CITATION: County of Brant v. OPSEU, 2013 ONSC 1955
DIVISIONAL COURT FILE NO.: 285/12
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HILL, MOLLOY and HERMAN JJ.
BETWEEN:
THE CORPORATION OF THE COUNTY OF BRANT
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 256
Respondent
M. Contini, for the Applicant
D. Wright, for the Respondent
HEARD at Toronto: March 27, 2013
REASONS FOR JUDGMENT
molloy j.:
introduction
[1] The applicant, the Corporation of the County of Brant (“Brant” or “the employer”) seeks judicial review of the decision of Labour Arbitrator William Marcotte dated March 1, 2012. The Arbitrator held that Brant had failed to properly accommodate one of its employees, Glen Cunnane, a paramedic who had suffered a workplace injury to his right foot, left hand, and left shoulder. At issue is whether the employer was required to accommodate the paramedic by allowing him to “ride third” in the ambulance (as contended by the Union), or whether the employer could provide other “reasonable” accommodation of its choice.
[2] The workplace accident occurred on October 24, 2010. From that date, the employer accommodated Mr. Cunnane’s disability by giving him sedentary supervisory duties. As his mobility improved, he was given additional responsibility, including paramedic base duties such as sweeping, mopping and cleaning vehicles. Up until December 10, 2010, there is no dispute that the employer had reasonably accommodated Mr. Cunnane.
[3] According to Mr. Cunnane’s doctor, by December 10, 2010, his foot had healed sufficiently that it no longer impaired his ability to perform the work duties of a paramedic. However, he still had restrictions related to his left shoulder. Specifically, he was restricted to lifting a maximum of 40 pounds, whereas the usual lift requirement for a paramedic is up to 60 kilograms. Apart from this lifting requirement, Mr. Cunnane was able to perform the usual duties of a paramedic.
[4] The Applicant and Local 256 of the Ontario Public Service Employees Union (“OPSEU” or “the Union”) have, for a number of years, been parties to a Collective Agreement regulating the employment of paramedics.
[5] Based on the December 2010 medical assessment, the Union maintained that the employer was now required to accommodate Mr. Cunnane by allowing him to “ride third” in the ambulance, invoking Article 2.02 of the Collective Agreement, which includes a provision that, “Where an employee has submitted appropriate medical documentation, he may be accommodated by riding third on a car in order to maintain his skill level.”
[6] The employer refused the requested placement, taking the position that until Mr. Cunnane was cleared to work without restrictions he could not ride third in the ambulance because of safety concerns. The employer also maintained that Mr. Cunnane was already being appropriately accommodated and that he was not entitled to the “ideal” accommodation of his choice.
[7] The Arbitrator held that Article 2.02 of the Collective Agreement required the employer to accommodate Mr. Cunnane by allowing him to ride third in the ambulance and that the doctor’s report of December 10, 2010 was sufficient to support that placement. He also ruled that the safety concerns raised by the employer did not amount to undue hardship.
[8] For the reasons that follow, I find no basis to interfere with the Arbitrator’s decision. Factual findings by the Arbitrator are entitled to significant deference. Likewise, the Arbitrator’s findings as to the interpretation of the collective agreement and the intention of the parties in negotiating Article 2.02 is squarely within an arbitrator’s core area of expertise. The Arbitrator’s interpretation was reasonable in light of the evidence, the language of the collective agreement, and applicable human rights principles.
FACTUAL BACKGROUND
The Nature of the Job
[9] Mr. Cunnane commenced employment with Brant as a Primary Care Paramedic (PCP) in 1995. In 2002, he qualified as an Advanced Care Paramedic (ACP). As an ACP, Mr. Cunnane was qualified not only to perform all duties of a PCP such as driving the ambulance, triage and performing all prescribed “patient care modalities”, but also could start an intravenous line, administer certain narcotics and intubate a patient.
[10] On average, paramedics are called out on emergency calls five or six times per shift. Typically, frequent and heavy lifting is part of the job. Ambulances of the County of Brant Ambulance Service are required to be staffed by a minimum of two paramedics. When this standard crew is dispatched to a location, they first attend to the patient’s needs. If the patient requires transport to hospital the two paramedics, acting as a team are required to lift the patient and stretcher into the ambulance and again on arrival at the hospital.
[11] The stretcher itself weighs 90 pounds. The applicable Physical Demands Analysis (PDA) standards describe usual lifting requirements of 24 to 40 kg with a maximum lift of 60 kg. When a particularly heavy lift is involved, paramedics are often assisted by other emergency responders such as police officers and firefighters or by having a second ambulance crew dispatched.
Relevant Collective Agreement Provisions
[12] Article 2.02 of the Collective Agreement provides that:
The Employer and the Union agree that there will be no intimidation, discrimination, interference, restraint, or coercion exercised or practiced by either of them or by any of their representatives or members. Particularly, there shall be no discrimination against employees with respect to terms and conditions of employment on the grounds of race, creed, color, age, sex (gender), sexual orientation, marital status, family status, religion, nationality, ancestry, place of origin, or handicap (disability), Union membership or activity.
The parties will negotiate accommodation measures to eliminate discrimination, provided that the accommodation does not cause undue hardship on either party as defined in the Ontario Human Rights Code.
Where an employee has submitted appropriate medical documentation, he may be accommodated by riding third on a car in order to maintain his skill level.
In all cases employees on accommodation will be provided meaningful work within their skills and abilities.
[13] Article 3.02 of the Collective Agreement further governs the employer’s participation in the accommodation process:
In the exercise of its functions as provided for in this Article or otherwise, the Employer shall act reasonably, fairly, and in good faith, in a manner consistent with the Collective Agreement.
The Workplace Injury and Initial Accommodation
[14] On October 24, 2010, while on an ambulance call, Mr. Cunnane suffered a workplace fall, injuring his right foot, left hand and left shoulder. His doctor submitted a Functional Abilities Form (required under the Workplace Safety and Insurance Act) defining his restrictions, particularly with respect to his foot. On October 29, Mr. Cunnane’s doctor issued a second Functional Abilities Form adding restrictions with respect to Mr. Cunnane’s use of his left arm. This included a limit of floor-to-waist lifting of a five-pound maximum and restriction respecting waist-to-shoulder lifts as well as heavy pushing/pulling. In the doctor’s opinion, Mr. Cunnane could “only do a ‘desk type’ job in an office.”
[15] From the date of the accident, the employer assigned Mr. Cunnane to sedentary duties, including of a supervisory nature in keeping with prior assignments as an Acting Supervisor and also utilizing his computer skills. As his mobility increased he began to take on some paramedic duties at the ambulance base, including cleaning the ambulances.
[16] On December 10, Mr. Cunnane’s doctor issued a further Functional Abilities Form removing any restrictions with respect to the foot and ankle injuries. However, there was still some restriction arising from the left shoulder injury in that Mr. Cunnane was prohibited from lifting more than 40 pounds. His doctor said this restriction would continue for a further period of three-and-a-half weeks.
[17] Upon receipt of the December 10 medical assessment, Mr. Cunnane requested his employer to assign him to riding third in the ambulance.
The Employer’s Refusal of the Request to Ride Third
[18] On December 13, Mr. Cunnane’s Duty Manager, R. Papple, denied his request to ride third. On December 15, Mr. Cunnane forwarded his request to C. Longeway, the manager of ambulance service for Brant. In an e-mail dated December 22, 2010, Mr. Longeway again denied the request. Mr. Longeway stated in the email that: (a) it was unclear when Mr. Cunnane would be 100% recovered since the doctor had stated he would be reassessed at 3 ½ weeks; (b) there was a risk of further injury to Mr. Cunnane and exacerbation of his current injury due to the “unknowns of the pre-hospital environment” which were beyond the control of the employer; and (c) Mr. Cunnane would not be permitted to re-integrate into paramedic duties by riding third until he was cleared to perform 100% of the duties of a paramedic.
[19] The employer maintained this position at the hearing. Essentially, Brant took the position that a paramedic could not ride third in the ambulance unless cleared to perform 100% of the duties of a paramedic, including the lift requirements. Brant’s stated rationale at the time was that this was for the protection of the individual paramedic, co-workers and the public. The employer saw the riding third placement as being used only for “work hardening” after a paramedic had been off the usual job for a period of time and after there was no longer any disability interfering with the employee’s ability to perform all the tasks of a paramedic. This was a matter of general policy for the employer, and was not restricted to the circumstances of Mr. Cunnane.
THE POSITION OF THE PARTIES
[20] The applicant Brant takes the position before this Court that the Arbitrator did not find a breach of the Collective Agreement, or alternatively, if he did find a breach, there was no rational basis for so finding in light of the fact that the employer was already providing reasonable accommodation and there were safety issues with respect to Mr. Cunnane riding third in the ambulance.
[21] Further, Brant argues that under applicable human rights legislation and jurisprudence, the employer is not required to give an employee the accommodation of his choice. Provided the employer’s initial accommodation of the disabled employee is reasonable, there is no obligation to continually make changes to that accommodation to meet the preferences of the employee.
[22] The respondent Union submits that the Arbitrator’s decision was based on a reasonable interpretation of the Collective Agreement and a reasonable conclusion that the employer had failed to establish undue hardship with respect to the accommodation of riding third in an ambulance. Further, the Union argues, degrees of disability are not static and as an employee’s condition changes, so too must the accommodation of the disability be reassessed. The Union maintains that once the medical documentation established Mr. Cunnane’s fitness to ride third in the ambulance, the employer was bound to provide that accommodation, and the Arbitrator was reasonable in finding that to be the case.
THE REASONS OF THE ARBITRATOR
[23] The Arbitrator noted that the third and fourth paragraphs of Article 2.02 of the Collective Agreement are unique and without precedent in the authorities submitted by the parties. The Arbitrator found it was particularly significant that this was a negotiated term between the parties and reflected the parties’ agreement that riding third in an ambulance is an appropriate accommodation for a disabled paramedic.[^1] Based on that concession in the Collective Agreement, the Arbitrator held that Article 2.02, properly interpreted, warranted the following conclusions:[^2]
(i) it cannot be said that riding third in the ambulance is a redundant or supernumerary position;
(ii) undue hardship based on financial cost “does not necessarily arise,” and did not arise in the circumstances of this case;
(iii) it must be assumed, reasonably, that the parties recognized that “an injured paramedic may not be able to perform all the duties of a paramedic since, by its nature, accommodated work is modified work of the pre-disability position;”
(iv) “it must reasonably be assumed” that accommodation through reduced duties, including legislatively-prescribed duties, “does not per se interfere with the Employer’s and regulatory goal of ‘providing the highest level of health and safety to those served by the ambulance paramedics’.”
(v) “it is reasonable to assume [the parties] understood the disabled paramedic would be exposed to the inherent risks of the position;”
[24] The Arbitrator held that the medical documentation submitted by the grievor was sufficient to meet the requirement in the third paragraph of Article 2.02.
[25] The Arbitrator therefore concluded that the issue before him was whether the employer’s denial of the request to ride third was improper in the particular circumstances of this grievor’s injury, “given that riding third in an ambulance is an appropriate accommodation per se.”[^3] He then proceeded to examine whether the employer had established that providing such accommodation would cause undue hardship and found that it did not.
[26] The Arbitrator accepted that safety concerns can legitimately support a finding of undue hardship. He also accepted that, at the time in question, the grievor could not safely perform all of the essential duties of a paramedic and in particular could not safely perform the duty of lifting patients. However, he held that the standard is for two paramedics to perform a lift, not three. In normal circumstances the grievor would not be engaged in lifting. Further, although more than two people may be required to do a lift in unusual circumstances, other services present at the scene (such as police and fire departments) can assist or, as is the standard practice, a second ambulance can be summoned. He concluded that there was no evidence before him as to the frequency of assisted-lift circumstances to justify preventing the grievor from riding third in an ambulance.[^4]
[27] The Arbitrator also considered the employer’s argument that risks to the safety of the disabled paramedic warranted a finding that riding third constituted undue hardship and again found it did not. The Arbitrator held that there was no evidence of risk to the third paramedic beyond the inherent risks already associated with the job. He stated, at p. 31:
I find that, in assuming the risks inherent in the paramedic position, the risks he assumes are potential risks and not direct threats to his safety or that of co-workers and patients. Moreover, I find the benefits attached to riding third in an ambulance for the grievor outweigh the potential risks inherent in the paramedic position. The grievor would be in a position that quite closely aligns with his pre-disability position and allows him to continue to practice the majority of his paramedic skills.
[28] Ultimately, based on these findings, the Arbitrator upheld the grievance, summing up his conclusions as follows (at p. 31):
(i) the employer discriminated against the grievor when denying him the position of third in an ambulance as provided for under Article 2.02 of the collective agreement;
(ii) the requested accommodation is appropriate and reasonable; and,
(iii) accommodating the grievor in that position does not create undue financial hardship or undue hardship on the basis of creating risk to the grievor’s safety or to the safety of co-workers and patients.
STANDARD OF REVIEW
[29] No issue of jurisdiction or procedural fairness is raised. The parties submit, and I agree, that the applicable standard of review is reasonableness. This standard requires deference to findings of fact made by the Arbitrator and to the Arbitrator’s interpretation of the provisions of the Collective Agreement. Further, labour arbitrators have particular expertise in applying human rights principles to issues in the workplace and their conclusions on such issues are therefore entitled to deference.[^5]
ANALYSIS
The Employer Failed to Establish Undue Hardship
[30] The Arbitrator made specific findings of fact in relation to the issue of undue hardship. At the time of the requested accommodation, the employer gave safety concerns as its reason for not assigning Mr. Cunnane as third person in an ambulance and argued before the Arbitrator that those safety risks constituted undue hardship. However, on this judicial review application, the employer does not seek to challenge the reasonableness of the Arbitrator’s factual determinations and does not assert undue hardship is a basis for refusing the requested accommodation. I agree that the Arbitrator’s findings in this regard are reasonable and supported by the evidence.
The Medical Documentation Triggered Article 2.02
[31] Likewise, I accept as reasonable the Arbitrator’s finding that the medical documentation submitted in December 2010 was sufficient to satisfy Article 2.02. Indeed, in his reasons, the Arbitrator noted the parties’ agreement to this fact. In any event, physicians treating disabled paramedics were provided the PDA specifications as to the demands of the paramedic position to assist in writing their reports, and a doctor’s statement that a disabled paramedic could only work in the office, or could ride third in an ambulance, would reasonably be viewed as an expression of the paramedic’s degree of fitness for duty and not (as was suggested by the applicant) as an unreviewable delegation of decision-making from the employer to the medical community.
Employee’s Right to Invoke Riding Third Accommodation
[32] The issue then becomes whether the employer is entitled to assert that having reasonably accommodated the grievor by giving him supervisory duties, it had no further obligation to provide the alternate accommodation requested by the grievor of riding third in the ambulance.
[33] The employer argues that the Arbitrator made a finding that the initial accommodation of Mr. Cunnane was reasonable, and continued to be reasonable throughout the period of his disability. I do not find that to be a fair reading of the Arbitrator’s reasons as a whole. The Arbitrator concluded, reasonably in my view, that upon presenting the supporting medical documentation in December 2010 and requesting to ride third in the ambulance, Mr. Cunnane was entitled to that accommodation unless the employer could establish that to do so would constitute undue hardship.[^6] That finding flowed from the Arbitrator’s interpretation of the collective agreement and the intention of the parties in building into that agreement this specific provision relating to accommodation by riding third in the ambulance. This was a construction that was open to the Arbitrator based on the wording of the Collective Agreement and the evidence before him. It falls within a range of outcomes that can be said to be reasonable, and as such it is not appropriate for this Court to interfere.
[34] The applicant also argues that the Arbitrator’s decision amounts to a finding that employees are entitled to demand specific accommodations of their choosing and that an employer can only avoid providing such accommodation if undue hardship can be established. I disagree. In this case, the Arbitrator made no specific findings with respect to the duty to accommodate arising under the Human Rights Code, absent the provisions of the Collective Agreement. Rather, his findings flow directly from the Collective Agreement and the fact that the parties specifically agreed that riding third in an ambulance is an appropriate accommodation for a disabled paramedic.
[35] I reject the submission of the applicant that the Arbitrator’s decision was based on a finding that the Human Rights Code was breached and that he made no finding with respect to a breach of the Collective Agreement. I find the opposite to be the case. The Arbitrator’s entire analysis was on the Collective Agreement and what it meant. Further, at the conclusion of that analysis he stated, “I find the Employer discriminated against the grievor when it denied to accommodate him in the position of 3rd in an ambulance as provided for under art. 2.02 of the collective agreement.” That is a finding that the Collective Agreement, specifically Article 2.02, was breached. The reference to the fact that the employer “discriminated” is not a finding of discrimination under the Human Rights Code, but rather reflects the fact that Article 2.02 specifically prohibits “discrimination” on the basis of handicap or disability.
[36] In an earlier portion of his decision, the Arbitrator did refer to the fact that the word “may” is used in Article 2.02 in relation to the accommodation of riding third in the ambulance and accepted that this vested a certain degree of discretion in the employer. He also stated that the discretion given to the employer could not be exercised in a manner that violated the Code and cited authority to that effect.[^7] That case law is uncontroversial. However, it played no role in the Arbitrator’s analysis, except in respect of undue hardship. As stated above, the analysis and conclusions with respect to undue hardship were reasonable, as has been conceded by the applicant. The Arbitrator made no finding as to whether, under general human rights principles, an employee would be entitled to require the accommodation sought if another accommodation was already being provided. Given the wording of the Collective Agreement, it was not necessary for the Arbitrator to make such a finding. He rested his analysis on the terms of the Collective Agreement, which was appropriate and reasonable.
[37] It is not possible to divorce the Arbitrator’s findings in this case from the specific terms of the Collective Agreement. All of those findings were tied to, and flowed directly from, Article 2.02. The Arbitrator rejected the employer’s inflexible position that the accommodation of riding third in an ambulance would only be provided when the paramedic was medically cleared to perform 100% of the usual duties of a paramedic. The Arbitrator found this to be inconsistent with the intention of the parties. This was a reasonable construction of the Collective Agreement. To find otherwise would render the provision meaningless.
[38] Essentially, the employer’s argument is that as long as it provided some other reasonable accommodation that met the requirements of the Human Rights Code, it had no obligation to accommodate a paramedic under the specific provisions of Article 2.02. Again, such a position would render the terms of Article 2.02 meaningless. The Arbitrator considered the grievor’s rights under Article 2.02 and found they were violated when the medical requirements for riding third in the ambulance were met and the employer provided no justification for not providing that accommodation. That is a reasonable determination in light of the evidence and the terms of the agreement. It is a finding made squarely within the Adjudicator’s core area of expertise and is entitled to considerable deference. I see no basis to intervene.
[39] In these circumstances, there is no reason to make findings of law with respect to the requirements of the duty to accommodate under relevant human rights legislation and I decline to do so. The Arbitrator made no such findings. His decision is based on the particular circumstances of this grievor under the specific terms of the applicable Collective Agreement.
CONCLUSION
[40] The application for judicial review is dismissed.
[41] The agreed-upon costs of $5000 are awarded to the respondent Union.
MOLLOY J.
HERMAN J.
HILL J.: (concurring)
INTRODUCTION
[42] I agree that the application for judicial review must be dismissed.
[43] Molloy J. has helpfully reviewed the background facts. I agree with her statement of the operative standard of review and the issue of the appropriateness of the medical documentation submitted by the grievor.
[44] However, contrary to the conclusion at para. 39 of my colleague’s reasons, I read the Arbitrator’s decision as having found the employer’s decision to amount to discrimination under the Human Rights Code – a conclusion certainly informed, in part, by consideration of Art. 2.02 of the relevant Collective Agreement.
NATURE OF THE ISSUE
[45] In respect of what was argued by the Union before the Arbitrator, I note the following references from the Arbitrator’s reasons:
The Union submitted that the Employer did not accommodate the grievor to the point of undue hardship and, in that regard, discriminated against him. (p. 13)
The Union argued the test for accommodation is that of “undue hardship”… (p. 14)
[46] As well, as is evident from the Arbitrator’s Reasons, the Union made extensive reference to policies and guidelines of the Human Rights Commission (pp. 15-8) as well as to jurisprudence respecting human rights principles.
[47] Again, drawing upon the Arbitrator’s reasons as to the Employer’s position, I note these references:
The Employer submitted it did not improperly fail to accommodate the grievor subsequent to the point in time when the foot injury resolved. (p. 18)
… it flows there is no duty to accommodate the grievor in the paramedic position because he could not do an essential core duty that is regularly performed. (p. 19)
How then [asks the Employer], does that accommodation go from being reasonable and appropriate to being unreasonable and in violation of the Human Rights Code? (p. 20)
[48] The Arbitrator’s reasons, while engaging in review of Art. 2.02 and the intent of the parties in its drafting, focused upon the provisions of the Human Rights Code, for example:
The issue to be determined is whether or not the Employer discriminated against the grievor in not accommodating his disability by way of riding 3rd in an ambulance. (p. 24)
… by use of the word “may” in the above provision in art. 2.02, the parties are agreed the Employer has the discretion to determine if riding 3rd in an ambulance is reasonable or suitable accommodation depending upon the specific circumstances of the injured paramedic, there being no issue it is per se appropriate accommodation. That said, however, the grievor’s right to accommodation arises under the Human Rights Code, which legislation supercedes, or overrules, the provisions of a collective agreement, even absent a conflict between the legislation and the collective agreement (e.g., Re Central Okanagan School District, supra, para. 23; Re Bowater, supra, para. 42). Therefore, an exercise of the Employer’s discretion under art. 2.02 cannot improperly interfere with the grievor’s rights under the Code. (p. 26)
… where the Human Rights Commission indicates in its guidelines that in some circumstances, it is not unreasonable for a disabled person to assume risk associated with an appropriate accommodation, that policy can reasonably be assumed to have been developed with the knowledge of an employer’s obligations under OHSA…
What the above reveals is that where a disabled employee can be appropriately accommodated in a position where potential risk exists, the potential for risk does not, in and of itself, prevent that person from exercising his or her rights under the Human Rights Code. (p. 30)
Moreover, I find the benefits attached to riding 3rd in an ambulance for the grievor outweigh the potential risks inherent in the paramedic position. The grievor would be in a position that quite closely aligns with his pre-disability position and allows him to continue to practice the majority of his paramedic skills. (p. 31)
[49] In its factum, the Applicant’s submissions included inter alia the following:
It is respectfully submitted that the Applicant’s decision to deny the Grievor’s request in this case for changed accommodation, to suit his personal preference, was reasonable and justifiable, and in no way violated the letter or intent of the collective agreement, or of the applicable provisions of the Ontario Human Rights Code, or any other legislation. The Arbitrator’s finding, to the contrary, was unreasonable, and therefore constituted jurisdictional error. (para. 23)
Although it is not entirely clear from his decision, it would appear that Arbitrator Marcotte acknowledged that the collective agreement, and particularly Article 2.02 in this case, had not been violated. As noted, Arbitrator Marcotte found that “by use of the word ‘may’ in the above provision in Article 2.02, the parties are agreed the Employer has discretion to determine if riding third in an ambulance is reasonable or suitable accommodation depending upon the specific circumstances of the injured paramedic…”. However, Arbitrator Marcotte immediately went on to hold that the Grievor’s right to accommodation in this case arose under the Human Rights Code, which provisions overrule the provisions of a collective agreement. It is to the Human Rights Code, and its obligations, that we now turn. (para. 26)
It is respectfully submitted that Arbitrator Marcotte’s conclusion in this regard cannot be supported on any rational interpretation of the Code or on any plausible application of the duty to accommodate as defined by the Code. Simply put, the Code requires that an employer accommodate an employee with a disability to the point of undue hardship, reasonably and appropriately. Once that is done, as was the case here with the provision to the Grievor of his supervisory and base duties, the employer’s obligations are satisfied. There is no requirement that can be said to be derived from the Code that the employer make changes to an accommodation which is itself reasonable and appropriate, because the accommodated employee might prefer something different. The Arbitrator’s holding here that there was such a requirement, particularly in the circumstances that obtained here, was unreasonable and subjects his decision to judicial review.
Most critically, there was no obligation, derived from the Human Rights Code, or otherwise, that could require the Applicant to change an existing, reasonable, and appropriate accommodation, because the Grievor preferred something different. It is respectfully submitted that Arbitrator Marcotte’s conclusions to the contrary were clearly unreasonable, inconsistent with settled authority, and his decision should be set aside as a result. (para. 41)
[50] In oral argument, while acknowledging the interconnection of Art. 2.02 and the Human Rights Code, Mr. Contini submitted that the Arbitrator did not find a breach of Art. 2.02 but did, unreasonably, conclude that the Employer had violated the Human Rights Code.
The Respondent’s factum included these references:
It has been established that the duty to accommodate is an ongoing obligation unless undue hardship can be established. The ongoing duty is not extinguished by the fact that the employee is being accommodated in another position; it is incumbent on the employer to consider whether some further and reasonable accommodation that is within the employee’s changing range of ability can be achieved short of undue hardship. (para. 38)
The arbitrator considered the Grievor’s injuries and capabilities as of December 2010, and found that riding “third” would have been an appropriate and reasonable accommodation at that time and would not have caused the Applicant undue hardship. Accordingly, the Arbitrator found that the Applicant’s refusal to grant this appropriate accommodation was in violation of the Human Rights Code. (para. 40)
The Arbitrator also found that the Applicant’s discretion under Article 2.02, to decide whether riding “third” in an ambulance was reasonable or suitable accommodation was limited, in that it could not interfere with the Grievor’s rights under the Human Rights Code. (para. 54)
The Arbitrator found that the Applicant’s decision was in violation of the Grievor’s rights under the Human Rights Code. The Arbitrator held that accommodated work, by its very nature, is modified work of the pre-disability position and, that modifying a position by reducing the number of duties to be performed has been found by arbitrators to be appropriate accommodation. (para. 57)
[51] In oral argument, Mr. Wright submitted that since there was a finding of a violation of the Human Rights Code, the Arbitrator’s reasons could be interpreted as an implicit finding that Art. 2.02 of the Collective Agreement was also breached. That argument was available “in reserve”. In any event, submitted counsel, apart from the terms of the specific Collective Agreement, where there exist changed circumstances an employer is obliged, applying the Code’s principles, to accommodate within the new context.
[52] Accordingly, in my view, the record is most properly considered on the basis that the principal argument of the parties related to discrimination under the Code and that the Arbitrator’s decision, informed by consideration of Art. 2.02 as a factor, concluded a breach of the Code through a failure to reasonably accommodate to the point of undue hardship.
THE ARBITRATOR’S DECISION
[53] The 31-page decision of the arbitrator, William A. Marcotte, reviewed the evidence at the hearing and the positions of the parties. The arbitrator came to these conclusions:
(1) “[T]he grievor’s October 24, 2010 injuries prevented him from performing his paramedic duties”.
(2) “There is no issue that when the grievor was injured on October 24, 2010, his accommodation in the supervisory position was appropriate in light of his restrictions resulting from his injuries, under the provisions of the Human Rights Code”.
(3) “It is not in dispute the grievor did submit appropriate medical documentation allowing him to ride in an ambulance as a 3rd crew member” as required by Art. 2.02 of the Collective Agreement.
(4) The final two paragraphs of Art. 2.02 of the Collective Agreement are unique and without precedent in the authorities submitted by the parties and:
The significance of this provision is that it expresses the parties’ agreement that riding 3rd in an ambulance is appropriate accommodation for a disabled paramedic.
(5) Because the parties agree that riding third in an ambulance can be appropriate accommodation, Art. 2.02, properly interpreted, warrants these conclusions:
(a) “… it cannot be said that the position is redundant or supernumerary”
(b) “… the matter of undue hardship based on financial costs does not necessarily arise” particularly as here in a short-term accommodation as opposed to a “prolonged accommodation”
(c) “it must be assumed, reasonably, [the parties] agree an injured paramedic may not be able to perform all the duties of a paramedic since, by its nature, accommodated work is modified work of the pre-disability position”
(d) “it is reasonable to assume [the parties] understood the disabled paramedic would be exposed to the inherent risks of the position”
(e) “it must reasonably be assumed” that accommodation through reduced duties, including legislatively-prescribed duties, “does not per se interfere with the Employer’s and regulatory goal of “providing the highest level of health and safety to those served by the ambulance paramedics””.
(6) “A modification by way of reduction in the number of duties to be performed is viewed by arbitrators as appropriate for accommodation purposes…” and “there is no distinction between legislatively-prescribed and non-legislatively-prescribed essential duties in the submitted cases or in the Human Rights Code and its policy statements…”.
(7) The use of the word “may” in Art. 2.02 recognizes a discretion in the employer to determine whether riding third in an ambulance “is reasonable or suitable accommodation depending upon the specific circumstances of the injured paramedic, there being no issue it is per se appropriate accommodation”.
(8) Because a disabled worker’s right to accommodation arises under the Human Rights Code, which overrides the provisions of a specific collective agreement, the employer’s discretion under Art. 2.02 “cannot improperly interfere with the grievor’s rights under the Code”.
(9) In setting accommodation for a disabled employee, the employer must be “flexible in applying its [job performance] standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship”:
…determination of reasonableness is to be made in light of the specific nature of an employee’s injury or disability and in light of a flexible approach to the application of job performance standards in order that the employee can be accommodated up to the point of undue hardship. In that respect, what may or may not be suitable accommodation up to the point of undue hardship “will depend upon the particular circumstances of the particular situation…”
(10) Health and safety matters may, in a particular context, be a part of the undue hardship analysis while recognizing that different circumstances present different risks requiring different levels of safety – where safety is at issue, contextual analysis requires consideration of “both the magnitude of the risk and the identity of those who bear it”.
(11) Once the grievor’s foot injury had healed and “appropriate medical documentation” was submitted, the employer denied a change in accommodation to riding third in an ambulance “on the basis of risk of further injury or exacerbation of his shoulder injury in the “pre-hospital environment””, a risk of safety to the grievor “and, as a corollary, safety of his co-workers and patients”. The failure to accommodate through a riding third assignment “was denied by the Employer for the sole reason of a possible, potential, speculative risk of further injury or exacerbation of his shoulder injury if he were to be so assigned”. The accommodation, permissible within Art. 2.02 would not require the grievor to participate in lifting – that function would be discharged by the normal two-paramedic crew. Not only do “the benefits attached to riding 3rd in an ambulance for the grievor outweigh the potential risks inherent in the paramedic position”, but also any safety concerns beyond this are either inherent in a paramedic’s work or, “absent participation in a lift … speculative” and not grounded in “objective evidence”.
(12) After mid-December 2010, accommodation of the grievor riding third in an ambulance would have placed him “in a position that quite closely aligns with his pre-disability position” and would allow him “to continue to practice the majority of his paramedic skills”. The employer’s failure to implement this reasonable and appropriate accommodation, which would not have created undo financial hardship or undue hardship on the basis of creating risk to the grievor’s safety or to the safety of co-workers and patients”, amounted to impermissible discrimination under the Code.
ANALYSIS
General Principles
[54] “Human dignity means that an individual or group feels self-respect and self-worth”: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 53. Employment, as “a major aspect” of a person’s life (Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 85), “is integral to one’s sense of self-worth and emotional well-being” – “[i]t is for these reasons that the conditions of work are very important factors contributing to a person’s dignity and self-respect”: Ontario Public Service Employees Union (Kerna) v. Ontario (Ontario Human Rights Commission), at p. 37.
[55] An employer “has a duty to provide a discrimination-free workplace”: McGill University Health Centre (Montréal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at para. 40 per Abella J. As an aspect of equality, the Code (ss. 5, 10(1) “disability”, 11, 17) ensures equal rights, opportunities and treatment in employment, protecting against the direct and adverse effects of discrimination on a prohibited ground. Effectively, the Code provides an affirmative obligation on an employer to continue to employ and provide meaningful work to an employee who becomes disabled as a result of workplace injury. Presumptively, there is to be no distinction between employees on the basis of disability unless that cannot reasonably be avoided without causing undue hardship to the employer.
[56] Through section 2(d), the Charter of Rights protects the process of collective bargaining (Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 2; Health Services and Support, at para. 20), such that “[h]uman dignity, equality, liberty, respect for the autonomy of the person and enhancement of democracy” are complemented and promoted: Health Services and Support, at paras. 81, 86.
[57] Management’s inherent right to direct and manage its workforce is not unlimited – an employer’s actions toward employees disabled by injury in the workplace cannot derogate from those employees’ right to equal treatment without discrimination: Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 234 (O.P.S.E.U.), 2003 SCC 23 [2003] 2 S.C.R. 157, at paras. 29, 32, 35-6.
[58] It is generally accepted that “arbitrators have a broad exclusive jurisdiction over issues relating to conditions of employment, provided that those conditions can be shown to have express or implicit connection to the collective agreement”: Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 33.
[59] Because the right “of a[n] … employee to equal treatment without discrimination is implicit in each collective agreement”, a grievance arbitrator “has the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement”: Parry Sound, at paras. 1, 40, 48.
[60] “Since the right to equality is a fundamental right, the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation”: McGill, at para. 20. Because of the Code’s transcendent obligation to accommodate, the provisions of a collective agreement “cannot absolve the parties from the duty to accommodate”: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at para. 26.
[61] Apart from implicit inclusion in every collective agreement of the Code’s recognition of the duty of accommodation on employers in furtherance of its protection against unlawful discriminatory practices in employment, as in the present case some agreements contain express text relating to the issue of accommodation. Such consensus “is significant, because it was reached by the people who are most familiar with the particular circumstances of the enterprise, and also because these people were representing different interests” and therefore it can “be assumed that the clause has been negotiated in the mutual interest of the employer and the employees”: McGill, at paras. 16, 19. With respect to reasonable accommodation and undue hardship, negotiated consensus is a non-determinative, but important, factor in an arbitrator’s assessment of the reasonableness of a disabled employee’s circumstances: McGill, at paras. 20, 27; Commission scolaire régionale de Chambly v. Bergenin, [1994] 2 S.C.R. 525, at p. 551.
[62] As said, the duty to accommodate in the workplace arises when an employer seeks to apply a standard that is prejudicial to an employee on the basis of specific characteristics, such as disability, that are protected by human rights legislation: McGill, at para. 11.
[63] On the authority of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (Meiorin), [1999] 3 S.C.R. 868, at para. 54 (as further interpreted by Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’ Hydro-Québec, Section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at paras. 12-4), once an employee establishes that a workplace standard is prima facie discriminatory, the onus shifts to the employer to prove on a balance of probabilities that:
(1) the employer adopted the standard for a purpose rationally connected to the performance of the job
(2) the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose
(3) the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose – to show that the standard is reasonably necessary, it must be demonstrated that it is not possible, without undue hardship, to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[64] In Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.), at para. 97, it was observed that:
An employer’s workplace rule may fail to satisfy the third step in the Meiorin test in several ways. For example the rule may be arbitrary in the sense that it is not linked to or does not further the employer’s legitimate purpose; the rule may unreasonably not provide for individual assessment; or the rule may not be reasonably necessary because other means, less intrusive of individual human rights, are available to achieve the employer’s purpose.
[65] Turning more specifically to the notion of accommodation in circumstances of an employee’s injury in the workplace, these overarching principles have emerged:
(1) Accommodation is not an issue where an employee is totally disabled and unable to work at all in the sense of unable to return to work in any capacity.
(2) Once it is shown that an employer’s decision, action, practice or policy is shown to lead to discriminatory treatment or effect on an employee who is able to work, upon a prohibited ground such as his or her disability, there arises a duty upon the employer to provide the employee reasonable accommodation in the workplace and a corresponding onus to show that such an effort has been made: Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at para. 61.
(3) The “goal of accommodation is to ensure that an employee who is able to work can do so” so that he or she is “not unfairly excluded where working conditions can be adjusted without undue hardship”: Hydro-Québec, at para. 14.
(4) In discharging its duty to accommodate, an employer is obliged to undertake “[m]ore than mere negligible effort”: Renaud, at para. 19. An employer is reasonably expected to be flexible in applying its standard if such flexibility enables the employee in question to work without causing undue hardship to the employer: Hydro-Québec, at para. 13; Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at para. 20. For example, an employer “is not entitled to require or expect a disabled employee to perform all the normal functions of the regular job” and “if necessary, and if it is possible to do so without undue hardship, a disabled employee must even be excused from an essential function of the job”: Bowater Canadian Forest Products Inc. v. Industrial Wood and Allied Workers Canada, Local 2693 (Giardino Grievance), [2003] O.L.A.A. No. 597, at para. 44.
(5) The duty to accommodate is not unlimited: McGill, at para. 38. In other words, the duty “is not limitless and will vary from one case to the next”: Guibord v. Canada (Treasury Board), [1997] 2 F.C. 17, at para. 25; McGill, at para. 38. The obligation of the employer is only to undertake reasonable measures short of undue hardship to accommodate the employee: Renaud, at para. 16. Accordingly, while an employer does not have to change working conditions “in a fundamental way”, there is an obligation “if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work”: Hydro-Québec, at para. 16.
(6) What constitutes reasonable measures to accommodate “is a question of fact and will vary with the circumstances of the case” (Renaud, at para. 19) and to similar effect it has been observed that “[t]here is no universal threshold for undue hardship. The point at which undue hardship begins will depend upon the circumstances of the particular situation”: Bowater, at para. 41.
(7) A disabled worker is not entitled to “a perfect solution”, by way of accommodation, only one which is reasonable in all of the circumstances: Renaud, at para. 42. Having regard to the individualized nature of accommodation, and while the authorities on occasion speak in terms of the “most reasonable” solution (Renaud, at p. 994 (employer’s proposal “not only reasonable, but the most reasonable”); Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board (2000), 50 O.R. (3d) 560 (C.A.), at para. 51 (“this scheduling option may represent the most reasonable form of accommodation”); Bowater, at para. 44 (“The employer is obliged to make the most appropriate suitable accommodation for the needs of the particular disabled individual in his/her regular job”); Ontario Public Employees Union (Kerna), at p. 29 (“a consideration of what constitutes the most appropriate accommodation must incorporate analysis of undue hardship”)), the legally required obligation is to accommodate within a reasonable range: Ontario Public Service Employees Union (Hart-Day) and Ontario (Ministry of Community Safety and Correctional Services, at paras. 46, 51. Of course, “it is incumbent on the employee to accept an offer of reasonable accommodation, even though it might not be the specific accommodation which the employee would prefer”: CANPAR and U.S.W.A., Loc. 1976 (Wilson) (Re), [2000] C.L.A.D. No. 1003, at paras. 11, 15.
(8) Although an employee seeking reasonable accommodation in the workplace has no right to craft his or her own job placement, an important factor in the balance, though not consistently recognized within the relevant jurisprudence, is whether, without undue hardship, that employee can be returned to the job he or she performed prior to being injured in the workplace as observed by the arbitrator in the present case citing Ontario Public Service Employees Union (Kerna) at p. 34:
The jurisprudence has established that employers are required to take a four-step process with respect to accommodation efforts. First, it is to determine whether the disabled employee can perform a job as it exists. If that is not possible then the Employer is to assess whether the employee’s existing job can be modified in such a way so as to be suitable. If that is still not achievable the Employer is to then determine whether another job within the workplace is suitable. Finally, if the disabled employee cannot perform the essential duties and responsibilities of a different existing position, can that different job be modified?
See also: Hydro-Québec, at para. 16 (duty “to arrange the employee’s workplace or duties to enable the employee to do his or her work”); Honda v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 100 per LeBel J. in dissent in the result (critical of evidence suggesting employer making effort not to find ways “to make it easier for the disabled employee to do his or her current job”); Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453, at para. 28 (“When approaching the accommodation of an employee, the first consideration is whether the employee can be accommodated in her or his home position without undue hardship”); Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Di Caro Grievance), [2005] O.G.S.B.A. No. 60, at para. 58 (“the starting point for an employer is to attempt to accommodate the disabled employee by enabling him [or her], with modifications as necessary, to perform his [or her] own job”); Catholic District School Board of Eastern Ontario v. Ontario English Catholic Teachers’ Assn., [2008] 176 L.A.C. (4th) 193, at para. 159 (“the first goal in accommodating a disabled employee is to seek to return that individual to the pre-disability job, if possible”); Bowater, at para. 44 (“If the disabled employee cannot be accommodated in his/her regular job…”); Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate” (2000), 4.1.1 Respect for Dignity (“The duty to accommodate persons with disabilities means accommodation must be provided in a manner that most respects the dignity of the person”) / 4.1.2 Individualized accommodation (a “blanket policy does not provide for individualized assessment…”) / 4.3 Most appropriate accommodation (“The duty to accommodate requires the most appropriate accommodation be determined and then undertaken, short of undue hardship”; this includes “phased-in accommodation over time”; “The tribunal has ruled that short of undue hardship, the highest point in the continuum of accommodation must be achieved”) / 4.3.2 Alternative work (“Although accommodation in the pre-disability job is always preferable, it may not always be possible”).
(9) Accordingly, to discharge the duty of reasonable accommodation, while an employer is not required to accommodate through placement of a disabled employee in his or her pre-disability position, the employer is generally bound to reasonably, fairly and in good faith consider that option in the undue hardship analysis given that the skills, capabilities and potential contributions of the individual employee should be respected as much as reasonably possible by any disability accommodation. In some cases, in all the circumstances, that solution will be the only reasonable accommodation. In others, for example, where there is an inability to fulfil an essential duty or requirement of the job position, which cannot be accommodated without undue hardship, it may not.
(10) Within the workplace environment, a disabled employee is quite entitled to make suggestions as to how he or she can best be accommodated– however, “the employer is in the best position to determine how the [disabled employee] can be accommodated without undue interference in the operation of the employer’s business”: Renaud, at para. 44; Simpsons-Sears, at para. 28.
(11) “[M]ore than minor inconvenience must be shown before” a grievor’s “right to accommodation can be defeated” (Renaud, at para. 20) – in advancing undue hardship, an employer must show “substantial”, not “trivial” or “minor”, interference with its operation: Renaud, at paras. 20, 26. Therefore, “undue interference or undue expense are not required” of an employer: Renaud, at para. 16; CANPAR, at para. 15. Because the duty to accommodate does not impose unreasonable expectations on employers, “the workplace or the work” need not be “fundamentally changed” or “reorganized” and “economic organizational realities are not to be disregarded”: Hydro-Québec, at para. 16; Riverdale Hospital (Board of Governors) and C.U.P.E., Loc. 79, Re, [1994] O.L.A.A. No. 70, at paras. 39, 41.
(12) The factors which influence the undue hardship determination in a given case are “not entrenched” or “exhaustive” as relevant considerations “must be applied with common sense and flexibility”: McGill, at para. 15. In the absence of a comprehensive definition of undue hardship, non-exclusive factors have emerged over time to be weighed in the balance against a disabled employee’s right to be free of workplace discrimination, including the following:
(a) financial cost including outside sources of funding
(b) disruption of a collective agreement
(c) problems of morale of other employees
(d) interchangeability of workforce and facilities
(e) health and safety concerns.
See Central Alberta Dairy Pool, at para. 62; Code, s. 17(2).
(13) With regard to the last factor, health and safety concerns, it is necessary to consider the magnitude of the risk and the identity of those who bear it: Central Alberta Dairy Pool, at para. 62. Discrimination said to be supportable on safety factors requires evidence clearly justifying the employer’s position: see, for example, Law, at paras. 130-5; Simcoe (County) v. Ontario Public Service Union (2009), 98 O.R. (3d) 523 (Div. Ct.), at paras. 21-5, 28-30.
(14) The accommodation duty is dynamic, not static. Further, “[t]he duty to accommodate is not temporary” (Riverdale Hospital, at para. 43), but rather continues “[t]hroughout the employment relationship” (McGill, at para. 22) – “such duty is on-going and is not extinguished by the fact the employee is being accommodated in another position”: National Automobile, Aerospace, Transportation, and General Workers Union of Canada (C.A.W.), Local 1941 v. Siemens VDO Automotive Inc. (Young Grievance), [2006] 154 L.A.C. (4th) 372, at para. 33. See also: Riverdale Hospital, at para. 43 (an employer cannot lose sight “of its continuing duty to accommodate” a grievor “by looking for other available duties within her [or his] range of ability”); Toronto District Schools Board v. CUPE, Local 4400, at p. 5 (“the Code is paramount and its duties ongoing”); Cloverdale Paint Inc. v. Teamsters Local Union No. 21, [2006] B.C.C.A.A.A. No. 29, at paras. 33, 36 (“The employer’s duty includes an ongoing obligation to reassess options as circumstances change for the employee or in the workplace”; “It is an ongoing shared process during which an attempted arrangement must be monitored, adjusted and, if necessary, replaced. It is not a single event single effort”).
(15) Given the individualized nature of the accommodation process, it may be asked whether the attempt at reasonable accommodation was “responsive to the applicant’s condition” (Guibord, at para. 42), as “the scope of the duty to accommodate varies” according to all relevant factors including “the specific needs of the employee”: McGill, at para. 22.
The Review in this Case
[66] In light of the Applicant’s acceptance of the Arbitrator’s findings of fact, and acknowledgment that accommodative scheduling of the grievor to ride third in an ambulance from mid-December 2010, into early 2011, would not have occasioned undue hardship to the employer, the narrowed focus of this review is whether the Arbitrator reasonably concluded that the employer breached its duty under the Code to accommodate by failing to extend this assignment to the grievor.
[67] Put differently, was it reasonable for the Arbitrator to conclude that the reasonable accommodation extended to the grievor up to mid-December was no longer reasonable thereby triggering an obligation on the Applicant to modify the existing accommodation, for example to a riding-third work assignment?
[68] The Applicant submitted that the grievor was at all times assigned dignified, meaningful work with no risk of harm to anyone. Because this amounted to reasonable accommodation, the employer was under no obligation “to make changes to an accommodation which is itself reasonable and appropriate” and which might present safety risks. Mr. Contini submitted that an employer is not required to satisfy the undue hardship threshold “twice” respecting accommodation of a disabled employee during a single period of subsisting disability.
[69] The Respondent submitted that principled and reasonable accommodation contemplates work which, by its very nature, is modified work of the pre-disability position – often, an accommodation through reduced number of duties. As accommodation is not a static concept, changed circumstances of an employee’s degree of disability trigger a need for the employer to “re-engage” or review afresh whether existing accommodation remains reasonable. Mr. Wright submitted that the Arbitrator reasonably concluded that the employer failed to do so when, in the absence of a sustainable undue hardship rationale, it applied a general policy to deny reasonable accommodation within the changed context of an individual employee.
[70] I agree with Molloy J. that a fair reading of the whole of the Arbitrator’s reasons does not support the view that the adjudicator considered the initial accommodation of the grievor to be reasonable throughout the period of disability. The Arbitrator reasonably concluded that the initial accommodation, though reasonably responsive to the then-existing circumstances of the injured employee, ceased to be reasonable, non-discriminatory treatment by the employer in mid-December 2010.
[71] The Applicant’s characterization of the union’s position, and in turn the Arbitrator’s approach, as placing an obligation upon an employer to accommodate a disabled employee’s expression of his or her preferred work assignment where undue hardship would not be occasioned, while convenient labelling, misses the mark. Open dialogue by an employee in the workplace, together with updated medical information relating to the particulars of his injury recovery, should not be confused with an inflexible demand for one’s own choice of accommodated work or placement in a pre-disability position.
[72] The Arbitrator reasonably concluded that Art. 2.02 of the Collective Agreement expressed the parties’ mutual agreement that within the context of the employer’s managerial right to schedule and deploy its workforce, riding third in an ambulance was appropriate accommodation specifically recognized by the parties for a disabled paramedic where such an assignment would not otherwise constitute undue hardship for the employee or the ambulance service. It was not, of course, a given that such an assignment could be made. Appropriate medical documentation from the disabled paramedic would be required, and the employer’s service could not be substantially, negatively impacted by the assignment. Such documentation was submitted by the grievor.
[73] It was not disputed that by mid-December 2010, the grievor’s disability had changed. With right foot and left hand injuries healed, the sole limitation of the improving left shoulder injury was a restriction on lift-weight. The grievor, qualified to ride third in an ambulance, was capable of fulfilling 90 to 95% of the job performance requirements of a paramedic.
[74] The dignity associated with a worker’s return to his or her pre-disability position, or to one closely related, is obvious. Re-integration is directly linked to human dignity and self-worth. The employee derives satisfaction of undertaking the familiar and stimulating work which he or she is confident to perform and for which the employee trained, sometimes for years. The reward of direct service to the public, renewal of workplace friendships and team-related endeavours may also be fostered.
[75] In the present case, as disclosed by Mr. Longeway’s testimony at the hearing, the employer recognized that riding third in an ambulance “more closely aligned with the grievor’s regular duties than performing supervisory duties” at the ambulance base. This is hardly surprising given the specialized skill-set of an ACP exercisable at the scene of an ambulance call compared to performance of the 10 to 15% of paramedic duties, essentially unskilled ones, of cleaning ambulances and sweeping.
[76] The evidence at the arbitration hearing established an inflexible general policy on the part of the Applicant that a disabled paramedic would not be extended the accommodation of riding third in an ambulance, assisting a two-paramedic team capable of performing any patient-lifts, until he or she was medically cleared “100% to return to regular duties” with no restrictions. This non-accommodating standard, based on asserted health and safety concerns, was determined by the Arbitrator to be antithetical to the individualized assessment of accommodation options responsive to the grievor’s specific condition and circumstances in December 2010, and not founded on evidence reasonably capable of supporting intolerable risk to the grievor or to others. These findings of fact are reasonably supported by the record and entirely in accord with the human rights principles applicable in an employment context above-described.
[77] The employer’s policy, and the submissions of the Applicant before the arbitrator and in this review, amount to an unreasonable denial of the progressive and dynamic process of accommodation required by the Code in circumstances of temporary disablement by workplace injury. The initial post-accident accommodation of the grievor of restriction to supervisory office duties was reasonable. Thereafter, in light of injury improvement, and by way of response of reasonable accommodation, the employer did modify the grievor’s duties to include 10 to 15% of a paramedic’s duties to be performed at base. However, that ended the individualized and progressive accommodation afforded the grievor as, in December, the employer discriminatorily and without justification, on account of his left shoulder disability, shut the grievor out of the substance of the meaningful work of an ACP for which his injury recovery had again made him substantially capable, thereby denying the accommodation to which he was entitled by the Code and as contemplated by Art. 2.02 of the Collective Agreement.
[78] Without doubt, the realities of the workplace often do not allow an employer to instantly modify accommodation once considered reasonable, to become responsive to the context of an injured employee’s materially improved condition. That said, this Court cannot justifiably find the Arbitrator’s conclusion on the facts as he found them, of a failure to provide reasonable accommodation, to be unreasonable.
[79] The Applicant’s resistance was unreasonably founded on an inflexible policy itself not grounded in objective evidence. The grievor’s exclusion on disability from employment as an ACP riding third in an ambulance was, in the circumstances, unnecessary to the accomplishment of any substantiated and legitimate work-related purpose and unreasonably denied the grievor the benefit of individualized assessment in the accommodation process. Further, to the extent that the Arbitrator’s reasons, at least implicitly, reject a “once reasonable, always reasonable” notion of accommodation, that approach too was reasonable and well-founded on the evidence and consistent with application of the Code.
[80] In my view, a holistic reading of the Arbitrator’s reasons confirms that he expressly concluded that the employer’s conduct violated the Code and therefore the legal requirements for the employment agreement between the parties. He reasonably did so within the context of all of the evidence before him including the negotiated provision of Art. 2.02 of the Collective Agreement.
HILL J.
Released: September 16, 2013
CITATION: County of Brant v. OPSEU, 2013 ONSC 1955
DIVISIONAL COURT FILE NO.: 285/12
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HILL, MOLLOY and HERMAN JJ.
BETWEEN:
THE CORPORATION OF THE COUNTY OF BRANT
Applicant
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 256
Respondent
REASONS FOR JUDGMENT
HERMAN J.
HILL J.
MOLLOY J.
Released: September 17, 2013
[^1]: Reasons of the Arbitrator, p. 25 [^2]: Ibid, pp. 25-26 [^3]: Ibid, p. 28 [^4]: Ibid, p. 29 [^5]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 47-49, 54-55 and 68. [^6]: I make no finding as to whether the employer might also have a discretion to refuse such accommodation based on legitimate managerial needs that did not violate the Ontario Human Rights Code. In this case, the justification advanced by the employer was undue hardship, which was ruled to be unfounded on the evidence, and the Arbitrator’s finding is limited to those circumstances. [^7]: Reasons of the Arbitrator, p. 26-27, citing Re Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 para. 23 and Re Bowater Canadian Forest Products Inc. v. Industrial Wood and Allied Workers, Local 1880, [2003] O.L.A.A. No. 597 (Surdykowski) at para. 42.