HomeMy WebLinkAbout2011-2859.GAM.17-08-11 Decision
Crown 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#2011-2859, 2011-2860, 2011-2861
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (GAM) Association - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Bram Herlich Vice-Chair
FOR THE ASSOCIATION Cynthia Petersen and Kelly Doctor Goldblatt Partners LLP Counsel
FOR THE EMPLOYER Caroline Cohen and Cathy Phan
Treasury Board Secretariat Legal Services Branch Counsel
HEARING Listed in Appendix "A”
Decision
[1] This case involves events which commenced on or about August 14, 2010
and continued until September 17, 2013. Three separate grievances were filed early in
that period: the first, dated August 18, 2010, claims the employer failed to provide the
requisite ergonomic workstation required to meet the accommodation needs of
complainant (also referred to as “GAM” or the “grievor”). The second, dated October 29,
2010, also complains that the employer failed to meet GAM’s legitimate accommodation
needs (although, as will be seen, these are different from the accommodation
requirements raised in the first grievance) and also alleges improper discrimination
contrary to the Human Rights Code and the collective agreement. It also claims the
employer failed to make reasonable provisions for the complainant’s health and safety.
The final grievance, dated December 13, 2010, complains of the employer’s failure to
provide an “alternate work arrangement” (a term contemplated in Article 47.1 of the
collective agreement) and asserts as well that this failure amounts to bad faith and
improper discrimination on the part of the employer.
[2] As is immediately clear, the date of the last grievance precedes (by some
33 months) the culmination of the events which are the subject of this decision. The
parties were in agreement that all of those events should be dealt with in the context of
the instant proceedings. Thus, with a September 2013 end date, we are here dealing
with events which long post date not only the filing of the most recent grievance
(December 2010) but even the commencement of the hearing in this matter (July 2012).
[3] Hearings commenced on July 27, 2012. That day was occupied with
unsuccessful efforts aimed at resolving the grievances. The hearing commenced in
earnest on April 22, 2013. The concluding day of hearing was held on October 18,
2016. Between the latter two dates some 27 days of hearing were held.
[4] We heard the evidence of nine witnesses (six, including the complainant,
were called by the union; three were called by the employer). Some 200 documents
were marked as exhibits. These included some 25 different medical reports or notes
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prepared by various physicians. The complainant’s medical clinical file, which
comprised some 400 pages of medical records and notes, was also filed as an exhibit.
Final argument took many days, with more emphasis on fact than law.
[5] And yet, with the clarity that emerges with hindsight, when all of the dust
settled (a metaphor which, as will become evident, is not always just a metaphor), the
factual differences in the cases presented by the parties are far less significant than
might have appeared at the outset or even during the course of the protracted litigation.
In this respect, it may be useful before reviewing the facts, as the parties did, in all (or,
at least most) of their intricate details, to first outline some of the principal issues and to
indicate, at the very outset, the conclusions to which I have arrived in respect of them. I
will then outline the facts, in an extremely abbreviated fashion, and indicate the alleged
violations the union has asserted, including the conclusions to which I have arrived in
respect of each. I will then, still before reviewing the facts in detail, highlight a few of the
factual clusters which benefit from a retrospective assessment.
[6] The two major issues which pervade the case relate to two separate
disabilities.
[7] First, as a result of a non-work related injury that predates our events, the
grievor has an ongoing need for ergonomic accommodation. To the extent she required
this accommodation in workplaces other than her regular workplace (which has an
ergonomic workstation), the employer consistently failed to fully provide it.
[8] Second, after exposure to chemicals used to clean carpets at her regular
work location, 80 Queen St. in Kingston (“80 Queen”), the grievor developed a condition
which has been diagnosed as Reactive Airway Dysfunction Syndrome (“RADS”). As a
result, she must avoid direct exposure to chemicals or other irritants, including those
commonly associated with construction and renovation. For much of the time covered
by our three-year narrative, the parties disagreed as to whether this condition required
accommodation that would preclude a return to the grievor’s regular workplace. Subject
to a few exceptions at certain points in the narrative, I agree with the employer that the
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grievor has failed to establish that her disability necessitates an accommodation that
would absolutely preclude a return to 80 Queen.
[9] It is also useful to note that, as a result of a third disability, the grievor was
totally disabled for a significant portion of our narrative (November 2010 to January
2012). This was not established, however, until long after the fact and as a result of a
successful appeal of an initial denial of long term disability (“LTIP”) benefits. It follows
that no issue of accommodation properly arises during a period when the grievor was
totally disabled. Similarly, no claim for economic loss arises during the period in respect
of which GAM was in receipt of LTIP benefits. The same may not be true for the six-
month elimination period which, while still a period of total disability, precedes the period
of LTIP benefits.
[10] I now proceed to outline the facts, the issues, and my ultimate conclusions
in slightly greater detail.
[11] The narrative commences in August 2010. The complainant had been
employed by the Ministry for some four years. She commenced her employment in the
Ottawa office and, in 2008, moved to her position as a Senior Program Consultant in the
Kingston office of the Primary Health Care Branch. As a result of a non-work related
injury and to alleviate resulting chronic pain, the complainant was provided with an
ergonomic workstation. This was the result of an ergonomic assessment which
recommended, among other things, a fully adjustable chair, a “freeboard” keyboard with
a sit/stand mechanism, an LCD monitor arm to facilitate working in a sitting or standing
position, a document holder and a push button height adjustable workstation. This
required accommodation was provided by the employer up to and including the
commencement of our narrative in August 2010. A review of the relevant medical
documentation indicates that GAM’s need of this type of accommodation was constant
and invariable throughout the events herein being considered. I will refer to this as the
“ergonomic accommodation”.
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[12] It will be useful to identify and group certain periods of time in the course
of our three-year narrative. I will deal with each of these periods separately. For ease of
reference I now set these out and offer an abbreviated description of the relevant
events, as well as a catalogue of the union’s allegations pertinent to each period. I will
also set out my ultimate conclusions in respect of each of these allegations.
a) August 14, 2010 to September 28, 2010:
From the Carpet Cleaning to the release of the Air Quality Report
[13] On August 14 and 15, 2010, the carpets at the complainant’s workplace at
80 Queen were cleaned by an outside contractor. Several features of the cleaning were
atypical, e.g. it was performed in August, not normally a time for this service due to
seasonally high humidity levels; it was done on the Saturday and the Sunday rather
than the Friday evening prior to the next work week; and the HVAC system was not run
on a 24-hour basis during the weekend to insure maximum ventilation. When the work
week commenced on Monday there was a lingering chemical odour. The carpets were
not entirely dry, some wet spots remained. The complainant did not respond well to the
environment. It impacted her eyes, nose, throat and respiration. She left and worked
from home for the next two days and at alternate work locations on most of the others.
The employer agreed to a suggestion that the air quality (“AQ”) in the office be tested
and also agreed to move the complainant to an alternate work location, pending the
results of the AQ test. Of course, GAM still required her ergonomic accommodation.
There were significant disputes between the parties as to the adequacy of the
employer’s response to that need during this period.
[14] The union allegations that arise (not necessarily exclusively) with respect
to this period are as follows:
• The employer failed to provide the necessary ergonomic
accommodation. As will be seen, this allegation has been made out.
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• Requiring GAM to return to work at 80 Queen after the results of the AQ were known was a breach of the employer’s contractual and statutory obligations. As will be seen, subject to finding that the recall to work was somewhat premature (by a matter of days), this
allegation has not been made out.
• Requiring GAM to use vacation credits to cover her absence in the immediate aftermath of the release of the AQ report rather than
permitting her to work at an alternate location was a breach of the duty to accommodate. As will be seen, this allegation has been made out.
b) September 28, 2010 to January 18, 2012:
(i) From the release of the AQ report (September 28, 2010) to the
commencement of total disability (November 30, 2010) and
(ii) The complainant’s period of total disability (November 30, 2010
to January 18, 2012)
(i) Very soon after the release of the AQ report on September 28, 2010, the
employer concluded that there was no remaining obstacle to prevent the complainant
from returning to work at 80 Queen. From that point on it adhered consistently to that
position even (with some limited exceptions at certain points in time) to the conclusion
of our three-year period. For its part, the union argued that for this period (and for much,
though not necessarily all, of the entire three-year period) the complainant’s second and
more recent disability – a result of her exposure to chemical residues from the carpet
cleaning – precluded, if not forever, then at least on a temporary basis, the viability of
any return for her to 80 Queen.
[15] For the entirety of this period the complainant was off work. Most, if not all,
of her absence was certified by medical notes. Ultimately (but not until March 2011), the
employer accepted the legitimacy of (the bulk of) these absences and the complainant’s
eligibility to therefore claim Short Term Sick Program (“STSP”) benefits. However,
despite the employer’s apparent questioning of the legitimacy of (at least portions of)
the complainant’s absence at the time – something the union claimed might have been
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tantamount to intimidation – GAM continued to receive full salary (not the reduced
amount of STSP that would have been paid had that claim been allowed at the time). To
be clear, this was not a deliberate act of gratuitous generosity on the part of GAM’s
managers. Rather, it appears to have been the product of the less than impressive
administrative attendance reporting and payroll processing procedures which attended
the workings of what the parties know as the WIN system. (The parties will not be
surprised to learn that, in this Vice-Chair’s experience, this is not the first time the
shortcomings of WIN have featured in proceedings before this Board.)
[16] And while there would have been an obvious immediate benefit to the
complainant, in receiving full salary at the time, this payment has certainly complicated
duelling claims and assertions between these parties. For example, on any given day in
this period (which for this purpose extends at least into March 2011), the complainant
might well have been entitled to full salary, no salary, STSP benefits, or STSP benefits
topped up to the equivalent of full salary. To now go back, up to seven years after some
of the events in question to unscramble this day by day, week by week pay omelette
may be something of a daunting task for a limited return.
(ii) The complainant was approved for long term disability (“LTIP”). This too
was not a simple process. Her initial claim was denied by the insurer. The appeal of that
decision was, pursuant to the terms of the collective agreement, ultimately placed
before me, on agreement of the parties, in my capacity as an “independent third party”
with “the powers of a Vice Chair” of this Board to, effectively, rule on the complainant’s
LTIP claim. Hearing in that matter took place in February 2015 (while the hearing in the
instant matter continued) and a final decision issued on March 12, 2015 (GSB File No.
2013-1965).
[17] That decision determined (some three to five years after the fact) that
GAM had been totally disabled from November 30, 2010 until January 18, 2012 when
she sought to return to work. The six-month period commencing November 30, 2010
was the “elimination period” under the terms of the insurance contract. During this
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period, the complainant would not have been entitled to receive any LTIP benefits. And
during this period, at least until March 2, 2011, GAM’s employment income was largely
continued in the fashion described in the preceding section (i.e. with the employer
declining to accept her eligibility for sick pay while continuing to pay her full salary). On
March 10, 2011, when the employer finally approved her sick leave for most of the
period dating back to October 7, 2010, it also advised her that her sick leave benefits
had been exhausted as of March 2, 2011. Thus, the grievor received no employment-
related compensation from early March 2011 until late May 2011.
[18] Once the six-month elimination period concluded, GAM was entitled to
receive LTIP benefits until the conclusion of her total disability in January 2012. Of
course, at the time she received no such benefits (or any employment income) as the
determination of her entitlement was not made until March 2015.
[19] The alleged violations advanced by the union and referable to this time
period are as follows:
• The employer breached its duty to accommodate by sending misleading and inappropriate questions to the grievor’s MD. This will be dealt with in the context of the union’s claim related to
procedural obligations that attend the duty to accommodate. As will
be seen, this allegation is not made out.
• The employer breached its collective agreement obligations by
delaying its approval of STSP benefits despite having been
provided with sufficient medical certification. As will be seen, this allegation is made out.
• The employer failed to accommodate GAM through the fall of 2010 when she was able to work had appropriate accommodation been provided. As will be seen and with respect to the period subsequent to October 7, 2010, this allegation has not been established.
• In December 2010, the parties arrived at an interim agreement from which the employer subsequently resiled. As will be seen, this allegation has not been made out.
• While there is much to criticize in the employer’s delivery of cleaning samples to the grievor’s home, as will be seen, I have not
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been persuaded that this amounts to any relevant breach on the employer’s part.
c) From January 18, 2012 to May 27, 2013: From the end of total
disability to the actual return to work some 16 months later
[20] In January 2012 the complainant’s attending physician certified her as
capable of returning to work subject to certain limitations. During this period, the parties
disagreed about the need and sufficiency of medical information provided and were
equally unable to agree on any actual return to work. As already noted, the initial
hearing day in these grievances was held on July 27, 2012. Efforts were made but
yielded no positive results regarding any return to work. The formal arbitration process
commenced in earnest on April 22, 2013, the first of some 30 days of hearing,
extending into October 2016. However, not long after the first of those dates the parties
entered into an interim return to work agreement, effective May 27, 2013.
[21] The union advances several allegations referable to this period. Each of
these relate to ways in which the union claims the employer was less than diligent in
efforts to return GAM to work and providing her necessary accommodation. As will be
seen, with respect to this period (but only) up to July 17, 2102, there is merit to the
union’s claim, although there is some level of shared responsibility between the
employer and the grievor for the failure to effect her return to work. After July 17, as will
be seen, I have not been persuaded that the union’s allegations have been made out.
Neither was I persuaded that the employer was under any legal obligation to conduct a
second AQ test.
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d) From May 27, 2013 to September 17, 2013:
the interim return to work
[22] Pursuant to the terms of an interim agreement, GAM returned to work on
May 27, 2013 and worked from that day until September 17, 2013. We heard no viva
voce evidence regarding these events. Rather, the parties submitted an agreed
statement of facts and supporting documentation. During this period the union claims
there were ongoing issues regarding the ergonomic accommodation. One or two other
less significant issues were also raised. The union advises that in or around the
conclusion of this period, the parties entered into a further agreement which has since
governed the complainant’s employment. Thus, our inquiry ends at the conclusion of
this last period on or about September 17, 2013.
The union’s allegations in respect of this period are as follows:
• The employer failed to enforce its no scent policy. As will be seen,
this allegation is not substantiated.
• The employer failed to properly advise and make arrangements regarding a period of construction at the worksite. As will be seen,
this allegation is not made out.
• The employer failed to fully provide the ergonomic accommodation GAM required. As will be seen this allegation was established.
Two further allegations
[23] The union advanced two further allegations which are not necessarily
specific to any time period:
• The employer, at various points, breached its obligations by failing to approve GAM’s request for “compassionate transfer”.
• The employer, at various points, breached its duty to accommodate as well as the provisions of the collective agreement by failing to
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provide the grievor with an “alternate work arrangement” as contemplated by Article 47.1 of the collective agreement. As will be seen, while I have found that there is some merit to these allegations, I have
not been persuaded that any further remedy is appropriate or necessary beyond my
finding.
****
[24] Before proceeding to examine each of the enumerated periods in greater
detail, it will be useful to consider two factual clusters, i.e. the nature of GAM’s
disabilities and the medical evidence, particularly with respect to RADs and its impact
on her ability to return to 80 Queen. These clusters pervade many or all of the periods in
question and are the principal areas which benefit from what I have described as the
clarity of hindsight. And these both pertain in one fashion or another to the
complainant’s various disabilities, including those which required accommodation.
[25] Over the course of the events in question, the complainant has suffered
from what might be described as three distinct disabilities. I believe it is fair to say that,
with respect to the nature of these disabilities and the accommodation they may or not
require, there is little or no controversy regarding the first, which I have already
described as requiring the ergonomic accommodation; there is no longer any
controversy regarding the second, i.e. the complainant’s period of total disability; and
there remains considerable controversy regarding the third, which I shall detail shortly,
and, in particular, whether and to what extent and when this disability may have
permitted or precluded the complainant’s return to work at 80 Queen.
The ergonomic accommodation
[26] In June 2008, the employer commissioned an ergonomic assessment of
the complainant to address pain and discomfort she was experiencing at work following
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a non-work related injury in February 2006. The purpose of the assessment was to
identify risk factors known to contribute to musculoskeletal disorders. The following
recommendations were made with respect to modifications of GAM’s workstation:
• A new chair with full adjustability (armrest, seat pan depth, lumbar height, and tilt/rock/lock)
• A keyboard with a sit/stand mechanism
• An LCD monitor arm with a pole extension
• A document holder
• A height adjustable workstation facilitating work at any given
height by pushbutton operation
[27] The recommended equipment was provided at the time and was in place
in August 2010, the start of our narrative. Further, there can be no question that the
complainant’s need for this particular accommodation was constant and unwavering
throughout the period in question. The complainant reminded the employer (albeit
without particulars) of this requirement on day two of our three-year narrative and the
ongoing need for this accommodation was directly and indirectly confirmed in at least
five medical notes and reports proffered in late 2010 and early 2011. As will be seen,
the employer was, during selected periods of time, less than completely diligent in
providing this necessary accommodation.
Total disability
[28] The second disability is not directly related to either the first or third. It was
the total disability dealt with in the decision of this Board referred to earlier. The
established determination of total disability from November 2010 until January 2012
aids the instant endeavour in a number of respects. First although there were clouds of
employer suspicion, or at least questioning, over the bona fides of GAM’s absence (at
least from October 2010 to March 2011), there can be no question that these absences
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were legitimate, something the employer itself also acknowledged in March 2011 when
it retroactively approved GAM’s sick leave claims.
[29] But perhaps far more significant, it stands to reason that where, as here,
there was never any issue or claim to any possible job apart from the complainant’s own
(the issue having always been confined to location), no claim for accommodation can be
properly advanced in respect of a period of total disability. Thus, while there were many
arguments between the parties during this time period regarding both entitlement to sick
leave and the alleged failure to accommodate, the former issue is now determined and
the latter is precluded by virtue of the now indisputable status of the grievor as totally
disabled during the period of total disability.
[30] And as it happens, the event which was subject to perhaps the greatest
amount of factual dispute between the parties is consequently rendered far less
significant to our current enterprise. In December 2010, the parties participated in a
Stage Two grievance meeting in respect of all three grievances. According to a number
of union witnesses, the parties arrived at an interim settlement of the matters, but the
employer subsequently reneged on its commitment. There was no signed or written
settlement document. However, for its part, the single employer witness who testified
regarding this event (and some of the employer’s subsequent correspondence)
contradicted the union’s assertion. In the employer’s view, there was never any
settlement per se, be it final or interim. There was merely an identification of a number
of factors or elements that might contribute to a resolution. And, in any event, all of
those factors were subject to the employer’s option (which it exercised) of securing
further satisfactory medical information. And, beyond even that, any resolution was
obviously contingent on the grievor being medically cleared to return to work, something
that did not happen (at least not until more than a year later, marking the end of the
period of disability). Thus, in the employer’s view there was no settlement and, certainly,
nothing to implement as of December 2010.
[31] These events perhaps highlight the difficulties which arise and the
possible need, in some cases, to distinguish between what the facts are (or were) and
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what the parties may have thought they were at the time they unfolded. This may
necessitate some consideration of the parties’ conduct with respect to accommodation
issues even at a time where (it is now clear) no legitimate claim for accommodation
could arise.
Reactive Airway Dysfunction Syndrome (RADS)
[32] While there was much disagreement between the parties as to the nature
and extent of accommodation required, if any, there was little dispute about what the
disability is and how it arose. As a result of her exposure to chemical agents at the
workplace, GAM developed RADS.
[33] But despite whatever such disagreements there may have been or
continue to be between the parties, the medical evidence has been relatively uniform
regarding the nature of this disability and any accommodation it may require. I have
already adverted to the volume of medical evidence received. I should add that we also
heard the viva voce evidence of Dr. Laura Di Quinzio, who, but for a period of leave,
was the complainant’s attending physician for the relevant time periods. We also heard
the evidence of Dr. Noel Kerin, who following some questioning by the parties, was
qualified, on their agreement, as an expert witness in the field of occupational medicine.
Dr. Kerin also had the opportunity to examine the complainant, have certain testing
done and to prepare a number of reports, which were filed in evidence.
[34] Perhaps not unlike the evidence regarding the ergonomic accommodation,
the medical evidence regarding the complainant’s development of RADS and the
attention and workplace accommodation that requires is relatively consistent during the
entirety of the periods under examination. While the diagnosis of RADS does not
appear to have been made (by Dr. Kerin) until February 2012, the prior evidence, in the
form of a medical note from Dr. Tsai, whose area of practice includes Clinical
Immunology and Allergy (Asthma and Allergic Diseases) is consistent with the later
assessment of Dr. Kerin, at least with respect to some of the workplace precautions that
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might be required. And, indeed, in correspondence between Dr. Tsai and Dr. Di
Quinzio, dated September 16, 2010, the former refers to GAM’s condition as Reactive
Airways Disease/Asthma. Dr. Tsai’s note, also dated September 16, 2010, details the
complainant’s exposure and reaction to the lingering carpet cleaning chemicals, records
(the otherwise unsupported) information conveyed to her by GAM to the effect that
“higher than recommended doses of chemicals were permitted to be used”. Dr. Tsai
concluded as follows:
Her clinical history is consistent with a chemical irritant reaction. She can have problems with other irritant reactions. She should avoid chemical irritants, strong scents and smoke. She should work in a well
ventilated smoke free, scent/irritation free environment. Working from home would be a good option.
[35] With the exception of the last sentence (and we shall return to the
question of working from home, an option consistently advanced and favoured by the
complainant), the employer (consistent with Dr. Kerin’s testimony) characterized the
above requirements as “the basics”, i.e. insuring that the work environment is as pristine
as possible, recognizing both that perfection may be impossible and that there may be
periods where GAM’s physical presence in a particular workplace might be contra-
indicated. For example (although there may have been disagreements regarding how to
operationalize it), there was an implicit agreement between the parties that requiring
GAM to attend at a workplace undergoing renovations would not be wise.
[36] Although Dr. Tsai’s note was prepared during and with respect to period
#1, it appears that the complainant did not produce it to the employer until sometime
during period #3 in February 2011. Dr. Tsai did prepare a further note, in February 2012
(during period #4, when the complainant was attempting to return to work). The
contents of the 2012 note echoed those of the 2010 note cited above.
[37] I also note that in the correspondence just referred to between the two
physicians there are two further points warranting comment.
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[38] First, with respect to the comment regarding higher than recommended
doses of chemicals having been used in the carpet cleaning, this correspondence
suggests that there is written documentation to that effect. No such documentation was
ever provided and, of course, in fairness to Dr. Tsai, it presumably would have been the
grievor (who provided no evidence on the point) who provided this information. This was
not the only occasion on which GAM appears to have been selective or creative in the
information provided to her caregivers.
[39] Second, in the correspondence to Dr. Di Quinzio, Dr. Tsai described the
grievor’s condition (Reactive Airways Disease/Asthma) as “mild and intermittent”.
[40] Dr. Kerin first saw the complainant in February 2012. The report that he
prepared indicates that the purpose of his consultation was to evaluate whether or not
certain complaints brought by GAM could reasonably be said to be occupationally
induced. And while that question is of little direct significance for our current purposes,
Dr. Kerin’s conclusions are valuable. He offered a diagnosis of:
Work related Asthma secondary to off-gassing work exposures – Reactive Airway Dysfunction Syndrome (RADS)
[as well as the following discussion/opinion:]
[GAM] was exposed to significant off-gassing following carpet cleaning in her place of employment. Pulmonary function testing and Methacholine Challenge testing carried out on April 5th 2012 in which
Methacholine Challenge test produced flow rates that were decreased significantly and results are consistent with borderline hyper-reactivity and a cough variant of asthma… [GAM] has had a well-documented reaction to volatile organic
compounds in her workplace on at least 2 days following each other, namely August 16th and 17th 2010. She had significant respiratory reactions following those exposures and a Methacholine challenge test carried out last month confirm hyper-reactive airways dysfunction. This condition is also known as irritant type asthma… According to the
[expert] consensus document [produced by the American College of Chest Physicians] every adult whose asthma begins or worsens while
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working, the possibility of work-related asthma should be considered and evaluated. Review of the supplied MSDS sheets failed to reveal evidence of known sensitizers that may induce occupational asthma such as
diisocyanates, trimellitic anhydride, etc. The likely scenario that occurred in this case is one where heavy exposures to volatile organic compounds caused an irritant type asthmatic condition to develop. The treatment of this form of asthma is no different [from] any other form of asthma in that the environment chosen by the asthmatic to work in
should be scent free with appropriate air exchange rates per unit of time, appropriate humidity and temperature are also required for optimal functioning of a person with irritant form of asthma.
[41] Dr. Kerin was consulted a second time in October 2012. He examined the
complainant and prepared a report dated October 23, 2012. In it he repeated, indeed
cited, portions of the above comments and also added the following:
Avoidance of the same type of chemicals, such as were used in the carpet cleaning, should obviously be avoided in the future as they appeared to be the original precipitators of this condition…
[42] Some days later, Dr. Kerin offered a further missive. More factual context
is required. On or about September 17, 2012 (then) employer counsel wrote to union
counsel advising that the employer was in the process of setting up a (second) AQ test
at 80 Queen. Counsel requested, “in the interest of ensuring that the test directly
addresses the Grievor’s needs” that the union “provide details regarding what chemical
irritants, scents, and products the Grievor is medically restricted from”, in order that the
presence of such items at 80 Queen be specifically tested. The union forwarded this
document to Dr. Kerin after he had produced his October 23, 2012 document. Dr.
Kerin’s response, dated October 30, 2012, included the following:
…The request by Ms. Phan, although I’m sure well intended, cannot be readily answered in its entirety because it is impossible to know what cross-reaction to chemicals we incur once a significant reaction has occurred as in this case with reactive airways dysfunction
syndrome (RADS). Chemical cross reactivity is common in this type as in other types of irritant asthma.
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The general guidelines are that [GAM] be accommodated in a scent-free workplace. The general understanding of scent-free workplace is that people are not allowed to wear perfumes in the work environment. As this is a relatively frequent request in the workplace of today, it
should not pose a significant barrier to [GAM’s] future employment. With respect to chemical irritants [GAM] should avoid direct [emphasis in original] contact with cleaning agents such as chlorine based e.g. Javex, ammonia, bleach, etc. These are common cleaning agents and their use has been discontinued in many workplaces in favour of more
environmentally friendly cleaning agents. As [GAM] has not shown evidence to date of anaphylaxis, the risk generally of challenging her with a worksite would appear to be reasonable with regards to her safety. Should a reaction begin to take
place then immediate withdrawal from the workplace should be instituted. [GAM] does have respiratory distress rescue medication available to her at all times. Given [GAM’s] depth of education on the general principles applied to chemical sensitivities, I do not perceive this as a definite barrier to returning to work in such a work
environment as described above.
[43] This would not be the last occasion for Dr. Kerin’s contribution. On
December 4, 2012, he again wrote to the union. His opening paragraph indicated that
he had been provided with:
…written communication from [GAM] stating that my letter of October
30th 2012 appears to side with management in this dispute as enabling the employer to place [GAM] in any environment in the workplace…
[44] [GAM’s correspondence to Dr. Kerin had apparently pointed to the
following sentence from Dr. Kerin’s previous report as the basis for the view being
attributed to the employer]:
As [GAM] has not shown evidence to date of anaphylaxis, the risk
generally of challenging her with a worksite would appear to be reasonable with regards to her safety.
[45] I note, however, that no copy of GAM’s letter setting out this complaint
was filed in evidence.
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[46] In any event, Dr. Kerin, while suggesting that any such categorical
inference might not be appropriate, acknowledged that he had “no direct comments
from management” and was therefore “unable to say what their exact position is. He did
go on, however, to yet again enumerate (in bullet form) the precautions he identified as
“guidelines in a satisfactory accommodation exercise”:
• GAM should not be exposed to carpet cleaning chemicals. It would appear her RADS arose from the chemicals used in carpet cleaning in her place of employment.
• GAM should be accommodated in a scent free workplace environment
• Appropriate temperature and humidity control in her work
environment.
• Abstain from exposure to any construction site dust material.
And, finally, he concluded:
The general requirements for accommodating worker with RADS
require reasonable dialogue between the worker and management
with respect to the above outlined cautions as enumerated. As stated in my October 30th 2012 letter, paragraph 4, [GAM] has not shown exquisite hypersensitivity (anaphylaxis) that is not to say that anaphylaxis may not develop in the future. However, given that it has
not occurred to date, it is reasonable to proceed with caution,
respecting the above itemized areas of precaution in the accommodation process.
[47] Dr. Kerin also favoured us with his viva voce evidence. Both his
examination-in-chief and cross-examination were consistent with his written reports.
[48] He quickly made his general view of carpeting evident: it is a “filthy”
manner of floor covering. Despite that, he acknowledged that advocating its wholesale
removal from the workplace would not be practical. In any event, it was the
complainant’s exposure to chemical agents that was likely the prime cause of GAM’s
condition and remains the prime concern in respect of any potential future issues.
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[49] Dr. Kerin was clear (with both counsel) that it would be reasonable for the
complainant to “challenge” the workplace. Trial and error, while obviously not providing
the ultimate certainty one would prefer, was a reasonable approach in GAM’s
circumstances. Her initial exposure was not a catastrophic event, her reactions were not
life threatening and she had no tendency to anaphylaxis. In that context, it would be
reasonable, provided the “basics” (i.e. a clean office, limited, if any, off-gassing, no fresh
cleaning agents and basic air quality standards (including humidity controls)) were in
place, for the complainant to make an effort to return to the workplace. Should there be
any resulting difficulties, GAM had ready access to rescue medication and, if necessary,
a removal from the workplace could be effected. He indicated his view that it would
have been reasonable to attempt a return to the work location about a month after the
cleaning and appeared surprised when advised by employer counsel that GAM, after
attending at the workplace on the first and second days following the cleaning, never
returned to that location. Even in the face of the second AQ report (which issued in
January 2013), Dr. Kerin confirmed that the preferred course of action would have been
to attempt a return to the workplace. He also expressed the view that the option of
reintegrating GAM into the workplace environment was one that was being “blocked”
because she was saying that she felt better away from the workplace.
[50] I should also note that while Dr. Kerin’s written contributions commenced
in February 2012, employer counsel advised that none of the reports just referred to
were provided to it until well after the instant proceedings commenced in earnest (our
first day of hearing evidence, following the unsuccessful mediation effort in July 2012,
was not until April 2013). But while there may be some issues regarding what the
employer knew when or the timing of the production of relevant medical information, the
review I have just completed of the medical specialist and expert evidence regarding
RADS paints a constant and consistent picture from the inception of the complainant’s
respiratory difficulties and throughout the periods which concern us. Like the ergonomic
accommodation, the complainant’s disability and the nature of any accommodation
required are not complicated.
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[51] I return now to the five time periods in question and a more detailed
examination of the facts and issues associated with each of these.
Period #1: August 14, 2010 to September 28, 2010:
From the Carpet Cleaning to the release of the Air Quality Report
[52] The events associated with this time period occupied a significant portion
of our hearing days – we heard the evidence of five witnesses (not including that of Dr.
Di Quinzio) who were directly involved in these events at the workplace:
• GAM
• David Wilkins – an AMAPCEO Workplace Representative, who
was involved primarily in matters related to the ergonomic accommodation.
• Donna McQuillan – Acting Program Manager at the time and
GAM’s direct manager.
• Laura Pinkney – the Manager, Salaried Models and Programs at the time and GAM’s senior manager (Ms. McQuillan reported
to Ms. Pinkney).
• John Romard – Manager of Business Integration Services – he was responsible for, among other things, business support
services, procurement and accommodation (more in the sense of facilities management).
[53] Despite the amount of time devoted to these events before me, the facts
are relatively uncontroversial.
[54] During the weekend of August 14 and 15, 2010 carpet cleaning was
conducted at the workplace. Mr. Romard acknowledged that at least two aspects of this
event were atypical: the cleaning was performed on the Saturday and the Sunday,
rather than the Friday evening; the HVAC system was on a reduced cycle during the
cleaning, it ought to have been on a normal setting to promote ventilation. By Monday
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morning when employees returned to work, there were still portions of the carpet that
had not completely dried.
[55] When GAM reported for work she quickly noticed her adverse reaction:
her eyes and throat were irritated, there was a pungent odour in the air and she was
experiencing laboured breathing. After discussing her difficulties with Ms. Pinkney, she
left the workplace and worked from home for the balance of the day. Ms. Pinkney
advised her that (although scheduled to leave on vacation the following day) she would
be following up.
[56] The following day GAM, although not directed to, reported for work (as
Ms. McQuillan put it: “she came in on her own”.) Unfortunately, she was still responding
poorly to the environment and, once again, left the workplace. There then followed an
exchange of emails, all on the same day, August 17, 2010. The material portions of
these are largely self explanatory:
8:49 AM - GAM to McQuillan:
I am in the office and reacting again to the fumes…I will be leaving shortly and continue to work from home 9:25 AM – McQuillan to GAM: John Romard has arranged a workstation for you…at 27 Place
d’Armes. The workstation has a phone but no computer so you can
take your lap top with you…You will have full functionality and access to network drives. 9:26 AM – GAM to McQuillan:
I have an eurgonomic [sic] station at work and at home that is a requirement for me. Are we able to set that up at 27? And or is it possible to have network access from home until the situation at 80 Queen is resolved?
4:13PM – McQuillan to GAM: …We’ve found the air quality to be much improved today and I would like you to report to work at 80 Queen in the morning and we can determine if you are OK to remain at work. If not, we’ve made arrangements for an ergonomically designed
workstation at MCB [a.k.a. 49 Place d’Armes, not to be confused with 27 Place d’Armes]. I will take you over there and you can assess if this workstation can be adjusted to accommodate your needs…
- 22 -
4:36 PM – GAM to McQuillan: …Let’s set up a station then at 27 as previously suggested…I can meet you [there] at 8000h tomorrow morning. Does that timing work for you?
4:47 PM – McQuillan to GAM: OK … I’ll meet you outside at the side door.
[57] I have reproduced this exchange because in my view, it demonstrates, but
two days into our three-year narrative, the pathological character that would attach
throughout to the dealings between the complainant and the employer.
[58] In response to a proposal that she work out of 27 Place d’Armes, GAM
advised of her need for ergonomic accommodation. In response, Ms. McQuillan
indicated that the employer had made arrangements for such a station at MCB (not at
27 Place d’Armes, which was previously under discussion). The complainant responded
“Let’s set up a station then at 27 as previously suggested” – a curious response in its
own right, never convincingly explained by the complainant, but, equally, not challenged
but simply accepted by the employer at the time. This exchange just begs so many
questions, but the participants were apparently willing and content to avoid the clarity
which might have enhanced the process. At least two things are clear. Had the
employer said, in its last email above – “but you understand, of course, that there is no
ergonomic station available at 27”, things may well have unfolded differently. Instead, it
chose to point, later on and, in my view, entirely unfairly, to this exchange as
demonstrating that the complainant had agreed to, indeed had requested that she be
permitted to work without ergonomic accommodation. (It also seems somewhat unlikely
to me that an employer, aware of an accommodation need, would willingly face the
potential consequences of permitting an employee to work without a required
accommodation.) On the other hand, had the complainant responded in the later stages
of this exchange confirming that that she still required the ergonomic accommodation,
regardless of location, that, too, may well have altered the course of history. Instead, in
a pattern which is not restricted to these events, the parties opted to sit back quietly in
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what evolved into the hope that the other might be caught in or otherwise tainted by its
perceived improper conduct.
[59] GAM continued to work at 27 for the balance of the week (i.e. August 18-
20). There was no ergonomic accommodation at that location. She resisted Ms.
McQuillan’s suggestion (on August 18) that the expectation was the situation would be
resolved by the end of the day on Thursday August 19 and that the complainant should
therefore return to 80 Queen on Friday the 20th to assess her ability to remain at work.
GAM responded on the same day:
With all do [sic] respect. I will remain working here at 27 Place D’Armes for the remainder of this week and longer is [sic] necessary. I will not expose my self any further to the environment at 80 Queen or be pressured to do so.
Once I am assured in writing that the environment is free of fumes and there is no chance that I will react in any way to the chemicals that had been used I will gladly return to 80 Queen.
[60] And on that very same day Dr. Quinzio penned a note which included the
following:
…I have advised that [GAM] not return to this place of work [i.e. 80 Queen] until it is deemed safe by a third party. She is able to fulfill all her duties during her regular work hours at a
different location until her workplace at 80 Queen is deemed safe. As you are aware, she has a specially constructed eurgonomic [sic] station at 80 Queen St. She would require this to be moved to another work place temporarily, or have a duplicate constructed there due to medical reasons. Alternately, she already has a duplicate eurgonomic
[sic] station at her residence and would be able to work from home.
[61] On Friday August 20, 2010, Ms. McQuillan responded (by email) to GAM’s
prior email and to Dr. Di Quinzio’s note as follows:
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…I am writing to confirm for the balance of this week you will remain at 27 Place D’Armes. As previously offered by the employer and noted as a recommendation in your physician’s letter dated August 18, 2010 from
Dr. Di Quinzio, the employer is to provide you with an ergonomic work station, as provided at 80 Queen. The temporary arrangements in an alternate work place are deemed short term. We have arranged to have an ergonomically constructed workstation
available to you at the MacDonald Cartier Building (MCB), 49 Place d’Armes to support your medical needs. You are directed to report to work on Monday, August 23, 2010 at 8:00 a.m. at the MCB location to the 4th floor, Business Operations & Claims area. As you and the employer recognize, the 27 Place d’Armes location does not have an
ergonomic workstation available. The employer is currently making arrangements for an air quality assessment at 80 Queen Street related to the products used to clean the carpets, with an expectation of conclusion early next week.
Once the air quality testing has been completed and with the assumption that they will provide a ruling that the product is no longer in the environment, I will be in touch to provide you with the confirmation. Obviously, if the results do not ensure the environment is
suitable, your reporting location will remain at 49 Place d’Armes until we successfully obtain confirmation that the environment is free of the chemicals used during the carpet cleaning.
[62] GAM reported for work on August 23, 2010. She enlisted the assistance of
Mr. Wilkins who, based on a comparison between what the employer was offering at 49
Place d’Armes and the existing ergonomic station at 80 Queen, concluded and advised
Ms. McQuillan that the former was not a “duplicate of the 80 Queen Street set up.” Ms.
McQuillan indicated she would follow up but her reply email indicated the following as
well:
The air quality testing is expected to be completed in the next couple of days and we are hopeful that the employee can return to her home location at 80 Queen Street in the near future.
- 25 -
[63] In his response, Mr. Wilkins suggested that the AQ report might well take
longer than she expected (it was, in fact, not released until September 28, some five
weeks later). And, in view of his understanding of the likelihood of future construction
work at 80 Queen, he suggested that telecommuting would be a simple and cost
effective solution. Alternatively, he suggested that a Ministry ergonomist be engaged to
create the duplicate workstation at the temporary location.
[64] (I pause to comment briefly on the telecommuting or the “work from home”
option. This was an option that the complainant and the union advocated ought to have
been the option of choice at several points in our narrative. And it was a position they
cleaved to even in final argument. The issue of the work from home option as one that
ought to have been adopted, even on a temporary basis, is one that I will address
separately later in this award. However, for reasons which will be addressed later, I
have concluded that, although the work from home option may well have been the best
one at many points in the narrative (certainly from the complainant’s perspective), the
employer did not breach its duty to accommodate or violate its obligations under the
collective agreement by refusing to accede to this request.)
[65] The complainant worked at 49 Place d’Armes from August 23 to August
27 at an ergonomic station which, in her view and that of Mr. Wilkins, was not adequate
to her needs. However, and despite any such deficiencies, on August 27 Ms. McQuillan
advised GAM that the workstation she had been using was to be redeployed. A
replacement was to be provided.
[66] GAM experienced pain during the week she worked at 49 Place d’Armes.
She attended at her physician on Friday the 27th and procured a note which she
provided to the employer the following Monday. It read:
This patient was seen in clinic again recently. Due to medical reasons precipitated by a lack of an eurgonomic [sic] station, as suggested in my last letter which you have received, she is unable to attend work at
this time. She will be able to return once the eurgonomic station has
- 26 -
been put in place. Alternatively, she would be able to return to full-time work hours if accommodated at home as per my last letter.
[67] Also on August 30, GAM filed the first of the three grievances which are
the subject of the instant proceedings:
Despite clear and persistent direction and advice which began on
August 18th, 2010 from both my physician and bargaining agent representative, the employer has not complied with direction to provide a “duplicate” ergonomically designed and suitable workstation while remediation of chemical contamination of the 80 Queen Street workplace is ongoing. Failure to provide this “duplicate” workstation as
per the collective agreement has exacerbated my medical condition.
And the relief sought:
Provide a duplicate ergonomically specifically designed for me to work at immediately or allow me to work from my residence where a duplicate station all ready [sic] exists. The specifics of this design are available from the Ministry ergonomist - please consult with her a
ASAP.
[68] On the same day the grievance was filed there was the following
exchange between Ms. McQuillan and Mary Fleming, Director of the Branch. The latter
inquired:
Ok … dumb question but why haven’t we fixed up the work station.
The doctor is quite clear that [GAM] has asked repeatedly for us to do so.
The former replied:
I asked [GAM] in a face to face meeting on Aug 24 to document in an email what needed to be changed – my plan was to ask the ergonomic assessor to identify adjustments that could be made. [GAM] didn’t
respond. We were hoping that the air testing would be done [it had yet
to commence at the time] and she’d be back at 80 Queen last week.
- 27 -
[69] With the exception of her attendance at the Stage 1 grievance meeting on
September 7, 2010 and at an ergonomic assessment on September 13, 2010, GAM
was absent from work from August 30 until her return on September 22, 2010.
[70] On the day following the filing of the grievance, the AQ testing
commenced at 80 Queen (the report would issue four weeks later).
[71] There was much to and fro between the parties during this three-week
period of GAM’s absence. It is one of the areas where there was some divergence in
the evidence of the complainant and Mr. Wilkins, on the one hand, and that of Ms.
McQuillan and Ms. Pinkney on the other. While, in large measure, I have not found it
necessary for our purposes, to resolve all of these conflicts, I should say that, in
general, I prefer the evidence of the union witnesses regarding this period of time. First,
I note that Mr. Wilkins was not subject to any meaningful cross-examination regarding
his version of events which was later contradicted by employer witnesses (e.g. the
conflicting accounts of who was actually present, let alone what transpired at the
ergonomic assessment on September 13, 2010). Second, I have found Mr. Wilkins’s
accounts to be more congruent with what seems probable in the circumstances. And
even accepting one of the employer’s undoubtedly legitimate complaints regarding the
timing and details of GAM’s complaints about inadequate accommodation, I am still
persuaded that the employer failed to provide the necessary accommodation. But
perhaps the principal impetus for this conclusion can be described as follows.
[72] The parties disagreed about the conclusions to be drawn from a
“Workstation Summary Report” prepared by the employer’s Centre for Employee
Health. It compared the complainant’s 80 Queen St. workstation with that of the
alternate workstation now being offered at 49 Place d’Armes. In my view, this report
clearly demonstrated existing deficiencies in the latter. The parties disagreed about the
results of the ergonomic assessment conducted on September 13. There was no
question that there remained at least some minor deficiencies to be remedied through
the procurement of additional items (e.g. a footrest and a wrist support). However, two
- 28 -
days following the assessment, Mr. Wilkins wrote to Ms. McQuillan, advising that the
chair in the alternate location was not a “duplicate” of the chair at 80 Queen and that
GAM would therefore not be returning to work. The employer was apparently of the view
the allegation of any deficiencies in the chair was news to it and lamented the (two-day)
delay in bringing this to its attention. Mr. Wilkins painted a very different picture of what
had transpired during the assessment – he asserted that the ergonomist had clearly
expressed his view regarding the shortcomings of the chair being provided. As we shall
see shortly, however, subsequent documentation provides further support for Mr.
Wilkins’s presentation.
[73] There was a flurry of internal employer email activity on September 16 and
17, 2010. A significant impetus for these exchanges did not emerge directly from
questions regarding the sufficiency of the accommodation then being offered. Rather, it
appears that, whatever the sufficiency of that accommodation, it would not, for
operational reasons, be available beyond Friday September 17, 2010. Thus, while
awaiting what it expected was the imminent release of the AQ report which it also
believed would bring an end to any obstacle to GAM’s return to 80 Queen, the employer
was now making efforts to find yet another alternate location where the complainant
could continue working with the necessary accommodation.
[74] The course of that communication, largely between Ms. McQuillan and
Dawn Bairstow, an HR advisor from the Ministry of Government Services, focused on a
number of different things. Ms. Bairstow suggested that in view of the impending loss of
the current work station that it would “be a good idea to plan a little more diligently” in
finding a replacement location; Ms. McQuillan reported the results of some investigation
she had conducted – GAM’s chair at 80 Queen was custom designed based on
specifications from the original 2008 assessment; even if it were to be ordered afresh, it
would take 4 weeks for delivery and would be a difficult expense to justify. Ms. Bairstow,
correctly in my view, objected to casting the matter in terms of creating a “duplicate”
chair or workstation. I note, however, that although Mr. Wilkins’s choice of the word
“duplicate” (echoing the language of the grievance) may have been unfortunate, it is
equally clear that neither he nor the union (despite some continuing employer
- 29 -
protestations) were using the word literally. I believe that both parties understood that it
was the functional aspects of the 2008 assessment that were to be duplicated, not
necessarily the equipment and certainly not necessarily the brand names thereof.
[75] In any event, in the final email of this exchange, Ms. McQuillan confirmed
that the ergonomist (the same one who had done the September 13th fit-up) would be
available to do another assessment at a different location (in the same building). Ms.
McQuillan conveyed, however, that the ergonomist had questioned the purpose of the
second setup if the prior workstation at 49 Place d’Armes had not been accepted (by
GAM) since that workstation “was top of the line and the best he can do with the
exception of the chair” [emphasis added].
[76] It is this latter comment that forms part of the reason why I have
concluded that issues regarding the adequacy of the chair were, in all likelihood and as
Mr. Wilkins testified, raised by the ergonomist at the very outset.
[77] The second fit-up took place on September 21 and on that day Ms.
McQuillan set out the terms of a graduated return to work. September 22 was to be day
one for two to three hours of work; day two was to be an off day and day three a full
work day. Dave Wilkins reported to Ms. McQuillan that GAM had worked for
approximately three hours on day one and had said that “the new setup has not shown
to be unsuitable but did indicate to me that she had some minor discomfort in the “SI”
region”.
[78] However, by day two, it was clear that there were difficulties adjusting the
desk height. It had to be done manually and that apparently required more physical
effort than one might have expected (the set up did not incorporate the “push button
height adjustable workstation” contemplated in the 2008 assessment). Ms. McQuillan
reported that John Colangeli, who was responsible for building support at the location,
was to return to assist with the problem. The grievor continued to protest on both
September 24, and on the following work day, September 27 that she was unable to
adjust the workstation which, in her view, remained non-functional. That view was
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shared by Mr. Colangeli. On September 27, he wrote to Ms. McQuillan and Mr. Romard
as follows:
I have been trying to adjust the power cable that [GAM] is using – but even with the adjustments it […] still requires some force to move the table up or down This is not a powered table like [GAM] has at 80 Queen St. or the one
she was using on the 3rd floor – it is height adjustable table with manual tension control features – tension is adjusted to individual’s liking but there is still some degree of force required I am suggesting if we cannot match her workstation from 80 Queen
Street – that we can trade the manual height adjustable table on the fourth floor [i.e. the one GAM was unhappily using] with the power height adjustable table that [GAM] was temporarily using on the 3rd floor …
Would meet more of her ergo requirements unless we can get her workstation from 80 Queen St. cleared to be moved to this site.
[79] This problem was never resolved – events intervened which, in the
employer’s view, made it unnecessary to do so.
[80] On September 28, 2010 the AQ report was released. Some two hours
after receiving it, Ms. McQuillan forwarded a copy and advised GAM and Mr. Wilkins
that, having regard to the report, the employer was now of the view that no further
accommodation was required and GAM should return to her home location at 80 Queen
on Thursday September 30, 2010. Subject to a very few exceptions, from this point on
during the course of the entire narrative before us, this was the employer’s consistent
position.
[81] As will be seen, I am of the view, subject to some exceptions at different
points in time, that this aspect of the employer’s position is unassailable. Before
examining the AQ report a little more directly (which will bring us into the second
temporal period), I will turn to one of the exceptions, which occurred with the issuance
of the AQ report and then address briefly two recurrent themes in the award.
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[82] Throughout the time periods in question the employer had occasion to
consult its own internal specialists – e.g. those with expertise in employee relations,
health and safety, accommodation. (It seemed apparent – though nothing turns on it –
that the relationships between employee relations personnel and the union
representatives were far more cordial than those between the latter and local
management.) The advice offered was generally sound, though not always followed.
For example, from almost the very outset, Ms. McQuillan was in touch with Ruth Orwin,
a Regional Health & Safety Advisor with the MGS Centre for Employee Health Safety
and Wellness. On August 17, Ms. Orwin forwarded a seven-point plan to effect GAM’s
return to work. It was somewhat off-point as it was premised on a mistaken view of just
how immediate the completion of the AQ might be. But, in any event, it contemplated
that, even in the face of “safe” AQ results, that the employee, if still unhappy, should be
requested to take the documentation to review with her doctor.
[83] In some respects, this is precisely what transpired when GAM was
provided the report and directed to return to work at 80 Queen. Mr. Wilkins indicated to
the employer that AMAPCEO wanted GAM to follow-up with her physician regarding the
AQ report. Ms. Pinkney responded (in part):
The employer had committed to undertaking an air quality assessment
and surface testing at 80 Queen Street with regards to concerns raised by [GAM]. This review has been completed by an independent & qualified consulting firm who specializes in environmental assessments. Based on the findings in the report the employer is satisfied the air quality levels within the building are safe. As such our
expectation is that [GAM] reports to the office immediately. Should either of you choose to have her physician review the report, [GAM] has been provided the report and is free to do so at her own expense. In the meantime we will expect [GAM] to report to her duties
at 80 Queen Street or advise immediately if she is opting to use vacation credits or seeking a leave without pay.
[84] GAM then advised that she would be using vacation credits until she had
the opportunity to consult with, among others, her physicians.
- 32 -
[85] In fairness, Ms. Orwin’s recommendation (well over a month earlier) did
not include any explicit commentary regarding how the employee’s pay was to be
treated pending her ability to review the report, while no ergonomically appropriate
workstation at an alternate location was on offer. But she did clearly (albeit at a time
when the complainant’s absence and the carpet cleaning were both still quite fresh)
recommend extending the temporary accommodation for a brief period even following a
safe AQ report. And, indeed, she also recommended that if the safe AQ report did not
resolve the issue for the employee, that the employer should request that she take the
AQ documentation to review with her doctor. But Ms. Pinkney’s response to GAM was
essentially nothing. It is not likely that either GAM or the union would have even thought
that they required any employer dispensation to review the AQ report with whomever
they wished. That was not a right conferred by Ms. Pinkney. Rather, Ms. Pinkney
directed that the ergonomically adjusted workstation (such as it was) be dismantled
before hearing any response from GAM to the direction to return to work at 80 Queen.
And then, in something just short of an ultimatum in the more recent correspondence,
she reminded GAM that the employer expected her imminent return and that any
absence would be her liability.
[86] In my view, given the circumstances, including the length of time which
elapsed since the carpet cleaning and the employer’s ongoing failure to provide the
ergonomic accommodation, GAM ought to have been afforded a reasonable but
relatively brief period of time – in the range of a week – to allow for a review of and
reflection on the terms of the AQ report and the employer’s insistence that she return to
80 Queen. And during this period of time, the employer ought to have provided the
proper accommodation to meet her ergonomic needs (whether in a temporary alternate
location or by permitting GAM to work from home using the proper ergonomic station
she had there) rather than requiring her to use four vacation days between October 1
and October 6.
[87] On the first two work days following the carpet cleaning, the complainant
was permitted to work from home. However, in my view the preceding chronology amply
demonstrates that the employer, from two work days after the carpet cleaning (August
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18) until shortly after the release of the AQ report (October 7) failed to accommodate
GAM in a fashion suitable to meet the needs of her required ergonomic
accommodation, something it had managed to do in the years preceding the carpet
cleaning.
[88] Employer counsel frequently sounded a particular theme. Perfection is a
lofty standard and one that should not be absolutely required in cases of
accommodation. So long as an employer makes reasonable efforts to achieve a proper
accommodation it should not be penalized if it falls short of perfection. While this is
undoubtedly an abbreviated accounting of this employer submission, I am satisfied that
it has no application to the relevant accommodation. I may return to this theme in the
context of the accommodation, if any, required following any return to 80 Queen, i.e. not
the ergonomic accommodation but the accommodation required for the complainant as
a result of her RADS.
[89] But as far as the ergonomic accommodation during the first time period,
the employer came nowhere close to perfection. Its efforts were a series of missteps
and half-steps. The employer clearly was of the view that any absence from 80 Queen
would be extremely brief. It expected that the AQ test would clearly establish that the
work environment was safe thus obviating the need for any further ergonomic
accommodation (beyond that which had always been available at 80 Queen). And a
review of many emails (some reproduced earlier) and of the employer’s viva voce
evidence also makes it plain that the employer, during this period, was consistently of
the view that a positive AQ test was imminent. I would not go so far as to say that the
employer assessment was unreasonable. But events did prove it wrong. It took some
six weeks, not the handful of days initially expected, for the AQ report to be produced.
But during that period and in that context, the employer’s enthusiasm and sense of
urgency regarding establishing (and then, because its measures were so short term, re-
establishing) a proper ergonomic accommodation were seriously compromised. There
were small deficiencies here and there – some remedied others emerging. But even if
many of those were somewhat marginal, it is clear that a proper chair – hardly a
marginal element – was virtually never a feature of the accommodation offered. And
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while we heard little in the way of complaints about the chair after the complainant was
moved to the 4th floor of Place d’Armes, there were clear persistent difficulties – even
her manual (it ought to have been powered) workstation did not function properly.
[90] I mentioned earlier that on the days following the release of the AQ report,
the employer ought, for a brief period, to have continued its temporary accommodation
of the complainant by assigning her to a suitable alternate work location OR by
permitting her to work from home. This comment is not to be misconstrued. I have
already previewed my conclusion that the employer was not in violation of its collective
agreement or statutory obligations by denying the persistent requests of the
complainant and the union to arrange work from home. But work from home was an
option the employer might have engaged (as it did on the first two days following the
carpet cleaning). Indeed, it may well be that the history of this matter would have been
written quite differently, had the employer opted to permit (even a short-term) work from
home arrangement. But it had no legal obligation to do so. The options it pursued during
our first time period, namely alternate work locations with appropriate accommodation
provided, in theory, adequate accommodation. It is by virtue of its failure to ever fully
operationalize this plan (not its denial of the work from home option) that the employer
breached its duty to accommodate GAM.
[91] In these circumstances, I am prepared to award damages for any
economic loss. There should have been suitable work made available to the
complainant during the period from August 18, 2010 to October 7, 2010. She ought to
be made whole for any losses suffered, including occasions where she was docked sick
leave or vacation credits. I am also satisfied that the complainant is entitled to an award
of damages for her non-tangible losses, including mental distress and injury to dignity,
flowing from the employer’s breach of its duty to accommodate.
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The Air Quality Report
[92] The AQ report, prepared by Pinchin Environmental, is dated September
27, 2010. It was apparently received by the employer the following day. As its findings
or, more importantly, their application are of some dispute between the parties, I will
review it in some detail (it is comprised of one-page executive summary, an eight-page
report and a number of appendices, detailing, among other things, specific test results).
The executive summary reads, in part:
Based on the findings of the assessment, results indicated carbon
dioxide, and carbon monoxide levels were within acceptable levels
within the tenant space indicating that the supply of outdoor air was adequate for the occupancy loading, and that combustion gases were not being drawn into the building at the time of the assessment.
Environmental measurements indicated that comfort parameters such
as temperature and relative humidity were within the comfort range for office environments as outlined within Ministry of the Environment document “IAQ in Office Buildings, a Technical Report” dated 1990.
Air samples collected to determine Total Volatile Organic Compound
concentrations ranged from 0.40 to 0.43 mg/m³, which illustrates concentrations within the typical range of normal indoor environments.
[93] The summary also indicated that particle samples were typical of an office
environment and that there was no unusual mould growth. It went on to offer two
recommendations:
1. Schedule carpet cleaning activities to take place with sufficient lead time to allow for building ventilation prior to tenants we re-occupying workspace; and
2. Review application and dilution process with the contractor and usage of the substitute product with lower volatile concentrations.
[94] Two different cleaning products had been used in the carpet cleaning:
Matrix Enzyme Prespray and PCX, a Kleenrite company product. MSDS sheets for the
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former product were provided to Pinchin in advance of the AQ testing. Under the
heading of Total Volatile Organic Compounds (TVOC), the report included the following:
A component detected in the indoor TVOC samples analyzed also found within the MSDS sheets for the Prespray product used on site as provided by the client, was ethylene glycol monobutyl ether. Additional components found on the Matrix Enzyme Prespray MSDS sheets provided are inorganic salts which would not be detected as
part of the sampling program. The MSDS for KLEEN rite PCX was not provided prior to the assessment field activities. [95] In an appendix to the report, Pinchin quantified the presence of ethylene
glycol monobutyl ether as 150 nanograms at the workstation (94 at the reception area)
for a concentration of .0015 mg/m³ (.0009 mg/m³ at reception). The report then went on
to deal with VOCs more globally:
The indoor samples concentrations of the VOC’s for compounds identified were 0.43 milligrams per cubic metre of air (mg/m³) in the workstation and 0.40 mg/m³ at the reception area. The outdoor air was 0.066 mg/m³. Health Canada advises that TVOC concentrations of 0.3
to 3.0 mg/m³ TVOC may result in complaints of odour, irritation, and discomfort if combined with other indoor stressors such as poor thermal comfort. Above 3.0 mg/m³, complaints from TVOC exposures can be expected, and widespread complaints will be expected into TVOC concentrations exceeds 25.0 mg/m³.
[96] And finally, for our purposes, the Discussion section of the report offered
the following:
Although compound concentrations are low it may be possible that persons with heightened chemical sensitivities may have a reaction to low exposure from cleaning chemicals or off gassing from wetted
carpeting. However, typically these conditions would dissipate quite rapidly in a well ventilated area. The prespray product contains a variety of volatiles such as ethylene glycol monobutyl ether which was clearly identified in the sample
results. Although low in concentration this condition may indicate that the product dilution and application may not be adequate. The applications should be reviewed to ensure that residue doesn’t remain
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in the carpet following cleaning particularly for approximately fourteen days since carpet cleaning. A replacement product should be reviewed with the contractor.
[97] It was on the basis of this report that the employer concluded that there
was no impediment remaining to preclude GAM’s return to work at 80 Queen. For the
reasons that follow I am of the view that this conclusion was largely sound.
[98] Shortly after the direction issued that GAM return to 80 Queen, a meeting
was held. While the union and the complainant raised concerns about the report and
wished to discuss alternatives, the employer was firm in its view that a return to work at
80 Queen was the appropriate outcome. An exchange of emails on October 1, 2010
demonstrates how the issue was joined. GAM wrote (via Mr. Wilkins):
Despite receiving air quality reports, the physician’s direction is clear that until a third party, in writing, deems that the environment at 80 Queen is safe for me to return to work the letter dated August 18th, 2010 stands.
[This was a reference to Dr. DiQuinzio’s letter of that date in which she noted that: “I have advised that she not return to this place of work until it is deemed safe in writing by a third party.”]
Ms. Pinkney responded:
The employer has provided the written communication that was provided by the 3rd party provider which was in the form of a report. This report in turn, has been provided to [GAM] […] along with a
reporting date on Thursday [September 30] to return to her home work location… As noted in my previous email communication, the employer is satisfied that the air quality is deemed safe.
[99] At this point it is useful to reprise some of employer counsel’s urgings that
it is inappropriate to apply a standard of perfection. These submissions are far more
apposite in the context of the present issue.
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[100] We should recall the manner in which Ms. McQuillan described the
purpose and process to associated with the AQ testing:
Once the air quality testing has been completed and with the assumption that they will provide a ruling that the product is no longer in the environment, I will be in touch to provide you with the confirmation. Obviously, if the results do not ensure the environment is suitable, your reporting location will remain at 49 Place d’Armes until
we successfully obtain confirmation that the environment is free of the chemicals used during the carpet cleaning. [101] If Ms. McQuillan (and the employer) were to be held literally to her word, the
union would have a much stronger case. If GAM was to have been held out of 80 Queen
until it could be demonstrated that the level of ethylene glycol monobutyl ether was zero,
she would not have been required to return to 80 Queen in the fall of 2010. Indeed, it is
likely she may have never been able to return (a later AQ test conducted well over two
years later showed the continuing (though reduced) presence of the offending compound).
But while that might be a result that would not trouble the complainant, I do not think it
represents the intention of the parties nor the proper legal prism through which to view the
case. Rather, I am of the view that it is the objective of “ensur[ing] the environment is
suitable” which is the proper focus.
[102] What then constitutes the proper approach in this case? The medical evidence
was clear, particularly that of Dr. Kerin, that GAM should avoid direct exposure not merely to
the one or two compounds found in the products used in the carpet cleaning, but to harsh
chemicals much more generally. In that context, “perfection” would be a pristine
environment free of the presence of any and all VOCs. Such an objective is neither realistic
nor attainable. Dr. Kerin’s testimony and the evidence of the public standards discussed and
applied by Pinchin both suggest that we may never entirely banish VOCs from our
workplaces. The question then is what is safe and, perhaps, what is safe for GAM.
[103] What is accepted as generally safe is set out in the standards used and
applied by Pinchin. And the air quality at 80 Queen, while neither pristine nor perfect was
virtually at the very bottom of the TVOC range which may result in complaints if combined
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with other indoor stressors, none of which were identified as present in the report. As a
general proposition, the report makes clear that there were no significant problems with the
AQ at 80 Queen.
[104] But the union, perhaps understandably, asserts that the employer failed to
consider GAM’s particular sensitivities in its speedy determination to direct a return to 80
Queen. This is perhaps a more palatable variation of the position the complainant
articulated when she wrote to Ms. Pinkney claiming that her doctor had required a third
party assessment deeming the workplace “safe for me”. And, in fairness to the union, this
position is perhaps consistent with Ms. McQuillan’s earlier unrealistically enthusiastic
portrayal suggesting GAM’s work location would remain elsewhere “until we successfully
obtain confirmation that the environment is free of the chemicals used during the carpet
cleaning”.
[105] First, I am not persuaded that there was any requirement, as a pre-condition to
the complainant’s return to 80 Queen, that there be some kind of formal independent
certification that the work place was safe specifically for her. Any such expectation is
unrealistic. One is reminded of Dr. Kerin’s (indirect) response to the employer (much later in
the narrative) asking that the union identify the specific agents or compounds that would be
likely to trigger GAM’s sensitivities. While he appreciated the intention behind the request,
he made it clear that it was a query that simply could not be answered in its entirety
because it is impossible to know what chemicals may trigger a reaction. The corollary, of
course, is that any firm guarantee of absolute safety for a person with RADS would be
equally unrealistic.
[106] The union also protested that the employer had failed to instruct Pinchin to test
for all of the compounds used in the carpet cleaning. Two cleaning agents were used, but
only one MSDS sheet was furnished to Pinchin. MSDS sheets were not provided for the
Kleenrite product. However, a document described in an email from Ms. Pinkney as an
MSDS sheet appears to have been located in or about early December 2010. It lists a single
hazardous ingredient: tribasic sodium phosphate. I have already referred to the results of
the AQ test in respect of the first MSDS sheet and the presence of ethylene glycol
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monobutyl ether (“ethylene”) in the environment at 80 Queen. However, even armed with
the MSDS sheet, it is less than clear to me that Pinchin was testing specifically for ethylene.
Rather, it took air samples and analyzed these for the presence of known VOCs. In that
fashion it identified the presence of ethylene and, having been alerted via prior production of
the MSDS sheet, was able to direct some specific comments in the report to its presence.
There was nothing in the evidence before me that suggested that Pinchin’s testing process
was in any way altered by virtue of its knowledge of the MSDS sheet. Thus, I have not been
persuaded that the absence of the second MSDS sheet, while regrettable, changed the
testing process or undermined its findings. Indeed, if one reviews the appendices to the
report, at least 35 different VOCs are identified (including ethylene). There is, however, no
indication of the presence of tribasic sodium phosphate. Indeed, on the evidence before me,
it is not clear that this last compound is even a VOC.
[107] It is true, however, that the complainant, as a RADS sufferer, may well be
more prone than others to react to certain airborne substances. Like Dr. Kerin, however, I
am not persuaded that, as a general proposition, that means she cannot, she should not
return to 80 Queen. What measures are required to maximize the likely success of such a
return? Essentially a combination of the “basics” and a process of trial and error. There
should also be some degree of proactive watchfulness. In that regard, I note that as early as
August 18, 2010, Dr. Di Quinzio identified that work place accommodation would be
required in the event of “any further carpet cleaning using chemicals, or any construction,
drywall repair, painting, or ventilation system repair”.
[108] Trial and error, of course, suggests that there may well be errors. In other
words, even if GAM had returned to 80 Queen, it is possible she might, at some time, have
suffered some reaction to the environment, given her RADS status. This, the union argued,
is akin to requiring her to play the part of guinea pig, forcing her to gamble with her own
health and well-being. There is some limited degree of truth to this submission. However,
insuring that the basics are in place and that obvious potential triggering circumstances are
avoided, it seems that this is a risk that is marginal, and more importantly, manageable.
That certainly appears to have been the view of both of the doctors who testified before me.
And, in view of the potential consequences – not to demean the unpleasantness
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undoubtedly associated with a RADS type reaction – Dr. Kerin was clear that there was no
reason to suspect any likelihood of anaphylaxis and that GAM has rescue medication
available at all times. Any reaction would likely be minor and short-lived, remedied by a
removal from the offending exposure. It would appear that in the event of a reaction, all that
would be required would be a removal from the workplace with no likely significant lasting
harm. If, of course, in this heuristic type of process, errors repeat, multiply or compound, it
would become appropriate to re-evaluate the entire approach. But a first step would have
been required to commence the process and the complainant, despite many legitimate
opportunities to do so, never again crossed the threshold at 80 Queen.
[109] It is for these reasons that I am satisfied that the employer’s determination that
GAM could return to 80 Queen was otherwise sound as of September 28, 2010. However,
in view of the earlier discussion regarding the timing and speedy reaction to the AQ report, I
fix October 7, 2010 as the date as of which there was no longer any impediment to GAM’s
return to 80 Queen.
PERIODS #2 and #3:
FROM THE ISSUANCE OF THE AIR QUALITY REPORT
UNTIL THE END OF THE PERIOD OF TOTAL DISABILITY
[110] Notwithstanding my previous finding, the complainant did not return or even
seek to return to work until January 2012. The complainant’s status in the period from
October 7, 2010 to January 18, 2012 can be described as follows:
[111] Commencing On October 7, 2010 GAM presented a series of medical notes
certifying her absences for medical reasons culminating in the note dated April 14, 2011 in
which Dr. Di Quinzio indicated that GAM’s absence from work for medical reasons would
continue for an indeterminate period.
[112] Although not determined until later (March 12, 2015) by virtue of an appeal of
the original denial of benefits GAM was found to be totally disabled effective November 30,
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2010 as a result of Major Depressive Episode and/or Adjustment Disorder. A six-month
elimination period commenced on that date.
[113] Upon the conclusion of the elimination period GAM was entitled to LTIP
benefits commencing May 31, 2011. Those benefits continued until January 18 (and
somewhat beyond) when GAM’s doctor certified her as fit to return to work.
[114] One might have expected, given the above parameters, that there would be
little for the parties to clash over during the periods in question. One would be mistaken. Of
course the clarity, at least with respect to total disability and LTIP benefits did not exist at
the time the events themselves were unfolding.
[115] The grievor did not work from October 7, 2010 (the date as of which I have
found the employer was no longer in breach of its statutory or collective agreement
obligations in taking the position that the grievor ought to have returned to 80 Queen) until
January 2012 when she sought to return to work (at least initially) at 80 Queen. During that
period of time her status can perhaps be described as follows:
[116] Commencing October 7, 2010, the grievor filed a continuing series of medical
notes certifying her absence from work. As time progressed, these notes indicated an
unqualified inability to return to work. This series of notes culminated with a note in April
2011 which indicated the grievor would be unable to work for an indeterminate time. By then
GAM had applied for LTIP benefits. Her claim, however, was (initially) denied in May 2011.
Shortly thereafter, the employer provided her the option of either returning to work at 80
Queen or being placed on a leave without pay, pending any appeal of her LTIP application.
GAM did not return to work. It was not until January 2012 (a period we shall examine
separately) that she sought to return to work.
[117] Returning to the first of these medical notes, while the later ones were clear
that the grievor was unable to work (i.e. with or without accommodation), the first two or
three were less unequivocal, and appeared to raise some possibility of a return to work with
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appropriate accommodation. For example, Dr. Di Quinzio’s note of October 7, 2010 reads
as follows:
This patient was seen in clinic today and due to medical reasons requires the next four weeks off of work. It may be possible for her to return to work on November 8th, 2010, but this will have to re-evaluated here before that date. She would be able to work from home starting October 18, 2010 if the appropriate equipment is provided her at her home workstation as per my
prior correspondence with you. [118] It is not necessarily easy to mesh the terms of this note with those of the
previous one referred to. It was dated August 27, 2010 and read:
This patient was seen in clinic again recently. Due to medical reasons precipitated by a lack of an ergonomic station, as suggested in my last letter which you have received, she is unable to attend work at this time. She will be able to return once the ergonomic Station has been put in place.
Alternatively, she would be able to return to full-time work hours if accommodated at home as per my last letter.
[119] In the August note, the only live issue (as GAM was, pending the results of the
AQ test, not working at 80 Queen) was the ergonomic accommodation. The October note,
by contrast, is wider ranging. It appears to suggest, on the one hand, an absolute inability to
work for at least four weeks but then goes on to suggest an earlier return to work (in less
than 2 weeks) would be possible if GAM were provided with the proper ergonomic set-up at
home. It should be recalled of course that by October, the parties were in dispute regarding
the propriety of a return to 80 Queen at that time.
[120] In the circumstances, it is not surprising that the employer opted to seek
further medical information, whether in relation to GAMs inability to attend work at all or in
relation to what accommodation(s), if any, might either attend or preclude a return to 80
Queen. On one level at least, and in the context where GAM was continuing to resist any
return to 80 Queen, the employer was seeking to determine what medical support there
might be for that resistance.
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[121] But while the request for further medical information at that stage was not
unreasonable (indeed, there was no contrary suggestion on the part of the union), the
execution of the request was seriously flawed.
[122] The employer forwarded to GAM (for her release) a six-page letter addressed
to Dr. Di Quinzio requesting her responses to eight questions. The letter also included a full
page of narrative recitation. This narrative contained what might charitably be described as
numerous inaccuracies. These included indicating that:
• (as we have already seen is misleading) GAM chose and the employer permitted her to work without a necessary ergonomic accommodation
• the employer provided an ergonomic workstation at an alternate location
(without enumerating any of the many ongoing deficiencies) and that GAM left without identifying concerns (when such concerns while not always proffered instantaneously were consistently brought to the employer’s attention by the grievor and the union)
• the employer had verbal confirmation from property management that the findings of the AQ report deemed the workplace “free from any residual scents/contaminants of the cleaning product” – the source of this assertion is less than clear but, in any event, the assertion is clearly contrary to the
actual findings of the report as herein previously reviewed
• the employer arranged for a second alternate ergonomic workstation (again with no mention of deficiencies)
• while it is true that the AQ testing showed the workplace to be within acceptable office environmental standards, the employer failed to advise
the doctor that the report also noted that persons with heightened
chemical sensitivities may have a reaction to low exposure from cleaning chemicals or off gassing.
• and the section headed Questions contained a preamble to the list of
questions which asserted that the employer “made many attempts to meet [GAM’s] accommodation needs” without pointing out that while there were, indeed, many such attempts, few, if any, were entirely successful
[123] Although I have taken some time to outline these peculiarities of the letter and
will follow this narrative trail a bit further, I should hasten to add that, in the scheme of
things, this is a minor event in the total narrative. Still, these shortcomings and inaccuracies
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served to confer a certain inappropriate adversarial quality to the employer’s
communication. It is not surprising that the union and the grievor balked at having Dr. Di
Quinzio respond; and the latter did not.
[124] The union pointed me to the comments of Vice-Chair Mikus in OPSEU
(Snider) and Ministry of Community and Social services (2014), GSB No. 2013-0967. In that
case the union objected to what it asserted was the factually incorrect and prejudicial
content of the letter the employer proposed to send to the physician that the parties had
agreed would perform an IME. Although the Board declined to explicitly prohibit the
employer from sending the letter, it offered the following caution (at para 11):
It is in the parties’ best interest to ensure that this IME be conducted in such a manner that there can be no dispute about the results. While I am not prepared to tell the Employer what to say in its reporting letter, it has been
put on notice that the Union will be scrutinizing the letter and the report for any indication of bias or prejudice. The Employer will no doubt want to avoid any future controversy and will endeavor to describe the past history without any suggestion of bias.
[125] The union also had process concerns with respect to the employer’s inquiry of
Dr. Di Quinzio. Elisa Mesiti, a local AMAPCEO workplace advisor at the time, testified as to
the variance between the employer’s conduct in this case and the protocols set out in
various government wide policy documents. In particular, Ms. Mesiti was concerned with the
limited amount of time (one week) within which GAM had been advised to have the
response from Dr. Di Quinzio provided. She was also concerned about the response being
forwarded directly to the employer without the grievor first having the opportunity to review
it. Exchanges followed. Ms. Mesiti, on October 28, 2010, after expressing her view that the
employer was on the “right path” in requesting additional medical information, registered her
complaints regarding the letter in her email to Ms. Pinkney. Ms. Mesiti indicated that GAM
had a scheduled appointment with her physician on November 3 and suggested Ms.
Pinkney provide a revised form for GAM to bring to her physician on that day. Ms. Mesiti did
not directly raise any question of STSP benefits in her email. Ms. Pinkney responded, on
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November 3, 2010, seemingly agreeable with the suggested timetable and process but
indicated no willingness to revise the letter.
[126] Despite not having been specifically queried on the point, Ms. Pinkney chose
to address the issue, in a passage that requires some translation, but may, in some senses,
be emblematic of aspects of the instant dispute:
At this time, [GAM] is recognized as using vacation and subject to balances for income stability. Upon receipt of medical information to support [GAM’s] absence due to illness and/or injury, the employer will revert the absence period to STSP usage and address any days that were without pay due to
vacation credit balances. [127] The employer was raising questions as to the bona fides of GAM’s absence
from work and suggesting, at least implicitly, that the payment of STSP (i.e. paid sick leave)
might not be approved. Apart from the employer saying this “out loud”, the grievor, based on
the pay she continued to receive would never have been aware of the employer’s
suspicions. For while she was not paid STSP (which is but a percentage of full salary) from
approximately October 7, 2010 until March 2, 2011, she was paid her regular full salary.
[128] On or about that same day, GAM filed two separate medical notes from Dr. Di
Quinzio. The first read:
This patient was seen in clinic today and due to ongoing medical reasons she will be unable to return to work at this time. I have advised that she
remain off work until December 6th, 2010. She will be re-evaluated here in the interim.
And the second:
This patient was seen in clinic today as scheduled previously. As per Dr. Ellie Tsai, the specialist who saw [GAM] recently, the patient’s clinical history is consistent with a chemical irritant reaction to those chemicals used during carpet cleaning. She can have problems with other irritant
reactions. She should avoid chemical irritants, strong scents and smoke due to medical reasons. She cannot work in an environment that has any of
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these elements. She should work in a well ventilated, smoke-free, sent/irritation free environment. Working from home would be a good option.
[129] I have already pointed to some of the ambiguity in Dr. Di Quinzio’s earlier
(October 7, 2010) note. Vestiges of that ambiguity remain in the two more recent notes,
although the first may be seen as directed to GAM’s immediate inability to work and the
second to concerns regarding any possible accommodations that might be required on any
return to work. However, one might question, not necessarily the wisdom, but certainly the
utility of enumerating factors relevant to accommodation in relation to a worker who is, in
any event, unable to return to work on an ongoing basis. In any event, it is not surprising
that the employer did not view these two notes as fully addressing its request for further
medical information. And it took until February 2011 to get further information.
[130] In the interim, the parties continued to disagree on the manner of soliciting that
information. Ms. Mesiti, having had no favourable response from Ms. Pinkney, raised the
matter at other levels within the government bureaucracy, but made little progress. She also
engaged in an exchange with Sean Lee from the Centre of Employee Relations at the
Ministry of Government Services. In that exchange, Ms. Mesiti’s inquiries were largely
focused on STSP issues. Mr. Lee advised:
… the employer is seeking further medical information to support the employee’s absences due to injury/illness. With WIN down and pending WSIB decision, the employer has not reflected WSIB/STSP/VAC or processed any leave without pay. Thus, there has been no financial impact
to employee. As of November 4, 2010, the employer has received two medical notes that do not assist the employer in understanding the employee’s absence from the workplace.
To date, the employer has not received the additional medical information formally requested on October 15, 2010. I have been advised that [GAM] shared with the manager the information may not be supplied until December 06th. Dependent on WSIB’s decision, the employer will inform
[GAM] if any impact to payroll.
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[131] Mr. Lee was advising that whatever the ultimate determination, there would be
no immediate financial impact on the grievor who continued (and would continue for some
four more months) to collect her full salary. The reason for that salary continuance was not
any deliberate employer indulgence. Rather, it was an ongoing record keeping deficiency in
the employer’s payroll tracking system, WIN. It seems that it was just simpler to keep the
grievor on full salary and have things “sorted out” later. But no one explicitly directly warned
the grievor that this salary continuation was or could be a mounting financial liability on her if
and when her STSP benefits were confirmed.
[132] Thus, there were two separate (but frequently overlapping) narrative lines
here: on the one hand, questions of the grievor’s fitness to work and eligibility for STSP and,
on the other, questions related to what accommodation, if any, might attend or preclude the
grievor’s (ultimate) ability to return to 80 Queen.
[133] There was no progress in the parties’ dispute regarding the contents of any
employer letter to GAM’s physician until sometime after a stage two grievance meeting was
held in December 2010. That meeting was the subject of much evidentiary conflict between
the parties and it will be examined in slightly more detail later in this award. The parties
seemed to agree, however, both at the meeting and in their evidence regarding it, that there
was a joint effort to target a January 10, 2011 return to work date for the grievor, subject to
medical clearance to return (that date corresponds to the date identified as a possible return
date by Dr. Di Quinzio in a note dated November 30, 2010). But the grievor did not obtain
and present any medical clearance to return to work until much later – in January 2012.
And, as will be seen, this is not the only reason why whatever else may have transpired at
the December 2010 meeting is of little more than academic interest.
[134] Quite apart from the issue of medical clearance to return to work, it was also
clear, although the parties disagreed on the need to do so, that the employer might seek
further medical information. It did. (I remind the reader that the union had yet to and did not
at that time provide the employer with a copy of Dr. Tsai’s note dated September 16, 2010 –
it may have provided some useful information to the employer regarding potential
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accommodation concerns – the reason for the grievor not furnishing the note was, in my
view, never satisfactorily explained).
[135] In any event, conscious of the resistance (as I have detailed above) to its
October 15, 2010 letter to Dr. Di Quinzio, the employer prepared a new letter seeking
medical information. The union voiced some concerns (at least in evidence) with the
contents of this letter as well. Those concerns were not as profound and, of course, the
most significant indicator of acceptance, if not delight, in the terms of the letter came in the
form of the grievor’s signature consenting to the release to the employer of Dr. Di Quinzio’s
response to the letter.
[136] There are many differences between the first (October 15, 2010) and second
(December 29, 2010) letters from the employer to Dr. Di Quinzio. For our current purposes, I
will focus on a limited number. It is striking to see, in the second letter, a moment of candour
that was entirely absent from the first (and frequently absent from the employer’s evidence
and argument before me) when Ms. Pinkney wrote: “The Employer acknowledges that there
were issues regarding ergonomics during this time frame”.
[137] Closer to our present concern, while both letters can be described, certainly in
the specific questions they pose to the doctor, as seeking information regarding
accommodation requirements (ergonomic or otherwise) and present ability to work or,
perhaps more accurately, past inability to work, there is slightly more focus on the latter
question in the more recent letter (of course, the number of days of absences had grown in
the succeeding two and a half months). Focusing on the grievor’s absence from work in the
period subsequent to the release of the AQ report, the employer asked:
Were there medical/health conditions that accounted for the absence? If
yes, please describe the medical restrictions and limitations that precluded the employee from returning to her usual work location in her usual workstation at that time?
[138] The question requires some deconstruction. The chief and central dispute
between the parties, certainly after September 28, 2010 and the release of the AQ report
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can be described in (perhaps overly) simple terms. For much of the time, the employer was
inviting the grievor to return to work at 80 Queen or to provide some medical attestation as
to why that was not possible. The grievor, for her part and subject to some exceptions,
declined any and all invitations bearing the 80 Queen address, preferring to work at a
different location or from home. In that context, it is curious that another one of the
employer’s questions was what medical restrictions prevented GAM from returning to her
alternative work location after October 1, 2010 – curious because that was not an option
made available to her, the employer insisting from that point forward that she return to 80
Queen.
[139] Returning to the question set out above, while it certainly seeks reasons for
the grievor’s absence, the later references to her “usual work location in her usual
workstation” seem to be a less than explicit question about the feasibility of working at 80
Queen. The employer might have asked, what is essentially a question about restrictions
and accommodation, much more directly. Instead the territory of STSP was comingled with
that of limitations and accommodation. And it is clear that Dr. Di Quinzio, in her reply to the
question (received by the employer on February 24, 2011), appears to have avoided any
issue of whether the grievor could (ever) return to 80 Queen and focussed, instead (in an
entirely reasonable reading of the question), on the reasons (apart from any antipathy the
grievor may have had for a return to 80 Queen) for the grievor’s absence. She referred to
clinical depression and hip pain following working at an ergonomically inappropriate station.
[140] It was this response that apparently allowed the employer to close the book on
the STSP issue. In a letter dated March 10, 2011, Ms. Pinkney advised GAM that it now
accepted that her absence from work from October 7, 2010 was for medical reasons. The
letter included the following:
The medical information that was finally received February 24, 2011 and February 25, 2011 appears to support your absence from work for medical reasons from October 7, 2010 and adjustments must now be made to your Short Term Sick Program (STSP) credits.
The Employer has considered your request on file to top up STSP credits for any absence over six days. Please note that entries in the system as of
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August 2010 for WIN upgrading, indicated you had 113.75 STSP credits, 6.25 Vacation credits and 3.437 Compensation Option credits. Subsequently, all Vacation and Compensation Option credits to top-up your STSP have been exhausted. Ontario Shared Services has been requested to determine the actual number of days of absence where you were
compensated at full pay and they will need to adjust these to reflect absences at 75%. The employer is aware that you are in an over payment situation Please note that your STSP credits were exhausted during the day of March
02, 2011 (.45 credit). The Employer has been delayed in determining this attendance information and therefore is supporting you with a Leave with Pay for 2.55 days for March 02 to March 04, 2011, during the transactional and transitional processing period. The employer is aware that you are applying for LTIP benefits and that a paid qualifying period is impacted by
previous absences. As of March 7th, your employment status will be recorded as on a Leave without Pay, with LTIP Pending. Any reconciliation that is required with respect to your pay will be determined at a later date.
[141] The union argued that there is an important distinction to be made with respect
to the propriety of the employer seeking further medical information with respect to the
approval of STSP benefits as contrasted with accommodation requirements. The union
granted that the employer had a legitimate right to pursue matters in the latter case but that
in respect of STSP benefits, the employer, as events unfolded, had all of the requisite
information necessary to approve the payment of STSP benefits or to put it more accurately,
had no reason to suspect that such benefits ought not to be paid. The union pointed to the
following provisions of the collective agreement:
37.8 After seven (7) consecutive calendar days absence caused by sickness or injury, no leave with pay shall be allowed unless a certificate of a legally
qualified medical practitioner is forwarded to the employee’s manager or designee, certifying that the employee is unable to attend to official duties. 37.9 Despite Article 37.8, where the Employer has reason to suspect that there may be an abuse of sick leave, the Manager may require an employee to
submit a medical certificate, at the Employer’s expense, for any period of absence.
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[142] The medical certificates filed by the grievor covering the period commencing
October 7, 2010 to March 2, 2011 (and onwards) included the following information in
certificates from Dr. Di Quinzio:
• October 7, 2010: off work for medical reasons until November 8, 2010 – to be re-evaluated (possibility of earlier return if permitted to work from home)
• November 3, 2010: unable to work for medical reasons until December 6, 2010 – to be re-evaluated
• November 30, 2010: unable to work for medical reasons until January 10, 2011 – to be re-evaluated
• January 4, 2011: unable to return to work for medical reasons – to be re-evaluated mid-February
• February 17, 2011: due to ongoing medical reasons unable to attend
work for the next 8 weeks
• April 14, 2011: due to medical reasons unable to work – return to work indeterminate
[143] While the contents of these certificates are admittedly spare, the union asserts
they are adequate for the purposes of the collective agreement and the approval of STSP
benefits.
[144] I was pointed to a number of cases in support of the union’s position, including
Hamilton Health Sciences Corp. and O.N.A. (2007), 167 L.A.C. (4th) 122 (Surdykowski) and
Teamsters, Local 879 v. OLG Point Edward Casino, 2011 CarswellOnt 9274 (Jesin) where
the arbitrator offered the following (at para 16):
… I would begin by drawing a distinction between the information an Employer may be entitled to in the case of an employee who is absent due to illness or injury as opposed to the case of an employee who seeks to establish fitness to perform his or her duties on return to work or when seeking an accommodation of a disability. In the first instance, absent a
clear provision in the collective agreement to the contrary, arbitrators have held that employer is generally not entitled to require an employee to disclose a diagnosis or details regarding the nature of an illness, its
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symptoms or the treatment undertaken. Rather, the employee may only be required to provide medical certification of the employee’s inability to attend work, verification that the employee is being treated, any physical restrictions and an expected date of return.
[145] In my view the union’s submissions on this aspect of the case are sound. I am
satisfied that the employer, at all material times (from October 7, 2010 to March 2, 2011 and
following), had sufficient information to warrant payment of STSP benefits for which the
grievor may have been eligible in respect of her absences at that time. I hasten to add,
however, that, on the contrary, the employer had no medical information from the grievor,
information to which it was entitled, to support the grievor’s claim that a return to 80 Queen
was, in any event, inappropriate. To that extent, the employer was clearly entitled to seek
further medical information in respect of any possible accommodation which might attend or
preclude a return to 80 Queen.
[146] The union charges that the employer improperly conflated its legitimate
request for information regarding accommodation with its unnecessary request for
information to support the payment of STSP benefits. There is truth to this assertion as well.
However, the matter is not as simple as that. In a complex and nuanced web that contains
elements of three distinct disabilities of potentially varying durations, including a period of
total disability, it is not surprising that borders may not have been consistently respected.
Indeed, from one perspective the employer’s confusion and frustration are not difficult to
appreciate. We now know that, effective November 30, 2011 until January 2012 GAM was
totally disabled. Despite that, it also appears that efforts were being made to return her to
work during portions of that time. And even focussing on the period subsequent to the AQ
test up to the beginning of the following year, the position of the grievor and her doctor
appears to have undergone some transformation. I have described a major battle between
the parties as one in which the employer invites and the grievor resists a return to work at
80 Queen. Upon the release of the AQ report and the employer’s initial direction that GAM
return to 80 Queen, the grievor and the union appeared wedded to the position that the
grievor’s condition (which we now know to be RADs) and her reaction to the 80 Queen
environment precluded a return to that location. The employer disputed that position and
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was, effectively, providing GAM with the opportunity to submit medical information to
support her view. Thus, the earliest (October 7, 2011) medical note contemplated the
possibility of a return to work with the appropriate accommodation. As time progressed,
however, less reliance was placed on the possibility of accommodation and the medical
notes described a patient simply and categorically unable to work (i.e. with or without
accommodation). Again, by November 30, GAM was totally disabled.
[147] In this context, the employer might be forgiven for not being entirely certain
whether the grievor’s claim, at any given moment, was tied to the need for accommodation
or simply an utter and complete inability to work. Thus, commencing on October 15, 2010 it
sought further medical information. No meaningful response was provided (certainly not with
respect to what precluded a return to work specifically at 80 Queen) until February 24, 2011.
I have already detailed some of the employer’s improprieties in the manner in which it
sought to secure this information. But the employer cannot and should not bear the full
responsibility of the delay in providing the information. At the same time, it did not require
further medical information for STSP purposes and the conclusion is inescapable that, in its
frustration in securing the medical information it did require, it was unable to resist the
temptation of holding out the (at least theoretical possibility) of denial of STSP benefits as
an “incentive” to encourage the grievor to provide the medical information being sought.
[148] At the same time, however, it remains unclear whether the employer ought to
be accorded any similar forbearance with respect to its payment of full salary to the grievor
from October 7, 2010 to March 2, 2011. The employer resisted extending its full approval for
STSP benefits during this period. It implicitly and inappropriately tied payment of these
benefits to the provision of medical certificates seeking information regarding possible
accommodation(s). Ultimately on March 10, 2011, as it should have done much earlier, it
approved the payment of these benefits. In the interim it had, largely as a result of its own
administrative deficiencies, continued to pay GAM her full salary. A cryptic paragraph
(reproduced earlier) of an email from Ms. Pinkney to Ms. Mesiti on November 3, 2010,
adverted, less than clearly, to the possibility of some future reconciliation. There was also an
internal employer email on January 27, 2011 which underscored the employer’s perceived
need to recover funds from the grievor. Some weeks later, Ms. Pinkney, in her letter dated
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March 10, 2011 directly to GAM (in which the employer finally approved STSP payments)
indicated that: “Ontario Shared Services has been requested to determine the actual
number of days of absence where you were compensated at full pay and they will need to
adjust these to reflect absences at 75%. The employer is aware that you are in an over
payment situation.” She also said: “Any reconciliation that is required with respect to your
pay will be determined at a later date.”
[149] There was, however, no evidence before me that the employer ever took any
steps whatsoever to calculate, document or otherwise seek to recover any overpayment the
grievor may have received while in receipt of her full salary during a period when she ought
to have been paid STSP benefits. No steps were taken (whether with the agreement of the
union or the grievor or otherwise) to recover monies by way, for example, of payroll
deductions when GAM did return to work. No grievance was filed by the employer. No claim
was made or pressed. Indeed, it was not until some five years later, in final argument, that
the employer’s intention and desire to actually recover monies the grievor may have been
overpaid crystalized with any real clarity. In that context, the union suggested that it is
inappropriate to consider the employer’s urgings on this issue at this late date. However,
while the parties disagreed on whether the employer’s claim for repayment is properly part
of these proceedings, they have agreed that the issue does not arise, except in a remedial
context. Consequently, they asked that I remain seized of this issue (including its propriety)
to be dealt with, if necessary, as part of any remedial considerations which may remain in
dispute following my award herein. Thus, I presume the parties will, to the extent necessary,
perform a full accounting of GAM’s pay and entitlements from early October 2010 to the
conclusion of the elimination period on May 30, 2011. I will remain seized in respect of any
disputes between them regarding the results of this accounting.
The Stage Two Grievance Meeting, December 17, 2010
[150] On December 17, 2010 a Stage Two Grievance meeting was held. It was
presided over by Barb Stacey, the employer designee. In attendance for the union was the
grievor, Ms. Mesiti and Michelle Hamilton-Mayers, an AMAPCEO Dispute Resolution Officer
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who became involved in the matter around the time of the meeting. The employer was
represented by Ms. Pinkney and Dawn Bairstow, an HR advisor from MGS.
[151] In the description that follows, I have tried to balance any resolution of the
significant discrepancies in the union and employer accounts or, at least, characterizations
of the proceedings, on the one hand, with the extremely limited ultimate relevance of the
events in question, on the other.
[152] The union witnesses asserted that the parties had come to an agreement,
albeit an interim one. While the employer did not disagree with the broad range of issues
that were discussed, it disputed that the result was any type of agreement, binding or
otherwise. Rather, it asserted that a number of possible steps were canvassed that might
facilitate GAM’s return to work.
[153] There seems little dispute that the parties were aiming for a return to work
date for the grievor of January 10, 2011 (The most recent medical certificate, dated
November 30, 2010 indicated GAM could not return to work until January 10, 2011.) But it
also seems clear that the central disagreement between them persisted – the employer
continued to see no difficulty (assuming general medical clearance) with a return to 80
Queen; the grievor and the union were not satisfied that such a return would be safe for the
grievor. And echoing that disagreement was the ongoing disagreement about the need for
any further medical info. The union insisted the employer had all of the medical information
it required; the employer, for its part, continued to be of the view that, in the face of the AQ
report and absent any contrary medical evidence, nothing specifically precluded a return to
80 Queen. In that regard, at the meeting, AMAPCEO provided a copy of Dr. Di Quinzio’s
November 3, 2010 note (the one which reprised some the prior comments of Dr. Tsai in her
note of September 16, 2010). At the time (well before Dr. Kerin’s involvement), Dr. Tsai’s
note was virtually the only piece of medical information that addressed questions related to
GAM’s sensitivities and any concerns which might attend a return to 80 Queen. No
explanation was proffered to explain the withholding of this note. It was, ultimately tendered
to the employer in February of the following year.
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[154] Given the above context, it is difficult to see what agreement, interim or other,
might be achievable. Ms. Hamilton-Mayers testified that her priority at the meeting was,
assuming she had medical clearance, to get the grievor (who had now been absent for
some two and a half months) back to work as soon as possible, even if only on an interim
basis. To that end, the union was seeking an interim return to work at an alternate location
which also addressed GAM’s ergonomic needs. It also appears clear that the employer did
indeed engage in discussions regarding assignment to an alternate location. Ms. Pinkney
testified that her view was unchanged – 80 Queen was a safe environment and nothing
precluded GAM’s return there. However, her perception was that there was strong
resistance from the grievor to any return to 80 Queen. She viewed the objective of the
meeting as working to a resolution. As it was clear that an immediate return to 80 Queen
would be difficult, the parties were trying to come up with alternatives to get the employee
back to work quickly.
[155] So despite what might be described as otherwise intractable differences, there
does appear to have been some joint commitment to work at finding a resolution. And,
according to the union, that is precisely what happened. There was, however, no signed
settlement document memorializing the parties’ agreement. Following the meeting, Ms.
Hamilton-Mayers noted the 10 points which she testified constituted the parties’ agreement.
A few days later she forwarded an email to all of the meeting participants “to confirm the
interim agreement” the parties had forged. For our purposes, I need set out only the first two
items enumerated therein:
Should the Employer consider that additional health information is required, the Employer will replace the letter of October 15, 2010. (AMAPCEO indicated that it does not believe the additional medical is required at this time.)
Laura Pinkus [sic] will immediately look for an alternate work location. She will commence her search at 1055 Princess Street. Noting AMAPCEO’s objection to 49 Place D’Armes, the employer agreed to consider that location only as a last option.
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[156] In a response to this email, Ms. Stacey disputed several aspects of Ms.
Hamilton-Mayers’s characterization. Included was the following:
I understand from my notes and consultation that bullet 2 [regarding locating an alternate work location] is only a consideration and will be based on the medical information that would substantiate the need for accommodation, the employer would need to understand the medical restrictions of reporting to 80 Queen.
[157] Ms. Hamilton-Mayers testified that, in her view, nothing in the parties’
agreement was conditional on the provision of medical information (indeed, the union hoped
that, upon reflection, the employer would adopt the position that all necessary medical
information had been provided). For her part, Ms. Pinkney insisted that the medical
information provided to date did not preclude any assignment to 80 Queen and that it was
the employer’s unwavering position that it would continue to seek the further medical
information required to substantiate any restriction on a return to 80 Queen.
[158] For reasons which may already be evident but to which I shall return shortly, I
do not find it necessary to plumb the depths of all of the evidence that was tendered in
relation to the discussion, agreement and disagreement that were part of the December
2010 meeting. Perhaps the only conclusion I could arrive at with any confidence is that
there was clearly no meeting of the minds at the conclusion of the meeting.
[159] I do not doubt the sincerity of the view expressed by the union (Ms. Hamilton-
Mayers in particular) that the parties arrived at an interim agreement. However, considering
all of the evidence – and not merely the employer’s conflicting evidence – it is difficult to
understand precisely what the shape or character of the agreement was. The union
consistently characterized it as “interim”. That, of course, begs the question of what it left
unresolved. At one point, Ms. Hamilton-Mayers testified that the issue of compensation
would be left to be determined. While her evidence might be interpreted as such, she did
not specifically say that would be the only extant issue. That view of an interim settlement is
highly improbable – it would be more akin to an employer capitulation and not even the
union suggested that the employer had simply “folded its tent”. And further, even the email
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in which Ms. Hamilton-Mayers’s purported to set out the settlement contained numerous
contingencies without any clear articulation of the consequences. For example, the
employer reserved the right to seek additional health information; Ms. Pinkney was to
“explore whether” to have a new AQ test done at 80 Queen.
[160] On the other hand, it is difficult to square the employer’s ultimate position that
it was “80 Queen or nothing” with Ms. Pinkney’s evidence that the employer was
contemplating the possibility of an interim assignment to a location other than 80 Queen.
[161] It may have been that subject to other conditions, the parties agreed to
consider a temporary alternate location for the grievor, pending clarification from the union
and the grievor (clarification the employer had been seeking for some time) regarding any
medical obstacles to the grievor’s return to 80 Queen and/or pending clarification from the
employer through a new AQ report – if it chose to conduct one – that the 80 Queen AQ was
acceptable. This would not exhaust all possible readings of the evidence
[162] The Labour Relations Act, in section 48(15), contemplates the ability of an
arbitrator to enforce the terms of a “written settlement”. That is not to say that an oral
settlement may not be binding. But an obvious advantage of a written settlement is that its
words are recorded – even if their interpretation may be the subject of some dispute, the
words of the settlement are indisputably preserved. In the present case, there was no
written settlement. The employer disputes the accuracy of Ms. Hamilton-Meyers’s notes.
And even if those notes are otherwise accepted, I am still at pains to divine, in the precision
that would be required, the full terms and contours of the settlement.
[163] In other words, the parties may well have shared the objective of reaching an
interim settlement and facilitating a timely return to work. But even if they did, the precise
and specific terms of any such agreement are less than clear. I am not prepared to do all of
the reading between the lines that would be required to enumerate the specific terms of the
agreement. Thus, I am unable to conclude, with any confidence, that the parties were ad
idem with respect to the terms of an agreement.
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[164] But even if I am mistaken in this conclusion, I am still satisfied that the terms of
the settlement are of little more than academic interest. The parties were discussing a
possible January 10, 2011 return to work. But there was absolutely no dispute between
them that any return to work was contingent on the grievor securing medical clearance to do
so. She did not. No such clearance was provided until January 2012 (a different chapter in
our narrative). Further, the absence of any medical clearance to return to work is not
surprising. For while it may not have been crystal clear to all of the parties at the time, it has
now been determined that the grievor was totally disabled from November 30, 2010 until
January 2012.
[165] Thus, there can be no issue of any economic loss, certainly from May 30,
2011 until January 2012, when GAM was totally disabled and (ultimately) received LTIP
benefits. Depending on the resolution of the accounting that is to be done in respect of the
period that culminated with the expiry of GAM’s sick leave in early March, it is possible,
though perhaps unlikely, that some further accounting needs be done in respect of the
period up to May 30, 2011 (particularly if the former accounting results in unused credits in
the grievor’s bank of sick days). I have left this question (along with the initial accounting) to
the parties.
The Cleaning Samples
[166] While ultimately of little legal significance, the following cannot be overlooked.
Among other matters discussed at the Stage Two was the identification of organic cleaning
materials that could be used to clean GAM’s workstation. The employer was to look into this
and to provide information for consideration regarding the possible cleaning agents that
might be used. In lieu of providing MSDS sheets (if any) or a list of ingredients, the employer
sent two vials containing actual samples of possible cleaning agents directly to the grievor’s
home. Ms. Pinkney acknowledged that, despite the contrary wording in a letter of hers,
dated December 23, 2010, there was never any request or commitment to provide samples
of cleaning agents rather than the product information regarding the same. While there may
be some lingering mystery as to who precisely took the initiative in this regard, there is no
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doubt that this manoeuvre reflects very poorly on the employer. Sending chemical samples
directly to an employee who (whatever the precise extent of the employer’s knowledge of
the grievor’s disability at the time) has been out of the workplace following an exposure to
carpet cleaning chemicals is, at best, an impressive display of poor judgement.
[167] While I am unable to conclude that this was a deliberate act of bad faith or
otherwise a violation of contractual or statutory obligations, I accept the union’s submissions
that this event contributed to the grievor’s distrust of her employer in dealing with her
accommodation issues. (Of course, the grievor’s ongoing reticence in providing medical
information can hardly have served to enhance the employer’s trust in her.)
PERIOD #4: FROM THE END OF THE LTD PERIOD (JANUARY 2012) UNTIL THE RETURN TO WORK (MAY 2013)
[168] In January 2012, the grievor sought to return to work. It took almost a year and
a half to effect that return. She returned in May 2013.
[169] On or about January 18, 2012, GAM submitted the following note from Dr. Far
(who was acting in Dr. Di Quinzio’s stead during the period of the latter’s leave):
I am [GAM’s] Family Physician. This letter is to inform you that [GAM] is fit to return to work immediately at a graduated basis starting at three days per week.
[GAM] has the same physical restrictions as before and therefore requires the same ergonomic accommodation. In addition, she requires further accommodation due to previous workplace
reactions and chemical sensitivities.
[170] Ms. Hamilton-Mayers followed up about a week later with a brief note
indicating GAM was prepared to return within days and was waiting employer confirmation
that there was a work station available for her and that she was expected.
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[171] It is important to note that, at this point, neither GAM nor the union was
explicitly suggesting anything other than a return to the grievor’s home position at 80
Queen. That would change.
[172] Before responding to the grievor or Ms. Hamilton-Mayers, there was some
internal consultation between management personnel, largely because they were aware
that a significant renovation/construction project was to shortly begin at 80 Queen and they
clearly understood that this construction might well impede any return to 80 Queen.
[173] Ms. Bairstow raised the possibility of scheduling GAM (who was to commence
on a three days per week basis) around “days of paint, dust from drywall”. However, when
Ms. Pinkney involved Mr. Romard in the discussion he (in what the union described as the
“voice of reason”) responded as follows:
I would actually suggest that we consider hosting the employee at alternate site. There is lots of room at 1055 [Princess St.] in Negotiations
Branch. Office space was previously agreed to by their senior management team at this location to accommodate the employee. We can relocate her specialized equipment (i.e. chair and monitor arm). Although we can attempt to schedule things and ask the contractor for
planned work schedule, construction is always unpredictable. Why would we invite opportunity? The work needs to be completed in this fiscal year, we can’t afford changes to the schedule that could cause delays. Four weeks is a very ambitious schedule already and I can see the work spilling over into March.
[174] In a follow up email to Ms. Bairstow, Ms. Pinkney confirmed that she was
contemplating moving GAM’s equipment to 1055 with the understanding that this would be
temporary, pending completion of the anticipated renovations. There was also some
discussion of the timing of cleaning the grievor’s workstation. However, Ms. Bairstow
suggested that no move take place or report date be established until the employer received
“the medical”. Her mail indicated “Letter enroute”.
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[175] In a letter dated January 31, 2012 (delivered on February 2, 2012) Ms.
Pinkney wrote to GAM enclosing a letter and list of questions for GAM’s physician. The
preamble read as follows:
The Employer is in receipt of your medical note dated January 18, 2012 that indicates that the employee can return to work immediately. As you are aware, she has been away from the workplace on an extended absence since approximately October 2010 and her issues have been
complex. You note in this information that [GAM] requires the same ergonomic accommodation but additionally you indicate that she requires further accommodation due to previous workplace reactions and chemical
sensitivities. The Employer does not have a clear understanding of “further accommodation”. As you know from previous correspondence, the Employer has implemented measures of protocols at 80 Queen St. in Kingston, the
employee’s usual place of work, to provide as safe an environment as possible in terms of the employee’s sensitivities. An indoor air quality and mould assessment has been conducted that indicates a clean building with no apparent mould growth and acceptable air quality. The cleaning contractor at this location has agreed to the use of alternative green
cleaning products and will provide notice of any major cleaning initiatives. All information has been reviewed by the WSIB representatives and it has been determined that there is no medical reason to preclude from work at this location from a sensitivity perspective.
We do require your assistance in order to develop an appropriate reintegration strategy for [GAM] and facilitate a successful return to her duties at 80 Queen St. in her work as a Senior Program Consultant. Collecting objective relevant medical information within the scope of the accommodation process is the best way to ensure success in this
exercise. I have attached job description for your consideration and reference. Kindly respond to the following questions to assist us with this matter.
[176] On the same day, crossing paths with this letter, a further medical note from
the specialist, Dr. Tsai, was delivered to the employer. It read:
Further to Dr. Farr’s letter dated January 18, 2012 and my letter dated September 16, 2010, [GAM] continues to require accommodation in her
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work at home environment re: multiple chemical sensitivities. She should continue to avoid chemical irritants, scents and smoke. She should work in a well-ventilated, smoke, scent and irritant free environment.
[177] Before turning to the questions and the eventual responses, it may be useful
to recall the medical information the employer had at this point (i.e. prior to issuing and
receiving the two February 2, 2012 communications just described) regarding both the
ergonomic accommodation and the nature of any restrictions related to GAM’s condition of
RADS (diagnosed by Dr. Tsai as early as September 2010, a diagnosis not shared with the
employer until years later during the course of the instant proceedings). As already
indicated, the nature and functional impact of the grievor’s two disabilities have been largely
constant and unchanged throughout our narrative. In fairness to the employer, however and
certainly to the extent that there was any claim that a return to 80 Queen was inappropriate,
the employer had not been provided with medical information supporting the view that, as a
general matter, proper accommodation of the grievor’s respiratory issues precluded a return
to 80 Queen. However, as already noted there is nothing to suggest that, at least initially,
the return to work the grievor was seeking was to anywhere other than to 80 Queen. In that
context, the information the employer had may well have been sufficient.
[178] (As a reminder, Dr. Di Quinzio had indicated in August 2010 that “if there is
any further carpet cleaning using chemicals, or any construction, drywall repair, painting, or
ventilation system repair she requires work place accommodation” and Dr. Tsai had
indicated in September of 2010 (although not brought to the employer’s attention until
February 2011) that “Her clinical history is consistent with a chemical irritant reaction. She
can have problems with other irritant reactions. She should avoid chemical irritants, strong
scents and smoke. She should work in a well ventilated smoke free, scent/irritation free
environment. Working from home would be a good option”.)
[179] On the other hand, the grievor had been away from the work place for some
16 months. Dr. Far’s note authorizing a return to work was terse. It is neither surprising nor
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unreasonable for the employer to have sought further information and clarification. And the
questions it posed were not unreasonable although it is ironic that the answers, once
provided, added little to the employer’s existing inventory of knowledge.
[180] It was a question about the pending construction at 80 Queen which, as we
shall see, altered the landscape. Despite that, it is clear that even before posing that
question (thereby indirectly alerting the grievor and the union to the construction plans), the
employer, in view of the pending construction, was preparing for a return to an alternate
location pending completion of the 80 Queen renovations. The employer, despite its
legitimate request for further information had a good understanding of the practical
consequences of the construction on the grievor’s ability to attend at 80 Queen.
[181] As we shall see, the answers to the questions posed of Dr. Far were not
provided to the employer until May 18, 2012, some two and one half months later. I will
review the intervening events. But for the sake of clarity, I will now set out the questions
posed, each followed by the answer provided some time later:
Q1. Considering the information above regarding the office environment and referencing information from Dr. Tsai, previously provided, regarding [GAM’s] sensitivities, please explain fully what is meant by, “she requires further accommodation due to previous workplace reactions”.
A1 I advise that a scent-free policy be respected in [GAM’s] workplace. Also, should there be any chemicals used in her workplace, she should be given prior and proper notification so that she is not exposed to chemicals that may exacerbate her respiratory condition (Reactive Airway Dysfunction
Syndrome). Q2 You have noted in previous medical communications of the employee experiences permanent medical condition. Have these medical conditions improved or deteriorated?
A2 a) Musculoskeletal injuries are worse due to lack of treatment (GAM is financially unable to afford). b) has developed a well-known condition, Reactive Airway Dysfunction Syndrome (RADS) which has stabilized. However, this condition can rapidly destabilize upon exposure to strong
smells including chemicals and scents.
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Q3 With the information regarding the employee’s ability to return to the workplace, you have recommended a graduated return to duties of 3 days per week. [GAM’s] normal schedule is 7.25 hours a day. Can you confirm if you support a full scheduled day or do you recommend partial hours? As well, please outline your recommendations for the duration of a gradual
integration to the workplace. A3 In my experience, it would be prudent for [GAM] to initially resume work on a part-time basis. This would consist of three full days per week for a period of eight weeks such that, should any untoward health effects arise
during this time, prompt intervention can take place. If all goes well during this eight-week period, [GAM] is to attempt to return to full-time work. Q4 Please provide all medical restrictions that may impact her performance of duties and attendance at work.
A4 I have no further advice regarding medical restrictions. Q5 If the employee is medically able to resume her duties at this time, do you anticipate that any specific job responsibility might be difficult or
problematic for the employee initially? A5 I am not aware of any specific job that might pose a problem to the employee initially.
Q6 Is the employee on a medication regime that may impact the return to work exercise or the performance of duties? A6 No.
Q7 Is the employee involved in treatment that may impact the return to work, the performance of duties or regular attendance? A7 No.
Q8 Would the employee benefit from any other assessments to support return to work exercise or the accommodation process? A8 No.
Q9 Please note that renovations will commence at 80 Queen St. in February 2012. The renovation will encompass painting, dry walling and caulking over a period of 4 to 5 weeks with work performed after hours and on weekends. Understanding that the employee experiences irritation reactions to some chemicals, smoke and strong scents do you feel that
there may be any substances in this renovation that may trigger irritant reaction?
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A9 Unfortunately, people who have developed RADS develop cross-sensitivity to other chemicals. Even though you plan to do renovations in the evenings and on weekends, off-gassing from painting and caulking is a major concern. In my opinion, this period of renovation is likely to affect
[GAM’s] health adversely. A work location other than 80 Queen Street or 49 Place D’Armes is still recommended. Q10 Please advise of your next assessment date should the Employer require further clarity.
A10 June 13th, 2012. Q11 Do you have any other recommendations that may assist [GAM] to a successful return to the workplace?
A11 I have no further recommendations.
[182] As suggested earlier, this series of questions and answers contributed little to
the employer’s knowledge of GAM’s restrictions and need for accommodation. The
employer had already, at least tentatively, concluded that, pending the 80 Queen
renovations, the grievor would have to be assigned to an alternate work location. But it was
not to be.
[183] Approximately one week after receiving the letter bound for Dr. Di Quinzio (or
her locum, Dr. Far) Ms. Hamilton-Mayers, having been advised via Q9 above of the pending
construction at 80 Queen, wrote to Ms. Pinkney. One might be forgiven for thinking that, in
view of the employer’s apparent tentative thoughts on a temporary alternate location
pending completion of the 80 Queen construction, that the parties were “on the same page”.
Indeed, Ms. Hamilton-Mayers wrote as follows:
I understand that a further medical note for Dr. Tsai was delivered to you
on February 3, 201[2]. We trust that the content of this note addresses the questions in your recent letter. If you have remaining questions, [GAM] is prepared to have them answered by her physicians. In the mean time, we are requesting her immediate return to work. Given
the planned construction at 80 Queen Street, there should be no question of her returning to work there at this time. Please arrange an alternate
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workspace for [GAM] for at least for the duration of the construction which I understand to be approximately 4-5 weeks. [GAM] is ready to return to work immediately commencing with 3 days per week and is presently without an income so we would ask that you
arrange a return to work meeting for early next week.
[184] Ms. Pinkney, however, was not receptive to any request for an immediate
return to work (or return to work meeting), she replied:
The letter for [GAM] that was picked up last week included a letter to her physician seeking additional clarification on restrictions referenced in the letter. The recent medical note from Dr. Tsai does not provide the
information requested in this document. The employer needs this information in order to provide appropriate accommodation for this employee. We have included references in the latter to the fact that there are renovations planned for the worksite and have asked for details around this impact as part of the overall regarding immediate
accommodation needs. If the medical information identifies areas the employer would have concerns in providing appropriate accommodation for [GAM] working within the worksite, the same information will need to be considered for any alternative worksite.
The exchange concluded with Ms. Hamilton-Mayers’s reply:
We will agree to disagree with you about whether letters you have already
received are sufficient to get her back to work immediately, as they do contain information about her restrictions. In our view, [GAM] should be returned to work immediately even if the accommodations are temporary pending additional medical. Nevertheless, [GAM] wants to cooperate and is making her best efforts to get your specific questions answered as soon
as possible.
[185] In my view, the parties were here at a significant crossroad. I agree with the
union and Ms. Hamilton-Mayers – it is difficult to see what information the employer was
seeking that it did not already have. Apart from questions which might be described as
updating current information, even the questions in Ms. Pinkney’s letter added little to the
mix. As already indicated, the information regarding both the ergonomic accommodation
and any accommodation required in view of the grievor’s respiratory issues remained fairly
constant. The former having been noted, albeit in economical terms, in Dr. Far’s letter of
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January 18, 2012; the latter in that same letter as augmented by Dr. Tsai’s note of February
2, 2012. Q9, the question regarding the pending 80 Queen renovations, was more specific
and timely in its inquiry, although, again, it is clear from the internal employer
communications that there was already an understanding on the employer’s part, that
having GAM work at 80 Queen during renovations would be problematic.
[186] But while there was little critical information being sought (or ultimately
provided), it was not unreasonable for the employer to have sought updated or confirming
information in respect of an employee who had been absent from the workplace for medical
reasons for an extended period of time. This was, at least implicitly, acknowledged by Ms.
Hamilton-Mayers when, on February 24, 2012 (i.e. even after Dr. Tsai’s note had been
provided) she indicated to the employer that the grievor “wants to cooperate and is making
her best efforts to get your specific questions answered as soon as possible”.
[187] But the response to the employer’s questions was not provided until May 18,
2012, almost three months later. No real, let alone compelling, explanation was ever
provided for this significant delay. Dr. Far did not testify and GAM’s viva voce evidence on
the point was spare. She indicated that the delay was because she had an appointment with
Dr. Kerin on February 14, 2012 and they (i.e. she and Dr. Far) were waiting for his
consultation note. Dr. Kerin did not complete his first report until some time after he had the
results of certain pulmonary function tests he had requisitioned. These were administered in
April and early May 2012. And ultimately in her responses to Ms. Pinkney’s questions on
May 18, 2012, Dr. Far (who had by then seen the test results, though not necessarily Dr.
Kerin’s report) referred, in what would be the first such reference for the employer, to the
diagnosis of RADS (which Dr. Kerin, echoing the test results, had also articulated in his first
report). However, notes Dr. Far made in the grievor’s clinical file clearly suggest that
delaying the response to the employer’s questions was at the grievor’s behest (although Dr.
Far noted that she thought waiting was reasonable). But there is nothing in the record or in
any of the evidence to suggest that Dr. Far was aware that the employer had previously
been told that a response would be provided as soon as possible. (Other entries by Dr. Far
at that time, such as the grievor reporting that Dr. Kerin “believes poisoning was likely from
chlorine gas, could have been fatal” and that he gave “the impression that what happened
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was gravely dangerous”, statements which are impossible to reconcile with Dr. Kerin’s
testimony, may cast some further doubt on the reliability of the information the grievor may
have transmitted to Dr. Far.) In any event, it appears that the grievor did not even show Ms.
Pinkney’s letter to Dr. Far until a month after she had received it.
[188] The employer did follow up on the questions that it had been advised would be
answered. On March 23, 2012, Ms. Pinkney advised Ms. Hamilton-Mayers that, although
the employer had received a bill for the completion of a health information report, it had
received no such report. (These events, too, are reflected in Dr. Far’s clinical notes – they
need not be considered in detail but involve a billing to the employer for a medical report
which the grievor received from Dr. Far but then decided not to file with the employer.) Ms.
Hamilton-Mayers replied to Ms. Pinkney’s query by reiterating the union’s view that the
grievor ought to be allowed to return to work immediately, making no mention of the
response the employer was awaiting. The response to the questions was provided (as
previously set out) on May 18, 2012.
To this stage, there are two questions which were and remain unanswered:
• What critical missing medical information was precluding the employer from arranging GAM’s return to work, whether to 80
Queen pending commencement of the renovations and/or to an alternate location during the course of the renovations?
• What legitimate basis was there for the delay of some three months
in providing the employer with the responses to its questions, which were to have been provided as soon as possible?
[189] In any event, although the May 18, 2012 responses paved the way, in the
employer’s view, for a return to work, matters were still not resolved (it would be another
year before the grievor returned to work).
On May 29, 2012 Ms. Pinkney wrote to GAM:
I have received the May 18, 2012 letter from Dr. Far, regarding follow-up questions outlined in my January 31, 2012 letter related to your return to
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work. We are in the process of finishing the renovations exercise and I will be in touch with in the coming weeks to discuss a return to work date.
Ms. Hamilton-Mayers responded:
Please arrange to have [GAM] work at an alternate site while the
renovations are being completed. Providing an alternate site or allowing her to work from home does not constitute undue hardship for the employer. Is not reasonable to expect [GAM] to sit at home losing income indefinitely as the renovations proceed given that there are easy options available for the employer. We are prepared to set up a return to work
meeting immediately. Please advise.
Ms. Pinkney replied:
It is the employer’s intent to return [GAM] to 80 Queen St. As noted, the employer did request medical information to assist in addressing a return to the workplace on January 31, 2012. With the medical information received on May 18, 2012, the employer is getting [GAM’s] workstation ready and we are making arrangements to have her computer system
refreshed. We have steam cleaned the cubicle (steam only, no chemicals). The employer requires a period to ensure the workstation and appropriate work is available for [GAM’s] return to the workplace. I will be in contact with [GAM] in the near future to establish a return to work meeting.
[190] The parties held a return to work meeting on June 11, 2012. However, rather
than accomplishing anything of value, they appear to have been in process of once again
returning to their prior familiar but irreconcilable positions: the employer inviting the grievor
to return to 80 Queen and the grievor willing to return almost anywhere but. I have noted
that when the grievor had first indicated an ability and willingness to return to work in
January, there was no suggestion that would be to anywhere but 80 Queen. But the
interposing of the construction project at 80 Queen appears to have revived and intensified
the grievor’s steadfast unwillingness to contemplate crossing the 80 Queen threshold.
[191] Following the meeting, Ms. Hamilton-Mayers staked out the union’s position: in
view of the recent construction at 80 Queen, the grievor ought not return there; another AQ
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test should be conducted and, in the interim, the grievor should work at an alternate location
or from home. Ms. Pinkney responded in a letter to the grievor on June 29, 2012. The
significant paragraph is as follows:
The Employer does not support the need for another air quality test at the 80 Queen Street site as the renovations did not impact the air management system. There has been no indication that anything has changed since the last report was completed, which indicated that the air
quality levels for the building met industry standards. The cleaning that was conducted following the renovations was necessary to ensure the cleanliness of the suite and was done in a safe and responsible manner. The Employer believes that necessary steps have been taken to address your accommodation needs, including working with our contracted
cleaning staff to utilize more green friendly and odorless products. The Employer does not feel it is necessary look at alternate work locations and has agreed to have an ergonomic specialist meet with you upon your return to re-evaluate and configure your workstation to meet your needs. As discussed at our meeting on June 11, 2012, the Employer is able to
monitor activities within the workspace at 80 Queen Street and will provide you with notification of any pending work within the suite. At this time we continue to look for your return to 80 Queen Street and would propose a return to work date of Tuesday July 17, 2012.
[192] I pause to consider the duration of the renovation project at 80 Queen. There
is no dispute regarding its commencement. The initial projected start date was to be in early
February 2012 (i.e. just two weeks after the grievor first advised the employer of her ability
and willingness to return to work). There were, however, two minor delays and the project
did not commence until March 2, 2012. It was common ground that (in view of her RADS
and the medical reports related thereto) the grievor ought not have been working at 80
Queen during the period of renovation/construction. There was less agreement regarding
when, precisely, the construction ended or, perhaps more importantly, at what point any
impediments to the grievor’s return to work at 80 Queen as a result of the construction and
its aftermath would be spent.
[193] The project involved the elimination of and repositioning of workstations; the
addition of two break out rooms; the addition of a manager’s office; improved air circulation
and soundproofing in certain areas; and an expanded lunch room with new floor. The work
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was substantially complete in early May and the post-construction cleaning, which included
carpet cleaning was performed in early June. All of the cleaning was done using “green”
cleaning products.
[194] Having regard to Dr. Kerin’s view that that it would be reasonable to attempt a
return to work, to “challenge the workplace” about a month after carpet cleaning was
completed, I am satisfied that the date the employer ultimately fixed, i.e. July 17, 2012, for
the grievor’s return to 80 Queen was reasonable.
[195] In view of the recent construction and carpet cleaning, it is not difficult to
appreciate that the grievor might view the prospect of returning to 80 Queen with some
trepidation, perhaps feeling like she had been through this movie before. But having
considered the medical evidence and the lack of any objective evidence to preclude a return
to work at 80 Queen in mid-July 2012, I am satisfied that an approach like the one
advocated by Dr. Kerin should have guided and permitted a return to work at 80 Queen at
that time.
[196] But the grievor, in view of her concerns about the safety of her attending at 80
Queen, declined to do so. Ms. Hamilton-Mayers indicated the grievor was seeking an
additional medical (which she hoped might be available for the first day of scheduled
mediation on July 27, 2012) and professional advice with respect to how best the employer
could insure the workplace was safe for her. No information of that sort appears to have
been provided by the date scheduled for mediation. Indeed, the parties remained
entrenched in their incompatible positions until May of the following year when the parties
entered into an interim return to work agreement (this period will be described more fully,
below).
[197] It is, however, perhaps curious to note that the expertise of Dr. Kerin was
again engaged in October and December of 2012. I have already referred to Dr. Kerin’s
Addendum Report and other correspondence (the December letter apparently triggered by
some criticism levelled at him directly by the grievor). Indeed, I have relied heavily on Dr.
Kerin’s views regarding the proper attention and workplace accommodation required in
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cases of RADS like the grievor’s. But none of Dr. Kerin’s initial or subsequent reports was
provided to the employer until December 2013 after we had heard the evidence of four
union witnesses (including GAM and Ms. Hamilton-Mayers) and just before Dr. Kerin
commenced his testimony in January 2014. The employer therefore had no opportunity to
cross-examine the union witnesses who might have been able to speak to this delay. It may
well be that the grievor, consistent with the evidence we do have regarding her last
exchange with Dr. Kerin, was simply unhappy with thrust of Dr. Kerin’s approach.
[198] As I have described previously, the employer, in December 2012, conducted a
further AQ test at 80 Queen. Dr. Kerin was able to view and comment on those results.
They did not alter his view that a cautious and watchful return to work, allowing GAM to
challenge the workplace was the appropriate approach.
[199] With respect to the period now being considered, I offer the following
conclusions. What ought to have happened, at least up to July 17, 2012, is clear. The
grievor ought to have returned to work at 80 Queen shortly after her indication of her ability
to do so (with one or more medical certificates confirming same). She would then have been
able to continue at 80 Queen until the commencement of the renovations on March 2, 2012.
As of that date, she should have been assigned an alternate work location with proper steps
to insure her required ergonomic accommodation (or, at the employer’s option, been
permitted to work from home). She could have continued in that fashion until the
impediments to her return to 80 Queen were removed, which I have found to have been as
of July 17, 2012. From that point forward until May 2013 when the parties executed their
interim return to work agreement, the employer did not breach any duty to accommodate by
declining to keep or move GAM to an alternate work location. Thus, in respect of that last
portion of the period there is no employer liability.
[200] I am satisfied, however, that during this period up to July 17, 2012, the
employer failed to properly accommodate the grievor and facilitate her return to work. The
grievor is entitled to be made whole for any losses incurred during this period and, in
addition, is entitled to human rights damages in the nature of damages for injury to dignity. I
note, however, that computation of damages for pure economic loss may not be as simple
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as computing the quantum of lost salary over the period. The employer was not
unreasonable in requesting some medical update, although, certainly by February 2, 2012,
it had sufficient information to process the grievor’s return to work. The grievor undertook to
provide medical responses as soon as possible and then waited almost three months to do
so. Thus, at least part of the delay in this period cannot be laid directly at the feet of the
employer. On the other hand, it is difficult to escape the conclusion that neither was the
employer acting in the most positive fashion. We have seen much earlier how the
employer’s anticipation of an early positive AQ report hampered its ability and drive to insure
a fully functioning ergonomic setup at an alternate location. Similarly, it appears that the
employer’s anticipation of an early completion of the renovation project and the subsequent
lack of need for any alternate location may have dampened its enthusiasm for an immediate
return to an alternate location (thus, Ms. Pinkney employed phrases like “within the coming
weeks” or “in the near future” to describe the timing of a return to work which had already
been significantly delayed).
[201] I leave these considerations to the parties and remain seized (as in the
balance of the case) with respect to the quantification of damages.
PERIOD #5: FROM MAY 27, 2013 to SEPTEMBER 27, 2013
RETURN TO WORK PURSUANT TO AN INTERIM AGREEMENT
[202] The events relevant to this time period are set out in the following Agreed
Statement of Facts (I have not reproduced the documents referred to therein. These were
all marked as exhibits before me):
Agreed Statement of Facts Interim Return to Work 2013 1. As a result of a without prejudice interim agreement between the parties,
[GAM] returned to work, effective May 27, 2013. Under the agreement,
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the Employer agreed to provide a workspace for [GAM] at 25 Heakes Lane for a period of three months.
Interim Agreement between AMAPCEO, [GAM] and the Crown in Right of Ontario (Ministry of Health and
Long Term Care) dated May 16, 2013 (the “Interim Agreement”), Tab A
2. The building at 25 Heakes Lane is managed by the Ministry of
Community Safety and Correctional Services (MCSCS). This building is part of the “Beech Grove Complex”.
3. The Parties acknowledged that the work space at 25 Heakes Lane was a temporary work location while the Employer searched for an alternate
work location at a Ministry of Health and Long Term Care site in
Kingston.
Interim Agreement, Tab A
4. Pursuant to the terms of the Interim Agreement, [GAM] worked on graduated return to work schedule of three days per week for the duration of 8 weeks. She worked on Tuesdays, Wednesdays and Thursdays. Mondays and Fridays were deemed sick days, paid with
STSP credits. The Employer agreed to reinstate [GAM]’s STSP bank
effective May 27, 2013.
Interim Agreement, Tab A
5. Under the Interim Agreement, the Employer agreed to have [GAM]’s
ergonomic workstation and chair moved from 80 Queen Street to 25
Heakes Lane, and to have it cleaned with steam and water only. The parties agreed that an ergonomic consultant retained by the Employer would conduct a set-up of the work station on May 28, 2013, in the presence of [GAM] and an AMAPCEO representative.
6. On Thursday May 23, 2013 and Friday May 24, 2013 [GAM]’s table and chair were cleaned with water and steam and moved to the temporary site. The temporary site was vacuumed and cleaned with water only to prepare the office for [GAM]’s arrival on Tuesday May 28, 2013.
Interim Agreement, Tab A
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7. Monday May 27, 2013 was treated as a sick day, as per the terms of the Interim Agreement. On Monday May 27, 2013 Kathy Barry ([GAM]’s manager) and another person brought a printer and monitor to the temporary office site. Boxes were placed on the floor.
8. On Tuesday May 28, 2013, [GAM] reported to work at 25 Heakes Lane.
AMAPCEO Workplace Representative, Dave Wilkins, was present as well. They reviewed the workstation and noted the following:
a) The footrest that was provided was different than the footrest that [GAM] used when she was working at 80 Queen Street. Unlike [GAM]’s previous footrest, the angle on the footrest could not be
adjusted, and the platform was locked in place and did not have the ability to tilt freely.
b) No computer was provided;
c) The keyboard and mouse that were provided were not ergonomic. When working at 80 Queen Street, [GAM] had an ergonomic
keyboard and mouse;
d) There were no screws to attach the keyboard to the keyboard tray in the desk;
e) The arm for the computer monitor (the “flex arm”) was stiff and difficult to manipulate. The workstation that [GAM] had used at 80
Queen Street had a hydraulic flex arm;
f) The computer monitor that was provided was a regular desktop monitor and could not be attached to the monitor arm. In addition, there were no screws to attach a monitor to the monitor arm;
g) A telephone headset was not provided.
9. On his own initiative, Mr. Wilkins found a computer monitor that would fit the mounting of the monitor arm but was unable to attach it because he did not have the proper screws.
10. [GAM]’s new manager, Ms. Barry, arrived on site at 8:30 a.m. where she welcomed [GAM] who was already present at the site.
11. Ms. Barry brought a laptop with her for [GAM] to use as her hard drive. However, there was no docking station and therefore the laptop could not be connected with the external components. Mr. Wilkins advised her of the issues with the workstation. [GAM] was given a tour of the building
by the Director. Ms. Barry held a brief meeting with [GAM] regarding her office set up and provided her with some documents in order for her to begin orienting to her work portfolio while her access to the network was being processed. They discussed her workstation set up. [GAM]
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identified additional issues with the office set up and questioned whether the equipment came from her former cubicle. As the items were in her former cubicle Ms. Barry believed them to be [GAM]’s equipment. Ms. Barry advised her that she would follow up regarding her equipment set up and provide the additional items requested.
12. Ms. Barry also met with [GAM]. Ms. Barry was wearing scented product.
Kathy Barry states: “Later in the day the Human Resource Advisor let me know that [GAM] had indicated that I was wearing a scented product on May 28th. Since
I don’t wear perfumes I assumed it was soap product or clothing. Thereafter I made a conscious effort to leave a reasonable distance between us to ensure I created no discomfort for [GAM]. I understand that there was no further comment from [GAM].”
[GAM] also made an effort to keep a distance between herself and Ms. Barry. 13. An ergonomist also met with [GAM] and Mr. Wilkins that day in order to adjust the workstation. However, he could not complete the adjustments
to [GAM]‘s workstation because of the missing components.
14. After meeting with Ms. Barry on May 28, 2013, Dave Wilkins reminded her by email that the following workstation components were missing: “1. Footrest; 2 Keyboard, mouse and mounting screws; 3. Video screen and mounting screws; 4: Hydraulic Flex Arm for the video screen; 5.
Computer; 6. Telephone Headset.”
Email from Dave Wilkins to Kathy Barry, May 28, 2013, Tab B
15. Ms. Barry responded to Mr. Wilkins’ e-mail the same day. The HR Advisor followed up early in the morning the next day.
Emails from Kathy Barry & Dawn Bairstow to Dave Wilkins May 28 & May 29, 2013, Tab C 16. On May 29, 2013, the Ms. Barry provided [GAM] with an appropriate keyboard and mouse, and a telephone headset. On May 29th Ms. Barry also followed up with Facilities Management to rectify the issues raised
by [GAM].
17. By June 5, 2013, screws were obtained for the monitor and it was mounted to the flex arm. However, the monitor was too heavy. It tilted forward at an angle, forcing [GAM] to crane her neck to view the screen. In addition, it would not stay in place at eye level but instead the arm and
the monitor would lower towards the desk. The laptop computer was
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replaced with a computer tower that was placed under the desk. [GAM] had to crawl under the desk to turn the computer on and to use the USB ports. In addition, the cables from the computer prevented the desk from rising and lowering.
18. The ergonomist returned on Wednesday June 5, 2013 but was unable to
complete the adjustment of the workstation as certain components were still missing. Ms. Barry followed up with Facilities staff on June 6, 11 and 12 to schedule the completion of the workstation setup.
19. On June 11, 2013 Ms. Barry spoke to [GAM] to advise her that Facilities Management planned to complete the set up the following day. They
agreed that [GAM] would contact the ergonomist and schedule her appointment.
Email dated June 14, 2013 from Kathy Barry to Dawn Bairstow, Tab D 20. On June 11, 2013 Ms. Barry sent Facilities Management an e-mail
asking if the set up for [GAM]’s workstation would be completed on June 12, 2013. Facilities Management advised that once a work order was created the work would be scheduled and that they would try to expedite it. Ms. Barry in turn advised [GAM] on the progress of the final adjustments. [GAM] advised that she, too, had spoken to Facilities
Management and had been provided with the same information.
Email exchange between Gary Perlmutter and Dawn Bairstow, June 14, 2013, Tab D 21. On June 14, 2013, Gary Perlmutter, Dispute Resolution Officer for
AMAPCEO notified Dawn Bairstow, Human Resources Advisor, of the ongoing issues with the computer, desk and the monitor. He also advised Ms. Bairstow that the stationary table in [GAM]’s office was not at an appropriate height to allow her to review hard copy documents.
Email exchange between Gary Perlmutter and Dawn Bairstow, June 14, 2013, Tab E 22. On June 13, 2013, Nadia Surani replaced Kathy Barry as [GAM]’s manager.
23. On June 14, 2013, the new management team confirmed more specifics
of [GAM]’s work assignments. [GAM]’s team was located in Toronto. Meaningful and relevant work experience was considered and a package of material was delivered on June 17, 2013 so [GAM] could start work while the remaining issues related to her computer were being resolved.
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24. On June 25, 2013, [GAM] attempted to use her employee health benefits but discovered that her benefits had not been reinstated. On June 26, 2013, AMAPCEO Workplace Advisor Gabriel Mehedintu contacted Ms. Surani to inquire about the status of [GAM]’s benefits. Ms. Surani followed up with Great West Life directly to get further direction about
the reinstatement of benefits. [GAM] was notified later that day that her benefits had now been reinstated effective May 27, 2013.
Email to [GAM] from Valerie Waldron, June 26, 2013, Tab F
25. On June 25, 2013, the ergonomist returned to adjust the workstation. The computer tower was still located under the desk and the cables were still interfering with the height adjustment of the desk. [GAM] informed the ergonomist at this meeting that the monitor was tilting forward and this was causing her pain. She reconfirmed this in an email
to the ergonomist, and copied to Ms. Surani the following day. [GAM] also informed the ergonomist that the footrest that had been provided was not the same as the one that was in place at her former workstation and provided the brand name for the footrest that she had been using.
Email exchange between [GAM] and Justin Moore, June 26, 2013, Tab G 26. On June 26, 2013, Ms. Surani wrote to [GAM] and stated that there were two outstanding issues with the workstation: the lighter monitor and the
footpads and that these issues were not time sensitive as per the ergonomist review.
Email from Nadia Surani to [GAM], June 26, 2013, Tab H 27. [GAM] did not agree that the monitor issue was not time sensitive as she
was unable to use the computer without pain. She also did not agree that these were the only two issues that were discussed with the ergonomist. On June 26, 2013, Mr. Mehedintu left a voicemail for John Colangeli, Accommodation Services Coordinator (Ministry of Health and Long-Term Care), and asked him to call him back regarding the issues
with the workstation.
28. On June 28, 2013, Mr. Mehedintu spoke with Ms. Surani about the various issues regarding the workstation. Ms. Surani indicated that she was aware of the urgency of getting [GAM] a lighter computer monitor, but stated that she was waiting to receive the ergonomist’s report to
ensure that she obtained the right one. Ms. Surani indicated that she expected to receive the report in 5 days.
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29. The issues with the workstation were also raised in email exchanges between [GAM], Ms. Surani and Mr. Colangeli, dated July 2, 2013. [GAM] pointed out that in addition to the need for a lighter monitor and the footrest, the computer tower was still located under her desk and the height of the desk could not be reset as the tower was in the way. She
suggested that the computer issue could be resolved by providing a laptop and docking station, which was what she had when she was working at 80 Queen Street.
Email Exchange between [GAM], Nadia Surani and John Colangeli, July 2, 2013, Tab I
30. On July 4, 2013, [GAM] informed Ms. Surani that she was leaving work early due to pain.
31. On July 17, 2013, a copy of the ergonomist report was provided to [GAM]. The report made the following relevant recommendations:
Monitor:
• [GAM]’s monitor arm is highly adjustable and will fit her needs. It was noted that a new monitor is being procured for her which is lighter than the model observed on the day of follow-up, this will solve the issue of the
monitor’s forward tilt, avoiding neck flexion.
[…] Footstool:
• The use of a footstool was discussed with [GAM]. It is not a requirement
for the workstation, however for some soreness relief it may be advised to change the position of the legs when sitting.
• If a footstool is used, it should be a similar model to the Fellowes Adjustable Footrest… which allows for small movement in the legs to
promote circulation.
Additional Comments:
• Upon discussion with [GAM] July 2, 2013, she reported that computers at work are shut down each night, which requires her to power-on the PC in
the mornings. This task requires her to go beneath the desk, which she reported is quite difficult and painful.
• A simple solution would be to change the position of her tower to the left side of her desk, running any cables around and behind the desk using
wires to secure them into a neat space.
Ergonomic Follow-up Report, June 25, 2013, Tab J
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32. On July 9 or July 10, 2013, the Employer decided that it would purchase a new computer monitor and this monitor was ordered in consultation with [GAM]. The Employer also decided to purchase a new footrest. The Employer determined that it would move the computer out from under the desk and it would provide longer cables in order to deal with the
height adjustment issues.
Email exchange between Nadia Surani, [GAM] and Beth Milne, July 9, 2013, Tab K Email exchange between Beth Milne, [GAM] and Nadia Surani, July 9, 2013, Tab L Email from Cathy Phan to Kelly Doctor, July 10, 2013, Tab M 33. On July 9, 2013, [GAM] was informed by Todd Robertson, Deputy
Regional Director at MCSCS that there would be construction in the building on July 10, 11, and 12, 2013. This construction was scheduled to take place in the conference room several feet away from [GAM]’s office. [GAM] then spoke to Lori Potter about the matter and was told that she was not informed earlier as she had been inadvertently left off
the email distribution list for staff in the building.
34. On July 9, 2013, [GAM] wrote to Nadia Surani and advised that she was under a medical restriction to avoid construction. [GAM] indicated that she was open to appropriate accommodation, which could include working from home or another work location that meets her
accommodation needs.
Email from [GAM] to Nadia Surani, July 9, 2013, Tab N 35. The MCSCS had notified Ms. Bairstow in May 2013 that construction was planned for a future date and indicated at that time that it would
inform Laura Pinkney, Melissa Farrell or Ms. Bairstow of the date of the construction with as much notice as possible to allow for alternate work schedule or location discussions between the employee and the Ministry of Health. However, Ms. Surani was not informed of the construction by MCSCS. When she learned about the construction from [GAM], it was
too late for her to set up any alternative work location and the employer would not agree to let [GAM] work from home.
Email from Lori Potter to Nadia Surani, July 9, 2012; Email from Dawn Bairstow to Lori Potter, May 16, 2013, Tab O
36. The Employer could not secure an alternate work location for [GAM] due to the short notice of the construction. Ms. Surani asked [GAM] if she could meet staff and work out of the boardroom in the Macdonald Cartier
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Building (49 Place d’Armes), and said that if [GAM] could do this, she would arrange it. Ms. Surani also indicated that there was workspace available for her at 80 Queen Street. [GAM] notified Ms. Surani that neither of these locations would meet her requirements. The Employer determined that July 10 and 11, 2013 would be deemed non-reporting
paid days. Friday July 12, 2013 was a sick day, as per the terms of the interim agreement.
Email exchange between [GAM] and Nadia Surani, July 10, 2013, Tab P 37. On July 12, 2013, staff working at 25 Heakes Lane were advised that there was a ‘glitch’ in the renovations and a further two days would be required to complete the work, notably July 18 and 19, 2013.
Email from Todd Robertson to Nadia Surani dated July 12, 2013, Tab O
38. [GAM] and Ms. Surani were unable to reach each other before [GAM]’s next day of work and as a result [GAM] did not know in advance where to report to work. [GAM] asserts that she left a message on Ms. Surani’s blackberry on July 15, 2013. Ms. Surani asserts that she did not receive
the message. On July 16, 2013, AMAPCEO counsel contacted Employer counsel and advised that [GAM] had attempted to contact Ms. Surani and had not received a response. AMAPCEO counsel asked the Employer to propose a solution about where [GAM] should report to work.
39. Ultimately, [GAM] and Ms. Surani got in touch with one another on July 17, 2013, and it was decided that July 16, 17 and 18, 2013 would be non-reporting paid days. July 19, 2013 was a sick day, as per the terms of the interim agreement.
Email exchange between Kelly Doctor and Cathy Phan, July 16 and 17, 2013, Tab Q Email from Nadia Surani to [GAM], July 17, 2013, Tab R
40. On July 23, 2013, the appropriate footrest was delivered and the computer tower and cables were moved to allow the table to lift up and down. Ms. Surani asked [GAM] to confirm that, with the exception of the monitor, the workstation was complete. [GAM] notified Ms. Surani that the mouse cord was no longer long enough (due to the computer tower
being moved) and asked if she could obtain a wireless mouse.
Email exchange between [GAM] and Nadia Surani, July 23, 2013, Tab S
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41. On or about August 7, 2013, [GAM] provided the Employer with a medical note from Dr. Di Quinzio which stated:
This patient was seen in clinic today and due to medical reasons will require continued decreased work hours. She is currently working three days per week at eight hours per day,
and I have suggested that she continue this schedule until she is reassessed here. She does require an adequate ergonomic station which is tailored specifically for her as per the recommendations in the Limeston [sic] Health Physiotherapy report of June 25, 2013. Once this is in place it is anticipated
that her medical condition would improve over time and she would then be able to increase her work hours. However, she will need to be reassessed in this office prior to any increase in hours. Letter from Dr. Di Quinzio, dated August 7, 2013, Exhibit 113 42. Following receipt of this note, the Employer continued to allow [GAM] to work three days per week. She continued to work on Tuesdays, Wednesdays and Thursdays. Mondays and Fridays were deemed sick
days, paid with STSP credits.
43. On August 8, 2013, a new computer monitor arrived for [GAM]. The monitor was not installed that day. On August 8, 2013, a wireless mouse was also provided.
Email from [GAM] to Nadia Surani, August 8, 2013, Tab T and e-mail dated August 13, 2013 from [GAM] to Ms. Surani, Tab U
44. The new monitor was installed but it did not stay in place once positioned. In addition the monitor arm was stiff and was difficult to adjust. [GAM] continued to be unable to use her workstation without experiencing pain. In order read online documents, she would print them
out for review.
45. On Friday August 16, 2013, Gerald Moore, Local Systems Officer, MGS, attempted to adjust the monitor arm. He informed [GAM] via email that the monitor arm “is not as pliable as the original make up; however the monitor can be adjusted up and down plus side to side and does stay in
the location it is moved to.” He wrote, “If you require more adjustment,
facilities will have to look into it.”
Email from Gerald Moore to [GAM], August 16, 2013, Tab V 46. On August 20, 2013, [GAM] informed Mr. Moore that “The monitor does
not stay in position and is difficult to adjust as needed.” The same day,
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the Employer put in a request for this issue to be addressed by “accommodations”. The monitor did not stay in place at the correct height on the monitor arm; it would slide down the arm towards the desk.
Email Exchange between Beth Milne, [GAM] and Gerry Moore, August 20, 2013, Tab W
47. On August 21, 2013, the Employer informed AMAPCEO, through counsel, that it had found a cubicle at 370 Select Drive for [GAM] that would be available until April 2014. [GAM] had planned a vacation from August 30, 2013 to September 16, 2013. The Employer informed
AMAPCEO that [GAM]’s workstation would be moved to the Select Drive location on August 30, 2013. Email from Cathy Phan to Kelly Doctor, August 21, 2013, Tab X
48. On August 27, 2013 Ms. Surani provided further details to [GAM] on her new temporary work location at 370 Select Drive, and on details of the move of her workstation to the new location.
Emails from Nadia Surani to [GAM] August 27, 2013, 10:32 AM (Tab Y), 2:23pm (Tab Z) and 2:47 pm (Tab AA) 49. On August 29, 2013, the Employer dismantled [GAM]’s work station while she was still at work, without informing her in advance that this would happen on this specific date.
50. The employer made a number of accommodations for [GAM] at 370 Select Drive. These accommodations were outlined in e-mails from Ms. Surani to Mr. Perlmutter on September 17, 2013.
Emails from Nadia Surani to Gary Permutter September 17th 2013, 1:06 pm and 2:00 pm, Tab BB
51. As of August 29, 2013, the issue with the computer monitor and monitor arm had not been resolved to [GAM]’ satisfaction, as the monitor did not stay in place and was difficult to adjust.
52. Between May 27, 2013 and August 30, 2013, [GAM] attended work on
approximately 32-34 days. AMAPCEO asserts that the attached attendance spreadsheet contains some errors, notably that on May 30, [GAM] was attending the hearing at the GSB in the present matter; [GAM] was present at work on July 9; and July 15 and 16 were deemed paid non-reporting days. The parties agree that nothing turns on this
issue.
Attendance Spreadsheet, Tab CC
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54. On September 17, 2013, [GAM] reported to work at 370 Select Drive. Within 10 minutes of being in the building, [GAM] states that she
experienced respiratory symptoms and hoarseness when talking. Beth Milne, Acting Manager of Workforce Development and Logistics, witnessed [GAM]’s reaction and escorted her out of the building. Ms. Milne suggested that she call 911 but [GAM] declined and instead Ms. Milne escorted [GAM] to her doctor’s office. Ms. Milne documented the
incident and her response to it in a file note for Nadia Surani on Sept. 17, 2013.
File note- [GAM] Move to Select Drive, September 17, 2013, Tab DD [Redacted]
[203] The union raises a number of concerns with respect to the employer’s
treatment of the grievor in administering and implementing the terms of the parties’
interim agreement. Some of these, the union concedes are less significant than others.
It points to:
• The encounter between the grievor and Ms. Barry which apparently triggered GAM’s “scent sensitivities” as referred to in para. 12 of the agreed facts
• The scheduling of construction at the workplace in July 2013, as set out in paras. 33-39 of the agreed facts
• The dismantling of the grievor’s workstation on August 29, 2013
while the grievor was still at work on the day before her vacation (the employer had advised that the workstation would be moved on August 30, 2013, once the grievor had commenced her vacation and that it would be re-installed and ready at the new location upon the grievor’s return from vacation on September 17, 2013 – there
does not appear to be anything explicit in the agreed facts or exhibits as to when the workstation would be dismantled to facilitate its move)
• The slow pace of employer efforts to insure that the grievor’s workstation and amenities met her ergonomic requirements
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[204] For its part, the employer reprised one theme and perhaps another. While
its efforts, including those aimed at accommodation may not have achieved the
standards of perfection, any deficiencies are simply so minor as to not warrant any
significant regard, let alone an award of damages. The employer also reminded us that,
in its view, it was under no obligation to offer the temporary assignment it did and
neither was it under any obligation to arrange to clean and move the grievor’s
workstation, particularly when there were no AQ issues at 80 Queen necessitating such
an indulgence.
[205] In my view, there is some limited basis for the application of the first
assertion, but none for the second.
[206] For the moment, I exclude any questions related to the installation of the
grievor’s work station and amenities. Even assuming the events related to the scent
issue and to the notice of construction amount to (technical, at worst) violations of the
collective agreement, the parties’ settlement or the Code (and I make no such finding),
any such breaches were remedied by the employer in a timely and responsible fashion.
These events demonstrate the salutary results of cooperation between the parties in
dealing with and resolving workplace issues. Like any collective agreement, settlements
(interim or otherwise) will never foresee all contingencies. When difficulties arise,
responsible parties cooperate in good faith and, more often than not, are able to arrive
at sensible resolutions. That is what happened with these two issues. I agree with
employer counsel: while a technical breach may preclude achieving a standard of
perfection neither will it invariably invite opprobrium. The parties’ conduct here invites
congratulation not condemnation.
[207] As far as the dismantling of the grievor’s workstation, I am equally at pains
to see why I ought to intervene in any fashion. Unlike an earlier similar event, the parties
were well aware of the time limited availability of the Heakes Lane work location. The
employer should perhaps have waited one extra day to dismantle the grievor’s
workstation. But even if this was an extremely minor error in judgement, I see no basis
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to conclude that it otherwise amounts to a breach of the collective agreement, the
settlement or the Code.
[208] I come to a different conclusion with respect to the ergonomic
accommodation.
[209] First, I need to address the employer’s second theme, premised on the
assertion that it was under no obligation to offer the grievor an alternate work location or
to arrange to have her workstation cleaned and moved there. This submission may be
accurate in describing affairs prior to the parties entering into the interim agreement. But
once the parties executed that agreement, it has no application whatsoever. The parties
were under no obligation to enter into the interim agreement. The employer might well
have cleaved to its firm position that the only return to work it would contemplate was a
return to 80 Queen. And given my conclusions regarding the general soundness of that
position, the employer’s firm position in that regard may well have ultimately been
vindicated. But the parties jointly chose to enter into an interim agreement on a without
prejudice basis. And I accept that they are to be congratulated, not castigated, for that
achievement. However, the employer cannot point to the fact that it may have agreed to
do things which it was previously under no legal obligation to do as some kind of
defence for not living up to the terms of the interim agreement.
[210] The parties’ agreement contemplated, among other things, a return to
work at an alternate location; the cleaning and transfer to the new location of GAM’s
ergonomic workstation and chair; and an ergonomic setup on day one of the grievor’s
return to work. And, of course, the parties did not, could not, contract out of the
employer’s obligation to, short of undue hardship, meet GAM’s legitimate needs for
accommodation. Those needs, the ergonomic ones, have been clear and constant,
dating back prior to the commencement of our narrative and reflected, once again, in
the ergonomic follow up report dated June 25, 2013. And yet, in a fashion which mirrors
events at some of the earliest points in our narrative, the employer was unable to
provide all of the necessary equipment in a timely fashion. Indeed, even as of August
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29, 2013, the last day the grievor actually worked at Heakes Lane, the monitor did not
stay in place and was difficult to adjust.
[211] It is unnecessary for me to review all of the deficiencies in great detail.
They are set out in the agreed facts. Suffice it to highlight the following.
[212] An ergonomist was to be retained to conduct a set-up of the workstation
on May 28, 2013, the day of GAM’s return to work. The ergonomist attended on that
date and again on June 5, 2017, but was unable to effect the set-up as the office was
not appropriately set up for such a review. Components were missing. A final follow-up
visit took place on June 25, 2017. The resulting report noted that a new lighter monitor
was to be procured to solve the issue of the monitor’s forward tilt, thus avoiding neck
flexion. The monitor did not arrive until August 8, 2017 and was installed sometime
thereafter. However, the monitor was not equal to the task – it did not stay in place on
the monitor arm – it would slide down the arm towards the desk. The monitor issue was
never fully resolved.
[213] Another deficiency is emblematic. The computer tower was located
underneath GAM’s desk. Computers need to be rebooted daily. As a consequence,
GAM was required to crawl under her desk daily to perform the reboot. It is not
surprising that this would generate discomfort or pain for a person with back issues. In
fairness to the employer, the agreed facts are not clear as to when this issue was first
brought to its attention. While it was an issue well before July 2, 2017, it may not have
been until that date that it was brought to the employer’s attention. On that date it was
identified as an issue by GAM in an email to her manager. And the Ergonomic follow-up
report refers to this as well as part of a discussion with GAM on that same day. The
ergonomist offered the following:
A simple solution would be to change the position of her tower to the left side of [i.e. on] her desk, running any cables around and behind the desk using wire ties to secure them into a neat space.
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[214] With all due respect to the ergonomist, one must wonder precisely how
much technical expertise is really required to come up with this simple solution. And yet,
even assuming July 2, 2017 was the first time the issue was raised with the employer, it
still took three weeks to implement this simple if not obvious solution.
[215] Other deficiencies, as indicated, are noted in the agreed facts. Singly, they
can perhaps not be properly characterized as egregious omissions. But taken all
together they evince yet another failure on the employer’s part to provide the ergonomic
accommodation it had been providing GAM for years prior to the events here under
consideration.
[216] I make one final observation in relation to this aspect of the case. In these
events, the local management team differed from that which oversaw events in the late
summer and early fall of 2010. Many (though not all) of the supporting ancillary
employer staff were also different. And yet the pattern of employer failure to fully
accommodate is curiously similar. No allegations of bad faith were raised or suggested
in this branch of the case. I am not satisfied that any bad faith was operative here.
Perhaps greater explicative power might attach to the bureaucratization of management
and the number of disparate persons, both local management and others (including
external contractors), engaged, in one fashion or another, in these events, each with
different roles and responsibilities. This level of bureaucratization, while perhaps more
generally necessary, should not impede the movement of a computer tower from the
underside to the topside of a desk when that is the simple and obvious solution to an
issue.
[217] Having regard to the foregoing, I am satisfied that the employer failed to
properly implement the terms of the parties’ interim agreement and failed to provide the
grievor with the ergonomic accommodation she required. There was no claim of any
economic loss arising from the employer’s breach. I am, however, satisfied that the
grievor is entitled to an award of damages in the nature of injury to dignity as a result of
the employer’s breach.
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******
[218] I turn now to three final issues.
Compassionate Transfer
[219] The parties have agreed to a number of circumstances where vacancies
which (so long as they have cleared the surplus process) may be filled without the need
for posting. Among these, article 18.8.1(b)(i) of the collective agreement provides as
follows:
Where the Employer and the Association agree to transfer an employee based on compassionate grounds, the Employer will attempt to find a permanent vacant position identical to the employee’s position elsewhere in the OPS, or, if unavailable, the employee may be assigned to a vacant position, as agreed upon between Employer and the Association,
provided he or she is qualified to perform the normal requirements. It is understood that if the Employer does not agree to the permanent assignment or if no permanent assignment is found at the time of submission, the request may be withdrawn by the Association. Where the request is not withdrawn by the Association, the Employer will continue
its search until a permanent position is found. Where the Association does not agree to the permanent assignment, the request will be withdrawn;
[220] The parties referred to this provision as providing for compassionate
transfer (the next provision, 18.8.1(b)(ii) contemplates similar provisions in respect of
temporary compassionate transfers). We heard evidence regarding the typical operation
of the section. Initially AMAPCEO is to approve the transfer in principle so as to waive
the posting requirements which might otherwise follow. Once that is done the matter is
referred to the employee’s manager for the employer’s approval. Once that is effected
the employer (through its Employment Mobility Co-ordinator) commences a search for a
vacant position of the sort described in the article. Once such a position is identified, a
further agreement of the parties is required to effect the transfer.
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[221] In March 2011, Ms. Bairstow alerted Ms. Pinkney that Ms. Hamilton-
Mayers had advised that GAM would be applying for a compassionate transfer. Ms.
Bairstow indicated that she saw no issues with the transfer as the union was prepared
to provide its support. However, the actual transfer request (along with the indication of
the union’s concurrence) was not filed until October 5 of that year when Ms. Hamilton-
Mayers forwarded the documentation to Ms. Pinkney. In her email she acknowledged
that GAM remained “absent due to illness” but suggested that it was prudent to initiate
the process as the identification of a suitable vacancy “can take some time”.
[222] Some time later Ms. Hamilton-Mayers became aware of a vacancy that
she believed might might have been appropriate for GAM. But when she contacted the
Employment Mobility Co-ordinator to follow up, she learned that the initial employer
approval had not been tendered. Ms. Hamilton-Mayers could not be specific regarding
when this communication took place or the vacancy in question. Surprised at the
response, Ms. Hamilton-Mayers followed up by email with Ms. Pinkney on November
29, 2011.
Ms. Pinkney responded:
An inquiry has been forwarded onto the Employment Mobility Coordinator
dedicated to handling the AMAPCEO Compassionate Transfer Requests seeking clarification if the request and be approved based on the current working status of the employee and the nature of the request. I am still waiting for confirmation before I can review the merits of the request.
[223] Shortly thereafter Ms. Pinkney, who confirmed that it was her decision to
make, determined (although there does not appear to have any formal communication
of the decision to GAM or the union) that the employer could not approve the request
because it still could not understand why GAM was refusing to return to 80 Queen and
because the grievor was off work at the time for medical reasons.
[224] Curiously, although there was little evidence apart from the actual
documentation, (Ms. Hamilton-Mayers followed up more than once in 2012, without any
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specific reply from Ms. Pinkney) the request was ultimately approved by Ms. Pinkney –
but not until February 5, 2013, some some 16 months after it had been filed.
[225] It is difficult to appreciate any meaningful distinction between the
circumstances attending the request in December 2011 and those in February 2013. In
both instances the parties were at odds regarding the appropriateness of a return to
work at 80 Queen and, in any event, in both cases, the grievor was not actively at work.
[226] The collective agreement does not explicitly set out the parameters of
when employer approval is to be tendered or withheld. There is no doubt that the
employer enjoys a wide berth with respect to its decision making in this regard. I am
concerned, however, that the basis upon which the employer declined to tender its
approval was problematic, at least to the extent that it was related to the grievor’s
disability and the employer’s concern for any accommodation that might be required.
Even if there was some legitimate basis for the employer’s concerns more generally, it
is important to recall that this approval was at the very start of what would have been a
protracted process. And the procedure the parties have agreed to permits, indeed
requires, further opportunities for assessment and agreement before any actual transfer
is effected.
[227] In the circumstances, I am satisfied that the employer’s handling and
refusal of the initial approval for a compassionate transfer request was improperly
motivated and therefore a breach of the collective agreement and the provisions of the
Human Rights Code incorporated therein.
[228] Having come to this conclusion, however, I am satisfied that no further
remedy is required apart from my declaration. There was no evidence before me that
there were any relevant vacant positions during the period in question and no basis
therefore upon which to conclude that the grievor was deprived of any actual transfer.
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Work from Home
[229] The union argued that the employer breached the collective agreement by
refusing (at various points) to allow the grievor to work from home or, at a minimum, by
not giving proper consideration to the request.
[230] There are two separate bases upon which the union urges me to arrive at
either or both of these conclusions. First, it is asserted that working from home would
have been a proper accommodation at various points in our narrative. In that regard, I
note that the union asserted that this option was never advanced as anything other than
a temporary accommodation, pending other anticipated developments (generally,
though not exclusively, the provision of further medical information requested by the
employer). While there was some conflicting evidence and submissions on this point, I
am prepared to accept the union’s version in this regard.
[231] The union also asserts that the employer’s refusal to consider or grant a
work from home arrangement was a breach of Article 47.1 of the collective agreement,
which provides:
47.1 Alternative Work Arrangements (AWAs) include: compressed work
week, flexible hours, job sharing and telecommuting. AWAs may
be entered into by mutual agreement between an employee and his or her manager. In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site.
[232] These two approaches each require different considerations and I will deal
with them separately, commencing with the accommodation issue.
[233] It is now clearly settled law that, where accommodation is required, the
employer is not obligated to provide the most appropriate accommodation or the
employee’s preferred accommodation when there is a range of options that will meet
the requirements in question. Thus, in a case such as ours, my task is not to weigh the
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relative merits of accommodation options, so long as the need for accommodation is
addressed. It therefore follows that all of the union’s evidence and submissions
regarding the feasibility of work from home are of little significance, so long as the
employer offered a plan which addressed the need for accommodation.
[234] However, even the previous formulation advances matters well beyond
the stage to which they generally arrived. I have already found that, but for two periods
in our narrative (i.e. in the aftermath of the carpet cleaning (from August to October
2010) and the period of construction at 80 Queen (in the first half of 2012)), the union
has failed to establish any medical or other proscription that would, as a general matter,
preclude the grievor’s return to 80 Queen. In other words, I accept the employer’s
position that (subject to the exception of the previously identified periods), no need for
accommodation has been established. (With respect to the final period, the parties’
obligations were governed by the terms their interim agreement, as set out and dealt
with earlier in this award.)
[235] Conversely, in respect of the two periods where a return to 80 Queen was
contraindicated (i.e. the aftermath of the carpet cleaning and during the 2012
renovations at 80 Queen), I have already found that the employer failed to provide the
necessary (ergonomic) accommodation for the grievor. While a work from home
assignment may well have been the grievor’s preference during these (and,
undoubtedly other) periods, I am satisfied that an assignment to an alternate location
coupled with a proper ergonomic accommodation would have adequately met the
grievor’s need for accommodation. The fact that the employer failed to provide this
required accommodation has lead to my earlier findings and will have remedial
consequences in that regard. I am not persuaded, however, that a work from home
arrangement was either necessary or the exclusive appropriate response to the
grievor’s accommodation needs.
[236] In respect of the application of Article 47.1, the union’s argument was
somewhat different.
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[237] The specific formal request under this provision of the agreement was
made on November 8, 2010. The reply from Ms. Pinkney is dated December 2, 2010
and reads:
… As you are aware, Article 47 indicates that alternate work arrangements [AWA] require mutual agreement between the manager and employee. It is the manager’s responsibility to assess the merits of the AWA as well as the operational viability for the work site.
Since you have not provided updated medical documentation, the employer does not have all the merits and relevant factors in order to exercise a decision in good faith, under Article 47.
[238] We heard some arguably inconsistent evidence from Ms. McQuillan and
Ms. Pinkney regarding the handling of this request. The former testified that there had
been a directive promulgated by Mary Fleming, the Director, precluding the granting of
any work from home requests. She further indicated that she had checked with Ms.
Fleming who confirmed that a work from home arrangement would not be available for
the grievor. Ms. Pinkney’s evidence was somewhat more nuanced. She testified that the
decision to withhold a work from home arrangement was made by Ms. Fleming on her
(Ms. Pinkney’s) recommendation. The negative recommendation was based on the
experience with another employee who was granted a work from home arrangement,
which, in the employer’s view, turned out to be unworkable. Ms. Pinkney also adverted,
in her evidence, to concerns related to access to confidential information and the lack of
on-site presence to allow for teamwork and collaboration as factors militating against a
work from home arrangement.
[239] The union pointed out that none of the latter factors adverted to were
mentioned to the union or the grievor at the time of the denial. Indeed, the only
documentary evidence of any assistance is an email from Ms. Pinkney to Ms. Fleming
dated November 16, 2010, which included the following:
[GAM] presented me with a letter requesting permission to work from home.
We have had previous discussions where we have indicated we do not
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have work from home arrangements but suspect this will be the biggest push we get on this case.
[240] The union suggested this communication is indicative of an inflexible
employer policy inconsistent with the terms of the collective agreement.
[241] I note, as well, that the only explicative reference in the formal response is
to the lack of medical information.
[242] The union asserts that the employer has failed to properly exercise its
discretion with respect to the grievor’s AWA request to work from home. The union
points, among others, to the oft-cited decision of this Board in Kuyntjes (1984) GSB File
No. 513/84 (Verity) at p.16, in which the following factors are identified as material in
relation to the exercise of managerial discretion:
1) The decision must be made without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to
rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review.
4) All relevant facts must be considered and conversely irrelevant consideration must be rejected. [243] The union claims that, at the time the decision was taken, the employer
simply and rigidly applied its policy precluding the granting of any work from home
requests. As Ms. Pinkney put it so categorically in her email: “we do not have work from
home arrangements”. The evidence establishes that was the major, if not the only,
relevant consideration in the employer’s mind at the time. All of the other reasons the
employer now proffers have been provided after the fact and, in any event, do not
support the refusal.
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[244] Having considered the evidence, I am satisfied that the employer gave no
meaningful consideration to the request for a work from home AWA, but rather simply
applied its pre-determined conclusion that no such arrangements were to be entered
into. I also find the employer’s formal response somewhat curious. It refers to a lack of
updated medical information as a reason for its inability “to exercise a decision in good
faith”.
[245] There is little doubt that the employer was frustrated through much of
these events by the lack of medical information, or more specifically, the lack of medical
information supporting the grievor’s ongoing refusal of any invitation to return to 80
Queen. We have already seen an instance, however, where this frustration was
expressed by creating a questionable “incentive” for the provision of such medical
information. This occurred (later in our narrative, but dealt with earlier in this decision) in
the context of the denial of sick leave benefits. The current reference to the lack of
updated medical information perhaps presages the communication that would come
later.
[246] In any event, it is difficult to see how the lack of updated medical
information is, in the context, of any relevance to the consideration of the request for an
AWA. If the grievor had the required medical documentation to support the need of work
from home arrangement to the exclusion of all others, she would have been far more
likely to achieve that goal by way of her right to accommodation rather than the much
lesser right to be considered for the exercise of an employer discretion under Article
47.1. But (apart from the exceptions identified) she did not have any such medical
support to stand in the way of her return to 80 Queen. That, however, did not preclude
her right to request an AWA and the employer’s obligation to consider her request.
[247] But while the employer may have breached its collective agreement
obligations by not giving proper consideration to GAM’s request, it does not follow that
the employer ought to have granted the request.
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[248] It is not my function, in the determination of this case, even in the absence
of a proper exercise of employer discretion, to appropriate the employer’s decision
making power. The standard of review is limited to insuring that the manager has
considered, “in good faith, both the employee’s request and the operational viability of
the AWA for the work site.” And while I have concluded that the manager failed to do so
at the time, I am not persuaded that a proper exercise of discretion would have led to
any different result. The so-called “after the fact” considerations pointed to by the
employer could well support the conclusion that the employer had adhered to a minimal
“good-faith” standard.
[249] And, finally, even if I am mistaken in that conclusion, I remain persuaded,
by virtue of our revisionist understanding of events, that no remedy apart from a
declaration is warranted. On the day GAM applied for an AWA, she was certified as
being unable to return to work before December 6, 2010. And, on December 2, 2010,
the day that Ms. Pinkney provided her formal response to the AWA request, the grievor
(while the parties may not have fully understood it at the time) was totally disabled, a
disability which would endure until the events, as described above, in January 2012 and
following. In other words, from the date of making the request and for over two years
following it, GAM was, in any event, entirely unable to work, with or without
accommodation, at 80 Queen or at home or at any other location.
[250] I hereby declare that the employer breached its obligation to consider the
grievor’s request for an AWA pursuant to Article 47.1 of the collective agreement. No
other remedy flows in respect of this breach.
Procedural Breach of the Duty to Accommodate
[251] The union advanced a novel alternative argument. It asserts that even
where there is no substantive breach of the duty to accommodate, including
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circumstances where the need for accommodation is not established, there may yet be
a procedural breach giving rise to a remedy. I was pointed to the case of Lee v.
Kawartha Pine Ridge District School Board, a decision of the Human Rights Tribunal of
Ontario, [2014] HRTO 1212 (CanLii). In that case (at paragraphs 96 and 97) the
Tribunal addressed the matter as follows:
In my view, the failure to take appropriate steps to assess an employee’s
disability-related needs inherently has a negative effect on that employee because of disability by failing to acknowledge that the employee’s right to be free from discrimination because of disability. This right to be free from discrimination inherently engages the employee’s dignitary interest in having her or his disability-related appropriately considered and assessed,
whether or not the end of today these leads could be accommodated in a substantial sense. One of the ways that disadvantaged and marginalized groups experience discrimination is by being ignored or disregard, which results in members of these groups not being seen and being rendered invisible. In my view, in the context of a request for Code-related
accommodation, ignoring or failing to consider an employee’s stated needs is an emanation of of this form of discrimination. To ignore, disregard or fail to adequately consider and assess a request for accommodation under the Code or, more particularly in the context of such a request made by a person with a disability, to ignore, disregard or fail to
adequately consider or follow up on medical documentation provided in support of an accommodation request inherently has a negative impact on dignity interests of a person identified by a protected Code characteristic by causing that person to experience discrimination by being ignored, disregarded or rendered invisible.
Procedural discrimination in the context of a request for accommodation will generally result in an award of compensation for injury to dignity, feelings and self-respect. However, procedural discrimination may also result in other remedies being awarded, depending upon the particular
circumstances of the individual case. The fundamental principle underlying this Tribunal’s remedial authority under the Code is, where a violation of the Code has been found, for the applicant to be put in the position he or she would have been in but for the discrimination. Where procedural discrimination has occurred, this Tribunal needs to consider, on a balance
of probabilities, what position the applicant would more likely than not have been in had the procedural discrimination not occurred. In some cases, where the evidence does not support a finding of substantive discrimination, the evidence may support a finding that even if the accommodation request or medical documentation had been appropriately
considered and assessed, the applicant’s position more likely than not would not have changed and as a result there would be no basis to award
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further remedies. In other situations, however, even if substantive discrimination is not found, the evidence may support that appropriately considering assessing the accommodation request may have resulted in further dialogue between the parties that more likely than not would have put the applicant in a different position. In such cases, additional remedies
may be appropriate, including potentially compensation for lost income or even reinstatement.
[252] In a more recent decision, the Ontario Court of Appeal in Hamilton
Wentworth District School Board v. Fair, [2016] ONCA 421 (CanLii) cited the above
decision with approval. Although the issue of procedural deficiencies in the context of
accommodation cases may not have been its chief concern, the Court, citing the above
case, offered the following (at para. 51):
Failing to accommodate a person’s disability-related needs is therefore a
violation of s. 5 of the Code, which prohibits discrimination against a person because of disability, if that person’s needs can be accommodated without undue hardship; the failure to take the appropriate steps to assess those needs is a violation of s. 5 of the Code: [citations omitted].
[253] The union referred to a number of instances in the instant case where it
asserted that, even if no substantive violation of the duty to accommodate was found, I
should nevertheless find that the employer had breached its procedural obligation to
properly consider and assess the grievor’s requests for accommodation. These were
what the union described as:
• The multiple failures to fully provide the required ergonomic accommodation
• The failure to give the grievor adequate opportunity to review and confer with her doctor(s) regarding the AQ report
• The employer’s delays and its failure to properly and promptly
engage in the back to work process in the early months of 2012
• The employer repeatedly insisting that that the grievor provide medical support for her contention that a return to 80 Queen was
not appropriate
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• Sending a misleading and inappropriate letter (October 15, 2010) to the grievor’s physician
[254] I begin by observing that with respect to the first three incidents adverted
to, these each occurred in contexts where I have already found that the employer
breached its contractual and statutory obligations by failing to properly meet the
grievor’s needs for accommodation. I have remained seized with respect to remedy and
will deal with any issues the parties are unable to resolve. It is thus unnecessary for me
to deal with the union’s alternative argument insofar as it pertains to those incidents.
[255] With respect to the fourth item – the repeated employer requests for
medical information – I have found that the union has failed to establish (subject to
exceptions at specific points in time) that the grievor’s disability (RADS) made it
impossible for her to return to 80 Queen. Thus, the employer’s repeated requests for
further medical information do not amount to procedural failures. Rather, they represent
further opportunities the employer provided to the grievor to establish that her
accommodation precluded a return to 80 Queen, opportunities that were not
successfully taken up. (And to be clear, the exceptions referred to, i.e. the instances
where a return to 80 Queen was not an option, are instances where I have found the
employer failed to properly accommodate the grievor – and, again, these do not need to
be considered from the perspective of the union’s alternative argument.)
[256] This leaves the final item – the employer’s letter to Dr. Di Quinzio on
October 15, 2010. For the reasons that follow, I am not prepared to find that this
amounted to a breach of any duty to properly consider and assess a request for
accommodation.
[257] First, I note that even if such a breach were established, no remedy
beyond such a finding would be warranted. There is no doubt in my mind that even a
more properly constructed letter (I have already expressed my view about its
“inaccuracies”) would not have yielded any different results with respect to the grievor’s
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claim for accommodation. For when a more acceptable letter ultimately issued, it had no
impact on the parties’ central disagreement regarding the grievor’s need for
accommodation (related to RADS).
[258] Further, as I have also indicated earlier, and while the employer may have
comingled issues of sick pay and accommodation, the principal issue at the time of the
letter, given the grievor’s inability to work at all at the time (and until January 2012) was
eligibility for STSP entitlements, not any immediate consideration of the theoretical
employment and accommodation consequences of the grievor’s RADS.
[259] Finally and to the extent the letter was problematic, its deficiencies were
abated, if not entirely remedied, following discussions between the parties, with the
issuance a revised letter.
[260] In the circumstances, I am not prepared to find the employer’s conduct
amounted to a breach of any of its procedural obligations. Like Vice-Chair Mikus, in the
Snider case, supra, I am loathe, in the circumstances of this case, to intervene at such a
granular level in the parties’ dealings regarding the solicitation of medical information.
[261] Having regard to all of the foregoing, the union’s alternative argument is
rejected.
CONCLUSIONS
[262] There is a certain ironic symmetry in the findings of this case. The
positions of each party have, to a limited extent, been vindicated, though they are
different positions on different issues applicable at different times and to different
extents. In a gross oversimplification, the parties’ principal failings may be described
thus: to the extent and for the periods that the grievor was entitled to or required her
ergonomic accommodation, the employer was consistently unequal to the task. On the
other hand, while the union consistently complained of what it viewed as the employer’s
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incessant and largely unnecessary demand for medical information, the information that
was provided (subject to some exceptional periods) never established any specific
medical impediment that would preclude the grievor’s return to work at 80 Queen or that
would necessitate her return to any location but 80 Queen.
[263] But despite these mutual victories, some more modest than others, one
cannot help but observe that neither the grievor nor the employer is in any danger, quite
apart from any questions of liability, of having their conduct throughout this lengthy
narrative being cited as exemplary.
[264] To cite but a few examples: the employer was less than diligent in its
efforts to provide ergonomic accommodation at the times it was required, having been
unduly influenced by its own perceptions of optimal timetables; it seized the
opportunities to create questionable “incentives” to control the grievor’s conduct; and
showed exceptionally poor judgement in determining to deliver potentially offensive
cleaning samples directly to the grievor’s home.
[265] For her part, the grievor was, as a general proposition, extremely
circumspect in providing medical information. Indeed, in some instances, it appears that
relevant medical information was deliberately withheld, at least for a period of time. And
while the grievor is, of course, perfectly entitled to jealously guard her privacy, the
exercise of that entitlement in a context where an accommodation that requires medical
certification is being sought, will not serve to enhance or facilitate the process (on this
point, see Casino Niagara and OPSEU, [2012] CanLii 8645 (ON LA) at paras. 88-93
(Surdykowski)). There were also instances where the information provided by the
grievor to her health care providers may have been somewhat creative and less than
accurate. I have detailed some of these already. There were others including questions
that arise from the grievor’s clinical record, such as possible inconsistent statements
made to medical personnel concerning a prior diagnosis of asthma.
[266] In any event, and in view of all of the foregoing, my findings are as follows:
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1. For the period August 18, 2010 to October 7, 2010, I find that the employer
breached its collective agreement and statutory obligations to provide the
ergonomic accommodation the grievor required. The grievor is to be made
whole for any economic losses suffered. In addition, the grievor is entitled to
an award of damages for her non-tangible losses, including mental distress
and injury to dignity
2. For the period from October 8, 2010 to the commencement of the period of
total disability (November 30, 2010) and to the conclusion of the period of
total disability (January 18, 2012), I have found that the employer did not
breach any contractual or statutory obligation to accommodate the grievor.
For the period leading up to the commencement of total disability, it was not
established that the grievor was in need of any accommodation (except the
ergonomic accommodation which was available to her at 80 Queen). And for
the duration of the period of total disability, no accommodation was required
or even possible (even if it was sought at the time) as the grievor was
incapable of performing the duties of her position (the only position ever
sought by way of accommodation throughout our narrative). I have found,
however, that during this period (up to the commencement of receipt of LTIP
benefits) the employer, despite maintaining the grievor on regular payroll until
early March 2011, improperly withheld its approval of STSP. The grievor is to
be made whole in respect of any losses she may have suffered as a
consequence during the period up to May 30, 2011. The parties will perform
the necessary accounting. I shall remain seized should they encounter any
difficulties.
3. For the period from the end of total disability (January 18, 2012) until the
grievor’s return to work (May 27, 2013), I have found that the employer failed
to properly accommodate the grievor in failing to facilitate her return to work
(whether at 80 Queen or at an alternate location or from the grievor’s home)
between January 18, 2012 and July 17, 2012. The grievor is entitled to be
made whole and to be compensated for any losses she may have suffered
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during this period. This entitlement is subject to my earlier comments
regarding the shared responsibility of the employer and the grievor with
respect to effecting her return to work. In addition, the grievor is entitled to an
award of damages for her non-tangible losses, including mental distress and
injury to dignity.
4. For the period from May 27, 2013 to September 27, 2013 (a period governed
by the parties’ interim agreement as set out in their agreed facts), I am
satisfied that the employer failed to properly implement the terms of the
parties’ agreement and failed to provide the grievor with the ergonomic
accommodation she required. There was no claim for any economic loss for
this period. However, the grievor is entitled to an award of damages for her
non-tangible losses, including mental distress and injury to dignity.
5. With respect to the grievor’s request for compassionate transfer, I am
satisfied that the employer’s handling of the matter, was a breach of both the
collective agreement and Human Rights Code. However, I am also satisfied
that no further remedial response beyond this declaration is warranted.
6. With respect to requests for an alternate work arrangement, specifically that
the grievor ought to have been permitted to work from home, I have found
that the employer did not breach its contractual or collective agreement duty
to accommodate. I have found, however, that the employer breached its
obligation to properly consider the request under Article 47.1 of the collective
agreement. However, I am also satisfied that no further remedial response
beyond this declaration is warranted.
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[267] To the extent set out herein, the grievances are allowed. I will remain
seized with respect to any issues that may arise in respect of the implementation of this
award, including the quantification of any damages flowing from my decision.
Dated at Toronto, Ontario this 11th day of August 2017.
Bram Herlich, Vice-Chair
- 108 - Appendix A
Hearing Dates
July 27-2012
April 22-2013
April 30-2013
May 9-2013
May 16-2013
May 30-2013
December 9-2013
January 24-2014
January 29-2014
March 19-2014
March 20-2014
November 19-2014
December 8-2014
December 11-2014
December 16-2014
December 18-2014
January 19-2015
July 16-2015
July 20-2015
October 13-2015
December 2-2015
January 7-2016
April 6-2016
April 27-2016
July 19-2016
July 27-2016
July 28-2016
August 26-2016
October-18-2016