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HomeMy WebLinkAbout2009-1674.Grievor.13-12-18 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2009-1674, 2009-1675 UNION#2009-0521-0048, 2009-0521-0049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Susan Munn Ministry of Government Services Legal Services Branch Counsel HEARING May 18, June 7, 12, December 4, 5, 20, 2012, January 21, 2013 - 2 - Decision [1] The Union requested and the Employer agreed that the grievor not be identified by name in this decision. I will refer to the grievor as Mr. G. [2] Mr. G. spent the majority of his time as a Correctional Officer working at the Mimico Correctional Centre (“Mimico”). For a number of years he had been working on an accommodation because of mental health issues. Mr. G. filed two grievances dated August 4, 2009. In one of them he claims that “the Employer has failed to accommodate me due to my disability as covered under the Ontario Human Rights Code.” In the other grievance he claims that the Employer contravened the Collective Agreement and the Human Rights Code “in regards to ongoing harassment in the workplace due to my need for accommodation.” In a decision dated August 24, 2011, I dismissed the Employer’s objection to the timeliness of the grievances after concluding that the Employer had waived its right to make such an objection. [3] On November 12, 2008, Mr. T. Jones, Deputy Superintendent of Operations, held a meeting with Mr. G for the purpose of advising him of schedule changes that would become effective January 5, 2009. Mr. D. Douglas, Staff Services Manager, also attended the meeting. After the meeting, Mr. G completed his shift, but became ill during the evening of November 12, 2008, and has been unable to return to work since then because of his mental health issues. He is on long term disability. Mr. G filed these grievances because of his concerns about the nature of the meeting and certain comments made at the - 3 - meeting by Mr. Jones. The parties agreed that I should remit the issue of remedy to them should I allow these grievances. [4] The Union takes the position that the Employer discriminated against Mr. G and failed in its duty to properly accommodate him having regard to the nature of the meeting and its failure to take into account his specific mental health issues. It claims that the Employer failed in its duty to consider how Mr. G would receive the information affecting his accommodation in the circumstances. The Union also asserts that some of the comments made by Mr. Jones were discriminatory. The Union takes the position that the Employer ought reasonably to have foreseen, given its knowledge of Mr. G and his accommodation needs, that the substance of the meeting and certain comments made by Mr. Jones would have a detrimental impact on Mr. G by worsening his mental health. The Union claims that the deterioration of Mr. G’s mental health was caused by the treatment he received from the Employer at the meeting on November 12, 2008. The Union also takes the position that the Employer’s conduct failed to make reasonable provision for the safety and health of Mr. G. The Union argued that the Employer’s conduct at the meeting constitutes violations of certain provisions of the Collective Agreement, namely article 3, the no discrimination clause, article 9, the health and safety provision, and article 2, the management rights provision. The Union also claims that the inappropriate Employer conduct also amounts to a contravention of the Human Rights Code. In addition to human rights damages, the Union seeks compensation by way of top up of sick leave from November 17, 2008 to June 30, 2009, and top up of LTIP payments from July 1, 2009 onwards. - 4 - [5] In support of her submissions, counsel for the Union relied on an excerpt from an Ontario Human Rights Commission report entitled “Minds that Matter” and the following decisions: Lane v. ADGA Group Consultants Inc., 2007 HRTO 34; Re OPSEU (Sager) and Ontario (Ministry of Transportation) (2004), 134 L.A.C. (4th) 218 (Mikus); OPSEU (Watts/King) and Ministry of Correctional Services (1991), GSB No. 1377/90 et al. (Kaplan); Re Greater Toronto Airports Authority and PSAC, Local 0004 (2010), 191 L.A.C. (4th) 277 (Shime); Re Prestressed Systems Inc. and Labourers’ International Union of North America, Local 625 (2005), 143 L.A.C. (4th) 340 (Snow); and, Toronto (City) v. CUPE, Local 79, [2007] O.L.A.A. No. 345 (Starkman). [6] The Employer disputes the Union’s claim that the Employer’s conduct at the meeting on November 12, 2008, constitutes violations of the Collective Agreement and the Human Rights Code. It claims that there was no failure to accommodate Mr. G’s demonstrated needs because there was no change to his work after the meeting. The Employer also asserted that there could not have been a failure in its duty to accommodate Mr. G if the Employer had not been informed of a particular need supported by medical information. The Employer argued that Mr. G’s testimony about some of the comments he attributes to Mr. Jones is not reliable. It also submits that even if Mr. Jones made the comments at the meeting, the comments are not discriminatory or harassing in nature given that a reasonable person would not view them as such in the circumstances. The Employer specifically denies that it failed to take reasonable precautions to protect the health and safety of Mr. G. Finally, the Employer submits that even if its conduct at the meeting on November 12, 2008 contravened the Collective Agreement and the Human Rights Code, there is no basis for concluding from the evidence that it was the Employer’s conduct - 5 - which caused the deterioration of Mr. G’s mental health. Employer counsel argued that Mr. G’s underlying personality disorder was responsible for the impact on his mental health status. [7] In support of her submissions, Employer counsel referred me to the following decisions: OPSEU (Fenech) and Ministry of Labour (2012), GSB No. 2006-1704 et al. (Dissanayake); Gui Xian Xu v. The Ottawa Hospital, 2011 HRTO 1208; Re Cara Operations Ltd. and Teamsters Chemical, Energy and Allied Workers Union, Local 647 (2005), L.A.C. (4th) 266 (Luborsky); OPSU (Waraich) and Ministry of Labour (2009), GSB No. 2003-0187 (Watters); OPSEU (Deprophetis) and Minister of Labour ( 2010), GSB No. 2008-3994 (Dissanayake); OPSEU (Press) and Ministry of Health and Long- Term Care (2007), GSB No. 2003-1461 (Mikus); OPSEU (Lafranboise) and Ministry of Community and Social Services (1997), GSB No. 2268/95 (Roberts); and, OPSEU (Gareh) and Ministry of the Attorney General (2002), GSB No. 1665/98 et al. (Brown). [8] In addition to Mr. G, the Union called as witnesses three health care professionals who are involved in treating his mental health issues. Dr. V. Sivasubramanian (“Siva”), Psychiatrist, and Mr. P. Dominic, Mental Health Clinician, are connected with the Community Mental Health Program at St. Joseph’s Health Centre. Dr. D. Daien is Mr. G’s family physician. The Employer called Mr. Jones and Mr. Douglas to testify. In determining the facts, I have reviewed the oral and documentary evidence and the submissions of counsel relating thereto. - 6 - [9] Before turning to what occurred at the meeting on November 12, 2008, it is necessary to first provide the context for the meeting. To this end I will address the nature of Mr. G’s mental health issues, the Employer’s knowledge about his accommodation needs and how he was being accommodated for his mental health issues. [10] Mr. G started working as a Correctional Officer in 1991. Over the years he has missed time from work due to problems with a knee, a hand and his teeth. Since the knee problem gave him limited mobility, Mr. G was accommodated upon his return to work. This accommodation included being assigned to the reception post. His mental health issues relevant to these grievances began in March of 2002 when he discovered his mother after she had committed suicide. Mr. G had participated in picket line duty from midnight until after 10:00 a.m. on March 13, 2002. When he returned home in the morning expecting to go to sleep, he found his mother hanging from a rafter in the basement. He cut her down, called 911 and began CPR. The first responders from the Fire Department took over CPR. Mr. G called his father and told him to come home. After the police arrived Mr. G and his father were initially considered suspects. Given his condition, Mr. G was taken to the Trillium Health Centre where he was under observation until 8:00 p.m. By the time he returned home, his mother’s body had been removed by the Coroner. The effect of this incident on Mr. G was such that he did not return to the workplace until July of 2003. He initially was on sick leave and then on long term disability. [11] Not long after the suicide of Mr. G’s mother, Dr. Daien referred him to the Mental Health Program at St. Joseph’s Health Centre because of acute depressive symptoms. He was initially assessed by a Clinician and then on June 28, 2002, he saw Dr. Desai, a - 7 - Psychiatrist, for a consultation. Dr. Desai prescribed medication for Mr. G and saw him periodically. As part of his treatment, a Mental Health Clinician saw him on a more regular basis, providing psychotherapy and counseling. By at least September of 2004, Mr. Dominic took over the role of Mr. G’s Mental Health Clinician. Dr. Siva first saw Mr. G on January 15, 2007. Before this consultation Mr. G had not seen a psychiatrist since his last visit with Dr. Desai on September 3, 2004. The only other time Dr. Siva saw Mr. G prior to the November 12, 2008 meeting with Mr. Jones was on October 19, 2007. Dr. Daien also participated in the treatment of Mr. G’s mental health issues on an ongoing basis. [12] Dr. Siva, Dr. Daien and Mr. Dominic provided a detailed picture of Mr. G’s mental health issues. Mr. G also testified to a limited extent about these issues. Since the suicide of his mother, Mr. G has experienced major depression and post-traumatic stress disorder. His depressive symptoms have been persistent and chronic. As noted by Dr. Siva, the depressive symptoms have “waxed and waned depending on external stressors”. The PSTD symptoms have diminished over time, but have not disappeared. Mr. G also has what Dr. Daien describes as anger management issues, although he notes that Mr. G has never been violent or aggressive. Mr. G also has a mild personality disorder, with paranoid, obsessive-compulsive and narcissistic traits. These personality traits can result in him being suspicious of the motivations of others and easily slighted. He tends to believe that the transgressions of others are malicious. Mr. G has a sense of what is required in particular circumstances and he sees things as “black or white” or “right or wrong”. He has a strong sense of justice, becomes preoccupied with some issues and has difficulty in letting things go. He has a sense that perceived attacks are personal, rather - 8 - than systemic. Mr. G is sensitive to stresses that may affect his level of anxiety, anger and frustration, which in turn can affect how he interacts with others. Although he is more sensitive and may perceive that things are directed against him, Mr. G is not psychotic. His perceptions are within the scope of reality. [13] In addition to psychotherapy and counseling on a regular basis with a Mental Health Clinician, Mr. G has been prescribed various medications to deal with his depression. He was also prescribed medication to help him sleep and to mitigate some of his PTSD symptoms. His inability to sleep well has been a continuing problem. Although willing to try different medications and doses, Mr. G believes the medications for depression were of little help. Dr. Siva thought that the medication gave Mr. G some mild symptomatic relief, but that he never really responded to them. Mr. Dominic thought that Mr. G was more irritable when he was off the medication. By sometime in 2007, because he felt that they did not help him and he preferred to cope without them, Mr. G stopped taking medication for depression. Dr. Siva indicated that the absence of medication would not affect his interaction with others since this had more to do with his personality structure. [14] As noted previously, Mr. G returned to work at Mimico in July of 2003, after an absence on sick leave of approximately 15 months. He returned to work on a graduated basis by initially working a limited number of hours a day until he could work full-time hours. Mr. Douglas alone was the manager who was involved in structuring an appropriate accommodation for Mr. G’s mental health problems. Mr. Douglas and Mr. G did not develop a formal accommodation plan. Instead, based on information from Mr. G’s doctor and Mr. G, they worked out an arrangement that accommodated Mr. G’s particular - 9 - needs and satisfied the Employer’s interests. Mr. G required limited inmate contact. He also had advised Mr. Douglas of the importance of his having Fridays off to attend psychotherapy and counseling sessions. Mr. G was assigned to staff training role upon his return and was eventually assigned to the reception post in the visiting area once he was able to work full-time. At this post he was given a schedule of 10-hour day shifts, Monday to Thursday. Ten hour shifts were not the norm at Mimico. Given his understanding of his needs, Mr. Douglas proposed this particular accommodated arrangement and Mr. G indicated that he would give it a try. [15] Dr. Siva, Mr. Dominic and Dr. Daien were generally familiar with the way in which Mr. G was being accommodated at Mimico. In their view, limited inmate contact was important so as to provide Mr. G with a relatively quiet environment in order to keep his anxiety level in check. Working a steady day shift was important to protect his sleep. A shift schedule that included night or rotating shifts would disrupt Mr. G’s sleep pattern which could exacerbate his existing conditions. Mr. G’s health care professionals recognized that work was important for his mental health in that it gave him confidence and self- esteem. Although Mr. G was able to perform his CO job on an accommodated basis, they also recognized that he had not fully recovered. His return to full-time work did not end his struggles with his mental health issues. This is evident from the “Request For Employee Health Information” forms completed by Dr. Daien in 2007 and 2008. Mr. Douglas had requested Mr. G to have his physician complete the form in order to update information relating to his workplace accommodation. In both years, Dr. Daien advised on the form that Mr. G was not capable of working without restrictions and checked off the “Cognitive/Psychosocial” limitation. In 2007, he noted specifically that Mr. G - 10 - continues to struggle with anxiety and anger issues and strongly recommended that he continue with his current restrictions and job posting. On the 2008 form he completed on November 6, Dr. Daien indicated that the estimated duration of Mr. G’s limitations were indefinite. Under specific restrictions he wrote: “has ongoing depression and anger management issues” and noted under prognosis that it was guarded with reference to his continuing need for therapy at St. Joseph’s Hospital. Under additional comments, Dr. Daien wrote that Mr. G “should remain in accommodated job at reception area and should not be placed in area with direct contact with the inmates.” Mr. G returned this completed form to Mr. Douglas early in the morning of the day that he had the meeting with Mr. Jones. [16] The information the Employer had about Mr. G’s restrictions resided with Mr. Douglas. Although there is some disagreement over the Employer’s knowledge about Mr. G’s restrictions and limitations due to his mental health issues, I agree with the Union’s position that Mr. Douglas, and through him the Employer, knew a lot about these matters. It is clear from his testimony that Mr. Douglas was aware that Mr. G required accommodation because of his mental health issues which originated from his experience with his mother’s suicide. As noted earlier, he and Mr. G developed an accommodation that worked for both parties. He was aware of the limited inmate contact restriction and this led to Mr. G’s assignment at the reception post. Mr. Douglas was also aware of Mr. G’s need for ongoing psychotherapy and counseling and the fact that he attended these sessions on Friday. He testified that it was best for Mr. G to be absent on Friday’s in any event because the reception post in the visiting area was busier on that day of the week and would therefore be more stressful for Mr. G. Mr. Douglas also knew that Mr. G had - 11 - difficulty getting a good sleep. When Mr. G had particular a problem in this regard, Mr. Douglas addressed it by giving him an extra day or two off so that he could try to get a better rest. This would occur without the need for Mr. G to provide a medical note to support the absence. Mr. Douglas was also aware that Mr. G was reluctant to change his work situation. He testified that he encouraged Mr. G to try other posts, but with no success. Mr. Dominic indicated in his testimony that individuals with Mr. G’s mental health issues did not cope well with change. It was therefore on the basis of a fairly complete knowledge of Mr. G’s condition and limitations that Mr. Douglas developed a specific accommodation plan for Mr. G. Mr. G had been working on this accommodated basis for many years before the November 12, 2008 meeting with Mr. Jones. [17] Mimico was slated for closure. By November of 2008, the inmate population and the number of correctional officers had been considerably reduced. Mr. Douglas testified that visits were down to two days per week and that there was only a need to man the reception post for a couple of hours a day. To address the overall situation, the Scheduling Committee, with union and management representation, decided to rationalize scheduling by placing three posts on the same schedule. One line of eight COs would rotate through north gate, central control and the front desk reception posts. The eight COs would also rotate through the different shifts. The three posts encompassed by the scheduling change would have limited inmate contact. Mr. Jones indicated that he wanted to inform accommodated employees affected by the scheduling change well in advance of the January 2009 implementation so that any concerns could be addressed. The meeting Mr. Jones had with Mr. G on November 12, 2008, was for the purpose of notifying him of the upcoming schedule change. Mr. Jones indicated that as the Deputy Superintendent of - 12 - Operations it was his job to inform affected employees about the new schedule, but his role did not include dealing with accommodation issues. [18] As noted previously, Mr. G dropped off the “Request For Employee Health Information” form prepared by Dr. Daien to Mr. Douglas early in the morning of November 12, 2008. It was on this form that Dr. Daien recommended that Mr. G be kept in his current accommodated position at reception. When Mr. Douglas called him to attend a meeting in his office at 12:30 p.m., Mr. G assumed it was to discuss the contents of the form. He expected Mr. Douglas to advise him, as he had done in the past, that he would continue with his current accommodation. Mr. Douglas did not learn of Mr. Jones’s desire to meet with Mr. G until that morning. He also had not heard about the proposed schedule change. Mr. Douglas testified that the meeting was as much of a surprise to him as it was for Mr. G. Mr. Jones knew that Mr. G was being accommodated, but other than the fact that he required limited inmate contact, he was not aware of his mental health issues and his other limitations. Mr. Jones and Mr. Douglas did not discuss these matters before Mr. Jones met with Mr. G. [19] In reviewing the testimony about what was discussed at the meeting on November 8, 2008, and considering in particular the Employer’s submission that Mr. G’s version of what was discussed is unreliable in part, I accept Mr. G’s version of what occurred at the meeting. Indeed, Mr. G’s version of what was discussed at the meeting was not contradicted in any significant way by Mr. Jones or Mr. Douglas. In her opening statement, Employer counsel indicated that Mr. Jones would deny that he made certain statements attributed to him by Mr. G. During cross-examination of Mr. G, Employer - 13 - counsel put to him that Mr. Jones would deny each of the key statements attributed to him by Mr. G and asked him if this changed his testimony. In each instance, Mr. G responded that it did not. However, when Mr. Jones was asked about each of these key statements, both in chief and during cross-examination, he indicated that he could not recall if he had made the statement. He did not deny making any of them. And to the extent that he could recall what Mr. Jones said at the meeting, Mr. Douglas’s testimony confirmed the testimony of Mr. G. In addition, I agree with Union counsel’s submission that this was a more significant and memorable event for Mr. G, than it was for Mr. Jones or Mr. Douglas. His testimony about what Mr. Jones told him at the meeting has not varied. His description of the meeting when testifying at the hearing on the merits is consistent with the version he gave when he testified about the meeting at the hearing on the timeliness issue. Although his health care professionals did not focus on all of the details Mr. G relayed to them about what Mr. Jones said at the meeting, it is clear that what he did tell them is essentially consistent with his testimony. I am also satisfied that his mental health issues or the fact that he was not taking medication at the relevant time did not impair Mr. G’s ability to understand or to recall what Mr. Jones told him at the meeting on November 12, 2008. [20] Mr. Jones was in charge of the meeting. He started the meeting by indicating that he had reviewed the information contained in the “Request For Employee Health Information” form and then told Mr. G that his doctor did not know the institution and that the doctor was not going to tell them where to place him. Mr. Jones then told him that he would no longer be working just at the reception post as of January of 2009, but that he would be working north gate, central control and the reception posts on a rotating shift basis. Mr. - 14 - Jones then stated that “we are not going to pay you to sit there; I can get a clerk to do that.” Mr. G then told Mr. Jones that his current schedule was set up for him to maintain a routine and to go to his Friday counseling sessions. Mr. Jones responded by saying that he was not going to go to his appointments on their time anymore and that accommodation is supposed to be short term anyway. Mr. Jones then told Mr. G to work out a schedule with Mr. Douglas. Mr. G asked Mr. Jones what would happen if I could not do the new schedule. Mr. Jones told him that he did not deal with hypotheticals, but that there would be no place for him if he could not work the new schedule. Mr. Jones asked during the course of the meeting if he would need any training and Mr. G told him that he would need training to work in central control. He was told that he would receive the training he needed and to make the necessary arrangements with Mr. Douglas. Mr. Jones then left the office. Mr. G told Mr. Douglas that he would have to discuss this with his support group. Mr. Douglas told him that was fine with him. Mr. Jones testified that Mr. G had reservations about working in control and was anxious about the change, but he recalled that it was a good meeting. Mr. Douglas testified that he believed that Mr. G understood what he was being told by Mr. Jones. He also indicated that it was clear to him that Mr. G did not like what he was being told by Mr. Jones, particularly when he was told that he would have to arrange his medical appointments on his own time. [21] Some other aspects of the testimony of Mr. Douglas are worth noting. He testified that he had been trained to deal with accommodating employees with physical issues, but had not received any specific training on how to accommodate employees with mental health issues. However, the evidence discloses that the lack of such training did not inhibit Mr. Douglas from addressing Mr. G’s need for accommodation in an effective and - 15 - compassionate manner. Mr. Douglas indicated that Mr. Jones was quite frank at the meeting and that some people find his manner aggressive. Union counsel suggested that implicit in this comment was that Mr. Jones acted in an aggressive manner during the meeting with Mr. G. Since Mr. G did not testify that Mr. Jones was aggressive at the meeting, I am not prepared to find that Mr. Jones conducted the meeting in an aggressive manner. Mr. G’s issues with Mr. Jones were with the substance of his comments, not with how he made them. At the conclusion of his testimony, I asked Mr. Douglas for some clarification about the way he and Mr. G worked out an accommodation and whether he felt that Mr. G continued to face challenges with his accommodation. In responding, Mr. Douglas expressed the view that the meeting with Mr. Jones on November 12, 2008, should not have taken place. Given his knowledge about Mr. G’s accommodation needs, I found this comment to be somewhat telling. [22] As noted previously, Mr. G completed his November 12, 2008 shift and went home. He could not stop thinking about what occurred at the meeting with Mr. Jones and became increasingly upset. He had dinner, threw it up and in his words: “from there I slid back to where I was”. He soon thereafter attended a counseling session with Mr. Dominic, then saw Dr. Daien and eventually saw Dr. Siva, who placed him back on medication. His mental health status deteriorated to the point where he could not return to work at Mimico. In their testimony, the health care professionals provided their opinions on the link between what occurred at the meeting and the deterioration of Mr. G’s mental health. Although the Employer argued differently, I am satisfied that Mr. G provided his health care professionals with the essential features of what had occurred at the meeting. When asked at the end of his examination-in-chief if he had anything else to add, Mr. G - 16 - reiterated that he was upset about and took great exception to what Mr. Jones told him at the meeting. He was troubled by the comments about accommodation and particularly by the comment that he could be replaced by a clerk, given that the reception area is a security post. He believed that he was being told that his accommodation was basically ending. Even though he still had difficulties with the accommodated schedule, he was now being told that he would not have a steady routine and that his regular counseling sessions were in jeopardy. He believed that working more than one post and the other changes would lead to more sick time and perhaps his discharge, given that he was told there would be no place for him if he could not work the new schedule. He was particularly upset by the changes given that his doctor had just recommended that he be kept on his existing accommodation. Mr. G simply felt that he was being set up to fail. [23] The Employer’s position in essence is that Mr. Jones simply met with Mr. G to advise him about scheduling changes that were to be introduced in January of 2009 and that Mr. G was to deal with Mr. Douglas if he had any concerns about the rotating posts and schedule. The evidence suggests that what occurred at the meeting on November 12, 2008, is not that simple, particularly in light of Mr. G’s existing accommodation and his mental health issues. After considering the interaction between the Employer and Mr. G at the meeting on November 12, 2008, the entire factual context and the submissions of counsel, I am satisfied that the Employer engaged in conduct which amounts to discrimination on the basis of disability as alleged by the Union. I find that certain comments made by Mr. Jones at that meeting were discriminatory and harassing in the circumstances. I also find that, apart from the harassing comments, the Employer failed in its accommodation duty to Mr. G because it did not take into account his mental health - 17 - issues when communicating with him about a matter that would have at least a potential impact on his existing accommodation. Having regard to these findings, I find it unnecessary to deal with the allegation that the Employer also contravened article 9 of the Collective Agreement in that it failed to make reasonable provision for Mr. G’s health and safety. A determination of whether the circumstances of this case would support a breach of article 9 of the Collective Agreement would not affect the remedial issues that will be left for the parties. [24] I will first address the issue of the comments made by Mr. Jones at the meeting in light of the relevant Collective Agreement provision and the Human Rights Code sections. Article 3.1 of the Collective Agreement provides as follows: There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code. The harassment in employment section of the Human Rights Code and related sections are as follows: 5. (2) Every person who is an employee has the right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Section 10. (1), the definition section, defines disability as including “a mental disorder” and defines harassment to mean “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome.” - 18 - [25] As the definition indicates, a finding of harassment in relation to comments requires a course of vexatious comment. Such a comment is one that is annoying or troublesome. The comment must be known or ought reasonably to be known to be unwelcome and it must be based on a protected ground. An objective standard is to be utilized in determining whether harassment has occurred, not the subjective impressions of the person who is allegedly being harassed. In assessing whether comments constitute harassment, I have adopted the following approach as set out in the Gui Xian Xu decision, supra, at page 34: In addition to considering whether the harasser knew his or her behaviour was unwelcome, human rights tribunals also consider the perspective of the person alleging harassment when assessing whether a harasser ought reasonably to have known that the comments or conduct at issue was unwelcome. For example, it has been held that whether the harasser ought to have known that his behaviour was unwelcome depends on whether a reasonable person in the position of the person alleging harassment would find such conduct to be unwelcome and, if so, whether reasonable people in the respondent’s position would know that to be the case… [26] For someone who was at the meeting to simply advise Mr. G about a scheduling change and who was not there to deal with accommodation issues, Mr. Jones had a fair bit to say about accommodation. He started the meeting by referring to Dr. Daien’s recent recommendation that Mr. G be kept at the reception post and then told Mr. G that his doctor did not know the institution and that the doctor was not going to tell them where to place him. It is unclear on what basis that Mr. Jones determined that Dr. Daien was not familiar with the institution. What is clear is that Mr. G’s assignment at the reception post came from Mr. Douglas, not from his doctor, and Dr. Daien was merely giving his opinion that it was appropriate to keep him at that post. This comment could serve only to denigrate Dr. Daien’s extensive role in the accommodation process involving Mr. G. Mr. Jones also told Mr. G that accommodation is supposed to be short term anyway. It is - 19 - unclear why Mr. Jones expressed an opinion which is not accurate to an employee who has required an accommodation for a long time because of serious undisputed mental health issues. Although he told Mr. G that he did not deal with hypotheticals, Mr. Jones told him that there would be no place for him if he could not work the new schedule. Mr. Jones could have simply said that he did not deal with hypotheticals, rather than speculate about what might occur in the future. Apart from the accuracy of the comment, it could only serve to fuel Mr. G’s anxiety. [27] I have no difficulty in characterizing the above comments made by Mr. Jones to Mr. G as gratuitous, vexatious and annoying. They are not the type of comments that are designed to contribute to a positive exchange about accommodation. If a “course of vexatious comment” in the definition of harassment means that a single vexatious comment cannot constitute harassment, Mr. Jones made more than one problematic comment at the meeting on November 12, 2008. I do however agree with arbitrator’s Snow’s analysis in the Re Prestressed Systems Inc., supra, that a single comment could constitute harassment in appropriate circumstances. From an objective perspective, the comments I have identified ought reasonably to be known to be unwelcome. Any reasonable person in the position of Mr. G, an accommodated employee, would find them unwelcome. And a reasonable person in the position of Mr. Jones would know that Mr. G would not welcome the comments. The subjective impressions Mr. G may have had about these comments, based on his personality disorder or other personal issues, are not relevant given the reasonableness and objective standards that are to be applied in determining whether harassment has occurred. The comments are based on the protected ground of disability. - 20 - They were made in the context of discussing a schedule change with an employee who is being accommodated because of his mental health issues. [28] Although the Union argued otherwise, I find that Mr. Jones statement that “we are not going to pay you to sit there; I can get a clerk to do that” is not a harassing comment. The comment was made in the context of a reduction in correctional officer work at the reception post. Any Correctional Officer would take exception to the suggestion that the work at a security post could be performed by a clerk. Mr. G certainly did not welcome the comment. It would have been preferable if Mr. Jones had simply indicated that the reduction in the work at that post required a schedule change. In any event, this comment was merely intended to express this sentiment and a reasonable person from an objective perspective would view it in this way. Unlike the other comments, this particular comment is not based on the protected ground of disability. A reasonable person would not interpret the comment to mean that the Employer was not going to pay him to sit there because he is disabled by mental illness and therefore unable to perform the correctional officer work at the reception post. [29] After considering what occurred at the meeting in its entirety, including the harassing comments, I also find, as noted previously, that the Employer discriminated against Mr. G and failed in its accommodation duty to him because it did not take into account his mental health issues when communicating with him about a matter that would impact on his existing accommodation. The following considerations form the basis for this conclusion. - 21 - [30] For some time, Mr. G had been working on an accommodation that had been established for him by Mr. Douglas. Mr. Douglas had a very thorough understanding of Mr. G’s mental health issues and he had assigned him a post and a schedule to meet his needs. He was given a schedule of 10-hour day shifts, Monday to Thursday, at the reception post. A significant feature of this schedule for Mr. G is that he had Friday as a regular day off. Mr. Douglas knew that it was important for Mr. G to have Fridays off to attend counseling sessions when needed. Mr. G was able to work on the basis of this accommodation, but it still presented challenges for him given his depression, anxiety and inability to sleep well. Without any real appreciation of the basis for Mr. G’s need for accommodation and despite Dr. Daien’s recent recommendation that Mr. G remain on his current accommodation at the reception post, Mr. Jones in essence told him at the meeting that he would be on rotating posts and shifts effective January 2009. Mr. G recognized immediately that this change in assignment and schedule would not provide the routine his doctor believed necessary for him to successfully cope at work. The indication from Mr. Jones that he would not be going to his appointments on their time anymore caused Mr. G to believe that a regular time for him to attend counseling sessions was in jeopardy. Given his accommodated schedule, Mr. G also understood that he was not attending regular counseling sessions with Mr. Dominic on the Employer’s time. And although Mr. Jones did not foreclose Mr. G from providing the Employer with a medical justification for not working rotating posts and shifts, there was a reasonable basis for Mr. G to believe that any such effort on his part would likely be unsuccessful. As noted previously, he was being told about these changes when Dr. Daien had just recommended that he continue with his existing accommodation. Mr. Jones told him that his doctor did not know the institution and that he was not going to tell the Employer where to place him. Mr. Jones - 22 - told him that accommodation was supposed to be short term anyway. And although he did not want to deal with a hypothetical, Mr. Jones also told Mr. G that there would be no place for him if he could not work the new schedule. In examining the relevant context of the meeting, including the proposed changes to Mr. G’s existing accommodation and these comments from Mr. Jones, it is not surprising or unreasonable for Mr. G to have formed the belief that his current accommodation would soon end, that it was unlikely that his mental health needs would be properly accommodated in the future and that there would be no place for him at Mimico since it was likely that he would be unable to work the new schedule. For Mr. G, this meant that his employment was in jeopardy. The prospect that his accommodation might change and that a proper accommodation may not be available to him would not serve to enhance his mental health status. [31] Mr. Jones did not intend to conduct the meeting in a way that would cause a detrimental impact on Mr. G’s mental health. He did not have an appreciation of Mr. G’s mental health issues and he was not aware of the basis for the accommodation designed by Mr. Douglas. However, the Employer, through Mr. Douglas, was well aware of Mr. G’s accommodation needs and the basis for them. The Employer was aware of Mr. G’s fragile state as a result of depression and anxiety. It was aware of Mr. G’s need for a regular routine, the difficulty he had with a change to his routine and the importance of having a schedule that would allow him to have regular access to counseling sessions. A large part of the problem here arose because Mr. Jones did not consult with Mr. Douglas to determine the nature of Mr. G’s disability and how his needs led to the development of his particular accommodation. It is incumbent on a manager who is about to have a meeting for the purpose of advising an accommodated employee about changes that will impact an - 23 - accommodation to inform himself about such matters. This is particularly the case when the employee is being accommodated for mental health issues. I agree with the Union’s contention that the Employer’s awareness of Mr. G’s needs arising from his disability should have caused it to communicate the schedule changes differently at the November 12, 2008 meeting. On the basis of what knowledge it had about Mr. G’s disability, the Employer was in a position to foresee that it was more than a possibility that a meeting of the sort conducted by Mr. Jones could likely cause some deterioration to Mr. G’s mental health. I suspect that Mr. Douglas concluded that the meeting should not have occurred based on similar considerations. [32] As part of its right to manage, it is open to the Employer to make changes to an employee’s schedule. However, the communication of any changes must be done in a way which takes into account its impact when dealing with an employee with mental health issues. In the unique circumstances of this case, the way in which the changes were communicated in light of the knowledge the Employer had about Mr. G, particularly his sensitivity and aversion to change, constitutes discriminatory treatment on the basis of disability. [33] The final matter to address is whether the Union has established whether the Employer’s discriminatory conduct directed at Mr. G at the meeting of November 12, 2008, caused the deterioration in his mental health status. I agree with the Union’s submission that it is no coincidence that Mr. G had been coping at work as an accommodated employee but then experienced deterioration in his mental health soon after the meeting ended. More importantly, I am satisfied that the medical evidence establishes that what occurred at the meeting contributed to the decline in Mr. G’s mental health. As Employer counsel - 24 - submitted, Mr. G’s health care professionals did not have a perfect appreciation of what occurred at the meeting, but this is not surprising. However, as noted previously, his medical care team did have a good grasp of the key elements of the meeting. Therefore, I am prepared to give considerable weight to their opinions that what had occurred at the meeting had a detrimental impact on Mr. G’s mental health. It is likely that Mr. G’s personality disorder did affect his perception of what happened at the meeting to a degree, but I am not prepared to conclude on the evidence before me that his personality disorder was the main cause of the damage to his mental health. [34] It is the foregoing reasons that I determined that the Employer engaged in discriminatory conduct against Mr. G on the basis of his mental health disability. The matter of remedy is remitted to the parties. I will remain seized to address any outstanding issues flowing from this decision. Dated at Toronto, Ontario this 19th day of December 2013. Ken Petryshen, Vice-Chair