COURT FILE NO.: 05-DV-1145
DATE: 20070227
ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA DIVISIONAL COURT
CUNNINGHAM ACJ, FERRIER and WHITTEN JJ.
B E T W E E N:
CITY OF OTTAWA
Applicant
Stephen Bird for the applicant
- and -
OTTAWA-CARLETON PUBLIC EMPLOYEES’ UNION, LOCAL 503, PAMELA PICHER, JOE HERBERT, and JIM FOLEY
J. Craig Morrison for the respondents
Respondents
Heard: October 16 and 18, 2006
BY THE COURT:
[1] The applicant, the City of Ottawa (the “City”), seeks judicial review of a decision of the Arbitration Board (the “Board”), rendered on August 29, 2005, wherein the Board concluded that the grievor had a disability within the meaning of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”), and, that the City, albeit without intention, discriminated against Cyr on the basis of her disability when it terminated her employment in accordance with the terms of a “Last Chance Agreement” (“LCA”). The Board ordered Cyr’s reinstatement.
[2] Cyr was first employed by the Regional Municipality of Ottawa-Carleton in June of 1982. She had previously been terminated for excessive innocent absenteeism in 2000. She grieved her termination and the matter was referred to arbitration. In the course of settlement discussions, the parties agreed to resolve the discharge, and entered into a Memorandum of Understanding, which took the form of a Last Chance Agreement. Paragraph 4 of the Agreement stipulated that if the Cyr exceeded fifteen days of absences due to illness or injury in the following three twelve month periods, the employer would have the right to terminate Cyr. Paragraph 5 of the Agreement further stipulated that the Union’s right to advance a grievance on behalf of Cyr was limited to an assertion that the termination was improper by reason of an alleged violation of the Code.
[3] Cyr’s employment was again terminated in November 2003 for excessive absenteeism. On November 28, 2003, the Union filed a grievance disputing Cyr’s termination, asserting that Cyr suffered from migraine headaches for approximately twenty-four years and that the termination was based upon absences, at least in part related to her migraine headaches, and therefore constituted discriminatory conduct under the Code. At the arbitration, the parties agreed that for the first two years of the LCA, from July 2001 to July 2003, Cyr complied with the terms of the agreement; namely, her attendance was under the fifteen (15) day threshold for the first two years of the agreement. The parties also agreed, however, that her attendance exceeded the fifteen (15) day threshold between July 2003 and July 2004.
[4] By November 2003, Cyr’s absences had exceeded the fifteen-day threshold, therefore, in accordance with the LCA, the City was entitled to terminate Cyr’s employment, as long as that termination was not contrary to the Code. In order to satisfy itself of this requirement, the City provided Cyr with a Disability Assessment Form to be completed and signed by her family doctor, Dr. Peter Pang, which was completed and returned to the City on November 18, 2003.
[5] Dr. Pang indicated that Cyr was capable of attending work on a regular basis. Dr. Pang indicated that Cyr’s most recent medical visit on November 14, 2003 was for bronchitis and that a colleague issued a medical certificate for absences on November 13 and 14. Cyr’s last visit with Dr. Pang was on October 20, 2003, wherein Cyr was treated for facial pain and lower gingivitis. Both of these ailments were completely resolved.
[6] With respect to whether or not Cyr suffered from a disability, Dr. Pang indicated that Cyr did not suffer from a condition or perceived condition that was permanent, ongoing and of some persistence. Dr. Pang also noted that Cyr did not suffer from any condition that was not commonplace or widely shared. Finally, Dr. Pang advised that City that her conditions did not place a substantial and material limit on her abilities to carry out some of life’s functions.
[7] Prior to the termination, the City made inquiries of Cyr’s immediate supervisor, Ms. Crowe, to obtain information from the City’s Employee Wellness Branch respecting potential disabilities from which Cyr may have been suffering. The occupational health nurse emailed Ms. Crowe, stating that based on the Disability Assessment Form completed by Dr. Pang Cyr did not indicate a disability and that there was no reason why Cyr could not attend work on a regular basis. Relying on the medical opinion of Dr. Pang, the email from the occupational health nurse of the Employee Wellness Branch, and other information that Cyr’s absences in 2003-2004 were for disparate causes, the City was satisfied that Cyr did not suffer from a disability within the meaning of the Code and that it was entitled to terminate Cyr pursuant to the terms of the Agreement.
[8] Notwithstanding these answers by Dr. Pang on the disability assessment form, the majority of the Board accepted the testimony of Dr. Pang that his primary diagnosis of Cyr is that on an ongoing basis she is in an anxio-depressive state as appears in its decision at pp.39-40:
Additionally, the Board finds that Dr. Pang’s answer of ‘no’ on the City’s Disability Assessment Form dated November 18, 2003 to the questions of whether the grievor’s condition was ‘permanent, ongoing and of some persistence’, was ‘not commonplace or widely shared’ and ‘place[d] a substantial or material limit on the individual in carrying out some of life’s important functions’ does not negate a finding by this Board that Ms. Cyr has a disability. First, Dr. Pang’s responses were directed only to Ms. Cyr’s absences in October and November of 2003 and not to the totality of her absences from July of 2003 forward. As well, the Board accepts that Dr. Pang did not understand that he was being asked whether Ms. Cyr had a longstanding medical problem that might explain the underlying cause of her absences.
The Board does not disagree with the City’s view that a plethora of routine illnesses and ailments does not, of itself, constitute a disability protected by the Human Rights Code. The issue, therefore, becomes whether the evidence establishes that grievor suffers from an ongoing condition that constitutes a disability under the Code.
After carefully reviewing the evidence, particularly the unchallenged evidence of Dr. Pang, the Board concludes that the grievor has a disability within the meaning of the Human Rights Code. Dr. Pang testified that his primary diagnosis of Ms. Cyr is that on an ongoing basis she is in an anxio-depressive state.
[9] The Board concluded that of the 15 days absence in question, at a minimum 7 to 9 days missed work, were due in significant part to her disability and that in purporting to include those days in the calculation the City discriminated against the grievor.
[10] Three witnesses testified at the hearing. The witnesses for the Union were the grievor, Ms. Danielle Cyr, and the grievor’s physician, Dr. Peter Pang. Mr. Dan Chenier, the grievor’s manager at the time of her termination, testified for the Employer.
[11] As noted, the LCA was the product of settlement discussions between the parties in respect of a previous termination and grievance from the year 2000.
[12] Paragraphs 4 and 5 of the LCA stipulated that:
During each of the three successive 12 month periods, commencing July 3, 2001, the Grievor shall not exceed 15 days absence from work on account of illness or injury.
In the event the Grievor exceeds 15 days absence due to illness or injury in any of the said three successive 12 month periods, the Employer shall have the right to terminate the employment of the Grievor and the Unions right to advance a grievance shall be limited to alleging the discharge is improper by reason of it constituting a violation of the Human Rights Code provisions relating to disability.
[13] There was no viva voce evidence led by either party with respect to whether the Employer had knowledge or did not have knowledge of the existence of a disability prior to the termination of October 2000 or of November 2003.
[14] Documentary evidence was put forward by the Union through Dr. Pang with respect to Ms. Cyr’s physical health prior to her termination in October 2000, as well as for the period between July 2001 and November 2003. One such document, which consisted of a form provided by Dr. Pang to the Employer in October 1997 entitled “Medical Assessment for the Disability Accommodation Program” which indicated that Ms. Cyr suffered from fibromyalgia syndrome, anxio-depressive state, and work-related stress.
[15] There was no viva voce or other evidence at the hearing as to the intent of the parties when the LCA was signed. None of the witnesses who testified were present at the time of the signing of the LCA or the initial termination of the grievor in 2000, with the exception of the grievor.
[16] The evidence before the Board with respect to Ms. Cyr’s medical condition consisted of testimony of her family physician, Dr. Pang, along with a number of medical reports, clinical notes, and correspondence from Dr. Pang’s file with respect to Ms. Cyr. Dr. Pang was not cross-examined and the written medical evidence entered through Dr. Pang was not challenged.
[17] Dr. Pang testified regarding Ms. Cyr’s medical history. Dr. Pang identified a letter from a psychiatrist, Dr. Marcel Boily, dated November 1997 and a report by Dr. Boily indicating that the grievor suffered from panic attacks in relation to problems at work, and that Clonazepam and Paxil were recommended for treatment. Dr. Pang testified that medical reports in 1999 also indicated that Ms. Cyr was continuing to take Clonazepam. The medical evidence also indicated that Dr. Pang diagnosed chronic general anxiety in March 2003.
[18] The medical evidence submitted through Dr. Pang indicated that during the summer of 2003, Ms. Cyr’s husband had heart surgery and that Ms. Cyr reported and appeared to be under stress during the summer and fall of 2003. The hospital report for Ms. Cyr’s hospitalization in September 2003 indicated that Ms. Cyr’s symptoms included headaches, dizziness, ringing in the ears, and that the problem was enhanced by situational stress.
[19] Dr. Pang testified that his primary diagnosis was anxio-depressive state, and that Ms. Cyr suffers from panic disorder, and is easily affected by work stress and stress at home. He also testified that Ms. Cyr’s age, hysterectomy, hormone deficiency, and menopause all adds to the mood and depressive effect.
[20] During the hearing, Dr. Pang’s credentials or ability to diagnose depression or anxio-depressive state was not challenged.
[21] At the hearing, the Employer rested its argument solely on the question of whether the grievor suffered from a disability and whether she had been discriminated against due to a disability. Counsel for the employer did not refer to hardship or undue hardship in his opening or closing statements, nor were any questions asked of Mr. Chenier, the sole witness for the Employer, regarding whether the City had or would suffer any hardship as a result of accommodating or continuing to employ Ms. Cyr. Moreover, at no time did counsel refer to the Last Chance Agreement or its contents as evidence of Undue Hardship.
[22] The foregoing is only a brief highlight of the evidence. The Board extensively reviewed and analysed the evidence and came to the conclusion at pages 47 – 49 of its decision that:
In his testimony, Dr. Pang stated that his primary diagnosis on an ongoing basis is that Ms. Cyr is in an anxio-depressive state, which he believes stems from workplace and/or personal stress. He further indicated that the migraines can result from such stress.
The evidence highlighted above satisfies the Board, on the balance of probabilities, that at a minimum Ms. Cyr’s absence on August 26, her hospitalization from August 31 to September 7 (two or four days missed), accompanied by her at-home recovery from September 8 to 12 (five days missed), were due, in significant part, to the impact that her ongoing disability of being in an anxio-depressive state had on heightened stress. The evidence reveals that the intersection of situational stress and her anxio-depressive state had the probable effect of augmenting or intensifying numerous physical conditions persisting at the time of these absences, such as hypertension, tension and/or migraine headaches, dizziness and others. We note, for example, Dr. Pang’s statement that even to this day, Dr. Halle, a neurologist, has been unable to determine a neurological cause for her vertigo symptoms, inclusive of dizziness.
In the result, for the reasons given, the Board concludes that the grievor suffers from a disability within the meaning of the Human Rights Code. Her disability is in the form of her being in an ongoing anxio-depressive state. The evidence demonstrates, on balance, that the grievor’s condition tends to intensify other physical symptoms. While the grievor’s anxio-depressive state is under control with medication, the evidence establishes that it is typically triggered, episodically, by Ms. Cyr’s reaction to significant personal and/or workplace stress. This condition is not common to the population and, when triggered, the grievor’s condition substantially limits her ability to carry on with many of life’s significant functions.
Albeit unintended, the grievor’s disability resulted in discriminatory treatment of her by the City since absences due to her disability formed part of the College’s calculation of the 15-day maximum absence permitted to the grievor under the Last Chance Agreement.
ISSUES
[23] The Applicant submits that the following are the issues:
i. What is the appropriate standard of review?
ii. Did the Board err in law and exceed its jurisdiction in determining that the grievor suffered from a disability within the meaning of the Code?
iii. Did the Board err in law and exceed its jurisdiction when, in interpreting paragraph 5 of the Agreement, it determined that the Applicant could not be permitted to include absences by the grievor which were related or attributable to a “disability” within the meaning of the Code?
iv. Did the Board err in law and exceed its jurisdiction in ignoring the existence of the Agreement executed between the parties as evidence that reinstatement of the grievor could constitute “undue hardship”?
v. Did the Board err in law and exceed its jurisdiction in failing to consider whether requiring the Applicant to maintain the employment of an employee who, for reasons related to her disability was unable to provide reasonable and regular attendance and/or prognosis for improvement;
a. constituted a form of accommodation recognized in law; or
b. did not constitute an “undue hardship” within the meaning of the Code?
[24] The position of the Applicant before the Board was that the Respondent failed to meet the onus of establishing a disability. Furthermore, that even if the grievor had a disability, the Respondent failed to demonstrate that the Applicant had discriminated against the grievor on the basis of that disability.
[25] The Respondent takes the position in this court that because the issues of “undue hardship” and “accommodation” were not raised before the Board, and no evidence was led with reference thereto, there ought not to be any judicial review on these issues in this court.
[26] The Respondents submit that it would be inappropriate to allow the Applicant’s to make arguments on review that they did not make before the Board. Judicial review procedure should not be used by an Applicant to “retry” its case.
[27] Support for this premise can be drawn from the Judicial Review Procedures Act, the relevant provisions of which are as follows:
2.2. (1) On an application by way of originating notice, which may be styled ‘Notice of Application for Judicial Review’, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O. 1990, c. J.1, s. 2 (1).
Error of law
(2) The power of the court to set aside a decision for error of law on the face of the record on an application for an order in the nature of certiorari is extended so as to apply on an application for judicial review in relation to any decision made in the exercise of any statutory power of decision to the extent it is not limited or precluded by the Act conferring such power of decision. R.S.O. 1990, c. J.1, s. 2 (2).
Lack of evidence
(3) Where the findings of fact of a tribunal made in the exercise of a statutory power of decision are required by any statute or law to be based exclusively on evidence admissible before it and on facts of which it may take notice and there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for judicial review. R.S.O. 1990, c. J.1, s. 2 (3).
Judicial Review Procedures Act R.S.O. 1990, Chapter J.1
[28] It is submitted by the Respondent that because the above-noted arguments were not raised by the Applicant at hearing, the Board did not make a decision on those issues that is now capable of being reviewed per section 2.2. (2) above. Similarly, there is no record for the court to review in respect of those issues.
[29] Further, it is submitted that section 2.2. (3) should not apply in respect of these issues because the Board should still have been requested by the applicant to take notice of the LCA (or other evidence, had it been lead) for the purposes of meeting what was the City’s onus in proving the LCA represented an accommodation or evidence of undue hardship. Moreover, the Respondent argues, had the Board made a decision on these issues, without having been asked to, and without having heard evidence in their regard, the Respondents would then have been justified under 2.2. (3), if not 2.2(2) to review the Board’s award.
Ottawa-Carleton (Regional Municipality) and Ottawa-Carleton Public Employees Union Loc. 503 (Lance) (Re)
Re Ontario Human Rights Commission et al. And Gaines Pet Foods Corp. et al., 1993 5605 (ON SC), 16 O.R. (3d) 290
Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services), [1996] O.J. No. 608 at para 15
Re Ontario Human Rights Commission et al. And Gaines Pet Foods Corp. et al., 1993 5605 (ON SC), 16 O.R. (3d) 290
Hamilton (City) v. Canadian Union of Public Employees, Local 516,7 [2003] O.J. No. 657 at paras. 6 and 8.
[30] We agree with the Respondent’s position. Judicial review in this court should be limited to the issues raised by the applicant and determined by the Board, on an appropriate record. Thus, only the first three issues advanced by the Applicant are properly considered by the court.
Standard of Review
[31] In Pushpanathan v. Canada (Minister of Citizenship and Immigration, 1998 778 (SCC), [1998] 1 S.C.R. 982, the Supreme Court of Canada summarized the four categories of facta to be considered.
The Existence of a Privative Clause
[32] Section 48(1) of the Ontario Labour Relations Act states that:
48.(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. 1995, c.1, Sched. A, s.48(1)
[33] The existence of this privative clause has been interpreted to justify a large measure of deference to an arbitrator’s decision. The use of the words “final and binding” indicates a legislative intent to defer to the decisions of arbitrators.
Lakeport Beverages, a Division of Lakeport Brewing Corp. v. Teamsters Local Union 938, 2005 29339 (ON CA), [2005] O.J. No. 3488 at para. 27 (Ont. C.A.).
National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW-Canada) Local No. 27 v. London Machinery Inc., 2006 8711 (ON CA), [2006] O.J. No. 1087 (hereinafter “CAW-Canada”) at paras. 25-26.
[34] In addition, the Board was acting within its jurisdiction in applying the Code to the grievor’s situation. There was no question raised by either party as to whether or not the issue before them was “arbitrable” as the Code was incorporated into the collective agreement.
[35] Furthermore, in this case the Respondent was not required to rely solely on the statutory grant of authority to arbitrators to interpret employment related statutes. Here, the collective agreement expressly incorporates the Code.
The Expertise of the Decision Maker
[36] The expertise of arbitrators in respect to human rights issues, and the ability for this expertise to increase over time, was recognized by the Supreme Court in Parry Sound at paras. 53-54:
...expertise is not static, but, rather, is something that develops as a tribunal grapples with issues on a repeated basis. The fact that the Human Rights Commission currently has greater expertise that the Board in respect of human rights violations is an insufficient basis on which to conclude that a grievance arbitrator ought not to have the power to enforce the rights and obligations of the Human Rights Code.
Support for this conclusion can be found in the Ministry of Labour’s 1991 discussion paper, Proposed Reform of the Ontario Labour Relations Act, in which the Minister proposed that all collective agreements should be deemed to include the employment-related prohibitions of the Human Rights Code (p.42). This indicates that it is the government’s view that grievance arbitrators already possess sufficient expertise to address allegations that employer contravened the right of each employee to equal treatment without discrimination. Similarly, in its submissions before this Court, the intervener, Human Rights Commission, stated that it believes that the grievance arbitration process has an important role to play in the resolution of human rights issues. It did not intervene on the basis that arbitrators should not have the power to resolve human rights issues, but on the basis that arbitrators and the Board should have concurrent jurisdiction. This suggests that the Commission also is of the view that grievance arbitrators have sufficient expertise to hear alleged violations of the Human Rights Code. (Emphasis added)
Parry Sound (District) Social Service Administration Board v. O.P.S.E.U., 2003 SCC 42, [2003] 2 S.C.R. 157.
[37] In Lakeport Beverages, the Court of Appeal held that patent unreasonableness remains the appropriate standard of review for arbitrators in Ontario when interpreting provisions of a collective agreement.
[38] In Lakeport Beverages, the arbitrator’s decision dealt only with the provisions of the collective agreement. In CAW-Canada, the arbitrator’s decision dealt with the interpretation of the collective agreement and with various provisions of the Employment Standards Act 2000, S.O. 2000, c.41 yet the court still maintained that the standard of review applicable was that of patent unreasonableness.
[39] In deciding the CAW-Canada case, the Ontario Court of Appeal cited Toronto Board of Education v. Ontario Secondary School Teachers’ Federation District 15, in which the Supreme Court of Canada affirmed that, despite the rule that less deference should be accorded to an arbitrator’s decision when it involved the interpretation of external or outside legislation,
An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. (Emphasis added)
CAW-Canada, supra at paras. 29 and 106 citing Toronto Board of Education v, Ontario Secondary School Teachers’ Federation District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487
[40] The Court of Appeal also referred to their decisions in Ontario English Catholic Teachers’ Assn. v. Lanark Leeds and Grenville County Roman Catholic Separate School Board (1998), 1998 1644 (ON CA), 164 D.L.R. (4th) 429 (Ont. C.A.), and Toronto Catholic District School Board v. Ontario English Catholic Teachers Assn. (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737 (C.A.). In the former, the arbitrator was asked to interpret the Social Contracts Act, 1993, S.O. 1993, c.5 and in the latter, the arbitrator was asked to review a regulation of the Ontario Education Act. In both cases, the Court applied the standard of patent unreasonableness to the arbitrators’ decisions.
[41] In our view, the Code is at least as intimately connected with the arbitrators’ mandate as the Social Contracts Act, the Education Act or even the Employment Standards Act 2000.
[42] Thus the Board was expert in the application of the Code to the collective agreement issues and labour relations context in question. Similarly, the Board was expert in respect of any effect, or lack thereof, that the LCA would have on the application of the Code or that the application of the Code would have on the LCA.
The Purpose of the Legislation
[43] In reviewing the policy considerations involved in granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes, the Supreme Court in Parry Sound noted that the stated purposes of the Ontario Labour Relations Act, which include promoting the expeditious resolution of workplace disputes, are advanced:
Recognizing the authority of arbitrators to enforce an employee’s statutory rights substantially advances the dual objectives of: (i) ensuring peace in industrial relations; and (ii) protecting employees from the misuse of managerial power’
(g)ranting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes has the additional advantage of bolstering human rights protection...It is a reasonable assumption that the availability of an accessible and inexpensive forum for the resolution of human rights disputes will increase the ability of aggrieved employees to assert their right to equal treatment without discrimination, and that this, in turn, will encourage compliance with the Human Rights Code.
[44] These policy reasons also justify a more deferential standard of review.
The Nature of the Problem
[45] The issue before the Board, whether the grievor had a disability on the basis of which she suffered discrimination was, albeit a mixed question of fact and law, primarily a factual issue.
[46] The Board had to apply the Code, and the collective agreement provisions in that respect, but it did not have to interpret the Code. The distinction was highlighted by L’Heureux-Dubé J. in Chambly v. Bergevin, 1994 102 (SCC), [1994] 2 S.C.R. 525.
[47] In Desormeaux v. Ottawa (City), 2005 FCA 311, a case where the issue was whether the individual had a disability recognized by the Code, the court said that the tribunal’s decision on the issue was “clearly one that deserved considerable deference.”
Conclusion on Standard of Review
[48] We conclude that the standard of review is patent unreasonableness.
Was the Board’s Decision Patently Unreasonable?
[49] The patent unreasonableness standard is a very high standard that will not easily be met. In Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 57, the court described the difference between an unreasonable and patently unreasonable decision in the following terms:
The difference...lies in the immediacy or obviousness of the defect. If the defect is apparent on the face if the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. Observed in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, at p. 963, ‘[i]n the Shorter Oxford English Dictionary ‘patently’, an adverb, is defined as ‘openly, evidently, clearly’. This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision on review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem... But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.
[50] For the reasons following, the Board was not patently or otherwise unreasonable in finding that the grievor i) had a disability within the meaning of the Code, and ii) that the City had discriminated against her on the basis of her disability in counting absences attributable to her disability towards the 15 day per year absence quota in the LCA..
The Evidence of Disability
[51] The Board extensively reviewed and analysed the evidence and referenced the relevant provisions of the Code and the Ontario Human Rights Commission Policy and Guidelines on Disability and the Duty to Accommodate.
[52] Following on the extensive review of the evidence, the Board accepted the unchallenged evidence of Dr. Pang, that when he completed the City’s Disability Assessment Form he did not understand that he was being asked whether the grievor had a longstanding medical problem that might explain the underlying causes of her absences.
[53] The Board also accepted the unchallenged evidence of Dr. Pang that his primary diagnosis “is that on an ongoing basis she is in an anxio-depressive state.”
[54] Clearly there was evidence to support these findings by the Board. As well, there was evidence to support the findings of the Board that seven to nine days of the 15, were missed because of her ongoing anxio-depressive state.
[55] Furthermore, the Board considered the relevant legislative provisions in determining that the medical condition of the grievor constituted a disability within the meaning of the Code, and its finding is fully supported in the evidence.
The Finding of Discrimination
[56] The City submits that even if one accepts that Cyr suffered from a disability, such a finding does not end the matter for the employee as he or she must establish a prima facie case of “discrimination”. The Supreme Court of Canada in C.N.R. v. Canada (Human Rights Commission) defined discrimination as follows:
… [S]ystemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because exclusion fosters the belief, both within and outside the group, that the exclusion is the result of natural forces …
and in Law Society of British Columbia v. Andrews as follows:
… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinction based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merit and capacities will rarely be so classed.
C.N.R. v. Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114 at para. 34 (S.C.C.), online: QL (SCC).
Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R. 143 at para. 37 (S.C.C.), online: QL (SCC).
[57] The Applicant submits that the Board of Arbitration is required to turn its mind as to whom Cyr should be compared in order to find an act of “discrimination”. In The Post Office v. Union of Post Office Workers and another, the House of Lords stated:
Discrimination implies a comparison. Here I think that the meaning could be either that by reason of the discrimination the worker is worse off in some way than he would have been if there had been no discrimination against him, or that by some reason of the discrimination he is worse off than someone else in a comparable position against whom there has been no discrimination. It may not make much difference which meaning is taken but I prefer the latter as the more natural meaning of the word, and as the most appropriate in the present case.
The Post Office v. Union of Post Office Workers and another, 1905 103 (NWT SC), [1974] 1 All. E.R. 229 at page 238 (H.L.).
[58] The Supreme Court of Canada has stated that the choice of the correct comparator group is “critical” in cases of alleged discrimination.
First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis. [M]isidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis: Hodge, supra, at para. 18.
Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate: Hodge, supra, at para. 20.
Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: Hodge, supra, at para. 23. The comparator must align with both the benefit and the "universe of people potentially entitled" to it and the alleged ground of discrimination: Hodge, at paras. 25 and 31.
Auton (Guardian ad litem of) v. British Columbia (Attorney General) 2004 SCC 78, [2004] 3 S.C.R. 657 at paras. 50-54 (S.C.C.), on-line: QL (SCC). [Applicant’s Book of Authorities, Appendix A, Tab 18]
[59] In City of Ottawa v. Parisien, a case which involved a termination for innocent absenteeism of employees who had missed work due to a disability, the Federal Court (Trial Division) examined the requirement for the Tribunal to consider an appropriate comparator group in its prima facie case analysis:
In my opinion, the Tribunal erred in its identification of the employee class without attendance problems as the comparator group. If attendance is the issue and absenteeism itself has not been identified as a disability, then the comparator group should reflect similarly situated individuals. In my opinion, the Tribunal erred in choosing the entire group of employees as constituting the comparator group. This was not a reasonable choice. Obviously, the only persons affected by a program to monitor attendance are those persons having attendance problems. Such a program would be irrelevant for employees who do not manifest attendance problems.
In my view, the choice of all disabled persons subject to the AMP is also inappropriate. That would mean creating a different standard for disabled persons for no purpose except to monitor attendance. That would be tantamount to distinguishing an entire group on the basis of disability.
I agree with the Applicant that the Tribunal did not identify the correct comparator group and the appropriate comparator group should have been those with attendance problems, both able-bodied and disabled. That is an impersonal factor and according to the Tribunal, the requirement for regular attendance is a rational legitimate component of the employer's employment policy.
City of Ottawa v. Parisien, [2004] F.C. 1778 at paras. 79-81 (F.C.T.D.), online: QL (FCCB). [Applicant’s Book of Authorities, Appendix A, Tab 20]
[60] Here, argues the Applicant, the Respondent has failed to establish or identify any comparator group, and must fail on the prima facie case.
[61] The Applicant submits that the proper comparator group was those employees (those who suffered from a disability and those who did not) who were required to maintain a level of absenteeism of fifteen days per year, the established average.
[62] Given the foregoing, the Applicant argues that “discrimination” in a human rights context prohibits an employer from treating employees with disabilities differently from other employees within the same comparator group. Therefore, the Board of Arbitration can only make a finding of discrimination if there is evidence that the complainant was treated differently than other employees in a particular comparator group, because of her disability. Without a proper evaluation of the treatment of the grievor in relation to other employees in a similar situation, there can be no finding of discrimination, “prima facie” or otherwise.
[63] In opposition to this position, the Respondent argues that a consideration of a comparator group in this case was quite unnecessary.
[64] Once a disability that had generated absences was established under the Code, the reliance on these absences by the employer triggering the LCA (and leading to the termination of the grievor), made the prima facie case of discrimination plain and obvious.
[65] The comparator group issue arose in Desormeaux v. Ottawa (City), 2005 FCA 311 where the court said:
on the matter of the comparator group, the Application Judge found that the wrong comparator group was identified by the Tribunal; in any event, however, the error furnished no basis for judicial intervention, since the standard of review was reasonableness. On appeal, Counsel correctly devoted very little attention to this issue. Whichever comparator group was chosen, the conclusion that there was differentiation established in the treatment of the complainant would not be affected. (emphasis added)
[66] Thus, argues the Respondent, whatever comparator group was chosen in this case, the conclusion that there was differentiation would not be affected.
[67] Furthermore, numerous cases have found that absences associated with disabilities should not be permitted to negatively affect a grievor, unless they are of a sufficient number so as to support a claim by the employer of undue hardship. In this case, the employer failed to make any such claim at the hearing, or lead any evidence suggesting that accommodating the grievor’s absences would cause it undue hardship.
Ottawa-Carleton (Regional Municipality) and Ottawa-Carleton Public Employees Union Loc. 503 (Lance) (Re)
Re Ontario Human Rights Commission et al And Gaines Pet Foods corp. et al., 1993 5605 (ON SC), 16 O.R. (3d) 290
Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services), [1996] O.J. No. 608 at para. 15
Re Ontario Human Rights Commission et al. And Gaines Pet Foods corp. et al., 1993 5605 (ON SC), 16 O.R. (3d) 290
Hamilton (city) v. Canadian Union of Public Employees, Local 5167, [2003] O.J. No. 657 at paras. 6 and 8.
[68] In conclusion, we note again that the Applicant took into its counting of days missed, days that were missed because of the grievor’s disability. In our opinion that is prima facie discrimination on its face, when measured against any proposed comparator group.
Conclusion
[69] We can find no basis for holding that the decision of the Board was patently unreasonable.
[70] The application is dismissed with costs agreed at $7,500, including disbursements and GST.
CUNNINGHAM ACJ
FERRIER J.
WHITTEN J.
Released: February 27, 2007
COURT FILE NO.: 05-DV-1145
DATE: 20070227
ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA DIVISIONAL COURT
CUNNINGHAM ACJ, FERRIER and WHITTEN JJ.
B E T W E E N:
CITY OF OTTAWA
Applicant
- and -
OTTAWA-CARLETON PUBLIC EMPLOYEES’ UNION, LOCAL 503, PAMELA PICHER, JOE HERBERT, and JIM FOLEY
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Released: February 27, 2007