Ontario Public Service Employees Union v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2011 CanLII 49509

GSB#2009-3185

UNION#2009-0377-0023

Under

Before

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Richard Brown

Vice-Chair

Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors

Dan McDonald Norton Rose OR LLP Barristers and Solicitors

December. 1, 2010; February. 15, March. 2, 4, 25, May 2, June 14, June 21, 24 and July 13, 2011.

1The grievor’s name has been omitted from this decision because it contains confidential information about his health. He worked as a customer service representative for approximately twenty years. In November of 2009 he was discharged for taking $910 from a cash register that he was operating. (According to the grievor, he intended to repay this amount with a cheque, although he did not have authorization for such a transaction.) He was reinstated pursuant to a settlement dated June 17, 2010 but did not report for duty on July 12 as scheduled. More than once during the summer of 2010, he told his employer that he was unable to work due to leg surgery. That was not true; no surgery was scheduled for that summer and none occurred. He had still not returned to work on September 30 when he was terminated for alleged dishonesty.

2The employer relies upon a last chance provision in the settlement reached in June of 2010. According to that clause, in the event of any subsequent dishonesty on the part of the grievor, an arbitrator is precluded from altering the penalty imposed by management. The union contends the enforcement of this provision would amount to discrimination based upon disability in the circumstances at hand. The essence of the union’s argument is that the grievor’s misconduct during the summer of 2010 was attributable to a mental disability. In the alternative, the union contends the grievor’s termination should not be sustained because of “exceptional circumstances.”

3When the settlement was fashioned on June 17, the grievor was represented by Mary Ann Kuntz, a senior grievance officer. After the employer made an offer of reinstatement, coupled with a resumption of duties two weeks later, the grievor told Ms. Kuntz that he was scheduled for varicose vein surgery in the near future. July 12 was chosen as the date for his return to work in order to allow time for him to recover from surgery.

4Under the settlement, the grievor was assigned to work at store 776 in Pickering about 50 kilometres from his home in Orono. (Immediately before the termination, he had worked at store 263 in Bowmanville about 15 kilometres from home.) During settlement discussions on June 17, the grievor initially expressed a preference for a store closer to his home, because his family then had only one vehicle.

5There followed a series of five communications between the grievor and the manager of store 776, Richard Watterson, about when grievor would return to work. They spoke by telephone on the first four occasions; the grievor called the store and left a message for his manager on the fifth:

On Friday, July 9, the grievor telephoned saying he recently had leg surgery and was advised by his doctor to take an extra week off. His date for returning to work was changed from July 12 to July 19.
On Friday, July 16, the grievor again called his manager, saying his doctor had recommended another one-week delay in his return to work because the healing process had been slower than expected. The date for his return was changed to July 26.
During a telephone call on Monday, July 26, the grievor told Mr. Watterson that he had a doctor’s appointment the next day and hoped to be at work on Wednesday.
The next call occurred on Tuesday, July 27. The grievor reported he still needed medical clearance and would be back at work by August 4. The grievor also said he wanted to return to work and needed to do so.
On August 3, the grievor called the store and left a message for Mr. Watterson, saying he would he would not be starting until August 17.

6In each of the four conversations with his manager, the grievor said or implied his return to work was further delayed because of his leg. In each conversation, he also invented new details in support of that claim as recounted above. According to Mr. Watterson the grievor was cordial when they spoke and he explained things clearly and concisely.

7In the course of their telephone conversations, Mr. Watterson asked the grievor to provide a doctor’s note. There is a dispute as to whether this request was made once or twice and as to whether the grievor was asked to provide the note before he returned to work. In my view, nothing turns on the resolution of that dispute.

8The grievor was paid for the period from July 12 to 20 because he reported being unable to work for medical reasons. He did not report this income to the Canadian Employment Insurance Commission even though he was receiving employment insurance benefits and had been since December of 2009.

9After twice delaying his return to work, the grievor was persuaded to seek medical help by his wife. She is a registered practical nurse employed at a psychiatric facility. She testified she telephoned Dr. Fitzpatrick’s office “shortly after” July 19, only to learn he was out of his office that day, working in a clinic, and would be starting a month's vacation the next day. Her testimony about making this call is buttressed by the schedule provided by the doctor when he testified. It shows he was working in an urgent care clinic on the afternoon of July 22 and began a month’s vacation the next day. I deduce the grievor’s wife called the doctor’s office on July 22.

10The grievor testified he elected to wait for Dr. Fitzpatrick’s vacation to end, rather seeking medical care elsewhere, because he was more comfortable seeing his own family physician, even though they had previously met only once in February of 2009. On that occasion the grievor did not mention any mental health issue.

11Counsel for the employer wrote to Ms. Kuntz on August 11 requesting medical evidence supporting the grievor’s “entire period of absence” be provided by August 17. The letter warned that the grievor would be terminated for dishonesty if he failed to provide such evidence.

12When Ms. Kuntz spoke to the grievor on August 12, she made a note indicating he said his doctor had told him to stay off work longer, something that was not true. According to her contemporaneous note, the grievor also said something about having “no car.”

13Believing the grievor had undergone surgery, Ms. Kuntz mentioned it in an August 18 email to Mr. Thornington and in an August 27 letter to employer counsel. The grievor received copies of both of these communications but he did not immediately tell Ms. Kuntz that he had been misled her about the surgery.

14Nonetheless, Ms. Kuntz did surmise in the summer of 2010 that the grievor had another medical issue. On her account, during their telephone conversations in mid-August, he appeared to be “overwhelmed” and was not “making sense”. Ms. Kuntz provided only one specific example of the grievor “making no sense”: he said he had to get back to work but then said he was not capable of working. She thought he was suffering from some kind of depression. Ms. Kuntz was formerly a nurse and a social worker, but union counsel concedes she is not qualified to give an expert opinion on the grievor’s mental health.

15On August 17, Mike Thornington, Manager of District 17, sent a letter to the grievor, with a copy to Ms. Kuntz stating he would be terminated if he failed to provide medical evidence by Friday, August 20. Ms. Kuntz subsequently persuaded the employer to extend this deadline to August 24 because the grievor’s family physician, Dr. David Fitzpatrick, would not be in his office again until August 23.

16Ms. Kuntz drafted a letter that she proposed sending to Dr. Fitzpatrick before he saw the grievor. The letter asked the physician to provide confirmation of the grievor’s inability to work since July 12. The letter also mentioned what the grievor had said about having leg surgery. In an email dated August 23, the grievor asked Ms. Kuntz not to send this letter to Dr. Fitzpatrick, saying he would rather take the letter along when he went to see his doctor and discuss it in person. When the grievor’s wife was called as a witness, she confirmed her husband was concerned about this letter because it mentioned the fictional surgery.

17The grievor never gave his doctor the letter prepared by Ms. Kuntz. Nor did the grievor himself admit to his doctor making up a story about leg surgery. When the family doctor testified almost a year later, he was not aware such a misrepresentation had been made.

18The grievor reported the following symptoms to Dr. Fitzpatrick on August 23 :

lost appetite
exhausted all the time
constantly worried about things and stress is overwhelming
mind is always going
wakes up 6 or 7 times a night and occasionally can’t get back to sleep
rarely sleeps 3 to 4 hours

19Dr. Fitzpatrick concluded the grievor was suffering from depression and prescribed effexor to treat this illness. He also provided the following note:

Paul was seen today in my office to get help with his problems that seem to be stemming from a depression illness. He is not fit to work at this time and I will follow him and try to help him recover. His return to work date is uncertain at this time.

In cross-examination, he described his dialogue with the grievor on August 23 as “coherent.”

20When the grievor and his wife saw Dr. Fitzpatrick on August 31, he recorded the following symptoms reported by them:

sleeps a lot during the day but not sleeping at night
attention span is limited
not himself and not interested in the kids

21On this occasion, Dr. Fitzpatrick provided a second note to the employer

Re: [the grievor] … Seen today and is still under treatment. Will not be able to return to work for at least another 4 wks.

22In a letter to the grievor dated September 3, copied to Ms. Kuntz, Mr. Thornington stated the doctor’s notes provided did not fully support the grievor’s absence since July 12 and requested further medical documentation by September 9. Ms. Kuntz in a September 7 email offered to provide confirmation by Dr. Fitzpatrick that the grievor had been under his care since July 12.

23The grievor next saw Dr. Fitzpatrick on September 14. The grievor reported sleeping a bit better and feeling a bit better. He obtained the following note which was forwarded to the employer:

This is to confirm that I have been treating Paul for illness since Aug. 23 when I returned from my holiday. The illness that we are treating now is improving but he has been suffering from this for quite a while. This illness was likely the reason that he could not work since July 12, 2010.

Mr. Thornington testified he received this note.

24Dr. Fitzpatrick actually provided two notes to the grievor on September 14, the one set out above and a shorter version containing only the last sentence found in the longer one. The grievor was left to decide which note would be delivered to the employer.

25There is conflicting evidence as to which note was written first. According to the grievor’s testimony, the shorter note was initially produced and he then asked for a longer one, because he thought more detail was required. Dr. Fitzpatrick testified he initially wrote the longer note, thinking the employer should be told when he began to provide medical care, and the grievor asked him to rewrite it. I conclude the longer note came first, because the last sentence in it makes much more sense in the context of the preceding two sentences than standing alone. In particular, the reference to “this” illness in the last sentence makes more sense when read as referring to the illness described in the preceding two sentences. When the last sentence stands alone, it is unclear to what “this” refers. It also seems likely the doctor was acting on his own initiative when he wrote the note saying he first saw the grievor on August 23. The grievor is not likely to have asked for this information to be added. Moreover, the doctor’s account is supported by the computer record of the entries he made in the grievor’s chart that day, while they were still together. The longer version of the note appears in the chart before the shorter one.

26Faced with a choice between the two notes, a short one so cryptic as to be unclear and a longer one containing some detail that was helpful and some that was note, the grievor presented the longer note to the employer. This note led Mr. Thornington to deduce the grievor had not seen Dr. Fitzpatrick before August 23.

27In an email sent to Ms. Kuntz on September 15, the grievor admitted lying to her on August 12 about seeing a doctor:

With all that I was suffering and the threat of losing my job again, I said I had seen the doctor, knowing full my intent to do so as soon as he returned. For this I am sorry.

The grievor here admitted not telling the truth about seeing a doctor at some unspecified time, but he did not explicitly admit the whole story about leg surgery was false. Ms. Kuntz first realized there had been no surgery when told by union counsel in early 2011.

28By letter dated September 30, Mr. Thornington advised the grievor that he was being terminated for misrepresentations about the reasons for his absence “and/or” misrepresentations about attendance at medical appointments on days he was scheduled to work.

29The grievor saw Dr. Fitzpatrick again on October 20 and reported sleeping well, getting things done, being less anxious and generally feeling much better.

30At the union’s request Dr. Fitzpatrick subsequently prepared a report, dated November 24, 2010, which reviews the symptoms reported by the grievor and his wife and ends by saying:

In summary, Paul appears to have been suffering from a depression that probably was going on for a lot longer than the time I had been seeing him and probably had something to do with the fact that he was unable to return to work in July.

Dr. Fitzpatrick wrote this report not knowing about the misrepresentations relating to leg surgery.

31The central issue in this case is why the grievor lied about surgery. The grievor testified about what motivated him. He and his spouse both testified about his state of health and activities and their financial situation during the relevant period. Their evidence is summarized below.

32According to the grievor, his mental state deteriorated after he was terminated in November of 2009. He had “ups and downs” with the downs being “quite severe.” He had little or no appetite. He was tired all of the time but had trouble sleeping for more than 15 minutes and would be up in the middle of the night. He lost interest in his domestic duties, including those relating to his wife and two children. The worse period was immediately preceding June 17 when his discharge grievance was scheduled to be heard.

33The grievor’s wife provided a similar account of his condition between November of 2009 and June of 2010. She described a slow decline in his energy level and his interest in daily activities. He spent a lot of time in bed but not necessarily sleeping. He would get up in the middle of the night and watch television.

34According to the grievor, when the employer offered reinstatement on June 17, with a resumption of duties in two weeks, he felt he needed more time to get himself “together” before resuming his duties. He was too embarrassed to admit there was something “wrong” in his head that he could not “fix”. To buy some time, he lied about being scheduled for varicose vein surgery in the near future. He used this excuse because he did need surgery even though it had not yet been scheduled.

35His wife testified he experienced “anxiety” about returning to work. He told her about putting off going back because he needed time to start sleeping and being positive. According to her, he failed to make real progress. She encouraged him to see a doctor, but did not press too hard because he was “fragile.” He was easily irritated and cried on occasion. During the days preceding July 12, he would spend 17 or 18 hours a day in bed.

36As July 12 approached, the grievor could not get out of the “funk” he was in. He thought he could not yet be a “functional” employee and was nervous something would go wrong at work. According to his own testimony, having made the mistake of initially lying about leg surgery, the grievor felt he had to continue lying about why he was unable to work.

37The grievor and his wife testified about his activities in the summer of 2010. He did a lot of walking. He would walk in the woods or walk to a store three of four blocks from home. He would sometimes buy something, but did not do a full shopping. He drove a car on occasion that summer, although not do a lot, because his mind would wander. He accompanied his children to sporting events, but not as often as before. He mowed his lawn less often than normal and did none of the usual trimming. In late August or early September he accompanied his wife and children to her brother’s cottage. He attended the Orono fair with his family on the second weekend in September but did not stay as long as in years past.

38The grievor and his spouse described their financial situation as “very strained” before the first termination. It got worse after. The grievor began receiving EI benefits in December of 2009 but those benefits were much less than his previous earnings. He transferred money from his pension to a locked in RRSP and then got permission to make hardship withdrawals from the RRSP: a withdrawal of just under $14,000 in May of 2010 and another withdrawal of just over $50,000 in September of the same year. The second withdrawal was made to avoid foreclosure on a home mortgage. (According to documents issued by the Financial Services Commission of Ontario, the two withdrawals added up to $63,931.53 “net of withholding tax.” This amount is exactly 70% of the RRSP income of $91,330.75 reported on the grievor's 2010 tax return. I note a withholding tax of 30% would account for the difference between the two dollar amounts.)

39The grievor denied that his absence from work in the summer of 2010 had anything to do with being assigned to a store in Pickering. He had already spent several years working in Pickering while living in Orono. He was content to work there even though he would have preferred a store closer to home.

III

40The union and the employer each retained an expert witness who prepared a report and gave testimony.

41The union’s expert is Dr. Graham Turrall who has been licensed since 1976 to practice as a psychologist in Ontario. He was awarded a doctoral degree in applied psychology by Boston University in 1975 and spent a year at Stanford University as a visiting scholar in the early 1980’s. Also in the early 1980’s, he was accredited as a Diplomate in Clinical Psychology, by the American Board of Professional Psychology, one of 42 such Diplomates in Canada at the time. He received a Professional Designation from the National Academy of Neuropsychology in 1990. Dr. Turrall served as chief psychologist of the Metropolitan Toronto Forensic Service at the Clark Institute from 1977 to 1981. There he worked with interdisciplinary teams preparing reports about whether patients were fit to stand trial or not criminally responsible for their misdeeds. He spent most of the 1980’s working with adolescents. As a sole practitioner in clinical psychology since 1987, he has done a broad range of work including acting as an expert witness in more than one hundred criminal cases at the request of the crown and defence counsel, without the aid of an interdisciplinary team.

42Dr. Turrall was retained by the union in January of 2011. He reviewed the report prepared by the family doctor and the grievor’s five most recent performance appraisals. He first met the grievor and his wife in late January at the psychologist’s office. Dr. Turrall did not make any notes of this introductory meeting.

43In early February the grievor completed five psychological tests (1) Beck Hopelessness Scale; (2) Beck Depression Inventory; (3) Beck Anxiety Inventory; (4) Minnesota Multiphasic Personality Inventory 2 (MMPI-2); and (5) Million Clinical Multiaxial Inventory III (MCMI-III). These tests were administered by a psychometrist who reported the results to Dr. Turrall.

44Dr. Turrall spent two hours at the grievor’s home in late February. His wife was present for some of this meeting, including the part where there was a discussion about the grievor’s mental-health symptoms and the family’s income and expenses.

45In his report dated February 28, 2011, Dr. Turrall records the grievor reporting the following “current” symptoms when interviewed in February of 2011: depression, anxiety, feelings of hopelessness, fatigue, feelings related to the future, difficulty with concentration, feelings of guilt, feelings of sadness and loss of libido. (page 8)

46The report is much less specific about the grievor’s symptoms in the summer of 2010. It does say:

His awareness that he could not meet his monthly indebtedness increased his anxiety over time and given his personality structure his anxiety increased exponentially. This anxiety led to sleep disturbance, affective difficulties and further depression.

The report goes on to say the grievor was then “ashamed and embarrassed by his emotional state and unable at that time to summon sufficient strength to ask for help.”

47As set out in his report, Dr. Turrall concluded the grievor suffered from “a serious and prolonged mental disorder” that impaired his “higher cognitive functions”, including judgement and insight, and “unable to respond the demands of … reinstatement” in June of 2010. According to this assessment, the grievor “had significant difficulty processing information accurately nor could he make sound, rational judgements and decisions.” The report also states the grievor’s “lack of sophistication, embarrassment and shame about his psychological condition … affected his judgement and his ability to make appropriate decisions.” During examination-in-chief, Dr. Turrall stated it would have been “difficult but not impossible” for the grievor to make sound and rational decisions. He psychologist conceded any impairment of the grievor’s ability to make decisions would have occurred only “on occasion.”

48In his report, Dr. Turrall diagnosed the grievor as suffering from two specific mental disorders: dysthymic disorder and generalized anxiety disorder. The report also indicates a diagnosis of adjustment disorder had not been ruled out. All of these disorders appear on Axis I of the Diagnostic and Statistical Manual (DSM), the diagnostic system most commonly used in North American.

49In making his diagnosis Dr. Turrall relied in part on the results of MMPI-2 test. He initially testified he utilized the grievor’s numerical scores and paid little attention to the computer-generated description of the likely personality traits of person with these scores. However, Dr. Turrall’s report incorporates portions of the description that have been shorn of passages reflecting poorly on the grievor.

50The interpretative report for the MMPI-2 test contains the following passage describing the grievor:

He is somewhat passive-dependent and demanding in relationships. Although he may at first appear skilful in handling social relationships, he tends to be rather immature, superficial, and unskilled with the opposite sex. Individuals with this profile tend to use physical complaints to influence or manipulate other people.

Quite outgoing and sociable, he has a strong need to be around others. He is gregarious and enjoys attention. Personality characteristics relating to social introversion-extraversion tend to be stable over time. The client is typically outgoing, and his social behaviour is not likely to change if he is retested at a later time. (emphasis added}

Most of this passage is reproduced in Dr. Turrall’s own report with only minor changes in wording. However, the italicized portion, about using physical complaints to manipulate people, is completely omitted from the report.

51Another passage in the MMPI-2 interpretive report states:

His tendency to repress or deny problems makes him particularly resistant to the idea that psychological factors can influence his symptoms. He does not appear to be very motivated for psychological change at this time. He may be receiving secondary gain from his symptoms that helps to maintain them. Individuals with this profile type may experience an exacerbation of symptoms under stressful conditions. (emphasis added)

The first and last sentences of this excerpt are reproduced in Dr. Turrall’s report with only minor changes of wording. The middle two sentences, including the italicized one about secondary gain, are omitted entirely.

52The grievor and his spouse told Dr. Turrall each of them earned approximately $51,000 annually. He was aware from the outset that the grievor’s earnings from employment had been interrupted by being twice terminated. When preparing his report, Dr. Turrall was not aware the grievor had received $21,903 in EI benefits in 2010. The psychologist was also not aware the grievor withdrew over $90,000 (before tax) from his RRSP in 2010. These amounts were not disclosed to him.

53In cross-examination, Dr. Turrall was asked whether this new information about the family income gave him reason to reconsider his assessment of how their financial situation affected the grievor’s mental health. He initially replied: “It might begin to alter that opinion.” Dr. Turrall later qualified these answers, first by saying the RRSP withdrawals had not been used to live “high on the hog” and then by suggesting the grievor’s failure to disclose all of his income was consistent with someone who did not want to admit he could not handle his own financial affairs. In re-examination, Dr. Turrall said learning about the grievor’s RRSP income did not change his opinion about the grievor’s financial situation being a primary stressor because most people put money away for retirement. He also attributed the grievor’s failure to disclose his full income to his health, saying because of his mental illness he would try to hide things out of shame and embarrassment.

54When his report was prepared, Dr. Turrall knew the grievor had lied to his employer about leg surgery, but the psychologist did not know how many times this lie had been repeated, and he was not aware of the details which the grievor had invented about his leg as time went on. Upon being retained by the union, Dr. Turrall was informed the grievor had told his employer “on at least two occasions” he was unable to work because of his leg which was not true. Dr. Turrall’s interview notes indicate the grievor recounted telling a story about his leg in June of 2010. However, those notes record the grievor mentioning only two telephone conversations with his manager in July, during which the grievor asked for more time off work, and the notes make no mention of anything being said about his leg.

55The full details of all four July conversations between the grievor and his manager were put before Dr. Turrall during cross-examination. He was then reminded of the opinion expressed in his report that “there was no evidence of misrepresentations” on the part of the grievor. Asked whether those facts would cause him to question this opinion, Dr. Turrall answered in the affirmative. He also acknowledged the grievor had presented a “coherent” story throughout the course of his conversations with his manager.

56The expert retained by the employer is Dr. Joel Sadavoy. His qualifications are succinctly summarized in his report dated April 20, 2011:

At the present time I am a duly qualified practitioner of medicine in the province of Ontario. At Mount Sinai Hospital, I am the immediate past Psychiatrist-in Chief and current head of General Psychiatry Services and Geriatric Psychiatry Services. I also hold the Sam and Judy Pencer and Family Chair in Applied General Psychiatry. At the University of Toronto, I am a Full Professor of Psychiatry, a full member of the Institute of Medical Sciences in the School of Graduate Studies, and an invited member of the Neurosciences program. Previously, I was a was head of the Division of General Psychiatry at the University of Toronto and Director of the Joint Program in General Psychiatry at CAMH and Mont Sinai Hospital. I have extensive experience evaluating the impact of psychological and psychiatric factors on work performance and have appeared in arbitration disputes of this type on several occasions as an expert witness. Currently, I conduct an active psychiatric practice within which I see patients across the lifespan.

He testified that he also has expertise in cognitive processes and how they interact with emotional disturbances, having taught and practiced in this area.

57Dr. Sadavoy prepared his report based upon a review of relevant documents. He did not meet the grievor. The documents reviewed include:

Mr. Watterson’s emails describing his four telephone conversations with the grievor in July of 2010;
The letters and emails, described in the first section of this decision, that passed between the employer or employer counsel and the grievor or his union representative;
The letter Ms. Kuntz wrote to Dr. Fitzpatrick that he never received;
Dr. Fitzpatrick’s file regarding the grievor;
Dr. Turrall’s notes and his report
The results of the psychological tests performed at Dr. Turrall’s request

58Dr. Sadavoy concluded the grievor probably suffered from an adjustment disorder in the summer of 2010. In his report, the psychiatrist wrote:

[I]n the months of June, July and August, the grievor was struggling with a number of life stressors that became overwhelming as a result of his own actions. As circumstances spiralled out of control, he became increasingly worried and upset as he attempted to adjust and deal with the stressors. Concurrently, he exercised apparently inappropriate judgement in dealing with the demands placed upon him by the grievance in which he was involved. In each of these months he most probably suffered from adjustment disorder. Having said that I am also aware Dr. Fitzpatrick who actually saw the grievor on August 23, 2010 concluded he was depressed. I cannot exclude the possibility that the grievor’s adjustment problems precipitated a depressive disorder by August of 2010.

59In a supplemental report dated April 26, 2011, Dr. Sadavoy elaborated on what precipitated the adjustment disorder:

[E]lements of the grievor’s life stress may have preceded job-related difficulties but most probably became much more intense when his job was threatened after he was caught misappropriating funds. It then likely escalated further as he got himself into more trouble by lying to his employer beginning in June when he was supposed to return to work.

60As to the general nature of an adjustment disorder, Dr. Sadavoy wrote:

An essential feature of an adjustment disorder is the development of clinically significant emotional or behavioural symptoms in direct response to a psychosocial stressor or stressors. There stressors must be of an identifiable source ... The symptoms of an adjustment disorder develop relatively shortly after the onset of the stress, by definition, within three months. ... The other hallmark of an adjustment disorder is that it is responsive to the resolution or termination of the stress: i.e. within 6 months of the reduction in stress or its consequences, the individual returns to a more normal and stable state.

As to what he meant by “clinically significant” symptoms, Dr. Sadavoy testified they are beyond the control of the individual experiencing them and require professional intervention.

61Dr. Sadavoy in his initial report concluded the grievor’s ability to form an intent to deceive was not impaired by any mental disorder:

The nature of the emotional response of the grievor whether depressed or not is highly unlikely to have had any impact on his ability to form the intent to deceive. For depression to impair the ability to think clearly to this extent, it must be of a very severe nature, and, in particular, create a degree of impairment that produces a depressive loss of contact with reality. … There is no data in the record anywhere to suggest that this degree of emotional disturbance was present. … Indeed as I reviewed the record, it appeared to me that the grievor made decisions at different points that were thought out and tactical. … This is not in keeping with the type of disturbance that might occur in a depressive disorder which could impact on the abilities of an individual to form the intent to deceive. Overall, the response of the grievor …indicates avoidance of response to problems and behaviours that are more likely to stem from getting caught in a tangled web of deception and becoming anxious and fearful about the consequences of that, rather than impairment of the capacity to understand and respond.

62In his supplemental report, Dr. Sadavoy concluded the grievor’s dishonest behaviour did not arise from a psychiatric disorder:

I did not find clinical support for any such nexus. The nature of his emotional reaction to the events in his life are a highly improbable cause of dishonest behaviour. Most probably, he retained the capacity to understand the consequences of his actions and to form the intent to act, including to deceive.

63During examination-in-chief, Dr. Sadavoy was asked his opinion of the grievor’s cognitive functioning as revealed by his telephone conversations with his manager in July of 2010. Conceding the evidentiary record was sparse, Dr. Sadavoy saw no evidence of any impairment. To the contrary, the grievor was able to explain himself, to recognize the interaction between surgery and subsequent medical advice, to repeatedly alter his plan about returning to work, to have the insight that he wanted and needed to return and to present all of this in a clear and concise manner. Dr. Sadavoy described the grievor’s mental process as “integrated” and the series of telephone calls as a “coherent set of communications.”

64In cross-examination, Dr. Sadavoy testified that an adjustment disorder could interfere with concentration intermittently. He also said an impairment of cognitive functioning was unlikely.

65Dr. Sadavoy rejected the diagnosis of dysthymic disorder offered by Dr. Turrall. One of the criterion for this disorder is symptoms lasting more than two years. Dr. Sadavoy saw no evidence the grievor’s symptoms predated the summer of 2010 by two years.

66Discounting Dr. Turrall’s diagnosis of generalized anxiety disorder, Dr. Sadavoy wrote in his initial report:

In addition to the criteria that [Dr. Turrall] summarized in his report, there are additional important DSM diagnostic criteria ... [T]he anxiety conveyed by the individual with GAD is of an “intensity, duration or frequency far out of proportion to the actual likelihood or impact of the feared event. ... In contrast to GAD, in this case the grievor was embroiled in very real problems which realistically were likely to lead to major problems. ... Under these very real and overwhelming stressors, it is inevitable that any individual would become preoccupied with worry about themselves and their future. This realistic anxiety does not constitute the kind of psychological state meant by the psychiatric diagnosis of generalized anxiety disorder.

67According to the last chance agreement, the employer was entitled to terminate the grievor’s employment if he committed “any act of dishonesty related to or arising out of his employment” during a period of three years commencing on the “start date” of July 12, 2010.

68There is no dispute that the grievor engaged in this sort of dishonesty during the relevant period. Nonetheless, if termination for this misconduct would constitute discrimination prohibited by the Human Rights Code, the statute would prevail and the last chance agreement would be inoperative. See Slater Steels and United Steelworkers of America (1988), 1998 CanLII 19075 (ON LA), 76 L.A.C. (4th) 241 (M. Picher).

69Counsel for the employer contended the settlement reached on June 17, 2010 precludes the union from advancing a human rights defence in relation to the grievor’s conduct on (or before) that date. When union counsel later presented her full argument, it became clear she was not attempting to do what the employer had said was precluded. Having noted the last chance agreement applied only to misconduct after July 12, 2010, counsel for the union then proceeded to argue termination for misconduct on or after July 12 would contravene the Human Rights Code. As the union has not made a discrimination claim in relation to the events June 17, I need not rule on whether the settlement foreclosed any such claim.

70The first step in applying the Human Rights Code is to determine whether the grievor had a “handicap” (or disability) during the summer during the summer of 2010.

71In contending the grievor was disabled, the union relies to a large degree upon the symptoms reported by the grievor and his wife. Even the medical experts relied heavily upon these reports. The employer urges me to reject them as not credible. If the only evidence of about symptoms came from the grievor, there would be good reason to doubt its credibility because he has repeatedly lied about other matters. Here the grievor’s evidence is corroborated by his wife. She does have an interest in the outcome of this case but that alone provides no reason to doubt her credibility. As a registered nursing assistant in a psychiatric facility, she would know more about mental disorders than the average person. That knowledge would facilitate fabrication, if she was dishonest, but such knowledge offers no proof of dishonesty. Indeed, there is very little reason to doubt her credibility. When Dr. Turrall asked about the family finances, she did not tell him about the money withdrawn from an RRSP, but there is no evidence about precisely what questions he posed. If he asked only about earnings from employment, the non-disclosure of other income would provide little reason to doubt her truthfulness. I accept as credible her account of the grievor’s symptoms.

72Based on Dr. Sadavoy’s assessment, I conclude the grievor was suffering from an adjustment disorder in the summer of 2010. While Dr. Sadavoy preferred this diagnosis, he did leave open the possibility of a depression, as diagnosed by Dr. Fitzpatrick, who actually saw the grievor in August of 2010. Dr. Fitzpatrick apparently did not consider the possibility of the grievor suffering from an adjustment disorder rather than depression. Asked during examination-in-chief what an adjustment disorder was, he replied that he did not use that terminology. Given Dr. Sadavoy’s greater expertise and his consideration of alternative diagnosis, I prefer the one he settled on over the one offered by Dr. Fitzpatrick.

73I accept as valid Dr. Sadavoy’s critique of Dr. Turrall’s diagnosis. His diagnosis of dysthymic disorder is patently wrong because there is no evidence of symptoms predating the summer of 2010 by more than two years. Indeed, the grievor’s wife acknowledged his problems began after he was first terminated in late 2009. Dr. Turrall’s diagnosis of generalized anxiety disorder was apparently made without reference to the DSM criterion that a person’s anxiety be out of proportion to the actual situation. This criterion is not mentioned in Dr. Turrall’s report and I accept Dr. Sadavoy’s conclusion that the grievor’s anxiety did not satisfy it. In my view, the two diagnosis offered by Dr. Turrall were reached without due regard to the applicable criteria and the relevant facts.

74The employer contends an adjustment disorder is not a “handicap” within the meaning of the Human Rights Code. Counsel for the employer relies upon the decision of a Board of Inquiry in Ouimette and Lily Cups Ltd., [1990] C.L.L.C. 17,091 holding the flu does not meet the statutory definition of handicap. Noting this malady lasts only a few days, the Professor Baum wrote:

In my view, it would be wrong to attempt to stretch the meaning of illness [included within the statutory definition of handicap] to include the flu. It would be wrong because of the effect such construction would have on the high purpose otherwise achieved by ... protecting those who are actually, or perceived to be, materially impaired through illness. (emphasis added)

75How does the Lily Cups decision apply to the facts at hand? According to Dr. Sadavoy, the grievor’s adjustment disorder was a normal response to the very difficult circumstances in which he found himself. I might add he was the author of his own misfortune to a substantial degree. Nonetheless, he had clinically significant symptoms requiring professional intervention and his disorder lasted months not days. In my view, a malady this serious is a handicap because it materially affected the grievor’s life.

76The next question is whether the grievor’s misconduct was related to his disability in a manner that would render discipline a violation of the Human Rights Code. This issue is analogous to the one faced by arbitrators called upon to decide whether misconduct by a disabled employee was linked to the disability in a way that exempts the employee from punishment for wrong doing.

77The employer cites a series of arbitrations awards: (1) Canada Post Corporation and Canadian Postmasters and Assistants Assoc. (2001), 2001 CanLII 62085 (CA LA), 102 L.A.C. (4th) 97 (Christie); (2) Canada Safeway Ltd. and Bakery, Confectionary & Tobacco Workers International Union (2002), 2002 CanLII 79071 (AB GAA), 113 L.A.C. (4th) 385 (Smith); (3) Liquor Control Board of Ontario and Liquor Control Board Employees’ Union (2003), 2003 CanLII 89595 (ON GSB), 122 L.A.C. (4th) 238 (Abramsky); (4) City of Hamilton and Amalgamated Transit Union (2006), 155 L.A.C. (4th) 377 (Knopf); (5) British Columbia Public School Employers’ Assoc. and British Columbia Teacher’s Federation (2009), 185 L.A.C. (4th) 1 (Hall); and (6) Tyco Thermal Controls (Canada) Ltd. and Communications, Energy and Paperworkers Union of Canada, [2009] O.L.A.A. No. 15 (Harris).

78The employer relies primarily on Professor Christie’s decision in Canada Post which was cited with approval in a number of the latter cases. He adopted the test set out in Canada Safeway Ltd and Retail, Wholesale and Department Store Union (1999), 1999 CanLII 35903 (SK LA), 82 L.A.C. (4th) 1 (Ish):

Once an illness has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct. The mere presence of psychological stress does not automatically lead to improper behaviour such as theft. ...

If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor’s conduct less culpable. (emphasis added)

79The union relies on the following decisions: (1) Nestle Canada Inc. and United Steelworkers of America (2001), 9 L.A.C. (4th) 172 (Thorne); (2) Government of British Columbia and B.C. Government and Service Workers Union, [2002] B.C.L.R.B.D. No. 210; (3) Fraser Lake Sawmills and Industrial Wood and Allied Workers Union, [2002] B.C.L.R.B.D. No. 213; (4) Vancouver Police Board and Teamsters (2002), 2002 CanLII 78936 (ON LA), 112 L.A.C. (4th) 1 (Germaine); (5) Port Coquitlam and Canadian Union of Public Employees, [2005] B.C.C.A.A.A. No. 108 (Munroe); and (6) Coca-Cola Bottling Co. and CAW-Canada (2009), 190 L.A.C. (4th) 45 (Chauvin).

80Several of these cases are from British Columbia where the Labour Relations Board, utilizing its power to review arbitration awards, has formulated a test that arbitrators are obliged to apply. In Government of British Columbia, the Board decided a “non-culpatory” approach must be applied to misconduct if an employee’s disability “significantly impaired his or her ability to choose to act otherwise” (para. 54).

81In my view, there is little practical difference between the significant-impairment-of-choice test from British Columbia and the sufficient-displacement-of-responsibility test in Canada Post. If choice is significantly impaired that may constitute a sufficient displacement of responsibility.

82Union counsel suggested two of the cases cited created either a reverse onus or a low threshold for proving a causal connection between disability and misconduct. In Vancouver Police, a civilian employee stole a service revolver with a view to committing suicide. She made one attempt to kill herself and then kept the gun for four years. Arbitrator Germaine held the grievor’s bipolar disorder significantly impaired her ability to make sound decisions when she took the gun. Having applied a non-culpable label to the initial theft, the arbitrator attached the same label to the grievor’s subsequent misconduct in keeping the gun for four years, even though she was lucid throughout much of this period. He wrote:

I am not persuaded the evidence has established the grievor had the capacity to turn in the firearm and confess to having taken it from the gun locker. ...

Further, the concealment of the handgun for nearly four years was only one aspect of a sequence of events that commenced when she took the gun ... I have already found that her conduct in taking the gun and firing it was non-culpable. It would be artificial to isolate aspects of the events and adopt a blinkered culpable analysis with respect to those portions of the sequence. (para. 76 and 77)

The first paragraph quoted above does seem to suggest the employer bore the burden of proving the misconduct of keeping the gun was not caused by the disability. If that is was Arbitrator Germaine intended, he was out of step with the arbitral consensus and I decline to follow him. The second paragraph offers a sounder rational for not treating the retention of the gun as culpable. The grievor’s major offence was taking the gun and taking it necessarily resulted in possession for a least some time. Granted she had the gun for a very long time, but what she really did throughout this period is best characterized as failing to return the gun. This is an omission in the true sense of the word. She omitted to do something but she did not engage in any further wrongful acts.

83Counsel for union urged me to conclude a low threshold was set in Nestle Canada where an equipment operator reported to work drunk. The grievor suffered from bipolar mood disorder. His psychiatrist testified that drinking was something he did “to handle his mental condition.” I take this to mean he drank to make his symptoms more bearable. Arbitrator Thorne wrote:

It is far from clear that one can readily isolate the grievor’s taking a drink on this occasion from his mental condition. I conclude, on the balance of probabilities that the incident was a manifestation of his bipolar mood disorder. (page10)

I do not read this award as setting a low threshold for proof of the casual connection between disability and misconduct. The psychiatrist’s evidence was that the grievor drank to make his condition more bearable. In my view, that testimony was compelling evidence of a substantial causal connection.

VII

84The union contended the grievor’s misconduct was linked to his disability in two ways. The first argument is he was cognitively impaired and that impairment adversely affected his ability to make sound decisions. The second is the stigma associated with mental illness led him to fraudulently assert a physical incapacity. I will first consider the issue of cognitive impairment.

85I prefer Dr. Sadavoy’s opinion about cognitive impairment over the one offered by Dr. Turrall in his report. Here too I find Dr. Sadavoy’s conclusion to be well grounded in the relevant facts. He reached his conclusion after reviewing the emails recounting the details of the grievor’s telephone conversations with his manager. Dr. Turrall lacked those details when preparing his report. When they were brought to his attention, he conceded the grievor had presented a coherent story over the course of these conversations.

86Another reason for preferring Dr. Sadavoy’s opinion on cognitive impairment is that his general approach was more thorough and objective than Dr. Turrall’s. I have already noted Dr. Sadavoy’s diagnosis was based on a more careful consideration of the applicable criteria and relevant facts than was the diagnosis of Dr. Turrall. I am concerned that Dr. Turrall’s conclusion that the grievor was cognitively impaired is as unsound as his diagnosis. There is nothing to suggest Dr. Sadavoy was not objective in his assessments, whereas Dr. Turrall was less than objective when he adopted parts of the MCMI-2 interpretive report but cleansed them of passages reflecting poorly on the grievor. I am concerned a similar lack of impartiality may have tainted his opinion that the grievor was impaired in his ability to process information and make sound decisions.

87Dr. Sadavoy concluded that there was no cognitive impairment in the summer of 2010, save perhaps for an occasional problem concentrating. I accept this conclusion. I note it is consistent with Dr. Fitzpatrick’s testimony that the grievor was “coherent” when they met on August 23 for approximately half an hour. I adopt Dr. Sadavoy’s conclusion notwithstanding Ms. Kuntz’s evidence that the grievor was confused in mid-August. Her assessment was based on a couple of brief telephone conversations. When testifying, she provided little detail about what the grievor actually said to her. In my view, the one example offered, his saying he needed to work but could not, demonstrates more insight than confusion.

88An occasional problem concentrating cannot explain the grievor’s course of dishonest conduct in the summer of 2010. He did not have a cognitive deficit that displaced responsibility or significantly impaired his ability to choose to act otherwise.

VIII

89The union also contends the stigma associated with mental illness caused the grievor to misrepresent his incapacity as stemming from a physical ailment.

90Union counsel cited a number of studies dealing with this stigma. A study by the Centre for Addiction and Mental Health, entitled Addressing Stigma: Increasing Public Understanding of Mental Health (2003), prepared for the Standing Senate Committee of Social Affairs, states:

Nearly two-thirds of all people with diagnosable mental disorders do not seek treatment. Stigma surrounding the receipt of mental health treatment is among the many barriers that discourage people from seeking treatment. The stigmatization of mental illness and the lack of information on the symptoms of mental illness are seen as the main barriers to seeking help for mental health problems. ...

Seven out of ten people [with severe mental illness] said they had been treated as less competent by others when their illness is revealed. Three out of four said they avoid disclosing their illness to anyone outside their immediate family. (page 4)

91A report by the Canadian Mental Health Association, entitled “Stigma and Mental Illness (undated), states:

Stigma infects every issue surrounding mental health, often with worse consequences that the illness itself. ...

Individuals with mental illness and their family members may also experience “self-stigma”, viewing themselves with embarrassment or self loathing as a result of internalizing the negative perceptions around them. (pages 1 and 2)

92The Conference Board of Canada, in a report entitled Building Mentally Healthy Workplaces: Perspectives from Canadian Workers and Front-Line Managers ((2011) states:

While most employees remain confident that their employer would keep their health in confidence, they are concerned about how a disclosure would affect them in their jobs and careers. ...

Both of these fears are heightened among employees who are currently experiencing a mental health issue:

Sixty-five per cent believe that their chances at a promotion would be negatively impacted if senior management were aware of a mental health issue.

Forty-three per cent believe that it would negatively impact their success in the organization ...

Among employees currently experiencing a mental health issue, less than three in ten (29 per cent) agree that they are treated in the same dignified, respectful manner as employees with physical illness. ...

The majority of employees (57 per cent) agree or strongly agree that their immediate supervisor cares about their mental and emotional well-being. However, only 36 per cent of employees would feel comfortable talking to their manager about a mental health issue. (pages 7 to 10)

93The Supreme Court of Canada has acknowledged the stigma associated with mental illness. In R. v. Swain Lamer C.J. wrote:

The mentally ill have historically been the subjects of abuse, neglect and discrimination in our society. The stigma of mental illness can be very damaging. The intervener, C.D.R.C. [Canadian Disability Rights Council], describes the historical treatment of the mentally ill as follows:

For centuries, persons with a mental disability have been systematically isolated, segregated from the mainstream of society, devalued, ridiculed and excluded from participation in ordinary social and political processes.

The above description is, in my view, unfortunately accurate and appears to stem from an irrational fear of the mentally ill in our society.

94I acknowledge a desire to avoid stigma may play a significant role in an employee’s decision not to disclose a mental illness. I also accept that in some circumstances stigma may play a significant role in causing an employee with a mental illness to misrepresent the resulting disability as having a physical cause. Faced with such a misrepresentation, an adjudicator should weigh all the circumstances when determining what role, if any, stigma played. The presence of a mental illness is not a sufficient basis for concluding stigma played a significant role in the misrepresentation of the nature of a disability.

95Was the avoidance of stigma a significant motive for the grievor’s dishonest conduct? While the last chance agreement does not apply to events before July 12, 2010, the grievor’s motive is best discerned by considering the entire course of events that began on June 17. On that date, when the employer proposed a return to work two weeks later, the grievor thought that was too soon. He asked for more time to recover from the fictional surgery.

96On June 17 stigma may have deterred the grievor from revealing a mental illness. However, stigma does not explain why he did not ask for a delayed return to work without mentioning any disability and without engaging in deceit. The grievor apparently made no attempt to alter the return to work date, without asserting any sort disability, before he resorted to a lie about the nature of his disability.

97There is reason to suspect the grievor’s desire to delay his return to work was not based solely on concerns related to health. His new position was at the Pickering store some distance from his home. When this location was discussed on June 17, he asked for a location closer to home, saying his family was down to one car. He again mentioned a car problem when he next spoke to his union representative on August 12. These circumstances suggest he may have invented a physical ailment on June 17, at least in part, to address a car problem. This sort of misrepresentation cannot be explained by the stigma associated with mental illness.

98Whatever the grievor’s initial motivation for making false claims about leg surgery, his subsequent misconduct soon took on an element of cover-up. On his own admission, he misled to Mr. Watterson in July in order to provide a story consistent with his original lie.

99On August 23 the grievor saw Dr. Fitzpatrick and obtained a medical note, citing a depression illness, for delivery to the employer. By this time the grievor had overcome any inhibition about disclosing his mental illness. Yet his course of deceitful conduct, calculated to cover his tracks, continued on August 23 and thereafter.

100Ms. Kuntz had prepared a letter, mentioning leg surgery, for delivery to Dr. Fitzpatrick on August 23. The grievor took steps to ensure this letter never reached the doctor. I conclude the grievor did not want Dr. Fitzpatrick to know he had claimed to have surgery. Keeping his family doctor in the dark about the fictional surgery was important to the grievor because the doctor was likely to recognize the fiction, and such recognition could have a detrimental impact on what the doctor told the employer.

101The grievor misled Ms. Kuntz about why he did not want her to send a letter to his doctor. On August 23 he sent her an email saying the reason was that he preferred to discuss things in person, whereas the real reason was that he did not want Dr. Fitzpatrick to know he had claimed to have surgery. By lying to Ms. Kuntz about the letter, the grievor avoided having to tell her there had been no surgery and, thereby, ensured she would not tell the employer.

102On August 27 Ms. Kuntz sent a letter to the employer which also mentioned leg surgery. The grievor received a copy of this letter but took no steps to correct the union’s misrepresentation to the employer, even though it stemmed from his own earlier misrepresentations to the union.

103The grievor’s efforts to cover his tracks continued on September 14 when he asked Dr. Fitzpatrick to rewrite the longer medical note first offered to him. The most likely explanation for this request lies in the first sentence of the note which implies the grievor did not see the doctor before August 23. I conclude the grievor asked for a revision because he did not want his employer to know he had not received medical care in July. The doctor responded to this request by deleting not just the first sentence but also the second, leaving only the last sentence which made little sense standing alone. Faced with a choice between the two versions available, the grievor gave the longer one to the employer. In other words, the grievor’s attempt to conceal the date of his first medical visit failed. Nonetheless, his conduct on September 14 displaced a disregard for the truth weeks after stigma ceased to play any role.

104None of the grievor’s deceitful conduct on August 23 or later can be explained by a desire to avoid the stigma associated with mental illness. By that date his mental disorder was already out of the closet. I conclude he continued to deceive on and after August 23 in order to cover-up his earlier misrepresentations.

105The foregoing analysis separates what the grievor did on and after August 23 from what he did before that date. Union counsel urged me to view the grievor’s misconduct as a whole and not to isolate some of it from the rest. Arbitrator Germaine took this sort of holistic approach in Vancouver Police, refusing to view the grievor’s prolonged illicit possession of a handgun in isolation from her earlier theft of the gun. As I have noted above, all the grievor in that case did after taking the gun was to omit to return it. In contrast, on August 23 and thereafter the grievor did much more than omit to retract his earlier misrepresentations. He took a number of positive steps to conceal those misrepresentations. Any connection between this active misconduct and the stigma associated with mental illness is very tenuous. In my view, even if stigma played a significant role in the grievor’s initial misrepresentation, it did not play a significant role in the subsequent cover-up

106Absent a finding of unlawful discrimination, there are compelling reasons to enforce the last chance agreement. In Standard Products (Canada) Ltd. and Canadian Auto Workers (1996), 1996 CanLII 20312 (ON LA), 56 L.A.C. (4th) 88, Arbitrator Davie wrote:

Here the parties, the employer and the union and the grievor, made a bargain and each should be held to it. If arbitrators do not uphold or enforce “last chance” agreements, parties would be discouraged from resolving matters and agreeing upon conditions ... Arbitrators are generally reluctant to subject “last chance” agreements to further arbitral review. This is particularly true in circumstances such as the present where the conditions upon which the grievor was reinstated are both reasonable and fair. (page 96)

107Union counsel argued the grievor should be reinstated based upon his long service, the absence of a disciplinary record prior to November of 2009, his dire financial situation and his mental health issues. These factors would warrant consideration if there was no last chance agreement and I had the discretion normally afforded to arbitrators to review disciplinary penalties. However, the union did not cite any authorities suggesting the sort of situation in which the grievor finds himself provides grounds for not enforcing the parties’ agreement in this case. While I have great sympathy for the grievor’s plight, it does not warrant over-riding that agreement.

108My conclusions can be briefly summarized. I have concluded the grievor suffered from a disability but it was not a significant cause of his dishonest conduct. As there is no basis for overturning the last chance agreement, his termination under the terms of that agreement is sustained.

Dated at Toronto this 28th day of July 2011.