GSB#2009-2699, 2009-2700, 2009-2701, 2010-0572, 2010-0589, 2010-0590, 2010-0591, 2010-0592, 2010-0593

UNION#2009-0368-0161, 2009-0368-0162, 2009-0368-0163, 2009-0368-0202, 2010-0368-0018, 2010-0368-0019, 2010-0368-0020, 2010-0368-0021, 2010-0368-0022

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Legal Services Branch Counsel

HEARING

March 31, June 30, July 15, September 8 & 9, October 24, December 9, 14 & 16, 2011, January 16 & 17, March 15, 19, April 27, June 8, 20, July 31, September 7, 11, October 25, November 8, 15, December 13, 2012, January 22, 29, March 12, 15, June 20, 21, 2013.

Decision

1Mr. B. Hyland has been employed as a Correctional Officer ("CO") for over twenty-five years, starting at the Toronto Jail in 1986. Following a secondment at the Toronto East Detention Centre ("TEDC") for about a year, he succeeded in a job competition that brought his home position to the TEDC in February 1995. Following decisions of the GSB, Mr. Hyland moved to the Brookside Youth Centre ("Brookside") in August 2004 and then to the Central East Correctional Centre ("CECC") in September 2009, where he is currently employed. During his tenure at each of these institutions Mr. Hyland filed numerous grievances claiming, among other things, that the Employer had discriminated against him because of its failure to reasonably accommodate him. Mr. Hyland has asthma and a particular sensitivity to cigarette smoke. Exposure to cigarette smoke causes symptoms that often result in absences from work for varying periods of time. In separate decisions, with the first released on May 13, 2002, I found that the Employer had failed to properly accommodate Mr. Hyland while he was employed at the TEDC, at the Toronto Jail and at Brookside. This decision deals with whether the Employer reasonably accommodated Mr. Hyland at the CECC for the period from September 2009 until July 14, 2011. Hearing dates have been scheduled to deal with grievances filed by Mr. Hyland after mid-July 2011.

2Even with the efforts of counsel to expedite this proceeding, the hearing of this matter required twenty-nine hearing days. There were 151 exhibits. The Union called Mr. Hyland and CO Ms. C. Yule to testify. The Employer called the following seven managers as witnesses: Mr. C. Hillen; Mr. R. Camman; Mr. L. Mansley; Ms. L. Jopling; Ms. G. Thornbury; Mr. D. Goden; and Mr. Z. Polya, Superintendent. In determining the relevant facts, I reviewed and considered all of the oral and documentary evidence and the submissions of counsel relating thereto. I utilized the usual criteria to resolve any conflicts in the evidence, including a consideration of what is most probable in the circumstances.

3In its claim that the Employer failed to reasonably accommodate Mr. Hyland, the Union focused on a few specific matters. These are the decision of the Employer to deny Mr. Hyland access to the secure part of the institution during his first three months at the CECC, the assignment of Mr. Hyland to the Upper Hallway post and then to the Unit 12 Sub-Control post, the Employer's handling of what can be described as the A&D incident, which the Union asserts caused Mr. Hyland's absence from the workplace from September 13, 2010 until March 28, 2011, and the Employer's failure to adequately police and enforce the smoking policy. Although Mr. Hyland referenced other issues during his testimony, it was only the specific matters that I have just identified which shaped the Union's claim for relief. In addition to requesting certain declarations, the Union seeks an order directing the parties to find a proper placement for Mr. Hyland within the Ontario Public Service and that Mr. Hyland remain on full pay without the requirement to report to work at the CECC until a proper placement is found. Alternatively, it requests that I direct the Employer to assign Mr. Hyland to A&D at the CECC, with the appropriate modifications made to the A&D schedule to accommodate his restrictions. In the further alternative, the Union requests that I direct the parties to find a reasonable post for Mr. Hyland at the CECC. The Union also seeks a direction that the Employer fully compensate Mr. Hyland for losses he incurred from September 13, 2010 to March 28, 2011, arising from the Employer's failure to properly accommodate him. I was asked to remit any other compensation issues to the parties. The Union also requests that I award Mr. Hyland $50,000.00 in general damages and $25,000.00 in damages for mental anguish, both claims arising from the Employer's failure to reasonably accommodate Mr. Hyland.

4In support of his submissions, counsel for the Union referred me to the following decisions: OPSEU (Hyland) and Ministry of Correctional Services (May 13, 2002), GSB No. 1470 et al. (Petryshen); OPSEU (Hyland) and Ministry of Public Safety and Security (January 2, 2004), GSB No. 1991-1470 et al. (Petryshen); OPSEU (Hyland) and Ministry of Children and Youth Services (September 5, 2007), GSB No. 2005-2549 et al. (Petryshen); Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, 2008 SCC 43, [2008] 2 S.C.R. 561; OPSEU (Kerna) v. Ontario (Human Rights Commission), [2005] O.G.S.B.A. No. 30 (Briggs); Bowater Canadian Forest Products Inc. v. Industrial Wood and Allied Workers of Canada, Local 2693, [2003] O.L.A.A. No. 597 (Surdykowski); National Automobile, Aerospace, Transportation and General Workers Union of Canada v. Siemens VDO Automotive Inc., [2006] O.L.A.A. No. 492 (Watters); OPSEU (Hyland) and Ministry of Correctional Services (November 13, 2002), GSB No. 1470/91 (Petryshen); Sanford v. Koop, 2005 HRTO 53; and, Re Charlton and Ontario (Ministry of Community Safety and Correctional Services) (2007), 2007 CanLII 24192 (ON PSGB), 162 L.A.C. (4th) 71 (Carter).

5The Employer denies that it has failed in its duty to accommodate Mr. Hyland. Employer counsel provided the Employer's perspective on those matters that the Union claimed constitutes discriminatory treatment. Counsel requested that I dismiss Mr. Hyland's grievances and made a number of alternative submissions in the event that I was not inclined to do so. Counsel relied on the following decisions: OPSEU (Hart-Day) v. Ontario (Ministry of Community Safety and Correctional Services), [2011] O.G.S.B.A. No. 107 (Dissanayake); Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Hutchinson v. Canada (Minister of the Environment), 2003 FCA 133, [2003] F.C.J. No. 439; Koroll v. Automodular, 2011 HRTO 774; Greater Toronto Airports Authority v. Public Service Alliance Canada, Local 0004, [2010] C.L.A.D. No. 127 (Shime); Lane v. ADGA Group Consultants Inc., 2007 HRTO 34; Re City of Ottawa and Civic Institute of Professional Personnel, an unreported decision dated September 10, 2010 (P. Picher); and, Toronto District School Board v. Ontario Secondary School Teachers’ Federation, District 12, [2011] O.L.A.A. No. 461 (Knopf).

6The context for the examination of Mr. Hyland's experiences at the CECC and an understanding of the positions of the parties can be extracted from elements of the previous accommodation decisions involving Mr. Hyland. Even after the Ministry adopted a no smoking policy in 2000, Mr. Hyland continued to encounter cigarette smoke and to observe evidence of smoking at his place of work. He complained about exposures to cigarette smoke to management. He complained when he observed management or staff smoking at the workplace in contravention of the smoking policy. He also complained when he observed evidence of smoking, usually consisting of cigarette butts, in areas where smoking is prohibited, both within the institution and on the property. He consistently complained that management did not take appropriate steps to monitor and enforce the smoking policy. A recurring dispute between the parties in the earlier proceedings is whether management took reasonable steps to enforce the smoking policy. Mr. Hyland complained verbally, in emails, with grievances and in Occurrence Reports about contraventions of the smoking policy. He filed WSIB claims and on occasion made WDHP complaints. In an effort over many years to obtain what he believes is a reasonable accommodation, Mr. Hyland has become quite frustrated with the Employer. He claims that his continuing efforts to secure a proper accommodation, the Employer's failure to enforce the smoking policy and its failure to properly accommodate him have caused him and his family considerable stress. Mr. Hyland often perceives Employer conduct as a reprisal for his efforts to enforce his right to obtain a proper accommodation.

7In one of the proceedings involving Mr. Hyland's experiences at the TEDC, the Union requested that I direct the Employer to consider only positions outside of the TEDC in future efforts to accommodate him. I declined that request for the reasons set out in the decision dated May 13, 2002, supra. I indicated then that management's failure to properly accommodate Mr. Hyland at the TDEC might lead to his transfer to another institution. In a subsequent proceeding, I determined that the time had come for the Employer to place Mr. Hyland at a different institution and following a further subsequent proceeding, based on the alternatives and the evidence before me, I determined that Brookside was the appropriate placement for Mr. Hyland. The reasons for this determination are set out in the decision dated January 2, 2004, supra. In addition to concluding that Brookside met the objective of an institution "where the level of risk of exposure to cigarette smoke is acceptable and the lowest possible", I noted the following factors at pages 4 and 5 also favoured an assignment to Brookside:

In addition to providing an environment where the risk of exposure is lower, Brookside offers other elements which are not insignificant when considering an assignment for accommodation reasons. Rather than being limited to a particular post at an institution, which would be the situation with the Employer's offer of a position at the Toronto West, Mr. Hyland will more likely be able to perform a full range of duties at Brookside. He will also likely have access to overtime and promotional opportunities at Brookside, which certainly have been limited to a degree at his previous institutions. As a result, it will be less likely that Mr. Hyland will be viewed differently at Brookside because of his need for accommodation.

8As it turned out, Mr. Hyland had issues with the way the Employer accommodated his disability at Brookside. Once the youth offender facilities were transferred to the Ministry of Children and Youth Services, an opportunity arose for Mr. Hyland to transfer back to the Ministry of Community Safety and Correctional Services. Mr. Hyland requested a lateral transfer to the CECC. The Employer denied his request and he challenged that decision by filing a grievance. In a decision dated September 8, 2009, I allowed Mr. Hyland's grievance and directed the Employer to transfer him to the CECC, for the following reasons:

…what is at issue here is whether Mr. Hyland's right to transfer to the CECC should be negated simply because it was decided nearly six years ago that Brookside was a better option than the CECC. In my view, the placement decision is not a bar to Mr. Hyland's right to transfer to CECC, particularly when the Employer has not claimed that it cannot accommodate him at the CECC. By denying him the right to transfer to the CECC, a right that other employees enjoyed, the Employer has effectively denied him a right because of his disability, thereby breaching his Article 3 rights. It is my conclusion therefore that the Employer did not have a valid reason in the circumstances for denying Mr. Hyland's request to transfer to the CECC.

In a letter dated September 16, 2009, Superintendent Polya advised Mr. Hyland that his lateral transfer had been approved and that he was to report to the CECC on September 21, 2009.

9The CECC opened in February 2003. It is a large maximum-security facility located at Lindsay, Ontario. The thirteen self-sufficient units are under one roof, connected by hallways. Offenders are housed in pods. The CECC can house approximately 1200 inmates and has 600 employees. Central control is located at the centre of the facility and operates on a 24 hour, 7 days a week basis. A control module is located in each unit and operates on the same basis. Employees can have lunch and take breaks in the Staff Servery. Separated by a glass wall and a doorway, an outdoor courtyard is adjacent to and visible from the Staff Servery. The main entrance into the CECC is at the front of the administration building facing the parking lot. At the request of the parties, I took a view of the CECC on June 30, 2011.

10The CECC's smoking policy, which essentially mirrors the Ministry's smoking policy, is contained in section 2.8 of the Standing Orders. The introduction in section 2.8 notes that the Ontario Government Policy on Smoke Free Workplaces is "based on well-documented evidence relating to the health hazards of tobacco smoke and an awareness of the employer's responsibility to provide safe and healthy workplaces…" Section 2.8 provides that smoking is prohibited in buildings, yards, courtyards, out buildings and Ministry vehicles. Employees are not permitted to smoke or possess tobacco products in the facility or while supervising inmates. Managers and Supervisors are responsible for ensuring compliance with the policy. The policy provides that "At present the only designated smoking area is located to either side of the front parking lot, adjacent to the benches situated on the north and south side of the administration building." The administration building has an extended section where the front entrance doors are located. The distance on either side of the front entrance to the edge of the administrative building is 57 feet. The front entrance to the designated smoking areas is 197 feet to the south picnic tables and 184 feet to the north picnic tables. The distance to the smoking shelter located on the south side is 163 feet from the entrance. The smoking shelter was installed a few months after Mr. Hyland arrived at the CECC. The smoking policy provides that appropriate signage will be posted in various areas including the entrance to the administration building, the lobby and the Staff Servery.

11Although Mr. Hyland attended at the CECC on September 21, 2009, further to the Superintendent's instruction, he did not start to work until September 28 because of a request to provide a medical note confirming his health status. In a medical note dated September 23, 2009, Mr. Hyland's family physician, Dr. Bolger, advised that Mr. Hyland could return to work on September 28, 2009 and that "He should be restricted to a smoke free environment and restricted hours to straight day shifts ending no later than 5:00 pm Monday through Friday." After a period of orientation and job shadowing, Mr. Hyland was assigned the Upper Hallway post and he was directed not to enter the secure part of the CECC. It is at this point that I will begin to concisely address the matters upon which the Union focused its claims of discriminatory treatment against Mr. Hyland.

Denial of access to the secure part of the CECC

12As one would expect, COs are assigned posts and perform their duties primarily within the secure part of the institution, the part where inmates have access. The non-secure part essentially consists of the administration section of the facility. On occasion, a CO under investigation for misconduct may be permitted to work in the non-secure area. Superintendent Polya and Mr. Goden, Deputy Superintendent of Administration, decided that denying Mr. Hyland access to the secure part of the CECC would best meet his need for a smoke free environment. I have no doubt from their testimony that this decision was made in good faith.

13The denial of access to the secure area of the CECC meant a number of things for Mr. Hyland. He signed in each day at a location different from other COs. He could not access many of the services provided to COs since they were located in the secure part of the institution. He could not go to the Staff Servery for lunch or to enjoy the other amenities provided at that location, such as a television and couches. He was provided with access to the lunchroom in the administration building. A computer, health care and the Union office are other examples of services Mr. Hyland could not access or had difficulty in accessing. Exclusion from the secure part of the institution also meant that Mr. Hyland had limited contact with other COs.

14It did not take long for Mr. Hyland to begin complaining about the Employer's decision to deny him access to the secure area of the CECC. One of his last expressions of concern to management on this issue is contained in an email to the Superintendent dated January 18, 2010, wherein Mr. Hyland wrote in part as follows:

I have and continue to experience a poisoned work environment at Central East Correctional Centre. I have differential treatment from my peers in not being able to access certain areas of the institution because I have asked for an accommodation. As a reprisal I am now not allowed to go and eat with my peers, I must eat with office staff. I have no access to the union office, health care, vending machines, nor do I have access to certain computers or the TV VCR DVD's in the staff lounge…

15After speaking to Mr. Hyland about his concerns and after reconsidering the matter, Superintendent Polya decided on his own to give Mr. Hyland access to the secure part of the facility, effective January 22, 2009. This access did not include the inmate living units. Superintendent Polya agreed with Union counsel that there was no change from the perspective of the provision of a smoke free environment when Mr. Hyland was given access to the secure part of the CECC.

16I agree with the Union's position that the Employer's decision to deny Mr. Hyland access to the secure part of the CECC, by itself, amounts to discriminatory treatment on the basis of disability. Excluding Mr. Hyland from the secure section of the institution was too restrictive and was not necessary to achieve the objective of a smoke free environment. There was no justification to treat Mr. Hyland differently from other COs in these circumstances. The effect of this treatment was to single out Mr. Hyland and to isolate him from other COs. It is unfortunate that Mr. Hyland experienced this discriminatory treatment at the start of his tenure at the CECC. The Employer's decision to deny his request for a lateral transfer caused Mr. Hyland to believe that he was not wanted at the CECC. Denying him access to the secure part of the CECC served to confirm this belief.

The assignments of a post

17It is quite clear from Mr. Goden's testimony that the decision of where to place Mr. Hyland was preceded by the decision to exclude him from the secure part of the CECC. He indicated that other posts, such as in Central Control and the A&D Sub-Control, would provide Mr. Hyland with a smoke free environment, but that these posts were not considered because they were located in the secure part of the CECC. This approach left the Employer with three placement options: the Upper Hallway post, the X-ray post and A&D Sally Port post. These three posts were utilized often for accommodating COs. The X-ray post was rejected because there were no vacancies at the time. Mr. Hyland thought the A&D Sally Port post would be problematic because drivers making deliveries were often smokers. The Employer recognized this as a valid concern and therefore rejected this post as a possible placement. This then left the Upper Hallway post. This post consists of a desk in the hallway on the second level from which the CO essentially monitors visitors. Visiting hours are in the morning and in the afternoon. There has apparently been an ongoing issue about whether a post was needed at that location. Whether or not Mr. Goden told Mr. Hyland that this was a boring post, as Mr. Hyland asserts and Mr. Goden denies, it is clear that there is not all that much for a CO to do at this post. It is a fairly limiting and isolated post when compared other posts within the institution. COs assigned to that post often asked Mr. Goden for additional duties to keep busy. Mr. Hyland remained at the Upper Hallway post even after he was allowed access to the secure part of the CECC. He often expressed displeasure to management about this post and requested that he be assigned to another one. In April 2010, Mr. Hyland got his wish when he was assigned to the Unit 12 Sub-Control post, located at the far south area of the secure part of the CECC. This change was made because another CO required the Upper Hallway post for an accommodation. It was not long before Mr. Hyland again began requesting that he be assigned a different post. He felt that the Unit 12 Sub-Control post was somewhat isolated and not the most active post. As Employer counsel noted, the risk of exposure to cigarette smoke at the Upper Hallway and Unit 12 Sub-Control posts is very low. Mr. Hyland did not have one exposure to cigarette smoke while working at those posts.

18The submissions of counsel on whether the placement of Mr. Hyland at the Upper Hallway and Unit 12 Sub-Control posts satisfied the Employer's obligation to provide Mr. Hyland with a reasonable accommodation disclosed a dispute about what constitutes a reasonable accommodation. The parties agree that it is for the Employer to ultimately decide what job to assign to an accommodated employee, after taking into account the employee's medical restrictions and after consulting the employee and the Union. They differ however on what factors the Employer should take into account when selecting a post as part of its duty to find a reasonable accommodation. Employer counsel argued that the Employer satisfies its duty to accommodate by simply assigning a disabled employee a post that meets the employee's restrictions. Counsel submitted that both the Upper Hallway post and the Unit 12 Sub-Control post met Mr. Hyland's restrictions and that they therefore provided him with a reasonable accommodation. The Union took the position that it is not that simple and that the Employer's obligations go further, within the limits of undue hardship. Union counsel argued that the duty to accommodate requires the Employer to place a disabled employee in an available post that meets the employee's restrictions and that would permit the employee to more fully utilize CO skills and to perform a broader range of duties. Counsel submitted that the Employer failed in this regard when it assigned Mr. Hyland to the Upper Hallway and Unit 12 Sub-Control posts.

19In considering this particular issue, I have reviewed the decisions relied on by counsel, including the two GSB decisions, OPSEU (Kerna) v. Ontario (Human Rights Commission), supra, and OPSEU (Hart-Day) v. Ontario (Ministry of Community Safety and Correctional Services), supra, which appear contradictory. Given the importance of work to an employee and the basis in human rights legislation for the obligation to accommodate a disabled employee to the point of undue hardship, I agree with the Union that the obligation on an employer to accommodate is not satisfied by simply placing an employee in a job that meets his or her restrictions if there are alternative jobs available that would permit the disabled employee to utilize his or her skills to a greater degree and perform a broader range of duties.

20The CECC is a large institution with a variety of posts. There is a process in place that provides a CO with the opportunity to change posts. When a disabled employee has the opportunity to change his or her post, it would be improper to deny the employee a change if the post sought meets the employee's restrictions and is otherwise available. It would be discriminatory to deny the disabled employee a right that is available to other COs, even when the disabled employee's existing post meets his or her restrictions. If there were more than one post that meets an employee's restrictions, it would be improper to assign the employee to the least desirable post when another would permit the employee to utilize more skills and to perform a broader range of CO duties, thereby providing the employee with a more satisfactory work experience. Again, it would be discriminatory to deprive a disabled employee a right that other employees enjoy when it comes to selecting a post, everything else being equal. The assignment of an employee to the less desirable alternative risks a finding that the assignment was not a reasonable accommodation in the circumstances. This does not mean that the disabled employee is entitled to a preferred post or a particular post even if that post can be assigned without undue hardship. What it does mean is that assigning a post to disabled employee after only taking into account the employee's restrictions may not satisfy an employer's obligation to reasonably accommodate an employee if there are alternative posts that are less restrictive.

21The Employer is faced with balancing a number of factors when deciding where to place Mr. Hyland. A post may have a low risk of exposure to smoke, but may be very restrictive while another post may provide for a broader range of duties, but may have an increased risk of exposure to smoke. If the risk of exposure to smoke is minimal in assessing alternative posts, it may be difficult in most instances at the CECC to differentiate one post from another when considering which one offers a broader range of duties. On an issue of this sort the Employer is entitled to a fair degree of deference. Apart from the argument advanced by the Employer on the placement issue, I note that Superintendent Polya testified that management at the CECC does attempt to place a disabled employee in a post that is less restrictive in order to permit the employee to work throughout the CECC. This is essentially the approach I have indicated is necessary to satisfy the Employer's obligation to reasonably accommodate a disabled employee. The question here is whether the Employer utilized this approach in its placement of Mr. Hyland.

22In my view, the assignment of Mr. Hyland to the Upper Hallway post is tainted because it was made in concert with the decision to deny him access to the secure part of the CECC. It was a discriminatory assignment because that relatively undesirable post was selected without considering whether there were other available posts that would have been a better match on the basis of the considerations outlined above. The Employer limited its search to only the X-ray, A&D Sally Port and Upper Hallway posts, even though there were posts within the secure area that were similar in providing a smoke free environment.

23Mr. Hyland's assignment to the Unit 12 Sub-Control post in April 2010 is a different matter. This post was in the secure part of the CECC, met his restrictions well and is a more typical CO post when compared to the Upper Hallway post. Although, as Mr. Polya acknowledged, there are a number of posts at the CECC that could meet Mr. Hyland's restriction of a smoke free environment, the evidence is not clear as to whether there were other options available, let alone less restrictive options, when the assignment to the Unit 12 Sub-Control post was made. Mr. Hyland was at that post for only a few months before he was given the opportunity to express an interest in certain vacancies and was then notified that his request to move to a post at A&D had been accepted. For these reasons, I am not prepared to conclude that the assignment to the Unit 12 Sub-Control post amounts to a failure by the Employer to reasonably accommodate Mr. Hyland.

The A&D incident

24In response to a notice outlining a number of vacancies, Mr. Hyland expressed an interest in a few of them. By email dated July 15, 2010, Deputy Superintendent Thornbury informed him that his expression of interest had been accepted, that effective September 13, 2010, his home position will be A&D Male, line7, and that the change had been recorded in HPRO. The process that resulted in his selection for this post did not take into account his accommodation needs. Sometime later, Superintendent Polya noticed this change in assignment and with the view that the new post may not meet Mr. Hyland's restriction on hours, he requested that this issue be examined. Following a request from Ms. Thornbury, Ms. Jopling scheduled a meeting for August 10, 2010, to meet with Mr. Hyland to discuss his assignment in A&D. Mr. Hyland did not receive the email from Ms. Jopling dated August 4, 2010, advising him of the meeting because his email address was not included on the email, with the result that Mr. Hyland was unaware of the meeting and obviously did not attend. It is unclear why Mr. Hyland's failure to attend the meeting did not result in immediate steps to contact him. No other efforts were made to contact Mr. Hyland before he was scheduled to start in A&D, until Friday, September 10, 2010. On that day, Ms. Thornbury left Mr. Hyland a voice mail message to call her and at 5:14 p.m. she sent him an email setting out what she had wanted to discuss with him. In essence, this email was intended to advise him that the A&D schedule did not meet his accommodation agreement which had expired July 31, 2010, that he will not be moving to A&D as previously planned and that he will remain at the Unit 12 Sub-Control post until his accommodation was reviewed. Mr. Hyland did not see this email before September 13, 2010. The end result of this failure to communicate with him in a timely way is that Mr. Hyland had no idea when he returned to work on the Monday after a week of vacation that his assignment to A&D had been revoked.

25After about three hours in A&D on September 13, 2010, Mr. Hyland became aware that he was not scheduled to be at that post. When he arrived at Staff Services shortly thereafter, he was quite upset. Ms. Jopling advised him that it was necessary to have a new Employee Health Information Form completed in order to change his Monday to Friday and his hours restrictions to permit him to work in A&D and until then he was to continue working at the Unit 12 Sub-Control post. Mr. Hyland left the CECC shortly after meeting with Ms. Jopling. Before doing so he told the A&D Manager and another OM that he was going home sick. It is clear that he told someone that he was leaving due to illness because he was marked off sick. There is a dispute however about what precisely Mr. Hyland told Ms. Jopling before he left Staff Services. Mr. Hyland testified that he told her that he was going home sick. Although Ms. Jopling agrees that Mr. Hyland had been marked off sick for the Monday, she testified that he only told her that he was not going to work in the Unit 12 Sub-Control and did not mention being sick to her. After considering the testimony on this issue, I am satisfied that Mr. Hyland had communicated to the Employer that he was not well and that this was his sole reason for leaving the workplace early on September 13, 2010. If he did mention that he was not returning to the Unit 12 Sub-Control post, it was because he was going home sick.

26After leaving the CECC on September 13, 2010, the next contact Mr. Hyland had with the Employer occurred about two weeks later. He was showing up on the Employer's roster and Ms. Jopling was asked to contact him to find out why he was not attending work. Why it took the Employer about two weeks to pursue this concern is a mystery. Mr. Hyland was surprised by her call and told her that he had already informed her that he was off due to sickness. Ms. Jopling advised him that she had sent had him a medical form for his doctor to complete. On the following day, Superintendent Polya wrote to Mr. Hyland advising him that he was on an unauthorized absence from the workplace and referred to the consequences that could flow from such conduct, including the possibility of discipline up to dismissal. Mr. Hyland then presented a series of medical documents from Dr. Bolger confirming that he was not in a position to return to work. The Employer found the initial medical note unsatisfactory. In an Employee Health Information Form dated October 19, 2010, Dr. Bolger indicated that Mr. Hyland's "mood requires treatment prior to returning to work." He later noted that he recommended that Mr. Hyland remain "off work completely until mood improves to point that he is no longer a threat to himself or others." The Employer eventually approved sick credits for all but the period from September 13 to October 3, 2010. In a medical note dated November 29, 2010, Dr. Bolger indicated that Mr. Hyland was able to return to work on December 27, 2010. Mr. Hyland reported for work at the CECC on that day only to be told that the Employer had decided to have him undergo an Independent Medical Examination ("IME") to ensure that he was healthy and ready to return. He complied with the Employer's request to undergo an IME. The IME assessment was provided to the Employer by Fax on March 18, 2011. In response to the first referral question, Dr. Siu advised that Mr. Hyland "had met criteria for a DSM-IV psychiatric disorder (adjustment disorder with depressed mood), however this disorder is presently in remission. I believe he could return to work completing his duties as a correctional officer." Dr. Siu indicated that Mr. Hyland is not a risk to himself or others. In a response to a question about workplace stressors, Dr. Siu indicated that the issue of second hand cigarette smoke has been a stressor for a number of years and that the stress over the A&D incident precipitated his going off work. Following the Employer's consideration of the IME assessment, the Employer recognized that Mr. Hyland was fit to return to work and he was advised that he could return to the CECC on March 28, 2011. Mr. Hyland's absence related to the A&D incident totaled about 6½ months, 3½ months due to illness and 3 months for the IME.

27The circumstances of the A&D incident indicate that the responsibility for Mr. Hyland's absence for 6½ months from the CECC rests with the Employer. After lobbying for many months for what he considered to be an appropriate assignment, Mr. Hyland was told that he would be moving to A&D. As what can only be described as unfortunate mistakes, Mr. Hyland reported for work at A&D and only on that day became aware that the Employer had revoked his assignment. It is not surprising that Mr. Hyland would be upset and frustrated with this turn of events. He perceived this as simply another example of the Employer failing to reasonably accommodate him. In my view, his perception has some basis in reality. The only reason the Employer raised an issue about the A&D assignment and revoked it had to do with Mr. Hyland's restrictions on hours and no weekend work. It wanted him to see if those restrictions could be altered to permit him to work the A&D schedule. The Employer did not give any consideration as to whether the A&D schedule could be modified to permit Mr. Hyland to work in A&D within these restrictions. There was no indication in this proceeding that the A&D schedule could not be modified to accommodate Mr. Hyland or that such modification would cause the Employer undue hardship. The failure of the Employer to consider modifying the A&D schedule constitutes a failure to reasonably accommodate Mr. Hyland.

28For many months Mr. Hyland had advised management at the CECC that its failure to properly accommodate him was causing him a considerable amount of stress. As noted previously, I am satisfied that Mr. Hyland left work on September 13, 2010, before the completion of his shift because of illness. As the medical evidence confirms, Mr. Hyland was absent from September 13, 2010, until December 27, 2010, as a result of mental health issues. These mental health issues were caused in part by the Employer's conduct, particularly its failure to address the A&D issue in a timely fashion and its failure to consider modifying the A&D schedule to accommodate Mr. Hyland's restrictions. Mr. Hyland's continuing absence from December 27, 2010 until March 28, 2011, is linked to his absence for mental health issues and the Employer's decision to have Mr. Hyland undergo an IME.

Enforcement of the smoking policy

29The final matter to address is the Union's contention that the Employer failed to police and enforce the smoking policy. The evidence establishes that the CECC is far from being a smoke free institution. As is the case with other correctional institutions, the best efforts of management at the CECC have not prevented inmates from bringing in contraband, including cigarettes. Some of the Managers and Ms. Yule testified that the presence of cigarette smoke is almost a daily occurrence in the inmate living units. The extensive searches of inmates as they enter the facility and the penalties they can receive for possessing contraband do not deter inmates from contravening the no smoking rule. Without detailing all of management's strategies to deal with this problem, I have no hesitation in finding that the Employer has made reasonable efforts to prevent inmates from violating the smoking policy. The significant problem of cigarette smoke in the inmate living units cannot be attributed to a failure on the part of the Employer to make extensive efforts to tackle this problem. The placement of Mr. Hyland in or perhaps even near inmate living units would not meet his restriction of a smoke free environment. Any effort by the Employer to place Mr. Hyland at a post in an inmate living unit would violate its duty to provide him with a safe and healthy workplace.

30The presence of smoking at the CECC is not confined to inmate living units. Staff smoking at the workplace in contravention of the smoking policy also appears to be a regular occurrence. Mr. Goden recognized the seriousness of staff smoking in contravention of the Smoke-Free Ontario Act and the smoking policy and he made it one of his priorities to end this practice. The Employer addressed the problem with extensive signage around the facility, memos to staff and managers to remind them of the policy, making the subject a regular agenda item for the Health and Safety Committee, by constructing a smoking shelter near the south bench and with temporary provision of an additional smoking location outside between pods 3 and 4 to address a particular smoking issue in pod 3. Memos to staff from Mr. Goden dated July 23, 2009, and December 22, 2009, convey the extent of the problem and identify a number of areas at the facility where violations of the smoking policy regularly occurred, such as the yards, the Servery courtyard, the A&D Sally Port, the duty desk, staff washrooms and the G Wing areas. Mr. Goden acknowledged in the first memo that "management has collectively failed to do all it can to ensure that CECC is in compliance with the Smoke-Free Ontario Act." He indicated that managers must be more accountable than other staff and that an aggressive campaign must be initiated. Mr. Goden indicated in the December 22, 2009 memo to staff that members of the Health and Safety Committee advised him "of their concern that management continues to ignore the policing of smoking in the institution." The memos and other efforts by management appear to have had very little impact on staff smoking in violation of the smoking policy.

31Mr. Hyland witnessed staff smoking and evidence of smoking in areas prohibited by the smoking policy. On occasion, he witnessed staff members smoking in the presence of a manager. He would bring these violations of the smoking policy to the attention of management. There were also occasions when Mr. Hyland was exposed to cigarette smoke that resulted in him missing time from work. On September 28, 2009, his first day of work at the CECC, he was exposed to cigarette smoke as he entered at the front entrance and as he left, exiting at the front entrance. He missed some days as a result of these exposures. Most of his exposures occurred near the front entrance and a few occurred in the Staff Servery. One of his exposures at the Staff Servery occurred when there was a manager at that location. Apparently, the manager did not notice anyone smoking in the Servery courtyard. Mr. Hyland found it stressful when his absences caused by exposures were used to move him up to higher levels in the Attendance Management Program, given that attaining the highest level could lead to discharge. Mr. Hyland also became increasingly frustrated with what appeared to him to be a failure by management to enforce the smoking policy. He believed that the Employer condoned violations of the smoking policy when he observed managers taking no action when they were with an employee smoking in contravention of the smoking policy.

32Mr. Goden realized that the Servery courtyard was a problem area for smoking. He encouraged Mr. Hyland to avoid this area, and for the most part Mr. Hyland took his advice. Because the Staff Servery presented a continuing smoking problem, Mr. Goden walked through it once a day and asked the General Duty Officer to check it out twice a day. During the view I took of the CECC on June 30, 2011, there was some evidence of smoking in certain areas of the facility where smoking is prohibited. When we arrived at the Staff Servery, Mr. Hyland entered first, but then quickly exited, saying that he could not stay because someone was smoking in the courtyard. It was later determined that the person smoking in the courtyard is an employee of the Canada Border Services. One other interesting event related to the tour was an email dated the previous day from the Maintenance Manager to his staff requesting that they ensure the House Keeping Staff clean the Staff Servery and the courtyard to remove signs of smoking before the start of the tour. The Union characterized this email as part of the Employer's effort to cover up the problem and suggested that it bordered on contempt of the GSB. The only significance of the email for me is that it further confirmed that there continued to be a significant and well-known smoking problem in the area of the Staff Servery.

33I recognize that management at the CECC faces challenges in enforcing the smoking policy. COs in the control modules control access to every area of the facility, including the access of managers. COs contravening the smoking policy can be easily warned when a manager is approaching. Catching staff actually smoking inside the CECC is likely a rare occurrence and simply observing evidence of smoking is not considered sufficient to initiate discipline. COs are reluctant to report staff who are contravening the smoking policy out of a fear that they will be labeled a "rat". Staff adhering to the code of silence helps to ensure that the smoking problem will be a challenge for a long time, even for a management team committed to addressing the problem.

34There have been instances where management have observed staff smoking or have been given a name of a staff member who contravened the smoking policy. As noted previously, Mr. Hyland reported three managers who at various times were near the front entrance with a staff member who was smoking. Investigations of these incidents resulted in the managers being counseled, nothing more. In August 2009, Mr. Goden provided a letter of counsel to two managers who were smoking in the Servery courtyard. It appears that the CO smoking with the managers was not confronted about his contravention of the smoking policy. This incident occurred not long after Mr. Goden's memo dated July 23, 2009, in which he indicated that managers had to be more accountable and that a more aggressive campaign to deal with the smoking problem would be initiated. Also in August of 2009, Mr. Goden caught two COs smoking in the Vehicle Sally Port. They each received a letter of counsel. In May 2010, Mr. Goden caught a Records Clerk and a CO smoking in the Servery courtyard. The CO, who was remorseful and embarrassed, did not receive a letter. The Records Clerk, who was not remorseful and deflected responsibility, received a letter of counsel. In defense of the Record Clerk, the Union representative pointed out at the allegation meeting that smoking in that area was an accepted practice.

35In my view, management's efforts to address the staff smoking problem were deficient in two respects. The first is in its failure to adequately monitor smoking activity in the two areas where Mr. Hyland had exposures. Unlike other areas of the CECC, management has unrestricted access to the Staff Servery and the front entrance. Mr. Goden's efforts to provide extra monitoring by management in these areas were inadequate given the extent to which staff used these locations for smoking. More frequent monitoring by managers would have likely had a greater impact in deterring staff from contravening the smoking policy at these locations. Assuming funding is available, the Employer's plan to install cameras to cover these areas would likely contribute to the elimination of smoking in these areas. Besides extra monitoring at the Staff Servery and its courtyard, the Employer did not consider closing the courtyard for some time or denying access to persons who were caught smoking there. Such efforts by the Employer would have been reasonable attempts to control smoking at those locations and an indication to staff that management was serious about addressing contraventions of the smoking policy.

36The other area where the Employer was deficient was in its enforcement of the smoking policy. As I have noted in other decisions involving Mr. Hyland, a smoking policy will be of little value unless it is enforced. A failure to reasonably enforce the policy will constitute a failure to reasonably accommodate an employee in Mr. Hyland's position. Management recognizes that the problem of staff smoking in prohibited areas of the facility is significant and it advised staff in memos that it will be aggressive in dealing with the problem. One way of sending a message to employees and managers and to deter staff from smoking in contravention of the smoking policy is with meaningful discipline. The evidence in this proceeding did not disclose one instance where management issued discipline to a staff member found contravening the smoking policy. In another context, the approach Mr. Goden took with those he found contravening the smoking policy may be acceptable and even enlightened. But in the context of the smoking problem at the CECC, his approach amounts to a failure to reasonably enforce the smoking policy. To simply counsel managers who contravene the smoking policy or who fail to enforce the policy represents anything but an aggressive approach. Counseling employees who ignore repeated warnings not to smoke in areas like the Servery courtyard and the front entrance does not send the appropriate message to the staff at the CECC. This does not mean that serious discipline is required for first offenders. However, some discipline in warranted in the context of a progressive disciplinary approach. It may not be a coincidence that Mr. Hyland has had exposures at locations where staff have been observed by management violating the smoking policy, but were not disciplined. The Employer's failure in these circumstances to discipline staff for violating the smoking policy and in particular its failure to discipline managers who ignore their responsibility to set an example and enforce the policy amount to a failure to reasonably accommodate Mr. Hyland.

37To summarize my conclusions on those matters which were highlighted by the Union, I find and so declare that the Employer failed to reasonably accommodate Mr. Hyland, thereby breaching articles 3 and 9 of the Collective Agreement and the Ontario Human Rights Code, between September 2009 and July 14, 2011 when it engaged in the following conduct:

1. When it denied Mr. Hyland access to the secure part of the CECC for about three months once it assigned him to his first post.

2. When it restricted its search for an initial post for Mr. Hyland to three posts without considering placing him at a post within the secure part of the CECC that would have allowed him to perform a broader range of CO duties.

3. When it failed to consider modifying the A&D schedule in order to permit Mr. Hyland to work in that area.

4. When it failed to make reasonable efforts to police and enforce the smoking policy.

38Having made the above findings on the merits of the grievances before me, I turn to the Union's remedial requests. I note at the outset that the Union had requested a declaration that the Employer had engaged in reprisals against Mr. Hyland because he raised concerns about its failure to properly accommodate him. As I indicated earlier, Mr. Hyland often perceives Employer conduct as a reprisal. This is not surprising given the many years Mr. Hyland has been pursing what he believes is an appropriate accommodation. He testified that he believes that some of the conduct by management at the CECC was designed to get him to resign. In my view, the evidence does not support the conclusion that the Employer has engaged in reprisals against Mr. Hyland. Although the Employer has fallen short in some respects in its duty to reasonably accommodate Mr. Hyland at the CECC, there is no basis for concluding that its actions towards Mr. Hyland were a response to him exercising his rights to secure a proper accommodation.

39As noted previously, the Union took some alternative positions concerning directions that I should make with respect to the placement of Mr. Hyland. It first requests that I direct the parties to find a proper placement for Mr. Hyland in the OPS and that I direct that Mr. Hyland not report for work at the CECC without financial losses until a proper position is found for him. Union counsel concedes that this request is drastic, but argued that it is appropriate in the circumstances. To make such a direction I would have be satisfied that Mr. Hyland could not be properly accommodated at the CECC. The evidence does not suggest a basis for reaching such a conclusion. By mid-July 2011, Mr. Hyland had been actually at work at the CECC for a little over 15 months. He has worked at two posts that have at least satisfied his need for a smoke free environment. He has had fewer exposures at the CECC when compared to his experiences at other adult institutions. Taking into account these factors along with the nature of the Employer's failure to accommodate him, I am not convinced that the CECC should be written off as a work location for Mr. Hyland or that it is necessary or appropriate to direct that he be excused from work and paid while the parties search for an appropriate placement for him.

40I am also not prepared to direct that the Employer place Mr. Hyland at A&D. Although I found that the Employer breached its duty to reasonably accommodate Mr. Hyland when it failed to consider modifying the A&D schedule to accommodate him, the Employer takes the position as a defense to this request that the A&D area does not meet Mr. Hyland's smoke free restriction. Although there was evidence before me that is relevant to this question, I am not satisfied that that evidence is sufficient to conclude that A&D is an appropriate placement for Mr. Hyland. Even though the Employer appeared not to be concerned about this issue when it revoked Mr. Hyland's assignment to A&D and even if the Union is right when it claims that Mr. Hyland is entitled to assume some limited risk, it is not appropriate for me to make the requested direction unless I was satisfied that this placement was consistent with all of Mr. Hyland's restrictions. At this point in time, the issue of whether Mr. Hyland can be placed in A&D is best left to the parties.

41Given that the Employer did fail to reasonably accommodate Mr. Hyland when it revoked his assignment to A&D, the final placement direction sought by the Union is warranted. Accordingly, I direct the Employer to renew efforts, in consultation with the Union and Mr. Hyland, to find an appropriate placement for Mr. Hyland in accordance with its duty to accommodate him to the point of undue hardship.

42As requested, I remit to the parties the general issue of compensation owing to Mr. Hyland flowing from the Employer's failure to reasonably accommodate him. The parties agree that I do have the power to determine whether any compensation should be awarded to Mr. Hyland for losses he sustained during his absence from work from September 13, 2010 until March 28, 2011. The parties agree that any losses incurred during this absence cannot be recovered from the WSIB. As noted previously, Mr. Hyland's absence due to mental health issues from September 13, 2010 to December 27, 2010, was caused in part by the Employer's failure to attempt to accommodate him in the A&D position and by its mishandling of its revocation of that assignment. It would have been reasonable for the Employer to foresee that its conduct could have caused additional anxiety given Mr. Hyland's complainants to the Employer about stress. Although the Employer's insistence of an IME was reasonable in the circumstances, the absence beyond December 27, 2010, was caused by the Employer's decision to reject Dr. Bolger's opinion that Mr. Hyland was ready to return on December 27, 2010, and to keep him out of the workplace until a further medical opinion was obtained. The IME confirmed that Mr. Hyland was ready to return to the CECC and that his absence was triggered in part by the A&D incident. Considering these circumstances, I direct the Employer to fully compensate Mr. Hyland, with interest, for any losses he incurred due to his absence from the workplace from September 13, 2010 until March 28, 2011.

43I turn finally to the Union's request for human rights type of damages. There is no dispute that I have the power to award general damages to compensate Mr. Hyland for the loss of his right to be free from discrimination and for the injury to his dignity, feelings and self-respect. I also have the authority to award damages for mental anguish. Having regard to the Employer's discriminatory treatment of Mr. Hyland by its failure to reasonably accommodate him, I find that an award of general damages and an award of damages for mental anguish are warranted.

44In seeking $50,000.00 in general damages and $25,000.00 in damages for mental anguish, Union counsel relied on the particular nature of the discrimination in this case, the long history of discriminatory treatment Mr. Hyland has experienced from the Employer and the impact this discriminatory treatment has had on Mr. Hyland. Counsel submitted that a significant quantum of damages was required to send the appropriate message to the Employer. I agree with Employer counsel's submission that sending a message is not an appropriate factor to consider when determining the quantum of damages. I agree with the following comment by the HRTO in Koroll v. Automodular, supra, at paragraph 122:

…The purpose of monetary compensation is to compensate the person whose rights have been infringed, not to punish the respondent. In my view, ordering the employer to pay the applicant monetary compensation in an amount aimed at deterring it from future breaches of the Code would not be in keeping with the remedial focus of the Code.

45Employer counsel submitted that no damages should be awarded in the circumstances of this case, but that if I concluded that damages were appropriate, the quantum in this case should be at the lower end of the scale. Counsel referred at some length to Re City of Ottawa and Civic Institute of Professional Personnel, supra, and the analysis of the issue of quantum contained therein. He argued that this analysis illustrated that the quantum of damages sought by the Union is extremely excessive

46In Sanford v. Koop, supra, the HRTO set out the factors to consider when determining the quantum of general damages, as well as the relevant considerations for assessing damages for mental anguish. The factors identified for assessing the appropriate quantum of general damages are as follows:

• Humiliation experienced by the complainant.
• Hurt feelings experienced by the complainant.
• A complainant's loss of self-respect.
• A complainant's loss of dignity.
• A complainant's loss of self-esteem.
• A complainant's loss of confidence.
• The experience of victimization
• Vulnerability of the complainant.
• The seriousness, frequency and duration of the offensive treatment.

The considerations for assessing mental anguish damages are listed as follows:

• The immediate impact of the discrimination and/or harassment on the complainant's emotional and/or physical health – e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities.
• The ongoing impact of the discrimination and/or harassment on the complainant's emotional and/or physical health, i.e. impact on personal and professional life, lack of trust in employment relationships.
• Vulnerability of the complainant e.g. age.
• Objections to the offensive conduct.
• Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination.
• Anxiety caused by the conduct.
• Frequency and intensity of the conduct

47In assessing the appropriate quantum of damages, I have considered the above factors in relation to the Employer's discriminatory conduct during the period under review in this proceeding and its impact on Mr. Hyland. I did not consider the discriminatory treatment Mr. Hyland experienced prior to his moving to the CECC because then I would be awarding an amount of damages in part for the Employer's conduct in earlier proceedings for which this type of remedy was not requested. The earlier discriminatory treatment however does provide a context for considering the events that occurred at the CECC and is relevant to understanding the impact of these events on Mr. Hyland.

48The Employer's decision to deny Mr. Hyland access to the secure part of the CECC, its decision to revoke his assignment to A&D without considering any modification to the A&D schedule to accommodate him and its failure to reasonably police and enforce the smoking policy, and the impact of these matters on Mr. Hyland, bring many of the factors and considerations referenced in Sanford v. Koop, supra, into play. Mr. Hyland experienced humiliation, hurt feelings, a loss of dignity and victimization. The A&D incident had a direct and significant impact on his emotional health. The Employer's failure to enforce the smoking policy and the impact of this on his accommodation has caused Mr. Hyland a significant amount of stress and anxiety during his time at the CECC. Even so, I agree with counsel for the Employer's submission that the amount of damages sought by the Union is excessive in the circumstances. Having regard to the relevant factors, I award $18,000.00 in general damages and $12,000.00 in damages for mental anguish for the Employer's failure to reasonably accommodate Mr. Hyland.

49For the foregoing reasons, the relevant grievances filed by Mr. Hyland are allowed. I will remain seized of this matter to deal with any issues concerning the implementation of this decision.