GSB#1470/91, 3080/92

UNION#91E069, 93A167

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Hyland)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Correctional Services)

Employer

BEFORE Ken Petryshen Vice-Chair

FOR THE David Wright, Counsel

GRIEVOR Ryder Wright Blair & Doyle

Barristers and Solicitors

FOR THE John Smith, Counsel

EMPLOYER Legal Services Branch

Management Board Secretariat

HEARING December 14, 2000; January 16, 17 and 18, April 25 and 26, May 10, 11, 29 and 30, June 12, 13, 14, October 17, 18, 23, 24 and November 20, 2001.

DECISION

There are a number of grievances before me filed by Mr. Blair Hyland, a Correctional Officer 2 (“CO2”). In general, one group of grievances claims that the Employer has failed to properly accommodate Mr. Hyland and another group of grievances raises harassment and discrimination issues. There was no challenge to my jurisdiction to hear and determine these grievances.

Mr. Hyland began working for the Employer at the Toronto Jail in September 1986 and, following success in a job competition, he was transferred on February 1, 1995, to the Toronto East Detention Centre (“Toronto East”). Mr. Hyland filed the grievances during the course of his employment at both institutions. For convenience, the parties agreed to first deal with the grievances filed by Mr. Hyland at the Toronto East which claim that the Employer has failed to properly accommodate him at that institution. Specifically, these grievances claim that the Employer contravened Article 3.1 of the Collective Agreement which provides in part that “there shall be no discrimination practiced by reason of … handicap, as defined in Section 10(1) of the Ontario Human Rights Code (“OHRC”)” and Article 9.1 of the Collective Agreement which provides in part that “the Employer shall continue to make reasonable provision for the safety and health of its employees during the hours of their employment.” The parties anticipated that a resolution of these grievances might assist in resolving the other outstanding grievances.

The Union’s position with respect to these grievances is simply that the Employer has failed to properly accommodate Mr. Hyland at the Toronto East. Mr. Hyland has an asthmatic condition which the Union asserts is a disability that constitutes a handicap under the OHRC. Because cigarette smoke is a sensitizing agent or irritant which exacerbates Mr. Hyland’s asthmatic condition with varying symptoms, the Union submits that the Employer has to accommodate Mr. Hyland with a smoke-free workplace. Mr. Hyland was exposed to cigarette smoke at work on many occasions, with many of the exposures creating an asthmatic response requiring absences from work for various periods of time. Although the Employer recognized an obligation to accommodate Mr. Hyland, the Union maintains that it did not do so at the Toronto East, having regard to the nature of his assignments and the failure of the Employer to enforce the non-smoking policy. The Union requests a declaration that the Employer has failed to accommodate Mr. Hyland at the Toronto East, a direction that the Employer engage in a process which will result in an appropriate accommodation and compensation for Mr. Hyland’s losses arising from the Employer’s failure to accommodate him. Having regard to the failure of the Employer to accommodate Mr. Hyland during the many years he has been employed at the Toronto East, the Union argues that future efforts at accommodation should be focused on positions outside of that institution and that Mr. Hyland should be off work without loss of pay while the Employer investigates other avenues of accommodation. The Union also indicated that it intends to pursue a general damage claim for mental distress once all the grievances have been heard.

The Employer takes the position that Mr. Hyland was properly accommodated at the Toronto East, having regard to the non-smoking policy at that institution and the nature of Mr. Hyland’s handicap. The Employer submits that these grievances should be dismissed. While acknowledging that it is unlikely that the Toronto East will be a completely smoke free workplace in practice, the Employer argued that if I found Mr. Hyland had not been properly accommodated at the Toronto East, it would be inappropriate to conclude that Mr. Highland could never be accommodated at that institution.

The litigation of this matter proved to be a lengthy process. Efforts to resolve the grievances through mediation, at the beginning of the case and during the course of the hearing, were unsuccessful. The Union began calling its evidence on December 14, 2000, and the eighteen day hearing concluded with final argument on November 20, 2001. The Union called four witnesses, with Mr. Hyland’s testimony alone requiring nine hearing days. The Employer called thirteen witnesses, including two superintendents, deputy superintendents and operations managers (“OM16’s”), to testify. There were 28 exhibits filed, with many single exhibits including numerous documents such as occurrence reports, incident reports and workers’ compensation reports. During his testimony, Mr. Hyland referred to notes he had made over the years. As one would expect, many witnesses had difficulty precisely recalling events which occurred many years earlier. As a general comment, I note that I did not find that any of the witnesses attempted to mislead me. In the relatively few instances where there were conflicts in the testimony, I resolved them on the basis of what was more reliable and probable, having regard to the totality of the evidence. Given the volume of the oral and documentary evidence, I have attempted to refer to the evidence and to address the issues as concisely as possible.

Mr. Hyland arrived at the Toronto East in 1995, having developed asthma while employed at the Toronto Jail, where he was exposed to pervasive cigarette smoke. Repeated exposures aggravated his asthmatic condition and by 1993-1994 Mr. Hyland was required to take daily medication due to an increased sensitivity to cigarette smoke. Mr. Hyland complained to management at the Toronto Jail and the Workers’ Compensation Board about the ongoing situation. Because efforts by the Employer to accommodate Mr. Hyland did not result in a smoke-free environment, Mr. Hyland inquired about moving to another institution, including the Sault Ste. Marie Jail, a facility which he understood was designated as smoke-free. In 1994, Mr. Hyland accepted a secondment for approximately one year at the Toronto East where his breathing environment improved considerably. Although exposure to cigarette smoke was not entirely eliminated, Mr. Hyland’s experience at the Toronto East during the secondment convinced him that the Toronto East would provide him with a better work environment, given his disability.

Exposure to cigarette smoke at the Toronto Jail sometimes resulted in Mr. Hyland missing time from work which lasted anywhere from one to three days. As a result of the Appeals Resolution Officer Decision dated February 11, 1999, Mr. Hyland was compensated for the lost time at the Toronto Jail for absences due to exposure to cigarette smoke. In the decision, the Appeals Officer found that the evidence did not point to a workplace developed sensitization to smoke but rather that Mr. Hyland “suffers from a temporary aggravation of a pre-existing condition which begins to clear up after he is removed from exposure”. The Appeals Officer also concluded that “there is insufficient evidence to confirm the worker has been indirectly affected” at the Toronto East and denied benefits from February 1, 1995. I understand that this latter aspect of the Appeals Officer’s decision is being appealed further.

When Mr. Hyland transferred to the Toronto East on February 1, 1995, the smoking policy at the time provided that inmates were only permitted to smoke in inmate living areas, in the kitchen and in the laundry. Inmates working in the kitchen had the use of an enclosed room for smoking and inmates working in the laundry could smoke near the back wall. Inmates were not permitted to smoke in other areas within the institution. Staff was permitted to smoke in those areas where inmates were permitted to smoke as long as they were working with inmates. No one was permitted to smoke within twenty feet of the main entrance to the institution and there was a prohibition against smoking in Ministry vehicles. Inmates who failed to comply with the policy were subject to misconducts. Visitors who contravened the policy could have their visiting privileges affected. Staff who failed to comply with the policy was subject to disciplinary sanctions. For convenience, the smoking policy which applied to the period from February 1995 until October 23, 2000, will be referred to as “the old policy”. The policy with respect to smoking changed effective October 23, 2000, when institutions within the Central Region, including the Toronto East, officially became smoke-free institutions. For convenience, I will refer to the policy relating to smoking in place after October 23, 2000, as the “new policy”. Before detailing the new policy, I will deal with Mr. Hyland’s experience at the Toronto East between February 1, 1995 and October 23, 2000, as well as other relevant events of this period.

By permitting inmates and staff to smoke in the three well defined areas within the institution referred to above, the old policy was primarily designed to serve the interests of inmates who were smokers. Approximately 80% of regular inmates were smokers and almost 100% of the inmates in the psychiatric unit were smokers. It was estimated that just over 50% of the staff at the Toronto East were smokers. Cigarettes from the canteen were distributed to inmates on Wednesdays, which became commonly referred to as “Weed Wednesday”. On that day and for some time after Wednesday, the cigarette smoke in the inmate living areas was so pervasive that it was visible a couple of inches next to the ceiling. There was a high probability that anyone entering or close to the inmate living areas would be exposed to cigarette smoke. This situation changed only when the allocation of cigarettes was gradually reduced prior to October 23, 2000, and more significantly when the new policy became effective as of that date.

Upon arriving at the Toronto East in February 1995, Mr. Hyland immediately advised management of his accommodation needs. He provided management with a note from Dr. R. Sekhon, his family doctor at the time, which recommended that Mr. Hyland remain on his current schedule and that he work in a smoke-free environment. Reference is made to this medical note in an Employer’s Continuity Report dated February 23, 1995. . Following a recommendation from his doctor, Mr. Hyland was scheduled to work steady days, Monday to Friday. Mr. C. DeGrandis, Superintendent at the Toronto East until November 14, 2000, Mr. J. DeFranco, Deputy Superintendent, who was known to Mr. Hyland from the Toronto Jail, and Ms. R. Buhagiar, an OM16 for staff services with responsibility for accommodation issues, recognized that Mr. Hyland required a smoke-free environment. Ms. Buhagiar and others made efforts to assign Mr. Hyland to work locations where he would not be exposed to cigarette smoke. But beginning as early as mid-February 1995, Mr. Hyland experienced exposures to cigarette smoke and he continued to be so exposed on a fairly regular basis at the Toronto East as a result of inmate smoking, but mainly because staff, visitors and occasionally managers were smoking in non-smoking areas. With these exposures, Mr. Hyland had symptoms which included itchy/runny eyes and nose, wheezing, cough, shortness of breath and chest tightness. Although not every exposure led to time lost from work, those exposures that did resulted in him missing anywhere from one to three days. His experience in this regard at the Toronto East is consistent with his experience at the Toronto Jail for which he received payment for his lost time through the workers’ compensation system.

In response to the ongoing exposures to cigarette smoke, Mr. Hyland constantly complained to management about contraventions of the smoking policy and he filed incident reports and grievances. Workers’ compensation claims were also filed on his behalf. He also advised management when he discovered evidence of smoking in non-smoking areas. Mr. Hyland requested different assignments within the Toronto East if he believed they would better suit his disability and he often requested a transfer to a non-smoking institution.

During his first eleven months at the Toronto East, Mr. Hyland was assigned to a variety of posts, but was most often assigned to the 1B area. This is a one-person post on the main floor. The duties of this assignment include booking in visitors and escorting inmates within the institution. Escorting inmates often required him to go to the inmate living units. When he went to these units he would often be exposed to cigarette smoke. When he raised the issue with Ms. Buhagiar, and reiterated his need for a smoke-free environment, she told him that briefly passing through the inmate living units should not be a problem for him. The 1B duties assigned to Mr. Hyland were only modified when a worker’s compensation caseworker attended at the institution and suggested that it was not appropriate for Mr. Hyland to go to or near the inmate living areas where smoking was permitted. As a result of the caseworker’s suggestion, Mr. Hyland continued to work the 1B post, but without the requirement to go to the inmate living units. Even so, Mr. Hyland continued to be exposed to cigarette smoke because staff smoked in areas close to his 1B post, areas such as the locker room, the visitors’ area and admitting and discharge (“A&D”). In early October 1995, Ms. Buhagiar ordered Mr. Hyland, over his objections, to go to 3A to get an inmate, and then ordered him to take a meal to 2A, both areas being inmate living areas. Mr. Hyland cannot recall why he was ordered to go to the smoking areas on these occasions.

On September 13, 1995, Mr. Hyland initiated a work refusal under the Occupational Health and Safety Act. Mr. Hyland initiated this refusal when he reported to 1B at the start of his shift and was exposed to cigarette smoke. The Ministry of Labour inspector, among other things, found that the situation was not likely to endanger Mr. Hyland, apparently because he did not produce any documentary evidence at the time. The inspector did recommend that “the employer may wish to consider transferring this worker to a completely non-smoking facility”.

From the time he started at the Toronto East until the end of 1995, Mr. Hyland had twenty-two exposures to cigarette smoke and missed approximately 25% of the workdays available. Mr. Hyland was off work beginning in 1996 until May 1997 for reasons unrelated to his asthma. Upon his return to the Toronto East after his lengthy absence, Mr. Hyland continued to experience regular exposures to cigarette smoke. Between July 1997 and November 1998, Mr. Hyland did not make any WSIB claims with the result that the documentary record for this period is not as detailed. Mr. Hyland stopped making claims, not because there were no exposures, but because he became very frustrated with the ongoing situation. He began to make further claims when he was buoyed by the setting of a date for his compensation appeal. In 1999, Mr. Hyland had nineteen exposures in twelve months. In 2000, Mr. Hyland was off work from August until near the end of December for reasons that were related to his asthmatic condition. In the seven months preceding the commencement of this absence, Mr. Hyland had twenty-four exposures to cigarette smoke.

Many of Mr. Hyland’s exposures occurred in A&D. Other areas where exposures occurred included the central control room, the visits area, the kitchen, the laundry, the staff lounge, the locker room, the gym, the washroom and the outside patrol huts. Mr. Hyland was also exposed to cigarette smoke while attending the A&D area of other institutions and while attending training sessions at the Oshawa Armories and Exhibition Place in Toronto. Apart from being exposed to cigarette smoke, the evidence established that there was evidence of smoking, in the form of cigarette butts and ashes, in many areas of the institution designated as non-smoking areas. Only staff could access most of these areas.

After returning in May 1997, Mr. Hyland was primarily assigned to outside patrol, escort and driver duties. When assigned escort duties, Mr. Hyland was required to go to A&D where he often was exposed to cigarette smoke. Although A&D was designated as a non-smoking location, the practice was that inmates and staff smoked in A&D. There was an effort to bring this practice to an end on June 30, 1999, when Ms. D. Scrivano, Deputy Superintendent-Administration, distributed a memo to all staff, the first paragraph of which reads as follows:

This is to advise you that effective immediately, the no smoking policy is to be readily enforced in the Admissions and Discharge area. This area was originally designated as a non-smoking area, however, it would appear that over time, this has lapsed.

Subsequent to Ms. Scrivano’s memo, Mr. Hyland still was exposed to cigarette smoke on occasion when attending A&D.

Within a few weeks of arriving at the Toronto East in 1995, Mr. Hyland met with Mr. DeGrandis in the superintendent’s office and complained about management’s failure to enforce the smoking policy. At that time, Mr. Hyland requested a secondment to the office at Toronto East. This office area is separated from the main part of the institution. Mr. DeGrandis told Mr. Hyland that there was nothing available at the time and that he came to the institution as a CO2, but that if something came up in the office he would keep Mr. Hyland in mind. During cross-examination, Ms. Buhagiar agreed that CO2’s were assigned to work in the front office on occasion and that she did not know why this work location was not considered for Mr. Hyland.

During 1995, there were discussions between Mr. Hyland and management about moving him to another institution. The Ministry of Labour inspector’s recommendation that the Employer consider transferring Mr. Hyland to a completely non-smoking facility may have initiated these discussions. Mr. Hyland testified about discussions he had with Mr. DeFranco about a transfer to the Cobourg Jail and the Brookside Youth Detention facility (“Brookside”). Mr. Hyland had the opportunity to tour these facilities and thought that a transfer to Brookside was at least worth exploring. From what he had heard from others and from his own observations, Mr. Hyland believed that smoking occurred at the Cobourg Jail and that a transfer to this institution would not resolve his difficulties. Mr. Hyland testified that Mr. DeFranco approached him after his work refusal in September 1995 and told him that he would not be transferred and that the matter was “over his head”. Mr. DeFranco did not testify.

Mr. DeGrandis testified about an offer made to Mr. Hyland to transfer to the Whitby Jail. Mr. DeGrandis did not participate directly in the discussions and could not recall when the offer to Mr. Hyland would have been made. Therefore, it was not clear whether the discussions on a Whitby Jail transfer occurred at the same time Mr. DeFranco discussed other transfers with Mr. Hyland or whether the discussions occurred at a later time. Mr. DeGrandis testified that he had arranged for the transfer of another CO2 to the Whitby Jail who was in a similar situation to Mr. Hyland and that the transfer appeared to work well. Since the Whitby Jail was scheduled to close, Mr. Hyland would keep his job at the Toronto East as his home position. Mr. Hyland rejected the offer for a number of reasons. He understood that the smoking situation at Whitby Jail was not unlike the smoking situation at Toronto East. He also saw this as a temporary solution and was concerned about the extra commuting distance. Mr. Hyland also rejected the offer because it was conditional upon his withdrawing his grievances, which he was not prepared to do. In his continuing complaints to management about the smoking situation, Mr. Hyland often asked for a transfer from the Toronto East. He applied for transfers to institutions which he hoped would provide him with a better environment, but without success. Mr. Hyland believed that he last applied for a transfer to Brookside in 1998.

One of Mr. Hyland’s main concerns was that management did not make a concerted effort to enforce the non-smoking policy. Mr. Hyland is convinced that one of the main reasons that he had so many exposures since 1995 in non-smoking areas of the institution and why there is always so much evidence of smoking, in the form of cigarette butts and ashes, is because management did not enforce the policy. Many witnesses were asked questions relating to the enforcement of the old and new policy.

As previously noted, the old policy provided that persons who contravened the policy were subject to disciplinary sanctions. Mr. DeGrandis and other managers testified that they were prepared to apply a progressive disciplinary approach to employees who contravened the smoking policy. Mr. DeGrandis testified that he would first give an employee a “word to the wise” and that he would “notch it up” for subsequent offenses. Mr. DeGrandis conceded that from 1995, until he left the institution in 2000, he was unaware of any employee being disciplined for contravening the smoking policy. The testimony of other managers is to the same effect. Although there was evidence of a number of repeat offenders, management simply counseled employees and did not discipline them. Issues relating to the smoking policy would be addressed at parade, by means of memos to staff and extra signage both within and outside of the institution. An example of a memo issued to staff is one dated April 6, 1998, from Mr. DeGrandis when he discovered cigarette butts in the electronic games room, a room adjacent to the male locker room on 1B. In the memo, Mr. DeGrandis advises staff that if he received one more report that this room was used by staff for smoking, the machines would be removed. The memo was to be posted on all boards and read at parade for five days. Although there was subsequent evidence of smoking in this room, no action was taken to remove the electronic games.

Mr. Hyland testified that Mr. DeGrandis told him that he had no intention of disciplining staff for violating the smoking policy. Mr. Keilty, who at the relevant time was the local union president, testified that in approximately mid 1997, Mr. DeGrandis told him that he, meaning Keilty, would be too busy if the Employer enforced the smoking policy and that no staff member would be left in the building if he enforced the policy verbatim. Mr. Keilty understood these comments to mean that the Employer did not intend to enforce the smoking policy. Janet Miller, an acting OM16 for a period of time, said “it looks good on paper” when directed to the reference to discipline in the old smoking policy. I understood this comment to mean that employees who contravened the old policy were not disciplined as a matter of practice. Mr. M. McKinnon, also an acting OM16 for a period of time, testified at some length about the problems of staff not complying with the smoking policy and his frustration with senior management because of their unwillingness to seriously deal with the problem. Mr. R. Kahn has been an OM16 for at least the last fifteen years. When referred to the old written policy, Mr. Kahn replied that the practice was different than what was on paper. He testified that people smoked anywhere they wanted, that there were no restrictions in practice and that, as far as he knew, there were no issues with it.

At some point in time, probably in the mid-1990s, the Employer installed an electric sensor system to assist it in detecting staff who contravened the smoking policy. Sensors were located in various areas of the institution with the terminus located in the shift IC office. Mr. Hyland was told in a grievance meeting in July 1997 that the electronic sensor had been dismantled because it was going off too frequently and he was later told that it would be reconnected. Mr. Keilty testified that he also understood the electronic sensor was disconnected because it was going off too frequently. Mr. DeGrandis testified that the electric sensor system was operative at all times, as far as he knew, except when it had been tampered with or compromised in some way. Mr. DeGrandis did not rate the use of the system as a success and he could not recall if any staff member was caught smoking as a result of monitoring by the system. Mr. Valaitis, a Deputy Superintendent, testified that he was told that the system was unreliable because it registered false readings and that this was the reason that the system was not in use. He also testified that in the spring of 2001, he asked the maintenance manager to see if there was technology available to help enforce the policy, particularly in the washrooms, but that he did not hear back from the maintenance manager prior to leaving the Toronto East.

Mr. Hyland testified that when he was asked to provide the names of persons who contravened the smoking policy he advised management that he would comply with the request if he was ordered to do so, but was never given such an order. Mr. Hyland often expressed the view that it was management’s responsibility to enforce its smoking policy. When he filled out occurrence and other reports, Mr. Hyland would refer to employees who were in the area, but felt that management made minimal effort to investigate. Mr. DeGrandis and Ms. Buhagiar testified that Mr. Hyland would not provide them with names and Ms. Buhagiar did not believe that Mr. Hyland had requested her to order him to do so. Mr. Hyland’s reluctance to provide names of staff members who contravened the policy was probably influenced by the code within institutions that a CO does not “rat” on another CO. Failure to abide by the code may result in undesirable consequences.

In approximately June 2000, the issue of Mr. Hyland’s accommodation was again revisited at a meeting at Mr. Hyland’s request. The events of the meeting are reflected in a memo to Mr. Hyland from Mr. E. Reid, Staff Services Manager, dated June 28, 2000. Mr. Hyland complained again about the effect on his health of exposures to cigarette smoke, particularly in A&D and the outside huts. Mr. Reid notes in the memo that “Exposure to second hand smoke in the Admitting Department would only be casual exposure and you would be required to remove yourself from the area immediately.” Mr. Hyland noted in his evidence that it was not so easy to leave an area immediately. Mr. Reid offered Mr. Hyland accommodation in the areas of front desk, central control and 1B. Exposures still occurred and Mr. Hyland was absent from the workplace from approximately August 10, 2000, until December 27, 2000.

When the new policy became effective on October 23, 2000, staff was not permitted to smoke in the institution, on the property or while supervising inmates outside the institution. Although permitted to keep tobacco products in their vehicles, staff was advised that tobacco products were contraband within the institution. Inmates were no longer permitted to smoke, use smokeless tobacco, or to possess tobacco products in the institution, on Ministry property or while under Ministry supervision. Mr. DeGrandis played a significant role in the move to establishing smoke-free institutions in the Central Region. When his supervisor decided in 1998 to change the institutions in the Central Region to non-smoking facilities, Mr. DeGrandis expressed his opposition to the idea. Although he believed that staff could cope with the change, he was concerned about inmate reaction, based on his understanding of what had occurred at other institutions which went smoke-free. Mr. DeGrandis was put in charge of a committee with representation from the Union and management which was responsible for making the institutions in the Central Region smoke-free by the year 2000. The difficulties which Mr. DeGrandis anticipated did not occur and he attributed this to the way in which the institutions moved gradually to smoke-free status.

Given the timing of his testimony and the date he returned in December 2000 from his absence, Mr. Hyland’s testimony about his experience with the new policy was limited to approximately a four month period. He continued to experience exposures to cigarette smoke and he still encountered evidence of smoking, primarily cigarette butts and ashes, left by staff. Mr. Hyland had two exposures during the four-month period which resulted in 4.5 days of absence. Upon his return, he was again assigned duties which required him to go to the inmate living areas. However, given his exposures in these areas, Mr. Reid decided in February 2001 that Mr. Hyland should return to his original accommodation, one which excluded an obligation to go to the inmate living units.

There was a noticeable improvement under the new policy since “Weed Wednesday” was eliminated when inmates could no longer smoke. However, the new policy did not result in a completely smoke-free environment within the institution or on the property. As Mr. Valaitis noted, tobacco became a valuable commodity in the institution under the new policy and the smuggling of cigarettes by inmates was a constant problem. Almost daily reports of cigarette smoke in the inmate living areas resulted in searches for contraband tobacco products. Cigarette smoke and cigarettes were often detected in A&D. Under the new policy, there continued to be evidence of smoking, again in the form of cigarette butts and ashes, in areas where only staff would have access. This situation led Mr. D. Thomson, the Superintendent from November 14, 2000, to August 2001, to issue a memo to all staff on the subject of compliance with the new policy. In a memo dated January 12, 2001, Mr. Thomson notes that cigarette butts, ashes and ashtrays were found in control modules, desk drawers, desktops, washrooms and locker rooms, etc. Mr. Thomson advised staff that non-compliance with the new policy would be met with zero tolerance. Mr. Thomson continued to receive complaints about staff contravening the new policy after he issued the memo. After receiving a report of cigarette butts in A&D, Mr. Thomson issued another memo to staff dated June 28, 2001, in which he again indicated that some staff were not complying with the new policy. In this memo, he advised staff that violations of the new policy would be subject to progressive discipline. After the implementation of the new policy, visitors continued to smoke outside the front doors of the institution and although they would be asked to “butt out”, no visiting privileges were ever suspended.

Mr. Hyland continued to be unimpressed with the way in which the Employer enforced the non-smoking policy. Mr. George McDonald, a CO2 who was also being accommodated due to sensitivity to cigarette smoke, testified that the staff smoking practices remained basically the same under the new policy and that management did not take the policy seriously. Although agreeing that the smoking situation improved under the new policy, Mr. M. McKinnon testified that evidence of smoking could still be found on a daily basis. He also testified that he advised senior management, including Mr. Valaitis, when he witnessed staff, some more than once, smoking on a number of occasions. Mr. McKinnon felt that his efforts to address violations of the new policy were not supported by senior management.

Earlier in this decision I made reference to a medical note from Dr. Sekhon in which he essentially advised the Employer in 1995 that Mr. Hyland required a smoke-free environment. Rather than call physicians to testify, the parties agreed to submit medical reports from Dr. D. Wong and Dr. E. Lilker. The report from Dr. Wong was based on an assessment of Mr. Hyland on November 29, 2000, which was initiated by the Employer. Dr. Wong conducted a thorough investigation which included efforts to review Mr. Hyland’s medical history and records. In his report dated December 8, 2000, which was discussed with and signed by Mr. Hyland, Dr. Wong provided the following summary and recommendations at page 6:

Mr. Hyland is a 36-year old man with a twelve-year history of confirmed asthma. His symptoms are subjectively worse after exposure to second-hand smoke. His employer is questioning if he is able to continue in his position as a correctional officer.

1Without a doubt Mr. Hyland has asthma. He subjectively feels worse after exposure to second-hand cigarette smoke. In the records reviewed, there was no clear indication of the objective severity of his asthma when specifically challenged with second-hand smoke in the work environment. Such records may exist in Dr. Tarlo’s or Dr. Berger’s records, or perhaps in the records of the WSIB. The specific tests that would be helpful in determining the degree of severity would be spirometry, a metacholine challenge test, and arterial blood gases. A further addendum to this assessment will follow once the past records are obtained and reviewed.

2It is essential to determine if indeed Mr. Hyland has already had an approved WSIB claim for true occupational asthma (ie. asthma initiated due to a sensitizing agent in the workplace). An approved claim would indicate that Mr. Hyland has had a previous assessment from a WSIB-approved respirologist. True occupational asthma is a permanent condition, and the employee should not return to an environment that contains the sensitizing agent. If there has not been a claim initiated for occupational asthma, Mr. Hyland should be referred to an occupational respirologist approved by WSIB in making such diagnosis.

3Mr. Hyland feels well, and is able to perform his full duties as a correctional officer, as long as he has no exposure to second-hand smoke.

4Because of Mr. Hyland’s past experiences in the workplace, he must receive an iron-clad guarantee that if he returns to the East Detention Centre as a correctional officer, there would be strict enforcement of the non-smoking rules. A supervisor or manager that Mr. Hyland trusts and respects should be the one that has direct contact with Mr. Hyland in the workplace.

5Unfortunately, the working relationship between Mr. Hyland and his employer has reached a state that Mr. Hyland has no desire to return to his position of correctional officer. The issues of accommodation may not be relevant if he does indeed act upon his wish to leave the Ministry of Correctional Services.

6An exercise and weight loss program would be beneficial to Mr. Hyland and his Body Mass Index of 34.

7Regular follow-up of Mr. Hyland’s blood pressure would be important.

8Some psychological counseling would be helpful for Mr. Hyland’s anxiety and anger. Strong efforts must be made to repair and improve the relationship between Mr. Hyland and his employer.

9Mr. Hyland should receive annual influenza vaccinations in the autumn. He should also receive a one-time pneumococcal vaccine (Pneumovax 23).

An unanswered question for Dr. Wong is whether Mr. Hyland has occupational asthma as distinct from pre-existing asthma which is exacerbated by a substance found in the workplace. In an addendum to his report, Dr. Wong discloses that he was unable to find any information from new material he reviewed that would give “an objective indication of the severity of Mr. Hyland’s reaction to exposure to second-hand cigarette smoke”.

Dr. Lilker is a respirologist who first saw Mr. Hyland in 1993 when referred by Dr. Sekhon and who has had occasion to see Mr. Hyland many times since then. His most recent assessment of Mr. Hyland occurred in December 2000. The following excerpts from Dr. Lilker’s report are those which are relevant to the issue at hand:

3. Mr. Hyland’s diagnosis regarding his asthma as of December 19, 2000, which is my last assessment, indicates that the asthma is normal at rest. On exercise, he has no evidence of exercise induced asthma but he still have moderate reactivity despite his medication with a PC30 of 1.34 on a Methacholine Challenge indicating that there is still moderate asthma, hyper-reactivity present.

4. The evidence upon which this diagnosis is based is objective tests of lung function including exercise study and Methacholine Challenge as mentioned before.

5. It is impossible to be certain how an individual would react to a low level of exposure to second-hand smoke. However, based on Mr. Hyland’s observations on a recurrent basis, based on the fact that even with Pulmicort inhalations, the Methacholine Challenge still shows moderate hyper-reactivity which is an objective test. I would think that it is entirely plausible that somebody in Mr. Hyland’s condition could be perfectly well one moment and upon exposure to even low levels of second-hand smoke and even odors from cigarettes, could react by cough, wheezing and shortness of breath almost immediately.

6. The evidence that high levels of second-hand smoke would make significant differences to Mr. Hyland’s reaction is impossible for me to comment on. There is no evidence on history, on my previous testing or in the literature that this makes any difference at all.

7. Based on seven to eight years follow-up on Mr. Hyland, objective evidence of the degree of reactivity that he shows, clear history of improvement when he is away from smoke and worsening when he is exposed to smoke. It would only be sensible to expect that he would do much better in an environment where chemicals, dust, fumes of any sort, and of course cigarettes smoke is eliminated. There is ample evidence from the literature that people with hyperactive airways for the most part cannot tolerate some in the immediate environment and by coughing, wheezing and shortness of breath more than the normal population.

8. I think I commented adequately on his environment. Ideally it would be best for Mr. Hyland to work in an environment where there is no chemicals, fumes, dust or smoke.

9. I really do not think that exposure to second-hand smoke at low levels or even high levels would cause any chronic problems with him. At most, it can cause recurrent exacerbation of symptoms. There is no evidence from the literature and the eight-year follow-up with him that he is developing any permanent damage, nor do I find from the literature any evidence that second-hand smoke can lead to emphysema. There is controversy about it causing or being a factor in carcinoma of the lung but this is not pertinent to his problem.

10. Mr. Hyland when he is not suffering from acute exacerbation of his asthma, is a muscular, vigorously, healthy normal man, able to exercise on a bike and perform heavy duties with no problems. If he has a respiratory infection or he is exposed to chemicals, fumes or allergens such as cats, and in particular, sensitivity to cigarette smoke, he sometimes can become subjectively and objectively ill with bronchospasms which can last for weeks at a time. There is however, no evidence in my mind to be concerned about permanent physical limitation.

Dr. Lilker noted that Dr. Wong’s assessment was very true and helpful but that he did “not think that comparing his Methacholine during work and during time off work would add anything to the issues at hand”.

In his submissions, counsel for the Employer referred to some factors which in his view served to provide the overall context for determining whether the Employer has contravened Article 3 of the Collective Agreement and its obligations under the OHRC. Counsel noted that Mr. Hyland has not lost his job as a CO2, nor has the Employer threatened any job loss. In counsel’s view, this factor distinguished this situation from those that gave rise to many of the accommodation decisions where an employee was terminated or someone was denied a right. Counsel also emphasized the comments of the doctors in the medical reports. In particular, he referred to Dr. Wong’s comments that an employee should not return to the environment from which he developed occupational asthma and that there was no evidence that Mr. Hyland has occupational asthma and Dr. Lilker’s comments that exposure to cigarette smoke would not cause chronic problems for Mr. Hyland, nor would they result in a permanent physical limitation. Counsel also submitted that it is impossible, given the nature of an institutional setting, for the Employer to provide for a completely smoke-free environment, but that the situation at the Toronto East has been continually improving, particularly with the introduction of the new policy. With reference to the above factors, counsel submitted that Mr. Hyland has not experienced undue hardship and that the situation for him at the Toronto East can only continue to improve. In light of these factors, counsel argued that the Employer’s efforts to minimize Mr. Hyland’s exposures to cigarette smoke and his access to short-term sick leave credits constitute an appropriate accommodation in the circumstances.

Counsel submitted that the Employer made efforts to accommodate Mr. Hyland by assigning him to areas of the institution which best met his disability. He was assigned first to 1B with limited duties in the inmate living units and, when this proved to be unworkable, the duties in the living units were eliminated. Mr. Hyland was later assigned to escorts, outside patrol and driving duties. Counsel submitted that the Employer made continuing efforts to place Mr. Hyland in locations which were most likely to be smoke-free, as evidenced as late as June 2000 by the memo issued to Mr. Hyland from Mr. Reid.

In arguing that the Employer appropriately enforced the smoking policies, counsel referred to the memos sent by the Employer to remind employees about the obligations they had under the old and new policy. Counsel noted that the electronic sensor system, the counseling of employees, the increase in signage and the instructions to managers to investigate complaints were efforts designed to enforce the smoking policy. Given that an addiction to nicotine is also a disability, counsel submitted that the Employer had to proceed with some sensitivity and he relied on the Re Cominco Ltd., decision, supra, for the proposition that a disciplinary response in a smoking context may not be appropriate.

Counsel referred to the obligation on an employee to make reasonable efforts to assist in any accommodation effort. Counsel argued that Mr. Hyland did not meet his obligations when he did not provide names of staff who contravened the smoking policy and by not accepting the Employer’s offer to transfer to the Whitby Jail. Counsel argued that it was not correct for Mr. Hyland to take the position that the Employer bore the sole responsibility for enforcing the smoking policy and that his request to be ordered to provide names of employees is inconsistent with an employee’s duty. Counsel also argued that Mr. Hyland should have accepted the Employer’s offer to transfer to the Whitby Jail in order to see if the environment at that institution was more suitable for him. Counsel argued that these choices Mr. Hyland made should influence any determination of whether he has been properly accommodated.

In concluding, counsel submitted that the circumstances in this case did not warrant a conclusion that the Employer did not properly accommodate Mr. Hyland’s disability at the Toronto East. If I found that the Employer did not properly accommodate Mr. Hyland, counsel argued that the appropriate response would be a direction to accommodate him at the Toronto East and an order to the Employer to compensate Mr. Hyland for losses attributed to the Employer’s failure to accommodate him. The decisions referred to by counsel for the Employer are as follows:

Re OPSEU (Anthony Simon) and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) (1998), GSB #2569/96 (Dissanayake);

Re OPSEU (Thomson) and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) (1997), GSB #1612/92 (Stewart);

Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R 970 (SCC);

Re Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (SCC)

Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3^rd) 290 (Ont. Div.Ct.)

Re General Tire Canada Ltd. and United Rubber Workers, Local 536 (1986), 1986 CanLII 6652 (ON LA), 26 L.A.C. (3d) 95 (Picher)

Guibord v. Canada (T.D.), [1996] 2 F.C. 17 (Fed. Ct.)

Re Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000]

B.C.C.A.A.A. No. 52 (Larson)

In arguing that I should not accept the Employer’s submissions, counsel for the Union maintained that there has been a complete failure on the part of the Employer to accommodate Mr. Hyland over a long period of time and argued that there is no basis to anticipate that the Employer will be able to accommodate Mr. Hyland at the Toronto East in the future. Among other remedial requests, counsel argued that the Employer should be directed to exclude the Toronto East in its efforts to search for an appropriate accommodation for Mr. Hyland. Counsel referred me to the following decisions:

British Columbia (Public Service Employee Relations Commission) v. B.C.G.

S.E.U. (1999), [1999 CanLII 652 (SCC)](https://www.minicounsel.ca/scc/1999/652), 176 D.L.R. (4^th) 1 (SCC);

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 1999 CanLII 646 (SCC), 181 D.L.R. (4^th) 385 (SCC);

Entrop et al. v. Imperial Oil et al.; Canadian Civil Liberties Association, Intervenor (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (CA)

Central Alberta Dairy Pool v. Alberta (Human Rights Commission (1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4^th) 417 (SCC)

Re Canada Safeway and U. F. C. W., Loc. 401 (2000), 2000 CanLII 29547 (ON LA), 89 L.A.C. (4^th) 1 (Sims)

Re Mount Sinai Hospital and O.N.A. (1996), 1996 CanLII 20325 (ON LA), 54 L.A.C. (4^th) 261 (R.M. Brown)

Re Calgary District Hospital and U.N.A., Local 121-R (1994), 1994 CanLII 18594 (AB GAA), 41 L.A.C. (4^th) 319 (Ponak)

Re Lever Brothers Ltd. and Teamsters – Chemical, Energy & Allied Workers, Local 132 (1995), 1995 CanLII 18341 (ON LA), 51 L.A.C. (4^th) 373 (Harris)

Re OPSEU (McLellan) and the Crown in Right of Ontario (Ministry of Housing) (1996), GSB #1659/94 (Briggs)

Section 5(1) of the OHRC provides that “every person has a right to equal treatment with respect to employment without discrimination because of … handicap.” As noted earlier, the parties agreed in Article 3.1 of the Collective Agreement that there shall be no discrimination practiced by reason of handicap and that the definition of the term handicap in the OHRC is applicable. The words “because of handicap” are broadly defined in section 10(1) of the statute. Section 17(1) of the statute provides that “a right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.” And finally, section 17(2) provides that “the Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the costs, outside sources of funding, if any, and health and safety requirements, if any.”

The decisions relied on by counsel set out the legal principles which are applicable in a case such as this. It is clear from these decisions that the Employer has a duty to accommodate Mr. Hyland as a result of his handicap to the point of undue hardship. Although the decisions indicate that the Employer, the Union and the employee have a role to play in the search for an appropriate accommodation, the Employer bears the onus of demonstrating that any accommodative approach would result in undue hardship. The employee’s conduct is relevant to the issue of whether the duty to accommodate has been satisfied and the failure of the employee to accept a reasonable accommodation may lead to the conclusion that the Employer has satisfied its obligation.

After reviewing the facts and counsels’ submissions, in the context of the relevant jurisprudence, it is my conclusion that the Union’s position in this matter, for the most part, has considerable merit. The medical evidence and Mr. Hyland’s testimony clearly establishes that Mr. Hyland has asthma and that he has a sensitivity to cigarette smoke. When exposed to cigarette smoke, Mr. Hyland often becomes disabled to the extent that he is unable to perform his duties as a CO2. It may take him anywhere from one to three days to recover from the effects of an exposure before he can return to work. His asthmatic condition is a handicap as defined by the OHRC. The fact that Mr. Hyland does not have occupational asthma and the fact that exposures to cigarette smoke may not result in chronic problems or a permanent physical limitation does not alter the fact that exposures to cigarette smoke cause him to become ill and unable to perform his job. The provision of sick leave credits to Mr. Hyland for absences caused by exposure to cigarette smoke at work cannot be an adequate accommodative response since sick leave does not address the situation giving rise to his illness. Although Mr. Hyland’s job has not been threatened, the principles in the accommodation decisions apply to the circumstances of this case. In my view, it is not relevant that Mr. Hyland has not lost his job or that he has not experienced undue hardship. The issue for determination in this case is simply whether the Employer has accommodated Mr. Hyland to the point of undue hardship. In other words, given Mr. Hyland’s handicap and his sensitivity to cigarette smoke, has the Employer provided Mr. Hyland with a smoke-free work environment and, if not, can the Employer establish whether it was unable to do so because of undue hardship?

As previously noted, for the first eleven months at the Toronto East, Mr. Hyland was assigned the 1B post. Initially this post required him during the course of his shift to go to the inmate living units where inmates were allowed to smoke. It appears that Ms. Buhagair believed that brief exposures to cigarette smoke were acceptable. It was only after a recommendation from a workers’ compensation caseworker that Mr. Hyland not go into or near the inmate living units that management eliminated that requirement. But even after the elimination of this requirement Ms. Buhagair ordered Mr. Hyland on two occasions in October 1995 to go into the inmate living units. Mr. Hyland, whether performing 1B duties or escort duties, was required to go into A&D on a regular basis. Although this area was designated as non-smoking under the old policy, the policy was not enforced, as evidenced by Ms. Scrivano’s memo dated June 30, 1999. Therefore, at least up until that date, there was a high probability that Mr. Hyland would be exposed to cigarette smoke in A&D while performing 1B or escort duties. When Mr. Hyland’s accommodation is reviewed in June 2000, Mr. Reid recognized that Mr. Hyland would experience casual exposures to cigarette smoke in A&D. When Mr. Hyland returned to work in December 2000, there was a period of approximately two months when he again was assigned duties which involved entering the inmate living units, even though cigarette smoke appeared to be present on a daily basis in these areas after the new policy was implemented. Eventually recognizing the problem, Mr. Reid returned Mr. Hyland to assignments which did not involve the inmate living units. These circumstances illustrate that Mr. Hyland was assigned duties, whether during the periods covered by the old or the new policy, which inevitably entailed him entering locations where it was likely that he would be exposed to cigarette smoke and he often was so exposed. It is difficult to conclude that these assignments were reasonable assignments having regard to Mr. Hyland’s accommodation needs.

One way of dealing with difficulties in accommodating Mr. Hyland at the Toronto East was to transfer him to a smoke-free institution. Mr. Hyland had asked about the possibility of a transfer to a smoke-free institution on a number of occasions and it is clear from Mr. DeGrandis’ testimony that the Employer will transfer employees in order to meet their accommodation needs. Since Mr. DeFranco did not testify, we are left with Mr. Hyland’s evidence about the discussions which took place in 1995 about a transfer. Although management seemed interested in accommodating Mr. Hyland with a transfer and allowed him to tour a number of possible transfer destinations, that interest ended when Mr. DeFranco advised Mr. Hyland that it was “over his head” and the matter was not pursued further. Mr. Hyland assumed that the Employer’s decision was influenced by his work refusal on September 1995. Although I am not convinced that Mr. Hyland’s work refusal motivated the Employer in this instance, there is the unanswered question of why the Employer decided at that time not to offer Mr. Hyland the option of transferring to another facility, including Brookside. I will comment on the Employer’s offer to transfer Mr. Hyland to the Whitby Jail subsequently in this decision.

During his first meeting with Mr. DeGrandis and on many occasions since with other managers, Mr. Hyland was critical of the Employer’s failure to effectively enforce the smoking policy. Although the Employer initiated some enforcement measures, one thing the Employer did not do was discipline staff who contravened the old and new policy. Staff was counseled but no discipline in the form of reprimands or suspensions were issued to repeat offenders during the time Mr. Hyland was at the Toronto East. The absence of such discipline is consistent with the statements attributed to Mr. DeGrandis by Mr. Hyland and Mr. Keilty when he told them, in effect, that the Employer did not intend to discipline staff for contravening the smoking policy. In attempting to explain this approach, counsel for the Employer suggested that management has to be sensitive to and has difficulty with disciplining employees who are addicted to nicotine. However, Mr. DeGrandis did not express such concerns in his testimony. To the contrary, he testified that the Employer first starts with counseling and then “notches it up”, which is consistent with the approach contained in the written policies. Although there were opportunities to “notch it up” with multiple offenders of the smoking policy, this did not occur.

Since February 1995 and well into the period covered by the new policy, Mr. Hyland was exposed to cigarette smoke in areas designated as smoke-free and cigarette butts and ashes could be found in many non-smoking areas. This appears to suggest that memos, additional signage and counseling, and no discipline, did not have the effect of conveying to employees that management was serious about enforcing the policy. Although visitors smoking near the front doors of the institution is an ongoing problem, there is no evidence to indicate that management kept track of repeat offenders, let alone suspended a repeat offender’s visiting privileges. The electronic sensor was often not operative and proved to be unsuccessful in achieving its objective.

There is no doubt that the Employer made some effort to assign Mr. Hyland to work locations at the Toronto East which were designated as smoke-free. But as Mr. Kahn, Ms. Miller, Mr. M. McKinnon and others indicated, these areas were smoke-free on paper, but not in practice. Although it is somewhat unusual for the Union to be critical of management for not disciplining employees and difficult to assess what impact such discipline may have had, it is likely that Mr. Hyland’s exposure to cigarette smoke in smoke-free areas of the institution was in part attributable to the Employer’s failure to effectively enforce the old and new smoking policy. This failure also had an impact on its ability to properly accommodate him.

As I previously noted, there is support in the case law for the proposition that an employee’s conduct can be relevant to the issue of whether an employer has met its accommodation obligations. The Employer submitted that Mr. Hyland’s refusal to provide the names of staff members who contravened the policy and his rejection of the offer to transfer to the Whitby Jail are relevant in the circumstances of this case. I agree with counsel for the Union’s submissions that neither matter affects the determination of whether the Employer has satisfied its duty to Mr. Hyland.

The purpose of providing names is to permit the Employer to address violations of the policy. Having regard to my view about the enforcement of the smoking policy, it is unlikely that any refusal by Mr. Hyland to provide names would have had any impact on smoking at the institution. Whether or not Mr. Hyland asked to be ordered to disclose names, management could have ordered him to provide names, but did not do so. Perhaps management and Mr. Hyland were both sensitive to the code of not informing on other correctional officers. Although it is unclear how often Mr. Hyland actually witnessed staff smoking, he did advise management in his written reports about staff who were present when he detected cigarette smoke or evidence of cigarette smoking.

I also find that Mr. Hyland cannot be faulted for refusing the offer of a transfer to the Whitby Jail. Mr. Hyland understood that staff did smoke at the Whitby Jail and his evidence in this regard was not contradicted. It was not unreasonable to decline such an offer when he understood that the environment at the Whitby Jail was not unlike the one at the Toronto East. As well, it was not unreasonable for Mr. Hyland to decline when the offer was at best a temporary solution and one which was made conditional on him withdrawing his grievances.

After considering the evidence, it is my conclusion that the Employer has not demonstrated that it has accommodated Mr. Hyland to the point of undue hardship. As noted previously, Mr. Hyland was often assigned work which would take him to areas where it was likely he would be exposed to cigarette smoke. Ms. Buhagair testified that she did not know why CO2 work in the front office had not been considered for Mr. Hyland. One cannot help but wonder whether there were other assignments the Employer could have given to Mr. Hyland at the Toronto East which may have better suited his accommodation needs. There is also the lack of an explanation as to why the Employer did not pursue other transfers for Mr. Hyland, particularly a transfer to Brookside.

I have given careful consideration to the request made on behalf of Mr. Hyland that I direct the Employer to only consider positions outside of the Toronto East in its efforts to accommodate him in the future. I can appreciate that, given his experience at the Toronto East, Mr. Hyland has no confidence that he can be successfully accommodated at that institution. However, the usual remedial response would simply be a direction to the Employer to properly accommodate the affected employee and I have not been persuaded that the parties should be restricted in the way suggested by the Union when they engage in the process of finding appropriate duties and a satisfactory location for Mr. Hyland. The goal in this exercise is for the Employer to accommodate Mr. Hyland to the point of undue hardship and if the Employer is now able to accomplish that goal at the Toronto East, perhaps with an office position or another position which it may not have previously considered, it should not be precluded from doing so. If for whatever reason it is not possible to accommodate Mr. Hyland at the Toronto East, the Employer will have to consider transferring Mr. Hyland to another institution, Brookside being the preferred choice, unless such a transfer would cause it undue hardship.

For the foregoing reasons, the grievances filed by Mr. Hyland which claim that the Employer has not properly accommodated him at the Toronto East are allowed. I declare that the Employer has failed to demonstrate that it properly accommodated Mr. Hyland to the point of undue hardship. The Employer is directed to renew efforts, in consultation with OPSEU and Mr. Hyland, to find an appropriate accommodation for Mr. Hyland. The Employer is also directed to compensate Mr. Hyland for his losses which are a direct result of absences caused by exposures to cigarette smoke. I note that Mr. Hyland and the Union agreed that Mr. Hyland would not pursue compensation at the WSIB for the same period if he succeeded in obtaining a compensation order as a result of these proceedings. I will remain seized of these grievances to address any issue arising out of the compensation order or otherwise in the implementation of this decision.