Rae v. Near North District School Board, 2017 HRTO 902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Rae

Applicant

-and-

Near North District School Board

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: July 19, 2017

Citation: 2017 HRTO 902

Indexed as: Rae v. Near North District School Board

APPEARANCES

Joan Rae, Applicant

Self-represented

Near North District School Board, Respondent

Dirk Van de Kamer, Counsel

Introduction

1In this Application, the applicant alleges that she experienced a breach of her rights when the respondent, her employer, failed to accommodate her disability-related needs contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). She also alleges that she was subjected to age discrimination and harassment in the workplace and that she experienced reprisal by the respondent when she was applying for disability benefits.

2The Application was filed on August 21, 2015 and many of allegations that were made dated back to 2012.

3Following a preliminary hearing to determine the scope of the Application, the Tribunal issued Interim Decision, 2017 HRTO 568. The Tribunal ordered that it did not have jurisdiction to hear allegations of age harassment and discrimination made with respect to incidents that occurred prior to August 21, 2014 on the basis of delay. The Tribunal did order in the Interim Decision that it would hear evidence that related to the respondent’s alleged failure to accommodate the applicant’s disability when the respondent transferred the applicant to work in another school and the alleged reprisal by the respondent in its actions when the applicant was in the process of claiming sick days and was submitting the forms necessary for her to apply for long term disability benefits.

4The hearing of this Application was held on May 25, 2017 during which I heard evidence from the applicant and from the respondent’s witness, Marsha O’Connor who is the respondent’s human resources manager.

Failure in duty to Accommodate

Joan Rae

5Joan Rae, the applicant, testified that she had worked as an educational assistant with the respondent since about 1986. During that time she had always worked at the same elementary school, Britt Elementary School (“Britt”), and she had worked with students in a variety of grade levels between kindergarten and Grade 8. During the 2013-2014 school year she had taken a number of disability-related leaves.

6The Town of Britt is a small centre. The only elementary school in town is Britt and there is no high school in town. The closest high school is more than one hour drive from Britt.

7She testified that on or about June 20, 2014 she received a call from the respondent’s human resources officer and Marsha Cresswell (now Marsha O’ Connor) who advised the applicant that she would be transferred to a position in a high school. She stated in her testimony that she had not asked for a transfer to a high school. She had not worked in a high school and she thought that in suggesting such a transfer, the respondent had not considered her disability-related needs. At the time she was experiencing anxiety and stress which the respondent was aware of as she had provided medical documentation supporting this during her previous disability-related leaves of absence. She stated that it was her belief at that time that her anxiety and stress would have been exacerbated if she were to have to start a new job with students who were 14 years-old and older.

8After receiving this call she went to her family doctor. She stated that she and her doctor discussed the possible work in a high school and her doctor suggested that she negotiate a move to a school other than Britt. A note from the applicant’s family doctor dated July 3, 2014 was tendered in evidence. The note states “work issues seem to have escalated since the last report. Joan is not able to return to work at her previous school. Negotiation regarding a new work location is advised.”

9She testified that on August 26, 2014 she received a telephone call from the head of special education at the respondent. During this telephone call she was advised that she was being transferred to Nobel Public School (“Nobel”) and that she was to start working there on August 29, 2014. She stated that she was confused when she received this phone call. She stated that at the time her stress level was high because she did not know what was happening in her work.

10She testified that it would take her about one hour to drive to Nobel in good weather.

11She testified that she did not attend at the professional activity day on August 28, 2014 at Nobel. She received an email inquiry about her attendance from Marsha Cresswell. She responded by sending an email to Ms. Cresswell. This email stated, “I am unable to be at Nobel School on Tuesday [September 2, 2014] due to medical reasons.”

12The applicant did not work as an educational assistant for the respondent from August 28, 2014 onward. She remained off work at the time of the hearing.

13On September 3, 2014 the applicant asked her medical professional to complete a respondent’s Medical Certificate in support of her the statement she had made to Ms. Cresswell that she could not be at Nobel due to medical reasons. In the section of the certificate where physical or cognitive restrictions are to be listed, it states that the applicant feels she cannot meet expectations. When asked what she understood this to mean, the applicant stated that it meant that she was unable to perform the duties of her job.

14She testified that she provided this certificate to the respondent’s human resources officer and Ms. Cresswell; and her union representative.

15The respondent then asked her to have her family doctor complete a different form. The form indicated that as no medical restrictions had been provided on the earlier forms, the doctor was asked to provide the applicant’s physical and/or cognitive restrictions and limitations. The form completed by her family doctor on September 10, 2014 states, “Poor concentration, fatigue, anxiety associated with high expectations of multitasking, which [patient] feels she can’t meet.”

16The documentary evidence and the testimony of Ms. Rae demonstrates, that the respondent made requests for further documents and sought clarification from the applicant’s doctor on whether she would be able to fulfill the essential duties of an educational assistant at another school other than Britt or whether she was unable to fulfill the essential duties at any school. The executive assistant at the applicant’s union had also made a request for permission to speak to the applicant’s doctor. In an email, the executive assistant stated that this request was made to ensure that the respondent received the information that was needed so that the applicant would be appropriately accommodated.

17The applicant’s family doctor completed a cognitive functional abilities form on December 11, 2014 which indicated that “work related stress disorder...has been an active problem since April 2012, has tried short periods of respite, then different work hours and reduced work load, now unable to work.”

18In cross-examination, that applicant agreed that it was her doctor’s recommendation that because of her disability she could not return to Britt and that the respondent had received this opinion from her doctor. She agreed that when Nobel had been suggested in August 2014, she thought about the driving. She testified that her husband, who is a police officer, had worked the highway she would take to get to Nobel from home and he did not want her driving on it. She also stated that her family did not have a second vehicle so financially it was also not a good fit for her to go to Nobel. She agreed that according to the medical documentation she had submitted to the respondent that was part of the evidence for this hearing, her doctor’s opinion was that as of September 10, 2014 she was not able to work in any location. She confirmed that to date, she has not been cleared to return to work.

19She agreed that the closest alternate school to her home that had a position for an educational assistant was Nobel.

Marsha O’Connor

20Marsha O’Connor testified that at the time relevant to this Application, her name was Marsha Cresswell. She is the manager of human resources at the respondent.

21Ms. O’Connor testified that she had been involved in the applicant’s human resources matters during her leaves of absence. She did recall getting the letter from the applicant’s doctor dated July 3, 2014 in which he had advised that a new work location should be negotiated.

22Her evidence was that in late June 2014 she attended a meeting to discuss staffing changes and possible reductions among the staff of the various schools within the respondent board. She stated that during the June 2014 meeting, there was a discussion about three staff who needed workplace accommodations within the respondent board. They considered the needs of these three and reviewed three available jobs and the high school position was held as a possible spot for the applicant. Ms. O’Connor stated that at that time they did not know how else they could support the applicant. They were aware that she had experience stress and anxiety when she was working at Britt so they believed it might be best to move her to a school that was different from Britt where there was a position for an educational assistant.

23Ms. O’Connor testified that when the respondent received the July 3, 2014 medical note from the applicant’s doctor, it was clear that she could not go back to Britt and so in trying to figure out where she could be placed the high school was suggested. She stated that she understood that the applicant had not worked in a high school previously and so she, the respondent’s human resources officer, and the applicant’s union representative discussed a possible flex position. When she spoke to the special education co-ordinator at the respondent, she was told that the flex position was at Nobel Public School. They had thought that Nobel would be better than a high school for the applicant because it is an elementary school and the students would be much like the ones that the applicant had worked with at Britt.

24It was her testimony that if the applicant’s doctor had not suggested a new location for her work, the respondent would not have suggested she be transferred to Nobel as it had always been the intention that they would work to have the applicant return to Britt.

25She stated that she had not been made aware of whether the applicant had accepted the transfer to Nobel but then she was advised by that school’s principal that the applicant had not attended the professional development day on August 28, 2014. When she was notified of this, she sent the email to the applicant explaining that it was her understanding that the applicant had been placed at Nobel and that she did not have any restrictions other than not working at Britt and the placement at Nobel would assist with this request. The email was admitted into evidence.

26Ms. O’Connor testified that it was her understanding that the applicant has not been cleared to return to work to date.

Analysis and Decision

27The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities. She must demonstrate that it is more likely than not that the respondent’s actions in transferring her to work at Nobel amounted to an infringement of her Code rights.

28There was no dispute between the parties about the evidence.

29I find that the actions of the respondent do not amount to a breach of the Code. For the reasons outlined below, I find that the applicant has not proven, on a balance of probabilities, that the respondent failed in its duty to accommodate her disability-related needs. She did not experience discrimination in employment.

30The relevant sections of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. 2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of … disability ...

10(1) In Part I and in this Part,

“disability” means:

(a)any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

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.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

31There is no dispute that the applicant’s family doctor initially recommended that she be moved to a new location as a means of accommodating her disability-related needs. It was Ms. O’Connor’s evidence that when the respondent received the July 3, 2014 medical note it made the decision to transfer her to Nobel. The applicant did not dispute this. It was the applicant’s testimony that being transferred to a high school would not have met her disability-related needs. The applicant agreed that Nobel was the nearest alternate elementary school that had a position for an educational assistant.

32The applicant did not present any evidence to demonstrate why working at Nobel would not have met her disability-related needs when it was offered to her on August 26, 2014. It would appear from the evidence that the applicant did not want to accept the offer to work at Nobel because of the distance she would have to drive on Highway 69 and because she did not have a second vehicle that she could use.

33In any event, very shortly after she was to begin to work at Nobel, her medical professional’s opinion changed to indicated that she was not able to work in any location. The applicant’s evidence was that as of that date, she was not able to perform the duties of the job as an educational assistant regardless of her location. The applicant and the respondent agree that the applicant has not yet been cleared to return to work.

34In order to demonstrate that the respondent failed to accommodate her disability, the applicant must demonstrate that the respondent failed to take appropriate steps to assess or respond to the applicant’s request for accommodation. See L.C v. Toronto District School Board, 2011 HRTO 1336 at para 18; and Baber v. York Region District School Board, 2011 HRTO 213 at paras. 90-91.

35The evidence does not demonstrate that the respondent failed to accommodate the applicant’s disability-related needs in late August 2014. Ms. O’Connor provided cogent and credible evidence that were it not for the family doctor’s recommendation, the respondent would not have transferred the applicant to Nobel. The respondent felt that transferring her to Nobel would meet her disability-related needs as her family doctor had indicated that due to the workplace stress work at a different school should be negotiated. The applicant had worked with elementary school aged students and Nobel was the closest elementary school. The high school, which did not suit her experience, and Nobel were about the same driving distance from the applicant’s home. The applicant presented no evidence to dispute this. The evidence shows that the applicant did not advise the respondent that Nobel did not meet her disability-related needs and no evidence was presented at the hearing to demonstrate how it did not meet her needs. The evidence demonstrates that in August 2014 the applicant advised that she could not work at Nobel for medical reasons. Her evidence at the hearing was that going to Nobel would have been “inconvenient” and “not a good financial fit.”

36It is not disputed that as of September 10, 2014, the applicant’s doctors had determined that she was not fit to work in any location. I find that at that point, the respondent’s obligation to accommodate the applicant’s disability-related needs was suspended until she is cleared to return to work. The respondent had accepted her doctor’s opinion that she was not able to work in any location and had made no demands that she return to work.

37For these reasons, I find that the respondent did not breach the applicant’s Code rights. The allegation that the respondent failed in its duty to accommodate her disability or breached her rights on the basis of her disability is dismissed.

Reprisal

38The applicant alleged that she experienced reprisal by the respondent when it refused the sick days she was entitled to after August 2014 when she stopped working and refused to complete the forms necessary for her to apply for long-term disability.

Joan Rae

39The applicant stated that when she had first applied for federal Employment Insurance benefits she was advised that the respondent had indicated on the Record of Employment that she had left the employment without just cause. In cross-examination, she agreed that the letter she had received from Service Canada indicated that the reason for the initial denial of Employment Insurance Sick Benefits was that no medical documentation had been included to support her claim. It was her testimony that she eventually did receive fifteen weeks of sick benefits.

40When asked what documents she was alleging that the respondent had not provided that prevented her from receiving long-term disability benefits, she could not explain what was missing. She agreed that the letter she had received from the insurance plan administrator stated that it had received the completed statement from the respondent. She agreed that there was nothing in this letter that would indicate that there were documents missing from the respondent that had caused the denial of long-term disability benefits. She also agreed, and the evidence demonstrated that a letter from her legal counsel to the respondent stated that in January 2015 the respondent had completed the employer portion of the long term disability application.

41The applicant stated that she was not sure if she actually got paid her accumulated sick benefits. She was directed to an email dated December 10, 2014 from the respondent’s human resources officer which stated, “We have now received medical restrictions applicable to your current leave of absence. As such we will now be able to support payment of Short-Term Disability benefits retroactive to September 2, 2014. …total of 23 days available and payable… will be applied to upcoming pay…” Her testimony was that she had received this email. The applicant’s payroll transaction history was submitted into evidence. It shows that on December 22, 2014 she received this payment. Her evidence was that she did receive this payment.

Marsha O’Connor

42Ms. O’Connor explained that the insurance plan for long-term disability is owned by the applicant’s union; and in her experience, the union is very involved in the application process. She stated that her understanding is that the union is very interventionist as it keeps the respondent up to date on what is happening with employees and it keeps a close eye on who might need assistance navigating through the process of applying for disability insurance benefits. She stated that the respondent, the applicant’s doctor and the applicant would each have a portion to complete for the application for long-term benefits.

43She testified that the respondent remits the insurance premiums. Employees that are on an unpaid leave have the option of paying the premiums themselves so that their benefits continue. An email from the respondent’s human resources coordinator to the applicant dated September 18, 2014 was tendered in evidence. The email shows that the applicant had been provided a benefit costing and the forms she needed to complete to elect to pay the premiums herself. The evidence demonstrated that this information was sent again in an email to the applicant dated December 11, 2014. Ms. O’Connor stated that she it was her understanding that the applicant had elected not to pay the premiums herself.

44Ms. O’Connor stated that the respondent would have no interest in making a deliberate attempt to prevent an employee from receiving long-term disability benefits. It is considered to be part of the respondent’s accommodation process and employees would always be encouraged to apply for the benefits that are available to them.

ANALYSIS AND DECISION

45Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

46Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 is a decision which has been consistently followed and which considered what is required to show reprisal contrary to section 8. At paragraph 23, the Tribunal stated:

Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.

47Noble v. York University, 2010 HRTO 878 is also consistently followed. At paragraph 31, the Tribunal stated:

In order to prove reprisal, [an applicant] must establish that the respondent engaged in an action, or threat, which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

48Again, there was very little dispute on the evidence. The evidence presented by the applicant and the respondent demonstrates that the applicant did receive payment for the accrued sick-days in December 2014 after she provided the medical documentation that was required. She confirmed this in her own testimony.

49The evidence also demonstrates that the respondent has provided all the documents required to complete its portion of the applicant’s claim for long-term disability benefits. The applicant did not dispute this.

50The applicant has provided no evidence to demonstrate that the respondent engaged in any actions or threats that could be seen as having the intent to punish the applicant or retaliate against her in reaction to an attempt to claim or enforce her rights under the Code.

51The allegation that the respondent engaged in reprisal is dismissed.

order

52The Application is dismissed.