Ontario Public Service Employees Union v. Ontario (Children and Youth Services), 2016 ONSC 5732
CITATION: Ontario Public Service Employees Union v. Ontario (Children and Youth Services), 2016 ONSC 5732
DIVISIONAL COURT FILE NO.: 230/15/JR
DATE: 20160913
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Nordheimer, Thorburn and Pattillo JJ.
BETWEEN:
Ontario Public Service Employees Union
Applicant
– and –
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Respondents
COUNSEL:
David R. Wright, for the Applicant
Caroline Cohen and Felix Lau, for the Respondents
HEARD at Toronto: September 13, 2016
ORAL REASONS FOR JUDGMENT
NORDHEIMER, J. (orally):
[1] The applicant union seeks judicial review of the decision of the Grievance Settlement Board dated March 17, 2015 that held that the respondent Ministry had not breached its duty to accommodate its employee, Cameron Bartolotta’s, disability when it terminated his employment on the ground of innocent absenteeism.
[2] The employee worked as a youth services officer at the Roy McMurtry Youth Centre. The employee suffers from a chronic degenerative back condition that can flare up without notice. When the condition does flare up, the employee is unable to work. When the condition is passive, the employee is fully capable of performing his duties. As a result of his condition, the employee has missed more days of work than would the average employee. Indeed, his absenteeism was 25% above the institutional average and amounted to more than 70 absences per year. When the employee was unavailable, the respondent Ministry would use other employees to fill in for him or would pay for overtime to cover his duties.
[3] There is no dispute that the respondent Ministry made various proposals at accommodating the employee’s situation. However, the employee rejected each of those proposals because there are no workplace barriers to his ability to work. Rather, it is the nature of his condition, and the largely unpredictable nature of it, that is at the root of the problem. The situation eventually led the respondent Ministry to terminate the employee’s employment for innocent absenteeism.
[4] The Board found that employee’s average rate of absenteeism was 35%; it was sporadic and unpredictable; it was chronic and there was no suggestion that it would improve in the foreseeable future. The Board found, and the parties agree, that the absenteeism was “excessive”. As a consequence, the Board found that the employee was unable to perform the basic obligations associated with his position and would not be able to do so for the foreseeable future.
[5] What the applicant essentially contests is the failure of the respondent Ministry to “accommodate” the employee by allowing him to work when he could and not work when he could not.
[6] The parties disagree over the proper standard of review. The applicant contends that the standard of review is correctness because the central issue is a question of law with general importance to the legal system. It thus falls within an exception to the general principle that reasonableness is the standard of review respecting decisions of arbitrators: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 60.
[7] I do not agree with that contention. The issue before the Board, which I note is a specialized tribunal, was whether the respondent Ministry had a duty to accommodate the employee in his particular circumstances. It is a question that very much depends on the factual circumstances surrounding how the duty to accommodate arises. It is not a question of law but a mixed question of law and fact that does not allow for only one answer that will universally apply. The proper answer in this set of circumstances may be very different in another set of circumstances. I conclude therefore that the standard of review is one of reasonableness. As the court said in Dunsmuir, at para. 53:
Where the question is one of fact, discretion or policy, deference will usually apply automatically [citation omitted]. We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.
[8] In terms of the Board’s decision itself, it is not disputed that the respondent Ministry had met the requirements to terminate the employee for innocent absenteeism, subject only to the argument regarding the duty to accommodate. The Board concluded that the respondent Ministry did not have to amend its attendance standard, that applies to all of its employees, in order to accommodate this employee’s condition.
[9] The position of the applicant, at its heart, is that the respondent Ministry’s duty to accommodate includes a duty to allow the employee not to work. The Board rejected that interpretation of the duty to accommodate, as do I. The purpose of the duty to accommodate is to allow employees to fulfill their employment duties, not to allow employees not to fulfill those duties. That interpretation of the duty to accommodate not only accords with common sense, it is also consistent with the approach taken by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561 where the court said, at para. 14:
As L’Heureux-Dubé stated, the goal of accommodation is to ensure that an employee who is able to work can do so.
and further, at para. 15:
However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.
[10] The applicant’s position, as the Board noted in its decision (para. 157), is that there is no accommodation which the respondent Ministry can offer, other than to accept the employee’s absenteeism. The Board held that the respondent Ministry’s duty to accommodate does not require that it alter the fundamental essence of the employment contract, that is, payment made for work done. That is a perfectly reasonable conclusion. Indeed, I would say that it is the correct conclusion. As the court noted in Hydro Quebec, at para. 19:
The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
[11] The application for judicial review is dismissed.
COSTS
[12] I have endorsed the Applicant’s Application Record as follows: “For oral reasons given by me, the application for judicial review is dismissed. In accordance with the agreement of the parties, the applicant shall pay to the respondent costs fixed at $5,000.00 all inclusive.”
___________________________ NORDHEIMER J.
___________________________ THORBURN J.
___________________________ L.A. PATTILLO J.
Date of Reasons for Judgment: September 13, 2016
Date of Release: September 14, 2016
CITATION: Ontario Public Service Employees Union v. Ontario (Children and Youth Services), 2016 ONSC 5732
DIVISIONAL COURT FILE NO.: 230/15/JR
DATE: 20160913
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Nordheimer, Thorburn and Pattillo JJ.
BETWEEN:
Ontario Public Service Employees Union
Applicant
– and –
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: September 13, 2016
Date of Release: September 14, 2016