ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVIAN SCURIC Plaintiff
– and –
TORONTO TRANSIT COMMISSION Defendant
COUNSEL:
Daria M. Bona and Nadia Condotta, for the Plaintiffs
Giuseppe Agostino, for the Defendant
HEARD: March 30-31, April 1-2, 7, 9-10, May 1, 2026
REASONS FOR JUDGMENT
MATHEN, J.
OVERVIEW
1For 17 years, Davian Scuric was, first, a lineman and then, a foreperson for the Toronto Transit Commission (“TTC”). In December 2021, he filed a Statement of Claim for damages and backpay, claiming that he had been constructively dismissed earlier that fall.
2At issue between the parties is a mandatory masking policy TTC adopted during the COVID-19 pandemic. The parties dispute whether TTC accommodated Mr. Scuric’s request for an exemption from that policy. During the same period, the parties had some discussions about TTC’s mandatory vaccine policy, but that issue was not set down for trial. Consequently, the COVID-19 vaccine is only briefly discussed in these reasons.
3Mr. Scuric says he does not object to wearing masks per se. Rather, he has a condition – a migraine disorder – that creates mask intolerance. He argues that:
a. TTC failed in its duty to accommodate his condition;
b. TTC cannot show that accommodating him would have created undue hardship;
c. TTC’s failure to accommodate him amounts to constructive dismissal; and, accordingly,
d. TTC owes him backpay for the period he was placed on unpaid leave (Sept 12 – Dec 16, 2021); and reasonable notice of 14 months and 3 weeks, up to the time he secured alternative employment.
4TTC argues that Mr. Scuric has never provided sufficient evidence of a link between his migraine disorder – a disability that it acknowledges – and the ill effects he claims to have suffered from wearing a mask during his shifts. TTC argues that there is no evidence that having a migraine disorder is linked to mask intolerance.
5TTC argues, further, that:
a. Mr. Scuric terminated his employment while discussions with the employer were underway. Therefore, the TTC cannot be found to have failed to accommodate him, since the process was not finished.
b. In the alternative, Mr. Scuric was dismissed for cause, as he abandoned his job without leave for some months.
c. In the further alternative, the COVID-19 pandemic was an unanticipated event leading to frustration, such that the TTC cannot be found liable for any damages.
6Therefore, this trial raised the following issues:
a. Was Mr. Scuric discriminated against on the basis of disability? In particular:
i. At the relevant time(s), did Mr. Scuric have a disability requiring TTC to accommodate him in relation to wearing a mask?
ii. If Mr. Scuric did have that disability, did TTC meet its duty to accommodate him?
b. Was Mr. Scuric constructively dismissed? Alternatively, was there frustration and/or repudiation?
c. Is Mr. Scuric entitled to damages?
7In brief, Mr. Scuric’s claim is dismissed. He has not proven his claim of discrimination. While Mr. Scuric’s migraine disorder is a disability, I am not persuaded that it required accommodation with respect to TTC’s mandatory mask policy. As a result, TTC did not have any duty to accommodate Mr. Scuric, and Mr. Scuric was not constructively dismissed. Among other things, his refusal to return to work repudiated his employment agreement. It is not necessary to consider frustration. Mr. Scuric is owed no damages other than back pay for the week of September 12, 2021, when TTC agreed to code him as sick. The parties may make submissions on costs.
AGREED FACTS AND HISTORY
8The following information is drawn from the parties’ statement of agreed facts and some additional findings I have made on a balance of probabilities. More extensive findings are contained in the analysis section.
The Defendant
9TTC is a statutory body that operates and maintains a local passenger transportation system within and around the City of Toronto in accordance with the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.
10TTC operates a conventional transit system consisting of bus, streetcar, subway and light rail transit (“RT”) services, as well as Wheel-Trans, a specialized door-to-door service for persons with disabilities.
11TTC also operates repair, maintenance, and stores facilities to maintain its vehicles, tracks, and other TTC premises, infrastructure and equipment in a state of good repair.
12At the relevant time, TTC had approximately 16,000 employees.
Plaintiff’s employment history
13Mr. Scuric began working for TTC in December 2004.
14At the relevant time, Mr. Scuric held the position of Foreperson, Overhead in TTC’s Streetcar Infrastructure Department. Having reviewed the evidence, I am satisfied that his duties included:
a. supervising unionized overhead electrical workers/linepersons working on TTC streetcar power infrastructure;
b. typically, supervising about 10–12 employees;
c. working both on job sites and in TTC facilities; and
d. performing some administrative functions.
15Mr. Scuric’s remuneration included:
a. a base salary of $118,934.40;
b. participation in TTC’s standard benefits package, including health, dental and pension benefits; and
c. four weeks vacation.
16Mr. Scuric’s income was $131,573 in 2020; $125,349 in 2019; and $119,393 in 2018.
17During the COVID-19 pandemic, Mr. Scuric’s position was designated as essential. His work week consisted of four ten-hour day shifts.
Relevant COVID-19 Protocols
18During the pandemic, the TTC was deemed an essential service.
19Beginning in or after March 2020, TTC implemented several COVID-19 protocols including:
a. active screening of employees;
b. a COVID-19 vaccination policy;
c. requiring employees to self-isolate in certain circumstances;
d. making hand-washing facilities available;
e. physical distancing;
f. providing medical grade masks as Personal Protective Equipment (“PPE”); and
g. requiring all members of the public to wear a mask or face covering when using public transit or when on TTC property.
Mask mandate during the relevant period
20On or about July 2, 2020, TTC implemented a mandatory mask policy that, among other things, required employees to wear a mask when: travelling in a TTC station before descending to track level; working in the station without physical barriers; and/or working within 6 feet of customers and/or other employees.
21On or about July 7, 2020, the City of Toronto enacted By-Law 541-2020 (the “By-Law”), which mandated wearing a mask or face covering in indoor public spaces.
22On July 13, 2020, TTC published a Safety Notice about how the By-Law applied in TTC’s workplace.
23Between approximately September 17, 2020, and November 18, 2021, TTC enforced some version of a rule that made masks or face coverings mandatory in all shared TTC spaces, both indoors and outdoors.
24On or about November 18, 2021, TTC announced that masks need no longer be worn outdoors on TTC properties, if physical distance could be always maintained.
25The mandatory mask policy continued to apply in the workplace during the relevant period.
26Having reviewed the evidence and testimony, I am satisfied that Mr. Scuric was required to wear a disposable surgical and/or medical face mask that was not fitted to a person beforehand. He was not required to wear an N-95 mask. I am satisfied that TTC was open to employees wearing different kinds of masks, so long as the masks were approved by the Corporate Safety department.
27At all relevant times, TTC employees could seek an accommodation from any policy based on a protected ground under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
28At all relevant times, Mr. Scuric knew that it was his responsibility to comply with the mask policy and that he was entitled to seek accommodation under the Code.
29Mr. Scuric agrees that TTC’s Mandatory Mask Policy was reasonable and lawful, and that TTC’s unilateral decision to implement it during the COVID-19 Pandemic was not a substantial change to, and did not breach, his employment contract.
TTC’s Rules and Regulations
30When he started working with TTC on or about December 5, 2004, Mr. Scuric signed TTC’s Conditions of Employment, which state that, among other things:
a. The employee agrees to familiarize himself with and obey the TTC’s rules, regulations, corporate policies and instruction.
b. The employee agrees to conform to all working conditions that may be in effect.
c. The employee acknowledges that failure to comply with the stated “duties, responsibilities and conditions may result in disciplinary action … up to and including dismissal”.
31At all relevant times, Mr. Scuric was aware of TTC’s Conditions of Employment Policy and understood that the policy operated in conjunction with applicable legal obligations, including the duty to accommodate.
Events in the workplace
32The Occupational Health and Employee Wellbeing Section (“OHEW”) of the TTC’s Human Resources Department is responsible for reviewing medical information relating to applications for sick benefits, requests for accommodation and fitness for duty.
33On or about February 17, 2021, Mr. Scuric sent a completed questionnaire and neurologist report to OHEW in support of a request that he not be scheduled for night shifts. TTC’s in-house medical consultant, Dr. Alain Sotto, agreed with the restriction. On May 19, 2021, TTC granted Mr. Scuric a permanent medical restriction of “no night shifts”.
34On or about May 18, 2021, Mr. Scuric sent TTC an email expressing several concerns about masks including that:
a. “mask use during outdoor work could be exposing employees to a larger hazard of bacterial build up on the mask/face covering during their daily work hours”;
b. “several scientific studies” indicate that mask use can cause bacterial infections in the lungs leading to “serious life-threatening conditions”; and
c. separate studies “indicate that once a surgical mask is worn for a maximum of [two hours], there is significant bacteria build up in the mask which should immediately be discarded.”
35On or about September 13, 2021, Mr. Scuric advised TTC that he was unable to tolerate prolonged mask use due to a medical condition and required accommodation. On September 20, 2021, a TTC Disability Management Specialist, Rosemarie Richardson, sent an email enclosing a medical questionnaire to Mr. Scuric, requesting information from his medical care provider about the accommodation request.
36On or about September 28, 2021, Mr. Scuric’s family medical doctor, Dr. Fady Akladios, provided responses to the medical questionnaire.
37On or about September 30, 2021, after reviewing the medical information provided by Dr. Akladios, Dr. Sotto advised TTC: “There are no known mask exemptions for the medical [sic] that [Mr. Scuric] describes. He should consult with the Safety dept. as to the most comfortable mask options for him.”
38On or about October 5, 2021, Ms. Richardson advised Mr. Scuric by email that his accommodation request was denied.
39After September 13, 2021, Mr. Scuric never returned to the workplace.
40On several occasions between September 13 and November 19, 2021, Mr. Scuric’s Manager, Peter Girimonte, spoke to Mr. Scuric by telephone, and/or communicated with him in writing and/or by text. The communications were about (a) Mr. Scuric’s request for accommodation, and (b) his ongoing absence from the workplace.
41On or about Monday, November 15, 2021, Mr. Girimonte delivered a letter to Mr. Scuric directing him to attend a meeting at TTC Streetcar Infrastructure/Overhead Operations located at 391 Alliance Avenue, Toronto. The letter cited Mr. Scuric’s “unsupported and now unapproved absence from September 14”.
42On or about Thursday, November 18, 2021, Mr. Scuric had a conference call with Mr. Girimonte and Laura Myers, Employee Relations Consultant in TTC’s Human Resources Department. The call was about his continued unauthorized absence.
43Sometime between November 29 and December 1, 2021, Ms. Richardson discussed the accommodation request with her Supervisor, Ahmed Abdi, via email.
44On or about Friday, December 10, 2021, by email and voicemail, Ms. Richardson asked that Mr. Scuric provide the following documentation no later than December 24, 2021:
a. Copies of medical reports from Mr. Scuric’s specialist(s);
b. Specialist consultation reports, including initial and second opinion from the specialist;
c. Clinical results (e.g. X-ray, Ultrasound, CT, MRI results, systems review, physical examination results);
d. Patient progress reports; and
e. Treatment plans(s).
The end of the plaintiff’s employment with TTC
45Mr. Scuric served TTC with his Statement of Claim alleging constructive dismissal on or about December 16, 2021.
46Mr. Scuric obtained new employment as of February 6, 2023.
ANALYSIS
47In addition to the above section, the following analysis contains my findings of fact.
Credibility and Trial Witnesses
48Credibility is a primary vehicle for determining the truth of alleged facts. Assessing credibility is not an exact science: Konstan v. Berkovits, 2023 ONSC 497, at para. 11, citing R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
49Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46.
50Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Berkovits, at para. 9.
51Courts assess credibility based on the totality of the evidence, as well as common sense and reason: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 58. A judge may accept some, none, or all of a witness’ evidence, and can attach different weight to different parts. In civil cases where there is conflicting testimony, as long as the judge does not ignore evidence, “finding the evidence of one party credible may well be conclusive of the issue because that evidence is inconsistent with that of the other party”: McDougall, at para. 86.
52Credibility differs from reliability. Credibility has to do with whether someone is honest, while reliability concerns whether their testimony is accurate: R. v. Sanichar, 2012 ONCA 117, 92 C.R. (6th) 303, at para. 69, per Laskin J.A. (dissenting), cited with approval in 2013 SCC 4, [2013] 1 S.C.R. 54, at paras. 1, 19. One may find a witness credible yet doubt their reliability. Conversely, a witness who is not credible may still offer reliable testimony.
53This trial featured the following witnesses:
a. Mr. Scuric
b. Mr. Scuric’s primary family doctor
c. TTC’s in-house medical consultant
d. TTC’s expert
e. TTC’s Occupational Health and Employee Wellbeing representative
f. Mr. Scuric’s manager at TTC
Davian Scuric
54I will have more to say about Mr. Scuric’s testimony throughout these reasons. Briefly, I am persuaded that Mr. Scuric generally tried to be honest. However, I do not find him reliable. Mr. Scuric appears to have an inflexible mindset. For example, he fixated on his doctor’s initial agreement with his request for a mask exemption and was totally resistant to the suggestion that the resulting medical note may have been insufficient for the exemption. Furthermore, I find that Mr. Scuric misstated the evidence from his medical specialists in relation to whether he could wear a mask. I find it likely that, at the relevant time(s), Mr. Scuric was skeptical about aspects of COVID-19 safety protocols, which may have influenced his insistence that he could not tolerate wearing a mask. I accept that Mr. Scuric intensely dislikes wearing masks. But, on the record before the court, I am not persuaded that his dislike springs from anything other than a strong personal reaction, as opposed to a medical condition that qualifies as a protected ground under the Code.
Dr. Fady Akladios
55Fady Akladios is Mr. Scuric’s family physician. He authored medical notes for TTC that Mr. Scuric could not tolerate wearing a mask and required accommodation. Although not at issue in this trial, Dr. Akladios also authored a note that Mr. Scuric required an extension to any deadline to receive his second dose of the COVID-19 vaccine. Dr. Akladios wrote an earlier note leading TTC to grant Mr. Scuric a permanent restriction for night shift duties.
56What emerged at trial is that Dr. Akladios no longer stands by certain information he provided to the TTC in relation to the mask exemption.
57On August 19, 2021, Dr. Akladios wrote the following note for Mr. Scuric:
Davian is unable to tolerate a facemask. He needs his work duties changed to allow him to work from home.
58That is the first time Dr. Akladios addressed the mask exemption, and he recommended that Mr. Scuric work from home.
59Dr. Akladios testified about his clinical notes prepared between October 14, 2020, and February 8, 2023. He confirmed that, due to pandemic restrictions, all of his meetings with Mr. Scuric were over the phone. Dr. Akladios had seen Mr. Scuric in person prior to the pandemic, but those notes are not in evidence.
60Dr. Akladios believes that Mr. Scuric suffers from face mask intolerance – something the doctor acknowledges is not a known medical diagnosis. Nevertheless, the doctor believed Mr. Scuric’s reports that he could not wear a mask for prolonged periods of time without coughing. Dr. Akladios says he did not perform a literature search because the intolerance was as described by his patient and, therefore, subjective. Dr. Akladios says he could not do direct testing for the intolerance, as that would require observing Mr. Scuric wearing a mask for at least twenty minutes – which was either impossible, given COVID-19 restrictions, or impractical.
61Dr. Akladios accepted as true the symptoms Mr. Scuric described to him.
62Dr. Akladios filled out a TTC questionnaire on September 24, 2021. The questionnaire sought relevant information related to Mr. Scuric’s ability or inability to “wear mask protection/PPE through the duration of a shift”. Dr. Akladios filled out the form based on his notes. He did not examine Mr. Scuric prior to filling out the form, nor did he fill out the form with Mr. Scuric.
63Question 1 of the questionnaire has two sub questions:
a. What, if any, are the disabling findings/medical conditions precluding your patient from wearing mask protection/PPE through the duration of a shift?
Dr. Akladios wrote “intolerant of masks, experiences dyspnea, headaches, palpitations with prolonged use”.
b. What is the severity and extent of your patient’s condition or resultant symptoms/impairment?
Dr. Akladios checked off “severe”. He wrote “dyspnea, headaches, palpitations. Unable to tolerate mask for longer than 10-20 minutes at a time”.
64Question 2 asks whether the patient has “any relevant medical history or related secondary/pre-existing condition(s)/complication that precedes the COVID-19 pandemic?” Dr. Akladios ticked “Yes” and wrote “history of migraine disorder” that had been “worsening recently”.
65Dr. Akladios wrote that the “disabling findings/medical condition precluding Mr. Scuric from wearing a mask” are: “intolerance of masks, experiencing dyspnea, headaches [and] palpitations after prolonged use.” However, under cross-examination, Dr. Akladios admitted that that information was not correct. In fact, the doctor testified, Mr. Scuric never reported that his headaches and palpitations were brought on by wearing masks. Therefore, Dr. Akladios did not stand by his earlier answer that wearing a mask caused Mr. Scuric to have headaches. In his words, that information is “wrong”.
66In addition, Dr. Akladios testified, when he used the word “palpitations”, he likely was referring to Mr. Scuric’s report of “hyperventilating”. Dr. Akladios says he did not mean to indicate palpitations as the term might ordinarily be understood, namely, sensations around the heart. “Palpitations” was Dr. Akladios’ code for “hyperventilating.” Dr. Akladios acknowledged that that meaning would not have been clear to another medical practitioner.
67Consequently, of the three symptoms Dr. Akladios lists under Question 1(a) (dyspnea, headaches, palpitations), he admitted at trial that two of them (palpitations and headaches) are unconnected to prolonged mask use. Under cross-examination, he acknowledged “That was wrong” when TTC counsel suggested that he had indicated to TTC that Mr. Scuric’s headaches were caused by prolonged mask use. In addition, Dr. Akladios agreed with the proposition that dyspnea and palpitations are not typical symptoms of migraines.
68As noted above, under Question 2, Dr. Akladios indicated that “migraine disorder” was the relevant or pre-existing condition underlying the accommodation request. However, under cross-examination, Dr. Akladios admitted that he likely misunderstood the question as asking about Mr. Scuric’s general medical history. Dr. Akladios testified that Mr. Scuric’s migraines are not related to the mask restriction he recommended.
69Dr. Akladios did not have an answer when pressed on how TTC could have understood the basis for Mr. Scuric’s symptoms from Dr. Akladios’ answers on the questionnaire.
70When asked in cross-examination “How is your diagnosis reliable?”, Dr. Akladios responded: “I understand your concern.”
71Dr. Akladios agreed that it was reasonable for TTC to be skeptical of Mr. Scuric’s claim that he could not wear a mask.
72Dr. Akladios confirmed that he refused Mr. Scuric’s request for a vaccine exemption on four occasions. He did so because he relied on a form setting out exemptions for the COVID-19 vaccine, and that form did not include migraine disorder as a legitimate reason.
73I find that Dr. Akladios was straightforward in his testimony. He admitted that some of the information he provided to the TTC was misleading, and that he did not appreciate that the TTC questionnaire he completed on September 24, 2021, related only to an exemption from wearing a mask. I find all of that is due to time constraints, the pressures of dealing with COVID-19, the fact that Mr. Scuric was complaining about both wearing a mask and getting the vaccine, and Mr. Scuric’s underlying history of migraine disorder. In short, Dr. Akladios got mixed up.
74I find Dr. Akladios credible. I accept his testimony about the lack of a connection between the symptoms Mr. Scuric described and (a) his migraine disorder and (b) wearing a mask.
75I am satisfied that Dr. Akladios genuinely believes that Mr. Scuric might have been intolerant to wearing a mask. However, Dr. Akladios has nothing upon which to base that conclusion but Mr. Scuric’s word. Therefore, Dr. Akladios’ opinion that, at the relevant time, Mr. Scuric had so-called ‘face mask intolerance’ is not reliable.
Dr. Alain Sotto
76Dr. Sotto, the TTC in-house medical consultant, is board-certified in occupational medicine. He has practiced emergency and family medicine for two decades. As the Occupational Health Consultant for the TTC, he regularly reviews accommodation requests
77Dr. Sotto worked at a chronic headache clinic from 1992-1994. He testified that based on that experience as well as his family medicine practice, he has expertise in treating migraines.
78Dr. Sotto reviewed Mr. Scuric’s request to be accommodated from complying with TTC’s mask policy.
79Dr. Sotto never examined Mr. Scuric, never spoke to him about his symptoms and never spoke to his doctors. Dr. Sotto explained that an occupational medical expert generally would rely on information provided by an employee’s physician. He stated that in his role for TTC, he did not owe Mr. Scuric a duty of care.
80Dr. Sotto reviewed the form filled out by Dr. Akladios on September 24, 2021. Dr. Sotto testified that, from what he reviewed on the form, the experiences Mr. Scuric reported from wearing his mask were symptoms and not an underlying condition. The only underlying condition noted on the questionnaire was migraine disorder. There was no information to indicate that Dr. Akladios performed any diagnostic tests to rule out primary lung or primary heart conditions, which might account for Mr. Scuric’s shortness of breath.
81Dr. Sotto was aware that, previously, Mr. Scuric had been fitted for respirators and there was no indication that Mr. Scuric had any medical concerns that prevented him from wearing one.
82Dr. Sotto said that Mr. Scuric’s medical documentation did not support Mr. Scuric’s claim that wearing a mask produced Mr. Scuric’s self-reported symptoms. Therefore, in Dr. Sotto’s opinion at that time, which he reaffirmed at trial, Mr. Scuric’s request for accommodation from the requirement to wear a mask was not substantiated.
83I find Dr. Sotto both credible and reliable. He was qualified to speak to the topics he discussed. Based in part on his testimony, I find that in Fall 2021 Mr. Scuric did not provide the TTC with adequate information to warrant an exemption from TTC’s mask policy.
Dr. Marek Gawel
84Dr. Gawel, a neurologist, is TTC’s expert witness. He is a headache and migraine specialist with over 50 years of experience. He prepared an expert report for TTC dated January 20, 2025.
85Dr. Gawel’s report drew on Mr. Scuric’s medical records, reports and notes from his doctors, including Dr. Akladios and two neurologists, Dr. Temple and Dr. Moore (neither of whom testified); TTC accommodation documentation and mask policies; respirator-fit assessments previously done on Mr. Scuric; occupational injury reports; and medical literature.
86Dr. Gawel spoke to some issues regarding the COVID-19 vaccine. As stated earlier, that issue is not relevant to the trial.
87Dr. Gawel testified that (a) there is no medical evidence that disposable surgical masks worsen migraine disorder and (b) Mr. Scuric’s reported symptoms are not typical of migraine disorder.
88I find Dr. Gawel to be both credible and reliable. I will return to his testimony later in these reasons.
Rosemarie Richardson
89Rosemarie Richardson is the TTC OHEW representative who managed Mr. Scuric’s request for an accommodation from the masking policy.
90Ms. Richardson testified that TTC: properly sought medical information from Mr. Scuric in relation to his request; found the information insufficient to support his request; and repeatedly asked Mr. Scuric to provide further supporting evidence.
91Under cross-examination, Ms. Richardson:
a. Acknowledged that TTC denied the accommodation request on October 5, 2021.
b. Maintained that Mr. Scuric’s file was not actually closed, since TTC remained willing to consider additional information and she asked Mr. Scuric to do so.
c. Explained that TTC required objective medical information describing: Mr. Scuric’s functional limitations; why he could not wear a mask; what restrictions existed; and whether accommodations were medically necessary.
d. Said that TTC was willing to explore mask alternatives, but Mr. Scuric insisted he could not wear a mask at all.
92I find Ms. Richardson credible. On some points, her testimony was less reliable. She gave somewhat differing answers at discovery compared to at trial. As nothing in Ms. Richardson’s testimony affects my finding about whether Mr. Scuric had a disability requiring accommodation, I find it unnecessary to analyse her testimony in depth.
Peter Girimonte
93Peter Girimonte was Mr. Scuric’s supervisor/manager. He was directly involved in the handling of Mr. Scuric’s initial absence from work, accommodation request and return-to-work issues.
94Mr. Girimonte spoke to the nature of Mr. Scuric’s job and how it interacted with the mask policy.
95Mr. Girimonte testified that TTC was prepared to consider accommodating Mr. Scuric’s request if it received adequate medical evidence. He spoke to efforts he made within TTC to find Mr. Scuric alternate work, should accommodation prove to be warranted.
96I find Mr. Girimonte both credible and reliable. Had it been necessary to reach the issue, his testimony provides strong support that TTC was prepared to accommodate Mr. Scuric and actively explored how it might do so. I accept his testimony that TTC was waiting for Mr. Scuric’s request to be validated.
97I will now turn to the substantive issues for decision.
Has the plaintiff made out a prima facie case of discrimination?
The Law
98To establish an entitlement to accommodation, a plaintiff must establish prima facie discrimination on the basis of a protected ground, such as disability. Therefore, Mr. Scuric must show that:
a. He has a disability within the meaning of the Code;
b. He experienced adverse treatment in employment; and
c. The disability was a factor in that treatment.
Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33.
99Once the plaintiff establishes a prima facie case, the burden shifts to the employer to demonstrate that it met its duty to accommodate to the point of undue hardship: Moore, at para. 33; Imperial Oil Limited v. Haseeb, 2023 ONCA 364, 483 D.L.R. (4th) 228, at para. 50.
100A disability analysis requires “a multi-dimensional approach that includes a socio-political dimension”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 (“Boisbriand”), at para. 77. The multi-dimensional approach recognizes that societal attitudes often contribute to whether someone is perceived as being disabled and, based on that perception, suffers discrimination. “In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes”: Boisbriand, at para. 77.
101Absent discrimination, which is to say, absent adverse treatment on the basis of disability, an employer has no duty to accommodate: Benke v. Loblaw Companies Limited, 2022 ABQB 461, 80 C.C.E.L. (4th) 264, citing Filice v. Complex Services Inc., 2018 ONCA 625, 428 D.L.R. (4th) 548, at para. 50.
102The duty to accommodate is both substantive and procedural: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), at para. 66.
103The employer must take adequate steps to explore what accommodation is needed, including obtaining the relevant information needed to effectively assess the accommodation options: ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.), at paras. 107, 113. The employee’s role is to cooperate in the accommodation process, which most often involves responding in a timely fashion to the employer’s requests for information about the applicant’s limitations: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at p. 994-95.
Application
104Mr. Scuric must prove that (a) he has a disability within the meaning of the Code, and (b) he experienced adverse treatment in which (c) his disability was a factor.
105More particularly, because Mr. Scuric claims disability discrimination arising from a requirement to wear a mask, he must establish the nature of his disability and explain why that disability interferes with his ability to wear a mask: see e.g. Rael v. Cartwright Jewelers and another, 2021 BCHRT 106, at para. 16.
Does the plaintiff have a disability?
106TTC does not dispute that Mr. Scuric has a disability: migraine disorder. TTC previously accommodated that disability when it granted Mr. Scuric a permanent restriction against having to perform night duty shifts, because night work exacerbated his migraines.
107At trial, Dr. Akladios referred to Mr. Scuric having “face mask intolerance”. Dr. Akladios had not researched whether that term is recognized in the medical literature. At trial, when invited, he did not say that it is a recognized medical diagnosis.
108Mr. Scuric does not argue that face mask intolerance is, itself, a disability. Rather, he urges the court to focus on his “functional limitations” that required TTC to accommodate him. Mr. Scuric argues that this court should not get caught up in a search for “diagnostic labels” but be guided by whether the plaintiff experienced symptoms and limitations affecting his ability to perform his duties, which triggered a duty to accommodate by TTC.
109I agree with the plaintiff that the court must avoid a formalistic analysis that ignores context, including broader socio-legal issues. But, for the following reasons, I am not persuaded that Mr. Scuric has any condition, other than migraine disorder, that qualifies as a disability under the Code.
110First, Mr. Scuric’s counsel appeared to suggest that a disability can be established solely by an individual’s subjective perception of it. In other words, Mr. Scuric’s perception of a functional limitation – in this case, an inability to wear a mask, except for very short periods of time – could be enough to establish that he has a disability requiring accommodation.
111I do not agree that a disability can be established solely by a person’s subjective belief that they have one. Plaintiff’s counsel appeared to cite Boisbriand for that notion. If that is their argument, it misreads the Boisbriand decision. That case stands for the proposition that a person can be subject to adverse treatment on the basis of presumed limitations that do not reflect their actual merits and capacities: see Boisbriand, at paras. 72, 81. For example, someone might assume that a blind person is unable to read and, therefore, is unsuitable for a job requiring that skill. The assumption might be informed by stereotypical beliefs about people with disabilities in general. In Boisbriand, the Supreme Court held that when a person is wrongly assumed, by others, to have a disability, that person can suffer discrimination based on that presumed disability. But Boisbriand says nothing about whether a person’s self-perception is sufficient to establish that their disability exists.
112Second, at trial, Dr. Akladios acknowledged that the only symptom he continues to stand by is dyspnea: a breathing issue that Mr. Scuric reported experiencing. Due to COVID-19 restrictions in effect in 2021, Dr. Akladios could not independently verify the existence of that condition, because he could not observe Mr. Scuric in person.
113The mere assertion of a “breathing issue” cannot establish a disability: see Rael, at para. 14; Dier v. Quad II Enterprises Ltd. and another, 2024 BCHRT 33, at para. 21. There must be some underlying condition to explain it. Examples of such conditions include nodules on one’s thyroid, asthma, a history of blood clot in the lung, or chronic obstructive pulmonary disease: see e.g. Lau v. Village Food Markets and another, 2025 BCHRT 280, at para. 7; Clarke v. Mohamed Elsabakhawi Drugs Ltd., 2024 HRTO 1733 at para. 49; Siebert v. Mcdonald’s (Abbotsford), 2024 BCHRT 60, at para. 18; Forbes v. Habitat for Humanity Mid-Vancouver Island, 2024 BCHRT 18, at paras. 22-23. In this case, there is no similar explanation.
114Accordingly, the remainder of the Moore test must focus on the disability that is established on the evidence – a migraine disorder.
Did the plaintiff experience adverse treatment?
115I am satisfied that Mr. Scuric experienced adverse treatment. TTC does not contest that fact. Mr. Scuric was put on unpaid leave from TTC beginning on September 21, 2021. He never again returned to work or drew a salary. The unpaid leave occurred because Mr. Scuric would not comply with a new condition of being in the workplace – wearing a mask.
Was the plaintiff’s disability a factor in the adverse treatment?
116The final stage of the Moore test requires the court to determine whether the adverse treatment the plaintiff experienced relates to the plaintiff’s disability.
117In this case, Mr. Scuric must show that the adverse treatment on him from not wearing a mask – namely, that he could not perform his job duties and was put on unpaid leave – is linked in some way to his disability of migraine disorder. That requires finding that Mr. Scuric’s migraine disorder was at least a cause of the symptoms he claims to have experienced when wearing a mask at work.
118For the following reasons, I am not persuaded that Mr. Scuric’s migraine disorder was a factor in his adverse treatment.
119First, Mr. Scuric’s medical evidence undermines his claims that the symptoms he experienced while wearing a mask were connected to his migraine disorder disability. Dr. Akladios – the plaintiff’s own doctor and a key trial witness – essentially admitted that the medical report he submitted to the TTC cannot be taken at face value. Dr. Akladios acknowledged that (a) his use of the word “palpitations” did not correspond to how another medical professional would understand that term but was the doctor’s code for “hyperventilating” (b) Mr. Scuric’s self-reported symptom of dyspnea (shortness of breath) is not a common symptom of migraines and (c) there is no corroborating evidence in the record of any link between prolonged mask use and migraine symptoms such as headaches.
120Second, while Mr. Scuric consulted two additional neurologists about his migraine disorder in 2021, neither of them supported his claim that he could not wear a mask. Specifically:
a. On August 12, 2021, Dr. Brian Temple – someone Mr. Scuric first consulted in 2009 – prepared a report in support of Mr. Scuric’s request for the night shift exemption discussed earlier in these reasons. The report discusses the COVID-19 vaccine, but not masks. I find it puzzling that Mr. Scuric testified he did not raise the mask issue with Dr. Temple, given that one month later he wrote to TTC seeking an exemption from wearing one. I find it more likely that Mr. Scuric did raise the issue, but Dr. Temple disagreed with what Mr. Scuric was saying and therefore did not put anything in the report about it. Further, I am persuaded that after receiving the August 12, 2021, report (which also failed to support Mr. Scuric’s claims that vaccines worsened his migraines), Mr. Scuric lost confidence in Dr. Temple and sought out other opinions. In other words, Mr. Scuric did not accept Dr. Temple’s conclusions.
b. As a result of Mr. Scuric’s dissatisfaction with Dr. Temple, Dr. Akladios referred him to a migraine specialist, Dr. Ginette Moore, for a second neurological opinion. Dr. Moore’s report is dated October 1, 2021. Dr. Moore notes that Mr. Scuric’s physical exam “was challenging as he kept removing his mask.” The report mainly discusses vaccine exemption, which Dr. Moore declined to approve. However, the report also states that, neurologically, there is no contraindication to mask wearing. I find it likely that Mr. Scuric did discuss his mask issues with Dr. Moore. The fact that her report does not corroborate his claim that masks exacerbated his migraine symptoms supports TTC’s argument that there is no such link in this case.
121Third, the link Mr. Scuric invites the court to draw, between wearing a mask, his self-reported symptoms, and his migraine disorder, requires more than “an assertion or even a sincere belief”: see Tartal v Starbucks Coffee Canada Inc., 2024 AHRC 14, at para. 43, citing Hogan v Syncrude Canada Ltd., 2019 AHRC 32, at para. 19. Based on the medical evidence in this case, including the expert testimony of Dr. Gawel, Mr. Scuric has not established that dyspnea and palpitations are symptoms of migraine disorder.
122That leaves the symptom of headaches. Here, I accept (a) the expert evidence of Dr. Gawel that there is no medical evidence that the disposable surgical masks TTC required Mr. Scuric to wear would worsen his migraine disorder, and (b) Dr. Akladios’ admission that the mask wearing did not cause Mr. Scuric’s headaches. Therefore, there is no evidence of a link between what Mr. Scuric’s self-reported symptoms while wearing a mask, and his disability.
123Fourth, no cases support the link that Mr. Scuric invites the court to draw between mask wearing and migraine disorder, or, indeed, between mask wearing and other general symptoms. In fact, the cases point the other way. For example, in Benke v Loblaw Companies Limited, 2022 ABQB 461, 80 C.C.E.L. (4th) 264, the plaintiff, who worked at Loblaws, offered a general medical note supporting his claim that he could not wear a mask. The court held that Mr. Benke had not proved that he had a disability or medical condition affecting his ability to wear a mask, because his doctor could not and did not say that he had a valid medical reason to be exempted from the policy.
124The plaintiff tries to distinguish Benke on the basis that Dr. Akladios supported Mr. Scuric’s request for an exemption. The plaintiff further argues that “Dr. Akladios was fully compliant and available to TTC during the accommodation process.”
125I do not find those arguments persuasive. Instead, Benke supports TTC’s argument that there is no prima facie case here, because:
a. Along with the tribunal decisions cited earlier in these reasons, Benke stresses that there must be some evidence tying the inability to wear a mask to a medical condition.
b. Dr. Akladios’ support for a mask exemption is not reliable. First, Dr. Akladios admitted that his mention of “migraine disorder” in Question no. 2 was intended to note Mr. Scuric’s general history and was not tied to the accommodation request. Second, Dr. Akladios acknowledged that he used inaccurate wording on the questionnaire, most notably that Mr. Scuric was suffering “palpitations”. Third, Dr. Akladios cited a condition – face mask intolerance – that is not recognized in medical science, and that Mr. Scuric admits is not a “disability” within the meaning of the Code.
c. Whether Dr. Akladios was willing to further engage with TTC is irrelevant. TTC was entitled to assess Dr. Akladios’ assessment on its face and to determine whether the assessment accorded with medical science and medical literature. TTC did not need to involve Dr. Akladios in the accommodation process after TTC rightly concluded that there was insufficient evidence that Mr. Scuric has a disability that would impede his ability to wear a mask.
d. I have already stated that the evidence of Dr. Gawel, in particular, leads me to find that the factual link Mr. Scuric relies upon is not established.
126Accordingly, the plaintiff has not established prima facie discrimination. Mr. Scuric admits that TTC’s mask policy itself was reasonable and valid. Therefore, while Mr. Scuric did suffer adverse treatment, it is from failing to comply with an essential condition of his work. While Mr. Scuric has a disability, there is no evidence tying that disability to the symptoms he says he experienced from wearing a mask. No medical evidence in the case, including from Mr. Scuric’s own doctors, supports his argument about his condition.
127Given that Mr. Scuric has not established a prima facie case of discrimination, TTC did not have a duty to accommodate his request for an exemption from the mandatory mask policy.
Was Mr. Scuric constructively dismissed?
The Law
128In a constructive dismissal case, the court must be satisfied that:
a. the employer has imposed unilateral substantial changes that constitute a substantial breach of the employment contract; and
b. a reasonable person in the employee’s position would have felt that the breach substantially altered an essential term of the employment contract.
Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10, [2015] 1 S.C.R. 500, at paras. 34-43.
129The onus is on the employee to establish the first part of the test, while the second part of the test is to be assessed objectively: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, at paras. 60, 62.
130Repudiation occurs when an employee demonstrates, by words or conduct, an intention to no longer be bound by an essential term of the employment contract, such as refusing to perform a fundamental part of their job duties. If that occurs, the employer may accept the repudiation and treat the employment relationship as terminated: Potter at para. 144; Roden v. Toronto Humane Society, 2005 CanLII 33578 (ONCA).
Application
131Ordinarily, being put on unpaid leave would constitute a unilateral change in one’s employment. In this case, it did not.
132Mr. Scuric agrees that the TTC’s mandatory masking policy was not a unilateral change to his employment. The policy was a valid response to the unprecedented situation wrought by the COVID-19 pandemic.
133The fact that TTC had no duty to accommodate Mr. Scuric’s request for an exemption is critical. If Mr. Scuric established a prima facie case of discrimination, and if the TTC had not satisfied its duty to accommodate him, then the fact that Mr. Scuric could not return to work because he could not comply with the masking policy would be a unilateral change.
134Here, however, I have found that there is no prima facie discrimination. That means that Mr. Scuric refused to comply with a policy that was a valid and essential condition of his job. Mr. Scuric’s duties as a foreperson required him to (a) attend TTC job sites and supervise other employees and (b) attend the TTC office and perform other duties. His predictable proximity to other TTC employees required that he wear a mask and that he not remove it every ten to twenty minutes. Because Mr. Scuric says he could not wear a mask, he could not come to work. I agree with TTC that Mr. Scuric’s refusal to comply with the mandatory mask policy is akin to repudiation of his contract.
135Accordingly, the requirements to establish constructive dismissal are not met. TTC did not unilaterally change Mr. Scuric’s employment agreement. Mr. Scuric’s refusal to wear a mask left TTC with no option but to place him on unpaid leave. If anything, Mr. Scuric repudiated his own agreement.
Is Mr. Scuric entitled to damages?
136Given that I have rejected the claim that Mr. Scuric was constructively dismissed, he is not entitled to back pay for the period between when he first failed to attend work and his issuance of his claim.
137However, I find that Mr. Scuric is owed one week of paid sick leave for the week beginning September 13, 2021 (Mr. Scuric would have worked September 14-17).
138Peter Girimonte acknowledged that he advised Mr. Scuric that he would “code him sick” for that first week after Mr. Scuric advised TTC that he required a mask exemption, i.e., September 13, 2021. I am satisfied that Mr. Girimonte did that to pre-empt negative financial consequences for Mr. Scuric while the accommodation issue was worked out.
139TTC never paid Mr. Scuric for that week of sick leave. Mr. Scuric says he did not receive his sick pay, and his pay stub for the relevant period supports that claim. TTC did not dispute that evidence.
140Accordingly, I find TTC is liable for that commitment it made to Mr. Scuric.
141Mr. Scuric argues that he should have received $2,550 in salary and $242 in pension contributions. I accept his evidence.
142Accordingly, Mr. Scuric is owed $2,792.
143The parties are urged to come to an agreement on costs. Should they not, they may within 45 days file submissions limited to 5 pages, along with any offers to settle and their bill of costs. There shall be no right of reply.
ORDER
144In conclusion, I make the following order:
a. The plaintiff’s claim for constructive dismissal is dismissed.
b. The defendant owes the plaintiff $2,792 for one week of sick pay.
c. Pre and post judgment interest shall run in accordance with the Courts of Justice Act.
d. Within 45 days, the parties may make written costs submissions limited to 5 pages exclusive of any offers to settle and bills.
Mathen J.
Released: July 29, 2026