. Thomson’s care, not his. Ms. Steadman wrote to the applicant again on April 27, 2012 and asked him to have Dr. Thomson complete a medical form by May 14, 2012. The applicant denied he was under Dr. Thomson’s care at that time. He testified it was awful receiving Ms. Steadman’s April 27, 2012 request because it had taken a lot for him to get Dr. Farooqi’s April 25, 2012 note. He testified the requests for information did not make sense to him, and he was sitting at home feeling suicidal and like a burden, wondering what would happen next. He thought Waterloo did not want him anymore.

21He testified that his lawyer sent a letter to Ms. Steadman dated May 9, 2012, in which he enclosed a May 7, 2012 mental health assessment report and advised that the short timelines to provide medical information were unreasonable. Ms. Steadman wrote to the applicant again on May 18, 2012, and reiterated she had not received the information requested in her April 27, 2012 letter. She requested the applicant get, by no later than June 11, 2012, medical information from one of three medical practitioners it appeared he was seeing.

22The applicant testified he took the requests for medical information to the hospital. He testified the requests were affecting him negatively. He got a June 13, 2012 letter from a hospital nurse that stated that Waterloo’s questions had been addressed by Dr. Farooqi’s April 25, 2012 medical form, and that the relentless requests for medical documentation escalated the applicant’s anxiety and stress, were counterproductive to his recovery and led to him seeking its services on May 3, 2012. On June 13, 2012, the applicant’s lawyer sent to Waterloo the nurse’s note and a list of days the applicant attended counselling. On August 20, 2012, Val Daigen, a psychologist, sent requested medical information to Waterloo.

legal principles

23Section 5(1) of the Code states in part:

Every person has a right to equal treatment with respect to employment without discrimination because of […] disability.

24Section 11 of the Code states:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

25The Code prohibits discrimination in employment on the basis of disability. The Code provides that discrimination may occur whether someone is treated in a differential manner that causes a disadvantage based on a prohibited ground of discrimination (direct discrimination under section 1) or where a requirement, qualification or factor which is not discriminatory on its face results in the “exclusion, restriction or preference” of a group of persons who are identified by a prohibited ground of discrimination (“adverse effect discrimination” under section 11). In this case, the issue is one of constructive or adverse effect discrimination in light of the neutral rule to provide medical information in a specified period of time.

26In the Supreme Court of Canada's seminal decision dealing with adverse effect discrimination, Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] S.C.J. No. 74 ("O'Malley"), the Court described adverse effect discrimination as follows:

It arises where an employer…adopts a rule or standard…which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. (Emphasis added)

27The applicant appears to allege that the requirement that he comply with requests for medical information in a specific period of time was discriminatory and that the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), decided under section 11 of the Code, applies. Simply put, Meiorin stands for the proposition that sometimes treating a person the same as all other people is discriminatory and is referred to as adverse effect discrimination. The applicant appears to allege that the imposition of a deadline on him to provide medical information within a specific timeline constructively discriminated against him because the neutral rule of imposing those requirements adversely affected the applicant in light of his disability.

28In accordance with the decision in Meiorin, the applicant in this case first has to prove he has a prima facie case of discrimination before I can assess whether or not the requirement Waterloo imposed was reasonable and legitimate (bona fide). The onus is on the applicant to establish the prima facie case of discrimination and he must do so on a balance of probabilities. In other words, the applicant has to establish that it is more likely than not that he was discriminated against. The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent.” Once the applicant has established a prima facie case of discrimination, the onus shifts to the respondent to provide a non-discriminatory explanation for the treatment the applicant received. See: Pieters v. Peel Law Association, 2013 ONCA 396 (“Pieters”).

decision and analysis re requests for medical information

29For the reasons that follow, I find the applicant has not established a prima facie case of discrimination by Waterloo in the manner in which it requested medical documentation from him between August 2011 and September 2012. My reasons follow.

30This case requires me to some extent to assess the credibility of the parties. The approach that the Tribunal generally follows in such matters is the one stated in the following terms in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at pages 356-357, the British Columbia Court of Appeal stated:

…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 demeanor 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.

31Waterloo made several requests for medical information in August and September 2011. The applicant testified he understood that if he was going to be off work longer than anticipated, he had to get medical authorization. While the applicant saw Ms. Steadman’s requests as relentless, the number and timing of her requests were driven by the fact that the notes the applicant provided only authorized him to be off for short periods of time, generally a week at a time. When the expected return-to-work date was approaching, Ms. Steadman simply followed up with the applicant if she had not received a new medical note.

32After advising the applicant on September 6, 2011, that Waterloo authorized an indefinite medical leave of absence, Ms. Steadman did not write to him again until more than two months later on November 14, 2011, at which point she asked for information by November 17, 2011. The applicant takes the position she should not have done this because she told him in that letter to let Waterloo know when he could return to work, and because she asked for a specialist’s report within three days.

33I acknowledge the timeline in which to provide the information was short, but that does not mean it is discriminatory. The uncontroverted evidence is that Waterloo at that point had no medical documentation, let alone any information, that supported the applicant’s position that it had an adverse effect on him to get medical information on a short timeline. Dr. Farooqi first authored a note that provided information about the effect of “constant contact by the employer and the insurance company” in his November 21, 2011 letter that was addressed to whom it may concern. The applicant did not testify with respect to how this was sent to either the insurance company or to Waterloo.

34While the applicant testified he is certain Waterloo received Dr. Farooqi’s letter, he provided no evidence to support his position, and simply surmised it did because he thought Waterloo and the insurance company shared information. He could not recall if in fact he signed a release to permit Waterloo and the insurance company to share information. Ms. Steadman testified she did not get Dr. Farooqi’s letter, and testified Waterloo and the insurance company did not share information.

35I agree with Mr. Kelly’s submission that it is suspicious that although Ms. Steadman alleges she did not receive Dr. Farooqi’s November 21, 2011 correspondence, she did not request any further medical information from then until May 2012, when the requests to that point had been more frequent. However, in the end nothing turns on whether Ms. Steadman did or did not get the letter because the applicant could not recall Waterloo making any requests for medical information between November 2011 and May 2012. By then, Waterloo had notice either from Dr. Farooqi’s report or the letter from the applicant’s lawyer dated May 9, 2012 that the timelines caused the applicant difficulty, Ms. Steadman made no requests for six months, and when she did make her request in May 2012, she gave the applicant three and a half weeks to get medical information. I find neither of these requirements to be discriminatory.

36The nurse’s note of June 13, 2012 also referred to the applicant having difficulty with the requests for medical information. From then until the applicant returned to work in September 2012, Waterloo made only one further request for medical information, at which time Dr. Daigen provided her August 20, 2012 report.

37I do not find the frequency of requests for medical reports, or the timelines given to the applicant to provide them, to be discriminatory in the circumstances. My finding also is supported by the fact that at any time, the applicant could have stopped the requests for medical information by having a doctor clearly set out a future date by which he or she anticipated that the applicant could return to work.

38Second, I must address whether Waterloo discriminated against the applicant when it requested medical information on November 14, 2011, when it had told the applicant he was authorized to be off on indefinite medical leave and that he should tell Waterloo when he was ready to return to work. For the reasons that follow, I do not find this discriminatory.

39At that point Waterloo had no medical or other information that stated that its requests for medical information adversely affected the applicant in any way. Its November 14, 2011 inquiry followed a period of more than two months during which Waterloo did not ask the applicant for any information and he did not provide any.

40For those reasons, I find no discrimination by Waterloo in the way it asked the applicant for medical information.

41I next turn to the issue of what occurred at the applicant’s return to work meeting in September 2012.

return to work meeting

42The applicant attended a return to work meeting on September 11, 2012, with Ms. Steadman; the applicant’s supervisor, Brian Stahle; Mr. Stahle’s then manager, Cathy Long; Waterloo’s labour relations adviser, Zilda Amaral; the president of his union, Harry Slupeiks; and the national servicing representative for the union at the time, Andrew Hunter.

43The parties differed with respect to what occurred first at this meeting. Ultimately however, two main issues were considered. One was the return to work plan, which was the reason for the meeting. The other was the fact that the applicant continued to be concerned about discipline he had been given prior to his leave, in relation to which the union had commenced a grievance on his behalf. Mr. Hunter and Mr. Slupeiks testified the applicant could not seem to deal with the return to work plan until the discipline issue was out of the way because it was occupying his mind. As a result, both the discipline issue and the return to work plan were addressed even though it was not a grievance meeting.

44When the parties reviewed the return to work plan, the applicant objected to the fact that on call work was not removed, contrary to Dr. Daigen’s recommendations. Despite testifying he was confused and asked why and discussed it with Ms. Steadman, the applicant would not admit the issue was important to him.

45He testified he did not understand why everyone except him, Ms. Long and Mr. Stahle left the room after he discussed this with Ms. Steadman. Ultimately Waterloo and the union signed a memorandum of understanding (“MOU”) that the applicant did not have to work on call. Mr. Hunter testified it was his idea to include this not only in the return to work plan but also as a separate MOU because he felt the more the applicant saw that he did not have to work on call the better he would accept it. The applicant denied that he discussed the on call issue with Mr. Hunter and that Mr. Hunter told him he wanted this in both the MOU and the return to work plan.

46The amended return to work plan included the following:

As per memorandum of understanding dated Sept. 11/12, will not be required to be on stand-by in accordance with the recommendation of his specialist in the letter dated August 20, 2012 [sic].

The MOU stated:

The parties agree that Mr. Groh [the applicant] will not be required to be on stand-by in accordance with the recommendation of his specialist in the letter dated August 20, 2012.

47The applicant asserted that when he left the meeting he did not know that he did not have to do on call work. However, he admitted on cross-examination that the union told him he did not have to do it, but he was focused on why another document was created, namely the MOU.

48He testified he felt nervous and anxious about the fact that people left the room and drafted the MOU. He wanted a copy of it but Mr. Slupeiks told him he was not entitled to one. When asked if the union reviewed the MOU with him, he said they “held it in front of him a bit” and went through it quickly, he glanced at it, and they moved on.

49The applicant testified he wanted time to compare the original return to work plan with the amended version. However, he admitted he assumed the two were the same but the amended one included a paragraph about no on call though he denied reading the added paragraph and said only that he glanced at it. However, he also testified they went through the return to work plan line by line after they signed the MOU. Mr. Hunter told him he did not have to sign the return to work plan, and he refused to do so.

50The applicant denied that he had a conversation with Mr. Hunter about the stand-by issue and that Mr. Hunter explained that he wanted it in the return to work plan and the MOU. The applicant testified he kept asking why they created another document. He testified he was very confused in the meeting. He admitted he feels Waterloo is out to get him.

51The applicant admitted that when he got his copies of the two return to work plans, he read them but he denied he understood that Waterloo had agreed he did not have to work on call and denied he was able to confirm that he did not have to do so. He explained the reason he denied this was because he believed there was a good chance that after the return to work meeting, Waterloo fabricated the copy they gave him a few days later. He further explained that he had two different versions of the return to work plan. When asked about whether he knew the important one for him was the one that said he did not have to do on call work, he testified he never thought about it. He later testified he never raised any complaints about the return to work plan.

52The applicant testified that after the MOU was signed and they read through the documents line by line, he, Mr. Hunter and Mr. Slupeiks were left in the room alone. At that point he raised his concern about a verbal warning Waterloo gave him in February 2011 that was the subject of a March 2011 grievance. He denied he raised this issue before the on call issue because he was fixated on it and was not able to deal with anything else until it was resolved. He testified he raised the issue because his prior union representative had told him that because of his disability the written warning would disappear.

53The applicant testified that Mr. Slupeiks contacted Ms. Amaral when he raised the issue. He knew that she told Mr. Slupeiks Waterloo would draft something. The applicant did not recall Mr. Hunter and Mr. Slupeiks leaving the room and then coming back to explain to him that Waterloo wanted to replace the warning with a letter of expectation. He also did not recall them explaining what a letter of expectation was or telling him it was non-disciplinary.

54He testified Ms. Amaral returned to the room with a paper, which he thought was a verbal warning, but was a Memorandum of Settlement (“MOS”) that settled the grievance, though he did not understand that at the time. He denied that anyone read it to him. The MOS stated:

1. The Region agrees to remove the discipline, dated February 28, 2011 from Mr. Groh’s personnel file.

2. Mr. Groh will be given a letter of expectation, which is not disciplinary and will not be placed in his personnel file.

3. The Union agrees to withdraw the above-noted grievance.

55The applicant testified he was not asked to sign it, but on cross-examination testified he did not sign it because he did not understand what was drafted or why, or why people kept going in and out of the room. He said he was not allowed to have a copy and did not recall Mr. Slupeiks explaining that the union owned the applicant’s grievance. He denied being part of the discussion that resulted in the agreement to replace the verbal warning with the letter of expectation.

56The applicant denied that the union advocated for him even though Waterloo removed the verbal warning, because his prior union representative told him the warning would disappear entirely, not be replaced with a letter of expectation. He denied knowing that a verbal warning was the lowest form of discipline. He also denied they discussed the removal of the verbal warning or the letter of expectation. He testified Ms. Amaral came into the room with a document that Mr. Slupeiks signed.

57He testified that if Mr. Hunter wanted him to understand he would have let him take home a copy of the document. He denied that when he asked for copies the union representatives told him there was very little for him to think about because he got all he asked for. On cross-examination, he testified the union and Waterloo settled his grievance without explaining one word to him. However, he admitted knowing they were doing something with the verbal warning, though he was not certain it was off his file.

58The applicant admitted that despite the fact that he had done a treatment program at the hospital and that Dr. Daigen prepared him for the meeting, nonetheless he became very anxious at the meeting and felt no one cared or was listening to him. The applicant said they did not seem to want his input, nor did it matter what he wanted. He could not understand why people left the room. He felt paranoid, partly because he felt Waterloo had wronged him in the past.

59The parties differed with respect to how long the meeting took. The applicant testified it was between 10 and 15 minutes long, although on cross-examination said 20 to 25 minutes. Mr. Slupeiks testified it lasted about 1½ hours.

60The applicant denied Mr. Slupeiks and Mr. Hunter debriefed him after the meeting. He also could not recall talking to Mr. Hunter that afternoon despite e-mails confirming he did. He denied Mr. Hunter was trying to help him in the meeting, and maintained his position even when asked why he thanked Mr. Hunter for some information he sent him that afternoon that he said helped him understand some things. He testified he said it to be polite. Mr. Hunter for his part testified with respect to an e-mail he sent Mr. Slupeiks and Ms. Amaral that afternoon after his call with the applicant that reflected that the applicant’s only concern with the return to work plan was that it could not be changed if necessary.

61The applicant sent Mr. Hunter another e-mail the day he returned to work on September 17, 2012, thanking him for his support at the return to work meeting. Despite this, he continued to maintain that he had his doubts that Mr. Hunter supported him in the meeting, but thanked him because his lawyer told him to return to work with a positive attitude. He was being nice to Mr. Hunter because he was feeling positive.

62The applicant got his copies of the documents, including the MOS and MOU, ten days after the return to work meeting, on September 21, 2012. He would not confirm that he got the documents he wanted, though he eventually conceded he asked for two documents and got them. He testified he may have glanced at them when he got them but did not sit down and go through them. He recalled reading them at some point but did not recall when or where.

63Mr. Hunter and Mr. Slupeiks also testified with respect to the return to work meeting, which Mr. Slupeiks testified was held in accordance with the terms of the collective agreement.

64In preparation, Mr. Hunter reviewed the prior union representative’s file, which included a Wikipedia search about Asperger’s. He also reviewed the assessments from Dr. Thompson and Dr. Daigen. He knew from his review and from the fact that he had worked for 16 or 17 years with an employee who had Asperger’s that he should talk to the applicant respectfully without using metaphors and without belittling or teasing him, and also that on call work should be avoided.

65Mr. Slupeiks testified he first learned of the applicant’s Asperger’s in June 2011. The applicant gave his former union representative and Waterloo a copy of Dr. Thompson’s report at a June 30, 2011 meeting. Mr. Slupeiks did not read Dr. Thompson’s report because the applicant only permitted Mr. Oliveira and Ms. Steadman to read it, but he knew by the time of the return to work meeting that the applicant required oral directions to be backed up by written directions.

66Mr. Hunter and Mr. Slupeiks testified they met with the applicant before the return to work meeting and briefly discussed some issues. Mr. Hunter testified the meeting objective was to get the applicant back to work as soon as possible in a way that addressed his restrictions. Discipline and stand-by were not the main issues. Mr. Slupeiks testified the applicant raised a concern about the discipline and how it would affect him on his return to work. Mr. Hunter testified he told the applicant at that point that it was a return to work meeting that was separate from the grievance, but he would see how things went and whether Waterloo would agree to address it. In the applicant’s view, the discipline had arisen because he would not use his personal car for what he perceived was work purposes.

67Mr. Hunter and Mr. Slupeiks made contemporaneous notes of the meeting and were taken through them in their testimony. Mr. Hunter testified that even though his notes do not reflect it, the discipline issue was the first item, which he testified was not in his notes because he was busy talking to Waterloo about the issue. He testified his notes resume after resolution of the discipline issue.

68He testified page 2 of his notes lists the outcomes of the meeting, including the withdrawal of the grievance; the removal of the verbal warning; the drafting and signing of a letter of understanding [the MOU] that the applicant permanently would not have on-call [stand-by] work; the applicant refusing to sign the return to work plan because he wanted to consider it; and Mr. Slupeiks and Mr. Hunter recommending the applicant accept it after a long discussion. His notes further state Waterloo made the applicant’s changes and the applicant would return to work on September 17.

69Mr. Hunter testified the applicant’s demeanour changed very quickly once Waterloo joined the meeting. He testified the applicant raised the discipline issue and said it had to be dealt with so he could prepare himself to move on because it was bothering him. At Mr. Hunter’s request, Waterloo’s representatives left so he and Mr. Slupeiks could discuss the issue with the applicant. Mr. Hunter realized it was a big issue for the applicant, so he and Mr. Slupeiks wanted to leave and try and resolve it with Waterloo, and the applicant did not object.

70As they left, Mr. Slupeiks advised Mr. Hunter he had already e-mailed Ms. Amaral and she had answered within 5 minutes, telling him she needed a few minutes. Three minutes later, Ms. Amaral agreed in an e-mail that Waterloo would change the verbal warning to a non-disciplinary letter of coaching or expectation that would not be in the applicant’s file, which she repeated verbally later. Mr. Slupeiks testified that a letter of expectation is referred to in the collective agreement as a letter of counsel, and is non-disciplinary. He admitted neither he nor anyone else explained to the applicant that the two different terms were the same despite knowing the applicant needed clear, unambiguous communication.

71Mr. Hunter denied he should have helped draft the letter of expectation, or asked to see a draft before settling the grievance, because in his experience it normally is a template. He admitted they did not know the content of the letter of expectation at the time, but explained to the applicant what it was, and compared it to getting a reminder of something like the dress code. He agreed that ultimately the letter Waterloo gave the applicant was backdated and used the term insubordination which was unexpected, but testified the union immediately took steps to address that.

72Mr. Slupeiks testified he has seen letters of expectation many times and they simply make a person aware they will be disciplined the next time. He further testified a letter of expectation cannot even be grieved because it is non-disciplinary.

73Mr. Hunter and Mr. Slupeiks told the applicant about Waterloo’s proposal to replace the discipline with a letter of expectation when they returned from speaking with Ms. Amaral and Ms. Steadman. They testified the applicant asked about three times if the letter was non-disciplinary and they assured him it was. Mr. Hunter testified he explained that if the applicant applied to other jobs with Waterloo, no one would see the letter. He knew the applicant was pleased because he thanked him.

74Ms. Amaral then brought the MOS into the room and read them out loud. Mr. Hunter testified he had a copy in front of him that he was sharing with the applicant as they went through it. Mr. Hunter and Mr. Slupeiks then signed the MOS. The applicant refused to sign because he needed more time. Mr. Hunter testified the applicant’s signature was unnecessary because the union has carriage and control of the grievance. Mr. Hunter agreed the applicant said between three and five times that he needed more time. He also agreed that despite the issues not being complicated, the applicant is. However, he stood by his evidence that the documents were read to the applicant and he got everything he wanted. Mr. Hunter testified that if they had let the applicant take the document away from the meeting to review it, the grievance would not have been settled. They wanted to get the applicant back to work as soon as possible.

75Mr. Hunter testified he told the applicant he was pleased with the MOS because they achieved what the applicant wanted, and because Waterloo acted fairly by not arguing about the removal of the discipline. Mr. Slupeiks testified it was in the applicant’s best interests to resolve the grievance in the return to work meeting, and the applicant got everything he wanted.

76Mr. Hunter and Mr. Slupeiks testified they dealt with the applicant’s return to work after the discipline issue. Mr. Slupeiks testified the applicant had no difficulty advising everyone that he disagreed with on call work being in the return to work plan. The applicant did not complain when Mr. Slupeiks and Mr. Hunter left the room to discuss the issue with Ms. Amaral and Ms. Steadman, which resulted in the applicant’s permanent removal from on call work. Mr. Slupeiks told the applicant they had done a great job for him getting the on call removed, and the applicant was satisfied.

77Ms. Steadman and Ms. Amaral brought the revised return to work plan to the room and Ms. Steadman read it out loud. The applicant said he understood, but did not want to sign it because he wanted more time. Mr. Slupeiks testified he likes to move this type of meeting along to a resolution and not waste a lot of time and these agreements were fair.

78Mr. Hunter testified that after he and Mr. Slupeiks signed the MOU, Waterloo left and they stayed and discussed the return to work plan with the applicant, which Mr. Slupeiks said lasted about 5 minutes. The applicant was concerned that if he signed the return to work plan, it could not be changed if something happened on his return to work that they could not anticipate. Mr. Hunter could not convince him otherwise, and explained that Waterloo did not need his signature. When he asked the applicant why he needed more time, he avoided the question. He further explained to the applicant this was a full and final settlement and the applicant said he understood.

79Mr. Hunter testified Ms. Steadman came back to the room to get signed copies of the documents. The applicant asked for copies but Mr. Slupeiks told him they were the union’s and if he was not going to sign then he would not get a copy. Mr. Hunter testified he did not agree with Mr. Slupeiks’ position partly because the applicant requires clear communication.

80Mr. Hunter testified that after the debrief, he and Mr. Slupeiks left the applicant in the room at his request. Mr. Hunter testified the applicant called him that afternoon and told him he still would not sign, but would return to work on the 17^th. The applicant thanked him for his representation and seemed happy with it. Mr. Hunter then e-mailed Mr. Slupeiks and Ms. Amaral to tell them the applicant had called and though he would not sign he was comfortable with the rest. He said the applicant did not voice concerns about the terms, but only that the return to work plan may not cover every eventuality and could not be changed if he signed it.

81Mr. Hunter testified the applicant called him again a couple of hours later and said he was still confused about some procedural issues from the meeting. He asked if Mr. Hunter would talk to his wife, which he did for about half an hour. Mr. Hunter testified the applicant’s wife knew the discipline was removed and told him that was a relief because it had been weighing on the applicant. She asked about the effect of the removal and Mr. Hunter explained to her the non-disciplinary nature of it and that it would not be communicated to any other departments at Waterloo.

82The applicant’s wife also explained on call was hard on the applicant because of sleeping issues, and Mr. Hunter explained the union took the position there should be no on call in the return to work plan. Mr. Hunter testified that overall the applicant’s wife just wanted some clarification, said she was pleased with the outcome and did not indicate any problems. The applicant’s wife did not testify.

83The same afternoon Mr. Hunter sent the applicant some information, including a copy of the Code and a layperson’s explanation of it as well as a document that explained unionized employees. Mr. Hunter testified the applicant thanked him on the phone and by e-mail and said they helped him. The applicant in contrast testified he did not read the material because it was not of interest to him and said he sent the e-mail saying he read it because he was being polite.

return to work

84The applicant returned to work on September 17, 2012, reporting to Brian Stahle. The applicant testified that Mr. Stahle asked him to move his things from his old office to his new office using his personal vehicle. In his view, his refusal to do exactly this in 2011 was why Waterloo gave him the verbal warning letter in February 2011. It stated in part:

This is insubordination which is not acceptable and cannot be tolerated.

Further incidents of this or other inappropriate conduct will result in further discipline up to and including termination.

85When the issue arose again when he returned to work in September 2012, in the applicant’s mind he was being asked to do something that had led to discipline before. He did admit on cross-examination that this time when he objected, the matter was dropped. However, three days after this, on September 20, 2012, Mr. Stahle gave him the letter of expectation and a letter from Ms. Steadman, dated September 18, 2012, that confirmed that Waterloo would implement all recommendations made by the applicant’s specialist, and which enclosed a copy of the unsigned return to work plan. The applicant insisted in his testimony about this that the letter of expectation was not mentioned in the return to work meeting. He testified he did not know why in September 2012 he received the letter of expectation that was dated February 14, 2011. The letter of expectation stated in part:

The purpose of this letter is to clarify what is expected of you when you receive direction from members of management, including myself.

Employees are expected to comply with management’s directions to attend meetings and perform tasks. Refusing to meet with management after receiving direction to do so is insubordination. In the future, I expect that you will follow my directions.

[…] This letter is non-disciplinary and will not be placed in your HR file.

86The applicant was worried when he got the letter of expectation and thought he had done something wrong when Mr. Stahle asked him to move his things using his vehicle, even though he felt he had not. He testified he was confused and felt like his dismissal process was going to begin all over again.

87He denied that when Mr. Hunter e-mailed him two days earlier on September 18, 2012, and told him the warning was removed from his file that this confirmed for him that his grievance was settled at the return to work meeting and the warning letter was removed. When it was put to him that he had wanted the warning letter removed, he disagreed. He would concede only that he asked about it, was told it would be dismissed and he had filed a grievance for it to be removed as he was told he had to.

88He first testified with respect to getting the letter of expectation from Mr. Stahle that he called him after he read it, and that Mr. Stahle explained that it replaced the verbal warning letter, but then testified Mr. Stahle did not really explain to him what the letter of expectation was. He maintained his position despite being shown an e-mail he sent to Mr. Slupeiks and Mr. Hunter that day in which he said that Mr. Stahle told him the letter of expectation was in response to the issue of removing the warning letter from his file at the return to work meeting. He then testified Mr. Stahle told him it replaced the warning letter but he did not understand it, and did not understand why the letter was backdated. Ultimately he agreed on cross-examination that he now understands why it was backdated, but at the time he was shocked when he got it.

89The applicant then called Mr. Slupeiks about the letter of expectation. He gave contradictory evidence about whether he called Mr. Slupeiks before or after Mr. Stahle first explained to him what the letter of expectation was. He testified that while on the phone with Mr. Slupeiks, he saw Mr. Stahle at his office window. Mr. Stahle knocked, but the applicant did not answer because he was afraid.

90Mr. Slupeiks testified that he e-mailed Ms. Amaral after the applicant called him, as evidenced by his e-mail sent at 10:05 a.m. that day. About 15 minutes later, Ms. Amaral sent him a copy of the letter of expectation. Five minutes later, Mr. Slupeiks e-mailed Ms. Amaral and told her the letter had a threatening tone and the timing was terrible. About 4 hours later, Ms. Amaral e-mailed Mr. Slupeiks and told him Waterloo would remove the sentence that referred to insubordination.

91The next day on September 21, 2012, Mr. Slupeiks and Ms. Amaral met with the applicant. The applicant testified Mr. Slupeiks told him he disagreed with the tone of the letter. Mr. Hunter confirmed in his testimony that the union did not expect the tone or the reference to insubordination. In this meeting, they discussed the fact that the letter of expectation was backdated to 2011 because the applicant could not understand it. The applicant alleged that as he was asking questions, Mr. Slupeiks said he thought he was up to something. The applicant was not certain if Mr. Slupeiks asked him if there was a third party who wanted the information he was seeking. In his view, Mr. Slupeiks suspected him of wrongdoing by seeking information for some other reason.

92Mr. Slupeiks took contemporaneous notes of the meeting on which he was examined. He testified they discussed the return to work plan and why the applicant did not sign it. They also discussed how the MOU (referred to as an LOU in Mr. Slupeiks’ notes) strengthened the return to work plan.

93Mr. Slupeiks testified that he asked if a third party was involved and wanted information because he was trying to figure out what else was going on given that the applicant would not sign documents that he felt were good for the applicant. He wondered if there was someone else involved who wanted to review them before the applicant signed them. He testified the applicant did not answer his question because he was crying and upset. Mr. Slupeiks testified Ms. Amaral was sympathetic and arranged for him to leave work early with pay.

94After this meeting the applicant got copies of the return to work plan and the MOU from Ms. Amaral. As indicated above, he testified he might have glanced at them but did not read them, and further testified he did not recall exactly reading them.

95Two days after this meeting, on September 23, 2012, the applicant sent an e-mail to Ms. Steadman, Ms. Amaral, Mr. Stahle, Mr. Hunter, Mr. Slupeiks, Mr. Murray (Waterloo’s CEO) and another union person that explained he was born with a different way of thinking and was trying to work in an environment that did not support his condition or his needs. He asked for support, assistance and understanding of his needs and differences. He testified he was asking for help. His wife also sent a separate letter. The applicant testified neither of them received a response.

96The applicant testified that when he went to work the next day on September 24, 2012, Mr. Stahle brought him a work order. He asserted that Waterloo altered and fabricated the copy it disclosed in its hearing documents because it includes much more detail than a normal work order would. He testified when he got the work order he told Mr. Stahle he could not do the task because it was a manufacturer’s problem. He testified that when Mr. Stahle told him he did not have to do it, he asked him to e-mail him confirmation that he did not have to do it so he would not be seen to be insubordinate in light of the letter of expectation. He testified Mr. Stahle agreed.

97He testified that Mr. Stahle also explained to the applicant that it was not his letter of expectation, which the applicant could not understand because it had Mr. Stahle’s signature on it. Mr. Stahle told him that Ms. Amaral drafted it and he was forced to sign it. The applicant could not understand how Mr. Stahle could do that given that it seemed contrary to Mr. Stahle’s frequent talk about integrity.

98Mr. Stahle left and came back a short time later with Ms. Steadman. Ms. Steadman testified Mr. Stahle asked for her help because the applicant was refusing to do an assigned task. They found the applicant’s blinds drawn, the door closed and the lights off. The applicant had his head down and his elbows on his knees. Ms. Steadman testified there were two chairs in the office and she pulled one up beside the applicant and asked him what was wrong.

99The applicant testified he told her he was troubled by the letter of expectation and Ms. Steadman told him he should forget about it. He testified he asked her if she knew what the letters were that he had received, and she confirmed she did and that she agreed with them. He told her he was still upset about the MOS and did not get a copy and Ms. Steadman told him the MOS were a letter between the union and labour relations.

100Ms. Steadman testified they then discussed why the applicant felt he could not do the task Mr. Stahle asked him to do, and he explained. She testified the applicant wanted someone to understand what he was trying to say and she was trying to but did not quite get there.

101Ms. Steadman and the applicant have different views of the way the conversation went. The applicant testified that he told Ms. Steadman he did not like the way she was talking to him. He testified she seemed angry and he was not comfortable. He testified she told him she thought he was being difficult. He testified he began to tell her how he felt about recent events, including the return to work meeting and the letters that were generated; getting the letter of expectation; and Mr. Stahle asking him to do a job he could not do.

102The applicant testified Ms. Steadman told him she thought his refusal to do the task had nothing to do with his Asperger’s. Ms. Steadman testified the applicant told her he had a social phobia but in her view the report said he had social issues but not a social phobia, and there was nothing in the applicant’s capabilities and restrictions that indicated he could not interact with people. She testified he did not really respond to this. She testified at that point they were having a good conversation, though his head was still down, his elbows were still on his knees and he was not making eye contact.

103In contrast, the applicant testified Ms. Steadman repeatedly asked him to keep his voice down and he kept lowering his voice until he was almost whispering. He asked if he could call the union and testified Ms. Steadman refused to allow him to and told him if he did it was grounds for discipline or dismissal, and then asked Mr. Stahle for confirmation of that fact. Ms. Steadman denied this and said she agreed he could do so.

104The applicant testified he repeatedly asked for a drink of water or a washroom break and Ms. Steadman refused and told him if he went to the washroom without permission, it was grounds for dismissal and insubordination.

105The applicant testified he told Ms. Steadman he thought they had a misunderstanding and asked if he could have a family member present who understood his diagnosis because people who understood his diagnosis did not talk to him the way Ms. Steadman was talking to him. He testified Ms. Steadman said there was no one at Waterloo who knew about Asperger’s who could come and help him. The applicant testified he told Ms. Steadman that Dr. Thompson’s report mentioned a couple of resources and that Ms. Steadman replied that Dr. Thompson knew nothing about Waterloo.

106The applicant testified Ms. Steadman told him he could either do what Mr. Stahle asked him to do or if not fit to do so he could go home. Ms. Steadman agreed she told the applicant if he was not fit for work he could go home. The applicant testified he told her it was a manufacturer’s issue and that Mr. Stahle told him he did not have to do the task. He testified Ms. Steadman said it was different now and she was telling him to do it or go home. He testified she pointed out that in his e-mail the day before he had told everyone he just wanted to work.

107The applicant testified he then asked Ms. Steadman if he could write down what she was asking him to do and did so, and she confirmed that was right. He told her he would do it, but he said that after a long pause, she told him he was going home. He denied he was not fit to work.

108Ms. Steadman testified that despite telling her he was fit to be at work, he would not commit to doing the assigned task. She testified the applicant wanted down time, but did not explain what that meant. She at first suggested he take a walk around the block and then come back, but as the conversation progressed, she no longer wanted him to just take a break and come back, but thought he should go home. She testified he was upset, agitated and shaky, and was making notes in his notebook. When he wanted a break, she at that point told him to just go home. She testified he was only working half-days at that stage and she felt he needed to go home, regroup and come back the next day. She testified sending him home was not disciplinary. She was concerned for his well-being because he was upset, visibly shaking and red in the face. She testified he did not stand up or try to leave the office.

109The applicant on the other hand testified he again told them he needed a break, a washroom or water, and when he stood up to leave Ms. Steadman slid her chair in front of him and Mr. Stahle stood behind her to block his way out and told him he was not going anywhere. Ms. Steadman denied blocking his egress. The applicant agreed it was odd that they did so given that Ms. Steadman had asked him to go home, and he did not know why she did so. He admitted he was still upset about the letter of expectation, but denied that this caused him to because confused about these events.

110After a period of time speaking to one another, the applicant called the police under the guise of calling the union. Ms. Steadman testified the applicant stood up, turned his back to her and picked up the phone. She said she eventually asked who he was calling and he finally admitted he was talking to the police.

111The applicant testified when he told Ms. Steadman who he was talking to she said “oh my God” loudly and left. Ms. Steadman testified she went upstairs to tell her superiors that an employee was calling the police, and police were just arriving when she returned with a security guard. Mr. Stahle was standing outside the applicant’s office.

112The applicant testified the police first spoke with the people outside the door. They then spoke to him and he explained he had Asperger’s, was just back to work, had received a letter of expectation and that Ms. Steadman and Mr. Stahle would not let him leave the room and he was not sure what they were going to try. He testified the police then went back to talk to the people outside the door again and then came back and told him to leave or he would be charged with trespassing. Ms. Steadman testified it was her superior’s decision to have the applicant escorted off the property, not hers.

113The applicant testified he called his lawyer. He also asked for a duty inspector because he felt there was a conflict of interest because the police worked for Waterloo. He testified the police told him he was not privileged enough to have one. He testified he was not sure what was going on, but knew he had to leave or be charged so he left feeling devastated.

114He testified that after asking for help in his e-mail the night before he thought they were angry with him the next day. He testified that when he met with Mr. Stahle and Ms. Steadman he never lost his composure and did his best to avoid a confrontation and not be subordinate, but they gave him no choice but to call the police. He was fearful of what they would do next and knew what they were doing was wrong. He felt they were just trying to get rid of him like he was somehow a problem.

115The applicant was asked on cross-examination about the fact that in his statement to the police he said Mr. Stahle and Ms. Steadman told him he had to go home. He said he did not know why they wrote that down and he told the police there was a conflict of interest because they both worked for Waterloo. When asked if it was his position that the police made things up, he said he did not know but there were all kinds of inaccuracies in the report.

116That afternoon the applicant called Mr. Slupeiks, who took contemporaneous notes of the call. He was taken through them line by line in his testimony. They reflect the applicant’s view of the day’s events, including that he had to use the washroom but Ms. Steadman and Mr. Stahle blocked him. Mr. Slupeiks testified he had no independent recollection of the call other than what he wrote down at the time.

117The applicant testified that after this incident he contacted Mr. Slupeiks, who suggested he fill in a complaint form and told him he would help him do so. He would not concede that this showed that Mr. Slupeiks was assisting him. He also would not concede that Mr. Slupeiks was helping him when he told Waterloo that its suggestion that they meet at a Tim Horton’s was inappropriate because it would be too distracting for the applicant. The applicant also testified he was not reassured by the fact that Mr. Hunter agreed to accompany them when they made the complaint. The meeting to complete the complaint form was set for September 26, 2012, but the applicant did not make it because he was hospitalized.

legal principles with respect to union liability

118In addition to the legal principles set out above with respect to discrimination, I must also turn my mind to whether and how the union may become liable for discrimination. The applicant in this case brought his Application in the areas of employment and contracts.

119There are only two situations where a union can be held liable for discrimination “with respect to employment” under s. 5 of the Code: the union has participated in establishing a discriminatory rule, or has impeded an employer’s attempts to accommodate. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”), at paras. 35-42, and the Tribunal’s analysis of that decision in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 at paras. 29-41. On the facts of this case, I find no liability on the union in the area of employment because it did not participate in establishing a discriminatory rule, nor did it impede Waterloo’s attempts to accommodate the applicant.

120I also find that the relationship between the applicant and the union was not one of contract. As such, I find no liability with respect to the union.

decision and analysis – return to work meeting and return to work

121The applicant alleges the respondents discriminated against him in the way in which they treated him in the return to work meeting, specifically in how they dealt with the outstanding grievance, the memorandum of understanding that was generated and the letter of expectation the parties agreed to in the meeting.

122In my view, these events in the return to work meeting and what subsequently happened when the applicant returned to work cannot be separated. It is clear from the evidence that the applicant experienced stress in the return to work meeting, and this increased on his return to work. The applicant claimed discrimination with respect to the treatment he received on his return to work, including having Waterloo deliver the letter of expectation to him and the actions taken by Waterloo before he was escorted off the property, which the applicant alleges led to him being hospitalized.

123I find the respondents constructively discriminated against the applicant in the manner in which they conducted the return to work meeting in that they conducted it the same way they would have with someone who did not have the applicant’s particular limitations, which included being sensitive to sensory input such as noise, bright lighting and crowded places; being unable to recognize social cues; having social issues particularly when under stress; and needing clear communication that preferably would be backed up by written communication. Both Waterloo and the union representatives knew of the applicant’s limitations prior to the return to work meeting.

124I make this finding while acknowledging that the applicant’s evidence was to some extent unreliable. Although he testified he has a phenomenal memory, when it came to answering questions on cross-examination, he repeatedly said he could not remember even though he had no such difficulty when giving his direct evidence. In addition, he resisted conceding facts on cross-examination even when they were facts to which he had testified. However, in the end, the difficulty with the applicant’s evidence was not the basis upon which I made my decision.

125In reaching my finding, I also recognize that the respondents did not intentionally discriminate against the applicant, but intent is not a requirement of discrimination. The respondents failed to recognize that the way they conducted the return to work meeting did not permit the applicant to follow and understand it, and it did not take into consideration his particular limitations.

126While it is true that the evidence appears to show that the applicant was able to raise issues such as the discipline and the on call work, this does not mean he entirely understood what transpired. He testified he could not understand what was going on or the documents that were flying around. The speed at which the meeting occurred was confirmed by Mr. Slupeiks, who testified that he likes to move the meetings along. Given the applicant’s limitations, his evidence makes it clear that the meeting was confusing and stressful for him, despite the respondents’ testimony that they went through the documents line by line with the applicant.

127While the applicant gave contradictory evidence with respect to whether or not he knew as a result of the return to work meeting that the discipline was removed and he no longer had to do on call work, the evidence made it clear the applicant overall was confused and stressed and wanted more time to consider the documents. Instead of permitting this, the parties did what they would have done with any other employee in a return to work meeting, which was to take steps in the applicant’s best interests, without recognizing that in the applicant’s particular case, this was not appropriate. It is of note that Mr. Hunter testified he did not agree with Mr. Slupeiks’ decision not to give the applicant copies of the documents because he would not sign them.

128While it appeared that the applicant suffered no adverse outcome because both the grievance and the on call work issues were resolved in the applicant’s favour, the evidence was clear that what happened as a result of not being given the documents to review and not being given more time was that the applicant’s stress level began to increase. The fact that he got the documents 10 days later did not assist. In the meantime, several other events impacted the applicant cumulatively.

129The union submitted that it was telling that after the return to work meeting the applicant thanked Mr. Hunter for his assistance. However, the applicant testified he was being polite, and it is of note that this also is a trait of those with Asperger’s as highlighted in Dr. Thompson’s report. In light of this, I find that the fact that the applicant thanked Mr. Hunter is not determinative of whether the union accommodated the applicant’s particular needs at the return to work meeting.

130Six days after the return to work meeting, the applicant returned to work. He was asked to use his vehicle to move his things to his new office. A prior similar request had led to his receiving the prior verbal warning letter, with which the applicant disagreed because he did not think he did anything wrong.

131While this time the applicant conceded the matter was dropped when he objected to using his own vehicle, three days later on September 20, the applicant received the backdated letter of expectation. Despite Mr. Hunter and Mr. Slupeiks assuring him at the return to work meeting on September 11, and Mr. Hunter assuring him on September 18 that the letter was non-disciplinary, it did not change the fact that the letter had a threatening tone, as even Mr. Slupeiks testified. In addition, Waterloo used the term insubordination, which the union, to its credit, immediately recognized was a problem.

132The union immediately addressed the issue and Waterloo agreed to change the letter the same day. However, given the applicant’s unique limitations, the damage was already done. Given his inability to understand nuance or social cues, to him this letter meant that Waterloo was telling him again that he was somehow opening himself up to being disciplined. He related it to having refused to use his car for business purposes when he returned to work three days earlier.

133Given that the respondents all understood from knowing the applicant’s limitations from the medical assessments that he required things in writing, they could have avoided this situation through the union asking Waterloo to draft the letter of expectation prior to everyone signing the MOS, and Waterloo doing so. The applicant then could have seen the letter and reviewed it. Without it, the respondents had a limited ability to explain it to the applicant.

134In addition, had it been drafted for review, the union could have addressed any threatening tone that was included in the letter that they obviously knew was not helpful for the applicant. While one could argue this is 20/20 hindsight, it was clear to all involved that the applicant required things in writing in order to better understand them.

135I acknowledge that I make this finding even though Waterloo stated in the letter of expectation that it was not disciplinary and would not be placed in the applicant’s file. However, not only was this the very last line of a letter that told the applicant he was expected to follow Mr. Stahle’s directions in the future (implying he had not done so before, which he disputed), but the letter told him if he refused to meet with management after being told to do so it would be insubordination. Given the applicant’s particular circumstances and limitations, Waterloo should have been alive to how this negatively would affect the applicant.

136The evidence also is clear that Mr. Stahle explained the letter of expectation to the applicant, as did Mr. Slupeiks when the applicant called him. However, the evidence also is clear that the applicant still did not understand what was happening, and the damage was already done.

137The following day on September 21, Ms. Amaral and Mr. Slupeiks met with the applicant and again tried to explain to him what had happened at the return to work meeting and the documents that were drafted. Unfortunately, though they are to be commended for trying, and for doing so promptly, as I have already indicated the damage had already been done. It is noteworthy that Dr. Thompson stated in her report that people with Asperger’s remember injustices as well as inconsistencies in what people say.

138In the September 21 meeting, Mr. Slupeiks’ contemporaneous notes confirm that he asked the applicant if there was some third party involved. The applicant interpreted this as Mr. Slupeiks asking what he was up to, and this tainted the meeting for him.

139The cumulative effect of the events on the applicant obviously continued unabated as evidenced by the e-mail the applicant sent on September 23 in which he advised that the way he was being treated was not right, and that his disability was not obvious. He also stated he was born with a different way of thinking and that he struggled to make sense of social situations. He further stated that he was struggling immensely trying to cope in an environment that did not support his condition or needs.

140The very next morning, he ran into a situation with Mr. Stahle that he did not know how to deal with, whether because he felt he did not have the skills or because he was struggling with social contact. While this event may have been otherwise innocuous, it was less so given that it came after Mr. Stahle gave the applicant the letter that told him to follow his directions, and that told him he could be found to be insubordinate. It was clear from the evidence, and should have been clear to Mr. Stahle, that Mr. Stahle’s request caused the applicant some distress given that he asked Mr. Stahle to confirm with him in writing that he did not have to do the task. It is important to understand that I do not find the situation with Mr. Stahle to have been discriminatory. The applicant’s restrictions did not include any limitation on going to speak with someone about a work order. I include the event here because it is part of what occurred that had an impact on the applicant.

141It is clear from the fact that Mr. Stahle went to get Ms. Steadman to assist him that he perceived a problem. This likely was confirmed by the fact that when Ms. Steadman and Mr. Stahle went to the applicant’s office the door was closed, the lights were off and the blinds were lowered. In addition, when they went in, the applicant was sitting with his head down, his elbows on his knees and did not make eye contact.

142While Ms. Steadman described their conversation as good, she did not dispute that at some point the applicant became visibly distressed. There also is no dispute that she did not permit the applicant to take a break as he requested. I do not find on the evidence that Ms. Steadman or Mr. Stahle blocked the applicant’s egress. However, it is clear that in the applicant’s mind Ms. Steadman physically prevented him from leaving, though I find she simply would not allow him to take a break as he requested.

143The respondents submitted the applicant’s view of this event did not make sense in that on his version, Ms. Steadman was telling him to go home and simultaneously preventing him from doing so. However, I find that in light of the applicant’s stress level, confirmed by Ms. Steadman’s evidence and the fact that he wanted to take a break and she would not permit it, the applicant’s view of this event makes sense. His view that he was being prevented from leaving is also confirmed by the fact that he felt he needed to call the police.

144Given the applicant’s state of mind and his request to take a break, and in light of the medical evidence and his e-mail from the previous evening, I find Ms. Steadman should have permitted the applicant to take a break rather than issuing what would have seemed to him like discipline and an ultimatum to either do the work or go home. In addition, Ms. Steadman had notice, given the applicant’s e-mail of the night before, that he was struggling and took the view that his needs were not being met, and she did not address those but instead told him to do the work or go home.

145While the respondents could have done things better, I am also cognizant of the fact that despite having had treatment leading up to the return to work meeting, the applicant admitted he still felt paranoid about how he perceived Waterloo had treated him in the past, which likely heightened his response to the events that transpired. As Waterloo pointed out, Dr. Daigen confirmed the applicant’s paranoia in her July 25, 2012 psychological assessment prior to the applicant’s return to work. It is of note that Dr. Daigen’s report also stated that it was hard to imagine the applicant negotiating the difficult back to work transition with his level of anxiety. I will take this into consideration when deciding on the remedy.

146In summary, I find the combined actions of the respondents constituted constructive discrimination against the applicant in the way in which they handled the return to work meeting and the events that occurred upon the applicant’s return to work. However, as indicated I have no way of finding liability against the union. As such, given that I have found that both respondents’ actions contributed to the applicant’s discrimination, I will consider that when considering the remedy against Waterloo.

remedy

147Monetary awards under the Code are compensatory in nature. The intention is an applicant will be put back into the position he or she would have been in but for the discriminatory act. See: Lane, above.

148In Lane, above, the Divisional Court states at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

149There is no fixed formula for the Tribunal to follow to assess a monetary compensation award. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”), the Tribunal stated at paras. 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

…The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. …

…The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.

150In the Application, the applicant requested from each of the respondents, among other things:

a. a declaration that the respondents infringed the applicant’s rights under the Code;

b. a global amount of $200,000 for damages including losses for injury to dignity, feelings and self-respect;

c. lost wages and benefits in an amount to be determined prior to the hearing; and

d. development of a policy and disability/sensitivity training for the respondents’ management team.

Injury to dignity, feelings and self-respect

151The Court of Appeal has recently considered compensation in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”) at paras. 52-77, adopting the principles set out by the Tribunal in Arunachalam, above, at paras. 52-54:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38 [“Sanford”].

152I recognize Strudwick is a termination case and therefore in some aspects is not applicable to this case, but the Court did set out, at para. 62, some of the relevant factors noted in Sanford as follows:

• the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the complainant’s vulnerability;

• objections to the offensive conduct;

• the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;

• the degree of anxiety the conduct caused; and

• the frequency and intensity of the conduct.

153It is important to keep in mind when determining remedy that this ultimately was not a case in which the applicant asked me to find that Waterloo did not accommodate his restrictions on his return to work with respect to his ability to do the work, and that if he had, I would have found it did accommodate the applicant. Instead, what the applicant ultimately alleged and what I have determined is that the respondents failed to appropriately accommodate the applicant in the return to work meeting, and that as a result, the events that flowed from that also constituted discrimination and had a cumulative effect on the applicant.

154I am mindful of the factors in Sanford and Strudwick because in this case in my view the effect of these events on the applicant did not flow solely from these events. The applicant admitted he continued to be paranoid at the return to work meeting about how he perceived Waterloo treated him in the past. In addition, one must keep in mind that the applicant continued to maintain his suspicions about Waterloo even when reassured repeatedly by the union that what was happening was in his favour and was non-disciplinary. I also have considered the fact, as submitted by Waterloo, that not long before the return to work meeting, Dr. Daigen had wondered if the applicant could really even face a return to work given his stress level. It is somewhat problematic that the applicant called no medical evidence, but I find it probable based on Dr. Daigen’s report that the applicant suffered from a high degree of anxiety even before these events, and these events simply heightened it. I also have considered the fact that the letter of expectation included no discipline, although it would have been preferably in the applicant’s circumstances to not use this language.

155The applicant referred me to the case of B.M. v. Cambridge (City), 2010 HRTO 1104 (“B.M.”), in which the applicant was awarded $12,000 for being denied services through being unable to attend camp because of the respondent’s failure to consider providing adequate support. The applicant also referred me to the case of O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (“Presteve”), in which the Tribunal awarded $150,000 for injury to dignity, feelings and self-respect. The applicant submitted this case should be likened to Presteve rather than to B.M. because of the applicant’s vulnerability and the severe impact on him which led to his being hospitalized and going off work again. He submitted an appropriate award for injury to dignity, feelings and self-respect was $75,000.

156It is worth repeating what of Waterloo’s actions I have found to constitute discrimination. They are:

a. They conducted the return to work meeting in the way in which they would have conducted it with any other employee;

b. They delivered to him a backdated letter of expectation that had a threatening tone and did not take into account the applicant’s unique needs in the drafting or delivery of it; and

c. Waterloo failed to permit the applicant to take a break rather than issuing what would have seemed to him like discipline and an ultimatum to either do the work or go home.

157With respect only to Waterloo’s actions in the return to work meeting, it should have recognized that the applicant was having some difficulty following the events. However, the union was there to not only assist the applicant, but also to represent his interests. Waterloo’s liability for what occurred at the meeting is minimal.

158Waterloo should have drafted the letter of expectation in order that the applicant could review it prior to being issued to him. However, it was clear in the letter that it was non-disciplinary, despite Waterloo’s unfortunate choice of the word insubordination, which in the applicant’s case was a trigger. In addition, the issue of backdating the letter was something the applicant could not comprehend at the time. While Waterloo should have been alive to those issues, I find that the award for injury to the applicant’s dignity, feelings and self-respect occasioned by Waterloo should be assessed in light of all the circumstances, including that the letter was discussed at the meeting, it clearly said it was non-disciplinary and that it had been explained to the applicant more than once. As such, I find an appropriate award for general damages for Waterloo’s actions in the return to work meeting and regarding the letter of expectation to be $2,500. The applicant was not deprived of his employment and Waterloo did its best to accommodate his needs at work.

159My assessment of the injury to dignity, feelings and self-respect award reflects that the very act of returning to work caused the applicant stress, which is supported in my view by Dr. Daigen’s medical assessment of the applicant’s state just prior to the return to work. It also reflects that Waterloo would have had some difficulty knowing that its actions would cause the applicant the anxiety they did, given that they spent time reading the documents to him in the return to work meeting and that they had explained the letter to him more than once before it was delivered.

160With respect to the failure of Waterloo to permit the applicant to take a break when he asked to do so, this is somewhat more egregious given the applicant’s particular needs and his sensitivity to stress and stimuli, as well as Ms. Steadman’s recognition that the applicant was very stressed at the time. I assess the applicant’s injury to dignity, feelings and self-respect for this incident at $8,000, again recognizing that the very return to work was stressful for the applicant and should not be compensated for by Waterloo, but also recognizing that the applicant asked for help the night before this incident and that Ms. Steadman recognized his stress at the time.

161In sum, I find an appropriate global award for the applicant’s injury to dignity, feelings and self-respect to be $10,500.

Wage Loss

162The applicant did not make a claim for wage loss, and Waterloo submitted it had paid the applicant until his return to work. As such, I make no order with respect to wage loss.

non-monetary remedy

163I do not find this an appropriate case for a non-monetary remedy. The applicant requested that Waterloo be ordered to display a sign saying they had discriminated against him. I do not find this to be an appropriate remedy and make no such order.

order

164Waterloo shall pay the applicant $10,500 for injury to dignity, feelings and self-respect.