GSB# 2022-7038

UNION# 2022-0102-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barbosa)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Awnonna Rashid Collins & Metcalfe LLP Counsel

Sarah Mikhaiel Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

March 15, and September 23. 2023; May 27 and June 14, 2024; March 6, June 2, 16 and 23, 2025

Decision

1I have two grievances before me. I heard evidence with respect to both of them. However, prior to final argument the parties agreed to defer the argument of the second grievance. Accordingly, this award is in respect of the first grievance. That grievance arose out of the Grievor’s injuries in an accident which caused her to be off work for approximately two years. The grievance pertains primarily to the Grievor’s return to work following the accident. It alleges the Employer breached its duty to accommodate the Grievor under the Ontario Human Rights Code (the “Code”) and the parties’ collective agreement when it asked the Grievor to submit to an Independent Medical Exam (IME) and halted increasing her hours of work under the graduated return to work plan which had been agreed to between the parties. The grievance states:

I, the member grieve that the employer has violated my rights under the collective agreement, specifically but not limited to articles #2, #3 including rights under the Ontario Human Rights Code, the return to work policy and any other article, policy, Act, Code, or legislation that may apply.

2The essence of the grievance is that the Grievor believed that the Employer was not increasing her hours of work quickly enough so that she could perform full-time job duties. As a result, she lost pay because she never worked full-time hours.

3The Union called the Grievor as its only witness. The Employer call Catherine Bates, the Grievor’s manager, as its only witness. In addition, it relies on the IME report which the Union does not contest. This award determines the first grievance.

The Facts

4In July 2005, the Grievor started working for the Ministry of the Attorney General as a Court Reporter at the London Court House. On December 4, 2017, she became a Court and Client Representative (CCR). She was a full-time permanent employee working 36.25 hours per week.

5On October 24, 2018, the Grievor was in an accident and sustained serious non-work-related injuries, including a concussion, and was off work for more than two years on STSP and LTIP. Soon after, the Grievor provided the Employer with a note from her doctor which indicated that she had concussion issues and that when she was fit to return to work, she would require a graduated return to work schedule. As it turned out, she did not return to work as quickly as was hoped.

6On August 22, 2019, the Employer wrote the Grievor confirming that her insurer Manulife had medically cleared her to commence a Gradual Return to Work (GRTW) plan effective July 29, 2019, with an anticipated return to full-time hours effective September 23, 2019. However, she did not return to work on July 29, 2019, as she indicated she did not want to participate in a GRTW and would return to full time hours on September 23, 2019. As a result of this, Manulife closed her LTIP rehabilitation claim.

7The Employer did not accept the Grievor’s choice and advised that she had certain options. It advised her to select an option by September 5, 2019, failing which it would place her on an unauthorized unpaid leave effective August 22, 2019. It also advised that could lead to discipline up to and including dismissal and/or a declaration of abandonment pursuant to section 42 of the Public Service of Ontario Act, 2006. However, the Grievor provided medical evidence that she was not yet fit to return to work, and the Employer dropped the issue.

8In October 2020, the Grievor contacted the Employer to return to work as her health was improving. The Employer sought medical information to confirm her fitness and accommodation needs, if any. The Grievor’s occupational therapist (OT), Jessica Gough, completed a Health Information Form dated November 5, 2020. She indicated that at the time the Grievor could work a maximum of four hours per day for a total of 20 hours per week. She advised it was impossible to know, at that stage, the duration of the hours of work restriction. The Employer sought more information and provided a new Form for the Grievor’s doctor to complete.

9The Form, dated January 19, 2021, was again completed by Ms. Gough. The Employer’s wellness department again found the information on the form difficult to understand and unclear on a practical level. It sought additional information from Ms. Gough. Ultimately the Employer agreed to have the Grievor return to work in March 2021.

10On March 8, 2021, the Employer held a virtual meeting with the Grievor to discuss her return to work. In attendance were Darcy Lampkin, the Manager Court Operations, Catharine Bates, Supervisor of Court Operations, Kelsey Vaughan, Acting Supervisor, Judy Nyilas, Disability Accommodation Specialist, Denise Sands, the OPSEU/SEFPO Staff Representative, Jessica Gough and Timothy Lochhead, who was the Grievor’s support person and friend. The outcome of the meeting was that a Return to Work and Employment and Accommodation plan was developed and agreed to on March 29th, 2021. The Plan provided for four-hour workdays, consistent with Ms. Gough’s advice. The Grievor would work from home. The Plan also provided:

Check-ins with Supervisor as needed, weekly at a minimum. Full review when updated health information is provided, or at 4 weeks (whichever is first); a regular review schedule will be established thereafter.

11The Grievor was assigned a single project collecting fees arising out of estate files that had been filed during the COVID-19 pandemic. The Grievor worked from home, in part because she required a quiet environment as part of her accommodations. She had challenges with the amount of screen time she could tolerate and accordingly she was permitted to take breaks as needed.

12From the start, and to her credit, the Grievor sought to accelerate a return to full time hours. Within two weeks of returning to work the Grievor indicated in an email that if all went well, she would like to increase her hours of work to 4.25 hours per day. Ms. Bates responded by email on April 12, 2021, that she was concerned about rushing to resume a full work schedule. She did not want her to exceed 20 hours per week without “full medical support”. She suggested that she “continue with her current schedule until you’ve had an opportunity to connect with your OT and then I can set up a meeting to provide Judy and I with an update?” The Grievor replied “Sounds Great”.

13On April 29, 2021, the DAS Ms. Nyilas wrote Ms. Bates and asked for an update on how the Grievor was doing. Ms. Bates replied:

[She] is doing really well. In fact, she had asked me if she could increase her hours. … Ultimately I told her she should connect with her OT and follow her guidance in this regard.

Her project is nearing an end for the time being. I honestly didn't think she would be done this quickly! What are next steps for expanding our hours on scope of work?

14Ms. Nyilas responded: “That is really good to hear!” She agreed that the Grievor’s hours should not increase until they had heard from her OT. She asked Ms. Bates about her next work tasks and suggested that the OT complete a health questionnaire [HQ] to assist in determining the best course for the Grievor. Ms. Bates agreed the health questionnaire was appropriate and suggested that the Grievor might do well in estates. She also said, “I do worry that I don’t have a good sense of whether or not she is ready to progress to something more complicated, so the HQ will be helpful determining if estates is the right way to go”.

15Their discussion continued when Ms. Nyilas wrote:

Great… so, in the simplest terms, this would involve reviewing files, discerning what needs to be done, organizing steps, processing forms, recording results, contacting lawyers/ other stakeholders, that kind of thing? The more we can describe the process to the OT, the better. Who would determine if a file is too complex for her, is there some kind of intake process?

16Ms. Bates responded:

Yes that's correct. There is not an intake process unfortunately. We would have to scan the files to her as much of estates is still paper, so the less complex estates could be vetted by someone in the office and then sent for her to work through.

17On or about April 30, 2021, Ms. Bates wrote the Grievor to ask if she had spoken with her OT about increasing her hours of work. The Grievor replied on May 3, 2021, that it was going well, and she had not had the opportunity to speak with her OT yet. The Employer provided the Grievor with a medical Form for her medical team to fill out.

18In early June 2021, Ms. Bates and the Grievor had a discussion about a file. Ms. Bates took the opportunity to ask the Grievor how she was doing. She responded that she thought she was doing well with the fees collection project and that she was going to speak to her OT shortly to look over the forms. Ms. Bates replied: “I think you have done a great job Julie! We've collected a ton of outstanding fees, thanks to your hard work”.

19The Grievor’s OT, Ms. Gough, completed the form. On the form Ms. Gough indicated that the Grievor’s hours of work could be increased to 4.25 hours per day. She also indicated that it would be best, rather than having a schedule to increase hours further, that she remains at a temporarily fixed level until she adjusted to the new work demands. However, she did indicate that when ready, the Grievor could work 4.5 hours per day for a 2-to-8-week period after she successfully completed the 4.25-hour level.

20As of June 8, 2021, the return-to-work plan for the Grievor had been successful and the Grievor had expressed the desire to work additional hours. The Grievor’s evidence was that she thought she was doing very well. She had virtually eliminated the fees backlog and had done it quickly. There were only a few collection files left, and she was anxious to increase her hours of work as soon as possible to ease the financial burden that the situation had imposed on her. The Employer then provided another medical Form to be filled out. It asked whether the Grievor could work in estates as follows:

As Ms. Barbosa's current project work nears completion, the Employer has identified tasks/duties within her job specification that she could ease into and gradually expand her involvement into more complex matters. This would start with work on straight-· forward estate files (vetted to ensure suitability). Ms. Barbosa would be able to engage her supervisor (or designate) throughout the process for assistance.

The tasks/duties would involve the following steps:

a. Receiving scanned files (pre-vetted- these would be identified and sent to her)

b. Reviewing the electronic files

c. Discerning/organizing next steps

d. Processing forms

e. Recording results

f. Contacting lawyers/other stakeholders as needed throughout the process

21Ms. Gough agreed that as described the new estates duties would be appropriate as she advised the Employer: “No concerns from OT standpoint as long as client is able to take on these new tasks/duties with the current environmental accommodations in place [e.g. working from home] which allows her to work distraction-free and take micro breaks throughout the day as needed. She also advised that the Grievor’s condition was improving/recovering. Ms. Gough agreed that the Grievor’s hours of work could be increased to 4.5 hours per day and that she “would be successful if her hours are increased gradually and slowly (such as fifteen minutes to thirty minutes every two weeks) especially when her job duties/demands change”.

22The Employer assigned Hillary Van Rycheghem to oversee the Grievor’s training on the estates work that would be assigned to her. On or about July 20th, 2021, Ms. Bates emailed the Grievor an estates training package which included slides.

23On August 6, 2021, Ms. Van Rycheghem and the Grievor had an e-mail discussion and Ms. Van Rycheghem suggested work she could do. The Grievor replied that she would and then said:

BTW, thank you very much for being patient with me. I wanted you to know you've been really great and I'm very appreciated having you help me learn! My journey hasn't been easy. I came from having suffered a TBI (traumatic Brain Injury) and was gone from work for over 2.5 years, so if I'm slow in my learning, I apologize but I know I'm getting there and better!

24Ms. Van Rycheghem replied:

Absolutely no need to apologize to me. I think you are doing great. I know all people have different ways of learning and not to mention you're doing it all from home which is definitely more difficult than training in the office where you get a more complete picture. I can't imagine the extent of what you went through it I am happy to help you in whatever way I can.

Also we have two other people I recently trained were very grateful for the checklist and said it will also help them a lot. So thank you for giving the idea to draft that up. Let me know if there's anything I can do to make the learning more effective for you in your situation.

I'm glad you told me yesterday that one task at a time is a better way for you to learn because I really wasn't aware of any of your situation going into training period I think next week we can focus on just keying in and getting familiar with the database. Overall amazing job so far. Try not to get frustrated, I know the content is a lot and every time you make a mistake it is a learning lesson. Thank you for sharing that with me.

25The parties updated the Plan on August 16th, 2021, to reflect the new Estates duties and changes to the Grievor’s hours of work. Under the Plan, the Grievor’s hours of work were increased to 4.75 hours per day. In addition, the Plan indicated that her working hours would increase to five hours per day commencing August 30th, 2021, and would continue to increase by .25 hours every two weeks thereafter. The parties identified “Ongoing training in Estates business line within parameters of increased hours of work” as part of her “Transitional duties”. The Grievor was to “Continue to identify training opportunities as the plan graduates toward increased regular duties”. The Grievor’s other restrictions remained in place, and the Employer had the explicit right to ask for further medical information.

26However, at this point management was starting to have concerns about the Grievor’s progress. Their concerns were not about the Grievor’s hours of work but her ability to do the work at all, let alone at an appropriate pace. Management did not advise the Grievor of these concerns at this stage. Ms. Bates followed up with the Grievor on September 17, 2021, to see how she was doing with the estates work. The Grievor responded on September 20, 2021:

Hi Catharine! :)

Thank you very much for the printed estates material! It helped greatly with reading. With Estates and Wills, I have found it to be challenging to grasp, because there are so many avenues, complexities and with terminology. But I think other co-workers have felt the same way when learning this area of law.

Kelsey just emailed me this morning also to check-in with estates and how I am finding it, so I cc’d Kelsey too so we are all on the same page :)

I am hoping to get more training from Hilary (or Natalie or Gwen, whomever) if possible, and have a focused approach on data entry first.

It has been difficult to grasp all angles of estates training in a condensed version – Hilary was great, but she had no idea where my learning difficulties were, and so near the end of our training, I openly let her know why I had been struggling and why I was having a hard time learning a multi-tasked based learning approach. Hilary also agreed that data entry would be a good focus point before moving into other avenues of estates and wills. And so I am hoping to focus on data entry to get a better grasp and comfortability with the database program and documents.

Thank you both for your guidance throughout! :)

27Ms. Bates responded that Ms. Van Rycheghem would connect with her to go through some more training. In addition, Ms. Bates met with the Grievor remotely later that week to see how things were going.

On September 24, 2021, Ms. Van Rycheghem wrote Ms. Vaughn as follows:

Hi Kelsey,

I just wanted to give you a quick update on Julie’s progress this week. I just finished my second meeting this with her and I think she can definitely key e-files in on her own now. We were only able to go through keying in 2 files (that’s all the e-files that were received this week). The first one we went through together using the step by step guide I provided her with. The second one she did by herself and I checked over and there were no mistakes I have let her know that if she has any questions going forward she can always reach out to me. Let me know if you need me for anything training wise next week. I think that if you wanted her to key in physical files that we receive in the office and are then scanned to her that it would be beneficial to have an hour or so to go over that process as it is slightly different (less steps, no saving to one drive, collecting EAT payment etc.)

28Ms. Vaughn forwarded the email to Ms. Bates who responded:

I just had a call with Julie-Anne for an update, so this was very helpful to have.

I think we can likely scan her a few estates to work on next week.

Jackie helped out with this before, I know she’s super busy as well…open to your thoughts.

29Ms. Vaughn replied:

Well – I’m thinking with Hilary being in again next week that she could scan her some and they can go through them together at least as a starting point? Then I can look at other options following their time.

30On October 1, 2021, Ms. Van Rycheghem wrote Ms. Vaughn raising concerns about the Grievor’s progress:

Julie and I just finished up our training session as per your request. I think there may have been a miscommunication on Julie taking on “keying in physical office files” so soon. I was unaware that she was off 3 days this week, also she hasn’t practiced keying in e-files since our last meeting together, last week. I think we both agree that taking on another piece of the puzzle right now may be too much. In a couple weeks we could possibly readdress this? Going forward please touch base with Julie and how she feels her training and workload is before we take on more. I feel taking on too much too soon potentially causes some confusion in the stuff she already does know (because there are so many exceptions to the rules).

31Ms. Bates was copied on that email and wrote the Grievor on October 4:

I have concerns about your progress with estates. I want to make sure we can find appropriate work that fits within your accommodation requirements, and I’m not sure if Estates is the best option. I have a meeting with Judy this week to discuss other options and I will touch base with you after that.

32On October 8, 2021, Ms. Bates emailed the Grievor and instructed her to send her a weekly summary of her work on the estate files assignment, and on the outstanding fees assignment. Ms. Bates told her that the requested summaries will ‘be helpful in assessing your progress and identifying opportunities for additional learning.’ On the same day, the Grievor provided a summary of her completed duties as had been requested. She also wrote explaining why adding keying physical files would be challenging for her:

“I need a focused approach, because with the estates training, I’ve been taught how to handle a file from start to finish. But again, there is so much entailed in estate files that there isn’t room for error. And without a focused approach, it causes me to be confused – making errors, forgetting steps on procedures, headaches and brain fog. I know Hilary could sense/see that in me on our video training sessions.” She continued, “I am doing my best, but would like to continue with learning estates and keying in and shortly move into keying in physical office files…then go from there with comfortability and accuracy.”

33Ms. Bates acknowledged she received her note and added, “This is helpful.”

34On October 15, 2021, the Grievor wrote Ms. Bates to inform her that she increased her hours from 5.25 to 5.5 hours per day starting on October 12, 2021.

35On October 22, 2021, the Grievor provided Ms. Bates with her weekly summary of her completed duties. She also informed Ms. Bates that she had been making consistent progress working 5.5 hours a day and she was ready to progress to 5.75 hours a day, starting October 25, 2021.

36Ms. Bates replied as follows:

As I mentioned a couple weeks ago, I am a bit concerned about your progress with the estates work. I met with Judy and we would like to gather some updated medical information from your health care providers to help us ensure this work is appropriate for your accommodation requirements.

I think it best that we don't increase your hours any further until we have the updated medical.

37On November 1, 2021, Ms. Gough contacted Ms. Nyilas requesting a phone call to discuss challenges the Grievor reported with her return-to-work plan. Ms. Gough said that she had spoken with the Grievor who had provided “an update about where she is at with her RTW program and some challenges she is experiencing”. She was aware that Ms. Bates was asking for updated medical.

38On that same date Ms. Bates wrote to Ms. Nyilas as follows:

I thought it might be helpful to share the latest update from Julie-Anne following receipt of the email from her OT Jessica today requesting an update meeting.

As we had discussed, I am concerned about Julie-Anne's capacity to move forward with the Estate's work. She has been adequately trained and has not moved beyond keying in a simple estate submitted online. We have attempted to move forward with keying in an estate submitted over-the­ counter without success. Julie-Anne admitted that it was too much for her to understand the differences yet and was not ready to progress. Additionally, Julie-Anne is still seeking guidance from colleagues on this very simple task, as she notes below.

I am also concerned about the length of time that has past. Julie-Anne began her training in the Estates business line in July. In my view, 4 months is a sufficient amount of time to progress beyond keying in Estates and she should be at the very minimum processing simple Estates, both with and without a will.

She identifies in her update email that she requires a structured focused approach to learning, which I believe we have been doing, but I am not certain if there are some things that her health care providers could suggest would help her progress, that we could explore.

39On November 8, Ms. Nyilas asked for clarification on Ms. Gough’s request: whether she would like a phone call with only Ms. Nyilas or an accommodation meeting with all parties present. On the same day, Ms. Gough replied that she would like to speak individually to Ms. Nyilas regarding the return-to-work plan.

40On November 16, 2021, Ms. Bates requested that the Grievor tell her more about her work with estate files and asked her whether she thought she was ready to key in other estate files. The Grievor replied that she had challenges in the beginning but that she had been able to grasp working on estate files due to having a ‘focused approach.’ She said that she was comfortable working on estate files and would be interested in keying in other estate files.

41On December 10, 2021, the Grievor submitted her weekly update to Ms. Bates. On December 13, 2021, Ms. Bates advised the Grievor that the Employer would be putting a package together to obtain further medical information. She told the Grievor: “we will continue your reduced hours for now until we have a better understanding of your situation from your health care providers.”

42On December 22, 2021, Ms. Gough had a conversation with Ms. Nyilas with respect to the Grievor’s concern that her hours were currently capped at 5.5 hours per day. Ms. Nyilas advised her that the Employer had concerns with whether the Grievor would be able to get to full-time hours with 60+% of workload being completed. On December 23, Ms. Gough provided a summary to Ms. Nyilas of their conversation from her perspective which stated in part:

In a nutshell, compared to late October when some difficulties were noted, currently I feel that Julie is extremely motivated and dedicated to achieve her RTW goal. She presents as confident and competent with all duties provided to her to date. She manages her symptoms effectively and implements several environmental and cognitive compensation strategies in her daily work routines that optimize her function with respect to ongoing limitations. At this time, she presents with mild cognitive impairments impacting cognitive task tolerance, speed of work output and executive function skills. With strategies and accommodations, it is my clinical opinion that Julie has the potential to continue to improve at a steady pace and resume full-time work within a "modified" role provided to her (at this time, I say modified but use that as a general term as both Julie and I are unclear on what this potential end goal looks like in terms of the employers expectations of essential duties and accommodations).

• the Grievor is managing her symptoms effectively, and has implemented strategies in her daily work routines to optimize her function with respect to her limitations
• the Grievor is improving and was able to gradually increase her work hours, but continues to need accommodations
• She recommended continuing to increase hours to 0.25 hours of work every 1-2 weeks, except when increases/changes to workload occur
• Gradual increase in workload demands, with provision of new tasks/responsibilities one at a time (e.g., introduce 'processing' duties and allow her to learn and get comfortable with this aspect of the role prior to adding "issuing" responsibilities)

43Ms. Nyilas did not reply despite a few reminders from Ms. Gough. On February 2, 2022, Ms. Bates sent the Grievor a formal letter requesting that she undergo an IME in accordance with Article 22.9 of the collective agreement to clarify the Grievor’s prognosis to resume and sustain regular working hours. The Employer said they required ‘clarity regarding objective and specific medical restrictions and limitation, duration of overall expectation for improvement in her functional abilities.’ It reflected on the Grievor’s progress:

On your return to work, the employer agreed to assigning a special project in order to work­ harden and give you the opportunity to become accustomed to being back to work after a lengthy absence. The project was temporary and a 'one-of', not deemed critical or time - sensitive, but was appropriate and within your own job classification. Although your restrictions and limitations were not clearly defined, on consultation between the workplace parties, the union and the Occupational Therapist, it was agreed that we would proceed with this work on an 'as tolerated' basis.

To date, the progression of hours has gone from 4 hours per day, 5 days per week on March 29, 2021 to (through slow progression) 5.5 hours per day, 5 days per week by October 12, 2021. In July 2021, with the initial project work completed, you were assigned to work on Estate files that had been vetted and confirmed to be low in complexity. This proved to be challenging even though it was/is a small part of one task within the scope of a Court and Client Representative's job specification. Although you have recently expressed willingness to attempt to take on more duties within this single task, your prognosis for improvement remains unclear considering the lack of progression to date. We also note that the work a Court and Client Representative does must be very precise, and that errors or omissions may adversely impact clients and/or may be very detrimental to their circumstances.

The employer requires clarification on your prognosis to resume and sustain the regular working hours of your position (7.25 hours per day, 5 days per week) at the workplace. In addition, clarity is needed regarding your objective and specific medical restrictions/limitations, the duration of same, and the overall expectation for improvement in your functional abilities. In order to facilitate receipt of this information, the employer will be arranging a third-party examination through an external provider and conducted by specialized healthcare professionals also external to the OPS.

44On February 15, 2022, Ms. Gough wrote Ms. Nyilas a letter which stated in part:

Throughout the OT program, Ms. Barbosa has presented as a dedicated worker, working diligently to return to her employment position. I am currently concerned regarding lack of communication between the employer and Ms. Barbosa over the past several months regarding expectations and timelines regarding her progress with the return to work program, as well as limited opportunities to increase the complexity of her work in the latter portion of 2021. These challenges are negatively, and in my opinion, unfairly, impacting Ms. Barbosa’s ability to succeed in her employment.

Although I am in support of the employer’s request for updated information to further assist with the progression and success of Ms. Barbosa’s return-to-work program, I do have concern with some of the statements made in the letter, which appear to be different than my interpretation of events to date.

The letter states that “[her] restrictions and limitations were not clearly defined” with which I disagree. At the employer’s request, I have completed and signed off on two formal employee medical forms on November 5, 2020 and June 8, 2021 which outlined her physical and cognitive limitations and restrictions from my perspective. As her injury is one that does not have a black and white, clear cut recovery progression, I advocated for in-person meetings to provide further clarification on content provided. During virtual meetings held on February 2, 2021, March 8, 2021 and July 14, 2021, these limitations and restrictions were clarified further in the context of her job duties and workplace accommodations. It is my understanding that all parties left those meetings with sufficient understanding of her abilities and limitations, and in agreement with the plan.

I also have concern with their claim that “[her] prognosis for improvement remains unclear Considering the lack of progression to date” for a few reasons. To my knowledge, Ms. Barbosa has made progressions as per the tasks and transitional duties that were agreed upon. She has attained working 5.5 hours, 5 days per week, which is nearing 73% of a typical workday. She has also made modest progress in terms of job duties requested. As per the first accommodation plan, dated March 29, 2021, Ms. Barbosa was given the special one-off project for work-hardening. It was mutually agreed that she would commence this project on a trial basis and simultaneously gradually increase her hours. There was no deadline or time frame given or requested by the employer for completion. This project was achieved. Following the success with this trial project, additional duties were added to her program. As noted in the July 19, 2021 updated plan, Ms. Barbosa was told to “begin training in Estates business line within parameters of increased work hours.” The plan further stated that “The hours/duties will be reviewed after 3 weeks, with an update from the OT to the DAS the week of August 9, 2021”. As outlined, the hours and duties were reviewed by you and I via phone call and updates to the program were made and can be viewed on the most up to date copy of the accommodation plan, dated August 16, 2021. In summary, no changes were made to the duties, which were still quite new to her (specifically, duties were stated as “Ongoing training in Estates business line within parameters of increased work hours”) and it was agreed that her hours would increase by 0.25 every 2 weeks. Ms. Barbosa proceeded as directed and no further amendments to the program were discussed or implemented to date. When considering this information, to me it is clear that progressions have been made within the context of the duties, hour changes and accommodations agreed on. To my knowledge, the employer did not communicate with Ms. Barbosa until recently that this was not sufficient, and she was therefore not given an opportunity to demonstrate her abilities.

Similarly, in the second paragraph of the letter, it states that “On March 29, 2021, return to work took place under a temporary plan with the intent to graduate working hours back to the regular hours of your position (36.25/weekly), as well as to transition you back to regular/essential duties of a Court and Client Representative with the Ministry of the Attorney General.” I partially disagree with this statement. To my knowledge, we did agree on a program that was deemed temporary – however there was nothing clarified or provided to myself or the client from the employer or you regarding an expected end date of these accommodations or when she would be required to resume regular/essential duties. Had a timeline/end date been communicated to Ms. Barbosa, additional timely collaboration with the employer and this OT to progress duties and hours would have been implemented.

Lastly, it should be noted on record that since the last formal plan update (August 16, 2021), Ms. Barbosa has attempted to take on more duties, of which have not been provided to her by the employer. In an attempt to facilitate the increase of duties in her return-to-work program, I requested a phone call with you to outline my recommendations and suggested updates to the plan, which occurred on December 21, 2021. I have attempted to following up you regarding this call on two separate occasions in January 2022 via email and did not receive a response. I have therefore prepared this letter outlining my concerns.

45On March 2, 2022, the Grievor wrote a lengthy email to Ms. Bates following up on Ms. Gough’s letter. Among other things, she expressed concern that Ms. Gough had been trying to contact the Employer in December and January, but it had not responded. She then described various events that had occurred which she believed interfered with her progress. She described that the estates work was complex (parts “overly complex”), described deficiencies in her training and claimed that she was often correcting errors made by others. She also said:

I do understand asking for further clarification, as referenced in the February 2 letter, “Although your restrictions and limitations were not clearly defined”, and I think Jessica could have helped and provide this clarification and currently can address this even now.

As I initially stated, I can see why a request for an IME was made. However, the way this has been presented has raised some concerns like why Jessica has not been involved. She also raised the idea that this was retaliation for concerns she had raised regarding her privacy rights.

46She concluded:

This continues to be a unique experience for myself, and I can imagine for everyone else as well. I mentioned that I have gone through several IMEs and can see why I am being asked of another one here. However, this is a different circumstance given the communication issues and context discussed throughout this letter.

I will also note the IME assessments are very taxing, and there were some interesting observations from the other one’s that I participated in. For example, one assessment was looking at if I had significant brain damage and said I was ‘cleared for work’ in 2019, because I did not have observable deficiencies (since I could walk and talk) and could dress myself and go to the bathroom by myself. Obviously, this did not take into consideration my specific job requirements. So, the conclusions can be oriented to how they set the criteria. I know our collective agreement provides for three choices, which can still be oriented as mentioned. I am hopeful this will be a positive experience and outcome, though I might as well document this.

I also feel like if I completed my consent form without saying any of the above, that IME would take priority and we would have no assurance that our other questions and concerns would be addressed. So, I will complete the IME once we can clarify these items. I am optimistic this allows any confusions or misunderstandings to be resolved. Jessica and myself and everyone need to know what is going to happen in the meantime, regardless.

I hope everyone can see why I have voiced my questions and concerns.

47Given that the Grievor was refusing to undergo an IME until her concerns were addressed Ms. Bates wrote back On April 1, 2022, following the Grievor’s weekly status update as follows:

Thank you for the update this week. I see that you have noted you reached out to Gwen for further training in estates to begin next week.

We will not be progressing further with your training in estates at this time. I understand that you wish to learn more and I’m happy to hear that, however, we do need to resolve the outstanding IME issue before we move forward.

I am hoping to have a response to your March 2, 2022, letter very soon.

48On April 12, 2022, Ms. Bates wrote the Grievor again requesting an IME and at the same time describing what she stated were “misconceptions” and wished to clarify the Employer’s position. She noted:

As noted in our initial return to work and accommodation meetings in 2021, and as indicated in the plan documents, the intent of the employment accommodation plan has always been to work-harden/transition you back to the essential duties of your position as a Court and Client Representative. While gradually increasing hours of work to full-time is important, this is not the sole purpose of an accommodation plan. The work should reflect a significant portion of the essential duties of your home position, and this is what we have been working toward.

Unfortunately, through this accommodation plan, we have been unable to progress beyond one portion of a single task in what is a very multifaceted job specification. The details in our letter of February 2, 2022, regarding this task were not intended to minimize your efforts. It is quite simply unclear that this work and the other duties of your job description are within your functional abilities, currently and/or expected in the long-term. The employer does not have any medical information on file, and no clear prognosis on which to base next steps.

You have shared the employer’s IME letter to you of February 2, 2022 with Ms. Jessica Gough, your Occupational Therapist (OT), who provided her own response to the employer on February 23, 2022. In reviewing both Ms. Gough’s response and your own, we want to ensure that each of you know the IME requirement is not to negate the efforts you and your OT have made to date.

Ms. Gough had indicated at the beginning of the employment accommodation plan that she was a conduit for both a General Practitioner and a Specialist overseeing your case. As such, she stated that she was able to answer questions through her own expertise as a regulated health professional and also as a go-between with the medical practitioners overseeing your care. The employer learned that there are currently no medical practitioners actively involved in your care in December 2021 through conversation between the OT and the Disability Accommodation Specialist on December 22, 2021. Ms. Gough noted in conversation that there had not been a medical specialist involved for over one year.

In order to clarify your current medical circumstances and your prognosis, the employer requires the opinion of a qualified medical practitioner with the appropriate specialty credentials. An OT is a regulated health professional but is not a medical doctor, nor a specialist.

49In short, the Employer reiterated its requirement that the Grievor undertake an IME. If she did not do so, the Employer advised the Grievor that her return to work may be discontinued.

50On April 25, 2022, the Grievor signed the IME consent form. However, she indicated on the form that she was signing “under duress”. The Grievor also consulted the Union about her situation.

51On April 28, 2022, the local Union President, Tina Stevens called Ms. Bates and sought to have the Grievor continue her progression to full hours. A meeting was organized and the Grievor asked to have Ms. Gough and her “support person” Mr. Lochhead in attendance. On May 13, 2022, Mr. Lochhead wrote a lengthy email in which he advocated for Ms. Gough. The Employer did not respond to the email’s content but indicated that it would prefer not to have Mr. Lochhead at the meeting.

52On May 27, 2022, the Grievor wrote an email to Ms. Bates expressing her frustration at the lack of progress in getting her back to full time work. Ms. Bates responded by saying, in essence, that a properly signed IME consent form was required to move things forward. It also noted that the Grievor did not have a doctor, and the Employer had received no medical information from a doctor since her return to work.

53On June 6, 2022, the Grievance was filed. The Grievance alleges a violation of her “rights under the collective agreement” including a violation of the Code and the Return-to-Work policy without any details. The remedy requested was for the Grievor to be made whole. The next day Ms. Bates responded to the Grievor’s May 27, 2022, email by noting that there was no medical specialist involved in the Grievor’s care to provide the required information to the Employer. That is why an IME was required.

54On June 29, 2022, the Grievance was denied. On that same day, the Union through Local President Tina Stevens, advised the Employer that the Grievor was interested in participating in the IME process “based on the documentation and consent that were submitted previously”. The Union also asked a number of other process questions which were answered on July 19, 2022.

55On July 21, 2022, Mr. Lochhead asked Ms. Stevens questions, among many other things, about why the Grievor’s IME consent form had not been acted on by the Employer. On September 19, 2022, Ms. Stevens forwarded that email to Ms. Bates who responded on October 31. She explained that consent under duress is not consent at all. She also said:

The employer’s goal is to assist you, and part of this is to identify suitable work within your medically indicated restrictions and limitations. You will recall, I have discussed with you my concerns regarding your ability to assume additional duties. While you have expressed a desire to take on more tasks, it is clear that you are struggling and have had difficulty in the training sessions provided to you. Further, you have informed me that you wish to receive training in a very specific manner in order to maximize your ability to absorb this information, however this has not been clarified with appropriate medical information. Based on all these factors, the decision was made to obtain clearer information regarding your medical limitations and restrictions, prognosis, and additional functional abilities information through the IME process. With this information, the employer will be in a better position to determine how best to accommodate you within your functional abilities.

56On November 11, 2022, the Grievor signed the IME consent form without indicating that she was under duress. On February 13, 2023, the Grievor attended the IME with Jana Atkins, a licenced psychologist with areas of speciality in clinical neuropsychology, rehabilitation and clinical psychology who issued her report on February 28, 2023. The report described that the Grievor had significant impairments with her verbal and visual memory, executive functioning, working memory and selective attention. Dr. Atkins advised that she should undergo a thorough in-person assessment with a neurologist to uncover the cause of her cognitive symptoms. Her opinion was that it was the Grievor would “not be able to execute the duties of a Court and Client Representative” as they had been described to her or meet the requirements of that role.

57On June 5, 2023, the Union filed another grievance on behalf of the Grievor respecting the fact she had not been accumulating sick credits while in the accommodated position which it asserts violates the Code. As noted, that grievance has been deferred.

Argument

58I will briefly describe the Union’s arguments and then consider them thoroughly below. The Union argues the Employer violated the Code in three ways:

1. The Employer did not clearly communicate its expectations to the Grievor. She did not know what a successful return to work would look like.

2. The Employer failed to assess restructuring the work to meet the Grievor’s accommodation needs.

3. The Employer failed to consider less intrusive options than an IME.

Decision

59The relevant provisions of the Code are as follows:

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5).

Accommodation

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 17 (2); 1994, c. 27, s. 65 (2); 2002, c. 18, Sched. C, s. 3 (1); 2006, c. 30, s. 2 (1).

Determining if undue hardship

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. 2006, c. 30, s. 2 (2).

60The Code provisions are also reflected in the parties’ collective agreement as follows:

3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

44.9 Where, for reasons of health, an employee is frequently absent or unable to perform their duties, the Employer may require the employee to submit to a medical examination at the expense of the Employer.

71.9 Where, for reasons of health, an employee is frequently absent or unable to perform their duties, the Employer may require them to submit to a medical examination at the expense of the Employer.

61The Employer does not dispute that it had a duty under the Code to accommodate the Grievor to the point of undue hardship. Its position is that it did so and the Grievor interfered with its accommodation efforts by refusing to take an IME for months. It argues that the IME was essential to the accommodation process, that the Grievor did not cooperate with that process and in any event, the IME report, which is not disputed found the Grievor “incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability”. This latter point is not disputed by the Union, at least, at the point the Grievor took the IME.

62The Union’s argument is primarily about what happened prior to that. It argues the Grievor’s hours of work should have been increased in order for the Employer to comply with its duty to accommodate the Grievor. From the moment the Grievor was deemed fit to return to work in 2019 by Manulife, the Employer sought to have the Grievor return to work on a graduated basis. It maintained this stance when the Grievor could not return to work in the summer of 2019 and in the Fall of 2019 when she provided notes from her doctor keeping her off work due to recurring post concussion symptoms. It then appropriately sought medical confirmation about the Grievor’s ability to return to work which was provided by Ms. Gough.

63The Employer then met with the Union and the Grievor in March 2021, and they jointly identified job duties which they believed the Grievor could perform. The parties agreed that the Grievor would start in a special project, starting at 4 hours per day, collecting fees which were outstanding as a result of the COVID-19 pandemic. They produced a written return to work and employee accommodation plan reflecting their agreement. This is how the duty to accommodate is supposed to work in a unionized setting like this one.

64By all accounts the Grievor did well in the fee collection role and within a month or so had enough available time to take on more duties (while completing fee collection). Soon after, the Employer wrote the Grievor and suggested they should explore what to do next based on consultation with her OT. The Employer identified estates work as appropriate for the Grievor and Ms. Gough, the Grievor and the Union agreed.

65The Grievor would start off with easier estates files after a period of training with Ms. Van Rycheghem. As part of this transition the Employer sought health information from the Grievor to ensure the new work was within her medical restrictions and that she was medically capable of doing it. Ms. Gough confirmed that the Grievor was medically able to do the work. She also suggested that her hours of work could be increased to 4.5 hours a day and then gradually moved higher so long as she was tolerating it. She identified that the increases in hours of work should be more gradual as her job duties are changed. The Employer was agreeable to all of these suggestions.

66Although the Grievor later identified issues she had with her training, she did not raise any concerns until after the Employer had raised its concerns about how she was progressing in estates. In fact, the written information before me suggests that the Grievor was satisfied with her training.

67At this stage, it worth noting that, at least before me, there is absolutely no evidence that throughout this period, Ms. Bates, Ms. Van Rycheghem, Ms. Nyilas and the rest of the management team had anything but the best interests of the Grievor at heart. To put it simply, they all wanted her to succeed and return to her role in the Court system. They worked very hard to make that success happen, but they became honestly concerned that she would not be capable of doing the job in the end.

68The Union’s argument that the Employer “failed” to clearly communicate its expectations to the Grievor misses the point. The Employer had no specific goals for the Grievor. The parties agreed that this was part of the Grievor’s transition to regular work at her CCR position. This is not a case where the Employer had standards in its mind (such as, for example, completing four estate files per week) and was concerned when they were not met. The Employer simply wanted her to continue to make progress in the number of hours she was working but, more importantly, in grasping the work. This was not a case where specific expectations could have helped the Grievor.

69I am satisfied that while the Grievor was motivated to increase her hours and did so, she struggled with the estates work that she was assigned. She did not progress at an appropriate rate and had difficulty retaining her training as she moved to a new estates task. I also am satisfied that the estates work was only a small part of one of the functions of the Grievor’s job. The Grievor later said that the estates work was objectively challenging but the Union did not prove this through evidence and did not make this argument in front of me. The fact that she found it so challenging was the problem.

70I disagree with the Union that in the facts of this case the Employer had an obligation under the Code, the collective agreement, or otherwise to clearly communicate expectations to the Grievor. Instead, the Employer developed (with the Union and the Grievor) a plan which it ran that by the Grievor’s medical team, provided her with training and then let her set her own pace in progressing to a greater number of more complex files. The work the Employer provided to the Grievor was, in a sense, designed to set her up for success as it was at the lower end of complexity.

71While the Employer became concerned about, among other things, the pace at which the Grievor was learning and then performing her duties, these concerns were in the abstract and based on its experience in training other employees. It did not have set targets which it failed to communicate. It simply wanted to see steady progress. It became concerned when, among other things, the Grievor was not grasping the estate files duties as quickly as it thought she would, not that she was not reaching arbitrary targets. Given what it was seeing it also was concerned that the Grievor might never be able to perform the essential duties as a CCR.

72I cannot find that there was any failure of communication as argued by the Union. It is obvious from the evidence that the Employer supported the Grievor to an extremely great extent. There were several people involved in her plan. They communicated with her frequently. As soon as there was concern the Employer implemented a process of weekly check in by the Grievor to Ms. Bates. There were also internal discussions about what to do to assist her.

73It is true that the Employer never communicated the full extent of its concerns to the Grievor. In fact, I agree that it initially downplayed its concerns when in late October Ms. Bates told her that she was “a bit concerned about your progress with the estates work”. However, what benefit would the Grievor have had if Ms. Bates had said we are “very concerned”. Ms. Bates is not a medical professional; it was appropriate for her to be cautious in what she said to the Grievor. Thereafter Ms. Nyilas was more direct that she was concerned that the Grievor would never get to 60% of the duties of her preinjury position. In her April 12, 2022, letter Ms. Bates was crystal clear. When she wrote: “It is quite simply unclear that this work and the other duties of your job description are within your functional abilities, currently and/or expected in the long-term”.

74Nevertheless, none of this communication caused the Grievor to act constructively. Instead, she continued to demand answers to her questions and refused to sign the consent form except “under duress”. Unfortunately, she did not understand that the Employer was trying to help her by determining her limitations around which a plan could be created, or alternatives could be considered. I presume that is because she was, not surprisingly, deeply concerned about her financial situation.

75Moreover, the Employer’s concerns did not result in the Grievor’s employment being terminated or that she was put on leave. Instead, the Employer did something completely rational and appropriate in full compliance with its duty to accommodate; it sought a medical opinion to ensure that the Grievor was medically capable of doing the work of her position and that she was not being harmed by doing the work. In the meantime, the Grievor’s hours of work were frozen at their then current levels as a cautionary measure. Again, this was completely appropriate and, as it turns out, based on the IME report, justified.

76At the hearing before me, the Union agreed that the employer was within its right to require that the Grievor undergo an IME. Unfortunately, at the time of the request, the Grievor reacted badly to the Employer’s request for an IME even though they did not deny that the Employer was within its right to require the Grievor to undergo one. The Grievor was understandably concerned about and focused on her financial situation as she was then working only five hours a day.

77It is also clear on the evidence that prior to the Employer IME request the Grievor was enthusiastic about the Plan and the work she was doing in it. Unfortunately, rather than accept the Employer’s decision in the spirit in which it was intended, the Grievor resisted it and demanded that her concerns be addressed before she went to the IME doctor. Although, this might be considered a form of insubordination, the Employer did not discipline her and continued to insist that she attend at the IME. This was itself a form of accommodation. I observe that the Employer was under no obligation to address the Grievor’s concerns and the Grievor had no legal right to insist that her concerns be addressed. The appropriate course of action was for the Grievor to file a grievance and either attend the IME or not (with whatever consequences would flow from her refusal).

78Once the Grievor decided to sign the consent form with the words “under duress” written beside her signatures it was also appropriate for the Employer to refuse to accept that. The Employer was paying for the IME. It was prudent to require the Grievor to sign a new consent form without the words “under duress” because it was entirely possible (even likely) that the person scheduled to perform the IME would not see the Grievor in those circumstances. The Employer acted entirely properly.

79Thereafter, the Grievor continued with her stance for a considerable period of time. The Employer wrote the Grievor another request clarifying its reasons for requesting the IME. This included the fact that the Grievor’s only treating medical professional was apparently Ms. Gough. The Grievor had not seen a doctor for some considerable time. I am satisfied that the Employer continued to act in good faith with the goal of returning the Grievor to her full-time position. There was no evidence of any ulterior motives. However, the Grievor was insistent on having her questions answered to her satisfaction.

80Finally, after the Union got involved and lines of communication were clarified, the Grievor signed the IME consent form and the Grievor was seen by the IME specialist. The IME report gives significant credence to the Employer’s concerns and the course of action it embarked on.

81To the extent there was any delay in the IME process that delay was entirely caused by the Grievor. The Grievor knew full well what was required of her to have the IME proceed and yet insisted on having her concerns dealt with first. In the circumstances, including the fact that the Grievor did not have a doctor, the IME was a crucial part of the accommodation process. Given the struggles the Grievor was having in her work the Employer needed to know whether the process could continue or whether the Grievor would have to be accommodated in another way or whether there was no way to accommodate her. These circumstances are unlike the cases relied on by the Union.

82Finally, I disagree with the Union’s argument that the Employer failed to consider less intrusive options instead of an IME. First, under the collective agreement it was entitled to have the Grievor undergo an IME, certainly so long as it sought one in good faith. I am satisfied that the Employer always acted in good faith. Second, as professional as Ms. Gough had been, the Grievor had not provided information from a doctor for a considerable period of time. The Employer was entitled to have the Grievor see a specialist who could provide an assessment of the Grievor’s state of health.

83It is difficult for me to understand what more the Employer could have done to accommodate the Grievor’s return to work and make that return successful. To recap what it did do:

• It provided a graduated return to work schedule of hours which started out at four hours and rose to 5.5 hours per day before the dispute which led to this grievance arose. During that time the Employer was justifiably careful to ensure the Grievor was working safely at an appropriate pace.
• It provided the Grievor with two projects which were designed to get her back to work in her regular job. The projects were designed for her to succeed with a quantity and complexity of work suitable for her to achieve success. The Employer ran the projects past the Grievor’s medical specialist. It provided her with training, oversight and one on one support while she worked on those projects and worked with her OT.
• It gradually increased her hours of work.
• It communicated with the Grievor frequently to see how she was doing.

84There was no suggestion before me that the Employer acted in anything but a good faith way. Even had there been such a suggestion, it is clear that the Employer acted with the Grievor’s best interest at heart. Everything it did was designed to have her successfully return to work. Unfortunately, at least within the timeframe of this grievance it did not work out.

85Furthermore, I disagree with the Union that the Employer failed to make changes to the work in order to assist the Grievor. In fact, the Grievor was never in her job. At the time of these events, she was transitioning to full time work after a very long period of absence. The whole point of the transition was to find work that she was able to do that would approximate the duties of her real job. It was during this transition, when the job duties were very limited, that the Employer became concerned that the Grievor could not perform the essential duties of her position.

86In addition, the Employer was not obligated to continue increasing the Grievor’s hours while waiting for her to properly agree to the IME. There are two reasons for this. First, the Employer was properly concerned about working the Grievor too much such that it affected her return to work or her life. Second, the Employer was not obligated to continue to engage in an accommodation process which could not succeed. The purpose of the accommodation was to return the Grievor to performing the essential duties of her preinjury position. If this was not possible, the Employer had no obligation to continue down that path.

87For all of the foregoing reasons I find the Employer has met its burden of proof and has demonstrated that it satisfied its duty to accommodate under the Code and the collective agreement as of the date of the issuance of the IME report.