DIVISIONAL COURT FILE NO.: DC-394-20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Favreau, O’Bonsawin JJ.
BETWEEN:
Steven Wallwork
Applicant
– and –
Toyota Manufacturing Canada Inc.
Respondent
Shibil Siddiqi and Scott Byers for the Applicant
Frank Cesario and Lesley Campbell for the Respondent
Jason Tam for the Human Rights Tribunal of Ontario
HEARD at Toronto (via videoconference): September 13, 2021
O’Bonsawin J.
Introduction
1The Applicant, Mr. Steven Wallwork, brings an Application for Judicial Review of two Human Rights Tribunal of Ontario (“HRTO”) decisions. The first is dated September 20, 2019 (the “Decision”). The second is dated July 28, 2020, denying a request for a reconsideration (the “Reconsideration Decision”).
2Before the HRTO, the issue was whether the Respondent, Toyota Manufacturing Canada Inc. (“Toyota”), discriminated against the Applicant by treating absences due to work-related injuries differently than absences due to non work-related injuries. In the Decision, the HRTO did not find a breach of Toyota’s obligations under the provisions of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). In the request for a reconsideration, the issue was whether the HRTO erred by not applying the prima facie test for discrimination.
3On this Application for Judicial Review, the Applicant focuses on an employer’s duty to accommodate, submitting that the HRTO erred in its application of the applicable legal principles and came to an unreasonable conclusion. However, by an interim HRTO order dated May 14, 2018, which is not challenged on this Application, the HRTO did not allow the Applicant to pursue what was then a new allegation regarding accommodation.
4For the reasons that follow, the Application is dismissed.
Background
5Mr. Wallwork is an employee of Toyota and works at an automotive assembly plant as a Production Team Member. At the relevant time, his duties included placing tire chocks behind the wheels of motor vehicles on rail cars. In performing these duties, Mr. Wallwork would kick the chocks with his foot in order to secure them into place.
6On April 3 and 4, 2017, Mr. Wallwork called in sick. On April 5, 2017, he brought a doctor’s note from a walk-in clinic dated April 4, 2017 indicating as follows: “To whom it may concern: This is to certify that: Steven Wallwork states that he was unable to work for medical reasons” noting foot pain. The Applicant did not, at this point, believe that his foot pain was a work-related injury.
7On April 27, 28 and May 1, 2017, Mr. Wallwork called in sick. He provided Toyota with a second medical note dated May 2, 2017 from a different walk-in clinic indicating: “TO WHOM IT MAY CONCERN: This note is to inform you that the patient is unable to attend work/school from April 7, 2017 to May 2, 2017 Due to injury.” The physician who filled out the medical note of May 2, 2017 also provided Mr. Wallwork with a form recommending active rehabilitation/exercise and physiotherapy for a diagnosis of plantar fasciitis.
8As per the Nurse’s Case Progress Notes of Toyota’s medical services, on May 2, 2017, Mr. Wallwork reported to her that he missed work from April 27 to May 2, 2017 because “he has been having issues with his right foot and has been informed it is plantar fasciitis, [he] is not sure if this is work related and just wants to proceed as non occ [not work-related] injury at this time.”
9Toyota has various workplace policies including an Attendance Policy and related guidelines that allow employees to take seven days of emergency leave of absence (“ELOA”) for illness, which was in accordance with the Employment Standards Act. An ELOA is different from a Plant Accident day. A Plant Accident day is a day an employee misses work due to a work-related injury.
10Under the Attendance Policy, Mr. Wallwork was notified that he had used the maximum seven days of ELOA absences permissible.
11On May 3, 2017, Mr. Wallwork saw his doctor, who told him that she believed his injury was work related. Mr. Wallwork then filed a claim with Workplace Safety and Insurance Board (“WSIB”).
12Following Mr. Wallwork’s WSIB claim, Toyota changed the notation respecting his absences of April 3, 4, 27, 28 and May 1, 2017 from ELOA to Plant Accident.
13On June 12, 2017, the WSIB issued a decision finding that Mr. Wallwork’s injury to his right foot was work-related and granted him health care benefits. However, the WSIB also concluded, “I am unable to allow for LOE [loss of earnings benefits] for April 03, 2017 – April 05, 2017 and April 27, 2017 – May 01, 2017 as there is insufficient objective medical on file to support that you were unable to work at these times due to your injury.” Mr. Wallwork could file an objection to the WSIB decision, and he did not do so.
14After the WSIB’s decision, Toyota changed the notation for Mr. Wallwork’s absences in April and May 2017 from Plant Accident back to ELOA. Since Mr. Wallwork had used nine days of ELOA, his supervisor also took the next step in the ELOA policy and had a “Documented Discussion” with him on June 14, 2017. Mr. Wallwork was advised that any further absences required more medical documentation, or he could be placed on probation for a period of six months and would not be paid for the days he missed due to his injury.
The HRTO’s Decisions
15Mr. Wallwork represented himself in the proceedings before the HRTO. The primary issue Mr. Wallwork raised in his application to the HRTO was that Toyota treated work related injuries differently from non work-related injuries.
16On the first day of the hearing, Mr. Wallwork raised an additional allegation regarding a discussion he had on April 5, 2017 with Toyota’s medical services respecting accommodation. In an Interim Decision dated May 14, 2018, the HRTO found that “the specific allegation respecting the discussion around accommodation was not included in the Application…The applicant only asked that the evidence be permitted as context for the allegations raised in the Application.” After hearing submissions from the parties, the HRTO made the following ruling:
I will allow the applicant to present evidence with respect to the discussion he had respecting accommodation with medical services. The evidence, however, is being allowed only in the context of whether the respondent’s decision to change the classification of the five days missed from “Paid Absence” to “Sick Unpaid” in June 2017 was discriminatory, and on the understanding that the applicant is not intending to open up a separate issue of being provided accommodated work following the injury [emphasis added].
17At the hearing, the HRTO heard evidence from Mr. Wallwork, his supervisor, Toyota’s medical services Nurse and a human resources specialist. There was little conflict in the evidence except for whether Mr. Wallwork discussed accommodation with Toyota’s nurse on April 5, 2017.
18The HRTO released its Decision on September 20, 2019. The HRTO dismissed Mr. Wallwork’s claim. In doing so, the HRTO determined that whether or not the claim that employees with workplace injuries are treated differently from employees with non-workplace injuries is irrelevant because that distinction did not apply in Mr. Wallwork’s case. After the WSIB released its decision, there was no dispute that Mr. Wallwork suffered a workplace injury; the only issue was how the ELOA policy should be applied given the WSIB’s finding that Mr. Wallwork’s work-related injury did not prevent him from working.
19The HRTO found the Documented Discussion between Mr. Wallwork and his supervisor was the first step in the disciplinary process and after this discussion, Mr. Wallwork was subject to “heightened scrutiny for taking additional sick days.”
20The HRTO did not accept Mr. Wallwork’s claim that Toyota treated WSIB related absences differently that non WSIB absences. The only difference related to the coding used to record the absences.
21The HRTO did not fault Toyota for changing the coding of Mr. Wallwork’s absences from Plant Accident back to ELOA after it received the WSIB’s decision. In addition, the HRTO disagreed with Mr. Wallwork’s argument that Toyota’s policy to automatically start the discipline process after seven ELOA days was rigid and did not take into account his disability as a mitigating factor. The HRTO also disagreed with Mr. Wallwork’s submission that Toyota punished him for having a work-related injury. The HRTO noted an employer can adopt a standard practice regarding absenteeism and relied on para. 62 of McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital general de Montréal), 2007 SCC 7, [2007] 1 S.C.R. 151.
22The HRTO highlighted the fact Toyota did not take disciplinary action against Mr. Wallwork after he exceeded his seven ELOA days pending the decision of the WSIB. The HRTO found that Toyota was justified in applying its policy and having the Documented Discussion with Mr. Wallwork after the WSIB rendered its decision.
23Mr. Wallwork asked for a reconsideration of the Decision on the basis that the HRTO had erred by failing to apply the prima facie test. In its Reconsideration Decision dated July 28, 2020, the HRTO dismissed this argument and the request for reconsideration. In doing so, the HRTO held that it does not have to explicitly apply the prima facie test in all cases. In this case, while there was prima facie discrimination based on disability, the HRTO was satisfied that Toyota established that its conduct was not discriminatory.
24The HRTO found that Mr. Wallwork had a disability as defined in s. 10(1) of the Code, namely “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”. Mr. Wallwork suffered an adverse impact when he was subjected to the Documented Discussion with his supervisor. The HRTO noted Toyota called evidence such as its policies and the steps it took in this case. Based on that evidence, the HRTO found that “the respondent’s approach to the applicant’s absences was justified and did not amount to discrimination under the Code”. The HRTO also rejected an argument by Mr. Wallwork that Toyota had an independent obligation to satisfy itself that he was able to work, finding that:
[T]he applicant’s argument appears to assume that the respondent was not entitled to take into consideration the ruling from the WSIB, and that the respondent had an independent obligation under the Code to conduct its own assessment of whether the applicant’s absences were medically justified. Though it may in some situations be advisable for an employer to do so, this is not a requirement under the Code.
25Ultimately, the HRTO found Mr. Wallwork did not establish any basis to reconsider its Decision.
Application for Judicial Review
26Mr. Wallwork asks for an Order setting aside the HRTO’s Decision and Reconsideration Decision and an Order remitting this matter back before a different adjudicator at the HRTO.
27It is important to note there was only one issue before the HRTO at the original hearing: did Toyota treat absences due to work-related injuries differently than it treats absences due to non work-related injuries? There was again only one issue before the HRTO on reconsideration: did the HRTO err by not applying the prima facie test, and in failing to determine that Mr. Wallwork had established a prima facie case of discrimination?
28This Application raises the following issues:
What is the standard of review?
Were the HRTO’s decisions reasonable?
Analysis
Issue No. 1: What is the standard of review?
29At the hearing before us, Mr. Wallwork and Toyota agreed the standard of review was reasonableness.
30The HRTO maintained its position, as in the past, that the standard of review is patent unreasonableness as mandated by section 45.8 of the Code. This Court has dismissed this position in at least two decisions since the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1: see Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632, 446 D.L.R. (4th) 585 (Div. Ct.), and Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, 82 Admin. L.R. (6th) 241) (Div. Ct.). I am not persuaded to take a different approach and adopt the prior reasons of this court. The standard of review is reasonableness.
Issue No. 2: Were the HRTO’s decisions unreasonable?
Positions of the Parties
31Mr. Wallwork takes the position the HRTO’s Reconsideration Decision reproduces the same errors made in the HRTO’s Decision. Consequently, his arguments regarding the errors committed by the HRTO relate to both decisions.
32Mr. Wallwork essentially argues that the HRTO’s decisions incorrectly applied the legal test for determining if Toyota’s application of its Policy to Mr. Wallwork was discriminatory. In particular, he argues that the HRTO failed to consider Toyota’s duty to accommodate and improperly relied on minority reasons in the McGill University Health Centre decision to find that Toyota did not discriminate in its application of its policy.
33Toyota submits that the HRTO’s Decision and Reconsideration Decision are reasonable. They were carefully reasoned and reasonably dealt with the facts and the principles that were before it. Based on the information the HRTO was provided, the HRTO reasonably concluded Toyota’s application of its policies to Mr. Wallwork was not discriminatory. The duty to accommodate was not at issue, as set out in the Interim Decision. Consequently, Toyota seeks the dismissal of Mr. Wallwork’s judicial review of the HRTO’s decision.
34The HRTO takes no position on the substance of the Application for judicial review.
Analysis
35In this matter, Mr. Wallwork has the burden of demonstrating that the HRTO’s decisions were unreasonable. In Vavilov, the Supreme Court of Canada provided the following guidance for determining whether a decision is reasonable:
- A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection;
- The reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision;
- To be reasonable, a decision must be based on reasoning that is both rational and logical;
- A decision will be unreasonable if the reasons, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis; and
- A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point (at paras. 91, 94, 100-104).
36Mr. Wallwork argues that the HRTO’s decision is unreasonable because it failed to apply the proper legal framework for deciding whether Toyota discriminated against him, and, in particular, the HRTO failed to consider Toyota’s duty to accommodate him.
37As set out in Longueépée v. University of Waterloo, 2020 ONCA 830, at para. 66, once the employee has demonstrated that an employer’s requirement is prima facie discriminatory, the employer has the burden of proving that:
a. the standard was adopted for a purpose or goal that is rationally connected to the function being performed; b. that it adopted the standard in good faith in the belief that it was necessary for the fulfilment of that purpose or goal; and c. that the standard was reasonably necessary to accomplish its purpose, in the sense that the employer cannot accommodate the person without undue hardship.
38In this case, Mr. Wallwork argues that the first two issues are not at play, but that Toyota had a duty to accommodate Mr. Wallwork.
39The starting point is to consider what issue was before the HRTO. At the first stage at the HRTO, Mr. Wallwork raised the issue of whether Toyota treats absences due to work-related injuries differently than it treats absences due to non work-related injuries. At the reconsideration stage, Mr. Wallwork argued that the HRTO erred by not applying the prima facie test for discrimination. Mr. Wallwork’s Application did not include the issue of accommodating him in the workplace. In fact, in its Interim Decision, the HRTO noted that Mr. Wallwork was “not intending to open up a separate issue of being provided accommodated work following the injury.”
40It is not the role of this Court to decide issues that were not raised before the HRTO. In this case, the HRTO ruled in its Interim Decision that Mr. Wallwork could not raise the issue of accommodation and Mr. Wallwork did not challenge that decision.
41While Mr. Wallwork’s Factum on the Application for judicial review raises Toyota’s substantive and procedural duty to accommodate his disability, at the hearing his counsel focused on the procedural duty to accommodate, arguing that, rather than relying on the WSIB’s conclusion, Toyota had a procedural duty to accommodate Mr. Wallwork by conducting an independent assessment of his disability to determine whether his injury prevented him from working. In making this argument, Mr. Wallwork relies on decisions such as ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 649 (Div. Ct.), at para. 107, where this Court held that the “procedural duty to accommodate involves obtaining all relevant information about an employee’s disability, at least where it is readily available…”
42In its Reconsideration Decision, the HRTO did address this argument, although not explicitly in the context of a discussion of the duty to accommodate. At paragraph 14, the HRTO stated that Mr. Wallwork “appears to assume that the respondent was not entitled to take into consideration the ruling from the WSIB, and that the respondent had an independent obligation under the Code to conduct its own assessment of whether the applicant’s absences were medically justified. Though it may in some situations be advisable for an employer to do so, this is not a requirement under the Code”. In my view this conclusion was reasonable. While there may be circumstances where a procedural duty to accommodate under the Code requires an independent assessment of an employee’s disability, it was reasonable for the HRTO to find that no such duty arose in this case based the record before the HRTO of the information available to Toyota.
43The information provided by Mr. Wallwork about his inability to work were forms from walk-in clinics setting out Mr. Wallwork’s self-reported inability to work. In contrast, the WSIB had conducted a hearing, including evidence from witnesses, on the issue of Mr. Wallwork’s ability to work. I agree with Toyota that relevant consideration was given to the fact Mr. Wallwork originally requested that Toyota treat his injury as not being work related. He did not produce any further objective medical documentation other than what was already provided, i.e., the two medical notes and he did not object to the WSIB’s decision. I find the HRTO’s conclusion that Toyota had no obligation to make a further assessment of Mr. Wallwork’s ability to work was reasonable in the circumstances of this case.
44Mr. Wallwork urges this Court to find the HRTO drew and applied incorrect legal principles from the minority ruling in McGill University Health Centre, at para 62. The HRTO noted this case stands for the proposition that an employer can adopt a standard practice regarding absenteeism. I understand the HRTO noted this principle from the concurring but minority reasons in the McGill University Health Centre case. As per Vavilov, the HRTO’s citing a minority position from a decision and not citing further jurisprudence is not fatal to its decisions.
45The HRTO’s citation of a decision or its lack of citing other jurisprudence is peripheral to the merits of its Decision. What was important was that the HRTO noted the principles to follow and it did so. In labour relations matters, it is settled law that employers can have absenteeism policies to ensure the regular attendance of its employees. In addition, it is trite law that the employer has an obligation not to discriminate against its employees.
46Ultimately, the role of this Court is to assess the reasonableness of the decisions below based on the arguments and record before the HRTO. I find in this case, the HRTO reviewed the facts and found Toyota appropriately relied on its policies. In its Decision, the HRTO found that the Documented Discussion was the first step in the disciplinary process and was thus subjected to more scrutiny in taking additional sick days. The HRTO found Toyota did not schedule a Documented Discussion with Mr. Wallwork despite the fact he had already incurred seven ELOA days. Toyota waited to receive the WSIB’s decision before it made its decision with regards to Mr. Wallwork’s absences. When the WSIB determined Mr. Wallwork’s injury was work-related but that days off were not justified based on this injury, he fell into a category over the seven maximum days permissible under Toyota’s Attendance Policy and this led to the Documented Discussion.
47Based on the evidence provided to the HRTO, it was reasonable for it to conclude Toyota’s application of its policies to Mr. Wallwork were not discriminatory. The HRTO’s Decision and Reconsideration Decision were supported by the facts and the evidence provided. The HRTO drafted clear and logical reasons for its decisions.
Conclusion
48For the reasons noted above, I find that the HRTO’s Decision and Reconsideration Decision were reasonable. This Application is dismissed
49The parties agreed to amount for costs subject to outcome. Consequently, Mr. Wallwork shall pay Toyota’s costs in the amount of $5,000.
O’Bonsawin J.
I agree ________________________ Matheson J.
I agree ________________________ Favreau J.
Released: October 13, 2021
Wallwork v. Toyota Motor Manufacturing Canada Inc., 2021 ONSC 6785
DIVISIONAL COURT FILE NO.: DC-394-20
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Favreau, O’Bonsawin JJ.
BETWEEN:
Steven Wallwork
Applicant
– and –
Toyota Motor Manufacturing Canada Inc.
Respondent
REASONS FOR JUDGMENT
O’BONSAWIN J.
Released: October 13, 2021