Fatima Pani v. The Crown in Right of Ontario, 2011 CanLII 49518

P-2009-2280, P-2011-0247

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Fatima Pani

Complainant

• and -

The Crown in Right of Ontario (Ministry of Attorney General and Ministry of Government Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Gavin Leeb Counsel

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Counsel

HEARING

May 30, 2011.

Decision

1This decision deals with an issue concerning accommodation of a disability which the parties have put before the Board for an interim ruling. Ms. Fatima Pani has filed complaints with the Board contesting several aspects of the employer’s treatment of her absence due to illness and claiming various remedies. A hearing on the merits has not yet taken place, but in the interim, the employer has proposed a return-to-work plan. The issue on which the parties have sought a ruling is whether the employer should be directed to facilitate and pay for a review of its proposed return to work plan by a physician to ensure that it meets the complainant’s restrictions as she requests. The employer’s position is that it is not part of the duty to accommodate to initiate and pay for medical approval of a return-to-work plan it considers to be in accordance with the medical restrictions provided by the complainant’s doctor.

2Counsel for the grievor maintains that the employer should facilitate an appointment with a physician who, at the request of the employer, performed an Independent Medical Examination (IME) of the grievor in 2010. What is sought is a joint request from the employer and the complainant to answer the question as to whether the proposed return-to-work assignment meets her restrictions or not.

Factual/procedural background

3The complainant originally proposed a conference call to deal with the issue now before me, but the employer wished an in-person hearing, which was held. Both sides wished to argue the question on asserted facts and documents rather than delaying the matter further by scheduling further hearing dates to call viva voce evidence. I have assumed the asserted facts true for the purposes of this motion. It is important to make clear that doing so does not amount to a finding of fact on the Board’s part. If the matter proceeds to hearing, the facts will be determined from evidence then before the Board, and could be different from those relied on here.

4Ms. Pani, the complainant, has been off on sick leave for an extended period of time. It is not currently disputed that she suffers from a disability, or that the employer owes her a duty to accommodate that disability. The complainant’s treating specialist has provided reports to the employer, most recently on February 24, 2011, in which he answered questions from the employer in regards to her ability to return to work. The restrictions set out in that report included a change of location and reporting arrangements. On April 13, 2011, the employer confirmed an offer to return to work in an assignment which it maintains responded appropriately to her medical restrictions. The complainant does not feel that the currently proposed return to work plan is sufficiently responsive to her restrictions, and has made the employer aware of this. The employer afforded her time to check the matter with her treating specialist, but without pay. In the interim, however, the complainant’s specialist had retired from practice, and was no longer available to review the proposal. The complainant sought and obtained a referral to a new specialist, but the first appointment available is not until the end of July. The complainant and her counsel turned to the employer to re-contact the doctor who performed the IME at the employer’s request, who was familiar with her case, and it was thought could provide the review in a shorter time frame, thus facilitating the complainant’s earlier return to work.

5Employer counsel indicated she had been told that the only thing that the doctor could do would be a full Independent Medical Examination, not a review of a return-to-work plan, perhaps because of contractual arrangements with him.

Arguments and Conclusions

6The employer argues that the duty to accommodate does not include the obligation to initiate and pay for a medical review of its return-to-work proposal. It is the employer’s position that the analysis of whether facilitating a review of the return-to-work proposal amounts to undue hardship would be premature, since it is not required by the duty to accommodate to do so. Further, counsel argues that the case law stands for the proposition that medical information must come from the employee, not the employer. In the alternative, if I were to find that the duty to accommodate includes the complainant’s request, the employer does not argue that it would amount to undue hardship to do as the complainant requests.

7Employer counsel relies on the following case law: OPSEU (Balog) and Ministry of Community, Family and Children’s Services, (April 21, 2004) GSB # 1998-1972, et al., [2004] O.G.S.B.A. No. 73, Guibord and Treasury Board (Transport Canada), (December 8, 1995) PSSRB # 166-2-25249, [1995] C. P. S.S.R.B. No. 114, application for judicial review dismissed by the Federal Court of Canada – Trial division on November 22, 1996, reported at 1996 CanLII 3880 (FC), [1996] F.C. J. No. 1534, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (S. C. C.); Sault Area Hospitals v. Service Employees International Union, Local 268 (Ainslie grievance), (2001), 2001 CanLII 62080 (ON LA), 96 L.A.C. (4th)168; OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, (January 18, 2010) GSB # 2002—2375, [2010] O.G.S.B.A. No. 18.

8Counsel for the employer acknowledges it is part of the duty to accommodate to offer a return to work plan consistent with the employee’s restrictions, but asserts that the duty does not include an obligation to pay to confirm restrictions it feels it has accommodated. The employer relies on the Balog decision cited above, for the proposition that the employer does not have to consult the employee prior to making an assignment to accommodate the employee. The employer considers that it has been more than reasonable in allowing the complainant time to have the matter reviewed on her own, rather than forcing her to come back to the proposed assignment.

9Counsel for the complainant underlines that the duty to accommodate is a matter of human rights and fundamental respect for the value of the individual, a significant duty designed to go as far as possible to allow people to experience the dignity of work and to be able to provide for themselves and their family. Counsel emphasizes that the objective is to get Ms. Pani back to work as soon as possible. He notes that in April the employer seemed to be willing to assist in the way proposed, but that the position has now changed. Counsel for the complainant submits that the employer should be required to ensure that the return-to-work plan is appropriate. Given that the duty to accommodate is a multiparty effort and it is relatively easier for one party, the large employer, and very hard for the other, an employee not covered by a collective agreement, who is off without pay, the reasonable balance is for the employer to proceed to facilitate the necessary review. Counsel submits that this is consistent with the holding of the Supreme Court of Canada in cases such as Central Alberta Dairy Pool, cited below, that the size of the employer is one of the factors to be weighed in deciding what amounts to undue hardship. Complainant’s counsel submits that it is not reasonable, given how little is required from the employer, for the complainant to have to risk her health on the employer’s say-so alone, without a medical review of its proposal. It is not reasonable, in counsel’s submission, to put the whole onus on a person who has been under the care of a specialist and has already obtained a return-to-work authorization, although one he described as guarded. Counsel for the complainant notes that the contractual issues concerning the physician who performed the IME were raised by employer counsel for the first time at the hearing, and so he was not in a position to have explored them to see if they could be resolved.

10Counsel for the complainant relies on the following case law: Central Okanagan School District No. 23 v. Renaud, 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489; 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577; (S. C. C.); Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1992] 2 S.C.R. 970 (S. C. C.); British Columbia (Superintendent of Motor Vehicles v. British Columbia (Council of Human Rights), [1992] 2 S.C.R. 970 (S. C. C.); Ahkwesahsne Police Assn. v. Mohawk Council of Akwesasne (White grievance), (2003), 2003 CanLII 89493 (CA LA), 122 L.A.C. (4th)161.

11As the parties both acknowledge, the content of the duty to accommodate varies according to the facts. Employer counsel relies on attempts to formulate guidelines or principles in the cases cited above, particularly references in the case law to the employee’s obligation to provide medical evidence as the answer to the question posed. It is generally true, as counsel argues, that the medical evidence usually flows from the employee, unless the employer disputes it, in which case employers may ask for, and facilitate an independent review, as the employer did at an earlier stage of this case. But I do not agree with the employer’s submission that the case law is clear that the onus is otherwise always on the employee to provide medical evidence and pay for it.

12The context in which this request is raised is very specific, and has not been dealt with in the cases cited. The complainant provided medical evidence from her treating specialist, who made very specific recommendations as to a carefully coordinated graduated return-to-work process. The employer has responded with a return-to-work proposal, which the complainant does not agree meets the restrictions, and which her counsel suggests might represent facial compliance but not really be accepting of the restrictions. The doctor who authored them is no longer available to provide clarification. Although the employer’s proposal creates formal reporting and work location assignments which they assert meet the restrictions, the complainant has raised concerns as to whether the proposal is actually effective or bears too much risk of triggering a relapse because of the elements it does not address. Employer counsel did not argue that the concerns were frivolous.

13Having carefully reviewed the case law, it is my view that no general principle can be derived to the effect that the employer’s duty to accommodate does not include a duty to ensure that its return to work plan is medically viable, in the presence of reasonable questions in that regard. Although I agree that the complainant must cooperate in facilitating a return to work, I do not subscribe to the notion that the employer's duty to accommodate pauses once it has put forward a return-to-work proposal, until the grievor either returns to work or provides further medical evidence. It is an ongoing duty.

14Both counsel referred to the decision of the Supreme Court of Canada in Renaud, cited above, and in particular to the following passage at 95 D.L.R. (4th) at page 593. In discussing what the complainant must do in order to facilitate accommodation, the Court said as follows:

a. To facilitate the search for accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled, the conduct of the complainant must be considered.

b. This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation… The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

15The employer focuses on its view that its return-to-work plan is a reasonable response to the grievor’s restrictions, while the complainant says that the very issue is whether the proposal, in the words of the Court in the quote just above, “is reasonable and would, if implemented, fulfill the duty to accommodate...” The employee has raised the concern that the proposal would not meet the restrictions and could endanger her still fragile recovery. In my view, addressing these concerns is part of the ongoing mutual duty to facilitate the accommodation of the grievor's disability. The narrow question before me is whether the manner of addressing those concerns proposed by the complainant is part of that duty. The question for the Board at the moment is not whether the proposed return-to-work assignment meets the complainant’s medical restrictions.

16Although it is not necessary to engage in the undue hardship analysis, as the employer did not argue that pursuing the requested medical review represented undue hardship, it is relevant to the question before me to note, as does the Ranger decision cited above, referred to by employer counsel on another point, that s. 17 (2) of the Ontario Human Rights Code specifically names certain factors as relevant to whether accommodation is viable short of undue hardship, i.e. cost, outside sources of funding, if any, and health and safety requirements. Although the parties did not specifically address the latter, I note that the general health and safety requirements set out in s. 25 of the Occupational Health and Safety Act include the employer’s obligation to take every precaution reasonable in the circumstances to protect the worker. And counsel for the employer did not dispute the relevance of the factors set out in Central Alberta Dairy Pool, such as the size of the employer.

17To return to the basic situation, the employer has proposed a plan for returning the grievor to work, which it acknowledges is part of its duty to accommodate. The employee has raised concerns, which are not argued to be frivolous or unreasonable, and proposed a method to resolve them. It was not argued that the proposal to contact and pay for a review by the doctor who did the IME was unreasonable. Nor was it disputed that such an opinion might serve to allay or confirm the concerns raised by the complainant, or that the doctor in question might be in a good position to provide the opinion as he had the advantage of an earlier examination of the complainant and review of the case, whereas any other specialist reviewer will be seeing the complainant for the first time. There were statements made by employer counsel about what she had been told about contractual arrangements with the physician who performed the earlier IME, but it was not suggested that the employer had approached him with a proposal to facilitate the grievor’s return to work by asking for an opinion, or that another IME was inappropriate for the intended purpose of resolving the issue here. The issue of whether it was faster to go that route than others is not possible to determine on the facts asserted before me.

18The employer relies on remarks made in the Sault Area Hospitals case, cited above, to the effect that the restrictions which should govern are those which are identified as medically necessary, so that the employer is entitled to be satisfied that the restriction has some medically recognized basis. Here there is medical evidence about restrictions, but the parties do not agree on the interpretation of that evidence, as to whether the proposal is consistent with the restrictions provided. This is not the same situation as in the Sault Area Hospitals case as the Board of Arbitration there found that at all relevant times the offered work was consistent with the grievor's reported medical restrictions. Here, there has been no similar finding. The dispute over that issue has instead generated the request for a medical review of the return-to-work proposal.

19The employer refers to the Balog case, cited above, for the proposition that it is not required to consult with the employee prior to proposing an accommodation solution. While this may be so, it does not resolve the problem here which is a squarely raised dispute as to whether or not the proposal meets the medical restrictions already provided to the employer. As to Guibord and Treasury Board, also relied on by the employer, where it was found there was no reasonable explanation for the grievor’s hesitancy to accept the accommodation, that is not the factual situation before me. Moreover, in that case, it was found that the employer’s proposed solution was responsive to the grievor’s condition and that if she had had reason to believe, at the relevant time, that exposure to the new work location proposed would not only be of no assistance, but would actually be detrimental to her condition, she had a duty to let that be known. In my view that is the situation before me, as the complainant has pointed out her view that the restrictions provided by her physician are not met by the proposal. As noted above, I am of the view that it is part of the duty to accommodate for the employer to address those concerns. With the cooperation of the employee, it needs to ensure that its proposed work assignment meets the employee’s restrictions.

20Having reviewed the request and the facts that are before me, I find that the complainant’s proposal is a reasonable one, that would likely address the concerns raised as to whether the employer’s return-to-work plan actually meets the restrictions her former specialist has provided to the employer. It may not be the only reasonable method to ensure that the proposed accommodation is safe in the circumstances, but it is certainly a reasonable proposal and precaution to protect both the worker and the employer. The employer is directed to either engage in the proposed facilitation of the review by the physician who did the IME or, if that is actually not feasible despite the best efforts of the employer, to take other measures to ensure that the proposed assignment actually meets the complainant’s restrictions. If the current proposal does not meet those restrictions, it will have the continuing duty to take other measures to accommodate the complainant’s disability in facilitating a return to work as soon as possible. Whether the employer’s conduct is reasonable and meets the duty to accommodate in all the circumstances, and what remedy should flow if it is determined otherwise, are questions that are not before me at this juncture, but may be determined if necessary.

21In sum then, the answer to the question before me is that, in the circumstances of this case, it is part of the employer’s duty to accommodate to take reasonable steps to ensure that a return-to-work plan meets the complainant’s restrictions, especially in the face of medical evidence already supplied, and the questions raised by the grievor, as to whether it is likely to be harmful to her in its current form. The solution proposed by the complainant is a reasonable measure to this end, although likely not the only one. As the employer did not argue that the proposal that the employer pay for the review even approached undue hardship, I find that it does not. It is hoped that the parties’ mutual cooperation will resolve any further issues in respect of the genuine issue as to whether the current proposal meets the grievor's restrictions. Nonetheless, the Board remains seized to deal with the implementation of the above decision as necessary.