Ontario Public Service Employees Union (Cooper) v. The Crown in Right of Ontario (Ontario Clean Water Agency), 2021 17417

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Cooper)

Union

• and -

The Crown in Right of Ontario

(Ontario Clean Water Agency)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Allison Vanek

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Felix Lau

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

October 21 and 31, 2019; January 7, July 10, September 24 and 25, 2020

Decision

1The Grievor commenced a period of disability leave on October 24, 2014. He sought unsuccessfully to return to work following April 30, 2017, remaining off work up to and including April 18, 2019, the end of the period covered by this grievance. The Union alleges the Employer breached its duty to accommodate the Grievor during this period, and indeed subjected him to harassment. The Employer denies any harassment and alleges any shortcomings with respect to the accommodation process were the result of the Grievor’s failure to cooperate. Further, the Employer argues there has been no substantive breach of the duty to accommodate because the Grievor was never well enough to return to employment. For the reasons which follow, I find the Employer breached its duty to accommodate but did not subject the Grievor to harassment.

2The arguments of the parties require me to set out in detail what would otherwise be private medical information about the Grievor. I advised the parties that as a result I was considering anonymizing the decision and invited them to make representations. The Union responded that they had consulted with the Grievor and he did not wish for the decision to be anonymized in any way. The Employer responded that it took no position. Having regard to the Grievor’s express wishes, I have not anonymized the decision.

3The arguments of the parties also require me to consider various events individually but also cumulatively. In setting out the chronology of events, I address some of the arguments based on individual events. I have, however, considered the cumulative effect of those events in arriving at my final decision.

Chronology of Events

4The Employer operates approximately 800 water treatment facilities across Ontario.

5The Grievor commenced employment with the Employer in 2006.

6In July, 2008, he transferred to the Employer’s facilities in South Peel, alternating between two plants there.

7On October 24, 2014, the Grievor commenced a period of medical leave. At the time, his home position was Water and Waste Water Shift Lead, designated overall responsible operator (ORO), classified as a maintenance foreperson. A psychiatrist ultimately diagnosed post traumatic stress disorder as a result of what the Grievor experienced as harassment in his workplace. His short term disability benefits ran out on May 26, 2015. He started receiving Long Term Income Protection (LTIP) benefits as of the next day.

8As is typical, the LTIP Policy provided for a period of benefits based on an “own occupation” definition of total disability, following which continuing benefits required meeting an “any occupation” definition of total disability. The Policy was administered by Manulife.

9By letter dated March 21, 2017, Manulife advised the Grievor that in its view he did not meet the any occupation definition of total disability and that accordingly his LTIP benefits would expire on April 30, 2017. The letter also stated:

A medical note was received dated February 1, 2017 from Dr. Michael West [the Grievor’s family physician]. It was noted that you continue to struggle with symptoms of Post-Traumatic Stress Disorder including emotional lability, anger, anxiety and fatigue. It was noted that these are moderate symptoms but can be severe. It was noted that the primary barrier for you was returning to a very toxic environment.

A phone call took place with Dr. Michael West on the date of February 15, 2017. In regards to whether you can work in an alternate position, Dr. Michael West stated that you cannot return to work at your own job in that particular workplace. Dr. Michael West stated that you do not want to go back to that environment for your PTSD symptoms because of your colleagues and people at that particular site. Dr. Michael West stated that physically you are fine and you are afraid that you have a bad reputation through the Ontario Clean Water Agency.

Dr. Michael West stated that you can do your profession for any other Ministry. Dr. Michael West stated that you can do a different job and you are motivated to work and the barriers for the PTSD are around that particular site. Dr. Michael West stated that physically and emotionally you can do the job and the prime barrier is the physical workspace and if you can get assigned to another location. you should be successful.

10During the relevant time period, Sam Berton was a Senior Labour Relations Consultant for the Employer. His duties included disability management and providing advice to managers. Mr. Berton testified that he received a copy of the March 27, 2017 Manulife letter from the Ontario Shared Services Pay and Benefits Division, or at least information as to its contents. After he received it, Mr. Berton contacted Tony Puim, the manager of the Grievor’s home department at the relevant times. He also spoke with a claims manager at Manulife and asked if there were any specific restrictions on the work which the Grievor could do. The claims manager advised him there were no specific restrictions other than that he could not work in the same location where his home position resided.

11Mr. Berton testified he also had discussions with the Union staff representative then assisting the Grievor, Sabrina Dubeau. According to Mr. Berton, Ms. Dubeau told him the Grievor could not come back to work at OCWA. Mr. Berton told Ms. Dubeau that was not how he read the March 21, 2017 letter from Manulife. Ms. Dubeau told Mr. Berton the letter did not contain all the pertinent info and that she had medical reports which indicated the Grievor could not go back to work at OCWA. Mr. Berton told Ms. Dubeau if that was the case, then consideration should be given to the Health Reassignment Program.

12The Health Reassignment Program (“HeRe”) is a form of employment accommodation for employees with permanent disabilities within the OPS. It extends to Crown Agencies like OCWA. It is a process for reassigning an employee to another vacant position, either in his/her home ministry or elsewhere in the OPS, when she/he is permanently incapable of performing the essential duties of his/her home position. Disability Accommodation Specialists (“DAS”) of the Centre For Employee Health, Safety and Wellness (the “Centre” or “CEHSW”) play the coordinating role throughout the HeRe process. Only certain aspects of the HeRe process need to be described for the purposes of this decision. I note the evidence before me with respect to that process was almost entirely limited to the HeRe Guide. I say this in part because I am aware that there is another proceeding, before Arbitrator Dissanayake, in which aspects of the HeRe Process are being challenged by the Union. For the purposes of this decision, in the absence of any other evidence, I have relied upon the HeRe Guide as written.

13The HeRe Guide indicates the health reassignment process is governed by the following principles:

1. The search for an alternate permanent position for health reasons must not begin until it is evident that the employee is permanently incapable of performing the essential duties and cannot be accommodated in his/her home position, without undue hardship, and these efforts have been fully explored and documented.

2. Timeliness is a critical element of employment accommodation therefore an employee should be reassigned as soon as possible. This will help to ensure the employee’s continued income, productivity and self-esteem, and continued contribution to the employer’s business objectives.

3. Successful employment accommodation requires all directly affected parties to participate in the health reassignment process including providing current health-related limitations and restrictions and skills/abilities-related information, and facilitating the identification of and placement into alternate positions.

4. Where there is more than one possible reassignment that is consistent with the employee’s skills and health-related information regarding limitations/restrictions, consideration is given to maintaining the employee in a position most like the home position recognizing the following position characteristics:

5. Position’s salary level and area of functional responsibilities

6. Maintaining the employee’s current bargaining unit

7. Home ministry

8. Minimizing disruption to the employee’s personal life (e.g., closest location).

9. An employee’s home ministry is responsible for accommodation and/or return to work efforts on an ongoing basis, until the employee is permanently reassigned to another ministry or ceases to be employed by the OPS.

10. An employee’s personal health-related information must be treated with the utmost confidentiality, in accordance with the OPS Health Information Program.

[Emphasis in original.]

14An employee eligible for HeRe completes a Comprehensive Vocational Assessment (“CVA”) which provides information with respect to the individual’s interests, abilities, aptitudes, skills, education and training experience. Both permanent and temporary alternative positions are considered for health reassignment. If the position is temporary, a search for a permanent HeRe position will take place at the end of the temporary assignment. Where an employee will be placed in a position with a salary maximum 15% or greater below the original home position salary, the employee may request a second search be conducted. Alternatively, the collective agreement between the Union and the Employer provides for a six month period of salary protection, during which the employee will continue to be paid at the salary of his/her home position.

15The HeRe Guide indicates that a DAS should inform an employee of the “potential impact/consequence” of not accepting a position identified through the HeRe process, but does not indicate what that “potential impact/consequence” might be. I also note that the Guide does set out a “HeRe Program Review” in “Process Map #5”. Process Map #5 appears to describe a process by which a “Bargaining Agent Employment Accommodation Working Group (EAWG)/Committee” or, where an EAWG does not exist a “Disability Management Committee” considers the employee’s objection “to determine if best placement for EE or continue HeRe search”.

16On April 7, 2017, Mr. Berton sent the Grievor an email attaching information and an application form for the Health Reassignment Program. The email was copied to Ms. Dubeau.

17On April 12, 2017, a teleconference was held between Mr. Berton, the Grievor and Ms. Dubeau. The Grievor stated he could not return to his home position or any OCWA position. The Grievor testified he said this was because of ongoing stress and anxiety and he wished to be assigned to another position within the OPS. The Health Reassignment Program was discussed.

18Mr. Berton testified that he spoke with someone at the Centre about initiating the HeRe process for the Grievor. According to Mr. Berton, that person noted the March 21, 2017 letter from Manulife indicated only that the Grievor could not return to work for OCWA at the particular site at which he had worked. The Centre expressed the view that there was insufficient medical information to show the Grievor could not be accommodated within OCWA.

19A letter dated April 20, 2017, was sent to the Grievor over the signature of Mr. Puim. Mr. Puim testified the letters he signed were generally drafted by the Human Resources department of OCWA and presented to him with little or no input for his signature. The letter noted that during the April 12, 2017 meeting “you stated unequivocally that you cannot return to your pre-illness job or to any position within the Ontario Clean Water Agency, and that you wish to be reassigned to another position within the Ontario Public Service (OPS).” The letter continued:

We are seeking health related information from you about capabilities, limitations and prognosis to determine if we can accommodate you within your position of Maintenance Foreperson or the position of Operator/Mechanic as identified by the insurance carrier or if warranted, Health Reassignment to another position within the OPS.

The letter enclosed a request for Employee Health Information Form (“HIF”), the job descriptions for the Maintenance Foreperson and Operator/Mechanic positions and requested the Grievor provide them to his treating physician for completion.

20Mr. Berton testified that at “around this time”, the Grievor dropped by to see him at the OCWA headquarters located at 1 Yonge Street in Toronto. The Grievor indicated he wanted to get back to work. The meeting was brief. The Employer attaches significance not to what was said during this meeting, but to the fact that it took place at 1 Yonge Street with no apparent ill effect on the Grievor. As discussed further below, among the issues in this case are the appropriateness of the Employer scheduling a subsequent meeting with the Grievor at 1 Yonge Street and later suggesting as an accommodation that the Grievor perform work at 1 Yonge Street.

21On or about April 28, 2017, Dr. West completed the HIF, which was subsequently returned to the Employer. The interpretation given to this form by the Employer is a key issue in this case. Accordingly, I will describe its contents in some detail.

22Under section 2, the HIF provides charts on which the medical practitioner is requested to indicate “limitations”, “maximum ability” and “duration” with respect to a number of items subdivided into the categories “physical”, “physical movement”, “sensory”, “environmental”, “psychosocial” and “cognitive demands”. On the April 28, 2017 HIF, Dr. West indicated a temporal maximum ability of 7 hours / day for a duration of “four weeks then re-evaluate” under several of the categories, including “psychosocial”. Under psychosocial he also added the comment “minimize working in social isolation for extended periods of time”. Under “environmental”, Dr. West wrote “chemical exposure” as a limitation, with no temporal duration indicated. In comments he indicated: “avoid chemical exposure as has history of contact dermatitis from work related exposure”. Section 4 of the HIF provides space for the medical practitioner to record “other medical limitations/restrictions not identified above and/or additional comments”. In this section, Dr. West wrote:

cannot and should not work at any OCWA site for medical reasons however no restrictions for employment at any other MOE site

[Emphasis that of Dr. West.]

23Mr. Puim testified what stood out for in him in the HIF was Dr. West’s response that the Grievor “cannot and should not work at any OCWA site, for medical reasons.” Mr. Puim stated that the Employer was trying to understand why the Grievor could not work at an OCWA site. Mr. Puim further stated the physical and psychosocial restrictions could have been addressed; it was a matter of finding a facility where the Grievor would not be exposed to chemicals or isolated for extended periods of time.

24Mr. Berton stated he consulted with the CEHSW and concluded the Employer needed more medical information regarding the restriction that the Grievor cannot and should work at any OCWA site before the Grievor could be considered for the HeRe. Specifically, further information was required as to whether the Grievor’s restrictions were related to the location or the job itself. Regarding other restrictions such as limiting work to 7 hours/day and exposure to chemicals, Mr. Berton indicated that these were restrictions that they could have easily accommodated. Mr. Berton testified that to him the term “site” did not include OCWA headquarters at 1 Yonge St. Mr. Berton testified that at that point, the Employer was pursuing a two pronged strategy: exploring possible accommodation within OCWA while at the same time seeking further medical information which would be required to initiate the HeRe process.

25In my view, it was reasonable for the Employer to seek further medical information at this point prior to giving effect to the restriction identified by Dr. West in the April 28, 2017 HIF for the following reasons: the unusual, sweeping nature of the restriction; the lack of explanation for the restriction; and its apparent inconsistency with the statements attributed to Dr. West in the March 21, 2017 letter from Manulife.

26By email, the Grievor was advised that a further teleconference was scheduled for May 11, 2017 by Charmilla Setaran, a Human Resources Consultant with OCWA, to have “an exploratory discussion on an accommodation and return to work plan” for the Grievor. The Grievor responded asking why the meeting was necessary and stating “I believe Dr. West was very clear.” In another email, the Grievor asked if Ms. Dubeau could not simply attend on his behalf. Both Ms. Dubeau and Mr. Berton responded indicating the Grievor’s participation was necessary in order to discuss his accommodation needs.

27The Grievor did participate in the call on May 11, 2017. Ms. Dubeau was his Union staff representative during the call. Participating on behalf of the Employer were Ms. Setaran, who was filling in for Mr. Berton, and Gary Mansfield, a DAS with the Centre.

28In cross-examination, it was suggested to the Grievor that he was “pushing back” with respect to attending the May 11, 2017 conference call. The Grievor responded he had a “terrifying fear” of participating in the call. The Employer suggests the lead up to this call and the available medical evidence does not support the conclusion that the Grievor’s reluctance to participate in the call was part of his medical condition. Rather, the Employer argues the Grievor’s conduct is evidence of his unwillingness to participate in the accommodation process.

29I do not find this argument compelling. The questions asked by the Grievor in his emails prior to the May 11, 2017 meeting were entirely reasonable. They do not, by themselves, indicate an unwillingness to participate in the accommodation process. On the contrary, the fact of the Grievor’s participation in the May 11, 2017 call and his subsequent email to Mr. Mansfield on May 24, 2017 (discussed further below) suggest that he was actively participating in the accommodation process at that time.

30Following the call, Ms. Setaran sent the Grievor an email on May 11, 2017 which stated in part:

I have had a discussion with Gary Mansfield - he will be sending more forms to take to your doctor. They need to know more specifics as to why you cannot work for OCWA - they believe that you could work for OCWA but, maybe not South Peel. I have reiterated that this is not an option and that I am sure that once they receive more information that they will agree.

31On May 24, 2017, the Grievor sent Mr. Mansfield an email stating:

Hello Gary,

Is it possible to set up a meeting with you?

I still have not received any forms, or heard form [sic: from] anyone?

James

32Mr. Mansfield responded the same day by email:

Hi James,

I have been advised by my manager that the OCWA is out of scope for our services at the CEHSW, so I am unable to continue to offer services regarding this matter. Please contact your union representative to advise you further on how to proceed.

Thanks,

Take care,

Gary

33In cross-examination, Mr. Berton testified that Mr. Mansfield’s statement was in fact incorrect. He testified that while most of the OPS relies upon the CEHSW for disability management, as a Crown Agency, OCWA is responsible for its own. An exception, however, is the HeRe which is administered by the CEHSW for the entire OPS, including Crown Agencies like OCWA. OCWA was apparently not on the list of Mr. Mansfield’s clients. The matter was escalated to Mr. Mansfield’s manager who indicated the CEHSW would provide to support to OCWA for the purposes of the HeRe. I would note confusion on this issue may help explain the delay in processing the Grievor’s admission into the HRP, but it does not excuse it.

34On or about May 24, 2017, the Grievor was also provided with a further request for medical information to take to Dr. West. The request included a cover letter dated May 24, 2017, signed by Mr. Puim, addressed to Dr. West, which indicated the “updated medical information on James Cooper’s medical limitations and/or restrictions as they pertain to his job duties”. The letter enclosed specific questions for Dr. West to answer, in particular related to clarifying his earlier statement that the Grievor was unable to work at any OCWA site. Among the questions asked was:

What are the specific medical restrictions/limitations that prevent Mr. James Cooper from working at any OCWA site? I should reiterate here that each site is independently operated and maintained; and has a distinct and separate management and staff team.

The letter provided details of the activities of the Grievor’s home position as a Water Operations Control Room Foreperson. The letter continued:

In the health Information you provided to us dated April 28, 2017, you had indicated that Mr. James Cooper cannot and should not work at any Ontario Clean Water Agency (OCWA) site, for medical reasons. However, no restrictions for employment at any other MOE site.

Based on the above, we are at odds as to what this means as it does appear inexplicable. Therefore, we require further clarification on what specifically are his medical restrictions and/or limitations that inhibit Mr. James Cooper’s reintegration into OCWA.

it is important that you are aware that the Ontario Clean Water Agency (OCWA) operates 800 facilities across Ontario. In Mississauga, there are six facilities (two (2) wastewater treatment facilities, two (2) water treatment facilities, one (1) distribution system, and one (1) services facility). Each of these multiple facilities operate in different hubs at different locations, with distinct and separate management and staffing teams.

35I note the Employer’s May 24, 2017 letter to Dr. West also clearly stated the Employer might seek an Independent Medical Examination (“IME”) if, in its view, the information provided by Dr. West was insufficient:

If the information we receive is insufficient and does not assist us in providing Mr. James Cooper with accommodations based on his work-related medical limitations, the employer may have to request an Independent Medical Examination to allow us to meet our obligations under the Ontario Human Rights Code.

In fact, the Employer never requested the Grievor attend an IME. Whether it would have been appropriate for the Employer to make such a request is not, therefore, an issue which needs to be addressed.

36Dr. West responded to the Employer’s May 24, 2017 request by letter dated June 4, 2017. This letter is a key piece of evidence. The Union argues that if Dr. West’s April 28, 2017 HIF left any room for uncertainty by the Employer about the Grievor’s ability to work anywhere with or within OCWA, Dr. West’s June 4, 2017 letter is crystal clear. The text of the letter is as follows:

I have received your request for further health information regarding James Cooper. He has been diagnosed with Post Traumatic Stress Disorder, related to a challenging and toxic workplace environment with OCWA. He has had a psychiatric consult with Dr. Lindsey George confirming this diagnosis, and has been attending regular mental health counseling [sic] in Dundas. The primary medical restriction relating to his disability is the workplace. Specifically, he is unable to work with OCWA due to the PTSD symptoms that are triggered by this particular workplace environment, which Mr. Cooper describes as toxic. He experiences anxiety, anger and labile emotion when discussing this workplace. As a result, it is felt this particular workplace, and by extension any other similar workplace associated with OCWA would aggravate his PTSD, which would be detrimental to his mental health.

It is likely that the impact of his PTSD that prevents Mr. Cooper from working at any OCWA site is permanent, though this is difficult to predict. He continues to receive regular counseling [sic] relating to this. He has made some improvements with CBT, however he continues to be symptomatic to the extent that it negatively affects his emotional state and wellbeing.

Mr. Cooper has been a very active participant during this process. He attends appointments regularly and has been regularly attending counseling [sic] appointments. I cannot think of any particular strategies that would ameliorate this situation, aside from being offered employment with the MOE outside of the OCWA. Despite assurances that each site is independently operated and maintained, Mr. Cooper is of the opinion that his reputation has been sullied throughout OCWA and does not have the confidence of a truly independent worksite. I cannot comment as to the accuracy of this, but his belief is deeply engrained.

37Mr. Berton testified in chief that after receiving Dr. West’s June 4, 2017 medical report, he understood and accepted that the Grievor could not work at OCWA. Further, he testified that in his view Dr. West’s June 4, 2017 report constituted sufficient medical information to justify moving the Grievor into the HeRe process. He reached out to the CEHSW because OCWA needed its cooperation to get the Grievor into the HeRe. Mr. Berton’s subsequent actions, discussed below, were inconsistent with this understanding. I am satisfied, however, that his understanding of the Grievor’s condition fluctuated over time. Mr. Berton was unable to hang on to a restriction which simply did not make sense to him: that the Grievor was unable to work anywhere with or within OCWA.

38The next communication between the Grievor and the Employer in evidence is an email dated June 20, 2017 from the Grievor to Mr. Berton looking for an update on “where we are”, “where we are going” and “how we are going to get there”. It is noteworthy that the Grievor initiated this communication. This fact is once again inconsistent with the Employer’s assertion that the Grievor was not actively participating in the accommodation process. In his email, the Grievor also states: “The MOL confirms that a Health Reassignment is an easy process, and is surprised that you refuses [sic] move forward.” Whether or not the Grievor’s understanding as to the ease of the HeRe process was correct, he clearly placed the issue front and centre once again.

39Mr. Berton responded the same day, stating:

I have reached out to our corporate partners to have your accommodation requirements reviewed. I will be in touch soon.

Thank you for our continued patience.

Mr. Berton testified that by “corporate partners” he meant the CEHSW, stating that in order for the Grievor to be accommodated outside OCWA, he needed the CEHSW’s participation.

40Over the course of the next several days, the Grievor sent repeated emails to Mr. Berton, and to his Union representative, Ms. Dubeau, seeking an update. Around this time, Ms. Dubeau left her position with the Union and Kathleen Demareski became responsible for the Grievor’s file on behalf of the Union.

41By email dated July 10, 2017, Ms. Demareski advised the Grievor that she now had responsibility for his file. She also advised the Grievor the Employer wanted to meet with him on August 3, 2017 at its headquarters at 1 Yonge Street to discuss return to work and accommodation. It appears the meeting did not take place, although the reasons for this are not in evidence before me. The Grievor testified that he could only recall one meeting taking place in August, 2017, the formal dispute resolution stage meeting of August 21, 2017 discussed further below.

42On July 31, 2017, the grievance which is before me was filed. This would ordinarily be the end date for the period under consideration in this arbitration. The parties, however, agreed that events subsequent to that date were properly before me. The Grievor’s evidence in chief took the form of a declaration dated March 1, 2019. As noted in my decision dated April 15, 2019, at paragraph 16, in order for the Employer to know the case which it had to meet, the date of the declaration became the end point for the matters under consideration before me, subject to any further agreement by the parties. Subsequently, the Grievor and Dr. West gave evidence with respect to the period up to April 18, 2019 without objection. Accordingly, I determined the end date for the matters before me would be April 18, 2019.

43In or about August, 2017 the Grievor applied for a Targeted Direct Assignment position in the OPS. Mr. Berton testified that it was a position in the MOE. Targeted Direct Assignment positions are available to employees who meet certain conditions, including having been surplussed. The Grievor’s application was rejected as he had not been surplussed. I make note of the Grievor having made this application as it is some evidence of his ongoing efforts to return to work during this period of time in a position outside OCWA.

44A formal resolution stage meeting took place with respect to the grievance for August 21, 2017 at the Employer’s headquarters at 1 Yonge St., Toronto. The Grievor attended and met with his Union representative, Ms. Demareski in advance of the meeting in a boardroom. There were pictures of the South Peel Facilities hanging in the boardroom. The Grievor became upset and left the meeting. Ms. Demareski sent Mr. Berton and Mr. Puim an email later that day in which she advised them that the Greivor was “visibly upset being in this workplace” and noting that there were “pictures of South Peel in the boardroom we were assigned.” The Grievor testified that seeing the pictures and meeting with people from OCWA made him feel terrified and very sick and brought back all of the memories of harassment.

45No further formal resolution stage meeting was scheduled. Rather, the parties agreed to refer the matter directly to arbitration.

46There is no evidence of any further communication between the Employer and the Grievor, either directly or indirectly through the Union, until November 7, 2017. On that date Mr. Berton sent an email to Sandra Harper, one of the OPSEU staff members assisting the Grievor. Mr. Berton proposed an interim accommodation plan involving a graduated return to work by the Grievor to OCWA. The proposal would have had the Grievor collecting data with respect to OCWA assets, working from the Services Building in South Peel, and reporting to Services Mgr John He. The Grievor had no prior relationship with Mr. He. Ms. Harper forwarded the proposal to the Grievor. The Grievor responded stating simply “for obvious reasons I will not be able to move forward with the attached proposal” and requesting his grievance be moved to arbitration.

47On November 9, 2017, Ms. Harper sent the Grievor an email. The email indicates she had a telephone discussion with the Grievor in which she noted the project could be moved to 1 Yonge St. and he agreed to discuss the proposal with Dr. West. The Grievor was not questioned about this.

48Dr. West’s medical chart records visits on November 1 and 21, 2017. It is not clear from the chart whether or not the Grievor discussed the November 7, 2017 proposal with him. Dr. West testified the Grievor did not in fact discuss this proposal with him. He also stated, however, that if the work involved any OCWA site, he would have advised against it.

49The Grievor testified that as the November 7, 2017 proposal still had him working for OCWA, and in South Peel, it did not meet the restrictions imposed by Dr. West and accordingly he was unable to accept it. The Grievor testified he was unable to accept the position, even if it was moved to 1 Yonge St., as it did not meet restrictions imposed by Dr. West, which were that he could not work at any OCWA site.

50The first day of the hearing in this matter was May 1, 2018. This is of some significance since Dr. West’s evidence, reviewed below, indicates that the Grievor found participation in these proceedings triggering of his PTSD.

51By letter dated September 12, 2018, the Employer requested further medical information from Dr. West. Dr. West responded to the request on October 1, 2018. In his response, Dr. West again referenced symptoms of anxiety, depression and PTSD triggered by contact with personnel and staff of OCWA which precluded him from working for OCWA.

52Effective November 22, 2018, the Grievor was placed in the HeRe.

53In cross-examination, Mr. Berton indicated it was Dr. West’s October 1, 2018 report which finally resulted in the Grievor being accepted into the HeRe. He was unable, however, to explain why this report was considered sufficient while Dr. West’s report of June 4, 2017 was not. He was pressed on why it took until November 22, 2018 to place the Grievor in the HeRe. He re-iterated they were pursuing a two pronged strategy of exploring accommodation within OCWA while obtaining sufficient medical evidence to justify his admission into the HeRe. At times he suggested the CEHSW continued to request further medical information. There was no evidence as to the reasons for this request, other than resistance to placing someone in the HeRe until all possible accommodations within their home ministry, or in this case agency, were exhausted.

54The Grievor reported to Dr. West that on or about January 10, 2019, he was sent to the March of Dimes to complete a Comprehensive Vocational Assessment (“CVA”) for use in the HeRe process. After he had completed about 75% of the CVA, the Grievor took a break to use the washroom. When the tester was unable to advise the Grievor where the washroom was, he was suspicious that she actually worked for OCWA, became upset and had to leave before the testing was completed. Dr. West recorded an impression of “paranoid tendencies” in his chart. There was no other evidence with respect to the CVA.

55By letter dated January 16, 2019, Dr. West “recommended” the Grievor be assigned future employment within a 30 km radius of his home address for medical reasons. Dr. West testified that his objective had been to reduce the stress associated with travel time. The 30 km radius was selected as he and the Grievor thought this would limit travel time to 30 - 45 minutes each way.

56By letter dated February 8, 2019, the Grievor was advised that a temporary assignment outside OCWA had been identified for him through the HeRe. The assignment was as Program Support Assistant within the MOE. The start date of the position was to be February 25, 2019. Its duration was twelve months. The position was within 30 kms of the Grievor’s home, although it appears that was not a factor in its selection.

57The Grievor testified that he did not consider the position appropriate. He described it as being a secretary’s job. He considered this to be under-employment. He noted that while his home position wage rate of $32.05/hour was protected for six months, thereafter the rate fell to $26.86/hour. Further, because the position was only temporary, he believed that at the end of the twelve months he would revert back to a position at OCWA. When it was pointed out to him that there was nothing in the documentation which he received that indicated that he would be sent back to OCWA, he responded that based on the history of discrimination he had faced from OCWA it would have happened.

58By brief letter dated February 11, 2019, Dr. West indicated the Grievor would be unable to return to work as of February 25, 2019, “and would benefit from more time to deal with a number of factors that have contributed to his length of time from work.” In the letter, Dr. West indicated he anticipated the Grievor would be capable of returning to work on May 1, 2019.

59By letter dated April 17, 2019 the Grievor was re-offered the position originally offered on February 8, 2019, now with a start date of May 1, 2019. While outside the period of time before me, I note it appears the Grievor was unable to return to work on May 1, 2019, or indeed on any subsequent date. By letter dated December 5, 2019, the Grievor was advised that as he was not medically cleared to participate in HeRe as of that time, he was being removed from the HeRe.

60The Grievor was also questioned about his ability to work in any position in the OPS during the period September, 2017 until the end of 2018. He was asked if he had been offered a job whether he could have worked it. He testified that he did not know, and that the question should be put to Dr. West. Dr. West’s evidence is summarized below. The Grievor also commented on how the “OCWA’s continuous discrimination was kicking me off a cliff” and that he was in “very bad shape”. While these comments could be construed as applying to the Grievor’s situation in September, 2017, within the context of all of the evidence they are better understood as applying to the entire period of time. The Grievor experienced OCWA’s stance during the accommodation process as harassment. The accommodation process continued after the arbitration hearing commenced. The Grievor also found the arbitration process stressful.

Dr. West’s Evidence

61Dr. West testified in these proceedings on October 31, 2019. He had been the Grievor’s treating physician since 2010. He described his role as the Grievor’s family physician as that of an advocate. His description of what he meant by advocate, however, did not suggest he was using the term in a partisan sense. Rather, the meaning he ascribed to the term advocate was that he would do his best to support the Grievor’s needs and represent him fairly, but also ensure his safety and mental well being, that is to advocate for his mental health. I found his evidence to be fair, balanced and objective. He expanded on the opinions he had expressed in the reports which had been submitted to the Employer, but did not change what was said in those reports in any material way. Rather he confirmed the Grievor suffered from PTSD based on beliefs that OCWA was a toxic workplace and that associations with OCWA triggered anxiety, anger and labile emotion. Further, he confirmed the diagnosis of PTSD was made by the consulting psychiatrist. Accordingly, I only find it necessary to highlight certain areas of his evidence.

62In his June 4, 2017 report, Dr. West had commented that while he could not comment on the accuracy of the Grievor’s beliefs, they were deeply engrained. He was asked whether the accuracy of the belief made a difference when deeply engrained. He responded that he did not think so. He noted that often with PTSD there can be some inaccuracies around the belief. His role as a treating physician was not to change the Grievor’s beliefs, but to work with him around the associated emotional upset and help him to manage those beliefs. He noted that is where cognitive therapy, with which the Grievor was participating, could assist. He confirmed, in cross-examination, that because of the Grievor’s beliefs, any OCWA placement would be unacceptable.

63Dr. West commented that the Grievor’s condition remained the same (on October 31, 2019, the date of Dr. West’s testimony) as described in his June 4, 2017 report. Discussions of OCWA continued to be triggering for the Grievor. He would not be able to work for OCWA in any capacity because his beliefs related to prior traumatic experiences there. A return to work at OCWA would trigger his PTSD and the intensity of that emotional reaction is highly negative and would prevent him from working. On the other hand, Dr. West believed that the Grievor would be able to work elsewhere in the MOE or somewhere else within the OPS.

64Dr. West testified that based on the Grievor’s condition when he saw him on May 2, 2019, he did not believe the Grievor would have been able to return to work at that time. However, as of October 31, 2019, he believed the Grievor would have been able to return to work in an environment separate from OCWA with appropriate support from Dr. West and his counsellors.

65Dr. West testified the Employer’s November 7, 2017 proposed accommodation would have been difficult for the Grievor, whether the work was performed at the South Peel facility as initially proposed or the OCWA headquarters as subsequently suggested. Dr. West stated performing the work from home might lessen the likelihood of the Grievor being triggered, and that he was unable to comment on whether conversations between the Grievor and Mr. He would be triggering. In cross-examination it was put to him that the only way to find out whether the Grievor could work from home for OCWA would have been for the Grievor to have tried it. Dr. West responded he would need to have a conversation with the Grievor and his mental health counsellors to see if that was something the Grievor could manage. He observed, however, the risk was that it would put back any gains the Grievor had made in his recovery from PTSD. He stated that as advocate for the Grievor, he would not want him to work anywhere that might put that recovery in jeopardy. In his evidence in chief, Dr. West had commented that phone calls with people who worked for OCWA may trigger the Grievor depending on his emotional state, commenting that it was difficult to predict.

66There is a 10 month gap in Dr. West’s chart with respect to the Grievor, from November 21, 2017 until September 18, 2018. Dr. West confirmed that while the Grievor may have seen him, for example, in relation to a cold, during this period of time, he did not see him in relation to his PTSD. This made it difficult for him to comment on the Grievor’s ability to work during that period of time. He noted that when the Grievor did see him on September 18, 2018, he was still concerned about returning to OCWA and still receiving mental health counselling. From this, Dr. West confirmed the Grievor was unable to work in 2018. This would be consistent with Dr. West’s evidence with respect to why he provided the Grievor with the February 11, 2019 letter which indicated the Grievor was not able to commence the HeRe position as of February 25, 2019. Dr. West noted his chart indicated the Grievor felt emotionally unable to return to work while this arbitration was proceeding. He agreed with the suggestion that this would likely have been true for December, 2018 and January, 2019, saying that notwithstanding the absence of a note in his chart to that effect, his sense or feeling was that the Grievor would have been unable to return to work.

The Harassment Claim

67The Union argues the Grievor’s requests for assistance to return to work were ignored or denied by the Employer and further that there was blatant disregard of Dr. West’s recommendations. This, it argues, constituted a course of vexatious conduct which the Employer knew or ought to have known was unwelcome. As such, it constitutes harassment.

68The Union relies upon the definition of abuse and harassment provided by Arbitrator Shime in Toronto Transit Commission v. A.T.U. (Stina), (2004) 2004 55086 (ON LA), 132 L.A.C. (4th) 225:

243 Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct.

244 Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.

69The Union also cites the decision of Arbitrator Parmar in Children’s Hospital of Eastern Ontario v. OPSEU, 2015 58045 (ON LA) at paras. 109, 110 and 114 for the propositions that the subtle nature of the conduct does militate against a finding of harassment and that lack of intention is not a defence.

70The Employer did not resist either of these propositions, and I agree with them. For clarity, I would add that while lack of intention is not a defence, the presence of improper intention may be a factor supporting a finding of harassment. However, contrary to the assertion of the Union, it is not sufficient that the Grievor experienced the conduct as harassment. Rather, as argued by the Employer, the question must be approached on an objective basis: see Cara Operations Ltd. v. Teamsters, Chemical, Energy & Allied Workers, Local 647, 2005 94066 (ON LA), 2005 CarswellOnt 7614, [2005] O.L.A.A. No. 302, 141 L.A.C. (4th) 266, 82 C.L.A.S, (Luborsky) at para. 24; OPSEU (Grievor) v. The Crown in Right of Ontario, 2015 20923 (ON GSB) (Briggs) at paras. 7 and 10. In the words of Arbitrator Luborsky, the impugned conduct must constitute a departure from reasonable workplace conduct.

71So, for example, in Children’s Hospital of Eastern Ontario, the impugned conduct was “constantly intimidating others, by doing things like rolling her eyes, giving angry looks, raising her voice, ignoring people if they disagreed with her or spoke to someone who disagreed with her, and questioning them in an aggressive manner”: see para. 114. This describes conduct which, on an objective basis, constitutes a departure from reasonable workplace conduct.

72Further, as noted by the Employer, section 1(4) of the Occupational Health and Safety Act provides:

A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

73In this case, the Union relies upon the behaviour of Mr. Berton and Mr. Puim. With respect to Mr. Berton, the Union argues he understood the Grievor could not work anywhere within OCWA from the time he read Dr. West’s June 4, 2017 report. Nonetheless, Mr. Berton: in August, 2017 proposed the Formal Resolution Stage Meeting be held at OCWA’s headquarters at 1 Yonge St., Toronto; in November, 2017, proposed as accommodation of the Grievor a position at OCWA’s South Peel facility; subsequently considered the possibility of moving that job to OCWA’s headquarters; in September, 2018, requested further medical documentation from the Grievor; and generally delayed for months in advancing the Grievor’s accommodation requests. With respect to Mr. Puim, the Union argues he signed off on the November, 2017 accommodation proposal, even though he had not read Dr. West’s June 4, 2017 letter. Further, the Union argues, Mr. Puim would have known that working at South Peel, as contemplated by the November, 2017 accommodation proposal, would have resulted in the Grievor having contact, albeit limited, with the very OCWA staff he believed had harassed him and whom he was trying to avoid.

74In my view, all of the actions identified by the Union were taken by Mr. Berton or Mr. Puim as part of the accommodation process. There is no direct evidence that either acted out of improper intention. Some of these actions were ill advised, in that they did not meet the Employer’s duty to accommodate, as discussed further below, and thus constituted discrimination. However, while harassment on a prohibited ground constitutes discrimination, not all discrimination is harassment.

75While the Grievor experienced each act in the accommodation process as harassment, the Union did not argue that objectively they were. Nor, in my view, could such an argument have succeeded. The actions were not, for example, unduly repetitive so as to take them out of regular workplace conduct. While Mr. Berton did testify that he read Dr. West’s June 4, 2017 report to mean the Grievor could not work anywhere within OCWA, his testimony also established that he did not maintain this understanding as events continued to unfold. In relation to subsequent points in the chronology, he testified he understood the restriction to apply to OCWA facilities, which he did not understand to include OCWA’s headquarters. He also testified that, in conversations with the DAS at CEHWS, they could not understand how the Grievor’s disability could prevent him from working anywhere within OCWA. While the actions which were taken as a result were incorrect, they cannot be said to have been improperly motivated. Mr. Puim was unable to recall seeing Dr. West’s June 4, 2017 report, and so it cannot be said that he acted in a manner contrary to his understanding of that report.

76For the foregoing reasons, the Grievor’s claims of harassment are dismissed.

The Accommodation Claim

77The Employer does not dispute that the Grievor has a disability within the meaning of the Ontario Human Rights Code. Nor does the Employer dispute that the Grievor has suffered adverse treatment as a result of his disability. The issue in dispute is whether the Employer has failed to meet its duty to accommodate. The onus of proof lies upon the Employer.

78The Employer notes the accommodation process is tri-partite, requiring the co-operation of the Employer, the Union and the Grievor, and that the standard is not one of perfection. The Employer argues: its requests for additional medical evidence were proper; its canvassing and exhausting of accommodation options within OCWA before placing the Grievor in HeRe were appropriate; the evidence does not establish that the position it offered in November, 2017 was unsuitable, in that it could have been adjusted so that the Grievor could have performed the work from home; and that throughout the Grievor refused to cooperate in the accommodation process.

79In my view, the Employer’s April 7, 2017 request for medical information, which resulted in the April 28, 2017 HIF from Dr. West, was appropriate. The Grievor had been off work for over two years due to disability. The information provided by Manulife, as reflected in its March 27, 2017 letter, indicated that while he was able to return to work, the Grievor had an ongoing disability and restrictions. The Employer required additional information in order to fulfill its duty to accommodate.

80Further, in my view the Employer’s May 24, 2017 request for more specific medical information was also appropriate. The information provided by Dr. West in the April 28, 2017 HIF was at odds with the information attributed to him by the March 27, 2017 letter from Manulife. More significantly, Dr. West’s statement in the April 28, 2017 HIF that the Grievor "cannot and should not work at any OCWA site for medical reasons however no restrictions for employment at any other MOE site” justified further inquiry. It was appropriate for the Employer to provide Dr. West with information as to the precise nature of the Grievor’s duties, the multi-site nature of its operations and the fact that each site was independently staffed and managed, and to ask “what are the specific medical restrictions/limitations that prevent Mr. James Cooper from working at any OCWA site?”

81The difficulty arises with respect to the Employer’s actions following receipt of Dr. West’s June 4, 2017 response. In his response, Dr. West stated the Grievor “is unable to work with OCWA due to the PTSD symptoms that are triggered by this particular workplace environment, which Mr. Cooper describes as toxic.” Dr. West specifically addressed the question of whether Mr. Cooper might be able to work at another site:

Despite assurances that each site is independently operated and maintained, Mr. Cooper is of the opinion that his reputation has been sullied throughout OCWA and does not have the confidence of a truly independent worksite. I cannot comment as to the accuracy of this, but his belief is deeply engrained. He experiences anxiety, anger and labile emotion when discussing this workplace. As a result, it is felt this particular workplace, and by extension any other similar workplace associated with OCWA would aggravate his PTSD, which would be detrimental to his mental health.

Dr. West indicated the restriction was “likely” permanent.

82The Employer argues Dr. West’s letter did not specifically rule out work at the OCWA headquarters. I note the Employer’s May 24, 2017 request to Dr. West referenced OCWA’s 800 facilities, but not its headquarters. While Dr. West’s letter did refer to the Grievor’s inability to work at “this particular workplace, and by extension any other similar workplace associated with OCWA”, it also indicated the Grievor was “unable to work with OCWA” and that he required work “outside of OCWA”. If the Employer had doubts as to whether or not this precluded work at the OCWA headquarters, it might have been appropriate for it to seek clarification from Dr. West. But it did not make such a request. More significantly, it had no such doubts, at least initially. Rather, Mr. Berton testified in chief that after receiving Dr. West’s June 4, 2017 medical report, he understood and accepted the Grievor could not work anywhere in OCWA. Further, he testified that in his view Dr. West’s June 4, 2017 medical report constituted sufficient medical information to justify moving the Grievor into the HeRe process. He reached out to the CEHSW because OCWA needed its cooperation to get the Grievor into the HeRe.

83The Employer, however, was unable to hang on to the idea that the Grievor’s condition restricted him from working anywhere in OCWA. It appears this arose from an inability to understand how anyone could have such a restriction. Because of that, it did not accept the Grievor’s condition precluded him from working with or within OCWA and proceeded accordingly.

84Even if Dr. West’s June 4, 2017 letter could be understood as indicating the Grievor was able to work at the OCWA Headquarters, the Grievor’s reaction on attending the formal resolution stage meeting there in August, 2017 required the Employer to reconsider that understanding. The Union representative advised Mr. Berton that the “Grievor was visibly upset at being in this workplace” and left. This conduct is consistent with the Grievor’s symptoms when his PTSD was triggered.

85The Employer, however, persisted in exploring accommodation for the Grievor within OCWA. In November, 2017, the Employer proposed accommodation in a position to be located in South Peel collecting data on assets. The Grievor promptly refused. The Employer argues that in doing so he failed in his duty to cooperate in the accommodation process. It notes the Employer subsequently suggested the work could be performed from the OCWA Headquarters and suggests that if the Grievor had participated in the accommodation process, performing the work from home could have been explored. This argument ignores the fact that the Grievor’s response to the original offer is consistent with his PTSD. Once again, the Grievor’s response should have caused the Employer to reconsider its understanding of the situation, not persist in it. Further, Dr. West’s evidence was that performing the work either at South Peel or at OCWA Headquarters would have been difficult for the Grievor and that while he was not certain if the Grievor could have performed the work from his home he would be concerned that it would put his recovery in jeopardy.

86The Employer argues that it was required to consider whether the Grievor could be accommodated in his own job, or within OCWA, prior to considering positions outside of OCWA. Doubtless this will be appropriate in most cases. But consideration of whether the Grievor could be accommodated required consideration of his restrictions. Dr. West was clear in his June 4, 2017 report that in his opinion the Grievor was unable to work with or within OCWA due to his medical condition. This was not a matter of the Grievor’s preference, rather it was a restriction arising from his disability. Such a restriction may be unusual, but in the Grievor’s case it was nonetheless a restriction which arose from the nature of his medical condition. There is no medical evidence to the contrary. It was not open to OCWA or the CEHSW to substitute their opinion for that of Dr. West.

87It should have been clear to the Employer as of the Grievor’s refusal of the November, 2017 accommodation proposal, if not the Grievor’s reaction to attending at OCWA headquarters in August, 2017 or the receipt of Dr. West’s June 4, 2017 medical report, that there was no possibility of accommodating the Grievor within OCWA, and accordingly he should have been placed in the HeRe. However, following the November, 2017 offer of accommodation within OCWA, there is no evidence of any further accommodation efforts by the Employer until the Employer requested a further medical report from Dr. West in September 2018. Dr. West provided a report dated October 1, 2018. The Grievor was finally placed in the HeRe process on November 22, 2018, for assignment to a position outside OCWA. While Mr. Berton suggested that this was triggered by receipt of Dr. West’s October 1, 2018 report, he was unable to explain how the information in that report differed from Dr. West’s June 4, 2017 report.

88The Employer relies upon three cases in which labour adjudicators have cautioned against transferring an employee to another position as a means of accommodating stress or anxiety: Cape Breton (Regional Municipality) and CUPE, Local 993, 2013 CarswellNS 962 (MacKeigan); Yue v. Bank of Montreal, [2014] C.L.A.D. No. 162 (Marvy); and OSSTF v. Toronto District School Board (13-50), 2020 CarswellOnt 247 (Nyman) While I agree with the caution, the outcome in any particular case depends on its facts.

89In Cape Breton (Regional Municipality) and CUPE, Local 993, an employee grieved the termination of his employment after he failed to return to work from a disability leave. The employee suffered from anxiety and a note from his doctor stated that he found it “difficult to cope with his manager and he feels harassed by him and finds it difficult to go back and work under him”: see para. 3. He sought a transfer from his home workplace, and refused to return to work when it was not provided. The arbitrator accepted that anxiety “as a form of mental illness becomes a disability and as a result may require a different form of accommodation”: para. 50. He concluded, however, that the evidence before him did not establish such a different form of accommodation was required: see para. 50.

90Yue v. Bank of Montreal is also factually distinguishable, as acknowledged by the Employer in argument. The employee sought a transfer to a position closer to home in order to address the “stress” he experienced from commuting. The medical note he provided indicated only that it was “advisable” to change the employee’s work location to accommodate the stress he experienced from a longer commute, and the doctor agreed that it was not a medical necessity.

91In OSSTF v. Toronto District School Board (13-50), the arbitrator concluded it had not been established that the transfer sought by the employee was medically required: see para. 316.

92The Employer relies upon OSSTF v. Toronto District School Board (13-50) and on OPSEU (Hart-Day) v. Ontario (Ministry of Community Safety and Correctional Services), 2011, 49508 (ON GSB) for the proposition that the role of a medical practitioner is to identify restrictions arising from an employee’s disability, not to determine the appropriate accommodation. I agree. In this case, however, the medical evidence established that the Grievor’s medical condition of PTSD restricted him from working with or within OCWA. To state what should have been obvious to the Employer, it follows that he could not be accommodated by working in a position with or within OCWA. If OCWA were a stand alone employer, the result would likely have been that the Grievor’s disability could not be accommodated at all. OCWA, however, is part of the Ontario Public Service, and transfers to positions outside of OCWA throughout the HeRe process remained to be considered. It was to this the Employer should have turned its mind.

93The Employer relies upon Ottawa (City) and CUPE, Local 503 (Abdulkadir), 2018 CarswellOnt 8856 (Stephens) for the observation that doctors sometimes act as advocates for their patients, and provide notes to enable them to obtain return to work arrangements which are preferred but not required; and its observation that precise rigidity with respect to scheduling requirements, even if described as a “restriction” is medically unusual and fraught with potential for abuse. I do not disagree with either observation. In this case, however, as already stated, I am satisfied that Dr. West’s opinion was fair and objective and further that the Grievor’s inability to work with or within OCWA is not a preference, but rather a restriction arising from his disability.

94The Employer argues that it should not be held to a standard of perfection and that a certain amount of delay may be reasonable, citing Toronto District School Board and CUPE, Local 4400 (Wilton), 2015 CarswellOnt 19823 (Sheehan) at para 34. I note Arbitrator Sheehan made clear in the very next paragraph that recognizing a certain amount of delay may be reasonable does not amount to licence to engage in some unchallengeable amount of delay. In my view, both principles are important, and it is useful to set Arbitrator Sheehan’s reasons on them in full:

34. In assessing that delay, I accept the cited reasoning of Arbitrator Luborsky in City of Toronto, supra, suggesting that an employer may be entitled to some latitude with respect to mistakes, errors of judgment and delays that may take place with respect to an employer's handling of a particular scenario of an employee in need of accommodation who is seeking to return to work. Specifically, an arbitrator should be hesitant to subject an employer's handling of its duty of accommodation obligations to such a rigorous standard that any delay in the handling of the matter will give rise to a finding of liability. Nor should the employee, or the Union necessarily be of the expectation that a particular employee's accommodation issues are to be dealt with necessarily on a priority basis. There may well be, as Arbitrator Luborsky states in City of Toronto, supra, "certain administrative delays that can be excused as part of an imperfect process”.

35. Caution must be exercised, however, that this acknowledgement affording an employer some latitude with respect to the timeliness of the development and implementation of a back to work plan does not turn into a blind acceptance of a delay that can be unequivocally attributable to the actions, or lack of action thereof, on the part of the employer. That reasoning should resonate even if the delay in question is not necessarily extensive. An employee should not necessarily have to bear the adverse economic consequences of not being allowed to return to work due to an unjustified delay that is clearly attributable to the employer.

95At para. 36, Arbitrator Sheehan observed that what constitutes unreasonable delay will turn on the facts of each case. It is perhaps noteworthy that on the facts before him, he concluded an unexplained delay of only nine days was unreasonable. That finding was unique to the facts of that case. Nonetheless, the delay in this case is measured in months, not days. The Employer’s failure to place the Grievor in the HeRe process following receipt of Dr. West’s June 4, 2017 medical report until November 22, 2018, was, for the most part, unexplained and is in my view unreasonable. The adverse impact of such a delay upon an employee is recognized in the Employer’s own HeRe Guide, and in particular in the second of the principles identified as governing the health reassignment process. For ease of reference, I reproduce it again here:

2. Timeliness is a critical element of employment accommodation therefore an employee should be reassigned as soon as possible. This will help to ensure the employee’s continued income, productivity and self-esteem, and continued contribution to the employer’s business objectives.

96By letter dated February 8, 2019, the Grievor was advised that a temporary assignment outside OCWA had been identified for him through the HeRe process. The assignment was as Program Support Assistant within the MOE. The start date of the position was to be February 25, 2019. There is no suggestion the time it took from when the Grievor was admitted into the HeRe process until the Program Support Assistant position was unreasonable.

97The Union argues, however, the Program Support Position offered to the Grievor through the HeRe was not an appropriate accommodation proposal. While conceding the position did not “blatantly ignore” his medical restrictions, the Union asserts it was not suitable to the Grievor’s skills, abilities and education. Further, the Union asserts the Program Support Position was not related to what the Grievor was doing in his pre-injury position and would have exposed the Grievor to a substantial pay cut after six months. Moreover, the Union noted the Grievor was Grievor was terrified that at the end of the twelve month period of the temporary assignment, he would be sent back to OCWA.

98I agree with the Employer that its obligation is to offer reasonable accommodation, and that obligation may be fulfilled even if the position offered is not the specific accommodation preferred by the Grievor. However, as noted at the outset of this section, the onus of proof with respect to the reasonableness of accommodation efforts lies upon the Employer. There was no evidence as to how the Program Support Position was identified. There was no evidence as to whether it was a suitable match for the Grievor’s skills and abilities, other than the Grievor’s opinion that it was not. There was no evidence as to whether other positions were available. Accordingly, I am unable to conclude the Employer has demonstrated the Program Support Position was appropriate.

99I pause to note that I am concerned by the Grievor’s statement that he did not consider the position appropriate because of his fear that at the end of the twelve month period he would be sent back to OCWA. That fear was objectively unreasonable. I would conclude the Grievor’s refusal of the position on that basis constituted a failure to cooperate in the accommodation process but for the fact the fear itself is a product of the Grievor’s disability. The Employer’s duty to accommodate to the point of undue hardship would be engaged. Having said that, it is difficult to see how a fear of accepting a position elsewhere in the OPS could be accommodated. If such a restriction were permanent, it may well be that the point of undue hardship would have been reached and the Employer’s obligation discharged. However, the evidence before me is that the Grievor’s inability to accept the position in February, 2019 for medical reasons was temporary.

100For all of the foregoing reasons, I conclude the Employer breached its duty to accommodate the Grievor in failing to place the Grievor in the HeRe process sooner and with respect to the position offered through the HeRe process.

Remedy

101The Union seeks declarations related to harassment, failure to provide a safe workplace and discrimination as a result of failure to accommodate the Grievor’s disability.

102The allegations related to harassment and failure to provide a safe workplace have not been made out. The allegation of discrimination as a result of breach of the Employer’s duty to accommodate has. Accordingly, I make the following declarations:

(i) The Employer breached the prohibition against discrimination contained in Article 3.1 of the Collective Agreement by breaching its duty to accommodate the Grievor’s disability; and

(ii) The Employer breached the prohibition against discrimination contained in s. 5 of the Ontario Human Rights Code by breaching its duty to accommodate the Grievor’s disability.

103The Union seeks an order that the Grievor be reimbursed for all lost wages (including benefits and pension contributions) for the period since his LTIP benefits expired on April 30, 2017.

104For the reasons stated, I find there was no breach of the duty to accommodate until sometime after the Employer received Dr. West’s letter of June 4, 2017. That letter made it clear the Grievor could not work within OCWA. Accordingly, any wage loss experienced by the Grievor was not in relation to a position within OCWA, but rather would have been with respect to an available and suitable position outside OCWA located through the HeRe process. There is no evidence there was any such position prior to February, 2019. Further, the Grievor’s ability to actually work in any such position is a matter of speculation at best. The combination of these facts causes me to conclude that no loss of wages has been demonstrated and it would be inappropriate to award damages under this heading.

105The Union seeks substantial damages for injuries to the Grievor’s dignity, feelings and self respect pursuant to paragraph 1 of s. 45.2(1) of the Human Rights Code. Neither party provided any authority with respect to the assessment of such damages in this case.

106In Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, the Ontario Court of Appeal cited with approval at para. 61 the following framework for assessment of damages for injuries to dignity, feelings and self respect under the Human Rights Code, set out in Arunachalam v. Best Buy Canada, 2010 HRTO 1880:

51Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.

52I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16 ().

53The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

54The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

107At para. 62, the Court in Strudwick noted:

The considerations discussed in Sanford, at para. 38, include:

• the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the complainant’s vulnerability;

• objections to the offensive conduct;

• the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;

• the degree of anxiety the conduct caused; and

• the frequency and intensity of the conduct.

108I find it convenient to start with consideration of the second criterion set out in Arunachalam, the Grievor’s particular experience in response to the discrimination. The Grievor’s evidence was that the Employer’s “continuous discrimination” had knocked him “off the cliff” and that he was in “really bad shape”. Dr. West’s chart indicates that when he saw the Grievor on August 1, 2017 he was “more agitated and upset than I have seen him in [a] long time” and records Dr. West’s impression as “workplace stress / worsening emotional state”. On August 28, 2017, Dr. West records as his impression “anxiety / depressed mood”. A similar impression is recorded for November 1, 2017. On November 21, 2017, however, there is no reference to the Employer’s November 7, 2017 accommodation proposal. Dr. West’s impression was “anxiety - seemingly better? Denial of employment situation - continue to monitor mood”. There are no then recorded visits again until September, 2018. However, as outlined above, Dr. West’s viva voce evidence was that he thought it was unlikely the Grievor was able to work in 2018. Overall I conclude, the impact of the discrimination on the Grievor was severe.

109Turning to the first criterion, in my view the Employer’s conduct was objectively quite serious. Its failure to accept, and thus act on, the medical evidence establishing the Grievor’s disability required a search for accommodation outside OCWA lasted from November, 2017, if not June, 2017, until November, 2018. There is no explanation at all for the delay from November, 2017 to November, 2018. This is too long on any standard. The objective seriousness of this conduct is compounded when consideration is given to the vulnerability of the Grievor. He was without income throughout this period of time. Further, the nature of his disability was such that it was triggered by interactions with OCWA. The Employer’s November, 2017 proposal for accommodation through work within OCWA was completely inconsistent with the Grievor’s disability and should have been expected to trigger an adverse reaction.

110On the other hand, for the reasons stated in earlier decisions in this matter, reported at 2019 42398 (ON GSB) and 2019 65193 (ON GSB), the Grievor’s allegations that his disability was caused by the Employer’s failure to address harassment in the workplace prior to the commencement of his absence from the workplace in 2014 were not addressed in these proceedings. There is, therefore, no evidence that the Employer caused his disability. There is also no evidence the Employer acted in bad faith in its approach to the accommodation process. Further, for the reasons stated above, I have found the Employer’s actions did not amount to harassment.

111The absence of the factors set out in the preceding paragraph serves to distinguish this case from Ontario Public Service Employees Union (Ranger) v Ontario (Community Safety and Correctional Services), 2013 50479 (ON GSB): see paras. 56 - 61. I note that in that case, Arbitrator Leighton awarded $35,000 in damages for injuries to dignity, feelings and self respect. I also note that in that case, the failure to accommodate lasted over a period of 21 months.

112In Association of Management, Administrative and Professional Crown Employees of Ontario (Bokhari) v Ontario (Economic Development, Employment and Infrastructure), 2016 51073 (ON GSB), Arbitrator Dissanayake awarded $25,000 in damages for injuries to dignity, feelings and self respect. The factors he considered in doing so are set out paragraphs 52 - 60. Of note, over a period of six months, the grievor was pressured to work during regular hours despite medical substantiation that he was unable to do so. He was subjected to surveillance. Ultimately, he was surplussed from employment, in what Arbitrator Dissanayake described as a “sham”. He was mistreated at the time of the termination of his employment. Arbitrator Dissanayake appears to have given substantial weight to what he described as bad faith on the part of the employer. Arbitrator Dissanayake also commented on the fact the employer was aware the grievor was receiving treatment for depression. Arbitrator Dissanayake found, notwithstanding the lack of medical evidence, that the employer’s conduct aggravated the grievor’s depression and further that such aggravation should have been within the reasonable contemplation of the managers who engaged in the conduct. Arbitrator Dissanayake also commented on the fact the grievor had experienced no financial loss.

113The case before me does not have the elements of bad faith which figured prominently in Bokhari. Nor does it involve termination of the Grievor’s employment. On the other hand, the Employer’s breach of its duty to accommodate extended over a period of time which was at least twice as long and the Grievor was particularly vulnerable as he was without income, and because of the nature of his disability.

114Taking all of the above into consideration in my view it is appropriate to award the Grievor $20,000 for injury to dignity, feelings and self respect pursuant to s. 45.2(1) of the Ontario Human Rights Code.

115The Union seeks an order directing the Employer to accommodate the Grievor immediately by placing him in an appropriate position elsewhere in the OPS through the HeRe process. I decline to make such an order. As of the end of the period of time before me, the medical evidence indicated the Grievor was unable to work in any position.

116I note, however, that the duty to accommodate is an ongoing one. Should the Grievor provide the Employer with medical evidence establishing an ability to return to work, I trust the Employer’s consideration of appropriate accommodation will be informed by this decision.

Conclusion and Summary of Orders

117The grievance is allowed in part. I make the following declarations and orders:

(i) The Employer has breached the prohibition against discrimination contained in Article 3.1 of the Collective Agreement by breaching its duty to accommodate the Grievor’s disability;

(ii) The Employer has breached the prohibition against discrimination contained in s. 5 of the Ontario Human Rights Code by breaching its duty to accommodate the Grievor’s disability;

(iii) The Employer shall pay the Grievor $20,000 in damages for injury to dignity, feelings and self respect pursuant to s. 45.2(1) of the Ontario Human Rights Code.